                                                                                     04/05/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                              January 17, 2018 Session

    STATE OF TENNESSEE v. MARCUS K. WILLIAMS AND COREY
                 ZIMBERLIST RUTLAND, JR.

               Appeal from the Criminal Court for Davidson County
                 No. 2015-C-1928 Cheryl A. Blackburn, Judge
                    ___________________________________

                          No. M2017-00509-CCA-R3-CD
                      ___________________________________


Defendants, Marcus K. Williams and Corey Zimberlist Rutland, Jr., were indicted for
aggravated robbery, attempted aggravated robbery and aggravated assault. Defendant
Williams was also indicted for aggravated burglary. After a jury trial, Defendants
Williams and Rutland were convicted of aggravated robbery and aggravated assault, and
Defendant Williams was convicted of aggravated burglary. At a sentencing hearing,
Defendants Williams and Rutland received identical sentences of eleven years for
aggravated robbery and five years for aggravated assault. Defendant Williams received a
five year sentence for aggravated burglary. On appeal, Defendant Williams challenges
the sufficiency of the evidence for his aggravated robbery charge. Defendant Rutland
argues that the trial court improperly excluded the content of a phone call between
Defendant Rutland and Defendant Williams, that the evidence was insufficient to support
his convictions under a theory of criminal responsibility, and that his sentence is
disproportionate and excessive. Finding that the only error by the trial court was
harmless, we affirm the judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J. and ROBERT L. HOLLOWAY, JR., J., joined.

Jay Umerley, Nashville, Tennessee, for the appellant, Marcus K. Williams.

Jessica M. Van Dyke, Nashville, Tennessee for the appellant, Corey Zimberlist Rutland,
Jr.
Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; Glenn R. Funk, District Attorney General; and Doug Thurman, Assistant
District Attorney General, for the appellee, State of Tennessee.



                                       OPINION



                          Factual and Procedural Background

       A Davidson County Grand Jury indicted Defendant Williams for one count of
aggravated burglary and Defendants Williams and Rutland for aggravated robbery,
attempted aggravated robbery, and aggravated assault. Prior to trial, the State chose to
nolle prosequi Count Three, attempted aggravated robbery. A trial was held on the
remaining counts. The following narrative of events is derived from the consistent
testimony of the State’s witnesses at trial.

        Robert Anderson, Michele Howard, and their one-year-old son lived in Room 146
at the Congress Inn. For a period of time, Defendants Rutland and Williams lived next
door in Room 145. Mr. Anderson saw the Defendants almost every day. On June 1,
2015, Mr. Anderson and Ms. Howard got into an argument. The volume of this argument
prompted Defendant Williams to knock on their window and ask them to “keep it down”
because they were “keeping his daughter awake.” Ms. Howard told Defendant Williams
to get away from the window and called him a “peeping Tom.” Mr. Anderson recounted
that Defendant Williams walked up to the door and shoved it open with his shoulder in
response to Ms. Howard’s statement. Once in the room, Defendant Williams raised his
hand as if he was going to hit Ms. Howard, but Mr. Anderson intervened to stop him.
Mr. Anderson said, “He didn’t actually throw a punch, but he made the gesture.” Ms.
Howard explained Defendant Williams tried to “swing” at her. Ms. Howard thought that
Defendant Williams was going to try to hit her. However, she stated that he did not make
contact. Mr. Anderson demonstrated the action by holding his arm up at shoulder level
and pushing his arm forward as if he were going to punch but did not make a full
punching motion. At the time that Defendant Williams made this motion, he was
partially inside the room, but his right leg was still outside the door. Mr. Anderson was
concerned that Defendant Williams would strike Ms. Howard. When he intervened, Mr.
Anderson told Defendant Williams that he “wasn’t going to fight him,” and Defendant
Williams walked away.



                                          -2-
        After this altercation, Mr. Anderson and Ms. Howard placed their son in the car
and went on a search for houses. Around this time, Mr. Anderson saw Defendant
Rutland arrive at the Congress Inn. Once Mr. Anderson and Ms. Howard returned in the
afternoon, Mr. Anderson and Ms. Howard noticed Defendants Williams and Rutland
outside. At this time, Defendant Williams was smoking a cigarette, and Defendant
Rutland was standing at the door for Room 145. As typical, Mr. Anderson backed his
white Cadillac into a parking spot. Mr. Anderson and Ms. Howard sat in the car for a
short period of time before Ms. Howard got out and opened the rear door of the car to get
their son out of the back seat. Mr. Anderson walked to the door of Room 146 to unlock
it, and Defendant Williams walked up behind him.

        The encounter escalated when Defendant Williams pulled out his gun and put it to
Mr. Anderson’s head. Mr. Anderson recalled Defendant Williams saying, “[G]ive me
your money.” Defendant Williams had a silver revolver that Mr. Anderson could see was
fully loaded. When Mr. Anderson felt the gun touch him, he tried to smack the gun out
of Defendant Williams’s hand. Defendant Williams attempted to dig into Mr.
Anderson’s pockets but was unsuccessful. Eventually, Mr. Anderson reached into his
pockets and gave around $420 to Defendant Williams. Defendant Williams also took Mr.
Anderson’s car keys. After taking the items, Defendant Williams waived the gun around
and pointed it at Ms. Howard while she held the one-year-old child before he backed off
and walked away. Ms. Howard was scared for the life of her son and herself when
Defendant Williams pointed the gun at them.

       While Defendant Williams held Mr. Anderson at gunpoint, Defendant Rutland
approached Ms. Howard and said “give me your phone” and “don’t call the police.” Ms.
Howard had her phone in her hand and put it in her back pocket. Ms. Howard thought
about calling the police, but refrained when Defendant Rutland asked for her phone. Ms.
Howard’s first instinct was to go to the front desk at the hotel and summon help, but she
was prevented from doing so when Defendant Rutland walked into her path and told her
not to move. After Defendant Rutland cut her off, Ms. Howard went back to the car to
put her son inside the car to keep him safe. However, Defendant Rutland shut the car
door and prevented Ms. Howard from getting inside the vehicle. This is contrary to Mr.
Anderson’s recollection that Ms. Howard got into the passenger’s seat of the car. Ms.
Howard admitted that Defendant Rutland did not place his hands on her, but she claimed
that he was less than two feet away from her. Ms. Howard could not recall overhearing
any communication between Defendant Williams and Defendant Rutland. Both
Defendants walked away at the same time.

       Once Defendants were gone, Mr. Anderson, Ms. Howard, and their child went
inside their room. At that point, the police were called. Moments after getting inside the
room, Mr. Anderson saw Defendants Williams and Rutland leave. Ms. Howard recalled
                                           -3-
Defendant Rutland leaving in a different vehicle from Defendant Williams. Mr.
Anderson did not specify. In order to determine the full names of the Defendants, Ms.
Howard looked them up on Facebook. Mr. Anderson and Ms. Howard independently
identified Defendant Rutland and Defendant Williams in a photographic line-up.

       Detective Jack Stanley of the Metropolitan Nashville Police Department was
dispatched to the Congress Inn and was met there by Officer Joshua Reece. Officer
Reece briefed Detective Stanley on the incident and then Officer Reece spoke with Mr.
Anderson, Ms. Howard, and Shanquita Jeter. Detective Stanley stated that the witnesses
were able to identify the perpetrators by their first names immediately when he spoke
with them. After speaking with the witnesses, Detective Stanley retrieved the
surveillance footage from the Congress Inn. When Detective Stanley inquired about who
had rented room 145, he obtained a handwritten receipt as well as photocopies of the
driver’s licenses of Defendant Williams and Shanquita Jeter. Detective Stanley testified
that between $400 and $420 in addition to a set of car keys were taken from Mr.
Anderson, but neither the money nor the keys were recovered.

       Defendant Williams chose to testify on his own behalf. He stated that he lived in
room 145 at the Congress Inn with Ms. Jeter, his daughter, and Defendant Rutland. Mr.
Anderson and Ms. Howard lived next door, and within the first few weeks of moving to
the Congress Inn, Defendant Williams began having issues with the noise coming from
Mr. Anderson and Ms. Howard’s room. Defendant Williams could “constantly hear the
arguing and fighting as if someone was yelling . . . . [T]he wall would be shaking where .
. . my head was at.” He said, “It prevented me from sleeping, it prevented me and my
daughter from sleeping, it prevented me from having peace. It agitated me, and it
angered me.” Defendant Williams recalled asking Mr. Anderson and Ms. Howard to
keep the noise down, but nothing changed.

        Defendant Williams stated that, on the day of the crimes, he went to the window
of Room 146 to ask Mr. Anderson and Ms. Howard to be quiet. At this point, Ms.
Howard made a statement that Defendant Williams perceived as a threat. He indicated
that this threat was a statement that did not include the words “peeping Tom.” Defendant
Williams went back to his room. Later, he returned to Room 146. This time Defendant
Williams stated that he simply opened the door. According to Defendant Williams, the
door was unlocked and he opened it by simply turning the handle. Once the door was
open, Defendant Williams said, “If you thought Mr. Anderson was beating your a**, I
would knock your a** out.” At that point, Mr. Anderson stepped toward Defendant
Williams. Upon review of the video, Defendant Williams noted that his arm was cocked
back in response to the arguing with Mr. Anderson and Ms. Howard. Defendant
Williams stated that there was not a physical altercation between him and Mr. Anderson
or Ms. Howard. Once he exited their room, he went back to his room.
                                           -4-
        On cross-examination by the State, Defendant Williams admitted that he entered
Mr. Anderson and Ms. Howard’s hotel room without permission and drew his arm back
as if he were going to throw a punch. However, Defendant Williams maintained that he
never threw a punch, but only jerked or cocked his arm back. Defendant Williams
admitted that it was his intent to intimidate Mr. Anderson and Ms. Howard when he
cocked his arm back.

      With regard to the second encounter, Defendant Williams described the events that
occurred as follows:

      Mr. Anderson pulls up in his vehicle. He backs his car in. I’m standing
      outside of my room. I wait for Mr. Anderson to get out of his car. I walk
      over to Mr. Anderson, and I state to him, what are we going to do about the
      noise. That I asked him, I said, what is that s**t you’re talking. He looks
      at me like . . . he doesn’t even care. I then pulled the weapon from my hip,
      and I pointed the weapon at Mr. Anderson’s head. And I threatened him.

Defendant Williams denied taking anything from Mr. Anderson. Defendant Williams
admitted that he had made a mistake and maintained that he did not intend to hurt
anyone. Rather, his intention was to scare Mr. Anderson and Ms. Howard.

       During a review of the video of the second altercation during the State’s cross-
examination, Defendant Williams admitted that he changed his position relative to Mr.
Anderson, but denied reaching into Mr. Anderson’s pocket. Defendant Williams also
denied any type of exchange or acceptance of anything from Mr. Anderson. Defendant
Williams admitted to pointing the firearm at Ms. Howard while she was holding her one-
year-old son. However, he said that this was in reaction to her making statements toward
him. At the time that he pointed the firearm at Ms. Howard, Defendant Williams agreed
that Defendant Rutland was standing beside her. When speaking about the vehicles
leaving the scene, Defendant Williams stated that Defendant Rutland was inside the SUV
with him. He stated that the individual leaving in the white car was a different individual
that was in his room.

       On cross-examination by Defendant Rutland’s counsel, Defendant Williams stated
that Defendant Rutland was Ms. Jeter’s brother. Thus, Defendant Williams’s and Ms.
Jeter’s daughter would be Defendant Rutland’s niece. Without objection, Defendant
Rutland’s counsel engaged in the following exchange with Defendant Williams:

      Q.     And did you call and ask him to come over that day?

                                           -5-
      A.    Yes. I had called Mr. Rutland to ask him could he come and get
      [Defendant Williams’s daughter].

             ....

      Q.    You said, will you come and get [Defendant Williams’s daughter]?
      A.    Yes, I did.
      Q.    What did you say?
      A.    I called Mr. Rutland, and I stated to him that he should come get my
      daughter because I felt that something was fixing to happen.
      Q.    And were you referencing something with the neighbors?
      A.    Yes, I was.

       Further cross-examination revealed that Defendant Williams did not tell
Defendant Rutland about his intentions when confronting Mr. Anderson and Ms.
Howard. Additionally, Defendant Williams claimed that he did not tell Defendant
Rutland about the gun. Defendant Williams maintained that he did not instruct
Defendant Rutland to do anything nor did he ask for Defendant Rutland’s help. He did
not recall any communication between himself and Defendant Rutland prior to the crime.
Defendant Williams revealed that he did not know the reason for Defendant Rutland’s
actions during the altercation.

       Rachel Blair-Nash testified during Defendant Rutland’s case-in-chief. Ms. Blair-
Nash, Defendant Rutland’s ex-girlfriend, testified that she and Defendant Rutland were
watching television at their apartment when Defendant Rutland received a phone call
from Defendant Williams. Ms. Blair-Nash brought up the phone call in response to the
question “[D]o you recall what happened that led you to go to the Congress Inn that
day?” The trial court immediately sustained an objection to what was said during the
phone call, but Ms. Blair-Nash testified that in response to the phone call, she, her two
children, and Defendant Rutland went to the Congress Inn to pick up “the baby.”

       Upon arrival at the Congress Inn, Ms. Blair-Nash stayed in her car to make some
phone calls, but Defendant Rutland went inside a hotel room. After a few moments, Ms.
Blair-Nash and her children joined Defendant Rutland in the room. Defendant Williams
arrived a bit later and had his daughter with him. After some conversation, Defendants
Williams and Rutland exited the hotel room. Not long after they exited, Ms. Blair-Nash
looked out the window to see Defendant Rutland’s location. At that point, Ms. Blair-
Nash observed him talking to Defendant Williams’s “female neighbor.” Ms. Blair-Nash
was ready to leave and got her children ready to go. Soon, Defendant Williams entered
the room, and then Ms. Blair-Nash and her children left with Defendants Williams,
Defendant Williams’s daughter, and Defendant Rutland.
                                          -6-
        At no point did Ms. Blair-Nash hear Defendants Williams and Rutland talk about
illegal activity. She never saw either of them with a gun. She also did not receive any
money from Defendant Rutland nor did she observe any money changing hands.

        After the testimony of Ms. Blair-Nash, Defendant Rutland took the stand and
recounted going to the Congress Inn to pick up his niece after receiving a phone call from
Defendant Williams. Defendant Rutland’s counsel asked, “[W]hat caused you to initially
go to the Congress Inn that day?” Before Defendant Rutland was able to state the content
of the phone call, the State objected saying merely, “object to what Mr. Williams said,”
and the trial court sustained the objection without hearing any argument or response from
the Defense. Defendant Rutland also talked about a second phone call that he made to
Defendant Williams while at the Congress Inn. Defendant Rutland brought up this phone
call in response to his counsel asking, “[W]hy was it that you were going to wait?” As
Defendant Rutland began to mention the content of that phone call in his explanation as
to why he did not leave the Congress Inn, the State said, “Objection,” and the trial court
told Defendant Rutland, “Do not say what someone else says, okay?” Defendant
Rutland’s counsel again inquired as to why Defendant Rutland stayed at the Congress Inn
and he replied, “I came to get my niece.”

       Defendant Rutland explained that he went into Defendant Williams’s room at the
Congress Inn to await Defendant Williams’s arrival. Eventually, Ms. Blair-Nash and her
children joined him. After a few minutes, Defendant Williams arrived at the hotel room
with his daughter. Defendants Williams and Rutland talked and smoked a cigarette
together outside before Mr. Anderson and Ms. Howard arrived. As Mr. Anderson and
Ms. Howard arrived, Ms. Blair-Nash told Defendant Rutland that she was ready to leave.
So, he responded by telling her to get the children ready. At this point, Defendant
Rutland was standing at the door.

      Next, he observed Ms. Howard get out of a vehicle and go to the back door. All
the while, he also saw Defendant Williams approach Mr. Anderson and begin speaking to
him. During that conversation, Defendant Williams pulled out a gun. Defendant Rutland
had no knowledge that Defendant Williams owned or possessed a firearm. In reaction to
Defendant Williams’s drawing of the firearm, Defendant Rutland instinctively walked
toward Ms. Howard. No one told Defendant Rutland to do this. Rather, he claimed it
was his reaction. Upon approaching Ms. Howard, Defendant Rutland asked for her
phone. In response, Ms. Howard placed the phone behind her back. At no point did
Defendant Rutland touch Ms. Howard. However, Defendant Rutland touched the car
when he shut the car door. Defendant Rutland admitted that he walked in front of Ms.
Howard when she attempted to walk away. He further admitted that he asked for her

                                           -7-
phone to prevent her from calling the police because he did not want to be arrested nor
did he want to see Defendant Williams arrested.

        Defendant Rutland was aware that Defendant Williams had conflicts with his
neighbors, but he knew neither that the conflicts had risen to this level of intensity nor
that this altercation would occur. Defendant Rutland never saw any money taken from
Mr. Anderson. He did not receive any money. Once Defendants Williams and Rutland
left the Congress Inn, they did not speak about what had just occurred. Defendant
Rutland admitted that he lied to the police when he initially told them that Defendant
Williams did not have a gun.

        On cross-examination, the State was allowed to question Defendant Rutland on the
content of a phone call between him and Defendant Williams which the trial court barred
from admission on direct examination. Defendant Rutland’s Counsel objected and
protested that the statements were previously ruled to be hearsay. However, it appears
that the trial court determined that the Defense had portrayed Defendant Rutland as
someone without knowledge that there was a problem and that the statement made in the
police interview which disclosed the content of the telephone call was admissible for
impeachment purposes. Thereafter, Defendant Rutland admitted that he told the police in
his interview that Defendant Williams told him “something going on, fixing to go down,
fixing to go down.” In addition to his statements to the police about the phone call, the
State cross-examined Defendant Rutland on numerous statements that he made to the
police which he admitted were untruthful. Defendant Rutland also admitted that he
understood the phrase “something is going down” as meaning there was about to be a
fight. On re-direct examination, Defendant Rutland’s counsel questioned him about the
phone call referenced by the State on cross-examination and its contents.

      During Defendant Rutland’s counsel’s closing argument, she commented on the
content of the phone call when she said the following:

      I think it’s really important to point out that Mr. Rutland fully admits to
      you, I got a phone call that day, I knew I needed to go pick up Baby Jade, I
      was told that something was fixing to go down, I didn’t know anything
      else. He had no idea of what was about to ensue.

Defendant Rutland’s counsel further referenced the content of the phone call when she
said, “You have no proof before you that he had any knowledge of that other than the
nonspecific statement that something is fixing to go down.”




                                           -8-
      After deliberation, the jury found Defendant Williams guilty of one count of
aggravated burglary and both Defendants Williams and Rutland guilty of one count of
aggravated robbery and one count of aggravated assault.

        At the sentencing hearing, Defendant Williams testified and Defendant Rutland
gave a short allocution expressing remorse. The trial court found that four enhancement
factors listed in Tennessee Code Annotated section 40-35-114 applied to Defendant
Williams. The trial court applied enhancement factor one that “[t]he defendant has a
previous history of criminal convictions or criminal behavior, in addition to those
necessary to establish the appropriate range”; enhancement factor two that “[t]he
defendant was a leader in the commission of an offense involving two (2) or more
criminal actors”; enhancement factor three that “[t]he offense involved more than one (1)
victim”; and enhancement factor eight that “[t]he defendant, before trial or sentencing,
failed to comply with the conditions of a sentence involving release into the community.”
See T.C.A. § 40-35-114(1),(2),(3),(8). After finding that no mitigating factors applied
and that Defendant Williams was not a candidate for consecutive sentencing, the trial
court sentenced Defendant Williams to five years on Count One, aggravated burglary,
eleven years at eighty-five percent on Count Two, aggravated robbery, and five years on
Count Four, aggravated assault.

       The trial court found that four enhancement factors applied to Defendant Rutland.
The trial court applied enhancement factors one, three, and eight as listed above.
Additionally, the trial court applied enhancement factor thirteen, which states “At the
time the felony was committed . . . the defendant . . . [was] [o]n any other type of release
into the community under the direct or indirect supervision of any state or local
governmental authority . . . .” T.C.A. § 40-35-114(13)(G). After finding that no
mitigating factors applied and that Defendant Rutland was not a candidate for
consecutive sentencing, the trial court sentenced Defendant Rutland to eleven years at
eighty-five percent on Count Two and five years on Count Four.

       Both defendants filed timely motions for new trial presenting the same issues as
presented on this appeal. The trial court denied both motions for new trial and this appeal
followed.

                                         Analysis

                                        I. Hearsay

      Defendant Rutland argues that the trial court erred when it excluded the content of
Defendant Williams’s phone call conversation with Defendant Rutland during Defendant
Rutland’s direct examination because the exclusion of the content of the phone call
                                            -9-
denied Defendant Rutland the ability to present a defense and the content of the phone
call was non-hearsay. The State responds by arguing that the trial court properly
sustained the State’s two hearsay objections and that Defendant Rutland was not deprived
of the opportunity to present a defense. While we do not completely agree with either
party, we discern no reversible error by the trial court.

        In our analysis of this issue, we first turn to whether the trial court made the proper
evidentiary ruling. “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). Generally, hearsay is inadmissible absent an applicable
exception. Tenn. R. Evid. 802. However, out-of-court statements offered to show the
effect on the listener, but not the truth of the matter asserted, are admissible as
definitional non-hearsay. See Neil P. Cohen, Sarah Y. Sheppeard & Donald F. Paine,
Tennessee Law of Evidence, § 8.01[7] (4th ed. 2000).

       “The standard of review for rulings on hearsay evidence has multiple layers.”
Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). First, a trial court must determine
if a statement is hearsay. Id. If the statement is hearsay, then the trial court must
determine if it fits within one of the exceptions. Id. A trial court may need to receive
evidence and hear testimony to make these determinations. Id. The trial court’s factual
and credibility findings made during the course of ruling on an evidentiary motion “are
binding on the reviewing court unless the evidence in the record preponderates against
them.” Id. “Once the trial court has made its factual findings, the next questions —
whether the facts prove that the statement (1) was hearsay and (2) fits under one of the
exceptions to the hearsay rule — are questions of law subject to de novo review.” Id.
(citing State v. Schiefelbien, 230 S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v.
Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App. 2005)).

        The record of the trial proceedings is filled with discussions amongst the trial
court, the State, and both defense attorneys about various statements being hearsay, the
definition of hearsay, and hearsay exceptions. In order for a statement to be hearsay, it
must meet two requirements. See Tenn. R. Evid. 801(c). First, it must be “a statement,
other than one made by the declarant while testifying at the trial or hearing.” Id. Second,
and most importantly for this case, the statement must be “offered in evidence to prove
the truth of the matter asserted.” Id.

       With every hearsay objection, there must be a determination by the trial court of
whether the statement which is the subject of the objection meets the two parts of the
hearsay definition. Though we do not know the exact content of the entire phone call
because no offer of proof was made by Defendant Rutland’s counsel, the record does
reveal portions of the content of the phone call. The record reveals part of the phone call
                                             - 10 -
included Defendant Williams asking Defendant Rutland to come to the Congress Inn to
pick up his niece. That portion of the phone call was introduced without objection during
the cross-examination of Defendant Williams by Defendant Rutland’s counsel but
excluded during the direct examination of Defendant Rutland. Only on “rare occasions”
is a question hearsay. See Cohen, Sheppeard & Paine, supra, § 8.01 [10] n.34 (emphasis
added). If the record does not suggest that a question was intended as an assertion, the
question is not a “statement” for the purposes of hearsay. See State v. Flood, 219 S.W.3d
307, 314-15 (Tenn. 2007). Thus, the portion of the phone call contents that consisted of a
question by Defendant Williams asking Defendant Rutland to pick up his niece is not
hearsay.

       It was this question that Defendant Rutland wanted the jury to hear to support his
reasoning for being at the Congress Inn in the first place – to pick up a child. The second
portion of the statement, indicating that Defendant Rutland was told by Defendant
Williams that “something is fixing to go down,” presented Defendant Rutland with a
problem. By the end of the trial, both statements were known to the jury.

       It is clear from the record that the portion of the content of the phone call between
Defendants Williams and Rutland where Defendant Williams mentions that something is
“fixing to go down” meets the first piece of the hearsay definition. It is a statement and
the phone call was not made by the declarant during his testimony at the trial. However,
the “fixing to go down” portion of the content of the phone call does not fit within the
second part of the definition of hearsay. It is obvious from the record that the content of
the phone call was not being “offered in evidence to prove the truth of the matter
asserted.” Rather, the record shows that the content of the phone call was being elicited
by Defendant Rutland’s counsel to show an effect on Defendant Rutland.

       Both times that the content of the phone call was brought up on direct
examination, it was in response to a question asking for an explanation of Defendant
Rutland’s actions. The record shows that the content of the phone call is the reason why
Defendant Rutland initially went to the Congress Inn and why he waited for Defendant
Williams at the Congress Inn. The State inquired about the content of the phone call on
cross-examination of Defendant Rutland and revealed that the content contained a
message that something was “fixing to go down.” The content of the phone call had
probative value outside of any assertion in the statements. Unless these statements were
being offered on direct examination to prove that something was indeed “fixing to go
down,” they would not be offered for the truth of the matter asserted. The timing and
context in which the content of the phone call was brought up illustrates that these
statements were not being offered for the truth of the matter asserted, and they were not
hearsay.

                                           - 11 -
       Error by the trial court does not automatically entitle Defendant Rutland to relief.
Defendant Rutland’s counsel was able to address the contents of the phone call during her
cross-examination of Defendant Williams and re-direct examination of Defendant
Rutland. Also, Defendant Rutland’s counsel used the contents of the phone call during
her closing argument. The jury got to hear that Defendant Rutland was asked to pick up
his niece and that he knew that something was about to go down. It appears that
Defendant Rutland asserts in his brief that he was prejudiced because the State was
allowed to bring up the contents of the phone call on cross-examination after it had been
excluded on his direct examination. While being impeached usually has some prejudicial
effect on the jury’s view of a witness’s testimony, we do not agree with Defendant
Rutland’s argument that it created the appearance that something was hidden from the
jury during Defendant Rutland’s direct examination. If anything, it would appear that the
State was trying to hide information because the State objected. Thus, we determine it is
more probable that the error did not have a substantial and injurious impact on the jury’s
decision making. See also State v. Rodriguez, 254 S.W.3d 361, 373-74 (Tenn. 2008)
(holding that harmless error exists only where it is more probable than not that the error
affected the verdict or judgment); Tenn. R. App. P. 36(b). Accordingly, the trial court’s
error was harmless.

        It is hard to see how Defendant Rutland could have been denied the ability to
present a defense, when the content of the phone call was introduced elsewhere during
the trial and used in closing argument. Looking to the factors from State v. Flood, the
introduction of the content of the phone call on Defendant Rutland’s direct examination
was not critical because it was entered elsewhere. See State v. Flood, 219 S.W.3d 307,
316-19 (Tenn. 2007) (setting forth the factors to be considered on a right to present a
defense issue as (1) whether the excluded evidence is critical to the defense; (2) whether
the evidence bears sufficient indicia of reliability; and (3) whether the interest supporting
exclusion of the evidence is substantially important.) Even though the statements were
made in a telephone conversation between the Defendants in this case, one indicium of
reliability is present because, at different points in the trial, both parties wanted to admit
the statements. Id. However, this indicium of reliability is slight and merely renders the
factor neutral. Even if the trial court erred, the lack of an interest supporting exclusion
does not overcome the shortcomings on the other two factors. The noncritical nature of
the evidence heavily outweighs the neutrality of its reliability and the lack of an interest
supporting exclusion. Thus, Defendant Rutland’s right to present a defense was hardly
affected by the exclusion of the phone call’s contents during his direct examination.

                               II. Sufficiency of the Evidence

       Well-settled principles guide this Court’s review when a defendant challenges the
sufficiency of the evidence. A guilty verdict removes the presumption of innocence and
                                            - 12 -
replaces it with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992). The burden is then shifted to the defendant on appeal to demonstrate why the
evidence is insufficient to support the conviction. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The relevant question the reviewing court must answer is whether any
rational trier of fact could have found the accused guilty of every element of the offense
beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979). On appeal, “the State is entitled to the strongest legitimate view of the
evidence and to all reasonable and legitimate inferences that may be drawn therefrom.”
State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). As such, this Court is precluded from
re-weighing or reconsidering the evidence when evaluating the convicting proof. State v.
Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990). “In the absence of direct evidence, a criminal offense
may be established exclusively by circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (citing Duchac v. State, 505 S.W.2d 237, 241 (Tenn.
1973)). Moreover, we may not substitute our own “inferences for those drawn by the
trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further,
questions concerning the credibility of the witnesses and the weight and value to be given
to evidence, as well as all factual issues raised by such evidence, are resolved by the trier
of fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
“The standard of review ‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” Dorantes, 331 S.W.3d at 379 (quoting State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)).

                A. Defendant Williams’s Aggravated Robbery Conviction

        As charged in this case, aggravated robbery is a robbery “[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.” T.C.A. § 39-13-402(a)(1). “Robbery is the
intentional or knowing theft of property from the person of another by violence or putting
the person in fear.” T.C.A. § 39-13-401(a). “A person commits theft of property if, with
intent to deprive the owner of property, the person knowingly obtains or exercises control
over the property without the owner’s effective consent.” T.C.A. § 39-14-103(a).

       Viewed in a light most favorable to the State, the evidence shows that Defendant
Williams pointed a loaded silver revolver to Mr. Anderson’s head and took around $400
from him along with Mr. Anderson’s car keys. While Defendant Williams maintains that
he did not have the intent to rob Mr. Anderson and that he did not take anything, Mr.
Anderson and Ms. Howard testified that Defendant Williams took money from Mr.
Anderson. Also, Mr. Anderson testified that Defendant Williams took his car keys. As
we have reiterated time and time again, the determination of issues of witness credibility
and the resolution of conflicts in testimony rest squarely within the province of the jury.
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State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A rational juror could have found that
Defendant Williams used a deadly weapon to intentionally or knowingly deprive Mr.
Anderson of approximately $400 and his car keys. Thus, the evidence is sufficient to
support Defendant Williams’s conviction for aggravated robbery.

                     B. Defendant Rutland’s Criminal Responsibility

       Defendant Rutland challenges the sufficiency of the evidence for his convictions
under a theory of criminal responsibility. As the State points out, Defendant Rutland
does not deny that an aggravated robbery and aggravated assault occurred. Defendant
Rutland merely argues that he did not possess the intent to promote or assist in the
commission of the offenses committed by Defendant Williams. The State argues that the
circumstantial evidence presented at trial established that Defendant Rutland had the
intent to promote or assist Defendant Williams in the commission of the offense. We
agree with the State.

       A defendant can be criminally responsible “for an offense committed by the
conduct of another, if . . . [a]cting with intent to promote or assist the commission of the
offense, or to benefit in the proceeds or results of the offense, the person solicits, directs,
aids, or attempts to aid another person to commit the offense.” T.C.A. § 39-11-402(2).
In State v. Dickson, our supreme court explained:

       Criminal responsibility is not a separate crime, but “a theory by which the
       State may prove the defendant’s guilt of the alleged offense . . . based upon
       the conduct of another person.” State v. Lemacks, 996 S.W.2d 166, 170
       (Tenn. 1999). Criminal responsibility represents a legislative codification
       of the common law theories of aiding and abetting and accessories before
       the fact. Id. at 171 (citing State v. Carson, 950 S.W.2d 951, 955 (Tenn.
       1997)). “No particular act need be shown, and the defendant need not have
       taken a physical part in the crime in order to be held criminally
       responsible.” State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim. App.
       2002).

413 S.W.3d 735, 744 (Tenn. 2013). Accordingly, “defendants convicted under a theory
of criminal responsibility are considered to be principal offenders, just as if they had
committed the crime themselves.” State v. Sherman, 266 S.W.3d 395, 408 (Tenn. 2008)
(citing Carson, 950 S.W.2d at 954).

      Viewed in a light most favorable to the State, the evidence shows that Defendant
Rutland was standing outside with Defendant Williams at the time that Mr. Anderson and
Ms. Howard pulled into the parking lot. Shortly after Defendant Williams approached
                                             - 14 -
Mr. Anderson with the gun, Defendant Rutland approached Ms. Howard, asked for her
cellphone, and told her not to move. While Defendant Rutland prevented Ms. Howard
from going anywhere, Defendant Williams turned and pointed a loaded firearm at Ms.
Howard, placing her in fear for her life. Defendant Rutland admitted that the purpose for
his actions was to prevent Ms. Howard from calling the police because he did not want to
be arrested nor did he want to see Defendant Williams arrested. The security video quite
obviously shows that Defendant Rutland was more than a passive observer of the
aggravated robbery and aggravated assault.           Relying on inferences from the
circumstantial evidence, a rational juror could find that Defendant Williams acted with
the intent to promote or assist Defendant Williams in the commission of the crimes and
that his actions of demanding Ms. Howard’s cellphone and preventing her from moving
away from the car aided Defendant Williams in the commission of the offense. The
evidence is sufficient to support Defendant Rutland’s convictions of aggravated robbery
and aggravated assault under a theory of criminal responsibility.

                                      III. Sentencing

       Defendant Rutland argues that the trial court erred when it sentenced him to an
identical sentence as Defendant Williams. Further, he claims that the sentence was
disproportionate and excessive for the offense and in contradiction with the Sentencing
Act of 1989. The State responds by arguing that the trial court acted within its discretion.
We agree with the State.

        When a defendant challenges the length or manner of service of a within-range
sentence, this Court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d
273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This
presumption applies to “within-range sentencing decisions that reflect a proper
application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at
707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)
(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). The defendant bears the
burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing
Comm’n Cmts.

       In reaching its decision, the 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 enhancement and mitigating factors; (6) any
                                            - 15 -
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the defendant in his own
behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. § 40-35-102, -
103, -210(b); see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence imposed
“should be no greater than that deserved for the offense committed” and also “should be
the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. § 40-35-103(2), (4).

       This Court will uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. The weighing of
various enhancement and mitigating factors is within the sound discretion of the trial
court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). Appellate courts may not
disturb the sentence even if we had preferred a different result. See id. at 346.

        At the sentencing hearing, Defendant Rutland’s allocution expressed his remorse.
However, the trial court found that no mitigating factors applied to Defendant Rutland.
Rather, the trial court found four enhancement factors were applicable. This is the same
amount of enhancement factors that were applied in Defendant Williams’s sentencing.
The trial court found Defendant Rutland was a Range I, standard offender and imposed a
sentence of eleven years for his Class B felony, aggravated robbery conviction, which is
within the appropriate range and is presumed reasonable. See T.C.A. § 40-35-112(a)(2)
(listing sentencing range of “not less than eight (8) nor more than twelve (12) years” for a
Class B felony); T.C.A. § 39-13-402(b) (listing aggravated robbery as a Class B felony).
The trial court imposed a Range I sentence of five years for his Class C felony,
aggravated assault conviction. See T.C.A. § 40-35-112(a)(3) (listing sentencing range of
“not less than three (3) nor more than six (6) years” for a Class C felony); T.C.A. § 39-
13-102(e)(1)(A)(iii) (listing aggravated assault, as charged in this case, as a Class C
felony). Defendant Rutland argues that his sentence should be less than Defendant
Williams’s sentence because he played a lesser role in the crime but the security video
alone belies this position. Defendant Rutland has failed to show that the trial court
abused its discretion.

                                        Conclusion

       For the aforementioned reasons, we affirm the judgments of the trial court.


                                             ____________________________________
                                             TIMOTHY L. EASTER, JUDGE

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