### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs D ec em be r 7, 200 4

STA TE OF TEN NES SEE v. C ALV IN LO UIS H ILL

Direc t Appeal from the Circ uit Court for Marshall County

No. 15728 Charles Lee , Judge

No. M2004- 00597-CCA -R3-C D - F iled March 8, 2005

A M ars ha ll Co un ty jury c on vic te d the De fe nd a nt, Ca lvi n L ou is H ill , o f c arj a c kin g , th e ft of pr op e rt y va lue d o ve r $ 10 00 .00, a ndthr e e c ou nts of fo rg e ry . T he tr ia l c ou rt

se nte nc e d th e De fe nd a nt, a s a Rang e I I offe nder, to a n eff

ective s entence of e ighte en y ear s. On appe al, the De fenda nt contends that: ( 1) the e vid e nc e is i ns uf fi c ie nt t o s us ta in h is co nv ic tio ns fo r c arj a c kin g a ndfo rg e ry ; a nd(2 ) h is
se nte nc e wa s e xce ssi ve . F ind ing no re ve rs ibl e e rr or , w e a ff ir m th e jud g me nts of

the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES , J ., joined, and T H O M A S T. W O O D A LL , J

. , c o n c u rr e d i n r e s u l to n l y.
Gre g ory D. Smith (on appeal), Clar ksville, Tennessee , and Micha el J . Colli ns (at trial a nd on appea l), Shelby ville, Tennesse e, for the appe llant, Calvin L ouis Hill.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Pr e sto n Sh ipp , A ssi stan t Attorne y Ge ne ra l; Wil liam Michael McCown, D istrict Attorney Gene ral; Weake ly

E. Ba rnar d, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION I. F acts

Th is c a se ari se s f

ro m c ri me s c omm itt e d a g a ins t Ma y se ne He ns on that oc c ur re d in Ma rs ha ll County on May 29, 2003. A jury convicted the Def endant of car

jacking , theft of property valued over $1000.00, an d t h re e co u nts of forg ery . The trial c ourt merg ed the c arja cking and thef t of property convictions and sente nced the Def endant, a s a Rang e I I

offe nder, to e ighte en y ear s in prison. Th e tr ia l c ou rt

a lso me rg e d a ll thre e for ge ry c on vic tio ns a ndse nte nc e d th e De fe nd a nt, a g a in a s a Rang e I I offe nder, to four

y ear s in prison, to run concur rently with his other sentenc e.-2- A. F acts P rese nted at Trial The following evidenc e wa s prese nted at the De fenda n t ’s trial: May sene H enson testified that, on May

29, 2003, she had a chec king acc ount at First Fa rmers & Mercha nts Bank. She sa id that she had a chec kbook for that a ccount that she kept in a purse in her ca r. He nson testified that, on May 29, 2003, she wa s driving he r 1992 Chry sler Ne w Yorke r, worth be tween $1200.00 and $1 50 0. 00 , a tte mpt ing to f indc ardbo ardbo xes i n o rd e r t o h e lp he r son mov e so me ite ms. She sa id that she we nt to Tietge ns Super Rama Mar ket (“ Marke t”) a

round 1 p.m

. to look for boxes, and she pulled off the side of the roa d behind the store. H enson said that she l eft her car running whe n she g ot out of her

car and g ather ed some boxes, and, as she w as g etting into her car , she wa s “shoved”
a sid e by so me on e be hin d he r. She sa id that, a ft e r s he wa s p us he d o ut o f the way , s ome on e g ot i nto her c ar, slammed the door, and dr ove aw ay “re al, rea l f

ast.” Henson said that she suff ere d bruises
as a result of being pushed away from her car

. She identified the person who took her c ar a s a “bla ck slender ma le with short hair,” and she sa id he was “about 5'5" tall.” Henson said that her pur se and billfold, which contained he r che ckbook and $1.60 in c ash, we re in he r ca r whe n it was taken.

Henson testified tha t, shortly afte r the car was taken, a man she knew na med Tommy Allen stopped his car

at a near by stop sig n and asked her what had happene d. She told him t hat her car had been ta ken, and he followed he r ca r throug h the M arke t’s parking lot and out of her sight. He nson testified that the Marke t’s manag er c alled the police . Henson testified tha t, shortly afte r the c ar w as taken, she rec eived a

call fr om an employ ee of her ba nk named Shannon B arke r inquiring about
so me c he c ks , a ndsh e tol d B ark e r w ha t ha d h app e ne d a nd no t to c a sh a ny c he c ks on he r a c c ou nt. She said that the pol ice located her car , and, when they returne d it to her the following day , the front
se a t w a s “ a

lit tle me ssy .” He ns on sa id that w he n h e r b ill fo ld w a s r e turne d to he r the re wa s $ 1. 60 in cash a nd six chec ks, numbers 1434 to 1439, missing. One of the che cks, number 1434, w as “w added up,” laying on the floor of her car

