### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs N ovember 19, 2003

STATE OF TENN ESSEE v. BRANDON D. FORBES
Direct Appeal from the Circuit Court for Dickson County No. CR6055 Robert E. Burch, Judge

No. M2003-00474-CCA-R3-CD - F iled February 6, 2004

Defend ant, Brandon D. Forbes, was indicted on one count

of aggravated r

obbery and one

count of theft. Followin

g a jury tr ial, D efendant was convicted of both counts. The trial court mer ged the two counts into a single count of ag gr av at ed ro bb er y. Following a sentencing hear ing, Defendant
was sentenced to serve ten y ears. In this appeal

as of right, Defendant challeng es the sufficiency of the evidence and arg

ues t hat his sentence was excessive. After a car eful review of the record, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

T HOMAS T. W OODA LL , J., delivered the op inion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined.

Me rr il yn Feirman, Nashville, Tennessee (on appeal); William Br

adley Lock ert, III , Distric t Public Defender; and

Christophe

r L. Y oung, A ssistant Pub lic Defender (at trial) for the appe llant, Brandon D. Forbes.

Paul G. Summers, Attorney Gene ral and Reporter; Kim R. Helper, Assistant Attorney General; Dan M. Alsobrooks, District

Attorney Genera l; and Kim Menke, Assistant District Attorney G eneral, for the appellee, the State of Tennessee.

OPINION

OnDecember 31, 2001, the vict im, Morgan Franceschini, stopped for gas at the Texaco station on Highway

46 next to the Bank of

Dickson. As the victim was leaving the store, he stopped behind an orange pickup truck in front of him, waiting for traffic t o clear b efore pulling onto the hi gh wa y. While the victim was stopped behind the orange truck, he saw De fendant exit the passenger side of the orange truck and a pproach the passenger side of the victim’s vehicle. Defendant

asked the

vic tim for a ride to Wal-Mart. The victim, who had never before seen Defend ant, told Defendant that he did not have time. Defendant then asked the victim to drivehim to the Archway

Apartment complex, only a short distance a way fr om the Texaco. The victim agreed because he was on his way to visit a friend, Jason Sullivan, who lived at Archway Apa rtments.-2-

The orange truck turned rig htonto the hi ghway

and drov e toward

Wal-Mart

. The victi

m also turned right, a nd then tur

ned left into Arch

way Apartme nts. The victim stopp ed in front o f the apartme nts where Defendant told him to stop. Defendant asked the victim to wait for him while he
ran into his friend’s apartment and then drive him to Wal-Mart. The victim refused. Defendant then got out of the victim’s v ehicle, turned a round and pointed a

gun at the victim a

nd told the

victim “to give [his] shit up.” The victim heard “rapid action” from the g un and got out of his truck and began running away. The victim heard gunfire and ran ha rder. Defendant said, “Come back here, nigga, I’m not done with y

ou.” The victim ra n into Wal-M art. He met his brother inside Wal-Mart, and his brother told someone at the store to call 911. The police arrived. Several of the victim’s friends also arrived on the scene. T he victim spoke to Sergeant Miller. The victim did not see his 1998 Ford Ranger , valued a

t betwee n six and sev en thousa

nd dollar s, until

it was recovered

by the police about four or five day s after the incident. Following the incident, the victim identified Defendant in a photographic lineup. De tective Breeden a lso showed the victim a videotape taken at the Texaco, and the victim recog nized Defendant inside the store. Detective Br eeden took a

tape recorded statement from the vi cti m. In that statemen t, the vic tim did not te ll Detec tive Bre eden tha t Defend ant had to ld him to “give [his] shit up.”

Matthew Kuntz wa s r iding with Defendant and Ecedro Vasquez in an orange truck on Decem ber 31, 2001. Mr. Kuntz sat in the middle of the truck between Mr. Vasquez, who was drivi ng, and Defendant, who sat in the passenge r seat. Mr. Vasquez pulled into the Texaco station
on Highway

46 to fill his truck with gas. As they were leaving theTexaco, D efenda nt “jumpe d out” of the truck and said, “hold on.” Defendant walked back t o a green truck stopped behind Mr. Vasquez’s truck

and then c ame back a few minutes later and told them to go ahea d without him and that he had “found a

ride.” Mr. Vasquez then drove Mr. Kuntz to the Trails Apartments, where he li ved. The Trails Apartments are located a short distance from Archway

Apartments, b etwee n Archway Apartments and Wal-Mart. As they waited to turn

left into the Trails, Mr. Kuntz saw the green truck turn into Archway Apartments.

Cassie Morgan knew Defendant throu gh h er roommate, Nancy Weedman, who dated Th oma s Lee Boeing, a friend of Def endant’s. On January 1, 2002, M s. Morga n heard D efenda

nt tell
someone else that he had pulled a gun on a man and take n his truc k. Ms. Morgan gave a stateme nt to the police on January

4, 2002, but she did not tell the police about De fendant ’s confe ssion. Ms. Morgan e xp lai ned th at O ffi cer Sh ane Dun ni ng h ad a ske d he r th e wh ere abo ut s of Tho mas Le e Boeing, and she told Officer Dunning that he had just left her hou se go ing to Monique Boeing’s house. Ms. Morgan had pled guilty to selling counterfeit drugs.

