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State v. Dobson

Court of Criminal Appeals of Tennessee, Nashville

December 13, 2016

STATE OF TENNESSEE
v.
MARK BRIAN DOBSON aka MARK B. MARTIN

          Assigned on Briefs December 1, 2015

         Appeal from the Criminal Court for Davidson County No. 2013-C-2464 Mark J. Fishburn, Judge

         A Davidson County Criminal Court Jury convicted the Appellant, Mark Brian Dobson, of five counts of especially aggravated kidnapping, one count of aggravated burglary, and one count of employing a firearm during the commission of a dangerous felony. After a sentencing hearing, he received an effective seventy-year sentence. On appeal, the Appellant contends that (1) the evidence is insufficient to support the convictions, (2) the trial court improperly denied his motion for a continuance, (3) the trial court erred by admitting into evidence a recorded telephone call in which his mother mentioned a stolen firearm, (4) the indictment for the charge of employing a firearm during the commission of a dangerous felony was defective for failing to name the underlying dangerous felony, (5) the trial court improperly instructed the jury on employing a firearm during the commission of a dangerous felony, and (6) his effective sentence is excessive. Based upon the record and the parties' briefs, we conclude that the Appellant's sentence for employing a firearm during the commission of a dangerous felony in count eleven must be modified and remand the case to the trial court for correction of that judgment and to correct a clerical error on the judgment for count twelve. The judgments of the trial court are affirmed in all other respects.

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

          David M. Hopkins (on appeal), Murfreesboro, Tennessee, and Newton Holiday and Shawn Caster (at trial), Nashville, Tennessee, for the appellant, Mark Brian Dobson.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Sarah Davis, Sara Beth Meyers, and Jan Norman, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         In July 2013, the Davidson County Grand Jury indicted the Appellant for the especially aggravated kidnapping with a deadly weapon of Laquitta Waters; four counts of especially aggravated kidnapping with a deadly weapon of Waters' four children, K.W., A.G., M.M., and M.W.; the aggravated burglary of Waters' home; employing a firearm during the commission of a dangerous felony; the domestic assault of K.W.; and the domestic assault of Waters. The indictment alleged that the domestic assault of Waters occurred on July 23, 2011, but that the remaining counts occurred on July 22, 2011. Before trial, the Appellant pled guilty to the domestic assault of Waters, a Class A misdemeanor.

         At trial on the remaining eight counts, Waters testified that she was thirty-four years old and had four children: two sons, K.W. and M.W., and two daughters, A.G. and M.M. Waters and the Appellant had been dating "off and on" for four years at the time of the alleged offenses, and M.M. and M.W. were the Appellant's children. The Appellant sometimes stayed at Waters' home and was sometimes violent with her. Waters said she previously had warrants issued for his arrest but did not pursue the charges because "I was just in love and just didn't come down here to show up at the time."

         Waters testified that in late June or early July 2011, she and her children moved into an apartment on Lemont Drive. Waters' name was on the lease, she paid the rent, and she did not give the Appellant a key. The apartment had three bedrooms. K.W., who was eleven years old, slept in the first bedroom, and A.G. and M.M., who were nine and five years old, respectively, shared the second bedroom. Waters said that her bedroom was "the last room with the balcony in the back" but that she and M.W., who was just a couple of weeks old, slept in the second bedroom with A.G. and M.M. Waters and the Appellant were not "together" at that time, but Waters would see him when she took the children to his mother's house.

         Waters testified that in the early morning hours of July 22, she and the four children were sleeping in the second bedroom. Waters and M.W. were in one twin bed, A.G. and M.M. were in a second twin bed, and K.W. was on the floor. Waters said that "the light come on" and that the Appellant came into the bedroom. The Appellant had a gun, put it to Waters' head, and accused her of trying to sell sex on Facebook. Waters said that she asked the Appellant what he was talking about and that he "kept going on and on about 'log on Facebook, ' and, you know, waving a gun around walking back and forth right there . . . in between the beds and stuff." Waters got out of bed and told the Appellant to leave. K.W. started to leave the bedroom, but the Appellant pushed K.W., causing the boy to hit his knee on the end of the bed.

         Waters testified that the Appellant refused to leave, went into the living room, and pushed the couch in front of the apartment door. The Appellant told Waters, "[A]in't nobody going nowhere.'" He then moved M.M. into the living room, lay on the couch, and put the gun beneath a pillow under his head. Waters and the three other children remained in the bedroom. Waters said that she could not go back to sleep and that the Appellant checked on her several times during the night to make sure she was not trying to help the children escape.

