IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 05, 2014

STATE OF TENNESSEE v. JEFFREY HORSKINS

Appeal from the Criminal Court for Shelby County

No. 1104496 W. Mark Ward, Judge

No. W2013-00888-CCA-R3-CD - Filed January 16, 2015

A Shelby County Grand Jury returned an indictment against Defendant, Jeffrey Horskins,

charging him with attempted first degree murder, aggravated assault, two counts of

aggravated burglary, and theft of property valued at more than one-thousand dollars. After

a jury trial, Defendant was found guilty of reckless endangerment, aggravated assault, two

counts of aggravated burglary, and theft of property valued between $500 and $1,000. The

trial court merged the two convictions for aggravated burglary and imposed a sentence of

eleven months and twenty-nine days for reckless endangerment, nine years for aggravated

assault, nine years for aggravated burglary, and three years for theft of property. The trial

court further found Defendant to be an offender whose record of criminal activity was

extensive and ordered Defendant’ssentencesfor aggravated assault, aggravated burglary, and

theft to be served consecutively for an effective twenty-one-year sentence as a Range Two

offender. The misdemeanor sentence for reckless endangerment was ordered to be served

concurrently to the other sentences. On appeal, Defendant argues that the length of his

sentences are excessive and that the trial court erred in imposing consecutive sentencing.

After a thorough review of the record, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which ALAN E. GLENN and

ROGER A. PAGE, JJ., joined.

James F. Schaeffer, Jr., Memphis, Tennessee, for the appellant, Jeffrey Horskins.

Herbert H. Slatery, III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy

P. Weirich, District Attorney General; Doug Carriker and Charles Summers, Assistant

District Attorneys General, for the appellee, State of Tennessee.
OPINION

I. Background

The victim, Nicole Sumlin, is Defendant’s ex-girlfriend, and Defendant is the father

of two of her five children. Defendant and the victim had lived together but they were not

living together at the time of the offenses in this case. Prior to the present offenses, the

victim had sought several orders of protection against Defendant. The victim testified that

on January 29, 2005, Defendant choked her and threatened to kill her while she was pregnant

with their son. He also had a knife. The victim sent her oldest son to a neighbor’s house to

call police. Police arrived, took a report, and the victim filed for an order of protection

against Defendant.

The victim again filed for an order of protection against Defendant in 2008 while the

victim was pregnant with Defendant’s second child. At the time, the victim was living with

her mother and stepfather. Defendant had broken the windshield of her friend’s car, and he

called threatening the victim. The order of protection was granted for one year. After the

order expired, the victim did not seek to renew it. The victim filed for another order of

protection on April 28, 2010, because Defendant reached inside the driver’s side window of

her car, grabbed her hair, and punched her when she and her stepfather attempted to return

some of Defendant’s belongings to his mother’s house. The victim admitted at trial that

between 2008 and April of 2010, Defendant would come to her residence to babysit the

children while the victim worked. The victim ceased all communication with Defendant

after April 28, 2010. She still allowed Defendant to see his children through his family

members. The victim testified that the order of protection sought on April 28, 2010, was not

granted because she and Defendant did not appear in court due to their son being hospitalized

for several weeks. The victim re-filed for the order of protection on July 20, 2010, because

Defendant was stalking her and making threatening phone calls. The victim was granted an

“ex parte order” until a meeting on August 18, 2010, to discuss a permanent order of

protection with a commissioner.

On August 16, 2010, the victim’s oldest daughter got out of school at approximately

2:15 p.m. and went home. While she waited for her mother and siblings to get home,

Defendant called the house and asked for the victim’s whereabouts. After the victim’s

daughter hung up, she saw Defendant walking around the house, twisting door knobs, and

trying to get inside the house. At one point, Defendant knocked on the daughter’s window.

He then left. Defendant called later that night, and when the victim answered the phone,

Defendant said: “I’ll love you to death,” and he hung up. The victim testified that she had

previously seen Defendant and a friend in a red Ford Expedition backing out of her driveway.

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Concerning the present offenses, the victim testified that Defendant called her at work

at least fifteen times on August 17, 2010, between 6:00 a.m. and 11:00 a.m. when she left

work to check her oldest daughter out of school early because her daughter was sick. The

victim also noted that it was her and Defendant’s son’s fifth birthday. She then picked up

her “baby girl” from daycare, and they arrived at the victim’s cousin’s house at

approximately 12:30 to 12:45 p.m. to get the younger girl’s hair braided. The victim and her

daughters remained at the cousin’s house until approximately 2:00 p.m., and they left and

went to their home located on Southington Avenue. The victim asked her oldest daughter

to go outside and get some laundry from a shed, and the victim watched television for

approximately thirty minutes. Her three sons were still at school. The victim got up to look

in the living room closet for a locking gas cap for her mother’s car. The victim stated that

she had been driving her mother’s car because her own car had been vandalized by someone

who put sugar in the gas tank.

