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State v. Fleming

Court of Criminal Appeals of Tennessee, Nashville

May 23, 2017


          Assigned on Briefs September 20, 2016

         Appeal from the Criminal Court for Sumner County No. 8522012 Dee David Gay, Judge

         Defendant, Dewayne D. Fleming, was indicted for one count of aggravated burglary, two counts of especially aggravated kidnapping, one count of aggravated rape, and two counts of aggravated robbery. Defendant was convicted by a jury as charged. The trial court sentenced Defendant to six years for the aggravated burglary conviction; 12 years for each aggravated robbery conviction; 25 years for the aggravated rape conviction; and 25 years for each of the two especially aggravated kidnapping convictions. The trial court found Defendant to be a dangerous offender and imposed partial consecutive sentencing. The court ordered Defendant's aggravated robbery sentences to run concurrently with each other and his especially aggravated kidnapping sentences to run concurrently with each other. However, the court ordered that Defendant's sentences for aggravated robbery, especially aggravated kidnapping, and aggravated rape run consecutively, for an effective sentence of 62 years. In this appeal as of right, Defendant asserts that: 1) the evidence was insufficient to support his convictions because the accomplice testimony was uncorroborated; 2) the trial court erred by instructing the jury on theories of criminal liability that were not included in the indictment; 3) Defendant's convictions for especially aggravated kidnapping violate due process because the State failed to establish that the confinement was greater than necessary to commit the other felonies; and 4) the trial court erred in imposing consecutive sentencing. Having reviewed the entire record and the briefs of the parties, we affirm the judgments of the trial court.

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

          Patrick G. Frogge, Nashville, Tennessee, for the appellant, Dewayne D. Fleming.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Lawrence Ray Whitley, District Attorney General; Lytle Anthony James and Tara Wyllie, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Alan E. Glenn and Robert H. Montgomery, Jr., JJ., joined.




         Defendant was indicted along with a co-defendant, Emonnie Branch, for the offenses that arose from a home invasion in which the male victim, B.H., was tied up, kicked, and robbed, and his wife was repeatedly raped. A third co-defendant, Mitchell Beverly, agreed to testify against Defendant at trial.

         Mitchell Beverly testified that he participated in the home invasion, robbery, and rape of the victims on June 12, 2012. He testified that he met Defendant and Branch shortly before the offenses occurred. Beverly testified that he had a drug problem. He told Defendant that he thought they could rob the victims, who were renting a home from Beverly's parents. Beverly had the keys to the home. The three men met at the home of Cortez McClellan. Branch's girlfriend, Jessica Merritt, and Keith Pride, McClellan's roommate, were also present. Beverly testified that he, Defendant, and Branch drove to the victims' home in Merritt's grandmother's car, a black Dodge Neon, because Beverly's truck had expired tags. Beverly testified that they did not have a plan and they "were just kind of winging it[.]"

         Beverly stayed in the car, parked approximately 50 to 75 yards away from the victims' home, while Defendant and Branch entered the home. Branch was armed with a BB gun, and Defendant had a flashlight. They both wore gloves and "doo-rags" around their faces. Beverly waited "a really long time" for Defendant and Branch to return. Defendant returned to the car and told Beverly to move the car. Beverly parked the car in the victims' driveway, and Branch ran outside carrying a flat-screen television. Beverly helped Branch load the television into the car, and Defendant went back inside the house to retrieve more items. Defendant returned with some bags "full of stuff." Defendant and Branch also took another large television. The men put both televisions in the backseat of the car because they would not fit inside the trunk. Beverly had to lie down on top of the televisions, and the screen on the larger television cracked from the weight of his body.

         During the drive back to McClellan's house, Branch "bragged about raping [the female victim]." Defendant stated that he had kicked B.H. in the head during the robbery. They unloaded the car at McClellan's house and began "to divvy it up between everybody." Beverly testified that he "got a gold wedding band and a laptop computer." Defendant "got a Nikon camera with a telephoto lens on it." The following day, Beverly and Branch sold the camera to a pawn shop. On cross-examination, Beverly acknowledged that he lied to the police after his arrest on June 19, 2012. He testified that Defendant and Branch told him to stay in the car.

