        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville May 20, 2014

              STATE OF TENNESSEE v. DARRELL RAY BEENE

                Appeal from the Criminal Court for Davidson County
                    No. 2012-A-868 Cheryl Blackburn, Judge


                 No. M2013-02098-CCA-R3-CD - Filed June 20, 2014


Darrell Ray Beene (“the Defendant”) was convicted by a jury of one count of robbery and
one count of criminal attempt to commit especially aggravated kidnapping. The trial court
sentenced the Defendant to an effective term of forty-two years’ incarceration. In this direct
appeal, the Defendant challenges the sufficiency of the evidence and his consecutive
sentences. Upon our thorough review of the record and applicable law, we affirm the trial
court’s judgments.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
D. K ELLY T HOMAS, J R., JJ., joined.

Kara Everett, Nashville, Tennessee, for the appellant, Darrell Ray Beene.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. Johnson III, District Attorney General; and Jeff Burks, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                          Factual and Procedural Background

       The Defendant was charged with one count of aggravated robbery and one count of
especially aggravated kidnapping, allegedly committed with co-defendant Tony Dometrica
Brown on January 1, 2012, against victim Brooke Babington. The Defendant was tried
before a jury, and the following proof was adduced:
        Brooke Babington testified that she was living at an apartment complex in Davidson
County, Tennessee, on January 1, 2012. On that evening, she was returning to her apartment
after dinner at approximately 9:20 p.m. She parked her car in her usual spot in the parking
lot, got out of her car, and opened the back door on the driver’s side to retrieve some things.
As she was bent over, she heard a voice on her right side say, “I’m going to help you with
that.” She looked over her right shoulder and saw a black man she did not recognize. When
she turned around, she saw a second unknown black man on her other side.

         The man who had spoken to her took her wallet, keys, diabetes supplies, and the bag
of dining leftovers she was carrying. The other man took her purse, which she was wearing
across her shoulder. She identified the Defendant as the man who took her purse, and she
referred to the other man as “Brown.” After the men took her property, Brown – the man
who had initially spoken to her – pressed a small black handgun to her back and told her “that
[she] was going with them down the hill.” The Defendant closed the rear driver’s side door
of her car. The men then took her to the front of her car, with the Defendant in front of her
holding her right arm and Brown on her left behind her, “pushing.” They walked across the
sidewalk, took a few steps onto the grass, and the victim looked at the “long dark hill below.”
Afraid that the men wanted more than her property, she “threw [her] left arm” and ran up the
flight of stairs to her apartment. The men started to follow her, but her roommate’s
boyfriend, Sean Burk, answered her door. She told Burk that she had been robbed, and Burk
began to run after the two assailants. The victim’s boyfriend, Daniel Henderson, then arrived
in his truck. Burk got in Henderson’s truck, and they pursued the robbers. The victim called
911.

      According to the victim, the police arrived and went looking for Burk and Henderson.
Burk and Henderson caught the Defendant, and the police took the Defendant into custody.
The victim then identified the Defendant as one of her assailants. She recovered her purse
because Henderson had recovered it from the Defendant.

       On cross-examination, the victim stated that about four to five minutes elapsed
between the time her items were taken and her arrival at her front door. She was not aware
of the gun until after her wallet and purse were taken. She never saw the Defendant with a
gun. The men walked her about ten feet.

        Sean Burk testified that his girlfriend lived with the victim at the apartment complex
in January 2012. On the evening of January 1, 2012, he was at their apartment visiting. He
and his girlfriend were watching television when they heard “a loud pounding on the door.”
Burk opened the door and saw the victim, who told him that she had been robbed. He
described her state of mind as “[p]anic.” He saw the two assailants “[d]irectly behind her on
the stairs at the bottom of the steps.” He saw that the men were holding a fast food bag and
a purse. Burk “took off after them.” As he was running, he saw the victim’s boyfriend drive

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up. Burk jumped in the back of Henderson’s truck, and Henderson pursued the running men.
The assailants split up, and Burk ran after the man carrying the purse. Burk and Henderson
caught the man with the purse. Burk identified the Defendant as the man they caught. They
turned the Defendant over to the police after the police arrived on the scene. The victim’s
purse was returned to her.

