        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              Assigned on Briefs May 6, 2003

         STATE OF TENNESSEE v. MARCUS ANTWONE GILLARD

                Direct Appeal from the Criminal Court for Madison County
                          No. 01-621    Donald H. Allen, Judge



                  No. W2002-01189-CCA-R3-CD - Filed October 21, 2003


The defendant was convicted of aggravated robbery, facilitating aggravated kidnapping, and
aggravated burglary. He now appeals these convictions contending that the (1) evidence was not
sufficient to support the convictions, (2) trial court erred in refusing to dismiss the charge of
aggravated kidnapping or in refusing to merge the charge of aggravated kidnapping with his
aggravated robbery charge, (3) trial court erred by denying him his right to effective cross-
examination by stating that questions regarding the prior inconsistent statements of the victim
would allow the admission of more damaging testimony against the defendant, and (4) trial court
erred in sentencing. We hold that the trial court erred in applying enhancement factor four;
however, the error was harmless. We affirm the judgments of the trial court in all other respects.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
JOE G. RILEY, JJ., joined.

Didi Christie, Brownsville, Tennessee (on appeal); George Morton Googe, District Public
Defender; and Vanessa D. King, Assistant Public Defender (at trial), for the appellant, Marcus
Antwone Gillard.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

       The defendant, Marcus Antwone Gillard, was convicted by a jury on February 19, 2002,
of aggravated robbery, facilitating aggravated kidnapping, and aggravated burglary. The
defendant was sentenced to twelve years for aggravated robbery. The trial court sentenced the
defendant to six years for facilitating aggravated kidnapping and six years for aggravated
burglary, to be served concurrently with each other and consecutively to his sentence for
aggravated robbery for an effective sentence of eighteen years. The defendant appeals his
convictions and contends that the (1) evidence was not sufficient to support the convictions, (2)
trial court erred in refusing to dismiss the charge of aggravated kidnapping or in refusing to
merge the charge of aggravated kidnapping with his aggravated robbery charge1, (3) trial court
erred by denying him his right to effective cross-examination by stating that questions regarding
the prior inconsistent statements of the victim would allow the admission of more damaging
testimony against the defendant, and (4) trial court erred in sentencing.

                                                         Facts

        During the late evening hours of November 14, 2000, Frederick Pearson left his home to
go to the store. His wife, Maranda Pearson, and fourteen-year-old sister-in-law, Alexis Reed,
stayed at the house while Mr. Pearson was gone. Upon returning to the house, Mr. Pearson was
confronted by two armed men demanding money. Mrs. Pearson heard noise outside and looked
out the door. She opened the door and saw her husband standing there with the two armed men.
One man had a gun pointed at her husband’s head, and the other had a gun at his side. As Mrs.
Pearson tried to communicate to her sister, Miss Reed, to call the police, one of the men, later
identified as Frederickas Neal, ordered Mrs. Pearson and Miss Reed to get down on the floor.

        While Neal held Ms. Pearson and Miss Reed at gunpoint, the defendant demanded
money from Mr. Pearson. The defendant took $140 from the bedroom dresser. The defendant
then ordered Mr. Pearson to get down on his knees, pointed a gun at his head, and demanded
more money. In an effort to get the men out of his house, Mr. Pearson told the defendant that he
had more money at his father’s house. However, his plan did not work. The defendant left with
Mr. Pearson to get more money while the other man, Neal, stayed at the house holding Mrs.
Pearson and Miss Reed at gunpoint on the floor. As the defendant and Mr. Pearson were driving
to his father’s house, Mr. Pearson asked the defendant what would happen if he did not have any
more money at his father’s house. The defendant said that he would have to kill him. The
defendant became upset when Mr. Pearson called him by his street name, “Little G.” The
defendant instructed Mr. Pearson to turn the vehicle around and head back to the house.
Approximately thirty minutes to one hour later, they returned to Mr. Pearson’s home where he
gave the defendant an additional $1000. The defendant told Mr. Pearson that if he ever “hear[d]
anything about [the] situation,” he would “come back and get [him] and [his] family.” The two
men then left with the money.

        The Pearsons did not report the incident to the police that night for fear of retaliation by
the men. Mrs. Pearson and her sister reported the incident to the police the next morning. Later
that day, Mr. Pearson also spoke with the police. They all gave statements to the investigator.

