IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE 

Assigned on Briefs November 27, 2012

STATE OF TENNESSEE v. TAIWAN S. HOOSIER

Appeal from the Circuit Court for Montgomery County

No. 41100324 Michael R. Jones, Judge

No. M2012-00536-CCA-R3-CD - Filed March 26, 2013

The Defendant-Appellant, Taiwan S. Hoosier, entered a guilty plea to three counts of

aggravated assault, Class C felonies, in the Montgomery County Circuit Court. He was

sentenced to five years each on two counts and six years on the third. The trial court ordered

these sentences to be served consecutively, for an effective sentence of sixteen years in the

Tennessee Department of Correction. On appeal, Hoosier claims the trial court erred in

imposing a consecutive sentence. Upon review, we affirm the judgments of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER, J. and CHRISTOPHER (CHRIS) CRAFT, SPECIAL JUDGE, joined.

R. Lance Miller, Clarksville, Tennessee, for the Defendant-Appellant, Taiwan S. Hoosier.

Robert E. Cooper,Jr., Attorney General and Reporter;Jeffrey D. Zentner, Assistant Attorney

General; John W. Carney, Jr., District Attorney General; and Robert Nash, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

A Montgomery County Grand Jury returned a nine count indictment charging Hoosier

with three counts of attempted first degree murder, three counts of aggravated assault, and

three counts of employment of a firearm in commission of or attempt to commit a dangerous

felony, committed against Hoosier’s girlfriend, brother, and brother’s girlfriend. On

December 12, 2011, Hoosier entered a guilty plea to three counts of aggravated assault and

the remaining six counts of the indictment being dismissed. At the January 26, 2012

sentencing hearing, the trial court noted that at the guilty plea hearing Hoosier had agreed
upon a range of punishment between three to six years for each offense. The trial court

further noted that “whether [the sentences] were concurrent or consecutive” was “left open.”

At the sentencing hearing, Hoosier’s presentence report was admitted into evidence.

It contained a summary of the arrest warrant which read, in pertinent part, as follows:

On December 14, 2010, officers of the Clarksville Police Department

responded to Clarksville Heights Apartments . . . on a shots fired call. When

officers arrived they found Kiantee Shivers inside Apartment 121[.] [S]he had

a gunshot wound to the chest area, [and] Shivers identified Taiwan Hoosier as

the person who shot her. Also during the investigation it was discovered that

Christopher Hoosier had been shot in the head and Jasmine Johnson had also

been shot in the hand at the same time Shivers was shot. The affiant . . .

interviewed Taiwan Hoosier who admitted that he shot Kaintee [sic] Shivers

and Christopher Hoosier[.] Taiwan Hoosier advised that he didn’t know if he

shot Johnson[,] however he did say he was the only one who fired a gun in the

residence when the shooting occurred. All three victims were transported to

the hospital due to their injuries.

The report noted that Hoosier graduated from high school, had no criminal record, and that

his juvenile record could not be accessed.

Ms. Kiantee Shivers testified that she was close to death after Hoosier, her boyfriend,

shot her in the back, chest, and hand with a shotgun. Ms. Shivers suffered a shattered spleen,

a collapsed lung, and the loss of a kidney. Pellets from the shotgun remain in her body. She

stated that her body would not function without a ventilator and that she was constantly in

pain. She could not recall anything that provoked Hoosier to shoot her. She said the

shooting “changed [her] life” and that she would “never . . . be the same emotionally,

physically–it’s hard for me to trust people now because I trusted him more than anybody[.]”

During the court’s colloquy with Ms. Shivers, she said Hoosier “left probably an hour before

the shooting and came back with the shotgun” to her apartment. She heard a gunshot, saw

Hoosier’s brother fall, and then was shot by Hoosier.

Ms. Jasmine Johnson testified that Hoosier shot her in the hand, for which she

underwent about three months of physical therapy and a month and a half of psychiatric care.