        Daniel Henderson, the victim’s fiancé, testified that he lived in Illinois in January
2012 but was visiting the victim at her apartment. On the evening of January 1, 2012, they
drove their separate vehicles to a restaurant for dinner. After they left the restaurant,
Henderson stopped for gas on his way back to the victim’s apartment. As he thereafter drove
toward her apartment, he saw two men running away from the vicinity of the victim’s car.
He saw that one of the men was carrying the victim’s purse. He then saw Burk running out
of the apartment. Burk told him that the victim had been robbed and jumped in the back of
Henderson’s truck. Henderson drove after the man with the purse. When the man ran
between two apartment buildings, Henderson and Burk got out of the truck and ran after the
man. When they caught him, the man still had the victim’s purse. After they caught him,
they borrowed a phone and called 911. Henderson and Burk held the man until the police
arrived and then gave the man to the police. Henderson identified the Defendant as the man
they caught.

     On cross-examination, Henderson stated that he never saw the Defendant with a
weapon.

        Officer Joshua Hargrave of the Metro Nashville Police Department (“MNPD”)
testified that he was the first officer to report to the scene. He took a statement from the
victim. Another officer who responded arrived with a suspect in the back of his patrol car.
Officer Hargrave identified the Defendant as the person in the back of the patrol car.

        Officer Quinn White of the MNPD was the second officer at the scene. Since Officer
Hargrave was with the victim, Officer White began looking for the suspects. He saw “a
gentleman with no shirt on sitting on top of another gentleman waving at [him], kind of
trying to get [his] attention.” Officer White drove up and took the alleged suspect into
custody, placing him into the back of his patrol car. He also seized a purse. Officer White
identified the Defendant as the person he took into custody. Officer White drove back to the
victim’s apartment.

     On cross-examination, Officer White testified that the Defendant did not have a
weapon on him when Officer White took him into custody.

      Officer Charles Linville of the MNPD testified that he went to the apartment complex
on January 4, 2012, and took photographs of a handgun that had been located in the grass

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behind one of the apartment buildings. He then collected the gun, which he described as a
Crosman CO2-powered air pistol. He was unable to collect any fingerprints from the gun.

       Detective Frederick Heiman also responded to the scene between 9:30 and 9:45 p.m.
on January 1, 2012. When he arrived, one suspect was in custody and officers were
searching for the other suspect. Det. Heiman identified the Defendant as the suspect in
custody. After Det. Heiman spoke with the victim, he conducted a “showup” by letting the
victim view the Defendant while he was in custody. The victim positively identified the
Defendant.

       On cross-examination, Det. Heiman acknowledged that the Defendant told him
Brown’s name and general address. The Defendant also provided a description of the gun
that Brown had used and where it could be located. The Defendant described the gun as a
.25 semi-automatic.

       The State rested its case after Det. Heiman’s testimony, and the defense presented no
proof. After deliberating, the jury convicted the Defendant of robbery, a lesser-included
offense of aggravated robbery, and of criminal attempt to commit especially aggravated
kidnapping, a lesser-included offense of especially aggravated kidnapping. After a
sentencing hearing, the trial court sentenced the Defendant as a Range III (persistent)
offender to fourteen years for the robbery offense and to twenty-eight years for the attempt
to commit especially aggravated kidnapping offense. The trial court ordered the Defendant
to serve these sentences consecutively after concluding that he was a dangerous offender.
Thus, the Defendant was ordered to serve an effective term of forty-two years in the
Department of Correction.

       The Defendant timely perfected his direct appeal and now challenges the sufficiency
of the proof and the trial court’s imposition of consecutive sentences.

                                          Analysis

                                 Sufficiency of the Evidence

        Our standard of review regarding sufficiency of the evidence 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). After a jury finds a
defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does

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not weigh the evidence anew; rather, “a jury verdict, approved by the trial judge, accredits
the testimony of the witnesses for the State and resolves all conflicts” in the testimony and
all reasonably drawn inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75
(Tenn. 1992). Thus, “the State is entitled to the strongest legitimate view of the evidence and
all reasonable or legitimate inferences which may be drawn therefrom.” Id. (citation
omitted).

