       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs April 14, 2015

               STATE OF TENNESSEE v. MICHAEL BROOKS

                 Appeal from the Criminal Court for Shelby County
                         No. 1202650   Chris Craft, Judge


             No. W2014-01391-CCA-R3-CD - Filed September 9, 2015
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A Shelby County Grand Jury returned an indictment against Defendant, Michael Brooks,
charging him with two counts of especially aggravated kidnapping, two counts of
aggravated robbery, two counts of aggravated assault, aggravated burglary, and
employing a firearm during the commission of a felony. Two co-defendants were also
indicted with Defendant, but Defendant was tried by himself. After the jury trial,
Defendant was convicted of one count of especially aggravated kidnapping, two counts
of facilitation of aggravated robbery, one count of assault, and aggravated burglary. He
was acquitted of the other charges. The trial court imposed a sentence of eighteen years
for especially aggravated kidnapping, four years for each count of facilitation of
aggravated robbery, eleven months and twenty-nine days for assault, and four years for
aggravated burglary. The trial court ordered the sentences to be served concurrently for
an effective eighteen-year sentence. On appeal, Defendant argues that the evidence was
insufficient to support his conviction for especially aggravated kidnapping and that his
sentence is excessive. 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 JAMES
CURWOOD WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

Micah Gates, Memphis, Tennessee, (on appeal); and John Dolan, Memphis, Tennessee,
(at trial), for the Appellant, Michael Brooks.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Amy Weirich, District Attorney General; and Chris Lareau, Assistant District Attorney
General, for the Appellee, State of Tennessee.
                                       OPINION

Background

       On November 23, 2011, the day before Thanksgiving, Warren Galloway and
Patricia Jones were at their home located on Alpena Street in Memphis with their four-
year-old daughter, J.G, and Ms. Jones‟ adult nephew Michael Riley. Because J.G. is a
minor, we will identify her by her initials. Mr. Riley suffers from cerebral palsy and
epilepsy. Mr. Galloway and Ms. Jones were known as the “candy man” and “candy
lady” of the neighborhood because they sold chips, soft drinks, pickles, pigs‟ feet, candy,
and other items to people.

       At approximately 4:30 p.m. Ms. Jones was preparing food for their Thanksgiving
meal when Defendant knocked on the door. J.G. was in her bedroom at the time. Ms.
Jones let Defendant into the house, and they had a conversation about “how he used to
come over [sic] my brother‟s house and they have Thanksgiving and Christmas dinner
and stuff like that.” Ms. Jones had known Defendant since he was a baby, and he had
been in her home one other time. Ms. Jones testified that Defendant was going to buy
“some candy fruities or something,” and Mr. Galloway went to the back of the house to
get some bags for the purchase when Defendant opened the door and let three other men
into the house.

       The three came into the house with guns and announced that it was a robbery. Ms.
Jones was ordered to lie on the floor. Mr. Galloway heard the word robbery, and came in
and began tussling with the men. He was taken into the living room and placed on the
couch. At some point he was hit on the head with a gun. Mr. Galloway also heard one of
the men tell his cohorts not to worry about Mr. Riley because “he won‟t know nothing
anyway.” Mr. Galloway stopped struggling with the men when they threatened to shoot
Ms. Jones in the head, and he went into the kitchen and lay down beside her. Mr.
Galloway and Ms. Jones‟ money, jewelry, watches, and cell phones were taken during
the robbery. Defendant, who was also armed, went to the back of the house to J.G.‟s
room at some point during the robbery.

       J.G. testified that she turned her television off when she heard someone say that
there was going to be a robbery. She also heard someone tell Mr. Riley to get on the
ground and heard Defendant say that Mr. Riley did not “know anything.” J.G. testified
that Defendant walked into her bedroom and placed a gun to her head and put her into the
closet. J.G. testified that she urinated on herself when Defendant put the gun to her head.
J.G. testified that she knew Defendant through her mother, uncle, and her mother‟s
nephew. She had also seen Defendant around the neighborhood and at her house buying
snacks.
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       After Defendant and the other three men left the house, Ms. Jones saw them
running down the street. She ran next door and called police. Mr. Galloway and Ms.
Jones later identified Defendant from a photographic line-up.

       Detective Jonathan Linton of the Memphis Police Department testified that he
responded to the scene on November 23, 2011. He spoke to the individuals in the home
who were “visibly shaken up and disturbed as if something had occurred.” Detective
Linton testified that J.G. appeared to be “scared, terrified.” He further testified that J.G.
“knew something horrible happened. And she was stressed.” J.G. told Detective Linton
that Defendant committed the offenses.