        The defendant was later charged and found guilty of aggravated robbery, facilitating
aggravated kidnapping, and aggravated burglary. One of the central issues at trial was the
identification of the defendant by the victims. Mrs. Pearson testified that she did not
immediately recognize the men. She stated that the defendant was wearing a bandana that


          1
            In the statement of issues presented section of the defendant’s brief and in the heading used by the defendant,
he co ntends that the ch arge sh ould have b een m erged with the aggravated burglary charge. Ho wever, his argument is
that it should have been merged with the aggravated robbery charge.
                                                           -2-
covered the middle portion of his face. He also had on a hood and a baseball cap. However, she
was able to see his eyes and the lower portion of his face. Mrs. Pearson testified that she knew
the defendant’s mother and that he resembled his mother. In court, she identified the defendant
as the man who wore the bandana that night.

       Miss Reed testified that, before the incident, she knew the defendant from the
neighborhood. She thought that she recognized him that night from his eyes. In a photo lineup
the day after the incident, she identified the defendant as the man wearing the bandana that night.
In court, Miss Reed again identified the defendant as the man involved in the incident on
November 14.

        Mr. Pearson testified that he recognized the defendant immediately on the night of the
incident. He stated that although the defendant was wearing some type of a scarf around the
mid-portion of his face, he recognized him by his eyes and cheekbones. He also recognized the
defendant’s voice. Mr. Pearson testified that after he returned to the house with the defendant,
his bandana or scarf fell from his face. At that time, he saw the defendant’s whole face. He
knew the defendant from the community before the incident. Mr. Pearson knew the defendant’s
mother and older brother and had seen the defendant three weeks prior to the robbery. He
identified the defendant in a photo lineup shown to him the day after the incident. Mr. Pearson
also identified the defendant in court as the perpetrator.

         The defense revolved around testimony by two witnesses that the defendant was in
Illinois on the night in question. Dexter Harvey testified that on November 10, 2000, he picked
up the defendant in Jackson, Tennessee and drove him to Aurora, Illinois. Mr. Harvey stated
that the defendant stayed with him at his home for approximately one week. He said that he was
with the defendant in Illinois on November 14. Tiffany Harvey, Mr. Harvey’s estranged wife,
testified that she saw the defendant at her home in Illinois the week before Thanksgiving. She
said that she did not know who he was but that she was sure it was the defendant at her home.

         At the conclusion of the trial, the defendant was found guilty of aggravated robbery,
facilitating aggravated kidnapping, and aggravated robbery and was given an effective sentence
of eighteen years.

                                            Analysis

                                   A. Sufficiency of Evidence

       The defendant argues on appeal that the evidence was insufficient to identify him as the
person who committed these offenses. When an appellant challenges the sufficiency of the
evidence, the standard of review is whether, after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,
61 L. Ed. 2d 560 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992); Tenn. R. App. P.
13(e). On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom. State v. Elkins, 102 S.W.3d

                                               -3-
578, 581 (Tenn. 2003). This Court will not reweigh the evidence, reevaluate the evidence, or
substitute its evidentiary inferences for those reached by the jury. State v. Carey, 914 S.W.2d
93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great weight is given to the
result reached by the jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).

        Once approved by the trial court, a jury verdict accredits the witnesses presented by the
State and resolves all conflicts in favor of the State. State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983). The credibility of witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted exclusively to the jury as trier of
fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19
(Tenn. Crim. App. 1996). A jury’s guilty verdict removes the presumption of innocence enjoyed
by the defendant at trial and raises a presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant then bears the burden of overcoming this presumption of guilt on
appeal. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991).

       Maranda Pearson testified that although she did not immediately recognize the
perpetrator, she later realized that he was the defendant. While the defendant was wearing a
bandana of some sort around the mid-portion of his face, his eyes and the lower portion of his
face were visible. In court, Ms. Pearson identified the defendant as the perpetrator. Ms. Pearson
knew the defendant from the neighborhood prior to this incident.

        Alexis Reed testified that she recognized the defendant that night from his eyes. The day
after the incident, she identified the defendant as the perpetrator in a photo lineup. In court, she
also identified the defendant as being responsible for the crimes. Miss Reed knew the defendant
prior to the incident.