      This standard of review applies to guilty verdicts based upon direct or circumstantial
evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our Supreme Court adopted the United States
Supreme Court standard that “direct and circumstantial evidence should be treated the same
when weighing the sufficiency of such evidence.” Id. at 381. Accordingly, the evidence
need not exclude every other reasonable hypothesis except that of the defendant’s guilt,
provided the defendant’s guilt is established beyond a reasonable doubt. Id.

                                           Robbery

        The jury convicted the Defendant of robbery, defined as “the intentional or knowing
theft of property from the person of another by violence or putting the person in fear.” Tenn.
Code Ann. § 39-13-401(a) (2010). The Defendant contends that the State failed to prove that
he took property from the victim by putting the victim in fear. The State disagrees.

        Our supreme court has declared that the fear referred to in the robbery statute “is a
‘fear of bodily danger or impending peril to the person, which intimidates and promotes
submission to the theft of the property.’” State v. Dotson, 254 S.W.3d 378, 395 (Tenn. 2008)
(quoting State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001)) (internal quotation marks omitted).
“The test may be properly described as objective rather than subjective in nature.” Id. Thus,
this element is to be determined by the jury on the basis of whether all of the evidence
demonstrated that “the victim was placed in fear by the conduct of a defendant or should
have been under the circumstances.” Id. at 396.

        The Defendant contends that the evidence did not demonstrate that the victim had
been placed in fear at the time her property was taken because she had not yet been made
aware of the handgun. We disagree. The record demonstrates by overwhelming evidence
that the female victim was approached late at night by two unknown men as she was alone
and trying to retrieve items from her car in a parking lot. The men stood on either side of her
as she stood with her back against her car, effectively trapping her. The men did not
introduce themselves but instead demanded, and took, her property. We hold that this
evidence was sufficient to establish that the Defendant’s actions would have placed a
reasonable person in fear. Accordingly, the Defendant is entitled to no relief on this basis.


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                     Attempt to Commit Especially Aggravated Kidnapping

       The offense of especially aggravated kidnapping is statutorily defined as “false
imprisonment . . . [a]ccomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon.” Tenn. Code
Ann. § 39-13-305(a)(1) (2010). A person commits false imprisonment when he or she
“knowingly removes or confines another unlawfully so as to interfere substantially with the
other’s liberty.” Id. § 39-13-302(a) (2010). Additionally,

               A person commits criminal attempt who, acting with the kind of
        culpability otherwise required for the offense . . . [a]cts with intent to complete
        a course of action or cause a result that would constitute the offense, under the
        circumstances surrounding the conduct as the person believes them to be, and
        the conduct constitutes a substantial step toward the commission of the
        offense.

Id. § 39-12-101(a)(3) (2010). “Conduct does not constitute a substantial step . . . unless the
person’s entire course of action is corroborative of the intent to commit the offense.” Id. §
39-12-101(b). Finally, “[a] person is criminally responsible for an offense committed by the
conduct of another, if . . . [a]cting with intent to promote or assist the commission of the
offense, or to benefit in the proceeds or results of the offense, the person solicits, directs,
aids, or attempts to aid another person to commit the offense.” Id. § 39-11-402(2) (2010).

       The Defendant contends that the proof demonstrated that the victim’s movement by
her assailants was “essentially incidental” to the robbery. He relies on our supreme court’s
decision in State v. White, in which our high court construed our kidnapping statutes as
“evinc[ing] a legislative intent to punish as kidnapping only those instances in which the
removal or confinement has criminal significance above and beyond that necessary to
consummate some underlying offense, such as robbery or rape.” 362 S.W.3d 559, 576-77
(Tenn. 2012). Thus, the jury must have before it sufficient proof from which to conclude that
the victim’s confinement or movement was “significant enough, standing alone, to support
a conviction” rather than being merely “incidental to the accompanying felony.” Id. at 578.1

        The proof in this case permitted the jury to conclude that the robbery was complete
by the time Brown, the Defendant’s cohort, placed a gun in the victim’s back and told her
that she was going with them down the hill. The Defendant then took hold of the victim’s
right arm, Brown took hold of her left arm, and the two men marched the victim to the front
of her car, across the sidewalk, and several steps into the grass toward the bottom of the hill

        1
        The record reflects that the trial court charged the jury on the kidnapping offense as prescribed in
White. See White, 362 S.W.3d at 580-81.