        Sergeant John Simpson of the Memphis Police Department, Robbery Bureau,
testified that he was assigned as the “case officer” in the present case. He testified that
Mr. Galloway and Ms. Jones both identified Defendant from a photographic line-up, and
he took statements from them. Defendant was then brought to the Robbery Bureau on
November 29, 2011, for an interview by Sergeant Simpson and Sergeant Farr. They read
Defendant his Miranda rights, and Defendant waived those rights and gave a statement.
Defendant denied participating in the robbery and having any knowledge of the robbery.
He also denied going to Mr. Galloway‟s and Ms. Jones‟ house. When Sergeant Simpson
reminded Defendant that he was wearing an ankle monitoring bracelet at the time,
Defendant said that he was related to Mr. Galloway and Ms. Jones and that he went to
their house for ten to fifteen minutes on November 23, 2011, and then left.

      Sergeant Simpson then confronted Defendant with the victims‟ statements.
Defendant told Sergeant Simpson that he was at his grandmother‟s house when the three
co-defendants came over and began discussing a robbery at Mr. Galloway‟s house.
Sergeant Simpson further testified:

        [Defendant] told them not to do it because that was his people. That he
        was related to them and that that wasn‟t cool. And he said that they left
        and then he left. Different - - they left in a car. He left on foot. He said
        that that‟s when he went over to the victim‟s house, Warren and
        Patricia‟s. And after he was leaving, that‟s when he saw the co-
        defendants driving up in a vehicle and run up to the house and he said I
        guess that‟s when they got robbed.

      Sergeant Simpson interviewed Defendant again on November 30, 2011.
Defendant was advised of his Miranda rights, and he agreed to give a statement.
Sergeant Simpson confronted Defendant with the statements of his co-defendants and

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noted that their statements were not the same as Defendant‟s.             Sergeant Simpson
testified:

        And [Defendant] told us another story that the part about him - - them
        coming to the grandmother‟s house was true and that they did leave.
        And he went to Warren and Patricia‟s. And he said that when he was
        leaving he saw the three co-defendants walking up, two with guns, and
        he said I knew they were going to rob them. And he said that he went
        ahead and left. And then afterwards the three co-defendants met with
        him and gave him proceeds from the robbery. So he said that he was
        there for the planning, was there when the robbery took place and then
        met with them after and received proceeds from the robbery.

Analysis
      I.      Sufficiency of the Evidence

        Defendant argues that the evidence presented at trial was not sufficient under
State v. White, 362 S.W.3d 559, 562 (Tenn. 2012), to support his conviction for the
kidnapping of J.G. because the kidnapping was “essentially incidental to the
[facilitation of] robbery” and the aggravated burglary. We disagree.

        When an accused challenges the sufficiency of the convicting evidence, our
standard of review is whether, after reviewing the evidence in a 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, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979). The trier of fact, not this Court, resolves questions
concerning the credibility of the witnesses, and the weight and value to be given the
evidence as well as all factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d
926, 932 (Tenn. Crim. App. 1995). Nor may this Court reweigh or re-evaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is
entitled to the strongest legitimate view of the evidence and all inferences therefrom. Id.
Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this Court of illustrating why the
evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982). “[D]irect and circumstantial evidence should be
treated the same when weighing the sufficiency of [the] evidence.” State v. Dorantes,
331 S.W.3d 370, 381 (Tenn. 2011).

        Defendant was convicted of especially aggravated kidnapping, two counts of
facilitation of aggravated robbery, one count of assault, and one count of aggravated
burglary. The only conviction that Defendant contests on appeal is his conviction for
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especially aggravated kidnapping. Defendant asserts that his “actions in removing and
confining the minor victim were merely incidental to the aggravated burglary and
facilitation of aggravated robbery.” Especially aggravated kidnapping as charged in this
case, “is false imprisonment, as defined in § 39-13-302:” and occurs “(2) Where the
victim was under the age of thirteen (13) at the time of the removal or confinement[.]”
T.C.A. § 39-13-305(a)(2). “A person commits the offense of false imprisonment who
knowingly removes or confines another unlawfully as to interfere substantially with the
other‟s liberty.” T.C.A. § 39-13-302(a)(2010).

       In State v. White, 362 S.W.3d 559 (Tenn. 2012), the supreme court addressed due
process considerations affecting convictions for kidnapping and an accompanying felony
such as robbery, rape, or assault.. The court held:

        [T]he legislature did not intend for the kidnapping statutes to apply to the
        removal or confinement of a victim that is essentially incidental to an
        accompanying felony, such as rape or robbery. This inquiry, however, is
        a question for the jury after appropriate instructions, which appellate
        courts review under the sufficiency of the evidence standard as the due
        process safeguard.

