        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 6, 2014

                    STATE OF TENNESSEE v. JOHN BRENT

                   Appeal from the Criminal Court for Shelby County
                        No. 11-04915    Paula Skahan, Judge


               No. W2013-01252-CCA-R3-CD - Filed October 21, 2014


The defendant, John Brent, was convicted of aggravated robbery and aggravated burglary,
for which he was sentenced, respectively, to thirty years at 100% and fifteen years at 45%,
the sentences to be served concurrently. On appeal, he argues that he is entitled to a new trial
because the court erred in allowing into evidence a photograph of a pair of scissors which
were similar to those in the victim’s home; that the evidence was insufficient to support
either of his convictions; and that his sentence is excessive. Following our review, we
conclude that the defendant’s claims are without merit and affirm the judgments of the trial
court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which C AMILLE R. M CM ULLEN,
J., joined. J OSEPH M. T IPTON, P.J., not participating.

Stephen Bush, District Public Defender; Phyllis Aluko (on appeal) and Lawrence White (at
trial), Assistant Public Defenders, for the appellant, John Brent.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Deputy Attorney
General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

        The defendant’s convictions resulted from his entering the victim’s home without
invitation, subduing the victim with a weapon, tying him up, and stealing the victim’s motor
vehicle, which later was recovered in Atlanta.
        The victim, John Stuart, testified that, at the time of the trial, he was 72 years old and
a resident of Memphis. He said that, on July 11, 2011, he was sitting on his front porch and
conversed with the defendant, who was walking on the sidewalk. The defendant came up
the steps of the victim’s home and asked for water. The victim went into the house, got a
glass of water, and, as he returned to the door, found the defendant had entered his house.
After a brief conversation, the defendant “grabbed [the victim] in a bear hug and said get
down on your knees.” The victim complied by going to the floor and, then, by emptying his
pockets, at the defendant’s further command. Then, the victim felt “pressure on [his] neck”
from “scissors, the end of the barrel of a pistol or what it was at that time.” The defendant
ordered the victim to undress and tied his hands and feet with twine in the kitchen. The
victim “waited a little while,” managed to get loose from the twine, saw the defendant had
left, looked out the door, and saw his Ford Explorer had been taken. Also taken were his
checkbook, $60 cash, a small knife, and his car keys. He estimated that the Ford Explorer
was worth about $2000. The victim described the defendant:

       [H]e had a cut . . . maybe 2 inches wide just behind where your watch goes.
       It was kind of puffy. It healed, you know, was a[n] older cut, but still kind of
       healed up in a puffy fashion. And then he had a tattoo that I could see. The
       beginning of a tattoo above the shirt that he was wearing. The starting of one
       right along here. Probably went on down.

     Further, the victim described the scissors which he thought the defendant used as a
weapon against him:

       [W]hen I was in the living room during that time, either when I dropped – as
       I [was] getting ready to drop down on the floor or as I was coming back up to
       go to the rear bedroom, I got a glimpse of a pair of scissors that he had in his
       possession, his hand. And I immediately said to myself he has my scissors.
       He probably got them off the piano. They were all steel, piercing type of
       scissors that could be used as a weapon. Average size.

               I think of a pair of scissors that you’ll see in a style shop or barber shop
       or hair salon, beauty shop. I think they still use scissors like that. These were
       – had some rust on them. And being in real estate, I manage property from
       time to time. And we go in and clean up and people will leave things. You
       know, move out and not take something. And that’s where these scissors
       came from. They had been around the house a few years.

      Without objection, the victim testified that a pair of scissors depicted in a photograph,
passed to him while he was testifying, were “very similar” to those which had been in his

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house:

         Q. Mr. Stuart, we spoke and you have described a pair of scissors; correct?

         A. Right.

         Q. I am going to pass up to you a picture of scissors to see if you recognize
         them and tell us what you find.

         A. Yeah. These are very similar to the scissors that I had in the house. The
         difference was my scissors had some rust on them. I don’t know about these
         handles. If that’s plastic handles, mine were steel.

         Q. To make it clear, those are not your scissors; correct?

         A. No, these are not my scissors. No.

         Q. Not the ones –

         A. We don’t know where they are.

         Q. But those are similar to the ones –

         A. But they’re similar. They’re similar. Yeah. The ones that barbers use and
         hair stylist[s]. Scissors – kind of like scissors they use. That’s what these
         scissors looked like.

         [THE STATE]: If we can mark that as an exhibit for the State.

         THE COURT: All right. Exhibit 4 is a photo of a pair of scissors.

                (Exhibit 4 marked and entered.)

         THE COURT: Ladies and gentlemen, just so you understand, Mr. Stuart has
         stated those are not his pair of scissors. Those are just to give you an
         illustration of scissors kind of similar. . . .

