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Date: 06-30-2020
Case Style:
State of Tennessee v. Antywan Eugene Savely
Case Number: M2019-00249-CCA-R3-CD
Judge: Alan E. Glenn
Court: COURT OF CRIMINAL APPEALS OF TENNESSEE
Plaintiff's Attorney: Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles, Assistant District Attorney General
Defendant's Attorney:
Need help finding a lawyer for representation for arguing that: (1) the trial court abused its discretion in ruling that the State could cross-examine him on a twenty-two-year-old felony conviction; (2) the evidence is insufficient to sustain his convictions; and (3) the trial court erred in imposing consecutive sentencing in Tennessee?
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Description:
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The Defendant was indicted for the sale of codeine, a Schedule II drug; the
delivery of codeine; and conspiracy to sell or deliver codeine, as a result of a controlled
drug buy overseen by the 17th Judicial District Drug Task Force.
06/25/2020
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Lieutenant Timothy Miller was the assistant director of the task force at the time
of the incident in this case and, in that role, often worked with confidential informants.
Brian Smith was one such informant, and Lieutenant Miller testified that Mr. Smith “did
a really good job.” Mr. Smith did not know the Defendant’s name, only mentioning him
by description, and he called the other man “Joe.” Lieutenant Miller suspected that “Joe”
was Joseph Perez, a known drug user. After the fact, Lieutenant Miller recalled having
seen the Defendant many years earlier.
Lieutenant Miller stated that on June 9, 2016, Mr. Smith contacted him with
information that two individuals were looking to sell a bottle of morphine. Lieutenant
Miller asked Mr. Smith to arrange a meeting with the individuals in which Lieutenant
Miller would go undercover and pose as a prospective buyer. Mr. Smith arranged for
them to meet in the parking lot of a liquor store and informed Lieutenant Miller that the
individuals would be in a late 1990s model red SUV. Agent Shane George, another
member of the drug task force, was to conduct surveillance of the drug buy.
Lieutenant Miller parked his car at a nearby location and counted out $160 in buy
money, the serial numbers and denominations of the bills which he recorded, as well as
outfitted himself with an audio recorder. He then walked to the liquor store and
approached a vehicle matching the description he was given. He went up to the
passenger’s side and saw the Defendant sitting there, but the Defendant motioned for him
to go around to the driver’s side where Joseph Perez was sitting. Lieutenant Miller said
that it was obvious the two men were anticipating his arrival. Lieutenant Miller walked
around to the driver’s side, and Mr. Perez opened the door. He saw the Defendant pass
Mr. Perez a small bottle. Mr. Perez passed the bottle to Lieutenant Miller and said the
price was $150. Lieutenant Miller questioned the authenticity of the contents, and Mr.
Perez said that Lieutenant Miller could sample the product. Lieutenant Miller declined to
sample the product but agreed to the price. Lieutenant Miller handed Mr. Perez $160,
and Mr. Perez went to a nearby convenience store to get change.
Lieutenant Miller testified that while he waited on Mr. Perez, he sat down in the
driver’s seat and tried to engage the Defendant in small talk. However, the Defendant did
not want to converse other than to ask Lieutenant Miller to lift his shirt. Lieutenant
Miller noted that criminals often did this to make sure they were not being recorded.
Rather than lifting up his shirt, Lieutenant Miller asked the Defendant to lift up his shirt
in an effort to deflect the question and bide time until Mr. Perez returned. Mr. Perez
returned with Lieutenant Miller’s change, and Lieutenant Miller walked away and the
two men drove off. Lieutenant Miller said that other officers immediately conducted a
traffic stop of the red SUV, but the men were not arrested because Lieutenant Miller
wanted to protect his informant.
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Brian Smith, the confidential informant, testified that he knew Mr. Perez because
they lived in the same apartment complex, and he had previously met the Defendant
through Mr. Perez. On June 9, 2016, Mr. Perez contacted him about finding a willing
buyer for a bottle of liquid morphine. Mr. Smith acknowledged that the Defendant was
not involved in this conversation. Mr. Smith contacted Lieutenant Miller to see if he was
interested. Thereafter, Mr. Smith went to Mr. Perez’s apartment to discuss the
arrangements, and Mr. Perez’s girlfriend and the Defendant were also present. Mr. Smith
noted that the Defendant could hear the discussion and never reacted in a way that
indicated he was not involved in the impending drug deal. Mr. Smith told the men that
the potential buyer was his uncle, and he watched as the pair left to meet Lieutenant
Miller in a red SUV. At some point after the men left the apartment, Mr. Perez called
Mr. Smith and asked him what his uncle looked like because he was having trouble
finding him.
