                                                                                       10/05/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                   Assigned on Briefs July 25, 2017 at Knoxville

            STATE OF TENNESSEE v. JAMARIUS DEON GANT

                 Appeal from the Circuit Court for Madison County
                       No. 15-487     Kyle C. Atkins, Judge


                           No. W2016-02482-CCA-R3-CD


The Defendant, Jamarius Deon Gant, was convicted by a Madison County Circuit Court
jury of aggravated robbery, a Class B felony, aggravated kidnapping, a Class B felony,
and facilitation of burglary of a vehicle, a Class A misdemeanor. See T.C.A. §§ 39-13-
402 (2014) (aggravated robbery), 39-13-304 (2014) (aggravated kidnapping), 39-11-403
(2014) (facilitation of a felony), 39-14-402 (2014) (burglary of a vehicle). The
Defendant also pleaded guilty to two counts of possession of a handgun by a convicted
felon. See T.C.A. §§ 39-17-1307 (2014) (amended 2017). The trial court sentenced the
Defendant as a Range I, standard offender to consecutive nine-year terms for the
aggravated robbery and aggravated kidnapping convictions. The Defendant received
concurrent sentences of four years for the firearm convictions and eleven months, twenty-
nine days for the facilitation of burglary of a vehicle, for an effective eighteen years’
confinement. On appeal, the Defendant contends that (1) the evidence is insufficient to
support a conviction for aggravated kidnapping, and (2) the trial court erred during
sentencing. We affirm the judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and J. ROSS DYER, JJ., joined.

John D. Hamilton (on appeal) and Susan D. Korsnes (at trial), Jackson, Tennessee, for the
appellant, Jamarius Deon Gant.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Aaron A. Chaplin,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

       This case arises from an incident at Jessica Spencer’s apartment in Jackson,
Tennessee, on the night of March 30, 2015. Ezikeal Scott testified that he and Ms.
Spencer went to dinner that night and returned to her apartment. Mr. Scott stated that he
sat on the couch in the living room and that Ms. Spencer went to her bedroom. Mr. Scott
said that a man, later identified as the Defendant, came into the living room from the back
of the apartment and sat down on the couch. Mr. Scott stated that the Defendant inquired
about Mr. Scott’s Ford Mustang, which was parked outside, and that Mr. Scott told the
Defendant the Mustang was for sale. Mr. Scott said that the Defendant told him he had a
gun for sale and showed Mr. Scott a revolver.

       Mr. Scott testified that he heard a knock at the door, that Ms. Spencer told the
Defendant to answer the door, and that a man, who was unknown to Mr. Scott, came into
the apartment. Mr. Scott said that Ms. Spencer was in the bathroom when the man
arrived. Mr. Scott stated that the man sat down on the couch beside him and that the
Defendant stood behind the couch. Mr. Scott said that a second man, also unknown to
Mr. Scott, entered the apartment. The man wore a ski mask that covered his face and
held a handgun. Mr. Scott said that the masked man attempted to load the handgun with
a bullet and that another bullet fell from the handgun’s chamber onto the floor.

       Mr. Scott testified that the Defendant ordered Mr. Scott to the back of the
apartment and that the first unknown man escorted Mr. Scott. Mr. Scott stated that the
Defendant came into the back room and told the first unknown man to “check him for
anything that [he] had” and that the first unknown man began searching Mr. Scott’s shirt
and pants.

        Mr. Scott testified that they escorted him to the living room and that the Defendant
and the man wearing a mask ordered Mr. Scott to remove his clothing, his wallet and
money, and to lie face-down on the floor. Mr. Scott stated that the masked man pointed a
gun at him as he undressed and that he felt threatened. Mr. Scott said that he lay face
down on the floor when the men brought Ms. Spencer into the living room. Mr. Scott
stated that he and Ms. Spencer were ordered to sit on the couch.

