        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs September 9, 2008

            STATE OF TENNESSEE v. CHRISTOPHER JOHNSON

                 Direct Appeal from the Criminal Court for Shelby County
                           No. 06-06149    Chris Craft, Judge


                  No. W2008-00454-CCA-R3-CD - Filed February 25, 2009


A Shelby County Criminal Court jury convicted the Defendant-Appellant, Christopher Johnson
(hereinafter “Johnson”), of aggravated robbery and aggravated assault. As a Range I, standard
offender, Johnson received concurrent sentences of eight years, nine months for the aggravated
robbery conviction and three years, three months for the aggravated assault conviction. On appeal,
Johnson challenges the sufficiency of the evidence and the sentence imposed solely for the
aggravated robbery conviction. Following our review, we affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.

Gerald S. Green, Memphis, Tennessee, for the appellant, Christopher Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Byron Winsett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

                                  FACTUAL BACKGROUND


        Trial. The following evidence was presented at trial. On January 28, 2006, Debra Holt was
robbed at gunpoint. Holt testified that at approximately one or one-thirty in the morning, she was
at home when she heard her doorbell ring. When she responded to the doorbell, she saw Shirley
Brown through the glass of her wooden door. After opening the door for Brown, Johnson, Brown’s
boyfriend, suddenly appeared in her view. Holt was acquainted with both Johnson and Brown
through her live-in boyfriend, Leon Levy. According to Holt, it was not unusual for Brown and
Johnson to visit her home at that time of night. After Brown and Johnson were allowed in the home,
they asked to see Levy. Holt then led them back towards the bedroom where Levy was asleep. As
Holt was waking Levy, Johnson grabbed Holt around her neck and pointed a gun at Levy while he
was laying in bed. Holt stated that Johnson then forced her and Levy to lay on the floor while he
proceeded to take money from Levy’s pants pocket. As Johnson was dropping the money on the
floor, Brown was retrieving it. Holt testified that Brown then left the house to start the car.
Meanwhile, Johnson forced Holt and Levy to the kitchen and ordered them to lay on the floor until
he left. When Levy heard the front door close, believing that Johnson had left the house, he then
jumped up from the floor. Johnson suddenly reappeared, pointed a gun at Levy, and told him to get
back on the floor.

        On cross-examination, Holt testified that Levy was sleeping in a pajama top and jeans just
before the robbery occurred. Holt also stated that Brown was not in any kind of distress when she
arrived at her home with Johnson.

         Leon Levy testified that he was acquainted with Johnson through Johnson’s brother. Levy
and Johnson’s brother were close friends and lived in the same neighborhood as Johnson’s mother.
Levy identified Johnson as the person who pointed the gun in his face and took the money he had
recently acquired from the sale of his car and working with his nephew. Otherwise, his testimony
was largely the same as Holt’s. On cross-examination, Levy admitted that he had been convicted
of possession of a controlled substance with the intent to sell in 1999. Levy explained that he was
convicted because he was a drug addict and not a seller. He stated that it was “the first thing [he had]
ever done wrong in [his] life, that’s how [he] ended up in [19]99 with a dope charge.” Later, Levy
retracted his statement and clarified that the1999 drug conviction was the “last time [he] had been
in trouble,” and that he has “been in trouble several times.” He testified that he thought that defense
counsel was referring to his 1989 conviction which was actually “the first time [he] was ever in
trouble.” In addition, Levy admitted that he had been convicted twice for pedestrian soliciting rides,
three times for simple possession of a controlled substance, once for selling a controlled substance,
and once for criminal trespass between 1989 and 1999.

        Shirley Brown was unavailable to testify at trial. However, the State and Johnson stipulated
that Brown’s testimony would have been substantially the same as her statement given to Sergeant
Dale Hensley, a detective with the Memphis Police Department. Sergeant Hensley testified that he
personally transcribed Brown’s statement. In addition, the parties stipulated that through cross-
examination, Brown would have revealed that she had been convicted of forgery in 2000.

         Sergeant Hensley read the following portion of Brown’s statement into evidence:1

                  I went over to [Johnson’s] house. I walked on the porch by myself
                  and knocked on the door, and [Holt] answered the door. When [Holt]
                  opened the door, [Johnson] came from the side and rushed in after
                  me. I told [Holt] that I wanted some dope, and we walked to the
                  back. I gave [Holt] the money, and she woke [Levy] up. He was


         1
           Brown’s statem ent, a part of the stipulated testimony, was also entered as an exhibit. Sergeant Hensley’s
reading of the statement as depicted in the transcript contained immaterial differences from that of the actual exhibit.

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               getting ready to serve me, and that’s when [Johnson] grabbed [Holt]
               around the neck, put the gun in [Levy’s] face and asked him where
               the money and the dope -- asked him where was the money and the
               dope. [Levy] gave it to him, and [Johnson] made them lay on the
               floor. I asked him why he was doing this. His response was, “Go
               crank up the car and get in it.” So I went to get into the car. About
               five minutes later, he came and got into the car. He pushed me when
               he got into the car. We were arguing about him robbing my friends,
               and I told him I didn’t want anything to do with this. He said, “. . .
               You don’t have anything to do with it. It’s all on me.”