White, 362 S.W.3d at 562. The Court determined that the proper inquiry for the jury is
“whether the removal or confinement is, in essence, incidental to the accompanying
felony or, in the alternative, is significant enough, standing alone, to support a
conviction.” Id. at 578. The Court further set forth the following jury instruction:

        To establish whether the defendant's removal or confinement of the
        victim constituted a substantial interference with his or her liberty, the
        State must prove that the removal or confinement was to a greater degree
        than that necessary to commit the offense of [insert offense], which is the
        other offense charged in this case. In making this determination, you
        may consider all the relevant facts and circumstances of the case,
        including, but not limited to, the following factors:

        • the nature and duration of the victim's removal or confinement by the
        defendant;

        • whether the removal or confinement occurred during the commission
        of the separate offense;




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        • whether the interference with the victim‟s liberty was inherent in the
        nature of the separate offense;

        • whether the removal or confinement prevented the victim from
        summoning assistance, although the defendant need not have succeeded
        in preventing the victim from doing so;

        • whether the removal or confinement reduced the defendant‟s risk of
        detection, although the defendant need not have succeeded in this
        objective; and

        • whether the removal or confinement created a significant danger or
        increased the victim‟s risk of harm independent of that posed by the
        separate offense.

White, 362 S.W.3d at 580-81. This instruction was later included in the
Tennessee Pattern Jury Instructions. Id. at 580-81; 8 Tenn. Prac. Pattern Jury
Instr. T.P.I. - Crim. 8.03(a). The absence of a White instruction, when warranted,
results in constitutional error unless the error was harmless beyond a reasonable
doubt. State v. Cecil, 409 S.W.3d 599, 610 (Tenn. 2013). It is undisputed, and
the record reflects that the trial court in the present case gave the jury the proper
instruction in accordance with White.

       The supreme court recently held that a “kidnapping charge accompanied
by an aggravated burglary charge, standing alone, does not warrant a White
instruction.” State of Tennessee v. Larry Jereller Alston, et al., ___ S.W.3d ___,
No. E2012-00431-SC-R11-CD, 2015 WL 2155690 (Tenn. 2015). However,
crimes such as robbery, rape, and assault when charged along with kidnapping
may warrant such an instruction. Id. In two cases decided after Alston, the
supreme court addressed the issue of whether a White jury instruction must be
given when a defendant is charged with the kidnapping and robbery of separate
victims. State v. Jerome Maurice Teats, ___ S.W.3d ___ , No. M2012-01232-
SC-R11-CD, 2015 WL 4237689 (Tenn. 2015); State v. Ricco R. Williams, ___
S.W.3d ___, No. W2013-01897-SC-R11-CD, 2015 WL 4260447(Tenn. 2015).
In Teats, the Court held:

        [A] White jury instruction is not required when a defendant is charged
        with the kidnapping and robbery of different victims. The jury
        instruction we articulated in White was intended to address the due
        process concerns that arise when a defendant is charged with kidnapping
        a victim and other crimes, such as robbery, rape, or assault, that involve

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        some inherent confinement of that victim. Cf. State v. Salamon, 949
        A.2d 1092, 1117 (Conn. 2008)(“Our legislature . . . intended to exclude
        from the scope of . . . kidnapping . . . those confinements or movements
        of a victim that are merely incidental to and necessary for the
        commission of another crime against that victim.” (emphasis added)).
        Where a defendant is charged with kidnapping and an accompanying
        offense involving some confinement of the same victim, there are
        appropriate due process concerns that the defendant could be convicted
        of two crimes – e.g. robbery and kidnapping – when he has only
        committed one crime – robbery. But where, as in this case, the State
        charged the Defendant with robbing the restaurant manager and
        kidnapping four other employees, the Defendant does not stand the risk
        of being convicted of kidnapping a victim he confined only long enough
        to rob. Simply put, the due process concerns articulated in White are not
        present, as the kidnapping of one or more victims can never be
        “essentially incidental” to an offense perpetrated against a different
        victim or victims. See White, 362 S.W.3d at 580.

Teats, ___ S.W.3d ___, 2015 WL 4237689 at *6.

      In Williams our supreme court held,

        Simply put, where a defendant kidnaps one victim while robbing
        another, the due process concerns articulated in White are not present, as
        the kidnapping of one or more victims can never be “essentially
        incidental” to an offense perpetrated against different a different victim
        or victims.