Detective Eddie Breeden of the Dickson Police Department had attempted to locate Thomas Lee Boeing because he kne

w that he and Defenda

nt “hung tog ether a lot.” Detective Bree den testified that the victim’s truck was recovered around Eig hth Avenue and Jefferson in Nashville, within two miles of Defendant’s residence. Detec tive Breeden interviewed the victim. He asked the-3-

victim whether the in ci de nt ha d b ee n a “b ad dr ug de al ” i n o rd er to ru le ou t t ha t p os si bi li ty. Detective Breeden was not aware

of any bullets or bullet ca sings being recovered a t Archway

Apartments.

Officer Bill Miller of the Dickson Police Department met with the victim at Wal-Mart immediate ly

following the incident. According to Officer Miller’s report, dated Dece mber 31, 2001, the victim dro ve to Arc

hway Apartme nts to visit a

friend. The victi

m was then approached

by a man inthe p arki

ng lo t of th e apa

rtment co mplex. The man asked the victim for a rideto Wal-Mart, and the victim refused. The man then grabbed the victim by theshirt, pointed a gun at the victim, and said, “give it up.” The victim then pushed the gun away a nd jumped out of the truck. The victi m heard one gunshot as he ran fr om the scene.

Defendant testified that

on December 31, 2001, he was riding with Ece dro Vasquez in Mr. Vasquez’ truck. Mr. Vasquez stopped at Texaco to fill his truck with gas. Defe ndant went inside the store to buy a cig ar. As he exited the store, the victim asked him about the ci gar he wa s hol ding. The victim asked

Defendant if he knew where to buy some marijuana. Defendant did not respond at first because he thought

the victim might be a police officer. Defe ndant got i nside Mr. V asqu ez’ truck. D efenda

nt then de cided to s ell some dr ugs to the victim. He told Mr. Vasquez to go ahead
w ithout him, and he walked over to the victim’s truck and got inside. They drov e to Archway Apartme nts. Defendant sold the victim some marijuana for twenty dollars on the way to t

h e ap artmen ts. When they arrive d at the apartments, Defendant went inside an apa rtment where he received a substance that he represented to the victim to be, but that in fact was not, on e gram o f crack cocaine . Defen

dant th en asked the

victim if h e would “

rent” hi s truck to

him. The vi ctim agreed, and in exchange f or his use of the victim’s vehi cle for one hour, Defendant gave the victim what he knew w ere “ba

d drugs .” Defe

ndant tes tified tha

t he knew the victim

would call the police because Defendant had given the victim “d rugs that [were] not real for his vehicle.” Defendant testified that he did not use a gun. Defendant did not return the victim’s truck because he feare d that the v ictim was calling the police. Defendant drove the victim’s truck to General Ho spital i n Nashville to see his baby’s mother. D efendant testified that he did not

intend to return the victim’s truck within an hour. Defendant later abandone d the truck on the side of the road in Nashville.
Sufficiency of the Evidence

When evaluating the sufficiency of the evidence, we must determine whether “‘any rational trier of fact could have found the essential elements of the crime bey

ond a reasonable doubt.’” State v. Keough , 18 S .W.3 d 175, 180-8 1 (Ten n. 200 0) (qu otin g Jackson v. Virgini

a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). This Court m ust afford the pr

osecution the stro ngest legitima te vi ew of the evi dence in the record as well as all rea sonable and legitimate inferences whichmay be dra

wnfr om the evidence. Keough , 18 S .W.3 d at 18 1 (cit ing State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997)). Questions regarding the cre dibility

of the wit nesses, t he weig ht to be given the evidence, and any factual issues raised by

the evidence are re solved by the trier of fact

. Bland , 958 S.W.2d at 659. A guilty verdict re moves the presumption of innocence and

replac es it with one of guilt. State v. Tu

ggle , 639 S.W.2d 913, 914 (Tenn. 1982). On appeal, the defendant has the burden of proving that the evidence a t trial was insufficient to convict. Id

.-4-

Defendant

was convicted

by a jury of aggravated robbery and theft. The trial court merged the two counts into a single count of aggr avated robbe ry. “Robbery is the intentional or knowing theft of property f

rom the person of another by violence or

putting the person in fear.” Tenn. Code Ann. § 39-13-40 1(a). The robber y is aggr avated by th e use of a deadly weapon. Tenn. Code Ann. § 39-13-402(a)(1).

The proof at trial showe d tha t after t he victim d

rove De fendant

to Archw ay

Apartme nts, Defendan t pointed a g un at the victim, and the victim ran away in fear. Defendant then took the victim’s truck without the victim’s consent. On appeal, Defendant arg ues that he did not

intend to take the victim ’s truck . Based on Defe ndant’s own testimony

at tr ial, howe

ver, a ju ry could
reasona bly conclude that Defendant intended to take the victim’s truck. Defendant testified that he intended to drive the victim’ s truck to Nashville

to see his baby’s mother in the hospital. Even if the jury accredited Defendant’s testimony that the victim gave Defendant permission to use his truck for
one hour in exchange for cocaine, the jury could hav e found that Defe ndant did n

ot intend to

return the truck wit

hin the agreed upon time period. Further more, Defendant testified

that he did not intend to return the victim’s truck because he fea red that the victim would call the police. The jury appare ntly accredited the victim’s testimony and discredited Defendant. Finally , viewed inthe light most favorable to the State, the proof at trial showed that Defendant used a gun. De fendant is not entitled to relief on this issue.

