IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE v. DAMION CARRICK

Direct Appeal from the Criminal Court for Shelby County

No. 98-09360 W. Fred Axley, Trial Judge

No. w1998-00655-CCA-R3-CD - Decided May 16, 2000

The defendant appeals his jury convictions of two counts of Especially Aggravated Robbery and his

twenty-five year sentences. The evidence is sufficient to support a conviction, the photographic line

up not unduly suggestive, and the length of sentence appropriate. However, the testimony

concerning the defendant “being developed as a suspect” was improperly admitted, but the error

harmless. Further, plain error requires merging the two convictions of Especially Aggravated

Robbery into one conviction and modification of the defendant’s sentence but not its length.

Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Criminal Court Affirmed as Modified

WILLIAMS, J. delivered the opinion of the court, in which TIPTON and WITT, JJ. joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Damion Carrick.

Paul G. Summers, Attorney General & Reporter, Patricia C. Kussman, Assistant Attorney General,

William L. Gibbons, District Attorney General, and Rosemary Sue Andrews, Assistant District

Attorney, for the appellee, State of Tennessee.

OPINION

The defendant, Damion Carrick, appeals from his convictions by a Shelby County jury of

two counts of Especially Aggravated Robbery, class A felonies. See Tenn. Code Ann. § 39-13-403.

The defendant was sentenced, as a Range I offender, to the Department of Correction for twenty-five

years on each count, these sentences to run concurrently. On this appeal, the defendant challenges

his convictions and sentences on the following grounds:

(1) The trial court erred in denying the defendant’s motion to suppress the

photographic identification of the defendant on the basis of undue

suggestiveness;

(2) The trial court erred in admitting certain testimony; and

(3) The trial court erred in imposing an excessive sentence.

After careful review of the briefs, the record and the applicable law, we find plain error in the

judgment from the trial court. We find that the evidence does not support two separate counts of

especially aggravated robbery; accordingly, we merge the two counts into one count of especially
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aggravated robbery and modify the sentence imposed. In all other respects, we affirm the judgment

from the trial court.

BACKGROUND

On the morning of April 22, 1997, the victim, a ninety-one year old woman, came back into

her house after planting flowers in her backyard. The victim lived alone. Moments later, when the

victim saw unexplained movement in her living room, she exclaimed, “Oh my Lord! I know

someone is in there.” The defendant, hiding inside, ran over to the victim, took a pillow off the sofa

and forced it over her face and mouth. As the victim struggled, the defendant choked the victim by

putting both of his hands around her neck. She pulled at his hands to free herself. The defendant

pushed back with such force that the defendant broke two of the victim’s fingers. The defendant,

then pulled a shiny metal object out of his back pocket and hit her in the chest four to five times,

knocking her to the floor. Before leaving the house, the defendant then stole money from the victim’s

purse and an umbrella from her closet; it was a rainy day.

Soon afterwards, the police arrived on the scene. The victim provided a statement to the

police which related her description of the assailant: A young, slender black man approximately five

feet nine inches tall, weighing approximately 160 pounds, wearing a striped shirt and a baseball hat.

Six months later, the defendant was picked out of a photo array by the victim. He was then

indicted for two counts of especially aggravated robbery: one alleging the attack with the pillow and

the other alleging the attack with the “shiny metal object.” At a jury trial in Shelby County, the

defendant was convicted of both counts; from these convictions, he now appeals.

ANALYSIS

In-Court Identification and Photo Array

Before trial, the defense counsel filed a motion seeking the suppression of the victim’s incourt identification of the defendant. He argued that the victim’s identification was tainted in that

it was based upon an earlier unduly suggestive photo array. The trial court, however, found that the

photo array was “in no way suggestive” and denied the defendant’s motion to suppress. Appealing

this ruling, the defendant has the burden of showing that the evidence preponderates against the trial

court’s ruling. See State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981).

The defendant’s principal contention is that in the photo array only he is pictured wearing

a striped shirt. He argues that this peculiarity is significant and unduly suggestive because the

victim, on the scene, identified her assailant as wearing a striped shirt. To the contrary, the state

argues that this peculiarity does not taint the identification. We agree with the state.