. She said that che ck number 1439 was filled out, date d May 29, 2003, and made pay able to “Ca lvin Hill” in the amount of $230.00. The chec k stated that it was “f or car work.” Henson s ai d that she did not fill out or sign this chec k, and she did not know a ny one named Calvin Hill prior to this incident. Furthe r, she did not owe any one name d Calvin Hill any money for car work. Henson testified tha t, on the back of the che ck wa s Calvin L . Hill’s signa ture, and she sa id that the Def

endant’ s name was Calvin L

. Hill. On c ross-examination, Henson testified that she neve r saw the man who took her car

. Tommy Allen testified that on May 29, 2003, he was near the Marke t around 1:00 p.m., and he saw Henson, whom he had known for approximately thirty y ear s. He said that he was in his car , stopped a t a s to p s ig n , w h e n h e n o ti c e d H e n s o n a n d “ a b la c k g u y ” n e ar th e d u mp s te r w h e r e the Marke t kept their discar ded cardboa rd box es. As Henson looked like she wa s g etting into her car , he noticed the man “shove ” her “bac k a little bit” and jump into her car and drive awa y . He sa id that Henson called to him and said “Tommy , follow that car and bring my

car back.” Allen testified that he followe d th e c ar

f o r s o me d is ta n c e , b u t th e n h e lo s t s ig h t o f th e c ar

. H e s a idth a t h e th e n went back to the Market where the pol ice were waiting for him. On cross-examination, Allen testified that he wa s approximately

twelve to fifte en feet away from Henson when the man pushed he r, and he was unable to identify

the man bec ause he never saw his fa ce.-3-

Ba rry Har g rove, a

serg eant with the City of L ewisburg Police Depa rtment, testified that he located a car belong ing to He nson on May 29, 2003, at ar ound 2:50 p.m

. , af t er looking f

or it for
app ro xima te ly

on e ho ur . He sa id that, wh e n he loc a te d the c ar, wh ic h w a s a pp ro xima te ly

on e mil e from the Marke t, the front passeng er seat was in “disarr ay ,” and the key s were on the floorboa rd.

Dary l Birdsong , an off

icer with the City of L ewisburg Police Depa rtment, testified that on May 29, 2003, he re sponded to a c all about a c arja cking behind the Mar ket at ar ound 1:02 p.m. He said that h e intervie wed both He nson and Allen a nd alerted police to watch for H enson’s c ar. H e sa id that la te r tha t sa me da y , a t aro un d 2 :30 p. m., here sp on de d to a c a ll at th e F ir st F arm e rs & Merc hants Ba nk, wher e he a rre sted the De fend an t

. M i k e Nanc e, an of fice r with the City

of L e wi sb ur g Pol ic e De pa

rtme nt, te sti fi e d th a t, o n M ay 29 , 2003 , h e re sp on de d to a c a ll at th e F ir st Fa rmers & Merc hants Ba nk, and he a ssisted in the Defe ndant’s ar rest.

Shannon Ba

rker testified that she wa s an employ ee of First Fa rmers & Merc hants National Ba nk on May

29, 2003, wher e she w as working as a teller at around 1:30 p.m., when the D efe ndant
came to cash a chec k on May sene H enson’s a ccount. B arke r testified that the le g al line of the c heck
c on ta ine d mi ssp e lli ng s a nd wa s not wr itt e n o ut c or re c tly , s o s he tol d th e De fe nd a nt that sh e c ou ld not cash this chec k. She said that, a couple of m inutes later, the Defe ndant ca me to her te ller station ag ain with a diffe rent c heck attempting to ca sh it on Henson’s acc ount. She said that the che ck wa s still not w ritten out pr operly

. Ba rker testified that, at this time, she beg an thinking that something
was wrong , so she attempted unsucc essfully to call Henson w hile the Def endant wa s standing the re. She told the Defe ndant that she could not cash his chec k, and he le ft. Ba rker said that, bec ause she still suspec t ed t h at s o mething w as “a miss,” she ag ain ca lled Henson, a nd, afte r re aching her, she learned about the circumstanc es l eading up to the Defenda nt’s arrival at t he bank. She said that she then ca lled and ema iled the other br an ch es o f h er bank to tell them not to cash any chec ks on He ns on ’s a c c ou nt, a ndsh e tol d th e m to watc h f or a bla c k ma le a tte mpt ing to c a sh a c he c k o n th is
acc ount. Ba

rker identified t he bank surveillance videotape r ecor ding, w hich showed the Def endant entering the bank, standing at her teller station, leaving , and then r eturning a short time later . Ba rker testified that che ck number 1439, which wa s admitted into e vidence , was not the same a s either of the che cks that the De fenda nt presente d to he r. On cross-e x amination, Ba rker testified that she neve r sa w w ho fi lle d o ut the se c he c ks , an d she c ou ld not be su re that th e De fe nd a nt f ill e d o ut the c he c ks