       Mr. Scott testified that the Defendant told the other two unknown men to go to Mr.
Scott’s Mustang and that the Defendant stayed with Mr. Scott and Ms. Spencer inside the
apartment. Mr. Scott said that the unknown men returned with three televisions, cologne,
and cell phones, which they had retrieved from Mr. Scott’s Mustang. Mr. Scott stated
that the Defendant and the men took his wallet, money, and another cell phone from Mr.
Scott’s pants pocket. Mr. Scott said that the masked man asked him if he wanted to see
Ms. Spencer raped and that Mr. Scott replied, “No.” Mr. Scott stated that the unknown
men left the apartment and that the Defendant told the men to “call . . . when you get to
where you’re going.”

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        Mr. Scott testified that the Defendant remained in the living room with the
revolver. Mr. Scott stated that the Defendant told him that he could not leave until the
unknown men “got to where they were going.” Mr. Scott said that the Defendant
instructed him not to report the incident to the police. Mr. Scott stated that the Defendant
allowed him to leave after approximately five minutes but that Ms. Spencer remained in
the apartment. Mr. Scott stated that he drove his Mustang home. He said that his mother
contacted the police, that he gave the police a statement, and that he gave the police a
description of the Defendant, who was wearing red clothing. Mr. Scott stated that he
identified the Defendant in a photograph lineup.

       On cross-examination, Mr. Scott testified that during the preliminary hearing, he
mistakenly stated that no one other than the masked man was armed. He said the
Defendant had a gun. On redirect examination, Mr. Scott stated that he “was being held
like [he] couldn’t move.” He stated that before the Defendant allowed him to leave the
apartment, the Defendant told him, “Don’t call the police, I got your I.D.”

       Tamator Scott, Mr. Scott’s mother, testified that her son was “scared” when he
arrived home and that he was wearing only underwear. Ms. Scott stated that she saw her
son’s Mustang and that all of the televisions from the car had been removed. Ms. Scott
said that she and her boyfriend drove to Ms. Spencer’s apartment, that they “beat on the
door,” and that they called the police because they thought Ms. Spencer was being held
hostage.

       Jackson Police Officer Jonathan McCrury testified that he went to a possible
hostage situation at Ms. Spencer’s apartment. Officer McCrury said that when he
arrived, he spoke with Ms. Scott and followed Ms. Scott to her home. Officer McCrury
said that Mr. Scott was present at the home and was “visibly upset [and] afraid.” Officer
McCrury stated that he took Mr. Scott’s statement and told officers to go to Ms.
Spencer’s apartment. Officer McCrury said that Mr. Scott told him about the items stolen
from his Mustang.

       Jackson Police Officer Christopher Austin testified that he went to Ms. Spencer’s
apartment, that he and other police officers spent approximately ten to fifteen minutes
trying to get into Ms. Spencer’s apartment, and that he contacted the Jackson Housing
Authority to gain access. Officer Austin said that the Jackson Housing Authority granted
the officers access and that the officers performed a “protective sweep.” Officer Austin
said that the officers found a bullet and a wallet on the floor but that no one was in the
apartment.

      Jackson Police Sergeant Brian Spencer testified that a form with Ms. Spencer’s
photograph and personal information was prepared and that it was distributed door-to-
door in a search for Ms. Spencer. Sergeant Spencer stated that he composed a
photograph lineup and that Mr. Scott identified the Defendant in the lineup.

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       Jackson Police Investigator Daniel Long testified that he requested an “emergency
ping” of Ms. Spencer’s cell phone by the service provider. He stated that he received the
ping information and narrowed Ms. Spencer’s location to approximately ten units in Ms.
Spencer’s apartment complex. He said that police officers searched the area, knocked on
doors, and entered apartments. Investigator Long stated that the Defendant and Ms.
Spencer were found in one of the apartments and were detained.

       Jatori Marie Bradford testified that she lived in the apartment in which the
Defendant and Ms. Spencer were found. Ms. Bradford said that Ms. Spencer sent her a
text message on the night of March 30, 2015, requesting Ms. Bradford open her door and
allow them to enter her apartment. Ms. Bradford said that Ms. Spencer and the
Defendant came into her apartment and that they stayed until the next day.