This Court recognizes that a due process violation may occur in a suggestive identification

procedure even in the earliest stages of a criminal investigation. In deciding whether a violation has
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occurred, the court must view the “totality of the circumstances.” See Stovall v. Denno, 388 U.S.

293, 302 (1967); State v. Beal, 614 S.W.2d 77, 82 (Tenn. Crim. App. 1981). A photographic

identification is admissible unless, based on the totality of the circumstances, the confrontation

conducted was so unnecessarily suggestive and conducive to mistaken identification that the accused

was denied due process. In Neil v. Biggers, 409 U.S. 188, 199 (1972), the court set forth a fivefactor analysis for determining whether an identification tainted by suggestion may nonetheless be

admitted into evidence:

(1) the opportunity of the witness to view the criminal at the time of the crime;

(2) the witness’s degree of attention at the time of the crime;

(3) the accuracy of the witness’s prior description of the criminal;

(4) the level of certainty demonstrated by the witness at the confrontation;

(5) the length of time between the crime and confrontation.

See also State v. Philpott, 882 S.W. 2d 394, 400 (Tenn. Crim. App. 1994).

The photo array shown to the victim included six pictures of relatively similar individuals;

accordingly, there is no argument that any “gross dissimilarity” in appearance tainted the photo array.

See United States v. Wade, 388 U.S. 218, 233 (1967). However, the defendant is the only one

pictured in the array wearing a striped shirt; again, the same type of shirt the victim testified to

seeing.

A jury-out hearing was held on the admissibility of the victim’s identification testimony. At

the conclusion of the hearing, the trial court held that the testimony was admissible. In support of

this conclusion, the trial court stated:

Anyway, the photo spread that the victim in this case identified the defendant from

and is Exhibit Number 22 is not suggestive. Much has been made about a striped

shirt and I think that’s a valid argument. However, the photograph in Exhibit 22 was

made at another time, either before or after this victim’s having seen him, and then

we find that the striped shirt is not the one that he wore in the house. He may have

a thing about wearing striped shirts. I don’t know. But I can say into the record that

police should not be forced or allowed to change the suspect’s appearance either in

the defendant’s favor or in the favor of the victim.

Supporting the trial court’s conclusion, the court heard the testimony of Officer Blum, who

explained the procedure and established there was no coaching during the photo identification, and

the testimony of the victim, who recounted her recollection of the assailant’s appearance and her

certainty in the identification of the defendant.

Reviewing the trial court’s findings that the photo array was not suggestive and its conclusion

that the testimony is admissible, we note the following facts:
1

 The victim’s glasses were knocked off during the assault.

2

 We do note that the identification occurred six months after the robbery, but we do not find

this length of time dispositive. 

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(1) The victim’s testimony established that she could see without her glasses;1

(2) Her testimony established that she had the opportunity to observe the defendant

for some time;

(3) Her testimony established that she has never wavered in the identification;

(4) Officer Blum’s testimony established that she showed no hesitation at the photo

array; 

(5) She testified that she is certain in her identification of the defendant; and

(6) Her description, while not overly detailed, corresponds accurately to the relevant

characteristics of the defendant.

Therefore, in accordance with the Biggers factors,2

 we conclude that the photo array was not

unduly suggestive, and that the testimony was admissible. While peculiarities may render a photo

array violative of due process, in this case, the peculiarity, the striped shirt, in no way orchestrated

by the police, was not unduly suggestive. Accordingly, we find no merit in this issue.

Motion in Limine to Prohibit Certain Testimony

The defendant next contends that it was error for the trial court to deny his motion seeking

the exclusion of testimony to the effect that the defendant was “developed as a suspect.” This

testimony, the defendant contends, is both irrelevant and inadmissible hearsay. This Court agrees

that the testimony is irrelevant and was improperly admitted. Therefore, we find error.

First this Court looks to Tenn. R. Evid. 401 and 403. Tenn. R. Evid. 401 defines relevant

evidence as:

“Relevant evidence” means evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.

But, for determining admissibility, Tenn. R. Evid. 403 continues: 

Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.