        Probably the most convincing evidence of identification came from Frederick Pearson.
Mr. Pearson testified that he immediately recognized the defendant on the night of the incident.
He stated that although the defendant was wearing some type of a scarf around the mid-portion
of his face, he recognized him by his eyes and cheekbones. He also recognized the defendant’s
voice. Mr. Pearson testified that after he returned to the house with the defendant, his bandana
or scarf fell from his face. At that time, he saw the defendant’s entire face. He knew the
defendant from the community before the incident. Mr. Pearson knew the defendant’s mother
and older brother and had seen the defendant three weeks prior to the robbery. He identified the
defendant in a photo lineup shown to him the day after the incident. Mr. Pearson also identified
the defendant in court as the perpetrator.

        While the defendant did provide alibi evidence that he was in Illinois on the night of the
incident, the jury obviously chose not to give credit to this testimony by finding him guilty of all
three offenses. After viewing the evidence in the light most favorable to the State, we find that a
rational trier of fact could have found beyond a reasonable doubt that the defendant was the
person responsible for these crimes.

                         B. Merger or Dismissal of Kidnapping Charge

       The defendant argues that the aggravated kidnapping charge should have been dismissed
                                             -4-
or the facilitating aggravated kidnapping charge merged with the aggravated robbery conviction,
because the kidnapping was incidental to the robbery. The Tennessee Supreme Court has
recognized that a separate kidnapping conviction may violate due process when the kidnapping
is incidental to an accompanying felony and not “significant enough, in and of itself, to warrant
independent prosecution.” State v. Anthony, 817 S.W.2d 299, 306 (Tenn. 1991). It must first be
determined whether the movement or confinement used was beyond that necessary to commit
the accompanying felony. State v. Dixon, 957 S.W.2d 532, 535 (Tenn. 1997) (citing Anthony,
817 S.W.2d at 306). “If so, the next inquiry is whether the additional movement or confinement:
(1) prevented the victim from summoning help; (2) lessened the defendant’s risk of detection; or
(3) created a significant danger or increased the victim’s risk of harm.” Id.

        Holding the two women at gunpoint for thirty minutes to an hour after the defendant had
left with Mr. Pearson was not necessary to commit the robbery. The confinement of the women
at gunpoint for up to an hour clearly created a significant danger and an increased risk of harm.
Additionally, the defendant states in his brief that the women were held “to prevent detection.”
We agree. This obviously satisfies the second prong of the inquiry. The trial court did not err on
this issue.

                             C. Denial of Effective Cross Examination

        The defendant asserts that he was denied his right to effective cross-examination of
Frederick Pearson. In an effort to impeach Mr. Pearson, defendant’s trial counsel sought to elicit
testimony regarding a shooting incident that occurred after the offenses in this case. During a
bench conference, the trial court warned counsel that the line of questioning regarding the other
incident might open the door to damaging testimony. The trial court warned counsel that she did
not “want to do anything to hurt [her] client.” The trial court told her on two separate occasions
that continuing the line of questioning was her decision. The trial court told counsel to “do what
[she thought was] best.” Trial counsel stated to the court that “[she thought] the other shooting
would be more harmful than helpful.” Following the bench conference, trial counsel asked no
further questions regarding the other incident. Restrictions on a defendant’s right to cross-
examine a witness for impeachment purposes may violate the defendant’s constitutional right of
confrontation. State v. Sayles, 49 S.W.3d 275, 279 (Tenn. 2001). However, the trial court did
not restrict counsel’s right to cross-examine. The court only warned counsel that she might be
opening the door to testimony that “may or may not hurt” her client. Counsel then made the
decision not to pursue further cross-examination on the subject. The defendant’s argument on
this issue is without merit.

                                         D. Sentencing

       A defendant who challenges his or her sentence has the burden of proving the sentence
imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n
Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this Court’s duty to conduct
a de novo review of the record with a presumption the trial court’s determinations are correct
when a defendant appeals the length, range, or manner of service of his or her sentence. Tenn.
Code Ann. § 40-35-401(d). The presumption of correctness is conditioned upon the affirmative

                                               -5-
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999).