As the victim was looking for the gas cap, she noticed that all of the clothing and coats

had been pulled down in the closet. She began shifting through the garments and found

Defendant hiding in the closet wearing latex gloves and holding a large knife from the

kitchen. The victim then ran out of the house screaming for help and for her daughter to call

911. As the victim made it to her front yard, Defendant grabbed her from behind with his

left hand and “plunged” the knife into her chest with his right hand. The victim’s children

and her neighbor, Lasonya Thomas, were standing outside at the time. The victim grabbed

the blade of the knife and “was able to wiggle it loose.” Defendant continued to chase the

victim, and the victim grabbed the knife again and broke the blade. The victim ran across

the street to Mrs. Thomas’ yard, and Defendant continued to pursue her. The victim testified

that Mrs. Thomas attempted to get between the victim and Defendant. The victim “just

swung the blade and it cut [Defendant’s] arm.” The victim then went inside Mrs. Thomas’

house, and Mrs. Thomas called 911. Defendant went back to the victim’s house.

When Defendant arrived back at the victim’s house, her daughter was inside with the

door locked attempting to call 911. Just as the 911 operator answered, Defendant kicked in

the front door and demanded to know “where the keys was.” As Defendant searched the

house for the keys, the victim’s daughter ran outside and across the street to the victim.

Defendant later emerged with the victim’s keys and wallet, and he left in the victim’s

mother’s car. Emergency personnel arrived, and the victim was taken to the hospital by

ambulance. The victim’s wounds were treated, and she was released from the hospital that

same day.

Defendant called the victim’s cell phone at approximately 9:00 p.m. on August 17,

2010. Because the victim did not recognized the number, she answered the phone, and

Defendant hung up. The victim used an application on her cell phone called “Privacy Star”

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to trace the phone number. When Defendant called a second time, the victim answered and

told Defendant that she knew it was him calling. The victim gave her stepfather the address

that pulled up with the phone number, and he drove to a hotel and located Defendant. Police

also arrived at the hotel and eventually took Defendant into custody after he attempted to run

away from them. Defendant had an injury to his arm.

Defendant testified that after the victim filed for the last order of protection against

him, she would call and ask him to come over to her house on Southington Avenue to babysit

and help the children get ready for school in the mornings while the victim worked.

Defendant denied being at the victim’s house on August 16, 2010, because he was at 4891

Haleville Road sick that day. Defendant claimed that the victim, her oldest daughter, and

Defendant’s daughter picked him up at the Haleville address on August 17, 2010, for his

son’s fifth birthday party, which he thought was being held at a skating rink. Defendant said

that he was not supposed to go to the victim’s house but the victim drove him there. He

claimed that he initially remained in the car while the victim and her oldest daughter went

inside.

Defendant testified that he eventually walked inside the house because the victim

asked him to come inside. He said that he sat on the couch and did not get inside the closet

at any time. Defendant testified that he was not wearing latex gloves, and he did not get a

knife out of the kitchen. He said that he remained on the couch for approximately one hour

before the victim walked in the room with a knife and “swung” it at him cutting his arm.

Defendant opined that the victim was upset with him for calling the police on her two weeks

earlier for leaving her children alone. He said that he ran out the door, and the victim ran out

behind him still wielding the knife. Defendant testified that he and the victim began

struggling over the knife, and she eventually was stabbed. He said that he got away from the

victim, and she ran away to Mrs. Thomas’ house. Defendant did not know how the knife got

broken. He said that the victim never grabbed the knife’s blade, and he never put his arms

around the victim. Defendant claimed that he told Mrs. Thomas that the victim cut him, and

he asked her to call police because he thought that he was going to faint. Defendant testified

that he then walked back to the victim’s house, got her keys that were still in the back door,

and left in the car. He denied kicking in the front door of the house. Defendant testified that

he left the victim’s mother’s car approximately three blocks from the victim’s house, and his

brother picked him up. That evening he went to the Sun Inn, and was later taken into custody

by police. He denied attempting to run away from the officers.

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II. Analysis

Defendant contends that the trial court erred in sentencing him. More specifically, he

states that his sentence is excessive and that the trial court erred by imposing consecutive

sentencing.

In State v. Bise, the Tennessee Supreme Court reviewed changes in sentencing law

and the impact on appellate review of sentencing decisions. The Tennessee Supreme Court

announced that “sentences imposed by the trial court within the appropriate statutory range

are to be reviewed under an abuse of discretion standard with a ‘presumption of

reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A finding of abuse of

discretion “‘reflects that the trial court’s logic and reasoning was improper when viewed in

light of the factual circumstances and relevant legal principlesinvolved in a particular case.’”

