                                                                                       09/13/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                                July 24, 2018 Session

             STATE OF TENNESSEE v. KAYLECIA WOODARD

                 Appeal from the Criminal Court for Knox County
                    No. 104200 Steven Wayne Sword, Judge
                    ___________________________________

                          No. E2017-01893-CCA-R3-CD
                      ___________________________________


The defendant, Kaylecia Woodard, was convicted of two counts of aggravated robbery
and received an effective sentence of fifteen years. The sentence was vacated on appeal
and the case was remanded for re-sentencing. On remand, the defendant was sentenced
to ten years’ incarceration. On appeal the defendant contends the trial court erred in
applying enhancement factor (2) and in improperly weighing the enhancement factor.
Upon our review of the record, arguments of the parties, and pertinent authorities, we
affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT L. HOLLOWAY, JR., JJ., joined.

Forrest L. Wallace, Knoxville, Tennessee, for the appellant, Kaylecia Woodard.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Charme Allen, District Attorney General; and Philip Morton, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

      A. Trial Proceedings and Direct Appeal

       On June 16, 2014, the defendant, Anthony Smith, and Timeya Harris robbed the
Grocery and Tobacco Market in Knoxville, Tennessee. The defendant was the getaway
driver while Mr. Smith entered the store and Ms. Harris acted as the look-out. In 2015, a
Knox County jury convicted the defendant of two counts of aggravated robbery. The
criminal gang enhancement statute was used to increase the aggravated robbery charge
from a Class B felony to a Class A felony. Therefore, the trial court, after merging the
convictions, sentenced the defendant, as a Range I standard offender, to fifteen years on
each count. On direct appeal, this Court affirmed the defendant’s conviction and
summarized the facts, as follows:

                On [June 16, 2014], Anthony Smith robbed the store clerk,
         Mohammed Islam, at gunpoint. Mr. Islam described the offense at
         trial:

                What actually happened is I am working and my employee
         called me, I was talking to them. And one guy – with the bandana, he
         pull out the gun in front of me and said give the money. I said like
         two times, Hey, you play with me like I don’t believe it two times.
         And third time merely I’m upset and I have the money so I give him
         the money. And one lady is outside walking.

                Store employee Michael Puri was on the telephone with Mr.
         Islam when he overheard someone “say give me all the money.” Mr.
         Puri, who was visiting a friend in nearby Montgomery Village, ran
         toward the store. As he ran, he noticed an “out of place” vehicle “on
         the side street.” He said that he knew “the two families that live in the
         houses right there next to that street very well and . . . knew that that
         car wasn’t supposed to be there.” He saw “that the driver was really
         on the steering wheel,” which made him assume “that that could be
         the people that robbed” the convenience market. He “also noticed
         there was somebody in the back seat scuffling trying to maybe take
         off clothes.” Because he thought the car might be involved in the
         robbery, he shouted out the license plate number, which was then
         taken down by “neighbors.” Mr. Puri identified a photograph of the
         defendant as a person who “could fit the description of the driver” but
         admitted during cross-examination that he could not positively
         identify the defendant.

                Nineteen-year-old Anthony Smith testified that he committed
         the robbery at the Grocery and Tobacco Market with the assistance of
         the defendant and Timeya Harris. He said that the defendant planned
         the robbery, provided the handgun used in the robbery, and acted as
         the driver. Mr. Smith identified text messages he exchanged with the
         defendant while planning the robbery. Ms. Harris testified and
                                           -2-
         confirmed Mr. Smith’s testimony that the defendant planned the
         robbery and provided the handgun that Mr. Smith used to commit the
         robbery.

                 After committing the robbery, Mr. Smith returned to the
         defendant’s car and returned the gun to the defendant, who wiped the
         gun and put it into her backpack. Mr. Smith, Ms. Harris, and the
         defendant split the proceeds of the robbery three ways. Mr. Smith
         then changed clothes in the backseat of the defendant’s car and put his
         clothes into his backpack. Ms. Harris removed the black hat and polo
         shirt she had worn during the robbery. The defendant then drove to
         Montgomery Village, where they visited briefly with Ms. Harris’s
         sister. As they left, the police stopped the car.