       The trial court, on the record, considered the evidence presented at trial and the
sentencing hearing, the pre-sentence report, the principles of sentencing under the Criminal
Sentencing Reform Act, the nature and characteristics of the criminal conduct involved in this
case, the evidence and arguments concerning mitigating and enhancing factors, and the
defendant’s amenability to rehabilitation. The defendant did not make a statement at the
sentencing hearing.

         On appeal, the defendant argues that the trial court erred in applying enhancement factors
four and nine. See Tenn. Code Ann. § 40-35-114(4) (victim’s vulnerability because of age), (9)
(possessed or employed a firearm or other deadly weapon).2 The State concedes that the trial
court should not have applied factor four, and we agree. Enhancement factor four can be applied
“if the circumstances show that the victim, because of his [or her] age or physical or mental
condition, was in fact ‘particularly vulnerable,’ i.e., incapable of resisting, summoning help, or
testifying against the perpetrator.” State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993).
Vulnerability of the victim “relates more to the natural physical and mental limitations of the
victim than merely to the victim’s age.” Id.; see also State v. Hayes, 899 S.W.2d 305 (Tenn.
Crim. App. 1994) (fact that the victim was twelve years old was not sufficient to support
application of factor four). The trial court applied factor four based solely on the fact that the
victim, Miss Reed, was only fourteen years old. There was no evidence presented that she was
“particularly vulnerable.” Factor four was applied only to the facilitating aggravated kidnapping
charge. The trial court erred in its application of factor four; however, the error was harmless.
The wrongful application of one or more enhancement factors by the trial court does not
necessarily lead to a reduction in the length of the sentence. State v. Winfield, 23 S.W.3d 279,
284 (Tenn. 2000). This determination requires that we review the evidence supporting any
remaining enhancement factors, as well as the evidence supporting any mitigating factors. State
v. Imfeld, 70 S.W.3d 698, 707 (Tenn. 2002). In addition to the “vulnerability” factor, the court
properly applied seven other enhancement factors to the charge. The evidence fully supported
the trial court’s enhancement of the sentence from three years to six years.

        The defendant also argues that the trial court erred in applying enhancement factor nine,
because possession of a firearm was a necessary element of the offenses charged. The trial court
applied factor nine only to the charge of aggravated burglary. Use or possession of a deadly
weapon is not necessary to commit the offense of aggravated burglary. See Tenn. Code Ann. §
39-14-403. “All that is required is the entry of a habitation with the intent to commit a felony.”
State v. Jeffrey Smith, No. E2002-01147-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 226, at
*17 (Tenn. Crim. App., at Knoxville, Mar. 18, 2003). This factor was properly applied.


         2
             Effective July 2002, the legislature amended Tennessee Code Annotated section 40-35-114 by adding
“terrorism” as an enhancement factor. 2002 Tenn. Pub. Acts, ch. 849, § 2(c). “Terrorism” is listed as factor (1), thus
renumbering the previous factors as (2) through (23). See Tenn. Code Ann. § 40-35-114 (Supp. 2002). Our opinion
refers to the enhance ment factors as they existed at the time of sentencing as spec ified in Tennessee C ode Anno tated
section 40-35-114 (1997 ).
                                                          -6-
        The defendant next asserts that the trial court erred by not applying the one mitigating
factor that was argued at sentencing. The defendant argues that mitigating factor six should have
been applied, because he was only eighteen years old at the time the offenses were committed.
See Tenn. Code Ann. § 40-35-113(6) (youthful offender). Although the State did not address
this issue in its brief, we agree with the trial court. “In determining whether this factor is to be
applied, courts should consider the concept of youth in context, i.e., the defendant’s age,
education, maturity, experience, mental capacity or development, and any other pertinent
circumstance tending to demonstrate the defendant’s ability or inability to appreciate the nature
of his conduct.” State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993); see also State v. John Leslie
George, No. M2001-01213-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 86, at *14 (Tenn.
Crim. App., at Nashville, Feb. 3, 2003) (court declined to apply factor to defendant who was one
day shy of his eighteenth birthday). In State v. Harley B. Upchurch, this Court held that the
“[d]efendant’s extensive involvement with the criminal and juvenile justice systems negate[d]”
the application of mitigating factor six. No. M2001-03170-CCA-R3-CD, 2002 Tenn. Crim.
App. LEXIS 766, at *11 (Tenn. Crim. App., at Nashville, Sept. 9, 2002). Although the
defendant was a young man, he had an extensive criminal history. The defendant has been in
and out of the court system since he was eight years old. In the ten years previous to the current
charges, he had been adjudicated for at least a dozen offenses including several assaults,
aggravated burglary, and weapons charges. We agree with the trial court that no mitigating
factors should apply.