         Jessica Merritt testified that she remembered going to McClellan's house in June with Branch. They drove her grandmother's Dodge Neon. McClellan, Pride, Defendant, and Beverly were also there. Merritt had taken prescription medication, and she fell asleep on the couch at McClellan's house. She testified that Branch woke her up to borrow her car keys, and she fell asleep again. Branch told her that he was going to drive Defendant to Defendant's girlfriend's house. Merritt woke up sometime after dark and saw Defendant, Branch, Beverly, and McClellan carrying a television inside. Merritt could not recall details of the event at trial or if the television screen was cracked. She testified, "I've tried to put all this behind me, and I mean, it's all a blur to me. I mean, I don't remember." She acknowledged that she told police that the television had a crack in it. She acknowledged that some of the victims' stolen property was found at her home. She testified that Branch had brought it there. Merritt testified that she did not "see how it would be possible" for an adult and two large televisions to fit into the backseat of her grandmother's car.

         Detective Ron Brawner, of the Sumner County Sheriff's Department, investigated this case. He interviewed the female victim at the hospital. A rape kit was collected, and the DNA obtained from the rape kit matched Branch. Detective Brawner traced the serial numbers of some of the stolen items and found that they had been pawned by Beverly. Detective Brawner interviewed Beverly. Beverly gave several inconsistent statements and minimized his involvement. Detective Brawner confronted him with evidence of cell phone records that identified his location during the incident, and Beverly gave his account of what happened. Beverly told Detective Brawner that they had trouble getting both televisions into the backseat of the vehicle and one of the screens cracked when he fell on it. Detective Brawner testified that another detective measured the backseat of the vehicle and determined that it was "[j]ust barely" possible to fit two televisions inside.

         Detective Brawner also interviewed Cortez McClellan and Keith Pride. Detective Brawner interviewed Jessica Merritt, and she told him that she had seen the men carrying a television with a cracked screen into the house. Detective Brawner testified that Beverly denied having a key to the victims' residence. Beverly admitted that he gave the key to Defendant and Branch after Detective Brawner told him he had found the key on Beverly's key ring. Detective Brawner acknowledged that one of the victims testified at the preliminary hearing that Branch used the name "Demetrius" in referring to the other intruder. Detective Brawner was never able to connect anyone with that name to the crime. Detective Branch testified that the Dodge Neon was never processed for evidence.

         Detective Christian Booth went to McClellan's home on June 15, 2012. McClellan, Defendant, and Pride were present. Detective Booth saw several large televisions in the living room. One of the televisions had a cracked screen, and another television was on the floor, unplugged. He also did a "phone scan" on Branch's phone and found a photograph of one of the televisions.

         The male victim, B.H., testified that on the night of June 12, 2012, at approximately 10:30 p.m., his wife woke him and told him that two men were inside their home. He woke up and saw two African-American men standing in his bedroom. They had "flashlights and a gun [and were] ordering [him] to get out of bed." One was wearing a light-colored shirt, and the other was wearing a dark-colored shirt, and they were both wearing baseball caps and had bandanas covering their faces. B.H. testified that the men were "both average build, not very big, " and they "looked like kids." They demanded that the victim give them a rope, and he told them that he did not have a rope. The men used a bed sheet to tie B.H.'s hands behind his back. The victim asked the men not to hurt his two children, who were also inside the house. The men told him that they would not hurt the children as long as the victims did whatever they asked. One of the men demanded that the victim give them his guns, drugs, and money, and the victim told them that he did not have any of those. The victim told him that he had $50 in his wallet in the kitchen. The man could not find the victim's wallet, and he returned to the bedroom and threatened to kill the victim. The victim told him his wallet might be in his shorts. B.H. could hear his wife being raped by one of the men in the bathroom. He tried to get up, and the other man kicked him in the head. The men "ripped the TV off [the] wall in the bedroom." The men also took another television, a laptop, gaming system, and they took the wedding rings off both victims' fingers.