                Knoxville Police Department Officer Dana Crocker effectuated
         a “felony stop” of a vehicle being driven by the defendant after
         confirming that it met the description of the getaway vehicle
         described by Mr. Puri. Both Mr. Smith and Ms. Harris were
         passengers in the vehicle. Inside the vehicle, Officer Crocker
         “observed a backpack in the rear seat . . . and it was open.” Inside the
         backpack she saw “red sweat pants, sweat shirt, which is what the
         information was given through dispatch . . . that one of the suspects
         had red on at the time of the incident.” Mr. Smith confirmed that that
         backpack and clothing belonged to him. Officers found a second
         backpack, which Ms. Harris identified as belonging to the defendant,
         in the trunk of the car. That bag contained the loaded .22 caliber
         revolver identified by Mr. Smith as the weapon used in the robbery
         and personal items belonging to the defendant, including the
         defendant’s iPhone and pieces of mail addressed to her.

               Based upon this evidence, the jury convicted the defendant as
         charged of alternative counts of aggravated robbery.

State v. Kaylecia Woodard, No. E2016-00676-CCA-R3-CD, 2017 WL 2590216, at *1-2
(Tenn. Crim. App. June 15, 2017).

       After affirming the defendant’s conviction of aggravated robbery, this Court
reviewed the defendant’s argument that the criminal gang enhancement statute was
unconstitutional. Id. at 6. The defendant argued that the statute was unconstitutionally
vague and overbroad and violated the first amendment “because it criminalizes
‘otherwise protected speech.’” Id. Declaring that this Court has repeatedly found the
                                          -3-
criminal gang enhancement statute to be unconstitutional, the judgment was modified to a
Class B felony and the case was remanded for re-sentencing on the modified judgment.
Id. at 11.

       B.     Sentencing on Remand

        During the September 21, 2017 re-sentencing hearing, the defendant argued she
should be given the minimum sentence for a Class B felony of eight years because her
age and lack of prior criminal history placed her at a low risk of recidivism. The
defendant objected to the application of Tennessee Code Annotated section 40-35-114(2),
which allows for an enhanced sentence upon a finding that the defendant was a leader in
the commission of a crime involving two or more criminal actors, claiming each
participant was equally culpable. If the trial court was to consider enhancement factor (2)
at all, the defendant argued the trial court should not place great weight on the factor.
The defendant also argued her admission of illegal drug use on her presentence report
was a sign of honesty about her substance abuse struggles and should not be used to
enhance her sentence. The defendant also noted her two co-defendants were given
sentences at the bottom end of the applicable range despite pleading guilty to an
additional robbery, while additional charges against the defendant were voluntarily
dismissed by the State at the end of trial.1 In support of mitigating her sentence, the
defendant stated she completed several programs since her arrest and incarceration,
including a victim impact program and the Focus Program. She also worked in the call
center at Tricor and as an assistant to the chaplain. According to the defendant, she was
in the process of obtaining her associate’s degree in theology. Finally, the defendant
submitted letters of support from family members asking for leniency due to the
defendant’s mental health issues.

        The State argued the defendant should receive the maximum sentence of twelve
years. The State noted the defendant was found to be the leader in the commission of the
offense during the initial sentencing hearing, supplying the transportation and gun used
during the robbery. The State argued the lack of weight given to enhancement factor (2)
at the original sentencing was due to the fact that the gang enhancement “pretty much
took care of that by enhancing it to an [Class] A [felony].” The State asked the trial court
to place “very great weight” on the fact the defendant was the leader of the robbery. The
State also argued defendant’s admission in her presentence report of the daily use of
illegal drugs was an additional enhancement factor to be considered. According to the


       1
        The Defendant was originally charged with two additional counts of aggravated robbery
stemming from a robbery of BJ’s Market in Knoxville, Tennessee on June 12, 2014. The
charges were later dismissed.
                                            -4-
State, the defendant had a high risk of recidivism due to her leadership role in the crime,
her gang affiliations, and the fact that she blamed the result of her trial on trial counsel.

        At the conclusion of the hearing, the trial court adopted its findings from the
original sentencing hearing. The trial court stated this case was different from a regular
getaway driver situation. Normally, a getaway driver would be the least culpable
member of the offense. Here, however, the defendant was fully involved in the crime and
was the leader in the commission of the offense. The trial court stated enhancement
factor (2) applied and “it’s pretty significant in this case, in my mind.” Although the trial
court found the defendant’s admission of drug use constituted criminal behavior and
could be used to enhance the defendant’s sentence, the trial court did not place much
weight to it because the defendant did not have any prior drug convictions. The trial
court found the defendant’s lack of prior criminal convictions of any kind was a
significant mitigating factor. However, the defendant’s age did not qualify as mitigation
because “she was old enough to know better.” Noting it would not be fair to sentence the
defendant to the maximum sentence when her co-defendants were given the minimum
sentence, the trial court sentenced the defendant to the middle of the range for a Class B
felony, ten years for each conviction. The convictions merged, resulting in an effective
ten-year sentence.

                                         Analysis

       On appeal, the defendant argues the trial court erred in applying the leadership
enhancement factor to her sentence and in giving the enhancement factor greater weight
at re-sentencing than the trial court had originally. The State argues the trial court
properly applied the enhancement factor and further contends the weight an enhancement
factor is given during sentencing is not a proper ground for appellate review. Upon our
review of the record, arguments of the parties, and pertinent authorities, we affirm the
sentence imposed by the trial court.

       In determining an appropriate sentence, a trial court must consider the following
factors: (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 mitigating and enhancement factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” Id. § 40-35-103(4).
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       Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See
Tenn. Code Ann. §§ 40-35-114, -210(c). Although the application of the factors is
advisory, a court shall consider “[e]vidence and information offered by the parties on the
mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-
210(b)(5). The trial court must also place on the record “what enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, in order to ensure
fair and consistent sentencing.” Id. § 40-35-210(e).

       When an accused challenges the length and manner of service of a sentence, this
Court reviews the trial court’s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). If a trial court misapplies an enhancing or mitigating factor in
passing sentence, said error will not remove the presumption of reasonableness from its
sentencing determination. Bise, 380 S.W.3d at 709. 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.” Id. at 709-10. Moreover, under such circumstances,
appellate courts 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 challenging the
sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).

       First, the defendant challenges the application of enhancement factor (2) arguing
she was merely one of three criminal actors, each with proportional culpability. The
defendant further contends Mr. Smith and Ms. Harris did not need additional
encouragement to commit the robbery, all three actors are approximately the same age,
and the three split the proceeds from the robbery equally. However, the record
contradicts the defendant’s contentions. Both Mr. Smith and Ms. Harris testified the
defendant planned the robbery, acted as the getaway driver, and provided the handgun
used during the commission of the robbery. The handgun was later found in a backpack
with the defendant’s belongings. The “enhancement for being a leader in the commission
of an offense does not require that the defendant be the sole leader but only that he be ‘a’
leader.” State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). Therefore, the
record supports the trial court’s application of enhancement factor (2).

       Second, the defendant argues her sentence is excessive because the weight given
to enhancement factor (2) was erroneous. The defendant asserts the relative weight given
to enhancement factor (2) was not consistent between the original sentencing hearing and
                                           -6-
the sentencing on remand. However, the defendant’s argument is not an applicable
ground for appeal as the weighing of mitigating and enhancing factors is left to the sound
discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The trial
court’s weighing of the various enhancing and mitigating factors is not grounds for
reversal under the revised Sentencing Act. Carter, 254 S.W.3d at 345 (citing State v.
Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim.
App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

        Even if this Court were to review the weighing of the enhancement factor, the
defendant’s sentence would still be upheld as presumptively reasonable. Here, the trial
court sentenced the defendant, a Range I, standard offender, to ten years, a length within
the appropriate range of eight to twelve years for a Class B felony. Tenn. Code Ann. §
40-35-112(a)(2). Our review of the record indicates that the trial court imposed a within
applicable range sentence of ten years after properly considering the evidence adduced at
trial and the sentencing hearing, the presentence report, the principles of sentencing, the
parties’ arguments, the nature and characteristics of the crime, the potential for
rehabilitation, and the evidence of enhancing factors. Tenn. Code Ann. §§ 40-35-103(5),
-114, -210(b). Therefore, the defendant’s sentence is presumed reasonable and we affirm
the trial court’s judgments.


        The defendant also argues her sentence is erroneous because it is greater than the
sentence imposed upon her two co-defendants. Although one purpose of our sentencing
act is to eliminate unjustified disparity in sentencing and provide for consistent treatment
of defendants, this Court has repeatedly held co-defendants are not entitled to identical
sentences and enhancement and mitigating factors may be taken into consideration when
determining an individual defendant’s sentence. Tenn. Code Ann. § 40-35-105(2); State
v. King, 432 S.W.3d 316, 322 (Tenn. 2014); State v. Yangreek Tut Wal, No. M2016-
01672-CCA-R3-CD, 2017 WL 2875925, at *4 (Tenn. Crim. App. July 6, 2017); State v.
Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim. App. 2001). The defendant is not entitled to
relief.

                                       Conclusion

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.



                                             ____________________________________
                                             J. ROSS DYER, JUDGE
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