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before the victim broke free and ran away. This proof was more than sufficient for the jury
to conclude that the Defendant and Brown, working together and toward the same purpose,
confined and moved the victim an appreciable distance away from the scene of the robbery
and after the robbery had been completed. Thus, the jury was entitled to conclude that the
victim’s confinement and movement were not incidental to the robbery and had criminal
significance over and above the robbery. Accordingly, the Defendant is entitled to no relief
on this basis.

        The Defendant also contends that the proof was not sufficient to establish that he
acted with the requisite culpable mental state or that he took a substantial step toward
completing the crime. He argues that the proof established that it was Brown who held the
gun and ordered the victim to move. Nevertheless, as set forth above, the proof demonstrated
that the Defendant took hold of the victim’s right arm and actively assisted in moving her
away from her car. This conduct circumstantially established the requisite mental state of
“knowing”2 and also directly established a substantial step toward the commission of an
especially aggravated kidnapping. See State v. Bobby Stanley George, No. M2012-01542-
CCA-R3-CD, 2013 WL 4647626, at *7 (Tenn. Crim. App. Aug. 26, 2013) (holding evidence
sufficient to support attempted especially aggravated kidnapping conviction where defendant
grabbed victim and held him for a few seconds before victim was pulled from defendant’s
grasp), perm. app. denied (Tenn. Jan. 15, 2014). Under the doctrine of criminal
responsibility for the conduct of another, the fact that only Brown was armed is irrelevant.
The Defendant knew Brown was armed and was actively assisting Brown in attempting to
falsely imprison the victim with the use of a gun. The jury had before it sufficient proof from
which to conclude that the Defendant committed criminal attempt to commit especially
aggravated kidnapping. Accordingly, the Defendant is entitled to no relief on this basis.

                                              Sentencing

        After a sentencing hearing, the trial court sentenced the Defendant as a Range III
(persistent) offender to fourteen years’ incarceration for the robbery offense and to twenty-
eight years’ incarceration for the attempted especially aggravated kidnapping offense. The
trial court also ordered the Defendant to serve these sentences consecutively after finding the
Defendant to be a dangerous offender. See Tenn. Code Ann. § 40-35-115(b)(4) (2010). The
Defendant contends that the trial court erred in ordering him to serve his sentences
consecutively.



        2
          “‘Knowing’ refers to a person who acts knowingly with respect to the conduct or to circumstances
surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances
exist. A person acts knowingly with respect to a result of the persons’s conduct when the person is aware
that the conduct is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b) (2010).

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       Prior to imposing sentence, a trial court is required to consider the following:

       (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 the mitigating and
       enhancement factors set out in [Tennessee Code Annotated sections ] 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.

Tenn. Code Ann. § 40-35-210(b) (2010).

        The referenced “principles of sentencing” include the following: “the imposition of
a sentence justly deserved in relation to the seriousness of the offense” and “[e]ncouraging
effective rehabilitation of those defendants, where reasonably feasible, by promoting the use
of alternative sentencing and correctional programs.” Tenn. Code Ann. § 40-35-102(1),
(3)(C) (2010). “The sentence imposed should be the least severe measure necessary to
achieve the purposes for which the sentence is imposed,” and “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant should be considered in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(4),
(5) (2010).

       Our Sentencing Act also mandates as follows:

       In imposing a specific sentence within the range of punishment, the court shall
       consider, but is not bound by, the following advisory sentencing 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

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               (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 [Tennessee Code Annotated sections] 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c) (2010).