She said Hoosier’s shooting “hurt knowing that I didn’t do anything to have this happen . .

. I lost trust in a lot of people.” On cross-examination, she said she had been friends with

Hoosier for about four and a half years while she dated his brother, Christopher. She testified

that “a lot of jobs don’t think I can do the job because when they see my hand, they feel like

I won’t be able to withstand everything, that’s the biggest problem I have.” She stated she

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wanted Hoosier to receive treatment for any mental problem he had “because that’s not

normal for somebody just to snap-out of nowhere.”

Christopher Hoosier, Hoosier’s brother, testified that on the evening of the shooting

he “was asleep and then . . . woke up and took a couple of steps” before his brother shot him

in the right eye with a handgun. Hoosier put him in the car and tried to take him to the

hospital until they got into an automobile accident, which prompted an ambulance

transporting him. Christopher said he lost the use of his right eye. On cross-examination,

he said he had forgiven Hoosier and wanted him to receive treatment for any problem he had.

Ms. Sonja Johnson, the mother of Jasmine Johnson, testified to “[a]ll the nightmares

that [her daughter] had and all the nightmares that I still have, the fear that this could happen

again. All the times that [her daughter] would wake up screaming and crying and all the

hours I had to comfort my child and then the fear that I still have, all the times that I wake

up, three or four times a night checking the windows and the doors . . . .”

Ms. Priscilla Trotter, Hoosier’s and Christopher’s mother, said that the brothers were

“extremely close.” She acknowledged Hoosier’s “heavy marijuana use,” but stated that he

had completed barber school and was planning to become a licensed barber. She would

support Hoosier, who could live with her or his father.

Hoosier did not make a statement. His counsel acknowledged that the forensic

evaluations the court ordered on Hoosier revealed “he was capable of assisting his own

defense and was mentally sound at the time that this happened.” To each count the court

applied the mitigating factor that Hoosier “has not been convicted of any prior criminal

activity” and the aggravating factor that the “personal injuries inflicted upon . . . the victim

was particularly great.” T.C.A. §§ 40-35-113(13), -114(6). To the offenses committed

against his brother and his girlfriend, Ms. Shivers, the court applied the additional

aggravating factor that Hoosier “abused a position of . . . private trust.” Id. § 40-35-114(14).

For the offense against his brother, the court additionally applied the mitigating factor that

Hoosier “did attempt to help his brother.” See id. § 40-35-113(13). The court also stated:

There was absolutely no provocation . . . no grounds to excuse or

justify his conduct . . . .

There has been no evidence entered from a mental health expert or

anyone that he suffers from any mental condition. Ms. Shiver, I believe stated

he was acting paranoid. His brother testified that [Hoosier] thought he was

going to be jumped by other people, but nothing to indicate anything in

reference to his brother, his girlfriend and his brother’s girlfriend.

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. . . . [T]he evidence is that he went to get the shotgun and came back

and first fired the handgun and then apparently had to get a shotgun to shoot

the other two victims, so he did, in fact, have a sustained intent to violate the

law . . . .

. . . .

. . . . Ms. Shiver had lost a kidney or spleen and had a lung to collapse,

punctured, on a ventilator. Still has pellets in her body. Ms. Johnson’s right

hand . . . . [c]ertainly involved substantial and protracted use of that bodily

member, and that is a serious bodily injury. Of course, Mr. [Christopher]

Hoosier’s loss of vision in an eye, that’s certainly serious bodily injury.

Hoosier was sentenced as a Range I, standard offender to five years on the counts against

his brother and Ms. Johnson, and six years on the count against Ms. Shiver, all to be served

consecutively for an effective sentence of sixteen years at thirty percent. Hoosier timely filed

notice of appeal.

