         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 7, 2008

                STATE OF TENNESSEE v. DARRELL FRANKLIN

                      Appeal from the Criminal Court for Shelby County
                        No. 07-01517    James C. Beasley, Jr., Judge



                    No. W2007-02772-CCA-R3-CD - Filed January 5, 2009


The Defendant, Darrell Franklin, was convicted of one count of robbery, a Class C felony, and
sentenced as a Range III, persistent offender to twelve years in the Department of Correction. In this
direct appeal, he argues that (1) the trial court erred in admitting certain testimony over his hearsay
objection and in violation of his rights under the Confrontation Clause of the Sixth Amendment to
the United States Constitution; (2) the State presented evidence insufficient to support the
Defendant’s conviction; (3) he received an excessive sentence; and (4) the cumulative effect of the
trial court’s errors deprived him of his constitutional rights to due process and trial by jury. We
conclude that the State presented evidence sufficient to support the Defendant’s conviction and that
the trial court did not err in sentencing him. We also conclude, however, that the trial committed
plain error by admitting certain testimony in violation of the Defendant’s right to confront the
witnesses against him. We accordingly vacate his conviction and remand this case for a new trial.



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

DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and J.C.
MCLIN , JJ., joined.

Robert Jones, Shelby County Public Defender; Phyllis Aluko, Assistant Public Defender, Memphis,
Tennessee, for the appellant, Darrell Franklin.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Pamela Fleming, Assistant District
Attorney General, for the appellee, State of Tennessee.




                                             OPINION
                                          Factual Background
         The actions giving rise to this case began on July 29, 2006. On that day, a Saturday, Melissa
Polson was working as a cashier at a Yorkshire Cleaners in a Memphis “strip mall.” She testified
that at about 10:00 a.m., she was behind her cash register serving a customer and facing the store’s
entrance. A second customer had been waiting for three to four minutes. As the first customer left
the store, the second customer walked up to the counter. Polson, who at this point had her head
down but who had observed the second customer during the previous waiting period, asked him his
name. Polson thought his answer sounded like “Phillips,” but she was unsure. She looked up at his
face and asked him again. At that point, he ordered “[G]ive me all of your money or I’ll blow your
ass off.”

        Polson looked back down, away from the man’s face. She believed from his threat that the
man had a weapon, although she did not see one. She immediately tried to open the cash register.
As it sometimes had in the past, the key jammed on her first attempt to turn it. After another few
moments, she successfully opened the cash register and began slowly placing the money therein on
the counter. When she was finished, the man told her to lift the cash register tray and remove any
larger denominations. She did so, revealing no additional bills. The man then told Polson to back
up, turn around so as to face away from the store entrance, and count to ten. She did so and began
to count slowly. When she reached nine, she heard the store’s bell chime, indicating that the door
had been opened. When she reached ten, she turned around, looked up into a security monitor
showing the sidewalk in front of the store, and saw in it the man moving from right to left as she
faced the front of the store. She then directed her eyes out the window and saw a shadow “speed-
walking” away in the same direction. Polson testified she was certain less than fifteen minutes
elapsed between the time the perpetrator entered the store and the completion of the robbery. She
could not give a more precise estimate, but she acknowledged that time seemed to slow down and
that the robbery may have taken only a few minutes.

       Polson then went outside. Looking to her left as she exited the cleaners, she saw a contractor
helping to remodel the restaurant next door. She also saw the full profile of a white minivan in a
parking lot space about twenty feet in front of her. Polson noted on cross-examination that the strip
mall ended about twenty feet to her left; she did not believe the man who robbed her, traveling at the
speed she observed, could have reached the corner by the time she stepped outside. She admitted,
however, that he could have reached the corner had he taken off running immediately after she
observed his shadow through the store window.

           Polson saw the white van begin to back out of its parking space. She could not see the
driver of the white van but, noticing no one else in the parking lot, believed it to be the man who
robbed her. Because she felt unable to do so herself due to the stress of being robbed, she
approached the contractor, told him she had been robbed, and asked if he would get the minivan’s
tag number. Polson testified that he did so, approaching to within two or three feet of the minivan
as it pulled away. The contractor then went into Yorkshire Cleaners with Polson, where she watched
him write the tag number, 523 FTD, on a piece of paper. She testified regarding this tag number at
trial; the contractor was not called as a witness. Remembering certain tips from a basic psychology


                                                 -2-
course on eyewitness testimony she had recently taken, Polson wrote down, on the same piece of
paper that contained the tag number, what she remembered of the perpetrator’s face, height, and
build.