In accord with these rules, we must review the trial court’s decision to admit the testimony

at issue here. We review for an abuse of discretion. But first, we set forth the relevant testimony:

Prosecutor: And, Officer Blum, Sergeant Blum, when was the first time you
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developed Damion – 

Defense Counsel: Your Honor, can we approach the bench?

The Court: Yes, come on up.

(A bench conference was held as follows.)

Defense Counsel: Even though your Honor’s ruled on it, I just want to be sure,

because the Court of Appeals says you have to make your objection in addition. So,

again, I just renew my motion about the terminology, “developed a suspect” from this

officer testifying and I just basically it’s renewal of the motion that I filed – 

The Court: Right. The same ruling.

Defense Counsel: Very well, Your Honor.

The Court: Okay.

(Said bench conference was concluded.)

Prosecutor: Okay, Sergeant Blum, when or if, when did you first – when were you

first able to develop Damion Carrick as a suspect?

Officer Blum: In reference to [the victim’s] case it was the end of October.

Prosecutor: Okay. And once you developed him as a suspect, Sergeant Blum, how

did you proceed?

Officer Blum: I took his photograph and included it in a what we call a photo spread,

which is a form with a total of six pictures. His was included with five other

individuals. And I met with [the victim] and showed her that photo spread.

We believe whatever probative value is present, it is outweighed by the danger of prejudicial

inferences. The question and answer invite the jury to infer that there were other cases in which this

defendant was a suspect or that the officer had other evidence, not admitted at trial, upon which to

suspect the defendant. Either inference is impermissible and potentially prejudicial. Therefore, we

find that the trial court abused its discretion and should have excluded the evidence under either

Tenn. R. Evid. 401 or 403.

This finding, however, only begins our analysis. Now, we must determine whether this error

warrants a new trial or whether it is harmless. This Court will not set aside the jury verdict below

unless, “considering the whole record, error involving a substantial right more probably than not

affected the judgment.” Tenn. R. App. P. 36(b). 

Two factors, discernable upon an analysis of the instant testimony and its admission, weigh

in favor of finding the error harmless. First, a plain reading of the statement reveals that its actual

language is rather uninteresting and facially innocuous. It is, after all, axiomatic that the defendant,

Carrick, was at one time in the police investigation “developed as a suspect.” Every criminal

defendant was, at one time, before his trial “developed as a suspect.” Second, the prosecution made
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no real use of this testimony, and therefore, rather than a dominant or even reoccurring prosecution

theme, the testimony, as outlined above, was before the attention of the jury for only a brief time

during Officer Blum’s testimony and a passing mention at closing argument.

Conversely, two factors weigh against such a determination. First, the testimony was not

“blurted out by the prosecution witness,” but rather, it was deliberately elicited. Second and more

importantly, all the evidence against Carrick, while sufficient to support his conviction, was entirely

composed of the testimony and identification by the victim. No other real proof linking Carrick to

the crime was adduced.

Weighing these concerns, we cannot conclude that the error more probably than not affected

the verdict. See Tenn. R. App. P. 36(b). The victim’s testimony was powerful and very credible.

She was tested by defense counsel, yet she remained firm and very confident of her testimony and

identification. Had she wavered and this Court thought that the prejudicial implication that Carrick

was a suspect in other cases played a role in the verdict, our decision would be markedly different.

Sentencing

The defendant raises several issues regarding sentencing; however, as we merge the

defendant’s two convictions, we first modify his sentence. That is, the defendant received two

concurrent twenty-five year sentences; we now modify his sentence to one twenty-five year sentence.

Now, the defendant contends that this twenty-five year sentence, the maximum within the

applicable range, is excessive. He argues that the trial court erred in its finding and application of

certain enhancement factors as well as its consideration of certain mitigating factors. The trial court

found the following enhancement factors as provided for in Tennessee Code Annotated section 40-

35-114:

(1) the defendant has a previous history of criminal convictions or criminal behavior

in addition to those necessary to establish the appropriate range;

(4) the particular vulnerability of the victim;

(5) the defendant treated or allowed a victim to be treated with exceptional cruelty

during the commission of the offense; 

(8) the defendant has a previous history of unwillingness to comply with the

conditions of a sentence involving release in the community; 

(10) the defendant had no hesitation about committing a crime when the risk to

human life was high; and

(12) the defendant willfully inflicted bodily injury upon another person. 