       The defendant argues that the trial court erred in imposing consecutive sentencing in this
case. Generally, it is within the discretion of the trial court to impose consecutive sentences if it
finds by a preponderance of the evidence that at least one of following statutory criteria apply:
       (1) [t]he defendant is a professional criminal who has knowingly devoted such
            defendant’s life to criminal acts as a major source of livelihood;
       (2) [t]he defendant is an offender whose record of criminal activity is extensive;
       (3) [t]he defendant is a dangerous mentally abnormal person so declared by a
           competent psychiatrist who concludes as a result of an investigation prior to
           sentencing that the defendant’s criminal conduct has been characterized by a
           pattern of repetitive or compulsive behavior with heedless indifference to
           consequences;
       (4) [t]he 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;
       (5) [t]he defendant is convicted of two (2) or more statutory offenses involving
           sexual abuse of a minor with consideration of the aggravating circumstances
           arising from the relationship between the defendant and victim or victims, the
           time span of defendant’s undetected sexual activity, the nature and scope of
           the sexual acts and the extent of the residual, physical and mental damage to
           the victim or victims;
       (6) [t]he defendant is sentenced for an offense committed while on probation; or
       (7) [t]he defendant is sentenced for criminal contempt.

                                                -7-
Tenn. Code Ann. § 40-35-115(b).

        The defendant committed was first adjudicated delinquent at eight years of age. He was
back in court at age eleven for simple assault. When the defendant was twelve, he was
adjudicated delinquent for theft of property and aggravated burglary. While on probation for
those crimes, he committed two more assaults. He committed an additional assault a few months
later. At age fourteen, he was adjudicated delinquent for possession of illegal firearms. The
defendant was adjudicated delinquent for possession of crack cocaine, evading arrest, and
driving while unlicensed at age fifteen. A few months later, he committed aggravated assault
and possession of a weapon with intent to go armed. While on probation for that offense, he
committed the delinquent acts of driving without a license, failure to yield to blue lights, and
underage possession of alcohol and tobacco. After the defendant turned eighteen, he was
convicted of simple assault, resisting arrest, evading arrest, and criminal impersonation. The
current offenses were committed while he was on probation for the offenses committed after he
turned eighteen. There is no question that factor six of the consecutive sentencing criteria has
been met. See Tenn. Code Ann. § 40-35-115(b)(6) (committed offense while on probation). It is
also clear from the evidence that the defendant has an extensive history of criminal activity.
Consecutive sentencing was also appropriate under factor two. See Tenn. Code Ann. § 40-35-
115(b)(2) (extensive record of criminal activity).

       The trial court also found that the defendant was a dangerous offender. If the court
concludes the defendant is a dangerous offender under Tennessee Code Annotated section 40-
35-115(b)(4), it must make two further determinations in addition to applying general sentencing
principles. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). First, it must find an extended
sentence is necessary to protect the public from further criminal conduct by the defendant, and,
second, it must find consecutive sentencing to be reasonably related to the severity of the
offenses. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Due to the defendant’s history
of continuous criminal behavior, we agree with the trial court that the sentence imposed is
necessary to protect the public. Under any of the consecutive sentencing bases, the sentence
must be “justly deserved in relation to the seriousness of the offense” and “no greater than that
deserved for the offense committed.” See Tenn. Code Ann. §§ 40-35-102(1), -103(2); State v.
Lane, 3 S.W.3d 456, 460 (Tenn. 1999). Considering all of the evidence, we find that the
sentence imposed is reasonably related to the severity of the offenses and justly deserved.

        We hold that the trial court erred in its application of enhancement factor four; however,
the error was harmless. We affirm the judgment of the trial court in all other respects.




                                                     ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE


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