. Shirley Ble dsoe, an employ ee with F irst F arme rs & Me rcha nts Bank w ho works at a differ ent branc h from B arke r, testified that she was working as a teller on May 29, 2003, when, at around 2:30 p.m., she rec eived information from Ba rker to w atch for a black male attempting to c ash a c heck on He ns on ’s a c c ou nt. She sa id tha t, a sh ort ti me la te r, the De fe nd a nt c a me in anda tte mpt e d to c a sh
c he c k numb e r 143 9, wh ic h wa s wr itt e n out co rr e c tly in the a mou nt o f $ 23 0. 00 , o n H e ns on ’s a c c ou nt. Ble dsoe said that, a t that time, she did not assume that the De fenda nt was the man w ho took Henson’s c hecks, a nd she hande d the che ck to he r supervisor and told the Def endant that he r supervisor would have to c all Henson. Ble dsoe testified that, during this time, anothe r employ ee w as c a lli ng the po lic e , a ndthe De fe nd a nt s too d a t he r te lle r sta tio n unti l the po lic e arrive d a ndpla c e d h im under arr est. Ble dsoe identified the bank’s surveillance videotape rec ording that showed the Def endant e ntering the bank a nd coming to her teller station. On cross-e x amination, Ble d soe-4-

testified that she did not see w ho filled out the che ck that the De fenda nt attempted to cash.

Da n n y Ki rbo, a c orre ctions office r at the Ma rshall County

J ail, testified that he took the Def endant’ s palm prints on May 30, 2 0 0 3 , at Dete ctive Whitsett’s request, and those prints were admitted into evidence . Don L ombardy , a cor rec tions offi ce r wi t h the Marsha ll Count y Sheriff’ s Offic e, testified that he took the Def endan t ’s fi ng erprints. On cross-e x amination, both office rs testified that it was st an d ar d p ro cedur e for them to take the prints, but t hey did not know why

the prints were reque sted.

J ames W hitsett, a detective with the L ewisburg CityPolice Depa rtment, testified that, as pa rt of his investigations, he has been trained to, and does “lift” fing erprints from items. The detec tive testified that he wa s advised whe re H enson’s c ar w as located, and, a fter t h e car was take n to the police stati o n , h e p hotogr aphed the car , “lifted” fing erprints, and looked for othe r evide nce in the
car

. The detective said that he attempted, but was unable, to obtain fing erprints from Henson’s c ar. Det ec t i v e W h isett testified that he found He nson’s billfold in her ca r, and he proce ssed it for fing erprints. He said that he f ound fing erprints on the chec kbook reg ister, the che ckbook cove r, and
c he c k n umb e r 1 43 4, wh ic h w a s o n th e fl oo r o f the c ar, a nd on the c ar i tse lf . D e te c tiv e Whit se tt s a id that he found some prints that wer e too larg e to be finge rprints on some of these items, so he asked Offic er Kirbo to take the Def endant’ s palm prints. The detective sent the f inge rprints found in the
c ar, a lon g wi th the De fe nd a nt’ s fi ng e rp ri nts , to the Te nn e sse e B ur e a u o f Inv e sti g a tio n ( “ TB I ” ) c ri me lab for a naly sis. On cross-e x amination, the detec tive testified that he did not send He nson’s fing erprints to t he TB I

crime lab to be compared to those fing erprints he found on the items in her
car

.
Da vidHo ov e r, a

fi ng e rp ri nt e xami natio n expe rt wi th the TB I , tes tif ie d tha t he wa s o nly

able to find one identifiable f

inge rprint from a ll of the items sent by Detec tive Whit sett. He said that he identified the De fenda nt’s fing erprint on check numbe r 1434, and he identified the De fenda nt’s left palm print on the chec kbook cover

. On cross-examination, Ag ent Hoover testified that he did not find any other fing erprints on the chec kbook cover , other than the palm print.

Th e De fe nd a nt t e sti fi e d that on Ma y 29 , 20 03 , a t aro un d 1 :00 p. m. h e wa s a t hi s a pa rt me nt. He sa id tha t he wa s si tti ng in front of his apa rt me nt, wa iti ng fo r h is m a ilm a n to de liv e r h is unemploy ment chec k, when a friend came down the street. He said that his f riend pre sented a

chec k to him for $230.00 and told him that, if he could g et it c ashed, he would g et $200.00 and his friend would keep $30.00. T he De fe n d an t admitted, “I am g uiltyof try ing to pa ss a forg ed instrument,” but denied that he “ car

jacke d a woman.” The Def endant r eiterated that he wa s not at the Marke t on the day of this incident.