On cross-examination, Mr. Smith acknowledged that the Defendant never said
anything about selling morphine during the meeting at Mr. Perez’s apartment and that he
had no phone conversations or texts with the Defendant about the deal. Mr. Smith
admitted to having been in some trouble with the drug task force, which was why he
worked as a confidential informant.
Agent Shane George testified that he surveilled the transaction from across the
street and then subsequently conducted a traffic stop of the Defendant and Mr. Perez. He
saw Lieutenant Miller approach a red SUV and then saw Mr. Perez get out of the vehicle
and go into the store, while Lieutenant Miller sat down in the driver’s seat. Agent
George did not observe any hand-to-hand exchange from his vantage point, but he
listened to the conversation via Lieutenant Miller’s wire transmitter.
Agent George testified that he had pre-arranged for a Shelbyville Police
Department officer to conduct a traffic stop of Mr. Perez’s vehicle after it exited the
liquor store parking lot. Agent George then joined the Shelbyville officer and had both
men exit the vehicle. Agent George searched Mr. Perez and found no money or drugs.
He searched the Defendant and found $150 in one of his pants pockets. He believed that
the cash was in all twenties and one ten-dollar bill. He acknowledged that he did not
record the serial numbers on the bills. Agent George also searched the vehicle.
Joseph Perez testified that the Defendant called him on June 9, 2016, and said that
he “had some liquid morphine . . . and needed help getting rid of it.” Mr. Perez contacted
Brian Smith to find a buyer and then drove to Murfreesboro to pick up the Defendant.
The Defendant showed him a bottle, but Mr. Perez never saw its contents. The men
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returned to Shelbyville, and Mr. Smith came to Mr. Perez’s apartment and told them that
his brother-in-law would meet them at the liquor store.
Mr. Perez testified that he drove himself and the Defendant to the liquor store in a
red SUV. An older white male approached the vehicle, and, after some discussion, Mr.
Perez told him the price of $150. Mr. Perez had originally quoted a price of $140 but
added another $10 for gas. This confused the buyer because he thought the price was
$140, but he agreed, and Mr. Perez went into the store to get change. Mr. Perez returned
with the change, gave the money from the sale to the Defendant, and drove away. Mr.
Perez initially attempted to follow the buyer to make sure he “[w]asn’t the police” but
lost sight of him. Shortly thereafter, he and the Defendant were pulled over by a black
unmarked police vehicle. Mr. Perez said that the Defendant had the bottle of morphine in
his possession during the drive from Murfreesboro but that Mr. Perez had possession of
the bottle from the time they left his apartment until he handed it over to the buyer. Mr.
Perez reiterated that the Defendant was the one who had the morphine and wanted to sell
it but that he was a willing participant in the endeavor.
Agent Laura Cole, an analysist with the Tennessee Bureau of Investigation crime
laboratory, testified that the substance that was purported to be liquid morphine was
instead liquid codeine, a Schedule II controlled substance. The weight of the liquid was
16.94 grams.
Upon this proof, the jury convicted the Defendant as charged of sale of a Schedule
II drug, delivery of a Schedule II drug, and conspiracy to sell or deliver a Schedule II
drug.
ANALYSIS
I. Prior Conviction
The Defendant argues that the trial court abused its discretion in ruling that the
State could cross-examine him on a twenty-two-year-old felony conviction for escape if
he chose to testify.
A conviction may be used to impeach the testimony of an accused in a criminal
prosecution if the following conditions are satisfied: (1) the conviction is for a crime
punishable by death or imprisonment in excess of one year, or the conviction is for a
misdemeanor which involved dishonesty or false statement; (2) less than ten years has
elapsed between the date the accused was released from confinement and the
commencement of the subject prosecution; (3) the State gives reasonable pretrial written
notice of the particular conviction or convictions it intends to use as impeachment; and
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(4) the trial court concludes that the probative value of the prior conviction on the issue of
credibility outweighs its unfair prejudicial effect on the substantive issues. Tenn. R.