         Sergeant John Williams of the Memphis Police Department, at the time a patrol officer, was
the first to arrive on the scene, at 10:24 a.m. He testified that he did not recall when precisely he
received the robbery call, but that he would have responded to the call immediately and that the
scene of the robbery, situated near the center of his assigned ward, would have taken no more than
three or four minutes to reach. Sergeant Williams spoke to Polson, whom he described as “very
upset and scared.” He did not speak to the contractor but saw another officer speaking to him.
Polson gave Sgt. Williams the tag number, told him she observed the perpetrator leaving in a van,
and described the perpetrator as a dark-complected, heavy-set, black male about six feet tall.
Sergeant Williams noted these facts in his report. He gave the report to the robbery’s assigned case
officer, Detective Mondie Quinn.

        Detective Quinn, at the time assigned to the Memphis Police Department Robbery Bureau,
conducted further investigations based in part on Sgt. Williams’ report. Detective Quinn testified
that he ran the tag number contained in the report; it returned a white 1998 Plymouth Voyager
registered to the Defendant. He also called Polson to verify certain facts contained in the report. She
described the perpetrator as a heavy-set African-American male about six feet in height, noting his
“chubby cheeks” and “light to medium” complexion and estimating his weight at 200 to 250 pounds.

        Using this information, Det. Quinn assembled a photographic lineup of six suspects with
features matching Polson’s description. He returned to the Yorkshire Cleaners strip mall two days
after the crime, on July 31, 2006, with Officer Paul Neely. Having learned of additional witnesses
there, Det. Quinn and Officer Neely first visited Baptist Minor Medical Center (BMMC), the other
establishment immediately adjacent to Yorkshire Cleaners. They met BMMC employees Rhonda
Dugger and Stephanie Smith.

        They spoke to Dugger, who testified at trial that she was working at the BMMC reception
desk on the morning of July 29, 2006. She remembered that a man came in and asked to use
BMMC’s lobby bathroom. She nodded yes, viewing the man for a couple of seconds. He entered
the bathroom and left a few minutes later. Dugger believed that he was inside BMMC for less than
five minutes total. After about two additional minutes, Dugger noticed police cars outside and
learned that there had been a robbery next door.

       Detective Quinn and Officer Neely also spoke to Smith, the other receptionist working the
morning of the robbery. She offered testimony similar to Dugger’s: that a man, whose face she
viewed for about two seconds, asked to used the bathroom; that she nodded; that he left after a few
minutes; and that police arrived two to three minutes later.

       Before showing them the photo lineup he had prepared, Det. Quinn directed both Dugger and
Smith to read and sign an “Advice to Witness Viewing Photographic Display” form (“advice form”),


                                                 -3-
which among other things directed them “to make no identification unless [they were] positive of
such identification.” They both did so. Detective Quinn separated Dugger and Smith before giving
a copy of the six-man photo lineup to each of them.

        Dugger circled the Defendant’s picture and noted his photo’s lineup position on a designated
space on the advice form. She signed and dated the lineup at 2:43 p.m. on July 31, 2006. She also
wrote under the Defendant’s circled picture, “This is the guy that came in to use bathroom on the day
of robbery.” Dugger testified that neither Det. Quinn nor anyone else suggested which photo, if any,
she should choose. At trial, Dugger said that the Defendant wore a baseball cap on the day of the
robbery but that he otherwise looked the same then as in the lineup photo, in which he had a very
short goatee.

         Smith also circled the Defendant’s picture and noted his photo’s lineup position on a
designated space on the advice form. She signed and dated the lineup at 2:45 p.m. on July 31, 2006.
She wrote under the Defendant’s circled picture, “This is the guy that came in our facility to use the
restroom. 7/29/06.” Smith also testified that neither Det. Quinn nor anyone else suggested which
photo, if any, she should choose. She could not remember whether the Defendant wore a hat or had
facial hair on the day of the crime. She was positive about the identification at the time she made
it, but she could not make the identification again at trial.

         Detective Quinn then spoke to Polson at Yorkshire Cleaners. He directed her to read and
sign the advice form. After she had done so, Det. Quinn gave her the photo lineup and walked away.
Polson testified that she looked at the lineup for five to ten minutes “because [she] did not want to
just pick someone [she] recognized off the street.” She eventually circled the Defendant’s photo and
noted the photo’s lineup position in a designated space on the advice form. She signed and dated
the lineup at 2:55 p.m. on July 31, 2006. She also wrote under the Defendant’s circled picture, “This
is the guy that robbed me. He said give me your money or I’ll blow your ass off.” Polson confirmed
that neither Det. Quinn nor anyone else suggested which photo, if any, she should choose. Polson
testified that she believed the Defendant was clean-shaven when he robbed her, rather than bearded
as in his lineup photo. She said nothing about the Defendant wearing a hat.