On c ro ss- e xami na tio n, the De fe nd a nt s a id that hi s a pa rt me nt w a s a

thi rt y -f ive to f orty min ute walk fr om the Marke t, and he sa id that h e did not own or ha ve ac cess to a c ar. The Def endant
conce ded that the videota

pe re cording from the ba nk showed him entering the bank at 1:27 p.m. He said that he a nd the man who pr esente d him with the chec k walked to the bank tog ether , but the other man did not enter the bank with him, and, there fore , the other man was not on the ba nk’s videotape-5-

rec ording . The Def

endant testified that the chec k for $230.00 was the only chec k that he had e ver seen , s o Barker

must have bee n mistaken when shetestified that he attempted to cash two other chec ks. The De fenda nt testified that he had ne ver se en the man w ho prese nted him with the chec k prior to this incident, but he was a “blac k man.” He said that he attempted to give a desc ription of this man to the detective, but the de t ec tive was a ng ry and would not allow him to provide a de sc ri pti on

. Th e De fe nd a nt sa id that he wa s 5' 5" ta ll, wh ic h matc he d H e ns on ’s de sc ri pti on of him

. The Def endant said that, when the man approa ched him with the chec k, all he saw was the c heck, he neve r saw the chec kbook or the c heckbook r eg ister, and he said that he neve r touche d either of them. The De fenda nt asserte d that the police plante d his palm print on the chec kbook reg ister. The De fe nd a nt c on c e de d th a t, w he n h e wa s arr e ste d he ha d a fo lde d on e do lla r b ill a nde ig hty -f

ou r c e nts in his po c ke ts. He sa id that he re me mbe re d H e ns on te sti fying that sh e ha d a fo lde d o ne do lla

r b ill and two quarters in her

billfold when her c ar w as take n.

B a se d u po n this e vid e nc e , the jury c on vic te d the De fe nd a nt o f c arj a c kin g , th e ft of pr op e rt y v a l u e d o v e r

$ 1 0 0 0

. 0 0 , a n d f

o r g e r y.
B. F ac ts P r e se nt e d at

Se nt e nc ing He ar ing

At the s entenc ing hearing, the Def endant’ s prese ntence report was a dmitted into evidence. The State noted that it wa s seeking to e nhance the Def endant’ s sentence based upon two prior felony convictions for the sale of c ocaine

. Further, the State asserted that the Def endant was convicted f

or on e of the se fe lon y

c on vic tio ns wh ile he wa s o n p ro batio n f or the oth e r fe lon y c on vic tio n, a ndhis probation wa s, there fore , revoke d as i ndicated by the judg ment form. B eth L adner , a probation and parole office r, testified that she pr epar ed the De fenda nt’s prese ntence report. She said that she ra n the Def endant’ s criminal history and she noted that, in a ddition to his prior convictions, his probation had bee n revoke d on two differ ent occ asions.

The De fenda nt testified t hat he previously worke d for “ I CP, I nterc ity ” for approximately

one y ear , and his last day of work was Dece mber 28, 2002. He said that, prior to that, he worked for SavA-L ot food store starting in J anuary of 2001. The Defendant testified t hat, immediately prec eding his inc arc e ratio n fo r this of fe ns e , h e wo rk e d f

or F a nc y F re e F arm s, wh ic h w a s n ot r e fl e c te d in his prese ntence re p o rt

. T h e Def endant sa id that he fe lt remorse f or passing a for g ed che ck, but he insinuated that the only rea son that he forg ed the chec k was be cause the L ewisburg Police detec tives
wer e illeg ally

taking money

from him. The De fenda nt said that he wa s innocent of the c arja cking char g e. He asserted that the State did not prove at trial t h at h e i n t enti onally and knowing ly

used forc e to take H enson’s c ar. H e asked the court to c onsider his r emorse for pa ssing the f org ed che ck. On cr oss-examination, t h e De fe n d ant aga in asserte d that the police plante d his palm print on Henson’s c h e c k

b o o k r e g is te r , a n d s a id th a t th e T B I a g e n t g a v e f a ls e te s ti mo n y

. H e s a id th a t the police wr ong fully

took $230.00 from him. The Def endant testified that, prior to this incident, he had lived in multi ple motels, and he ha d asked loc al chur ches to he lp him pay his motel bil ls.

On re direc t examination, the Defenda nt testified t hat he was in the m ilitary for f ive y ear s, and he wa s honorably

discharg ed.-6-

Ba sed upon this evidence the trial court, after merg i n g t h e theft conviction with the
car jacking conviction and mer g in g th e thr e ef o r g e r y c o n v ic ti o n s , s e ntence d the Def endant to eig hteen y ear s in prison.

II. Ana lys is

On app e a l, th e De fe nd a nt c on te nd s th a t: ( 1) the e vid e nc e wa s in su ff ic ie nt t o s us ta in h is convictions for c arja cking and for g ery ; and (2) his sente nce w as excessive.

