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State v. Ketchum

Court of Criminal Appeals of Tennessee, Nashville

May 23, 2017


          Assigned on Briefs April 26, 2017 at Knoxville

         Appeal from the Circuit Court for Maury County No. 23239 Robert L. Jones, Judge

         In February 2015, a Maury County jury convicted Joshua D. Ketchum ("the Defendant") of attempted robbery, for which he received a sentence of seven years' incarceration.[1]On appeal, the Defendant asserts that: (1) the evidence presented at trial was insufficient to support his conviction; (2) his sentence is excessive; and (3) the trial court committed plain error by questioning the Defendant during his allocution. Following a thorough review, we affirm the judgment of the trial court.

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

          Michael D. Cox (on motion for new trial and appeal), Columbia, Tennessee, and Lee E. Brooks (at trial and sentencing), Spring Hill, Tennessee, for the appellant, Joshua D. Ketchum.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Brent A. Cooper, District Attorney General; and Dan Runde, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.



         I. Factual Background


         Lottie Mostiller ("the victim") testified that around 8:15 p.m. on January 7, 2014, she went to Walmart in Columbia to shop for groceries. As the victim exited the store pushing a shopping cart, she had her Dooney and Bourke purse, worth between $200 and $295, sitting in the front part of the shopping cart "where you put the little kids []." As she got to her car, the victim saw a red car "coming around" and noticed a man "sticking [his] head out of the window with the door open . . . talking to [her]." The man, whom the victim identified as the Defendant, got out of the back door of the red car on the driver's side and approached the victim, asking her "how to get to Dickson." The victim was "leery" of the Defendant and held onto the right-hand strap of her purse as he approached. The purse's left-hand strap was "hanging over the handle of the buggy, " and when the Defendant got to the victim, he reached around the victim and grabbed the purse strap. When the Defendant pulled on the left-hand purse strap, the victim pulled back on the other strap and screamed, "[O]h, hell no, you're not getting my pocketbook." As they pulled back and forth on the purse, the Defendant shoved the shopping cart towards the victim, and it began to roll down the parking lot. The Defendant then ripped the left-hand strap from the purse, and the victim ran from the Defendant, threw the purse inside her car, and locked the door.

         The victim testified that she ran from the Defendant because she "wasn't going to let him take [her] purse" and because she was "afraid of what he was going to do." The victim screamed for help, and several bystanders in the parking lot ran to her. The Defendant then "dodged off" and got back into the red car. After the car sped off and left the parking lot, the victim called 911. The victim testified that she had never seen the Defendant before that night and that she did not give the Defendant permission to take her purse. Regarding how she felt at the time of the incident, the victim stated that she was "[a]ngry, upset, [and] scared." She further testified that she did not know if "they [were] going to jump out of the car and attack [her]." She explained that she saw the "shadows" of two other people inside the red car-one in the driver's seat and one in the passenger's seat "laid back."

         On cross-examination, the victim acknowledged that the Defendant did not touch her during the incident, and she was not injured. The victim testified that the incident last only a few seconds but stated that it felt like it lasted several minutes. The victim never recovered the strap that the Defendant ripped off her purse; it was not left in the parking lot. The victim testified that, during the incident, she was trying to protect herself and keep her property and that she screamed for help during the robbery because she was afraid. She stated that she no longer goes shopping at Walmart at night.

         Sergeant Scott Knudson of the Columbia Police Department testified that he was on patrol in the Walmart parking lot on January 7, 2014, when he was flagged down by a bystander at about 8:25 p.m. The bystander directed Sergeant Knudson to the "distraught" victim, who "was looking around rather frantically" and "seemed excited [and] nervous[.]" The victim provided Sergeant Knudson with a description of a vehicle that had been involved in the crime. Sergeant Knudson saw a vehicle matching the victim's description-a red Nissan-approaching a nearby traffic light and immediately sent out a "be on the lookout" or "BOLO" alert for the vehicle to other officers in the area.

         Dr. Tina Weatherford, an elementary school teacher in Maury County, testified that in January 2014 she owned a red Nissan Altima. In the early afternoon of January 7, she allowed one of her sons, John Weatherford, to borrow her car so that he could "go to the end of the street to a friend's house." Later that night, a police officer brought John Weatherford home "as a courtesy." The officer told Dr. Weatherford that John Weatherford had been with her other son, Benjamin Weatherford. Later that night, Dr. Weatherford reported to police that her vehicle was missing; it was found the next day in Mount Pleasant.

