Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs August 12, 2014
Direct Appeal from the Criminal Court for Davidson County Nos. 2012-D-3219, 2012-D3245 Cheryl A. Blackburn, Judge
James O. Martin, III (on appeal), and Stacey Angello (at trial), Nashville, Tennessee, for the appellant, Atosha Dominique Moore.
Robert E. Cooper, Jr., Attorney General & Reporter; Benjamin A. Ball, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
NORMA McGEE OGLE, JUDGE
I. Factual Background
The Davidson County Grand Jury returned two separate indictments against the appellant, each charging him with a single count of aggravated robbery. On September 20, 2013, the appellant entered best interest guilty pleas to the charged offenses. At the plea hearing, the State recited the following factual basis for the pleas:
[In case number] 2012-D-3219, if that had gone to trial, the State's proof would be that July 8th, 2012, Ms. Gennyfer Coss[, ] who is employed by Pizza Hut[, ] got a call to make a delivery at 829 West Mc[K]ennie Avenue. When she showed up there, she was approached by some subjects who[, ] instead of purchasing the pizza[, ] displayed guns and demanded money. They took cash, the pizza, a cell phone, and fled the scene. The phone number that was used to order that pizza was tracked back to a lady named Woody Arondale (phonetic). Ms. Arondale said that the [appellant], Keith Woods, and Ronnie Woods had stopped by her residence where [the appellant] used her phone and then they left. Ms. Arondale claimed that she didn't know there was going to be a robbery, but she did identify the three people that stopped by her house and used her phone. [The appellant] was put in a photo lineup and identified by Ms. Coss. When he was interviewed, he admitted that he, Keith Woods, and Ronnie Woods had all participated in this robbery. This was here in Davidson County obviously.
[In case number] 2012-D-3245, . . . the proof would be on September the 2nd of 2012 at the Pharmacy restaurant – or just outside the Pharmacy restaurant at 731 Mc[F]errin Avenue a Ms. Rachel Newton and her boyfriend Vincent Lokes (phonetic) were approached by a person who turned out to be the [appellant]. He pointed a gun at them and at Ms. Newton and demanded her money and her iPhone. He took her iPhone and $12 cash. They were able to trace the iPhone immediately when the officer got there to 1012 Apex Street. They surrounded that residence, they went in, they found the phone there. The police talked to [the appellant], who claimed that he had the phone, but he said that he had seen the two people[, ] and the lady put her phone down on a wall[, ] and he had picked up the phone and made off with it without there being any physical violence or threats or guns. And that's in Davidson County as well.
The plea agreement provided that the trial court would determine the length of the sentences.
At the sentencing hearing, Gennyfer Coss testified that on July 8, 2012, she was an employee of Pizza Hut. That night, it was raining, and Coss was making deliveries. After 10:00 p.m., Coss delivered pizza and "hot wings" to West McKennie in east Nashville. When she arrived at her destination, she exited the car and went to the porch. She heard a car door then saw the appellant; she assumed he got out of a car. The appellant walked onto the porch and said, "[T]hat's for me." The appellant began rummaging through his pockets, then he told her that he could not find his wallet. Coss said that the appellant seemed nervous. Coss told him that he could call the store if he found his wallet, then she stepped off the porch. Another man, Keith Woods, came from an alley beside the house. Coss walked toward her car, and Keith Woods walked up to her, pointed a gun in her face, and said, "[G]ive me your money." She took her money from her back pocket and handed it to the man. He also took the bag of pizzas from her. A man came up behind her; although she did not see his face, she assumed it was the appellant. He pointed a gun to the back of her head. Coss began to cry and begged, "[P]lease, don't do this because I have children at home." Keith Woods said "foul things" and told her to be quiet. Thereafter, Keith Woods asked her for the location of her cellular telephone. She responded that the telephone was in her car. The men walked her over to her car. She began to fear "that even if they don't mean to kill me they might accidentally pull the trigger while we were walking." Her knees got weak, and the man she thought was the appellant "sort of carried" her and pushed her into her car. Once inside, she handed Keith Woods her cellular telephone. He saw her purse on the front seat and demanded all of the money in the purse. She pulled out the pockets of the purse to show him that there was no money inside, but he kept demanding, "[G]ive me your money." Coss handed Keith Woods the purse and gave him the change that she kept in the ashtray in her car. Keith Woods warned her, "[D]on't ever be seen in the neighborhood again." After the men left, Coss drove away to a nearby Shell station and called the police.
Coss said that after the offense, she quit her job because she was afraid to deliver pizzas, insufficient hours were available for her to work in the store as a cashier, and she was afraid to work the night shift. She had not been able to find a job making as much money as she had at Pizza Hut. She continued to refuse to work at night.
Coss said that until recently, she had lived in the same neighborhood where the offense happened. She had five children, three of whom lived at home. For approximately one year, the offense "had a major psychological and emotional effect" on Coss and her children. She said that she did not explicitly tell her children about the incident but that they noticed her fear. Even after her assailants were arrested, she ...