A. Suf fi ciency of the Evidence

When an ac cused c halleng es the suff iciency of the e vidence , an appe lla t e court’s standard of re view is whethe r, after considering the evidence in the light most favora ble to the prosec ution,
a ny ratio na l trie r of

fa c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble do ub t. T e nn . R. Ap p. P. 1 3( e ); Jac ks on v. Vi rg ini a , 443 U.S. 307, 324 (1979); State v. Carter , 121 S.W .3d 579, 588 (Tenn. 2003); State v. Smit h, 24 S.W .3d 274, 278 (Tenn. 2000). This rule a pplies to f ind ing s o f g uil t ba se d u po n d ir e c t e vid e nc e , c ir c ums ta nti a l e vid e nc e , or a c omb inatio n o f b oth dir e c t a nd c ir c ums ta nti a l e vid e nc e . St a te v. Pe nd e rg ra ss , 13 S.W .3d 389, 392-93 (Te nn. Crim. App. 1999).

I n d e te rm ini ng the su ff ic ie nc y of the e vid e nc e , th is C ou rt

sh ou ld n ot r e -w e ig h o r r e -e va luate the evidenc e. State v. Matthew s , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990). This Court may
n o ts u b s t i t u t e i t s i n fe re n ce s fo r t h o s e d ra wn b y t h e tri er o f fa ct fr o mt h e e v i d en ce

. S t at e v

. Bu ggs , 99 5 S. W.2 d 1 02 , 1 05 (T e nn . 1 99 9) ; Liaka s v . St a te , 286 S.W .2d 856, 859 (Tenn. 1956). Questions
c on c e rn ing the c re dib ili ty of the wi tne sse s, the we ig ht andva lue of the evi den ce, as we ll a s a ll fac tual issues raised by

the evidenc e ar e re solved by the trier o f fac t. L iakas , 286 S.W .2d at 859. This Court must aff

ord the State of T ennesse e the strong est leg itimate view of the e vidence contained in the rec ord, as well as all reasona ble infer ence s which may be dra wn from the e vidence

. State v. Evans , 838 S.W .2d 185, 191 (Tenn. 1992). Be cause a ver dict of g uilt against a defe ndant
remove s the presumption of innoce nce and raises a presumption of g uilt, the convicted criminal de fe nd a nt b e ars the bu rd e n of sh ow ing that th e e vid e nc e wa s le g a lly ins uf fi c ie nt t o s us ta in a

g uil ty verdic t. I d.; see State v. Car ruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000)

.
A c on vic tio n may

be ba se d e nti re ly

on c ir c ums ta nti a l e vid e nc e whe re th e fa c ts a re “ ‘s o clea rly interwove n and conne cted that the f inge r of g uilt is pointed unerringly at the De fenda nt and the Def endant alone.’ ” State v. Reid, 91 S.W .3d 247, 277 (quoting State v. Smit h, 868 S.W .2d 561, 569 (Tenn. 1993) ). The jury decides t h e weight to be g iven to circ umstantial evidence and “[t]he infere nces to be drawn fr om such evidenc e, and the extent to which the circumstanc es ar e consistent with guilt and inconsistent with innocenc e, ar e questions primarily for the jury .” Mar able v. State, 203 T e n n

. 4 4 0 , 3 1 3 S. W. 2 d 4 5 1 , 4 5 7 ( 1 9 5 8 ) ( c it a ti o n s o mi tt e d )

. Wh il e s in g le f a c ts , c o n s id e r ed alone, may

count for little weig ht, w hen all of the fa cts and c ircumstance s are taken tog ether , they can point the f

inge r of g uilt at the Defe nd an t b ey o n d a rea sonable doubt. State v. Will iams, 657-7-

S.W .2d 405, 410 (Tenn. 1983). Further, “[t ]he infere nces to be drawn from such evidence, a nd the extent to which the circ umstances are consistent with g uilt and inconsistent w ith in n o ce n ce are q u e s t i o n s

. . . f

o r t h e j u r y. ” M ar ab l e , 2 0 3 T e n n

. 4 4 0 , 3 1 3 S

. W

. 2 d a t 4 5 7 ; s e e a l s o S t a t e v

. G r e g o r y, 862 S.W .2d 574, 577 (Tenn. Crim. App. 1993)

. 1. Ca r ja c king

The De fenda nt contends that the e vidence is insufficient to support his conviction for
car jacking beca

use no one sa w the fa ce of the man who c arja cked H enson and the Def endant’ s fing erprints were not found inside Henson’s car. Ca rjac king is “ the intentional or knowing taking of a motor ve hicle fr om the possession of another by use of .

. . forc e or inti midation.” Tenn. Code An n. § 3 9- 13 -4 04 (2 ) ( 20 03 ). We c on c lud e that th e c ir c ums ta nti a l e vid e nc e pr e se nte d in thi s c a se is sufficient to sustain the Def endant’ s car

jacking conviction. Henson te stified that a 5' 5" “ black male” pushe d her a way

from her car , leavin g h er b ru i s ed , and then jumped in her car and drove
awa y . A short time later, the Def en d an t at t em p ted to cash thre e sepa rate chec ks from He nson’s chec kbook at two diffe rent ba nk branc hes. The D efe ndant’s palm print wa s found on Henson’ s chec kbook reg iste r, wh i ch was located inside her c ar at the time of the De fenda nt’s arr est. The Def endant c ontended that a

friend g ave him the c heck that he attempted to ca sh, that the bank teller was mistaken, a nd that the police must ha ve planted his pa lm print on the chec kbook reg ister. The jury re je c te d th e De fe nd a nt’ s a sse rt ion s. Th e c ir c ums ta nti a l e vid e nc e , v ie we d in th e lig ht m os t favor able to the State, is suffic ient to sustain the Defe ndant’s ca rjac king c onviction.