      Additionally, a sentence including confinement should be based on the following
considerations:

             (A) Confinement is necessary to protect society by restraining a
       defendant who has a long history of criminal conduct;

              (B) Confinement is necessary to avoid depreciating the seriousness of
       the offense or confinement is particularly suited to provide an effective
       deterrence to others likely to commit similar offenses; or

              (C) Measures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(1).

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). This same standard of review applies to a trial court’s order of
consecutive service. See State v. Pollard, No. M2011-00332-SC-R11-CD, __ S.W.3d __, __,
2013 WL 6732667, at *9 (Tenn. 2013) (“So long as a trial court properly articulates reasons
for ordering consecutive sentences, thereby providing a basis for meaningful appellate
review, the sentences will be presumed reasonable and, absent an abuse of discretion, upheld
on appeal.”) (citing Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705). This Court will
uphold the trial court’s sentencing decision “so long as it is within the appropriate range and
the record demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709-10. Moreover, under those
circumstances, we may not disturb the sentence even if we had preferred a different result.
See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party appealing the sentence has
the burden of demonstrating its impropriety. Tenn. Code Ann. § 40-35-401, Sent’g Comm’n
Cmts.; see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

      A trial court may order a defendant to serve his sentences consecutively after finding
by a preponderance of the evidence that he “is a dangerous offender whose behavior

                                              -9-
indicates little or no regard for human life and no hesitation about committing a crime in
which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4). Before imposing
consecutive service on this basis, however, the trial court also must conclude that the proof
established “that the aggregate sentence reasonably relates to the severity of the offenses and
that the total sentence is necessary for the protection of the public from further crimes by the
defendant.” Pollard, __ S.W.3d at __, 2013 WL 6732667, at *11 (citing State v. Lane, 3
S.W.3d 456, 461 (Tenn. 1999)).

        In this case, the trial court reviewed the Defendant’s prior convictions which included
two attempted rapes, an aggravated kidnapping, and an aggravated rape. The Defendant was
sentenced to twenty-five years “to serve” for the aggravated rape conviction and committed
the instant crimes “shortly” after being released from prison. The trial court stated from the
bench,

       I’m finding that he’s a dangerous offender and that the aggregate term
       reasonably relates to the severity of the offenses and is necessary in order to
       protect the public from further serious criminal conduct by the defendant.
       Clearly he is a dangerous offender. He has been convicted of very serious
       offenses, the aggravated rape, the aggravated kidnapping, other attempted
       rapes, which occurred even before then, before he was put in prison. And now
       shortly thereafter we have the . . . attempted especially aggravated kidnapping
       and the robbery. All that cries out for consecutive sentences in this case.

The Defendant argues that consecutive service should not have been imposed because Brown
was the leader in the commission of these offenses while the Defendant’s role was “small”
and because the Defendant assisted law enforcement in locating Brown and the gun.

       We hold that the record supports the trial court’s decision to impose consecutive
service on the basis that the Defendant is a dangerous offender. The Defendant’s crimes
against the victim were committed with a gun, of which the Defendant was aware, thereby
demonstrating that the Defendant had “little or no regard for human life and no hesitation
about committing a crime in which the risk to human life is high.” That the Defendant may
not have been the “leader” does not negate the active role he took in accosting the victim,
taking her property, and, at gunpoint, bodily marching her away from her car and the parking
area toward a secluded area where she was much less likely to be seen and/or heard and
assisted. Moreover, the Defendant’s engaging in these violent crimes shortly after being
released from a prison term imposed for other violent crimes is a clear indication that society
needs protection from the Defendant. Finally, the Defendant’s assistance in locating
Brown’s handgun demonstrates that the Defendant was well aware that Brown had the gun,
underlining the Defendant’s willingness to participate in violent crimes. And while the
Defendant’s assistance in identifying Brown was commendable, it did not overcome his other

                                              -10-
actions. We also agree with the trial court that the forty-two year term reasonably related to
these terrifying crimes. The trial court committed no error in imposing consecutive service,
and the Defendant is entitled to no relief on this basis.

                                        Conclusion

       For the reasons set forth above, we affirm the trial court’s judgments.




                                                    ______________________________
                                                    JEFFREY S. BIVINS, JUDGE




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