Evid. 609; State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999). However, even if a prior
conviction is remote, i.e., more than ten years have elapsed from the date of release from
confinement or from the date of conviction if the witness was not in confinement, it may
still be admissible if the proponent gives the adverse party sufficient advance notice of its
intent to use such evidence and the court “determines in the interests of justice that the
probative value of the conviction, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect.” Tenn. R. Evid. 609(b). Thus, “[u]nder the
evidentiary rules, the [S]tate bears a higher burden of establishing the admissibility of
convictions over ten years old.” State v. Thompson, 36 S.W.3d 102, 110 (Tenn. Crim.
App. 2000).
Two factors should be considered when deciding whether the probative value of a
prior conviction outweighs its unfair prejudicial effect. Mixon, 983 S.W.2d at 674. First,
“[a] trial court should . . . analyze the relevance the impeaching conviction has to the
issue of credibility.” Id. (citation omitted). Second, if the trial court finds that the prior
conviction is probative of the defendant’s credibility, then the court should “‘assess the
similarity between the crime on trial and the crime underlying the impeaching
conviction.’” Id. (quoting Neil P. Cohen et al., Tennessee Law of Evidence § 609.9 at
376 (3d ed. 1995)). The more similar the impeaching conviction is to the offense for
which the defendant is on trial, the greater the risk of a prejudicial effect to the defendant.
Id.
This court reviews a trial court’s ruling on the admissibility of prior convictions
for impeachment purposes under an abuse of discretion standard. See State v. Waller,
118 S.W.3d 368, 371 (Tenn. 2003).
At the conclusion of the State’s proof and prior to the Defendant’s deciding
whether to testify, the trial court conducted a hearing on the State’s notice of intent to
cross-examine the Defendant on his prior convictions. The court ruled that the
Defendant’s prior drug convictions were too similar to the charged offenses and that the
Defendant’s prior aggravated robbery and theft convictions were beyond the ten-year rule
and that the probative value did not substantially outweigh the risk of prejudice.
However, with regard to the Defendant’s twenty-two-year-old conviction for escape, the
trial court found:
In State versus Thompson[, 36 S.W.3d 102 (Tenn. Crim. App. 2000),] and
State versus Ratliff, [673 S.W.2d 884, 885 (Tenn. Crim. App. 1984)], these
are Tennessee cases, the court has held that the trial court did not abuse its
discretion in allowing the State to impeach the defendant on his conviction
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of escape. The crime of escape is probative of credibility, because it
involves the intent to purposefully violate the law. Furthermore, the crime
of escape bears no similarity to the crime of sale and delivery of codeine or
conspiracy to sell or deliver codeine in this particular case.
So, I do find that the probative value substantially outweighs the
prejudicial effect. And I think there is substantial case law that supports
that proposition. And so, in this case, like I said, there is absolutely no
similarity between escape and, and the crimes that have been accused of
committing here on the sale and delivery of codeine and the conspiracy.
And escape is highly probative of credibility, because it does involve the
intent to purpose[ful]ly violate the law. And, again, State versus Thompson
and State versus Ratliff had, have been affirmed in that regard, specifically
on that issue and specifically those charges were well beyond the ten-year
period on both of those cases. And so, I am going to allow the State to
cross-examine or to use that conviction, if it so chooses.
The Defendant argues that the trial court abused its discretion in allowing
cross-examination on a remote conviction for escape and in not conducting a factintensive inquiry to reach its decision. However, as detailed above, the court
relied on rulings by this court in making its determination.
In Thompson, 36 S.W.3d 102, this court held:
With respect to the crime of escape, this court has upheld a trial
court’s determination that this crime is probative of credibility because it
involves intent to purposefully violate the law. State v. Ratliff, 673 S.W.2d
884, 885 (Tenn. Crim. App. 1984). Furthermore, the crime of escape bears
no similarity to the crime of aggravated rape. We hold that the trial court
did not abuse its discretion in allowing for the impeachment use of the
escape conviction, even though that conviction’s sentence expired outside
the ten-year period.
Id. at 111.
Here, although the trial court did not point to anything factually exceptional about
the Defendant’s prior escape conviction, in light of relevant precedent, the trial court
determined that the probative value on credibility substantially outweighed the prejudicial
effect and noted that escape bore no similarity to the drug offenses. We cannot conclude
that the court abused its discretion. In any event, even if the court erred, the error did not
affect the verdict.