       Ms. Bradford testified that she left her apartment the next morning, that she spoke
with police officers, and that she did not tell the officers that Ms. Spencer was in her
apartment. Ms. Bradford said that she left a second time and that when she returned,
police officers were in her apartment. Ms. Bradford identified the Defendant from a
photograph lineup as the person who stayed in her apartment with Ms. Spencer.

       Jessica Spencer testified that she had known the Defendant for a few months at the
time of the incident and that he lived in her apartment. She said that when she and Mr.
Scott went inside her apartment, she went to the bathroom to take a shower. Ms. Spencer
said that she heard “bumping and thumping” outside the bathroom. Ms. Spencer stated
that when she opened the bathroom door, the masked man held a handgun to her face.

       Ms. Spencer testified that the masked man escorted her into the living room and
that Mr. Scott lay face-down on the floor wearing boxers, an undershirt, and socks. Ms.
Spencer stated that it appeared “they had already robbed [Mr. Scott].” Ms. Spencer said
that the other two men left the apartment and that the Defendant told Mr. Scott that he
could not leave until the Defendant received a telephone call. Ms. Spencer stated that she
saw two firearms belonging to the Defendant and that one was a revolver.

       Ms. Spencer testified that after Mr. Scott left her apartment, she went to Ms.
Bradford’s apartment. Ms. Spencer said that the Defendant followed her into Ms.
Bradford’s apartment and that they stayed until the next day when the police took her and
the Defendant into custody. Ms. Spencer said that she did not know the robbery was
going to take place and denied receiving any items from the robbery.

       On cross-examination, Ms. Spencer testified that she had not been charged in
relation to the incident. Ms. Spencer admitted that in a previous statement, she did not
tell police officers that the Defendant held Mr. Scott hostage in the living room. Ms.
Spencer said that the Defendant never kidnapped her or threatened to harm her. Ms.
Spencer said that she was afraid of the Defendant after the robbery and that he had her

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cell phone and would not allow her to call anyone.

       Jackson Police Officer Joseph Cepparulo testified that when he searched Ms.
Bradford’s apartment, he found the Defendant lying in a bathtub. Officer Cepparulo said
that he found a plastic bag hidden in the toilet tank and that the bag contained a semi-
automatic handgun and a revolver.

      Upon this evidence, the Defendant was convicted of aggravated robbery,
aggravated kidnapping, and facilitation of burglary of a vehicle. This appeal followed.

                              I. Sufficiency of the Evidence

       The Defendant contends that the evidence is insufficient to sustain a conviction for
aggravated kidnapping. He does not challenge his remaining convictions. He argues that
the confinement of Mr. Scott was “essentially incidental” to accomplishing the robbery
and that as a result, the aggravated kidnapping conviction should be vacated pursuant to
State v. White, 362 S.W.3d 559 (Tenn. 2012). The Defendant argues that Mr. Scott’s
confinement did not interfere substantially with his liberty beyond that required for the
aggravated robbery and vehicle burglary. The State responds that the evidence is
sufficient. We agree with the State.

        In determining the sufficiency of the evidence, the standard of review 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 State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

        “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). A conviction may be based upon circumstantial evidence alone. See Dorantes,
331 S.W.3d at 380-381.

      Aggravated kidnapping is defined as false imprisonment committed “while the
defendant is in possession of a deadly weapon . . . .” T.C.A. § 39-13-304. False
imprisonment occurs when a person “knowingly removes or confines another unlawfully

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so as to interfere substantially with the other’s liberty.” Id. § 39-13-302 (2014). In
White, our supreme court held that “whether the evidence, beyond a reasonable doubt,
establishes each and every element of kidnapping, as defined by statute, is a question for
the jury properly instructed under the law.” 362 S.W.3d at 577 (internal citations
omitted). Trial courts have the obligation to provide clear guidance to the jury with
regard to statutory language and must “ensure that juries return kidnapping convictions
only in those instances in which the victim’s removal or confinement exceeds that which
is necessary to accomplish the accompanying felony.” Id. at 578.