The court found no mitigating factors.

Considering and weighing these factors, the trial court ordered the maximum within the

applicable range, twenty-five years. In this approach and result, the defendant claims error;

specifically, he claims that:
3

 For class A felonies like the instant one, the trial court begins at the midpoint. See Tenn.

Code Ann. § 40-35-210(c).

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(1) the court improperly enhanced due to “particular vulnerability;”

(2) the court improperly enhanced due to “criminal history;”

(3) the court failed to consider the defendant’s potential for rehabilitation; and 

(4) the court failed to properly weigh the mitigating factor of age.

This Court’s review of the sentence imposed by the trial court is de novo with a presumption

of correctness. See Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an

affirmative showing in the record that the trial judge considered the sentencing principles and all

relevant facts and circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of correctness and our

review is de novo. See State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the appealing party to show that the sentence is improper. See Tenn.

Code Ann. § 40-35-401(d) sentencing comm’n comments. In conducting our review, we are

required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following

factors in sentencing:

(1) [t]he evidence, if any, received at the trial and the sentencing hearing;

(2) [t]he presentence report;

(3) [t]he principles of sentencing and arguments as to sentencing alternatives;

(4) [t]he nature and characteristics of the criminal conduct involved;

(5) [e]vidence and information offered by the parties on the enhancement and

mitigating factors in 40-35-113 and 40-35-114; and 

(6) [a]ny statement the defendant wishes to make in the defendant’s own behalf

about sentencing.

If no mitigating or enhancement factors are present, Tennessee Code Annotated section 40-

35-210 provides that the presumptive sentence shall be the minimum sentence within the applicable

range.3 See State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d

785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should start at the

presumptive sentence, enhance the sentence within the range and then reduce the sentence within

the range for the mitigating factors. See Tenn. Code Ann. § 40-35-210(e). No particular weight for

each factor is prescribed by statute, as the weight given to each factor is left to the discretion of the

trial court as long as the trial court complies with the purposes and principles of the sentencing act

and its findings are supported by the record. See State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986);

State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116,

125 (Tenn. Crim. App. 1995); see also Tenn. Code Ann. § 40-35-210 sentencing comm’n comments.

Nevertheless, should there be no mitigating factor, but enhancement factors are present, a trial court

may set the sentence above the minimum within the range. See Tenn. Code Ann. § 40-35-210(d);

Lavender, 967 S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).
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If our review reflects that the trial court followed the statutory sentencing procedure, imposed

a lawful sentence after giving due consideration and proper weight to the factors and principles set

out under sentencing law, and the trial court’s findings of fact are adequately supported by the

record, then we may not modify the sentence even if we would have preferred a different result. See

Fletcher, 805 S.W.2d at 789.

Having reviewed the record, this Court is of the opinion that the sentence is entitled to the

presumption of correctness. Turning to the defendant’s arguments, we find, first, that the trial court

properly enhanced the sentence due to the “particular vulnerability” of the victim. The record is

clear that the elderly victim’s physical frailties and weakened condition were a factor in the

commission of the offense. See State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997); State v. Adams,

864 S.W.2d 31, 35 (Tenn. 1993). Her small frame, advanced osteoporosis and relative weakness did

not keep her from fighting back; however, in the attack, the defendant overcame her on their

account. In the end, while the defendant robbed her, for a material time she was physically unable

to get up after having been knocked to the floor. Compare State v. Hayes, 899 S.W.2d 175 (Tenn.

Crim. App. 1995).

Second, we address the defendant’s argument that the “criminal history” enhancement factor

was improperly applied. See Tenn. Code Ann. § 40-35-114(1). The defendant does have a criminal

history, a prior conviction for marijuana possession and a non-judicial matter involving truancy.

Sentenced as a Range I offender, these offenses establish a criminal history in excess of that

necessary to establish the appropriate range. Therefore, this argument is in error. Further, the

defendant cites no legal authority in support of his argument to the contrary. 