       Stuart said that he had later received a telephone call from a law enforcement officer
in Atlanta, asking if he had given the defendant permission to take his vehicle. He replied
that he had not.

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       Officer David Payment testified that he was assigned to the Memphis Police
Department Crime Scene Investigation Unit and that he responded to a call to the victim’s
residence. He arrived at the scene later than other officers and the only item with
fingerprints of value, which had not already been touched by others, was a drinking glass.
However, he was not able to detect any prints of value on the glass.

       Detective D.L. Wareham of the Atlanta Police Department testified that on July 18,
2011, he responded to a stolen vehicle call in downtown Atlanta. At the scene, he found a
green Ford Explorer which had been stopped for a traffic violation. Upon checking the
registration of the vehicle, officers found that it had been reported stolen in Memphis. The
driver of the vehicle told him that he had been given the vehicle by the defendant, who was
one of the passengers. The defendant said that the vehicle belonged to a relative in
Memphis and gave the name of the victim. Detective Wareham then telephoned the
Memphis Police Department and was told that the vehicle had been taken during a home
invasion robbery. He then telephoned the victim, who verified that the vehicle had been
taken during a home invasion. The victim said he was white, the man who took the vehicle
was black, as was the defendant, and they were not relatives.

        Sergeant Veronica Wimbley of the Memphis Police Department Robbery Bureau
testified that she went to the victim’s residence regarding his complaint. Based upon the
information he gave her, she put out a BOLO on his vehicle, meaning that officers should
be on the lookout for it. From the National Crime Information Center, she received
information that the vehicle had been located in Atlanta. Based upon information she
received from Atlanta police officers, she arranged a photographic lineup which included
persons who had been in the vehicle when it was stopped. From those photographs, the
victim identified the defendant as the man who entered his house and robbed him.

      Following this testimony, the State rested the case and the defendant did likewise,
without presenting proof.

                                       ANALYSIS

       On appeal, the defendant argues that the trial court erred in allowing into evidence
a photograph of scissors similar to those used by the defendant during the offenses; that the
evidence was insufficient to sustain the convictions for aggravated robbery and aggravated
burglary; and that the court erred in sentencing the defendant. We will review these claims.

                                I. Photograph of Scissors

       The defendant argues that the photograph should not have been admitted into

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evidence because it was not of the scissors which had been at the victim’s house; the
photograph made the scissors appear larger than they actually were; and it was of little
probative value.

       During the victim’s testimony, he said that the scissors in the photograph were “very
similar” to the ones which had been at his house but that his scissors had some rust on them
and steel, instead of plastic, handles. The trial court then instructed the jury: “[J]ust so you
understand, [the victim] has stated those are not his pair of scissors. Those are just to give
you an illustration of scissors kind of similar.”

        The admission of demonstrative exhibits generally lies within the discretion of the
trial court, whose decision will not be overturned absent a clear showing of abuse. State v.
West, 767 S.W.2d 387, 402 (Tenn. 1989); State v. Delk, 692 S.W.2d 431 (Tenn. Crim. App.
1985); State v. Wiseman, 643 S.W.2d 354, 365 (Tenn. Crim. App. 1982). To be admissible,
evidence must be relevant, i.e., “having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” See Tenn. R. Evid. 401. Relevant evidence, may,
however, be excluded “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.”

       It was made clear to the jury that the scissors in the photograph were not those which
the defendant had used in the crimes. The victim testified as to the differences, and the trial
court instructed that the scissors were “kind of similar.” Accordingly, we conclude that the
court did not error in admitting the photograph.

                              II. Sufficiency of the Evidence

        The defendant was convicted of aggravated burglary and aggravated robbery.
Aggravated burglary occurs when one enters the habitation of another, without consent, with
the intent to commit a felony, theft, or assault. Tenn. Code Ann. §§ 39-14-401; -402; -403.
The defendant also was convicted of aggravated robbery, the elements of which are set out
in Tennessee Code Annotated sections 39-13-401(a) and 39-13-402(a): “Robbery is the
intentional or knowing theft of property from the person of another by violence or putting
the person in fear . . . [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 or [w]here the
victim suffers serious bodily injury.”

      In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after

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viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,
604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the
weight and value to be given the evidence, and all factual issues are resolved by the trier of
fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict
by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        As to the State’s proof of the offenses, the victim identified the defendant both in a
series of photographs as well as in the courtroom during the trial as committing the offenses.
He testified that the defendant entered the victim’s home without consent and used what
appeared to be a weapon, a pair of scissors, in committing the crimes. Additionally, the
defendant was in the victim’s vehicle when it was located in Atlanta. From all of this, we
conclude that a reasonable jury could have determined that the defendant committed both
of the offenses.

