Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 26, 2017 at Knoxville
from the Circuit Court for Maury County No. 23239 Robert L.
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.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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.
L. Holloway, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr.,
L. HOLLOWAY, JR., JUDGE.
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.
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."
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.
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
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.
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.
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.
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.
Defendant did not testify or present any proof. Following
deliberations, the jury found the Defendant guilty of
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."
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
[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.
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
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. ...