        Based on these three identifications and the presence of the Defendant’s vehicle near the
crime scene, Det. Quinn directed the Memphis Police Department’s Criminal Apprehension Team
to obtain a warrant and take the Defendant into custody. They did so. Detective Quinn spoke to the
Defendant on August 21, 2006, informing him that he was suspected of involvement in a robbery.
The Defendant denied any involvement and told Det. Quinn he had been at home with his girlfriend
and children at the time of the robbery. Detective Quinn informed the Defendant that his van had
been spotted at the scene of the robbery. The Defendant then changed his story, telling Det. Quinn
that he had been at home with his girlfriend’s uncle and that his girlfriend and children had been
using the van that morning. Detective Quinn spoke with the Defendant’s girlfriend on the phone that
evening, and then spoke to the Defendant again the following day. The Defendant again told Det.
Quinn that he was at home with his girlfriend’s uncle. Detective Quinn was never given the
contractor’s contact information, and therefore, never spoke to him about his observation of the


                                                 -4-
Defendant’s van. Although Yorkshire Cleaners’ security equipment did record video of the robbery,
the establishment’s owners refused to cooperate with Det. Quinn’s request for the tape.

        The Defendant called his girlfriend, Tenniale Shaw, as a witness. She testified that she had
four children, three of them fathered by the Defendant. She no longer lived with the Defendant at
the time of trial, but she did live with the Defendant, her four children, and her uncle on the day of
the robbery. She remembered the Defendant returning home at about 5:15 a.m. that day; he got into
bed and went to sleep. Shaw had been awake since about 4:00 a.m., and she did not return to bed.
At about 7:30 a.m., she loaded her kids into the family’s only vehicle, a white 1998 Plymouth
Voyager minivan, and drove to a church event in a nearby park. Shaw and her children routinely
attended this event on Saturdays. They stayed at the park until 11:00 a.m. and then went to Shaw’s
grandmother’s house, where, but for a trip to Wal-Mart, they stayed for the rest of the day. Shaw
admitted on cross-examination that she had called the police on the Defendant twice in the two
months preceding trial but said that she was not afraid of the Defendant when she called the police,
that she had never been afraid of him, and that fear had not motivated her to testify on his behalf.

       The Defendant also testified. He stated that at 2:00 a.m. on July 29, 2006, he had gone to a
nearby casino. After losing one hundred dollars, he left. He returned home at about 5:00 a.m. and
went to sleep. He remained home all day, waking up later to find that Shaw had left with the
children. He assumed they had gone to the park, as they usually did on Saturdays. In addition to this
testimony, the Defendant engaged in certain exchanges with the State that may have been seen as
damaging his credibility. In the first exchange, the State attempted to clarify the substance of the
Defendant’s conversations with Det. Quinn:

       [The State]: Now did [Det. Quinn] just tell you – what did he tell you about the
       robbery before he asked you about it? What did you know about the robbery?
       [The Defendant]: I didn’t know nothing about it. When they first picked me up, they
       picked me up, took me down to the office up there. I sat up there like seven hours.
       And he told me said, well – they had went through all that when they first came said
       well, we got you on the tape. We got this here. We got you with a robbery. So when
       I got up and I sit down and start talking to him, he said well we got you on a robbery.
       I said I don’t know nothing about no robbery. And I told him I don’t know nothing
       about no robbery. The only thing I ever had was a habitual motor offender, driving
       habitual motor offender and old dope charge. That’s exactly what I – I don’t have –
       I don’t know nothing about no robberies because I never did nothing like –
       [The State]: Really? That’s the only thing you’ve ever had?
       [The Defendant]: Yes, ma’am. And a few misdemeanors.

The Defendant’s criminal history is significantly more extensive than he describes above. The State
subsequently impeached the Defendant regarding this history, and the Defendant admitted to nine
previous felony convictions, including one for larceny.




                                                 -5-
        The second exchange occurred immediately thereafter, when the state resumed its attempt
to clarify the Defendant’s conversations with Det. Quinn. Specifically, the State attempted to
determine what explanation the Defendant could offer for changing his story after Det. Quinn
informed the Defendant that his van had been spotted near the crime scene:

       [The State]: Now before we took that small detour, we were talking about what you
       were saying to the police officer. And if we could reflect back to that point and get
       to the point that we were before you told the police officer what you said you told
       him, what is it that you were told about this robbery when you were brought in?
       [The Defendant]: He just told me they had me in a robbery.
       [The State]: And what else did he say?
       [The Defendant]: That that’s – that’s what he said. I told him I don’t know nothing
       about no robbery.
       [The State]: Okay. So then what did he say?
       [The Defendant]: He didn’t say nothing else.
       [The State]: Then how could you possibly say I was at home with my wife1 and kids,
       if you don’t know anything in the world about it besides the fact that there was a
       robbery?
       [The Defendant]: He went into details about the robbery and I told – after he got
       through, I still told him I didn’t know nothing about the robbery.
       [The State]: Okay. And then what did he tell you?
       [The Defendant]: He asked me so much.
       [The State]: What is it that he said that made you tell him I was at home with my wife
       and kids?
       [The Defendant]: When he said something about a robbery.
       [The State]: So it didn’t matter when the robbery was committed, what day, what
       hour, your standard excuse would have been I was at home with my wife and kids?
       [The Defendant]: Right.
       [The State]: Right?
       [The Defendant]: Right.
       [The State]: Your honor, I think with that I don’t have anything else.

Defense counsel thereafter attempted to rehabilitate the Defendant by clarifying that Det. Quinn did,
in fact, tell the Defendant when and where the robbery occurred before the Defendant offered his
original alibi.

       The jury found the Defendant guilty of one count of robbery, a Class C felony. He was
sentenced as a Range III, persistent offender to twelve years in the Department of Correction. He
now appeals.




       1
           The Defendant referred to Shaw as his wife, but they were not married.

                                                        -6-
                                              Analysis
I. Admission of the Defendant’s Tag Number
        The Defendant first brings our attention to the admission of Polson’s testimony that she
observed the contractor write “523 FTD” on the piece of paper she provided to him after the robbery.
The Defendant argues that this testimony was admitted in violation of hearsay rules contained in the
Tennessee Rules of Evidence and in violation of his rights under the Confrontation Clause of the
Sixth Amendment to the United States Constitution.
        Immediately before the trial began, defense counsel advised the court that he had learned that
the State intended to introduce a hearsay statement of a person who was not going to testify at trial.
Defense counsel was referring to the statement written by the contractor which identified the vehicle
license plate number of the white van seen leaving the strip mall after the robbery occurred. The trial
judge overruled the objection and stated that he would allow the victim to testify that she saw the
person write down the license plate number of the vehicle.

        During her testimony, the victim stated that immediately after the robbery she went out the
door of the business. She saw a “contractor.” She told the contractor that she “had just been robbed,
and [she] needed the tag number of the vehicle that the man had just got in.” She testified that she
did not see the robber get into a vehicle but that a white mini-van was the only vehicle leaving the
parking lot at that time. She was unable to see who was in the van. She stated that she could not see
the tag number, but that the contractor was able to get the number, and that he came back into the
store and wrote the number on a piece of paper in her presence. The victim then wrote additional
information describing the robber on the piece of paper upon which the license plate number was
written. The victim gave the piece of paper with the license plate number and other information
written on it to a police officer. Later at trial, the police officer testified that the license plate number
given by the victim, “523 FTD,” was registered to a van owned by the Defendant.

          A. Hearsay
          Tennessee Rule of Evidence 801(c) defines hearsay as “a statement, other than one made by
a declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” “A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person if
it is intended by the person as an assertion.” Tenn. R. Evid. 801(a). Hearsay is inadmissible except
as provided by the Tennessee Rules of Evidence or otherwise by law. See Tenn. R. Evid. 802.

        Again, the contractor who wrote “523 FTD” on Polson’s piece of paper did not testify at trial.
In the contractor’s absence, the Defendant contends that the trial court erred in admitting Polson’s
testimony that the contractor wrote “523 FTD” as the license plate number the contractor had seen
on the white mini-van. The Defendant characterizes this testimony as inadmissible hearsay, and he
asks that we grant him a new trial.

        The Defendant argues, and the State does not appear to contest, that the written tag number
is an assertion, and therefore, a “statement” under Tennessee Rule of Evidence 801. The Defendant
and the State also seem to agree on what the statement asserts: that the contractor observed the tag
number “523 FTD” on the white van he looked at in the parking lot. The parties disagree about the


                                                    -7-
purpose for which the statement was offered, however. The Defendant argues that the State
introduced the statement for the purpose of proving the tag number’s presence on the white van in
the parking lot outside Yorkshire Cleaners immediately after the robbery. The State argues that it
offered the statement not to prove the tag number’s presence on the white van, but to prove that
Polson saw the contractor write down that particular number.

         We agree with the Defendant that the trial court, in violation of the hearsay rules, admitted
the contractor’s statement to prove what that statement asserted. See Tenn. R. Evid. 801, 802. The
contractor’s statement of the tag number made relevant and probative Det. Quinn’s later testimony
that the Defendant owned a white van bearing the same tag number, thereby placing the Defendant’s
vehicle at the scene of the crime. We have also considered the hearsay exceptions contained in the
Tennessee Rules of Evidence; we conclude that none apply.

        Tennessee Rule of Criminal Procedure 52(a) states that “[n]o judgment of conviction shall
be reversed on appeal except for errors which affirmatively appear to have affected the result of the
trial on the merits.” We need not determine whether the trial court’s violation of the hearsay rule
was harmless, however, because we conclude below that the Defendant’s constitutional right to
confront the witnesses against him were violated, entitling him to a new trial.