         Shannon Stonecipher, an asset protection manager at Walmart, testified that she was contacted on January 8, 2014, by a detective from the Columbia Police Department, who requested that she look at the store's security video from the time of the attempted robbery. Upon reviewing the video, Ms. Stonecipher saw a four-door red or maroon vehicle circle around in the parking lot and come up next to the victim. The video showed the back door of the vehicle open, and a man get out and approach the victim. The man then tried to "grab" the victim's purse. When she fought back, the man ran back to the red car.

         Detective Jason Dark of the Columbia Police Department testified that, after being assigned the case on January 8, he contacted Ms. Stonecipher, and she obtained a video of the incident that occurred in the Walmart parking lot at 8:27 p.m. the night before. Upon reviewing the video, Detective Dark saw that it contained footage of the victim "getting attacked" as a man tried to take her purse. During his subsequent investigation, Detective Dark learned that, at 8:39 p.m. that same night, someone flagged down a patrol officer on Trotwood Avenue at Graymere Church of Christ. The officer found John Weatherford near that location and took him home. Then, at 9:21 p.m., officers responded to a "domestic" call at the Weatherford residence, "which turned into a joy riding complaint by [Dr.] Weatherford." Detective Dark thought that these calls might be related to the incident that happened in the Walmart parking lot, so on January 9, he went to the elementary school where Dr. Weatherford worked and photographed Dr. Weatherford's vehicle to compare it to the vehicle he had seen on the Walmart video. Based on the vehicle's distinctive characteristics, Detective Dark determined that Dr. Weatherford's car was the one in the Walmart video. After speaking with Dr. Weatherford, the detective learned that the Defendant had been with John and Benjamin Weatherford in Dr. Weatherford's vehicle the night of the offense.

         Detective Dark interviewed the Defendant on January 22, after the Defendant waived his Miranda rights. The Defendant admitted that he had been at Walmart on the night of the offense and that he had tried to take the victim's purse. The Defendant further admitted that he had been with John and Benjamin Weatherford and stated that he had attempted to steal the purse in order to get money to purchase crack cocaine. The Defendant provided the detective with a written statement, which read:

I was at Walmart and I was intoxicated an[d] tr[ied] to take a purse from some woman. I never got the purse. The handle broke so I just left, got back in the car, took off. I was very intoxicated and wouldn't have never did [sic] it if I was sober.

         The Defendant did not testify or present any proof. Following deliberations, the jury found the Defendant guilty of attempted robbery.

         Sentencing Hearing

         At the Defendant's sentencing hearing, the State introduced without objection a copy of the Defendant's presentence report. The presentence report indicated that the twenty-six-year-old Defendant had prior misdemeanor convictions for driving on a revoked license, resisting arrest, disorderly conduct, public intoxication, evading arrest, underage consumption of alcohol, five counts of theft under $500, three counts of driving under the influence, three counts of casual exchange, and various traffic offenses. The Defendant also had prior felony convictions for burglary of an automobile, statutory rape, theft over $1, 000, and aggravated burglary. Moreover, the Defendant admitted that he smoked marijuana from the ages of fifteen to twenty-four and took cocaine from the ages of seventeen to twenty-four; he reported that he stopped the illegal drug use when he "got in trouble and went to prison." The Defendant also admitted to abusing Xanax from the age of seventeen until "the night he got these charges."

         Defense counsel argued as a mitigating factor that "in this particular event, there was no violence" and noted that the Defendant's indictment "did not even allege violence." The following exchange then took place:

THE COURT: Is this the one where we had that academic discussion about whether pushing and pulling amounted to violence?[2]
[DEFENSE COUNSEL]: We did, Your Honor. The indictment itself alleged only fear as the predicate to the offense of the attempted robbery. There was never any allegation of any violence at all. I think that's important for the Court to take that into consideration. This isn't a robbery per se that the general person may think of as a robbery, in the mind of a lay person thinking of someone holding a deadly weapon or pretending to hold a deadly weapon. None of those things happened here.

         The Defendant indicated that he wished to make an allocution statement, during which the following exchange occurred:

THE COURT: [The Defendant], you may stand at the podium and tell the Court anything you want the Court to know about sentencing in this case.
[THE DEFENDANT]: I want to start by saying that I wanted to apologize to the lady but she's not here. Evidently, she didn't want to be here, but I was going to apologize to her. Like I said. I know what I did was wrong. I was very intoxicated when it happened. Which ain't no [sic] excuse. I'm guilty of the charge. But it's hard to swallow six to eight years for purse snatching when I was honest with the police. Look on the record, I was honest with him.
THE COURT: Say that again.
[THE DEFENDANT]: I was honest with the police. I never tried to lie about anything. I told them exactly what happened. ...

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