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In assessing the harmfulness of this error in a case in which the
defendant did not testify, we are obliged to consider the “theory of the
defense” in order to determine whether the erroneous impeachment would
have had an impact on the result of the trial. See Galmore, 994 S.W.2d
[120,] 125 [(Tenn. 1999)]. We glean the defense theory from the
arguments of counsel, the presentation of evidence in the defendant’s casein-chief, and, when appropriate, from the tenor of cross-examination of
state witnesses.
Thompson, 36 S.W.3d at 112.
It is easy to discern from the proof that the Defendant’s theory was that he was
merely in the vehicle with Mr. Perez and not part of the transaction. However, in
addition to Mr. Perez’s testimony that clearly inculpated the Defendant, Lieutenant Miller
testified that he saw the Defendant pass the bottle to Mr. Perez, and Agent George
testified that the Defendant had $150 on him when they were stopped immediately after
the transaction. Notably, $150 was the exact amount of the drug transaction and no
money was found on Mr. Perez. We are hard-pressed to see any possible credible
testimony the Defendant could have given to counter this proof that would have led to a
different verdict.
II. Sufficiency
The Defendant argues that the evidence is insufficient to sustain his convictions,
asserting that there was contradictory testimony at trial and that the proof showed that
Mr. Perez was the guilty party. He also asserts that the only evidence of conspiracy came
from Mr. Perez’s testimony, which was not corroborated.
When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
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conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our supreme court has stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (1963)). “A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
A criminal offense may be established entirely by circumstantial evidence. State
v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010). In addition, the State does not have the
duty to exclude every other reasonable hypothesis except that of the defendant’s guilt in
order to obtain a conviction based solely on circumstantial evidence. See State v.
Dorantes, 331 S.W.3d 370, 380-81 (Tenn. 2011) (adopting the federal standard of review
for cases in which the evidence is entirely circumstantial). The jury as the trier of fact
must evaluate the credibility of the witnesses, determine the weight given to witnesses’
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d
331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.
1978)). Moreover, the jury determines the weight to be given to circumstantial evidence,
the inferences to be drawn from such evidence, and the extent to which the circumstances
are consistent with guilt and inconsistent with innocence are questions primarily for the
jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006)).
Tennessee Code Annotated section 39-17-417(a)(4) provides, in pertinent part,
that it is an offense for a defendant to knowingly possess a controlled substance with
intent to sell or deliver it. “[A] sale consists of two components: a bargained-for offer
and acceptance, and an actual or constructive transfer or delivery of the subject matter
property.” State v. Holston, 94 S.W.3d 507, 510 (Tenn. Crim. App. 2002).
The Defendant does not dispute that a Schedule II controlled substance changed
hands; he essentially claims that he just happened to be in the vehicle and that Mr. Perez
was the sole culprit. He also points to contradictory testimony at trial from Lieutenant
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Miller and Mr. Perez as to who was in the possession of the drugs – Lieutenant Miller
stating that the Defendant handed the bottle to Mr. Perez and Mr. Perez stating that he
already had the drug in his possession. However, it is the province of the jury to assess
the credibility of the witnesses and reconcile all conflicts in the evidence. In the light
most favorable to the State, the evidence shows that the Defendant contacted Mr. Perez
about selling a bottle of morphine, and Mr. Perez contacted Mr. Smith about finding a
buyer. Mr. Smith contacted Lieutenant Miller, who set up a controlled buy. At the
designated meeting, Lieutenant Miller saw the Defendant pass a bottle of purported
morphine to Mr. Perez, and Mr. Perez passed it along to Lieutenant Miller. Lieutenant
Miller gave Mr. Perez $160 and Mr. Perez gave him $10 in change. At the subsequent
traffic stop, the Defendant was found with $150 in his possession, and Mr. Perez had no
money in his possession. Given this proof, a rational trier of fact could find the
Defendant guilty of the sale and delivery of a Schedule II drug.
With regard to the conspiracy conviction, the Defendant asserts that the only
evidence of conspiracy was Mr. Perez’s “testimony that the Defendant reached out to him
about ‘getting rid’ of some morphine,” and that this testimony was not corroborated.
Conspiracy is committed if
two (2) or more people, each having the culpable mental state required for
the offense that is the object of the conspiracy, and each acting for the
purpose of promoting or facilitating commission of an offense, agree that
one (1) or more of them will engage in conduct that constitutes the offense.