        B. Confrontation Clause
        We next address the Defendant’s contention that Polson’s testimony that the contractor wrote
“523 FTD” violated his rights under the Confrontation Clause of the Sixth Amendment to the United
States Constitution. That clause provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford
v. Washington, 541 U.S. 36 (2004), the United States Supreme Court held that “[w]here testimonial
evidence is at issue . . . the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.” Id. at 68. The Defendant had no
opportunity to cross-examine the contractor, and the State did not demonstrate his unavailability.
As such, we must decide whether the contractor’s statement was testimonial.

        The Crawford Court “[left] for another day any effort to spell out a comprehensive definition
of ‘testimonial.’” Id. It did, however, note that “various formulation of this core class of
‘testimonial’ statements exist.” Id. at 51. One such formulation encompasses “statements that were
made under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Id. at 52; see also State v. Cannon, 254 S.W.3d
287, 301 (Tenn. 2008).

       The Supreme Court revisited the issue of “testimonial” evidence in Davis v. Washington, 547
U.S. 813 (2006). In determining that statements made during the course of a 911 call were
nontestimonial, the Davis Court explained that

       [s]tatements are nontestimonial when made in the course of police interrogation
       under circumstances objectively indicating that the primary purpose of the


                                                 -8-
        interrogation is to enable police assistance to meet an ongoing emergency. They are
        testimonial when the circumstances objectively indicate that there is no such ongoing
        emergency, and that the primary purpose of the interrogation is to establish or prove
        past events potentially relevant to later criminal prosecution.

Id. at 822.

       Our supreme court has also considered the definition of “testimonial” evidence, adopting a
set of non-exclusive factors to aid in the determination of whether a particular statement is
testimonial:

        (1) whether the declarant was a victim or an observer; (2) whether contact was
        initiated by the declarant or by law-enforcement officials; (3) the degree of formality
        attending the circumstances in which the statement was made; (4) whether the
        statement was given in response to questioning, whether the questioning was
        structured, and the scope of such questioning; (5) whether the statement was recorded
        (either in writing or by electronic means); (6) the declarant’s purpose in making the
        statements; (7) the officer’s purpose in speaking with the declarant; and (8) whether
        an objective declarant under the circumstances would believe that the statements
        would be used at trial.

State v. Lewis, 235 S.W.3d 136, 143 (Tenn. 2007) (quoting State v. Maclin, 183 S.W.3d 335, 345
(Tenn. 2006)).

        We conclude that the contractor’s statement in this case was testimonial. Following both
Crawford and Lewis factor (8), we initially note our agreement with the Defendant that the contractor
made his statement under circumstances that would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial. Crawford, 541 U.S. at 51; Lewis, 235
S.W.3d at 143. Polson told the contractor that she had just been robbed. In asking the contractor
to get the white van’s tag number, Polson indicated to him that she believed the perpetrator was
driving the van. The contractor returned to Yorkshire Cleaners with Polson and wrote the tag
number down in order to assist any subsequent investigation. Under these circumstances, we
conclude an objective witness would know the tag number would be used, at any later trial, to place
the Defendant at the crime scene.

        The United States Supreme Court in Davis and our supreme court in Lewis developed the
definition of “testimonial” evidence primarily under the assumption that potentially testimonial
statements would be made in the course of a police investigation. Here, the contractor made his
statement to Polson rather than to a police officer. In our view, our decision accords with the
reasoning underlying the Davis and Lewis decisions. With respect to Davis, we acknowledge that
the contractor made his statement very soon after the robbery occurred. He did not make the
statement in order to assist with an ongoing emergency, however. See Davis, 547 U.S. at 822. The



                                                 -9-
emergency had passed; the contractor made his statement in order “to establish or prove past events
potentially relevant to later criminal prosecution.” Id.

         With respect to the Lewis factors, it speaks to the testimonial nature of the contractor’s
statement that he was an observer, that Polson initiated contact with him in order to gain potentially
identifying information about the perpetrator, that the contractor made his statement in response to
Polson’s questioning, that he recorded the statement, and that both Polson and the contractor
intended to record information tending to link the perpetrator to the scene of the crime. Lewis, 235
S.W.3d at 143.

         We therefore conclude that admission of the contractor’s statement violated the Defendant’s
rights under the Confrontation Clause. We must now determine whether a remedy is available.
Again, the Defendant did not raise a Confrontation Clause issue at trial or in his motion for a new
trial; he has therefore waived the issue unless he can demonstrate plain error. See Tenn. R. App. P.
3(e), 36(a); Tenn. R. Crim P. 52(b).

        Tennessee Rule of Criminal Procedure 52(b) states that “[a]n error which has affected the
substantial rights of an accused may be noticed at any time, even though not raised in the motion for
a new trial or assigned as error on appeal, in the discretion of the appellate court where necessary to
do substantial justice.” For plain error review, a defendant must establish five factors: (1) “the
record must clearly establish what happened in the trial court”; (2) “a clear and unequivocal rule of
law must have been breached”; (3) “a substantial right of the accused must have been adversely
affected”; (4) “the accused did not waive the issue for tactical reasons”; and (5) “consideration of
the error is necessary to do substantial justice.” State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000)
(adopting the factors outlined in State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App.
1994)). “All five factors must be established by the record before” an appellate court may “recognize
the existence of plain error, and complete consideration of all the factors is not necessary when it is
clear from the record that at least one of the factors cannot be established.” Smith, 24 S.W.3d at 283.

        The record in this case establishes the events at trial that breached the clear and unequivocal
Confrontation Clause rights outlined in Crawford and its progeny. A “substantial right” is a right
of “fundamental proportions in the indictment process, a right to the proof of every element of the
offense, and . . . constitutional in nature.” Id. at 639. The right to confront one’s accusers is such
a substantial right, and the Defendant’s right of confrontation was adversely affected in this case.
The Defendant’s attempt to exclude the contractor’s statement on hearsay grounds persuades us that
he did not waive the confrontation issue for tactical reasons.

        We must next consider whether consideration of the Confrontation Clause error is “necessary
to do substantial justice.” In doing so, we note that “[a]lthough very similar to harmless error
analysis, plain error review places on the defendant the burden of persuasion, whereas the State bears
the burden of persuasion when an appellate court conducts a harmless error analysis.” State v.
Gomez, 163 S.W.3d 632, 646 (Tenn. 2005), rev’d on other grounds, (citing United States v. Olano,
507 U.S. 725, 732 (1993)). Violation of the confrontation right is non-structural error. See Coy v.


                                                 -10-
Iowa, 487 U.S. 1012, 1021 (1988); State v. Howell, 868 S.W.2d 238, 253 (Tenn. 1993). When such
a constitutional right is violated and not waived, harmless error analysis requires the State to show
beyond a reasonable doubt that any error was harmless, meaning it did not affect the outcome of the
trial. State v. Ely, 48 S.W.3d 710, 725 (Tenn. 2001).

        We must therefore consider the weight of the evidence against the Defendant had the
contractor’s statement been excluded. Its exclusion would not have affected the admissibility of any
evidence discovered as a result of Det. Quinn’s investigation based upon the tag number. As such,
Det. Quinn could have testified that he learned certain information that led him to develop the
Defendant as a suspect and that the Defendant owned a white van similar in appearance to the
vehicle Polson saw exiting the parking lot immediately after the robbery. Polson’s testimony would
have been intact apart from her account of the contractor’s statement. Smith’s testimony and
Dugger’s testimony would have been unaffected.

        We conclude that the Defendant has met his burden, however. The presence at the crime
scene of a vehicle bearing a tag number registered to the Defendant is extremely probative and
prejudicial evidence. Because the State did not produce the witness who actually observed the
license plate number, the evidence should have been excluded. In its absence, the case against the
Defendant rests primarily on the identifications of three witnesses, two of whom, Polson and Dugger,
disagreed with one another about whether the Defendant had facial hair and wore a hat on the day
of the crime.

         The witnesses’ accounts also presented certain time line problems. Sergeant Williams
testified that he would have arrived at the crime scene at most three or four minutes after receiving
the robbery call. Dugger and Smith testified that they noticed police outside only two or three
minutes after they saw the Defendant leave BMMC’s bathroom. Polson, however, testified that the
Defendant waited behind a Yorkshire Cleaners customer for at least three or four minutes before
robbing her. The robbery itself then took a few additional minutes, after which the police were
called. These time frames were consistent only if the Defendant elected to use the BMMC bathroom
after robbing Polson; in that case the Defendant could not have been an occupant of the white van
Polson observed.

       The Defendant’s jury might have found him guilty under these circumstances; we cannot
conclude beyond a reasonable doubt that the jury would have, however. In our view, the violation
of the Defendant’s confrontation clause rights was not harmless beyond a reasonable doubt.
Accordingly, we conclude that consideration of this error is necessary to do substantial justice. The
Defendant has therefore established plain error. We vacate his conviction and remand for a new
trial.

II. Sufficiency of the Evidence
        Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant


                                                 -11-
who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption
of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

         On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

       We note that we must consider sufficiency of the evidence in this case as if we had not
deemed the contractor’s statement inadmissible as hearsay and as a Confrontation Clause violation.
“Judicial review of the sufficiency of the evidence to convict that would exclude evidence deemed
inadmissible on appeal would unfairly prejudice the prosecution . . . it would be inappropriate for
[an appellate court] to assess the sufficiency of the evidence based only on properly admitted
evidence.” State v. Billy Harold Arnold, No. E2000-03157-CCA-R3CD, 2002 WL 264615, at *2
(Tenn. Crim. App., Knoxville, Feb. 22, 2002) (citing State v. Longstreet, 619 S.W. 2d 97, 100-01
(Tenn. 1981)).