         B.H. testified that he saw Defendant, Beverly, and Branch at the preliminary hearing. He testified that Beverly "was very tall and slender, and [Defendant] and Branch were short and stocky." He testified that Beverly's build did not match either of the intruders. B.H. identified Branch as the person who raped his wife. He testified that he could not identify Defendant as the other individual in his home.

         A.H., the other victim, testified that that she had "very poor vision." She testified that she heard their dogs barking on the night of the intrusion, and a few moments later, she saw two men in her bedroom. She testified that the men told her they would not hurt their children if the victims did what the men told them to do. One of the men removed their wedding rings from the victims' fingers and tied B.H's hands using a bed sheet. The other man said, "'[y]ou finish tying him up while I rape this one real quick.'" He held a gun to A.H.'s head and walked her into the hallway. He opened the door to her daughter's room and then closed it. He took her into the bathroom and pushed her against the wall and vaginally raped her. He told her to call him, "Daddy." He then ordered her to get into the bathtub and wash her vagina. She could hear both men "running through the house." The same man who raped her returned to the bathroom and asked her what his name was, and she responded, "Daddy." "[A]fter some time had passed, " he returned to the bathroom again and ordered her to perform oral sex on him. He threatened to "blow [her] head off" if she bit his penis. He ordered her to get back into the bathtub. He returned a third time and ordered A.H. to sit on him, and he raped her vaginally again. He then ordered her to bend over, and he raped her anally. He then raped her orally again, and he told B.H., "'[y]our wife gives good head. You should compliment her more.'" A.H. was worried that her children would wake up. She could hear the men "ransacking [their] house." The same man returned to the bathroom and raped A.H. again. She heard the men rummaging around the house and removing things from the house. She then heard them drive away. A.H. testified that she could not identify Defendant as the second intruder "because he had on - intruder number two had on a bandana that covered his face entirely and a hat pulled down low and a flashlight in [her] face."

         Cortez McClellan testified for the defense. He testified that he lived with Keith Pride in a duplex apartment. McClellan knew Defendant and Branch from high school. He testified that he and Defendant were friends, and McClellan had promised Defendant's mother to keep him out of trouble. He testified that he knew Beverly, but he did not like him "[b]ecause he's fake." McClellan testified that he played basketball with Defendant on the day of the incident. They returned to McClellan's apartment, and McClellan, Defendant, and Pride fell asleep. Branch arrived at McClellan's apartment, and he was carrying Jessica Merritt. McClellan testified that Merritt was "out of it." He never saw Merritt awake that night. When McClellan awoke, he saw Branch and Beverly carrying a television inside. McClellan thought that Branch was bringing his belongings into the apartment to leave there because "he had got[ten] put out at his dad's house[.]" McClellan noticed that the screen was cracked. He testified that neither he nor Pride helped carry anything into the apartment. McClellan testified that he did not hear any discussions between Defendant, Beverly, and Branch about planning a robbery. He testified that he did not receive any of the items stolen from the victims' home. McClellan testified that Branch and Beverly told him after they returned that they had robbed a home and that Branch had raped the woman who lived there.

         McClellan gave two statements to the police. He testified that he never told police that Defendant had left his apartment that night. He told police that Branch and Beverly left the apartment. McClellan testified, "I'll tell you like I told [the detectives]. When I went to sleep, [Defendant] was there on my couch. I woke up; he's still sitting there on my couch with the exact same clothes on." He testified that when he told Detective Brawner that "they" left his apartment, he was referring to Branch and Beverly. He acknowledged that he told Detective Brawner that he was asleep when Branch, Beverly, and Defendant left his apartment. McClellan admitted that he did not know if Defendant left with Branch and Beverly because he was asleep.

         Defendant did not testify or present any other witnesses.

         Sentencing ...

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