As regards the defendant’s third argument that the trial court failed to properly consider the

defendant’s potential for rehabilitation, we find that the trial court did note that the defendant had

previously had his probation revoked; further, as the defendant’s conviction is for a Class A felony,

he is not entitled to any alternative sentencing presumption. See Tenn. Code Ann. § 40-35-102(6);

State v. Smith, 891 S.W.2d 922 (Tenn. Crim. App. 1994). Further, the defendant’s reliance on State

v. Adams, 864 S.W.2d 31 (Tenn. 1993), and State v. Melvin, 913 S.W.2d 195 (Tenn. Crim. App.

1995), is misplaced. Therefore, there is no merit in this argument. 

Defendant’s final argument that the trial court failed to find his age a mitigating factor is also

in error. That is, while age can support mitigation, age or youth is not a per se mitigation factor.

Tennessee Code Annotated section 40-35-113(6) plainly states as a mitigating factor: “The

defendant, because of youth or old age, lacked substantial judgment in committing the offense.” As

the defendant points to nothing in the record to support any such finding of “youth” in connection

with any lack of “substantial judgment,” there is no proper basis for questioning the trial court’s

failure to apply this mitigating factor. 

Therefore, this Court finds no reason to disturb the trial court’s twenty-five year sentence.
4

 We note that the fact that the two sentences imposed were concurrent does not save the

counts from impermissible multiplicity. See State v. Barnes, 874 S.W.2d 73 (Tenn. Crim. App.

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Against no mitigating factors are balanced several enhancing factors. Weighing particularly strong

in the judgment of this Court, and certainly the trial court’s judgment as well, is the aforementioned

enhancement based on the “particular vulnerability” of this victim. Over ninety years old, ailing

from osteoporosis, this victim was physically attacked in her own home; first with a pillow, the

defendant tried to smother her as she fought, and next with a metal object he beat her to the ground

where she was in pain and hapless. And then, he robbed her. We do not disturb the sentence of the

trial court.

Plain Error

This Court generally reviews only issues presented. See Tenn. R. App. P. 13(b). However,

under limited circumstances this Court may consider an issue not formally presented. See id.; see

also Tenn. R. Crim. P. 52(b). Under the applicable standard, the error must constitute “plain error,”

affecting a “substantial right” of the accused. State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim.

App. 1994). The determinative factors as regards “plain error” are:

(4) the record must clearly establish what occurred in the trial court;

(5) a clear and unequivocal rule of law must have been breached;

(6) a substantial right of the accused must have been affected;

(7) the accused did not waive the issue for tactical reasons; and 

(8) consideration of the error is “necessary to do substantial justice.”

Id. at 641-642.

After careful analysis of the offenses involved, the statutory definitions of the crimes, the

legislative intent and the particular facts and circumstances of the instant crimes, we conclude that

the evidence does not support two separate counts of especially aggravated robbery. We find that

the two offenses plainly arise out of a single criminal episode, plainly require the same evidentiary

proof, and plainly overlap factually. See State v. Alvarado, 961 S.W.2d 136 (Tenn. Crim. App.

1996); State v. Pelayo, 881 S.W.2d 7, 10 (Tenn. Crim. App. 1994); see also State v. Black, 524

S.W.2d 913 (Tenn. 1975). The two counts allege the same offense, and proving the elements of the

first count inherently and necessarily establish the elements of the second. In essence, the state has

proven only one offense, one especially aggravated robbery: the defendant entered the house of the

victim and attacked the victim with the intent to rob. While, indeed, during the attack and robbery,

the defendant used both a pillow as a deadly weapon and a “shiny metal object” as a deadly weapon,

this fact does not establish the basis for finding two separate especially aggravated robberies. As

such, two separate convictions are improper. SeeState v. Goins, 705 S.W.2d 648, 650 (Tenn. 1986).

Accordingly, this Court merges the two separate convictions into one conviction.4
1993). -10-

CONCLUSION

Accordingly, we find that the evidence does not support conviction on two separate counts

of especially aggravated robbery; we merge the two counts into one count of especially aggravated

robbery and modify the defendant’s sentence to one twenty-five year sentence instead of two

concurrent sentences. In all other respects, we affirm the judgment from the trial court.