        The Defendant was convicted of one count of robbery. Tennessee Code Annotated section
39-13-401(a) defines robbery as “the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” Polson testified that money was taken from her
person and that she was afraid. The perpetrator threatened her with violence. The Defendant’s
identity as the perpetrator was, of course, the central issue in this case. Polson identified the
Defendant as the perpetrator, however, and Smith and Dugger both placed him near the scene of the
crime at about the time it was committed. Polson also observed the contractor retrieve a tag number
registered to the Defendant from a van leaving the crime scene. This evidence is sufficient for any
rational jury to find the Defendant guilty beyond a reasonable doubt.

III. Sentencing
        On appeal, the party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n
Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant challenges

                                                 -12-
the length, range, or manner of service of a sentence, it is the duty of this Court to conduct a de novo
review on the record with a presumption that the determinations made by the court from which the
appeal is taken are correct. Tenn. Code Ann. § 40-35-401(d). However, this presumption “is
conditioned upon the affirmative 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); see also State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the
trial court failed to consider the sentencing principles and all relevant facts and circumstances, then
review of the challenged sentence is purely de novo without the presumption of correctness. State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d at 344-45.

        In conducting a de novo review of a sentence, this Court must consider (a) the evidence
adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) evidence and information offered by the parties on the enhancement
and mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114;
(f) any statistical information provided by the Administrative Office of the Courts as to Tennessee
sentencing practices for similar offenses; and (g) any statement the defendant wishes to make in the
defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254
S.W.3d at 343; State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

        The Defendant’s conduct occurred subsequent to the enactment of the 2005 amendments to
the Sentencing Act, which became effective June 7, 2005. The amended statute no longer imposes
a presumptive sentence. See Carter, 254 S.W.3d at 343. As further explained by our supreme court
in Carter,

       the trial court is free to select any sentence within the applicable range so long as the
       length of the sentence is “consistent with the purposes and principles of [the
       Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes and
       principles include “the imposition of a sentence justly deserved in relation to the
       seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a punishment
       sufficient “to prevent crime and promote respect for the law,” [Tenn. Code Ann.] §
       40-35-102(3), and consideration of a defendant’s “potential or lack of potential for
       . . . rehabilitation,” [Tenn. Code Ann.] § 40-35-103(5).

Id. (footnote omitted).

        The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing of the
enhancement and mitigating factors, as it rendered these factors merely advisory, as opposed to
binding, upon the trial court’s sentencing decision. Id. at 344. Under current sentencing law, the
trial court is nonetheless required to “consider” an advisory sentencing guideline that is relevant to
the sentencing determination, including the application of enhancing and mitigating factors. Id. The
trial court’s weighing of various mitigating and enhancing factors is now left to the trial court’s
sound discretion. Id. at 345. Thus, the 2005 revision to Tennessee Code Annotated section


                                                 -13-
40-35-210 increases the amount of discretion a trial court exercises when imposing a sentencing
term. Id. at 344.

        To facilitate appellate review, the trial court is required to place on the record its reasons for
imposing the specific sentence, including the identification of the mitigating and enhancement
factors found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001). If our review reflects
that the trial court applied inappropriate mitigating and/or enhancement factors or otherwise failed
to follow the Sentencing Act, the presumption of correctness fails and our review is de novo. Id. at
345.

        The presentence report reflects that the Defendant was forty-one years old and unmarried at
the time of sentencing. He had one daughter and two sons. He reached the tenth grade at Memphis
East High School before dropping out. His history included sporadic recent employment with three
construction and home services companies. The Defendant’s extensive history of criminal
convictions was also set forth in the presentence report. Beginning in 1986, it detailed numerous
convictions for both misdemeanors and felonies, including nine convictions for driving on a
suspended or revoked driver’s license; five habitual traffic offender convictions; two convictions
each for disorderly conduct, reckless driving, possession of less than .5 grams of cocaine,
manufacture, sale, or possession of drugs, and possession of drugs; and one conviction each for
simple assault, possession of marijuana, disturbing the peace, evading arrest, and petit larceny.

        A. Length of Sentence
        The Defendant was convicted of one count of robbery, a Class C felony. Tenn. Code Ann.
§ 39-13-401(b). As a Range III, persistent offender, he faced a sentencing range of ten to fifteen
years. Tenn. Code Ann. § 40-35-112(c)(3). The trial court found two enhancement factors
supporting its decision to give the Defendant a twelve-year sentence: that the Defendant had a
previous history of criminal convictions in addition to those necessary to establish his status as a
Range III, persistent offender and that the Defendant, before trial or sentencing, had failed to comply
with the conditions of a sentence involving release into the community. See Tenn. Code Ann. § 40-
35-114(1), (8).