2. F orger y

T h e D e f e n d a n t c o n t e n d s t h a t t h e e v i d e n c e i s i n s u f f i c i e n tt o s u p p o r ta

c o n v i c t i o n f

o r f o r g e r y. The De fenda nt provides no ar g ument as to why the evidenc e is insufficient to s ustain his forg ery c on vic tio ns . “ I ssu e s w hic h a re no t su pp orte d b y

arg um ent, c itatio n to a uth oriti e s, or app ro pr ia te ref ere nces to the r ecor d wil l b e trea ted as wa ived in this court.” Te nn. Ct. Crim . App. R. 10(b). Acc ording ly , the Def

endant ha s waived this issue. Even had this issue not bee n waived, w e conc lude that it is wit h o u t m er i t . The De fenda nt stated at trial “I am g uiltyof try ing to pa ss a forg ed in str ume nt. ” Th is e vid e nc e , a lon g wi th the c ir c ums tanti a l e vid e nc e a g a ins t th e De fe nd a nt, is
su ff ic ie nt t o s up po rt

his c on vic tio n f

or fo rg e ry . T his iss ue is w ith ou t me ri t.

B. Se nt e nc ing

The De fenda nt contends that the trial c ourt err ed when it se ntence d him because it did not consider his military service as a mitigating fac tor. I n the Def endant’ s reply

brief, he asserts for the first time that the t rial court improperly applied two enhanceme nt fac tors, and the De fenda nt cited Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004) to support this contention. W hen a de fe nd a nt c ha lle ng e s th e le ng th o r m a nn e r o f s e rv ic e of a sen ten ce, it is the du ty of thi s Co urt to conduct a de novo re view of the rec ord with a pre sumption t hat “the de terminations made by the
c ou rt fr om w hic h th e app e a l is take n a re c or re c t.” Te nn

. Cod e An n. § 40 -3 5- 40 1( d) (2 00 3) . T his pr e s u mp ti o n is “ ‘ c o n d it io n e d u p o n th e a f f irmati v e s h o w in g in th e r e c o r d th a t th e tria l c ourt-8-

considered the sentenc ing principles and a ll releva nt fac ts and circ umstances.’ ” State v. Ross, 49 S.W. 3d 83 3, 84 7 ( Te nn . 2 00 1) (q uo tin g Sta te v. Pe ttu s, 98 6 S. W.2 d 5 40 , 5 43 (T e nn . 1 99 9) ); Sta te v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991) . The pre s u m p t i o n does not apply to the leg al conclusions rea ched by the trial court in se ntencing a def endant or to the determinations made by the trial court whic h are predic ated upon unc ontroverte d fac ts. St ate v. De an, 7 6 S .W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler , 900 S.W .2d 305, 311 (Tenn. Crim. App. 1994); St ate v. Smit h 891 S.W .2d 922, 929 (Tenn. Crim. App. 1994) . I n conducting a de novo r eview of a sente nce, we must consider : (a) a ny evi d en ce received at the trial and/or se ntencing hearing; ( b) the pr e se nte nc e re po rt ; ( c ) the pr inc ipl e s o f s e nte nc ing ; ( d) the arg ume nts of c ou ns el rel ativ e to sentenc ing a lternatives; (e ) t h e n at u re and cha rac teristics of the of

fense ; (f) a ny

mitigating or statutory enhanc ement fa ctors; (g ) any statements made by

the def endant on his or he r own behalf; and (h) the defe ndant’s potential or lack of potential for reha bilitation or treatment. Tenn. Code A nn. § 4 0- 35 -2 10 (2 00 3) ; State v. Ta y lor , 6 3 S. W.3 d 4 00 , 4 11 (T e nn . Crim. Ap p. 20 01 ). Th e pa rt y c ha lle ng ing a

se nte nc e imp os e d b y

the tr ia l c ou rt

ha s th e bu rd e n o f e sta

bli sh ing that th e se nte nc e is
e rr on e ou s. Te nn . Co de An n. § 4 0- 35 -4 01 (d ), Se nte nc ing Com m’ n Cm ts.