        In the light most favorable to the State, the evidence shows that once the two men,
unknown to Mr. Scott, entered the apartment, the Defendant displayed a revolver and
ordered Mr. Scott to go from the living room to the back of the apartment where Mr.
Scott was searched. The Defendant and the masked man ordered Mr. Scott to return to
the living room, to remove his clothing, and to lie face down on the floor. The men took
Mr. Scott’s wallet, money, and cell phone from Mr. Scott’s pants pocket. The Defendant
ordered Mr. Scott to sit on the living room couch while the two unknown men removed
items from Mr. Scott’s Mustang.

       After the two unknown men left Ms. Spencer’s apartment and the aggravated
robbery and vehicle burglary were complete, the Defendant remained inside the
apartment with Mr. Scott and Ms. Spencer. The Defendant held a revolver and did not
permit Mr. Scott to leave the apartment until the Defendant received a telephone call.
The Defendant detained Mr. Scott inside the apartment for several minutes before
allowing Mr. Scott to leave.

        We conclude that the evidence is sufficient to support the jury’s findings that the
confinement was not essentially incidental to the robbery and burglary and was
significant enough to support an independent conviction for aggravated kidnapping. We
note that the trial court properly instructed the jury that “unless you find beyond a
reasonable doubt that the alleged victim’s removal or confinement exceeded that which
was necessary to accomplish the alleged [a]ggravated [r]obbery or [v]ehicular [b]urglary
and was not essentially incidental to it, you must find the Defendant not guilty of
kidnapping.” The Defendant has not raised an issue about the propriety of the instruction
the trial court gave, but the instructions are in accord with White. Id. at 580-81. The
jury’s verdict reflects that it found the Defendant’s confinement of Mr. Scott beyond that
necessary to accomplish the robbery and burglary. The Defendant is not entitled to relief
on this basis.

                                      II. Sentencing

       The Defendant contends that the trial court improperly sentenced him because the
court misunderstood the extent of his prior criminal history. The Defendant also asserts
that the court failed to apply mitigating factors. The State responds that the court did not

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abuse its discretion. We agree with the State.

        At the sentencing hearing, the presentence report was received as an exhibit and
reflected that the Defendant had previous convictions for reckless aggravated assault,
misdemeanor drug possession, misdemeanor evading arrest, and violating the driver’s
license law. The report showed that the Defendant received two years in confinement for
the reckless aggravated assault conviction.

       The presentence report reflected that the Defendant was age twenty-two. The
Defendant reported that he had completed the eleventh grade. The Defendant reported
that he had previously received treatment for attention deficit hyperactivity disorder and
schizophrenia. The Defendant began using alcohol at age sixteen, and drank a pint of
whiskey during weekends when he was younger, but reported that he no longer consumed
alcohol. The Defendant reported that he began using marijuana at age fifteen and cocaine
at age sixteen and that he used cocaine every weekend or “when he got mad at
something.” The Defendant lived with his mother and his uncle. Until his arrest, the
Defendant had been employed at Waste Management.

      The State argued that consecutive sentences were mandatory because the
Defendant was on parole when the current offenses were committed. Trial counsel
argued that ordering consecutive sentences was not mandatory because the Defendant
was on probation at the time of the offenses. The trial court found as follows:

       [A]t the time the felony was committed the Defendant was on probation [for
       misdemeanor drug possession] and he was on some form of – either on parole,
       determinate release, or some other type of release under the [direct] – supervision
       of some state authority, which would be for the parole or determinate release from
       [the reckless aggravated assault conviction].

       The trial court considered the evidence presented at the trial and the sentencing
hearing, the presentence report, the principles of sentencing, the arguments by the
Defendant and the State regarding sentencing, the nature and characteristics of the
criminal conduct involved, and the mitigating and enhancement factors. The court found
that the Defendant was a Range I, standard offender. The Court found that mitigating
factor (13) applied because the Defendant released Mr. Scott unharmed. See T.C.A. §§
40-35-113(13) (2014) (“Any other factor consistent with the purposes of this chapter.”),
39-13-304(b)(2) (“If the offender voluntarily releases the victim alive . . . such actions
shall be considered by the court as a mitigating factor at the time of sentencing.”).