         Waters testified that she had locked the door to her apartment prior to the incident and that she did not know how the Appellant got inside the apartment. The Appellant took Waters' cellular telephone and car keys, and she was scared. She said the Appellant's gun was a black pistol and was "shaped like" a police officer's gun. Waters explained that she did not try to escape from the apartment because she was afraid the Appellant would hear her and hurt her and the children. At daylight, Waters lied to the Appellant by telling him that one of the children had an appointment at Centerstone, a community mental health care center. Waters also told the Appellant that the police would come to the apartment if Waters did not "show up" for the appointment. The Appellant allowed the children to get dressed, everyone got into Waters' car, and Waters drove to Centerstone.

         Waters testified that she and the children went into Centerstone while the Appellant waited in the car. Waters told a woman at the front desk about the Appellant and told her to call the police. Five or ten minutes later, the Appellant came into Centerstone, and the woman at the desk told him to leave. Centerstone employees took Waters and the children into a secure area to wait for the police. The Appellant left before the police arrived, and Waters did not see him again that day.

         Waters testified that the following night, July 23, she was at a friend's house. She said she was sitting outside "listening to some music, drinking and dancing and stuff" and saw the Appellant running on the sidewalk toward her. Waters ran around her car, and the Appellant "leaped" over the hood and grabbed her. She said he "slung" her onto the ground, "stomp[ed]" on her face, and ran away. Waters flagged down a police officer and told him what had happened. She said she had a "busted" blood vessel in her eye and a "busted" lip, and she identified photographs of her injuries for the jury. During the next month, the Appellant continued to contact Waters. On August 29, the Appellant demanded to see M.W. Waters let the Appellant into her apartment to see the baby, but he refused to leave. The next day, Waters made up an excuse to leave the apartment and telephoned the police. The police came to the apartment and arrested the Appellant. After the arrest, the Appellant continued to contact Waters. The Appellant telephoned her from jail, and she accepted his calls. She said that she told him to stop calling but that he continued to do so. Waters finally stopped accepting the Appellant's calls in 2012.

         Waters testified that the Appellant sent her letters from jail, and she identified letters written by him for the jury. In a letter dated October 19, 2011, the Appellant apologized to Waters for "fighting on" her and asked that she forgive him for "all the wrong and pain" he had caused. In a letter dated October 20, 2011, the Appellant threatened to harm "that [N***a] you with." In a letter dated December 9, 2011, the Appellant stated that he would not allow Waters to be with another man and threatened to kill "that [n***er] before I let him have my soulmate." Waters said she was afraid the Appellant would kill her too.

         On cross-examination, Waters testified that the door of her apartment was not broken, and no windows were damaged. The door was dead-bolted on the night of July 22 and could only be opened from the inside by turning the lock or from the outside with a key. K.W. did not see a doctor for the injury to his knee, and Waters did not photograph the injury. Waters acknowledged that she was drinking alcohol on the night of July 23 and that she did not try to run into anyone's house to get away from the Appellant.

         Waters acknowledged that she spoke with Detective Jason Osborne on the telephone on August 1, 2011, that he asked if she knew the Appellant's whereabouts, and that she told the officer no. She denied that the Appellant was "standing right there" during her conversation with the officer. Sometime after the incident on July 22 but prior to the Appellant's arrest, Waters took the children swimming at a Red Roof Inn. The Appellant was also present. A warrant had been issued for the Appellant's arrest, but Waters did not telephone the police. She denied that the Appellant accompanied her to a pediatric appointment for M.W. when M.W. was two months old.

         Waters acknowledged that a warrant had been issued for the Appellant's arrest when she let him into the apartment on August 29. She also acknowledged that the police did not find a gun on his person or in her apartment when they arrested him on August 30. Waters denied giving the Appellant money or sending him cards while he was in jail. She identified an envelope, addressed to the Appellant and with her return address, containing photographs of her children. Waters acknowledged taking the photographs but denied mailing them to the Appellant, stating that his mother may have sent them.

         Waters testified that the Appellant was present for the births of his children and that he signed M.M.'s birth certificate; however, he did not sign M.W.'s certificate. The Appellant questioned M.W.'s paternity, so a DNA test was performed after the Appellant's arrest. The test showed that the Appellant was M.W.'s father.

         On redirect examination, Waters acknowledged that she called 911 on July 25 and July 28, 2011, trying to have the Appellant arrested. On recross-examination, she acknowledged that every time she telephoned the police, she told them the Appellant had a gun. However, the police did not find a firearm related to this case.

         Thirteen-year-old K.W. testified that in July 2011, he was living with his mother, brother, and sisters on Lemont Drive and that the Appellant did not live with them. One night, K.W. was asleep in his bedroom but heard a commotion in his sisters' bedroom. K.W. said that he went into the room, that the Appellant "was like 'log into Facebook, log into Facebook right now, '" and that the Appellant was pointing a gun at Waters' head. The gun was black and looked like a pistol. K.W. said that he did not know how the Appellant got into the apartment but that "I think the window [was] broke in.'"

         K.W. testified that he was scared and that he was "trying to go over there." However, the Appellant pushed K.W. K.W. hit his ankle on the bed rail and started crying. Waters asked the Appellant what he was talking about, but the Appellant went into the living room and moved the couch in front of the door. At some point, the Appellant told M.M. "to go lay down back where he was." During the night, the Appellant checked the bedroom to make sure Waters and the other children were not trying to get out of the apartment.

         K.W. testified that the next morning, his mother drove everyone to Centerstone. Waters and the children went inside, and Waters told someone at the front desk that "he got a gun, help us." K.W. said the Appellant came in "like two minutes behind us." The Appellant claimed that Waters was crazy and that he did not have a gun. A woman took Waters and the children to a back room, and the Appellant "went off somewhere."

         On cross-examination, K.W. acknowledged that the Appellant helped the family move into the apartment on Lemont Drive. On the night of the altercation in the bedroom, K.W. heard Waters and the Appellant yelling. K.W. went to the bedroom and saw that the light was on. Waters was lying in bed, and the Appellant was standing near her. K.W. said that he "tried to stop it" and that the Appellant pushed him. K.W.'s ankle hit the bed and was hurting but was not swollen or bruised. During the drive to Centerstone, K.W. did not see the Appellant with a gun.

         Julie Magin testified that on July 22, 2011, she was working at the front desk at Centerstone. An African-American woman with children came inside and said that a man was trying to kill her. The woman was "panicked" and told Magin to call 911. Magin said that she telephoned the police and that Centerstone staff moved the woman and children "behind locked doors." Shortly thereafter, an African-American man came into the facility. He did not say anything to Magin but lifted his hands and the front of his shirt to show that he did not have any weapons. Magin did not tell the man to leave, but he left the building immediately.

         Melaton Bass-Shelton testified that she was the Clinic Manager for Centerstone. On July 22, 2011, a woman came into the facility and "made a statement that she was in fear for her life." The woman was "in a panicked state" and said that a man had held her at gunpoint. Bass-Shelton moved the woman and the woman's children to the other end of the building and had staff call 911. The police arrived and looked for the man but could not find him.

         Officer Terry Richards of the Metropolitan Nashville Police Department (MNPD) testified that on July 22, 2011, she responded to a call involving a weapon at Centerstone. When she arrived, she interviewed Waters, and Waters told her the following: The Appellant broke into Waters' home; held a gun to her head; and shoved her son to the floor, injuring his knee. The Appellant then barricaded the door with a couch so that Waters and her children could not leave. Waters later lied to the Appellant about having an appointment at Centerstone, and the Appellant rode with them to the appointment. During the drive, the Appellant held a gun to Waters' head and told her, "'I ought to kill you right now.'" When they arrived at Centerstone, Waters and the children went inside, and Waters asked the staff to call the police. The police arrived and looked for the Appellant but could not find him.

         Johnetta Gordon testified that she was Waters' cousin. She did not know the Appellant but "[knew] of" him. On July 23, 2011, Gordon and Waters were at a cookout and were outside "listening to music, having a good time." Suddenly, Gordon saw the Appellant "run out on [her] right side" and jump over the hood of a car. The Appellant knocked Waters down and asked Gordon, "What [you] got to do with it[?]" Gordon felt threatened and answered, "[N]othing." She ran onto her aunt's porch. On cross-examination, Gordon acknowledged that she had a prior conviction for shoplifting.

         Detective Clarence Thompson of the MNPD testified that on July 22, 2011, he interviewed Waters at the police department's Domestic Violence Division and that she told him the following: Waters woke to find the Appellant standing over her with a gun, and he told her, "'I should kill you now.'" Waters gathered her children, and they all went into one room. The Appellant put a couch or loveseat in front of the door and held Waters at gunpoint all night. That next morning, Waters told the Appellant that one of the children had an appointment at Centerstone, so the Appellant went with Waters and the children to the facility. During the drive, the Appellant pointed the gun at her and told her, "'I should kill you in front of your kids.'" When they arrived at Centerstone, Waters and the children went ...


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