        As to the length of his sentence, the Defendant argues that the trial court violated his
constitutional right to a jury trial, as outlined in Blakely v. Washington, 542 U.S. 296 (2004), by
enhancing his sentence based on its finding under Tennessee Code Annotated section 40-35-114(8)
that he had failed to comply with the conditions of a sentence involving release into the community.
The Defendant acknowledges that our amended Sentencing Act has been held not to violate Blakely,
see Cunningham v. California, 549 U.S. 270, 294 n.18 (2007), but raises the issue in order to
preserve it for further appellate review.

         We accordingly conclude that the trial court did not violate the Defendant’s right to a jury
trial by considering the Tennessee Code Annotated section 40-35-114(8) enhancement factor. Our


                                                  -14-
review further persuades us that the trial court considered the sentencing principles and all relevant
facts and circumstances. This issue is without merit.

        B. Denial of Community Corrections
        The Defendant next argues that the trial court, rather than sentencing him to serve his
sentence in the Department of Correction, should have sentenced him to community corrections.
Effective June 7, 2005, our legislature amended Tennessee Code Annotated section 40-35-102(6)
by deleting the statutory presumption that a defendant who is convicted of a Class C, D, or E felony,
as a mitigated or standard offender, is a favorable candidate for alternative sentencing. Our
sentencing law now provides that a defendant who does not possess a criminal history showing a
clear disregard for society’s laws and morals, who has not failed past rehabilitation efforts, and who
“is an especially mitigated or standard offender convicted of a Class C, D or E felony, should be
considered as a favorable candidate for alternative sentencing options in the absence of evidence to
the contrary. A court shall consider, but is not bound by, this advisory sentencing guideline.” Tenn.
Code Ann. § 40-35-102(5), (6) (emphasis added). No longer is any defendant entitled to a
presumption that he or she is a favorable candidate for alternative sentencing. Carter, 254 S.W.3d
at 347. The Defendant in this case was convicted of a Class C felony, but he is not an especially
mitigated or standard offender.

       The following considerations provide guidance regarding what constitutes “evidence to the
contrary”:

             (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;

               (B) Confinement is necessary to avoid depreciating the seriousness of the
       offense or confinement is particularly suited to provide an effective deterrence to
       others likely to commit similar offenses; or

              (C) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant . . . .

Tenn. Code Ann. § 40-35-103(1); see also Carter, 254 S.W.3d at 347. Additionally, the principles
of sentencing reflect that the sentence should be no greater than that deserved for the offense
committed and should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed. Tenn. Code Ann. § 40-35-103(2), (4). The court should also consider the
defendant’s potential for rehabilitation or treatment in determining the appropriate sentence. Tenn.
Code Ann. § 40-35-103(5).

        Tennessee Code Annotated section 40-36-106(a)(1) outlines six additional criteria, all of
which a Defendant must meet in order to be eligible for community corrections. The trial court
found that the Defendant committed a crime against Polson’s person and that his crime was violent,
thus preventing his eligibility for community corrections under Tennessee Code Annotated sections
40-36-106(a)(1)(B) and 40-36-106(a)(1)(C). We conclude the trial court did not err in making these


                                                -15-
findings. The trial court also found that a community corrections sentence would depreciate the
seriousness of the Defendant’s offense.

        The Defendant further notes the community corrections “special needs exception,” which
states that

       [f]elony offenders not otherwise eligible under subsection (a), and who would be
       usually considered unfit for probation due to histories of chronic alcohol or drug
       abuse, or mental health problems, but whose special needs are treatable and could be
       served best in the community rather than in a correctional institution, may be
       considered eligible for punishment in the community under the provisions of this
       chapter.

Tenn. Code Ann. § 40-36-106(c). While the Defendant is correct in stating that some sentencing
evidence, particularly his criminal record, tended to suggest a history of drug abuse, the section
above simply allows, rather than requires, a sentencing court to grant community corrections for
“special needs.” In its discretion, the trial court in this case chose not to do so. Our review again
persuades us that the trial court considered the sentencing principles and all relevant facts and
circumstances in making this determination. We therefore conclude it did not err in denying the
Defendant a community corrections sentence.

IV. Cumulative Error
       Finally, the Defendant contends that the cumulative effect of the trial court’s errors deprived
him of his constitutional rights to due process and to a jury trial, citing State v. Zimmerman, 823
S.W.2d 220 (1991). The Defendant does not, however, offer any argument in support of this
contention. This issue is accordingly waived. See Tenn. R. Crim. App. 10(b); see also Tenn. R.
App. P. 27(a)(7). We note, however, that our grant of a new trial to the Defendant on his
Confrontation Clause issue obviates consideration of whether the trial court committed cumulative
error.

                                          Conclusion
        Based upon the foregoing reasoning and authorities, we reverse the judgement of conviction
for robbery and remand this case for a new trial.



                                                       ______________________________
                                                       DAVID H. WELLES, JUDGE




                                                -16-