Brown also stated that “money and dope” were taken in the robbery and that she was forced to
participate.

       Sergeant Hensley testified that he believed Brown’s story because it was similar to the
victims’ account of the robbery and Brown “acknowledged [her] participation in the robbery itself.”
On cross-examination, Sgt. Hensley reiterated that the victims’ stories were substantially the same
as Brown’s account of the robbery; however, Brown was the only person to mention that Holt and
Levy sold some drugs to Brown and Johnson.

       Johnson did not present any proof at trial.

        Sentencing Hearing. A sentencing hearing was conducted on October 26, 2007. At the
hearing, the pre-sentence report was entered into evidence without objection. The report reflected
Johnson’s extensive alcohol and drug use beginning at the age of 10 and a prior conviction for
driving on a revoked license. Additionally, from 2004 to 2007, Johnson had been employed at three
different establishments for a total of seventeen months, all of which ended as a result of Johnson’s
resignation. Further, the report indicated that Johnson dropped out of high school in the tenth grade
in 1997.

        Thomas Johnson, the defendant’s father, was the only witness to testify at the hearing.
Johnson’s father testified that Johnson maintained that he did not commit the robbery. Johnson’s
father also stated that Johnson had not been in any substantial trouble in the past and that his son was
not known to be an unruly person.

        After considering the proof, the pre-sentence report, and the arguments by counsel, the trial
court stated the following:

               [C]onsidering this offense occurred after June [7,] 2005, there’s no
       presumptive sentence. It’s under the quote, new law, unquote. Considering the
       principles of sentencing and arguments made today by you attorneys, the nature and
       characteristics of the conduct involved, the evidence presented, also I have
       considered statistical information provided by the AOC about similar offenses in this


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        case, armed robberies all over the state, which I’ve done on the web site, the
        defendant not having made a statement, I cannot consider his statement but will not
        hold his silence against him.

                ....

                 Going through it, any other factor consistent with the purpose of this chapter,
        I considered the fact that he has no felony record; however, the problem is the rest
        of his life[. H]e apparently has been using cocaine and marijuana consistently for a
        period of years. According to him[,] he stopped using cocaine right before this case
        went to trial. Stopped using marijuana. Drank a half a pint of whiskey every
        weekend. On top of all this substance abuse[,] he wasn’t working. He’d work two
        or three or four months at Taco Bell or something like that and then quit his job. And
        dropped out of high school in the 10th grade. He just basically just lived a wasteful
        life. And just drifted.

                Coupled with the fact that I find no mitigating circumstances, I do find [an]
        enhancement factor. And that’s Enhancement Factor Number 1. Obviously factors
        like used a weapon in the commission of the offense, I can’t consider because[,]
        although true, they are elements of the offense. But I find that he has a previous
        history of criminal behavior and criminal convictions.

Johnson was subsequently sentenced to eight years and nine months in the Tennessee
Department of Correction as a Range I, standard offender for the aggravated robbery
conviction.

                                          ANALYSIS

       I. Sufficiency of Evidence. Johnson argues that the evidence was insufficient to
support his conviction for aggravated robbery because two of the State’s witnesses were
impeached. The State argues that the evidence was sufficient to support the jury’s
conclusion that Johnson committed the offense of aggravated robbery. We agree with the
State.

         When a defendant challenges the sufficiency of the convicting evidence, the standard
of review is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); see also Tenn. R. App. P. 13(e) (2006) (“Findings of guilt in criminal actions whether
by the trial court or jury shall be set aside if the evidence is insufficient to support the finding
by the trier of fact of guilt beyond a reasonable doubt.”). This standard applies to convictions
based upon direct, circumstantial, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).


                                                -4-
         The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all legitimate or reasonable inferences which may be drawn from that evidence. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). All questions involving the credibility of
witnesses, the weight and value to be given the evidence, and all factual issues are resolved
by the trier of fact, and this court will not reweigh or reevaluate the evidence. State v.
Sutton, 166 S.W.3d 686, 689-90 (Tenn. 2005). This court has stated that “[a] guilty verdict
by the jury, approved by the trial court, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659
(citation omitted). A guilty verdict also “removes the presumption of innocence and replaces
it with a presumption of guilt, and the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Id. (citation omitted).

         The State had to prove beyond a reasonable doubt that Johnson committed the offense
of aggravated robbery. Aggravated robbery is a robbery “accomplished 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) (2006). “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) (2006).

         Viewed in the light most favorable to the State, the proof fully supports Johnson’s
conviction for aggravated robbery. Three different witnesses including Brown, a participant
in the robbery, presented substantially the same testimony regarding the offense. Johnson,
armed with a gun, entered the bedroom where Levy was sleeping. Johnson pointed the gun
at Levy forcing him from his bed to the bedroom floor. He then took money from the pants
pocket Levy was wearing at the time of the robbery. Given the above evidence, a rational
trier of fact could have found that Johnson committed an intentional or knowing theft from
Levy’s person by violence accomplished with a deadly weapon beyond a reasonable doubt.
Even though Johnson argues that “the prosecution’s fact witnesses” were “so doubtful,
uncertain and open for discussion” to support his conviction, the jury, rather than this court,
determines the weight and credibility of witness testimony. See State v. Baker, 956 S.W.2d
8, 12 (Tenn. Crim. App. 1997). Accordingly, we conclude that the evidence is sufficient to
support Johnson’s conviction for aggravated robbery.

        II. Sentencing. Johnson argues that the trial court erred in enhancing his sentence
by using factors that have not been found by a jury in violation of Blakely v. Washington,
542 U.S. 296, 124 S.Ct. 2531 (2004). Specifically, Johnson contends that “his previous
history of criminal behavior and criminal convictions” cannot be judicially determined. The
State argues that the trial court did not abuse its discretion by enhancing Johnson’s sentence
by an additional nine months. We agree.

         Our review of the manner of service of a sentence imposed by a trial court is de novo
with a presumption that the trial court’s determinations are correct. T.C.A. § 40-35-401(d)
(2006). 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant, not the State, has the
burden of showing the impropriety of the sentence. T.C.A. § 40-35-401(d) (2006),

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Sentencing Comm’n Cmts.

        When a trial court contemplates a sentence for a convicted criminal defendant, it
must consider: (1) the evidence adduced at the trial and the sentencing hearing; (2) the pre-
sentence 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 the enhancement and mitigating factors set forth in
Tennessee Code Annotated sections 40-35-113 and 40-35-114; (6) any statistical information
provided by the Administrative Office of the Courts as to Tennessee sentencing practices for
similar offenses; and (7) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. See T.C.A. § 40-35-210(b); see also State v. Imfeld, 70 S.W.3d
698, 704 (Tenn. 2002); State v. Osborne, 251 S.W.3d 1, 24 (Tenn. Crim. App. 2007).

       In determining whether a defendant should be required to serve a sentence of
confinement, the trial court must consider if:

      (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[.]

T.C.A. § 40-35-103(1)(A) - (C) (2006); see also Ashby, 823 S.W.2d at 169.

       Prior to 2005, the Sentencing Act required that the trial court begin with a “presumptive
sentence” when determining a defendant’s sentence. T.C.A. § 40-35-210(c) (2003). As a result of
Blakely, our legislature amended the Sentencing Act in 2005 by eradicating the requirement of a
“presumptive sentence” and by providing the following advisory sentencing guidelines:

       (1) The minimum sentence within the range of punishment is the sentence that should
       be imposed, because the general assembly set the minimum length of sentence for
       each felony class to reflect the relative seriousness of each criminal offense in the
       felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate, by the
       presence or absence or mitigating and enhancement factors set out in §§ 40-35-113
       and 40-35-114.

T.C.A. § 40-35-210(c)(1) - (2) (2006). In essence, “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].’” State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008).


                                                 -6-
        As a Range I, standard offender, Johnson’s applicable sentencing range for aggravated
robbery, a Class B felony, is eight to twelve years. T.C.A. §§ 39-13-402(b), 40-35-105 ,-112(a)
(2006). The trial court enhanced Johnson’s sentence by an additional nine months, citing factor (1)
of Tennessee Code Annotated section 40-35-114, which allows the trial court to consider for
enhancement purposes the defendant’s “previous history of criminal convictions or criminal
behavior, in addition to those necessary to establish the appropriate range.” T.C.A. § 40-35-114(1)
(2006). Johnson’s argument, that the above enhancement violated Blakely, is simply misplaced.
Johnson committed this offense on January 28, 2006, and was sentenced under the amended
Sentencing Act. As stated above, the amended Sentencing Act remedied our previously faulty
sentencing scheme and now permits the trial court to enhance a defendant’s sentence within the
applicable sentencing range so long as the trial court properly considered the sentencing principles
and all relevant facts and circumstances. Here, the trial court enhanced Johnson’s sentence and
stated the following:

               [Johnson] has a -- he’s been convicted and got twelve days for driving
               on revoked license, while not that serious offense. For years he had
               bought and used cocaine and marijuana and used drugs for years
               consistently, which is absolute criminal behavior. And I place [a]
               fairly good amount of weight on this because apparently while getting
               high he did nothing else of value. He didn’t work. Didn’t get a GED,
               didn’t get an education, just basically did nothing with his life but get
               high. And now he’s resorting to robbing people at gunpoint, which
               so many of our young men in our county have done, drugs and then
               getting guns and robbing people.


In our view, the record shows that the trial court properly considered the sentencing principles and
all relevant facts and circumstances. Accordingly, we conclude that the trial court did not abuse its
discretion by enhancing Johnson’s sentence by an additional nine months.

                                          CONCLUSION

      Based on the foregoing reasons, we conclude that the evidence was sufficient to sustain
Johnson’s conviction for aggravated robbery and that the trial court did not err by enhancing
Johnson’s sentence by nine months. Accordingly, the judgment of the trial court is affirmed.


                                                               _____________________________
                                                               CAMILLE R. McMULLEN, Judge




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