      The trial court found that enhancement factor (1) applied. See T.C.A. § 40-35-
114)(1) (2014) (amended 2015, 2016, 2017) (“The defendant has a previous history of
criminal convictions or criminal behavior, in addition to those necessary to establish the
appropriate range[.]”). The court found that enhancement factor (8) applied. See id. §

                                            -7-
40-35-114(8) (“The defendant, before trial or sentencing, failed to comply with the
conditions of a sentence involving release into the community.”). The court also found
that enhancement factor (13) applied. See id. § 40-35-114(13)(A), (B). (“At the time the
felony was committed, one (1) of the following classifications was applicable to the
defendant: . . . (B) released on parole; (C) released on probation . . . .”).

        The trial court sentenced the Defendant to eleven months and twenty-nine days for
facilitation of burglary of a vehicle, which was to be served concurrently with the
aggravated robbery sentence. The court sentenced the Defendant to nine years for
aggravated robbery and nine years for aggravated kidnapping. The court found that the
Defendant was on probation at the time the offenses occurred and that he had an
extensive criminal history. The court ordered consecutive service for the aggravated
robbery and aggravated kidnapping sentences, for an effective eighteen-year sentence.

       This court reviews challenges to the length of a sentence within the appropriate
sentence range “under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A trial court must
consider any evidence received at the trial and sentencing hearing, the presentence report,
the principles of sentencing, counsel’s arguments as to sentencing alternatives, the nature
and characteristics of the criminal conduct, any mitigating or statutory enhancement
factors, statistical information provided by the Administrative Office of the Courts as to
sentencing practices for similar offenses in Tennessee, any statement that the defendant
made on his own behalf, and the potential for rehabilitation or treatment. State v. Ashby,
823 S.W.2d 166, 168 (Tenn. 1991) (citing T.C.A. §§ 40-35-103 (2014), -210 (2014);
State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986); State v. Taylor, 744 S.W.2d 919
(Tenn. Crim. App. 1987)); see T.C.A. § 40-35-102 (2014).

        Likewise, a trial court’s application of enhancement and mitigating factors is
reviewed for an abuse of discretion with “a presumption of reasonableness to within-
range sentencing decisions that reflect a proper application of the purposes and principles
of our Sentencing Act.” Bise, 380 S.W.3d at 706-07. “[A] trial court’s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. at 706. “So long
as there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed . . . within the appropriate range” will be upheld
on appeal. Id.

       The record reflects that the trial court considered the appropriate purposes and
principles of sentencing, including the applicable mitigating and enhancement factors.
The court found the Defendant’s releasing Mr. Scott unharmed was a mitigating factor.
See T.C.A. § 40-35-113(13). The court’s determination relative to the Defendant’s prior
criminal history and enhancement factor (1) is supported by the record. See id. § 40-35-
114(1). The presentence report reflects that the Defendant had one felony and three

                                            -8-
misdemeanor convictions. Relative to enhancement factors (8) and (13), the record
reflects that the Defendant was on probation for two previous convictions at the time of
the current offenses. See id. § 40-35-114(8), (13). The Defendant has not shown an
abuse of discretion in the trial court’s imposition of within-range sentences.

       The sentencing range for a Class B felony for a Range I, standard offender is eight
to twelve years. See id. § 40-35-112(a)(2) (2014). The Defendant was convicted of two
Class B felonies and was sentenced to nine years for each felony. The Defendant’s
sentences were within the appropriate range, and the court’s determinations are supported
by the record. The record reflects that the court properly applied the purposes and
principles of the Sentencing Act. The Defendant is not entitled to relief on this basis.

       The trial court has the discretion to order consecutive sentences if the court finds
by a preponderance of evidence that the defendant committed the offenses while on
probation. See id. § 40-35-115(b)(6) (2014). The Defendant conceded during the
sentencing hearing that the offenses were committed while he was on probation. The
Defendant is not entitled to relief on this basis.

     In consideration of the foregoing and the record as a whole, we affirm the
judgments of the trial court.




                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




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