State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235,

242 (Tenn. 1999)). To find an abuse of discretion, the record must be void of any substantial

evidence that would support the trial court’s decision. Id. at 554-55; State v. Grear, 568

S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).

The reviewing court should uphold the sentence “so long as it is within the appropriate range

and the record demonstrates that the sentence is otherwise in compliance with the purposes

and principles listed by statute.” Bise, 380 S.W.3d at 709-10. So long as the trial court

imposes a sentence within the appropriate range and properly applies the purposes and

principles of the Sentencing Act, its decision will be granted a presumption of

reasonableness. Id. at 707.

We note that even a trial court’s misapplication of an enhancing or mitigating factor

in passing sentence will not remove the presumption of reasonableness from its sentencing

determination. Bise, 380 S.W.3d at 709. Here, as enhancement factors, the trial court found

that Defendant had a history of criminal convictions in addition to those necessary to

establish the appropriate range; the defendant, before trial or sentencing, failed to comply

with the conditions of a sentence involving release into the community; and the defendant

possessed or employed a firearm, explosive device or other deadly weapon during the

commission of the offense. Tenn. Code Ann. § 40-35-114(1), (8) & (9). The record reflects

that these factors were appropriately applied. The trial court noted that Defendant had

violated his probation in a previous case, and the court placed great weight on the fact that

Defendant had eleven prior misdemeanor convictions, which included assault, misdemeanor

stalking, and domestic violence. He also had three prior felony convictions, two of which

would be used to classify him as a Range Two offender, that included two aggravated

assaults and one felony stalking conviction. The trial court properly sentenced Defendant

within the applicable range of punishment for each offense. Therefore, this issue is without

merit.

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Defendant arguesthat the trial court improperly imposed consecutive sentencing. Our

supreme court has recently held that “the abuse of discretion standard, accompanied by a

presumption of reasonableness, applies to consecutive sentencing determinations . . . if [the

trial court] has provided reasons on the record establishing at least one of the seven grounds

listed in Tennessee Code Annotated section 40-35-115(b)[.]” State v. Pollard, 432 S.W.3d

851, 860 (Tenn. 2013). Thus, the imposition of consecutive sentencing is subject to the

general sentencing principles that the overall sentence imposed “should be no greater than

that deserved for the offense committed” and that it “should be the least severe measure

necessary to achieve the purposes for which the sentence is imposed[.]” Tenn. Code Ann.

§ 40-35-103(2), (4). Further, “[s]o long as a trial court properly articulates reasons for

ordering consecutive sentences, thereby providing a basis for meaningful appellate review,

the sentences will be presumed reasonable and, absent an abuse of discretion, upheld on

appeal.” Pollard, 432 S.W.3d at 862 (citing Tenn. R. Crim. P. 32(c)(1) (“The order [for

consecutive sentences] shall specify the reasons for this decision and is reviewable on

appeal.”)); see also Bise, 380 S.W.3d 705.

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may order

sentences to run consecutively if it finds any one of the following criteria by a preponderance

of the evidence:

(1) The defendant is a professional criminal who has knowingly devoted

the defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3)

The defendant is a dangerous mentally abnormal person so declared by

a competent psychiatrist who concludes as a result of an investigation

prior to sentencing that the defendant’s criminal conduct has been

characterized by a pattern of repetitive or compulsive behavior with

heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little

or no regard for human life, and no hesitation about committing a crime

in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and

victim or victims, the time span of defendant’s undetected sexual

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activity, the nature and scope of the sexual acts and the extent of the

residual, physical and mental damage to the victim or victims;

(6)

The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt.

These criteria are stated in the alternative; therefore, only one need exist to support

the appropriateness of consecutive sentencing. In this case, the trial court made the following

findings concerning consecutive sentencing:

As far as the issue of consecutive sentencing I do find that the defendant is a

person, who is an offender of whose record of criminal activity is extensive.

In making that determination I consider not only his three prior felonies, but

the three felonies that he stands convicted for, before me and the eleven

misdemeanors.

The most atrociously [sic], I find the prior felony stalking, domestic violence,

misdemeanor stalking and assaults caused me trouble.

So I do feel like consecutive sentencing is warranted. I am going to order the

misdemeanor, reckless endangerment, to be served concurrent to all other

counts. But, the nine years and the three years, I am going to make

consecutive of each other, for a total of twenty-one years as a range two

offender.

The records supports the trial court’s finding due to Defendant’s extensive history of

criminal activity. We conclude that the sentencing decision was “within the appropriate

range and the record demonstrates that the sentence is otherwise in compliance with the

purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. Defendant is not

entitled to relief.

Accordingly, we affirm the judgments of the trial court.

_______________________________________

THOMAS T. WOODALL, PRESIDING JUDGE

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