Sentencin g
A defendant’s sentenc e is revie wed by the appe llate cou

rts de novo with a

presumption that the determinations made by the trial cou rt are cor rect. Te nn. Code A

nn. § 40-3 5-401(d) ; State v. Imfeld , 70 S.W.3d 698, 704 (Tenn. 2002). F or this pre sumption to a pply to the tria l court’s actions, there must be an affirmative showing in the record that the trial cou rt considered sentencing principles and all relevant facts and circumstance s. State v. Pettus , 986 S.W.2d 540, 543-44 (Tenn. 1999). While de termining or reviewing a sentence, the c ourts must consider: (1) the evidence received at tri al and the se ntenc ing h earing; (2) the presentence report; (3) the principles of sentencingand arguments as to sentencing a lternatives; (4) the n ature and characteristics of the criminal conduct involved; (5) evidence offered by the parties on the enhancement and mitigating factor s; (6) any state

ment the defendant wishes to make in the defend ant’s behal f abou t sent encin g; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40- 35-103(5), -210(b); State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991).

A defendant who challenges his or her sentence has the burden of prov ing the sentence imposed by the tri al cou rt is impro per. T enn. C ode An n. § 40 -35-4 01, S enten cing C ommis sion Comments; Ashby , 823 S.W.2d at 169. If the trial court has imposed a lawful sente nce by following the statutory sentencing

procedure, has given due

consideration and proper weight to the factors and sentencingprinciple s, and has made findings of fact adequate ly supported by the record, this Court may not modify

the sentence even if it would have prefe rred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Ten n. Crim. Ap p. 1991). Howeve

r, if the t rial cou rt does no t comply

with-5-

statutory sentenc ing prov

isions, our review

of the se ntence i s de novo with no presumption the trial court’s determinations were correct. State v. W infield , 23 S.W.3d 279, 283 (Tenn. 2000). Aggravated

robbery is a Class B felony, which c arries a sentencing range of e ight to twelve years for a Range I

standard offender. Tenn. Code Ann. §§ 39-13-402( b), 4 0-35-112(a) (2). The presumptive sentenc e is the min imum sente

nce in the range if there are no enhancement factors a nd
no mitigating factors. Tenn. Code Ann. § 40-35-2 10(c). If such fa ctors do e xist, a tria l court should enhance the minimum sentence within the range for enhanc ement factors and then reduc e the sentence within the

range for the mi

tigating factor s. Tenn. C ode Ann. § 40-35-21 0(e); State v. Arnett , 49 S.W.3d 250, 257 (Ten n. 2001). If there ar e enhancement factors, but no mitigating factor s, a trial court may

set the sentence above theminimum within the range. Tenn. Code Ann. § 40-35-21 0(d); Stat e v. Imfe ld , 70 S.W.3d 698, 704 (Tenn. 2002). The statutes prescribe no particular weight for an enhancement or mitig ating factor , and the weight given to ea ch fact or is left to the discr

eti on of the trial court, provided the trial court has complied with the purposes and principles of the Sentencing Act and its findings are supported by the record. State v. G

osnell , 62 S.W.3d 740, 750 (Ten

n. Crim. Ap

p. 2001); State v. Zonge , 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997).

The trial court sentenced Defendant to serve ten years in confinement, the midpoint in t h e range of possibl e senten

ces. The trial court found the follow

ing enh anceme

nt facto rs applic able to Defendant’s sentence: the defendant has a previous history of criminal convictions or cr iminal behavior in addition

to those ne cessar

y to establish the appropriate range, Tenn. Code A nn. § 40-35- 114(2); and

the defenda

nt was ad judicate d to have c ommitted a delinque nt act or acts as a juvenile that would constitute a

felony if committed by

an adult, Tenn. Code Ann. § 40-35-114(21). The trial court placed significant weight on Def end an t’s juvenile adjudication for a charge of aggravated
ro bb er y, the same

charge for which he wa s convicted in this case. Defendant does not challenge the trial court’s application

of those enhancement factors, and we conclude that the a pplication of those enhancement factors is supported by the record.

Defendant

argues that the trial court erre d by not apply ing a mitigating fa ct or, appli cable under the catch-all provision of Tenn. C ode Ann. § 40-35-1 13(13). D efenda nt conten ds that his learningdisability, documented in his juvenile court rec ord, should have mitigated his se nten ce. W e conclude that the tr

ial cour t did not er

r in decl ining to a

pply this m it igating factors. We further conclude that a sentence of ten y ears wa s appropr

iate in thi s case. D efenda

nt is not en

titled to relief on this issue.

CONCLUSION The judgment of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE