         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 19, 2003

               STATE OF TENNESSEE v. BRANDON D. FORBES

                  Direct Appeal from the Circuit Court for Dickson County
                           No. CR6055     Robert E. Burch, Judge


                   No. M2003-00474-CCA-R3-CD - Filed February 6, 2004


Defendant, Brandon D. Forbes, was indicted on one count of aggravated robbery and one count of
theft. Following a jury trial, Defendant was convicted of both counts. The trial court merged the
two counts into a single count of aggravated robbery. Following a sentencing hearing, Defendant
was sentenced to serve ten years. In this appeal as of right, Defendant challenges the sufficiency of
the evidence and argues that his sentence was excessive. After a careful review of the record, we
affirm the judgment of the trial court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
NORMA MCGEE OGLE , J., joined.

Merrilyn Feirman, Nashville, Tennessee (on appeal); William Bradley Lockert, III, District Public
Defender; and Christopher L. Young, Assistant Public Defender (at trial) for the appellant, Brandon
D. Forbes.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Dan
M. Alsobrooks, District Attorney General; and Kim Menke, Assistant District Attorney General, for
the appellee, the State of Tennessee.

                                            OPINION

        On December 31, 2001, the victim, Morgan Franceschini, stopped for gas at the Texaco
station on Highway 46 next to the Bank of Dickson. As the victim was leaving the store, he stopped
behind an orange pickup truck in front of him, waiting for traffic to clear before pulling onto the
highway. While the victim was stopped behind the orange truck, he saw Defendant exit the
passenger side of the orange truck and approach the passenger side of the victim’s vehicle.
Defendant asked the victim for a ride to Wal-Mart. The victim, who had never before seen
Defendant, told Defendant that he did not have time. Defendant then asked the victim to drive him
to the Archway Apartment complex, only a short distance away from the Texaco. The victim agreed
because he was on his way to visit a friend, Jason Sullivan, who lived at Archway Apartments.
        The orange truck turned right onto the highway and drove toward Wal-Mart. The victim also
turned right, and then turned left into Archway Apartments. The victim stopped in front of the
apartments where Defendant told him to stop. Defendant asked the victim to wait for him while he
ran into his friend’s apartment and then drive him to Wal-Mart. The victim refused. Defendant then
got out of the victim’s vehicle, turned around and pointed a gun at the victim and told the victim “to
give [his] shit up.” The victim heard “rapid action” from the gun and got out of his truck and began
running away. The victim heard gunfire and ran harder. Defendant said, “Come back here, nigga,
I’m not done with you.” The victim ran into Wal-Mart. He met his brother inside Wal-Mart, and
his brother told someone at the store to call 911. The police arrived. Several of the victim’s friends
also arrived on the scene. The victim spoke to Sergeant Miller. The victim did not see his 1998
Ford Ranger, valued at between six and seven thousand dollars, until it was recovered by the police
about four or five days after the incident.

         Following the incident, the victim identified Defendant in a photographic lineup. Detective
Breeden also showed the victim a videotape taken at the Texaco, and the victim recognized
Defendant inside the store. Detective Breeden took a tape recorded statement from the victim. In
that statement, the victim did not tell Detective Breeden that Defendant had told him to “give [his]
shit up.”

        Matthew Kuntz was riding with Defendant and Ecedro Vasquez in an orange truck on
December 31, 2001. Mr. Kuntz sat in the middle of the truck between Mr. Vasquez, who was
driving, and Defendant, who sat in the passenger seat. Mr. Vasquez pulled into the Texaco station
on Highway 46 to fill his truck with gas. As they were leaving the Texaco, Defendant “jumped out”
of the truck and said, “hold on.” Defendant walked back to a green truck stopped behind Mr.
Vasquez’s truck and then came back a few minutes later and told them to go ahead without him and
that he had “found a ride.” Mr. Vasquez then drove Mr. Kuntz to the Trails Apartments, where he
lived. The Trails Apartments are located a short distance from Archway Apartments, between
Archway Apartments and Wal-Mart. As they waited to turn left into the Trails, Mr. Kuntz saw the
green truck turn into Archway Apartments.

        Cassie Morgan knew Defendant through her roommate, Nancy Weedman, who dated Thomas
Lee Boeing, a friend of Defendant’s. On January 1, 2002, Ms. Morgan heard Defendant tell
someone else that he had pulled a gun on a man and taken his truck. Ms. Morgan gave a statement
to the police on January 4, 2002, but she did not tell the police about Defendant’s confession. Ms.
Morgan explained that Officer Shane Dunning had asked her the whereabouts of Thomas Lee
Boeing, and she told Officer Dunning that he had just left her house going to Monique Boeing’s
house. Ms. Morgan had pled guilty to selling counterfeit drugs.

         Detective Eddie Breeden of the Dickson Police Department had attempted to locate Thomas
Lee Boeing because he knew that he and Defendant “hung together a lot.” Detective Breeden
testified that the victim’s truck was recovered around Eighth Avenue and Jefferson in Nashville,
within two miles of Defendant’s residence. Detective Breeden interviewed the victim. He asked the



                                                 -2-
victim whether the incident had been a “bad drug deal” in order to rule out that possibility. Detective
Breeden was not aware of any bullets or bullet casings being recovered at Archway Apartments.

        Officer Bill Miller of the Dickson Police Department met with the victim at Wal-Mart
immediately following the incident. According to Officer Miller’s report, dated December 31, 2001,
the victim drove to Archway Apartments to visit a friend. The victim was then approached by a man
in the parking lot of the apartment complex. The man asked the victim for a ride to Wal-Mart, and
the victim refused. The man then grabbed the victim by the shirt, pointed a gun at the victim, and
said, “give it up.” The victim then pushed the gun away and jumped out of the truck. The victim
heard one gunshot as he ran from the scene.

         Defendant testified that on December 31, 2001, he was riding with Ecedro Vasquez in Mr.
Vasquez’ truck. Mr. Vasquez stopped at Texaco to fill his truck with gas. Defendant went inside
the store to buy a cigar. As he exited the store, the victim asked him about the cigar he was holding.
The victim asked Defendant if he knew where to buy some marijuana. Defendant did not respond
at first because he thought the victim might be a police officer. Defendant got inside Mr. Vasquez’
truck. Defendant then decided to sell some drugs to the victim. He told Mr. Vasquez to go ahead
without him, and he walked over to the victim’s truck and got inside. They drove to Archway
Apartments. Defendant sold the victim some marijuana for twenty dollars on the way to the
apartments. When they arrived at the apartments, Defendant went inside an apartment where he
received a substance that he represented to the victim to be, but that in fact was not, one gram of
crack cocaine. Defendant then asked the victim if he would “rent” his truck to him. The victim
agreed, and in exchange for his use of the victim’s vehicle for one hour, Defendant gave the victim
what he knew were “bad drugs.” Defendant testified that he knew the victim would call the police
because Defendant had given the victim “drugs that [were] not real for his vehicle.” Defendant
testified that he did not use a gun. Defendant did not return the victim’s truck because he feared that
the victim was calling the police. Defendant drove the victim’s truck to General Hospital in
Nashville to see his baby’s mother. Defendant testified that he did not intend to return the victim’s
truck within an hour. Defendant later abandoned the truck on the side of the road in Nashville.

Sufficiency of the Evidence

         When evaluating the sufficiency of the evidence, we must determine whether “‘any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” State
v. Keough, 18 S.W.3d 175, 180-81 (Tenn. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). This Court must afford the prosecution the strongest
legitimate view of the evidence in the record as well as all reasonable and legitimate inferences
which may be drawn from the evidence. Keough, 18 S.W.3d at 181 (citing State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997)). Questions regarding the credibility of the witnesses, the weight to
be given the evidence, and any factual issues raised by the evidence are resolved by the trier of fact.
Bland, 958 S.W.2d at 659. A guilty verdict removes the presumption of innocence and replaces it
with one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). On appeal, the defendant has
the burden of proving that the evidence at trial was insufficient to convict. Id.


                                                 -3-
         Defendant was convicted by a jury of aggravated robbery and theft. The trial court merged
the two counts into a single count of aggravated robbery. “Robbery is the intentional or knowing
theft of property from the person of another by violence or putting the person in fear.” Tenn. Code
Ann. § 39-13-401(a). The robbery is aggravated by the use of a deadly weapon. Tenn. Code Ann.
§ 39-13-402(a)(1).

        The proof at trial showed that after the victim drove Defendant to Archway Apartments,
Defendant pointed a gun at the victim, and the victim ran away in fear. Defendant then took the
victim’s truck without the victim’s consent. On appeal, Defendant argues that he did not intend to
take the victim’s truck. Based on Defendant’s own testimony at trial, however, a jury could
reasonably conclude that Defendant intended to take the victim’s truck. Defendant testified that he
intended to drive the victim’s truck to Nashville to see his baby’s mother in the hospital. Even if the
jury accredited Defendant’s testimony that the victim gave Defendant permission to use his truck for
one hour in exchange for cocaine, the jury could have found that Defendant did not intend to return
the truck within the agreed upon time period. Furthermore, Defendant testified that he did not intend
to return the victim’s truck because he feared that the victim would call the police. The jury
apparently accredited the victim’s testimony and discredited Defendant. Finally, viewed in the light
most favorable to the State, the proof at trial showed that Defendant used a gun. Defendant is not
entitled to relief on this issue.

Sentencing

        A defendant’s sentence is reviewed by the appellate courts de novo with a presumption that
the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d); State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). For this presumption to apply to the trial court’s actions,
there must be an affirmative showing in the record that the trial court considered sentencing
principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn.
1999). While determining or reviewing a sentence, the courts must consider: (1) the evidence
received at 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 offered by the parties on the enhancement and mitigating
factors; (6) any statement the defendant wishes to make in the defendant’s behalf about sentencing;
and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991).

        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 Commission
Comments; Ashby, 823 S.W.2d at 169. If the trial court has imposed a lawful sentence by following
the statutory sentencing procedure, has given due consideration and proper weight to the factors and
sentencing principles, and has made findings of fact adequately supported by the record, this Court
may not modify the sentence even if it would have preferred a different result. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, if the trial court does not comply with



                                                 -4-
statutory sentencing provisions, our review of the sentence is de novo with no presumption the trial
court’s determinations were correct. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000).

        Aggravated robbery is a Class B felony, which carries a sentencing range of eight to twelve
years for a Range I standard offender. Tenn. Code Ann. §§ 39-13-402(b), 40-35-112(a)(2). The
presumptive sentence is the minimum sentence in the range if there are no enhancement factors and
no mitigating factors. Tenn. Code Ann. § 40-35-210(c). If such factors do exist, a trial court should
enhance the minimum sentence within the range for enhancement factors and then reduce the
sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e); State v.
Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). If there are enhancement factors, but no mitigating
factors, a trial court may set the sentence above the minimum within the range. Tenn. Code Ann.
§ 40-35-210(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). The statutes prescribe no
particular weight for an enhancement or mitigating factor, and the weight given to each factor is left
to the discretion of the trial court, provided the trial court has complied with the purposes and
principles of the Sentencing Act and its findings are supported by the record. State v. Gosnell, 62
S.W.3d 740, 750 (Tenn. Crim. App. 2001); State v. Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App.
1997).

         The trial court sentenced Defendant to serve ten years in confinement, the midpoint in the
range of possible sentences. The trial court found the following enhancement factors applicable to
Defendant’s sentence: the defendant has a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range, Tenn. Code Ann. § 40-35-
114(2); and the defendant was adjudicated to have committed a delinquent act or acts as a juvenile
that would constitute a felony if committed by an adult, Tenn. Code Ann. § 40-35-114(21). The trial
court placed significant weight on Defendant’s juvenile adjudication for a charge of aggravated
robbery, the same charge for which he was convicted in this case. Defendant does not challenge the
trial court’s application of those enhancement factors, and we conclude that the application of those
enhancement factors is supported by the record.

        Defendant argues that the trial court erred by not applying a mitigating factor, applicable
under the catch-all provision of Tenn. Code Ann. § 40-35-113(13). Defendant contends that his
learning disability, documented in his juvenile court record, should have mitigated his sentence. We
conclude that the trial court did not err in declining to apply this mitigating factors. We further
conclude that a sentence of ten years was appropriate in this case. Defendant is not entitled to relief
on this issue.

                                          CONCLUSION

       The judgment of the trial court is affirmed.

                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE



                                                 -5-