I n th e c a s e u n d e r

s u b mi s s io n , w e c o n c lu d e th a t th e r e is a mp le e v id e n c e th a t th e tria l c o urt considere d the sentenc ing principles and a ll releva nt fac ts and circ umstances. Theref ore, w e re view its decision de novo with a pre sumption of corre ctness. Acco rd i n gl y , s o long a s the trial court complied with the purposes a nd proce dures of the 1989 Sentencing Ac t an d i t s finding s are supported by

the fa ctual re cord, this Court m aynot disturb this sentenc e eve n if we w ould have pref err ed a dif

fer ent re sult. S ee T enn. Code Ann. § 40- 35-210, Sentenc ing Comm’n Cmts; S tate v. Fletc her, 805 S.W.2d 785, 7 8 9 (Tenn. Crim. App. 1991) . We note that the def endant be ars the burde n o f s h o wi ng that the sentenc e is improper. Te nn. Code Ann. § 40-35- 401, Sentencing Comm’n Cm ts.; Ashby , 823 S.W .2d at 169.
When sentencing the Def endant, the trial court stated:

Th e De fend ant is a Ra ng e 2 O ff e nd e r. Th a t is no t in dis pu te . Co ns e qu e ntl y , h e is looking on the car

jacking case at a rang e of not le ss tha n 12[,] nor more th an 20 y ear s. On the for g ery

case , not less than two, nor more tha n four y ear s.

No w a c ou ple of pr e lim ina

ry ma tte rs a dd re ssi ng its e lf

to the ind ic tme nt.

Count 2 of t he indi ctment m erg es wit h Count 1. That i s the State pursued a t h eo ryo f t h ef

t , wh i ch wa s t h e s u b

j ec tm at t ero f t h e c ar

j ac k i n g. Counts 3, 4, and 5 are diffe rent theories of the sa me offe nse. And, conseque ntly , they

eac h merg e into one count.

. . . . [The Court] do[es] not find that any mitigating fa ct o rs apply . . . . [The-9-

Def endant’ s counsel] arg ues the Court should take into c o n s i deration that the Def endant is a v et er an

. T hat is admirable. . . . B ut in the Court’s mind, before the Court applies the so-c alled catchall fa ctor . .

. y ou must show me something a bove and bey ond what y ou would normally expect. . . . I have seen discussion in some of the c a se s th a t the de fe nd a nt ha d a sta ble wo rk his tory . We ll, that is wh a t y ou e xpe c t. I can se e whe re the re w ould be exemplary work histori es

. I ca n see w here there would be exemplary

compl et ion of milit ary

service . . . . I t is the ex emplary participa tion i n n o rm al life expectanc ies that I fee l that the mitigating fac tor – the catc hall mitigating fac tor is reser ved for , not just, J udg e we fee l the Def endant doe s [not have] a c riminal history

. There fore , y ou should apply that as a mitig ating fac tor. You expect people not to have a criminal hist ory . . . . So, I have c o n s i d ere d [t he De fe nd a nt’ s c ou ns e l’ s] arg ume nt, bu t I rej ect it ; be c a us e the pr oo f i n th e re c or d is that th e re wa s n oth ing e xemp lary abo ut i t.

The Court does f

ind the Def

endant ha s a history

of criminal convictions or crimi n al behavior

in addition to thos e nec essary to establish the appropriate ra ng e. . . . The Court notes that the De fenda n t h as i n his history , aside fr om those crimes
nece ssary to establish the appropriate ra ng e, that he ha s crimes of violenc e.
As a ma tte r o f f

a c t, w he n c on sid e ri ng th e wei ght to be app lie d to thi s enhanc ing f

actor , the Court place s considera ble weig ht upon the fac t that the Def endant wa s on probation for a crime of violence at the time of the commission of this offense. T he re cord r evea ls the Defe ndant was pla ced o n probation in the Gene ral Sessions court for the offe nse of assault on 12-17-2002. This offe nse wa s committed on May

29, 2003. So it was committ ed while the D efe n d an t was on probation. . . . That is a matter which the Court takes note of and place s g reat weig ht on. I n addition to that, the Def endant has a domestic violence, I think. .

. . Yes,

. . . two [ot her] assault ca ses in the y ear 2000.

. . . . The Court also notes that the Def endant, as the State has also prove n to the Cou rt , . . . ha s a

his tory of un wi lli ng ne ss t o c omp ly wi th o ff e ns e s in vo lvi ng re le a se in the community

. . . . I know there was a t least three occa sions when the De fenda nt was on some f

orm of re lease in the community and committed another or other of fe ns e s.
This Court also notes that efforts less re s trictive than c onfinement ha ve fr e qu e ntl y

be e n u ns uc c e ssf

ull y app lie d to the De fe nd a nt.