Williams, ___ S.W.3d ___, 2015 WL 4620447 at *5. (emphasis added)

        Similarly in this case, there are no due process concerns as articulated in White
because Defendant was charged with the robbery of Mr. Galloway and Ms. Jones and the
kidnapping of a separate victim, J.G. Therefore, the only question is whether the
evidence is sufficient to support Defendant‟s conviction for especially aggravated
kidnapping. The proof showed that while everyone else was confined in the front of the
house during the robbery, Defendant went into four-year-old J.G.‟s bedroom and placed a
gun to her head, scaring the child so badly that she urinated on herself. He then placed
her in a closet at gunpoint. We find that Defendant‟s actions were sufficient to support a
conviction for especially aggravated kidnapping. Defendant is not entitled to relief on
this issue.

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       II.    Sentencing

    Next, Defendant argues that the trial court erred by sentencing him to eighteen years
for especially aggravated kidnapping by not considering as a mitigating factor that he
voluntarily released the victim alive.

       The length, range, and manner of service of a sentence imposed by the trial court
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). In sentencing a
defendant, the trial court shall consider the following factors: (1) the evidence, if any,
received at the trial and the sentencing hearing; (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 enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee; (7) any statement by the appellant in his own behalf; and (8) the
potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
see also Bise, 380 S.W.3d at 697-98. The burden is on the appellant to demonstrate the
impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing Comm‟n
Cmts.

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

        (1) The minimum sentence within the range of punishment is the
        sentence that should be imposed, because the general assembly set the
        minimum length of sentence for each felony class to reflect the relative
        seriousness of each criminal offense in the felony classifications; and

        (2) The sentence length within the range should be adjusted, as
        appropriate, by the presence or absence of mitigating and enhancement
        factors set out in §§ 40-35-113 and 40-35-114.

T.C.A. § 40-35-210(c).

        Although the trial court should consider enhancement and mitigating factors, these
factors are advisory only. See Tenn. Code Ann. § 40-35-114; see also Bise, 380 S.W.3d
at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our supreme court has stated
that “a trial court‟s weighing of various mitigating and enhancement factors [is] left to the
trial court‟s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the trial
court is free to select any sentence within the applicable range so long as the length of the
                                             8
sentence is „consistent with the purposes and principles of [the Sentencing Act].‟” Id. at
343. Appellate courts are “bound by a trial court‟s decision as to the length of the
sentence imposed so long as it is imposed in a manner consistent with the purposes and
principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

      Especially aggravated kidnapping is a Class A felony. T.C.A. § 39-13-305 (b)(1).
The applicable sentencing range for a Range I offender convicted of a Class A felony is
15 to 25 years. The trial court imposed an eighteen-year sentence for Defendant‟s
conviction of especially aggravated kidnapping.

       Defendant contends that the trial court erred by failing to consider as a mitigating
factor at sentencing that the victim was voluntarily released alive. T.C.A. § 39-13-
305(b)(2) provides that: “If the offender voluntarily releases the victim alive or
voluntarily provided information leading to the victim‟s safe release, such actions shall
be considered by the court as a mitigating factor at the time of sentencing.” The record
indicates that the trial court found one applicable mitigating factor:

        And the only mitigating thing that I could see about this, looking at the
        mitigating circumstances is he did confess to the police and admitted to
        what he did by giving them a statement. I‟m not going to give that a
        whole lot of weight because this is just every person‟s nightmare is this
        kind of crime. And being caught, he didn‟t go to the police and say
        here‟s what I did, he was caught and arrested before he admitted his
        culpability.

       While is it debatable whether Defendant voluntarily released J.G., she was alive
and physically unharmed after the kidnapping. It is not clear from the record when or
how J.G. emerged from the closet. Even if the trial court erred by failing to apply this
mitigating factor, Defendant would still not be entitled to relief. The law is clear that “a
trial court‟s misapplication of an enhancement factor or mitigating factor does not
remove the presumption of reasonableness from its sentencing decision.” Bise, 380
S.W.3d at 709. A defendant‟s sentence will be upheld if it is within the appropriate range
and generally complies with the purposes of sentencing. Id. at 709-10.

       In this case, Defendant‟s eighteen-year sentence for especially aggravated
kidnapping is within the statutory range, and the trial court followed the statutory
sentencing procedure and made findings of fact that are supported by the record.
Defendant is not entitled to relief on this issue.




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The judgments are affirmed.

                          ____________________________________________
                          THOMAS T. WOODALL, PRESIDING JUDGE




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