ANALYSIS

Hoosier argues the court erred in ordering consecutive sentences. He insists that “the

court should have ordered the sentences to run concurrently” because “there is no finding by

a preponderance of the evidence that any of the criteria supplied by T.C.A. § 40-35-115 have

been met.” He further asserts that his actions and “desire to seek immediate medical attention

for his brother [after the shooting] evinces a very strong regard for human life[,] thus

negating” the court’s finding that he was “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.” T.C.A. § 40-35-115(b)(4). In response, the State contends that the

record and Hoosier’s brief are inadequate for our review. Regardless, the State maintains,

based on this limited record, that the trial court did not err in ordering consecutive sentences.

We review the length and manner of service of a sentence imposed by the trial court

under an abuse of discretion standard with a presumption of reasonableness. State v. Bise,

380 S.W.3d 682, 708 (Tenn. 2012). “[T]he abuse of discretion standard, accompanied by a

presumption of reasonableness, appliesto within-range sentencesthat reflect a decision based

upon the purposes and principles of sentencing, including questions related to probation or

any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

In conducting our review, this court must consider:

(1) The evidence, if any, received at the trial and the sentencing hearing;

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(2)The presentence report;

(3)The principles of sentencing and arguments as to sentencing alternatives;

(4)The nature and characteristics of the criminal conduct involved;

(5) Evidence and information offered by the parties on the mitigating and

enhancement factors set out in §§ 40-35-113 and 40-35-114;

(6)Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant’s own behalf

about sentencing.

T.C.A. § 40-35-210(b) (2010); State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). The

burden is on the appellant to demonstrate the impropriety of his sentence. See T. C. A. § 40-

35-401, Sentencing Comm’n Cmts.

In this case, Hoosier does not contest the application of any enhancement factors or

the omission of any mitigating factors. Moreover, upon our review, the record shows that

the trial court carefully considered the evidence, the enhancement and mitigating factors, and

the purposes and principles of sentencing prior to imposing the sentence in this case.

Accordingly, Hoosier has failed “to overcome the presumption of reasonableness afforded

sentences which reflect a proper application of the purposes and principles of our statutory

scheme.” State v. Caudle, 388 S.W.3d at 280.

Where a defendant is convicted of one or more offenses, the trial court generally has

discretion to decide whether the sentences shall be served concurrently or consecutively,

T.C.A. § 40-35-115(a), (b) (2010); Sentencing Comm’n Cmts, T.C.A. § 40-35-115(d), and

this court will not disturb the trial court’s determination of concurrent or consecutive

sentences absent an abuse of discretion. State v. Blouvet, 965 S.W.2d 489, 495 (Tenn. Crim.

App. 1997). A trial court may order multiple offenses to be served consecutively if it finds

by a preponderance of the evidence that a defendant fits into at least one of seven categories

enumerated in section 40-35-115(b). Those categories include:

(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;

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(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 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.

T.C.A. § 40-35-115(b). Furthermore, an order of consecutive sentencing must be “justly

deserved in relation to the seriousness of the offense,” T.C.A. § 40-35-102(1), and the length

of a consecutive sentence must be “no greater than that deserved for the offense committed,”

T.C.A. § 40-35-103(2).

As an initial matter, we must first determine whether Hoosier has presented an

adequate record for our review. The State correctly points out that there is no guilty plea

transcript in the record on appeal and that Hoosier’s brief fails to include a statement of facts

or references to the record. See Tenn. R. App. P. 27(a) (requiring an appellate brief to

contain, among other requirements, a statement of facts, specifying the facts relevant to the

issues presented for review along with appropriate references to the record and arguments

containing citations to authorities and references to the record). Counsel who fails to

substantially conform with the appellate rules of procedure risks having the appellate brief

stricken and costs assessed to the offending party responsible for the brief. Tenn. Ct. Crim.

App. R. 10(a). In addition, we have repeatedly stated that “[i]ssues which are not supported

by argument, citation to authorities, or appropriate references to the record will be treated as

waived in this court.” Tenn. R. Crim. P. 10(b). Although Hoosier’s brief and presentation

of the record is deficient, we shall review the issue presented in this appeal based on the

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inclusion of the presentence report and the sentencing hearing transcript. See State v.