. . . . The Court will sentence the Defenda nt to a term in the State penitentiary of-10-

18 y e ars . 1 8 y e ars on the c arj a c kin g a nd 4 y e ars on the fo rg e ry , r un nin g c on c ur

re ntl y one with the other

. 1. Mitigating F actor

The De fenda nt first contends that the trial court e rre d when it re fused to apply the Def endant’ s mili tary

service rec ord as a

mitigating fac tor. This miti g ating fac tor is not among the
s tatutorilydefine d mitigating fac tors set out in Tennessee Code Annotated se ction 40-35-113, r ather , it is m i t i gat i ng fac tor that has bee n rec og nized in other case s under a catc hall subsection which includes “[a]ny

other fa ctor c onsistent with the purposes of this c hapter .” Tenn. Code Ann. § 40-35- 113(13). This Court has pre vio u s l y s tated, “With respec t to [ a def endant’ s] m ilitary

service , honorable milit ary

service may

alway s be consider ed as a m i t i gat i n g fac tor consistent with the purposes of the 1989 Sentencing Act.” State v. V inc e n t G e r r a r d O v e r to n , No. 02C019510-CC00303, 1997 WL 287665, at *3 (Tenn. Crim. App., at J ackson, June 2, 1997), perm. app. de nied (Tenn. Ma r. 16, 1998). This Court has also, howeve r, held that a trial court’s refusa l to mitigate a defe ndant’s sentenc e base d on past milit ary service was not e rror

. See State v. Charles W. Wellman, No. E2001- 03055-CCA-R3-CD, 2003 WL 724432, at *11 (Te nn. Crim. App., at Knoxvi lle, Mar. 4, 2003) , no perm
. a p p
. filed . Acc ording ly , we f ind that the evidenc e does not pre ponderate ag ainst the trial
c o u r t ’ s r e f

u s a l t o m i t i g a t e t h e D e f

e n d a n t ’ s s e n t e n c e b a s e d o n t h e D e f e n d a n t ’ s p a s t m i l i t ar y h i s t o r y. Th is i ssu e is w ith ou t me ri t.

2. Blak ely v. Washin gton

I n th e De fe nd a nt’ s r e sp on se br ie f, he arg ue s fo r the fi rs t ti me that th e tr ia l c ou rt imp ro pe rl y applied two enha nceme nt fac tors: that he had a histor y o f cr i m i nal convictions; and that he had a history of unwillingne ss to comply with the conditions of a s en t ence involving r elea se in the community . See Te nn. Code Ann. § 40-35-114( 2), (9). The trial c ourt determined, and both parties ag ree , that the Defen d an t i s a Rang e I I offe nder. Car

jacking is a Class B fe lony , Tenne ssee Code Annotated se ction 39-13-404( b), and f org ery is a Class E felony , Tenne ssee Code A nnotated sec tion 39-14-114( c). B eca

use the De fenda nt is a Rang e I I offe nder, he is subjec t to a potential sente nce of twelve to twenty y ear s for the car jacking and two to four y ear s for the f org ery . Tenn. Code Ann. § 40 -3 5- 11 2( b) (2) , ( 5) . T he pr e su mpt ive se nte nc e fo r b othc on vic tio ns is the min imu m se nte nc e in the rang e. Tenn. Code Ann. § 40-35-210( e). The trial court sentenc ed the Def en d an t t o ei g hteen y ear s for the c arja cking conviction and to four y ear s for the forg ery

conviction, enha ncing the sentenc e base d upon the two af oreme ntioned enhanc ement fa ctors.

F ir s t, w e n o te th a t th e ru le in B la k e ly , d o e s n o t ap p ly to e n h a n c e me n t f a c to r ( 2 ) , that the defe ndant has a

history of criminal convictions. Blake ly , 124 S. Ct . 2531, 2539. Further, the recor d fu lly su pp orts the tr ia l c ou rt ’s app lic a tio n o f t his fa c tor . T he ru le in B lakely do es a pp ly to enhanc ement fa ctor number (9), c oncerning the Def

endant’ s prior unwillingness to c omply with the terms or c onditions of probation or re lease , and, ther efor e, the trial court’s application of t hat fa ctor is error under B lakely

. W e co n cl u d e, however, tha t the err or in the trial court’s application of
e nh a nc e me nt f

a c tor (9 ) w a s h arm le ss b e y on d a re a so na ble do ub t. Th is C ou rt

ha s h e ld that B lake ly-11-

vio la tio ns are su bje c t to a Con sti tut ion a l harmle ss e rr or a na ly sis . St a te v. Che ste r Way ne Wal te rs , No. M2003-03019-CCA-R3-CD, 2004 WL 2726034, at *19 (Te nn. Crim. App., at Nashville, Nov. 30 , 20 04 ). Th e re c or d re fl e c ts that the De fe nd a nt in thi s c a se vio la te d th e te rm s o r c on dit ion s o f h is
re le a se on a t le a st t wo oc c a sio ns , a fa c t in the De fe nd a nt’ s p re se nte nc e re po rt that th e De fe nd a nt d id not contest or deny . There fore , we hold that the tria l court’s a pplication of enha nceme nt fac tor (9) was ha rmless err or bey ond a re asonabledoubt. There fore , we a ffirm the D efe ndant’s sente nce.

III

. Conclusion

I n acc ordanc e with the foreg oing rea soning a nd authorities, we a ffirm a ll of the Def endant’ s convictions and sente nces.

___________________________________ ROBERT W. WEDEMEYER, J UDGE