                                       III. Sentencing

       The trial court explained in detail the bases for the sentencing imposed:

              Mr. Brent, you have an extensive history of criminal convictions since

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the age of nineteen involving car jackings, involving robberies, aggravated
robberies. You haven’t been able to stay out of trouble involving this type of
behavior since that time.

         This case, while you apparently didn’t use a gun, Mr. Stuart couldn’t
say if it was a gun or not, he felt something hard against the back of his neck,
possibly could have been a gun but he couldn’t say. He said the scissors were
missing from off the top of a shelf or piano or whatever it was, and he thought
that’s probably what happened.

        To your credit you did not harm him seriously as you could have done,
but you did terrorize the man, make him strip naked, take items from him
personally and then steal his vehicle. And because of your horrible record you
are facing such harsh punishment looking at your history as a juvenile it’s very
unfortunate that apparently you didn’t get the very serious help that you
needed with your mental health issue as far as according to what the record
says you’re homicidal and suicidal though ideations on a couple of occasions.

       But nonetheless your behavior is something that in society obviously
cannot be tolerated. I do not see any way that you will be rehabilitated, and
the only thing I can do is keep you off the streets.

      So on the charge of aggravated robbery, Class B felony, where you
have a prior conviction for aggravated robbery I do sentence you to the
maximum of thirty years Tennessee Department of Correction[] at one-
hundred percent. You will be eligible for sentencing credits if your behavior
warrants that.

       I sentence you on the aggravated burglary where you do have more
enhancement factors. The only enhancement factor I found on the aggravated
robbery was your prior history of criminal conduct as well as the prior similar
type of behavior as far as robberies, aggravated robberies.

       On the aggravated burglary I also find enhancement factors that you
treated the victim with exceptional cruelty and that you did employ a deadly
weapon during the commission of the offense I also sentence you to the
maximum of fifteen years as a persistent offender, forty-five percent.

       I’m not going to run these sentences consecutively. I do think thirty
years at one-hundred percent is sufficient for somebody at twenty-eight who

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       did not come in with a gun as far as the proof showed. I hope that when
       you’re released sometime in your fifties that maybe somehow you won’t be as
       dangerous as you are at this time in your life.

              The State has made a compelling argument to give you consecutive
       sentencing but I’m not going to do it at this time. Your sentence is thirty years
       at one-hundred percent.

        The length of a sentence “within the appropriate statutory range [is] 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 determining the proper sentence, the trial court must
consider: (1) any evidence received at the trial and 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, (5) any mitigating or statutory
enhancement factors, (6) statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee, (7) any statement that the
defendant made on his own behalf, and (8) the potential for rehabilitation or treatment. Tenn.
Code Ann. §§ 40-35-102, -103, -210; see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991);
State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

        Generally, challenges to a trial court’s application of enhancement and mitigating
factors are reviewed under an abuse of discretion standard. Bise, 380 S.W.3d at 706. We
must apply “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 707.
“[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 by the trial court within
the appropriate range should be upheld.” Id.

       The trial court may order multiple sentences to run consecutively if it finds by a
preponderance of evidence that one or more of the seven factors listed in Tennessee Code
Annotated section 40-35-115(b) apply, including that the defendant is a dangerous offender
whose behavior indicates little or no regard for human life and no hesitation about
committing a crime in which the risk to human life is high. Id. § 40-35-115(b)(4). When the
court bases consecutive sentencing upon its classification of the defendant as a dangerous
offender, it must also find that an extended sentence was necessary to protect the public
against further criminal conduct by the defendant and that the consecutive sentences
reasonably relate to the severity of the offense committed. State v. Lane, 3 S.W.3d 456,
460-61 (Tenn. 1999); State v. Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995). As to

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consecutive sentencing, our standard of review is abuse of discretion with a presumption of
reasonableness. State v. Pollard, 432 S.W.3d 851, 859-60 (Tenn. 2013).

       The defendant’s presentence report easily supports the sentences imposed by the trial
court. The defendant’s lengthy string of convictions began when he was 18, and it appears
that his releases upon completion of sentences were soon followed by convictions and
imprisonment for new convictions. He was particularly active in 2004, being convicted of
one count of aggravated robbery, four counts of robbery, and one count of attempted
robbery. It does not appear that he has ever been employed. Accordingly, based upon the
facts of the offenses which are the subject of this appeal, his prior criminal record of other
crimes of violence, and the reasoning of the trial court in imposing the sentences, we
conclude that the court did not err in this regard.

                                      CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the judgments of the
trial court.

                                           _________________________________
                                           ALAN E. GLENN, JUDGE




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