Caudle, 388 S.W.3d 273, 279 (Tenn. 2012) (“[W]hen a record does not include a transcript

of the hearing on a guilty plea, the Court of Criminal Appeals should determine on a case-bycase basis whether the record is sufficient for a meaningful review under the standard

adopted in [State v. Bise], [380 S.W.3d 682, 706 (Tenn. 2012)].”); State v. Cheryl D. Gray

(In Re: Cox), No. W2010-02510-CCA-R3-CD, 2012 WL 3573915, at *3 (Tenn. Crim. App.

Aug. 20, 2012). Accordingly, we conclude that the record is adequate for meaningful review

and will consider the merits of the trial court’s sentencing decision with the presumption

“that the missing transcript would support the ruling of the trial court.” Id.

In this case, the trial court ordered consecutive sentencing based upon section 40-35-

115(b)(4), “[t]he 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.” Regarding this subsection, the Tennessee Supreme Court has stated:

“Proof that an offender’s behavior indicated little or no regard for human life

and no hesitation about committing a crime in which the risk to human life was

high, is proof that the offender is a dangerous offender, but it may not be

sufficient to sustain consecutive sentences. Every offender convicted of two

or more dangerous crimes is not a dangerous offender subject to consecutive

sentences; consequently, the provisions of [s]ection 40-35-115 cannot be read

in isolation from the other provisions of the Act. The proof must also establish

that the terms imposed are reasonably related to the severity of the offenses

committed and are necessary in order to protect the public from further

criminal acts by the offender.”

State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (quoting State v. Wilkerson, 905 S.W.2d

933, 938 (Tenn.1995)) (emphasis added). Unlike the other six subsections, the trial court

must make additional factual findings for the “dangerous offender” factor because it is “the

most subjective and hardest to apply.” Id. (quoting State v. Lane, 3 S.W.3d 456, 461 (Tenn.

1999)).

The trial court in this case specifically cited T.C.A. § 40-35-115(b)(4), and stated the

following:

Obviously, from the facts of this case, this Defendant, Mr. Hoosier, shot his

brother in the head for absolutely no reason and then the witnesses were shot

with a shotgun for no reason. So that his behavior indicated no regard for

human life. It is very fortunate that Ms. Shiver and Mr. [Christopher] Hoosier

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are alive and Ms. Johnson was apparently able just to get out of the range a

little bit or she would have been dead with the shotgun blast to her back.

So an extended sentence is necessary to protect the public against

further criminal conduct by Mr. Hoosier. He acted without any regard for

anyone’s safety when he went to get that shotgun and brought it back to the

house and then used the handgun and then the shotgun to try to injure and did

injure these victims.

These actions by Mr. Hoosier are very, very severe in terms of what he

did to the victims. As I have gone over that and heard the evidence, these are

massive injuries for a lifetime for all of these people, for absolutely no reason.

Therefore, I am going to order [] Count six consecutive to Count three; Count

nine consecutive to Count six [which] is a sixteen year sentence.

Now, under 40-35-103(1)(b) confinement is necessary to avoid

depreciating the seriousness of the offense, I can’t really think of anything that

didn’t involve a death that would be any more serious than this type of offense,

just shooting people for no reason whatsoever.

The record shows that the trial court made the requisite findings pursuant to State v.

Wilkerson, 905 S.W.2d 933, 937 (Tenn. 1995), in support of consecutive sentencing in this

case. Accordingly, we conclude that the trial court did not err in ordering consecutive

sentencing, and Hoosier is not entitled to relief.

CONCLUSION

Following a thorough review of the record, we affirm the judgments of the

Montgomery County Circuit Court.

______________________________

CAMILLE R. McMULLEN, JUDGE

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