Tenn. Code Ann. § 39-12-103(a). “No person may be convicted of conspiracy to commit
an offense, unless an overt act in pursuance of the conspiracy is alleged and proved to
have been done by the person or by another with whom the person conspired.” Id. § 39-
12-103(d). “While the essence of the offense of conspiracy is an agreement to
accomplish a criminal or unlawful act, . . . the agreement need not be formal or
expressed, and it may be proven by circumstantial evidence.” State v. Pike, 978 S.W.2d
904, 915 (Tenn. 1998) (internal citations omitted).
“An accomplice is defined as a person who knowingly, voluntarily and with
common intent unites with the principal offender in the commission of the crime.” State
v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997) (citing State v. Perkinson, 867
S.W.2d 1, 7 (Tenn. Crim. App. 1992)). A criminal defendant in Tennessee cannot be
convicted solely on the uncorroborated testimony of an accomplice. State v. Bane, 57
S.W.3d 411, 419 (Tenn. 2001) (citing State v. Stout, 46 S.W.3d 689, 696 (Tenn. 2001);
State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Robinson, 971 S.W.2d 30,
42 (Tenn. Crim. App. 1997)). This principle has been described as follows:
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“[T]here must be some fact testified to, entirely independent of the
accomplice’s testimony, which, taken by itself, leads to the inference, not
only that a crime has been committed, but also that the defendant is
implicated in it; and this independent corroborative testimony must also
include some fact establishing the defendant’s identity. This corroborative
evidence may be direct or entirely circumstantial, and it need not be
adequate, in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect the
defendant with the commission of the crime charged. It is not necessary
that the corroboration extend to every part of the accomplice’s evidence.
The corroboration need not be conclusive, but it is sufficient if this
evidence, of itself, tends to connect the defendant with the commission of
the offense, although the evidence is slight and entitled, when standing
alone, to but little consideration.”
Bigbee, 885 S.W.2d at 803 (quoting State v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim.
App. 1992)). Whether sufficient corroboration exists is for the jury to determine. State
v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). The jury determines “the degree of evidence
necessary to corroborate the testimony of an accomplice, and it is sufficient ‘if there is
some other evidence fairly tending to connect the defendant with the commission of the
crime.’” State v. Anderson, 985 S.W.2d 9, 16 (Tenn. Crim. App. 1997) (quoting Clapp v.
State, 30 S.W. 214, 217 (Tenn. 1895)).
As detailed above, Lieutenant Miller testified that he saw the Defendant pass the
bottle of the purported drug to Mr. Perez, which Mr. Perez then gave to him. When the
Defendant and Mr. Perez were subsequently pulled over following the transaction, the
Defendant had $150 on him, the exact amount Lieutenant Miller paid for the drug, but
Mr. Perez had no money on him. From this evidence, a rational trier of fact could find
that Mr. Perez’s testimony was sufficiently corroborated and that Mr. Perez and the
Defendant had agreed to accomplish a criminal or unlawful act.
III. Consecutive Sentencing
The Defendant lastly argues that the trial court erred in imposing consecutive
sentencing. He asserts that the trial court failed to consider whether the aggregate length
of the sentence was consistent with the purposes and principles of the sentencing act.
In imposing consecutive sentencing, the trial court found that the Defendant was
“an offender whose criminal record is extensive,” noting that he had seven prior felony
and ten prior misdemeanor convictions. The court continued in its findings by
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determining that “the presumption of concurrent sentencing is overcome” and that “this
sentence is absolutely necessary to accomplish the ends of justice.”
A trial court may order multiple sentences to run consecutively if it finds by a
preponderance of evidence that one or more of the seven factors listed in Tennessee Code
Annotated section 40-35-115(b) applies, including the one found by the trial court in this
case – that the defendant is an offender whose record of criminal activity is extensive. Id.
§ 40-35-115(b)(2). We review the trial court’s consecutive sentencing determinations for
an abuse of discretion, with a presumption of reasonableness afforded to the trial court’s
decision. State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013).
The Defendant has seven prior felony and ten prior misdemeanor convictions. In
the pre-sentence report, he admitted to long-term use of crack cocaine and marijuana,
which certainly constitutes criminal behavior. The trial court did not abuse its discretion
in imposing consecutive sentencing.
Outcome: Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.
Plaintiff's Experts:
Defendant's Experts:
Comments: