        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs June 27, 2012

                STATE OF TENNESSEE v. MALCOLM H. JONES

                   Appeal from the Criminal Court for Knox County
                         No. 95613    Bob R. McGee, Judge


               No. E2011-02082-CCA-R3-CD - Filed December 11, 2012


The Defendant, Malcolm H. Jones, appeals from his dual jury convictions for aggravated
robbery, a Class B felony, and the trial court’s subsequent sentence, after merging the two
convictions, to serve nine years in the Department of Correction (DOC). He contends that
the evidence is insufficient to support his convictions for, that the trial court erred in denying
his motion for a continuance, and that the trial court’s sentence of nine years was excessive
because the trial court misapplied an enhancement factor, and the remaining two
enhancement factors are not sufficient to support a one-year enhancement beyond the
minimum in the range. Following our review of the record and the applicable authorities,
we affirm the judgment of the trial court.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and N ORMA M CG EE O GLE, JJ., joined.

Leslie M. Jeffress (on appeal), Knoxville, Tennessee, for the appellant, Malcolm H. Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Randall E. Nichols, District Attorney General; and Ta Kisha M. Fitzgerald, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                FACTUAL BACKGROUND

       The record reflects that the Defendant was indicted for two counts of aggravated

robbery, under alternate theories, on September 21, 2010. The Defendant was appointed
counsel, and the case proceeded to trial on June 8, 2011. Before trial began, the Defendant

addressed two motions he had recently filed in the case. First, the Defendant moved to strike

his “alias,” and the trial court granted this motion. The second motion was to continue the

case because, according to defense counsel, the Defendant notified him “on the eve of trial”

about a “substantial witness” for the defense, and he needed time to locate and subpoena this

witness to testify at trial. The motion was not accompanied by an affidavit. Counsel stated

that he could not provide the court with the substance of this witness’s testimony because he

had not spoken with the witness and only had a statement made by the Defendant at that time.

The State opposed the motion, and the motion was denied.




       Michael Mayes, who is the custodian of records for 911 in Knox County, was the first

witness to testify for the State at trial. He testified that the 911 call came into dispatch as an

aggravated robbery and introduced the recording of the 911 call and the print-out of the

computer log associated with the call. Mr. Mayes testified on cross-examination that there

was a “Little Malcolm” mentioned during the call.




       The victim, George Bryant Thomas, testified that he was at a friend’s apartment,

Jasmine Trent, in the Western Heights Housing Complex on May 28, 2012, when the robbery

occurred. As he was leaving Ms. Trent’s apartment, he looked down, and when he looked

back up, there were three black men in front of him, one of whom was holding a gun. They



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told Mr. Thomas to give them everything he had. Mr. Thomas testified that he only

recognized one of the men but did not know his name; this man was later identified as the

Defendant. The Defendant was not holding the gun; however, Mr. Thomas testified that the

Defendant started patting him down as soon as the other men told him to give them all he

had. Mr. Thomas testified that the Defendant took his wallet out of his pocket, opened it, and

took the money out. The Defendant then shoved the money in his own pocket. Mr. Thomas

also testified that the Defendant took his cell phone, his shoes, and his shorts.1 After getting

Mr. Thomas’s belongings, all three men ran off together. According to Mr. Thomas, as the

Defendant fled, he “threw . . . down” Mr. Thomas’s wallet and shorts. Mr. Thomas said that

he then went inside Diane French’s apartment, who was one of Ms. Trent’s neighbors, where

he learned that Ms. Trent had called the police. He explained that Ms. Trent was the only

person who knew that the Defendant’s name was Malcolm. Mr. Thomas testified that he did

not give any of the men permission to take his property. He stated on cross-examination that

the gunman never pointed the gun at the Defendant.




        Steve Still, an officer with the Knoxville Police Department (KPD), arrived on the

scene of the robbery with other officers where he learned that Mr. Bryant was the victim and

Ms. Trent was the witness who called 911. Ms. Trent told Officer Still that one of the


1
  Mr. Thomas also testified that “one of ‘em got the keys” but could not identify who took his keys.
Regarding the taking of his shorts and shoes, Mr. Thomas explained that as the Defendant patted him down,
his shorts were falling because they were loose fitting, so the Defendant just grabbed them. Then one of the
other men instructed the Defendant to “[g]o ahead and grab his shoes.”

                                                    -3-
suspects was named “Malcolm.” Officer Still testified that upon getting that information to

officers who worked in the area, they identified the Defendant as the suspect named

“Malcolm.” Officer Still used the information about the Defendant that he received from the

officers to pull up a Department of Safety file with the Defendant’s picture and other

information. He then filed an arrest warrant with the Defendant’s picture attached and

informed other officers that there was an outstanding warrant for the Defendant’s arrest.




        The Defendant testified that he was “watchin’ a pickup basketball game at the Baptist

Center” when he was approached by “two unknown suspects” from whom he had previously

purchased drugs.2 During their conversation, the two men invited the Defendant to “go chill

with some females and smoke[,]” and he accepted the invitation. The Defendant explained

that the three of them walked single-file “down towards Oldham but behind the buildings in

Western Heights apartments.” He followed approximately three paces behind the others. He

said that the two suspects, whom he later identified as “Killer Jay” and “Cocaine,” walked

up to a man, and he thought they were going to converse with him. However, as he caught

up with them, he heard the two men say, “Shut the door[,]” and Killer Jay “pulled the gun

out.” The Defendant then claimed that Killer Jay pointed the gun at him, then back at the

victim, and instructed him to “go into [the victim’s] pockets.” The Defendant said that he

“fount [sic] a wallet, a cell phone, and that was all [he] got.” He claimed that he gave the


2
 Despite the Defendant’s repeated reference to the other two robbery participants as “unidentified suspects,”
he testified that he knew their “nicknames,” and he later provided a general description of both men.

                                                    -4-
wallet and cell phone to “the gunman” and that he never looked inside the wallet. The

Defendant testified that he “was scared” and thought that he “could have been robbed or

shot” if he did not comply. The Defendant maintained that he did not know the two men

were going to rob the victim nor that “there was a gun in anybody’s possession.”




       The Defendant testified that he went to a friend’s house nearby to hide from Killer Jay

and Cocaine for a while, but he did not call police because his friend did not have a phone.

He further testified that he saw Killer Jay and Cocaine later that day in the area, and the two

men overheard one of the Defendant’s friends telling him that the police were looking for

him. According to the Defendant, upon hearing this, Killer Jay and Cocaine pulled him to

the side and said, “Mention our name and we gonna hurt you.” The Defendant said that he

did not see them again after that.




       The Defendant admitted on cross-examination that he remained in the Western

Heights area and that he evaded police on two occasions after learning that they were looking

for him. He also admitted that he at no point ever tried to contact police regarding the

robbery or his fear of Killer Jay and Cocaine.




       After deliberations, the jury found the Defendant guilty of both counts of aggravated

robbery. At the September 23, 2011 sentencing hearing, the trial court found that three



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enhancement factors applied: that the Defendant had a history of criminal convictions other

than those necessary to establish the range, that the Defendant participated in a crime in

which the risk to human life was high, and that the Defendant had previously been unable

to succeed on community release. The trial court also found the following mitigating factors:

that the victim was not hurt and that the Defendant was young and lacked judgment.

Nevertheless, the trial court found that the enhancement factors outweighed the mitigating

factors. The trial court merged the two counts of aggravated robbery, sentenced the

Defendant as a Range 1, standard offender, and ordered him to serve nine years in the DOC,

concurrently to any other sentence he had been ordered serve.




                                        ANALYSIS




       The Defendant contends that the evidence presented at trial was insufficient to support

his convictions for aggravated robbery. Specifically, he complains that the trial court erred

in denying his motion for a continuance to interview a potentially substantial witness. The

Defendant also contends that the trial court’s sentence of nine years was excessive, noting

that the trial court misapplied an enhancement factor, and the other two enhancement factors

applied were insufficient to justify his sentence. The State responds that the evidence was

sufficient to support the aggravated robbery convictions where the jury rejected the



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Defendant’s contention that he was acting under duress. The State also responds that the trial

court did not abuse its discretion in denying the Defendant’s motion for a continuance

because the Defendant did not follow the rules requiring an affidavit. Finally, the State

responds that even if the trial court erred in applying one of three enhancement factors found,

the remaining enhancement factors are sufficient to justify the sentence imposed.




                                A. Sufficiency of the Evidence




       Specifically, the Defendant contends that the evidence presented at trial was

insufficient to support his convictions for aggravated robbery for the following reasons: (1)

the Defendant testified that he “believed himself threatened with harm which was present,

imminent, impending and of such nature to induce a well-grounded apprehension of death

or serious bodily injury if he had not participated in the robbery”; (2) “the trial court agreed

insofar as giving the duress instruction”; and (3) given the evidence presented at trial, “the

jury should have retained a reasonable doubt regarding duress[.]” The State responds that

the evidence is sufficient to show that the Defendant intentionally and willingly robbed the

victim because the Defendant does not contest the facts involving his participation in the

robbery but insists that he participated under duress. The State also responds that the defense

of duress is “rare” and is, generally, unavailable to someone who recklessly places himself



                                              -7-
in a situation where compulsion was probable and that the jury was free to reject the defense.

We agree with the State.




       An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence on appeal 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). The court

does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in

the testimony and drawn all reasonable inferences from the evidence in favor of the state. See

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and the

weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997).




       A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt

based upon direct evidence, circumstantial evidence, or a combination of [both] direct and

circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.



                                             -8-
1999).The standard of proof is the same, whether the evidence is direct or circumstantial.

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the

convicting evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

The duty of this court“on appeal of a conviction is not to contemplate all plausible inferences

in the [d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor

of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).


       A conviction for aggravated robbery, as relevant to this case, requires proof beyond

a reasonable doubt that the Defendant committed an “intentional or knowing theft of property

from the person of another by violence or putting the person in fear” and that the robbery was

“accomplished with a deadly weapon or by display of any article fashioned to lead the victim

to reasonably believe it to be a deadly weapon.” Tenn. Code Ann. §§ 39-13-401(1), -402(1).

However, there are some general defenses to prosecution for aggravated robbery that a

defendant may raise at trial; one such defense is duress. See Tenn. Code Ann. § 39-11-203,

-504. Pursuant to Tennessee Code Annotated section 39-11-504,


       (a) Duress is a defense to prosecution where the person or a third person is
       threatened with harm that is present, imminent, impending and of such a nature
       to induce a well-grounded apprehension of death or serious bodily injury if the
       act is not done. The threatened harm must be continuous throughout the time
       the act is being committed, and must be one from which the person cannot
       withdraw in safety. Further, the desirability and urgency of avoiding the harm
       must clearly outweigh the harm sought to be prevented by the law proscribing
       the conduct, according to ordinary standards of reasonableness.

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       (b) This defense is unavailable to a person who intentionally, knowingly, or
       recklessly becomes involved in a situation in which it was probable that the
       person would be subjected to compulsion.




Id. (emphasis added). Additionally, the Sentencing Commission Comments to section 504

advise that “[t]his rare defense is present when a defendant commits an offense because

another person threatens death or serious bodily injury if the offense is not committed.”




       In a light most favorable to the State, the evidence shows that the Defendant and two

unidentified men approached the victim, Mr. Thomas, and while one of the men held Mr.

Thomas at gunpoint, the Defendant patted him down and took his wallet and cell phone.

According to Mr. Thomas, the Defendant placed the money from his wallet into the

Defendant’s pocket. The Defendant then ran away from the scene with the other two men

following behind him. Instead of contacting the police, the Defendant went to a friend’s

house to hide out. The Defendant remained in the area where the robbery took place, but he

never contacted police and, in fact, evaded arrest on multiple occasions when he learned that

police were looking for him.




       Although the Defendant contends that he presented sufficient evidence at trial that he

participated in the aggravated robbery of Mr. Thomas under duress, contrary to the



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Defendant’s assertion, Mr. Thomas testified that the other suspects never pointed the gun at

the Defendant. Furthermore, according to the Defendant’s testimony, it was hours after the

robbery took place when Killer Jay and Cocaine verbally threatened to harm him if he

mentioned them to police. Despite the Defendant’s assertion that the trial court’s instructing

the jury on duress illustrates that he presented sufficient evidence to prove that his

participation in the robbery was done under duress, the law requires the trial court to submit

the defense to the jury if admissible evidence fairly raises its applicability because duress is

not an affirmative defense,. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007) (emphasis

added); see also Tenn. Code Ann. § 39-11-203(c) (1997). In his brief, the Defendant admits

that the jury was properly instructed on this defense. Accordingly, the jury heard the

instructions and all the evidence and was free to reject the Defendant’s proffered defense,

which it clearly did in this case. Thus, the Defendant is not entitled to relief on this issue.




             B. Trial Court’s Denial of Defendant’s Motion for Continuance


       The Defendant contends that the trial court improperly denied his motion for a

continuance because the Defendant gave counsel the name of a substantial witness “on the

eve of trial” who would have assisted the defense, but the late notice of said witness

prohibited counsel from filing an affidavit or providing the court with what this witness

would have said. The Defendant explains that he had another court date scheduled for



                                              -11-
September 7, 2011, and both cases could have been resolved on that date; thus, the Defendant

contends that the trial court denied him a fair hearing because the sixty-day delay would not

have “inordinately delayed resolution of the matter.” The State responds that denial of the

motion was proper because the Defendant did not follow the rule requiring an affidavit to

accompany the motion and because the witness still had not been located three months after

the trial.3 The State also responds that the Defendant is not entitled to relief because he has

failed to show that a different result would have followed had the motion for a continuance

been granted because the witness still had not been located three months after trial.




        The trial court’s denial of a continuance will be reversed only if it appears that the trial

court abused its discretion to the prejudice of the defendant. State v. Odom, 137 S.W.3d 572,

589 (Tenn. 2004) (citing State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)). A trial court

abuses its discretion when denial of a continuance deprived the defendant of a fair trial or

upon showing that the result of the trial would have been different had a continuance been

granted. Odom, 137 S.W.3d at 589. A defendant asserting that the denial of a continuance

constitutes a denial of due process or the right to counsel must establish actual prejudice. Id.

(citing Morris v. Slappy, 461 U.S. 1, 11-12 (1983). This court has recognized that a

continuance might be appropriate in order to afford a defendant a “reasonable opportunity”



3
 Tennessee Code Annotated section 19-1-110(a), upon which the affidavit requirement was based, has been
repealed. Therefore, a defendant is no longer required to file an affidavit with the court when seeking a
continuance.

                                                  -12-
to locate a witness. State v. Morgan, 825 S.W.2d 113, 117 (Tenn. Crim. App. 1991).

However, the defendant bears the burden of showing that a continuance might have

reasonably resulted in locating the witness. Id.; see also Brown v. State, 489 S.W.2d 855, 857

(Tenn. Crim. App. 1972).




       Here, the Defendant has failed to demonstrate that he was prejudiced by the trial

court’s denial of his motion for a continuance. The Defendant contends that he was

prejudiced because he was denied the opportunity to locate and interview a substantive

witness. At trial, defense counsel explained that the Defendant had just informed him about

this witness prior to trial and that he could not provide the court with the substance of this

witness’ testimony because he had not yet interviewed him. Thus, there is no evidence that

this witness would have been favorable to the defense. Furthermore, this witness did not

show up during trial, and three months after the trial, the witness still had not been located.

Based on the foregoing, we conclude that the Defendant has not shown that granting the

continuance might have reasonably resulted in locating the witness. We also note that the

trial court viewed the Defendant’s motion as a delay tactic, referencing his previously denied

request for a new attorney, and considered this in its decision to deny the Defendant’s

motion. Therefore, we cannot conclude that the trial court abused its discretion in denying

the Defendant’s motion for a continuance.




                                             -13-
                                        C. Sentencing


       The Defendant contends that his sentence is excessive and explains that the trial court

improperly enhanced his sentence to nine years, one year beyond the minimum in the eight

to twelve-year range, by improperly applying an enhancement factor: that the Defendant

participated in a crime in which the risk to human life was high. He further contends that the

other two enhancement factors that the trial court applied are insufficient to justify a one-year

enhancement from the minimum sentence in the range. The State responds that even if the

trial court erred in applying one of three enhancement factors when determining the length

of the Defendant’s sentence, the other two enhancement factors apply and are sufficient to

justify a one-year enhancement from the minimum sentence.




       Before a trial court imposes a sentence upon a convicted criminal defendant, it must

consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the

nature and characteristics of the criminal conduct involved; (e) evidence and information

offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code

Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the

Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;

and (g) any statement the defendant wishes to make in the defendant’s own behalf about

sentencing. Tenn. Code Ann. § 40-35-210(b). To facilitate appellate review, “it is critical

                                              -14-
that trial courts adhere to the statutory requirement set forth in Tennessee Code Annotated

section 40-35-210(e)” and articulate in the record its reasons for imposing the specific

sentence. See State v. Susan Renee Bise, -- S.W.3d --, No. E2011-00005-SC-R11-CD, 2012

WL 4380564, at *20 n.41 (Tenn. Sept 26, 2012).




       The 2005 amendments to the Sentencing Act “served to increase the discretionary

authority of trial courts in sentencing. Id. at *18. Currently, upon a challenge to the sentence

imposed, it is the duty of this court to analyze the issues under “an abuse of discretion

standard of review, granting a presumption of reasonableness to within-range sentencing

decisions that reflect a proper application of the purposes and principles of our Sentencing

Act.” Id. at *17. Those purposes and principles include “the imposition of a sentence justly

deserved in relation to the seriousness of the offense,” Tennessee Code Annotated section

40-35-102(1), a punishment sufficient “to prevent crime and promote respect for the law,”

Tennessee Code Annotated section 40-35-102(3), and consideration of a defendant’s

“potential or lack of potential for . . . rehabilitation,” Tennessee Code Annotated section 40-

35-103(5). State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2007). The burden of showing that

a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401,

Sentencing Comm’n Comts.; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).




       Our amended Sentencing Act no longer imposes a presumptive sentence. Carter, 254



                                              -15-
S.W.3d at 343. Accordingly, Tennessee Code Annotated section 40-35-210 was amended

to provide as follows:


              (c) The court shall impose a sentence within the range of punishment,
       determined by whether the defendant is a mitigated, standard, persistent,
       career, or repeat violent offender. 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

               (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.

             (d) The sentence length within the range should be consistent with the
       purposes and principles of this chapter.

Tenn. Code Ann. § 40-35-210(c), (d) (emphasis added).




       The 2005 amendments rendered advisory the manner in which the trial court selects

a sentence within the appropriate range, allowing the trial court to be guided by - but not

bound by - any applicable enhancement factors when adjusting the length of a sentence.

Bise, 2012 WL 4380564, at *17. In accordance with the broad discretion now afforded our

trial court’s sentencing decisions,


       misapplication of an enhancement or mitigating factor does not invalidate the
       sentence imposed unless the trial court wholly departed from the 1989 Act, as

                                            -16-
       amended in 2005. So long as there are other reasons consistent with the
       purposes and principles of sentencing, as provided by statute, a sentence
       imposed by the trial court within the appropriate range should be upheld.

Id.


       The Defendant’s sole sentencing concern is that one enhancement factor, that the

Defendant participated in a crime in which the risk to human life was high, was improperly

applied because it is an element of aggravated robbery. Although we agree that this

enhancement factor was improperly applied, it does not entitle the Defendant to relief. The

record illustrates that the trial court considered all the sentencing factors and the relevant

facts and circumstances of the case. As stated above, the misapplication of an enhancement

factor does not invalidate the sentence imposed by the trial court. The trial court’s “within-

range” sentence is presumed reasonable unless the Defendant can show an abuse of

discretion. Here, the Defendant concedes the applicability of the other two enhancement

factors found by the trial court, and their application is supported by the record. Because the

trial court complied with the Sentencing Act and the proffered reasons for imposing the

sentence are supported by the record, we cannot conclude that the trial court abused its

discretion by sentencing the Defendant to serve nine years in the DOC.




                                       CONCLUSION


       Accordingly, the judgment of the trial court is affirmed.



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       _________________________________
       D. KELLY THOMAS, JR., JUDGE




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