Court of Criminal Appeals of Tennessee, Nashville
Session: October 19, 2016
from the Circuit Court for Rutherford County No. F-72641
David M. Bragg, Judge.
Rutherford County Circuit Court Jury convicted the Appellant,
Brandon Frost, of two counts of aggravated kidnapping, one
count of aggravated robbery, and one count of attempted
aggravated robbery. The trial court imposed a total effective
sentence of ten years in the Tennessee Department of
Correction. On appeal, the Appellant challenges the
sufficiency of the evidence sustaining his convictions,
contending that he did not demand money or property from the
attempted aggravated robbery victim and that his confinement
of the kidnapping victims was incidental to the robbery
offenses. The Appellant also contends that the trial court
erred by failing to consider mitigating factors when
determining the length of his sentences and by failing to
grant alternative sentencing. Upon review, we affirm the
judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
L. Melton (on appeal) and Russell N. Perkins (at trial and on
appeal), Murfreesboro, Tennessee, for the Appellant, Brandon
Herbert H. Slatery III, Attorney General and Reporter; M.
Todd Ridley, Assistant Attorney General; Jennings H. Jones,
District Attorney General; Shawn Puckett and Sarah Davis,
Assistant District Attorneys General, for the Appellee, State
McGee Ogle, J., delivered the opinion of the court, in which
John Everett Williams and Robert W. Wedemeyer, JJ., joined.
MCGEE OGLE, JUDGE.
Rutherford County Grand Jury returned a multi-count
indictment charging the Appellant with two counts of
especially aggravated kidnapping, one count of aggravated
robbery, and one count of attempted aggravated robbery. The
charges stemmed from the Appellant's entering a car
occupied by Dale and Janet Lature, holding Mr. and Mrs.
Lature at knifepoint, and taking money from Mrs. Lature.
trial, Janet Lature testified that on the night of May 26,
2014, she and her husband, Dale Lature, went to the Subway
restaurant on the corner of Stones River Road and
Murfreesboro Road in Lavergne. However, the restaurant had
closed early because it was Memorial Day. Mr. and Mrs. Lature
went inside Fortune Express, a Chinese restaurant in the same
strip mall as Subway, and ordered food to take home. They
left the restaurant around 7:45 p.m. and returned to their
Honda Civic, which was parked in the strip mall parking lot.
Mr. Lature unlocked the driver's door, got into the car,
and unlocked the other doors. Mrs. Lature got into the front
passenger seat. As she sat down, the Appellant opened the
back passenger side door, got into the middle of the back
seat, and began yelling for Mr. Lature to start driving. Mrs.
Lature described the Appellant as a white male, approximately
twenty years old, with "straight hair that was very
close to his skin." He was wearing a t-shirt that was
"earth tones. Like greens and browns and blue and
black." Mrs. Lature saw what appeared to be the tops of
large letters on the shirt but could not discern what was
written on the shirt.
Mrs. Lature thought the Appellant was joking, but when she
turned to look at him, she saw that he was holding a knife
"so that it was between [her and her husband]. He could
have gone either way." Mrs. Lature was shocked and
scared and could only describe the knife as not "a
dinner knife" or "a box cutter." The Appellant
said, "[A]ll I want is a little bit of money and for you
to drive. I'm not going to hurt you as long as you do
what I say." Mrs. Lature turned back around to face the
front of the car, and Mr. Lature asked where the Appellant
wanted to go. The Appellant responded, "I'll tell
you where, just drive." Mr. Lature drove out of the
parking lot, turned onto Stones River Road, and proceeded
toward the intersection with Murfreesboro Road. The Appellant
told Mr. Lature to turn right onto Murfreesboro Road. Mrs.
Lature could not recall the other directions the Appellant
Lature said that while Mr. Lature was driving, the Appellant
either pointed the knife or nodded his head toward Mrs.
Lature's purse, which she was holding in her lap, and
said, "[S]how me what you have got there." Mrs.
Lature said that because the Appellant had said he wanted
money, she "knew some kind of request was coming."
Mrs. Lature searched her purse and gave the Appellant all of
the "paper money" she could find, which was
fifty-nine or sixty dollars. Mrs. Lature said that she gave
the Appellant money only because he had a knife. Mrs. Lature
glanced at the Appellant so she would remember how he looked.
She noticed that he occasionally ducked down in the back seat
as if he were hiding.
Lature recalled that when they reached a residential area,
the Appellant told Mr. Lature to stop the car. After Mr.
Lature complied, the Appellant said that he was going to get
out of the car and that they should continue driving. The
Appellant said, "[S]orry for the inconvenience, have a
blessed day, " then exited the car and ran away. Mrs.
Lature estimated that the incident lasted five minutes but
said that it seemed to last an hour. She stated that while
the Appellant was in the car, she did not feel free to leave.
the Appellant left, Mr. Lature drove for a while then called
911. Mr. and Mrs. Lature met with the police at the nearby
Lavergne First United Methodist Church and then went to the
police station and gave a statement. While Mr. and Mrs.
Lature were at the station, the police showed them a
photograph of the Appellant, from which Mrs. Lature
identified the Appellant as the perpetrator. Thereafter, the
police brought the Appellant into the station. The Appellant
was wearing different clothes, but Mrs. Lature was able to
identify him as the perpetrator. She also positively
identified the Appellant in court and identified a t-shirt
that appeared to be the one the Appellant was wearing during
Lature said that in November 2014, the Appellant called her
cellular telephone while she was in a car with Mr. Lature.
Mr. Lature answered the telephone via the car's Bluetooth
device. The Appellant identified himself and said that he
wanted to apologize. He reassured Mr. and Mrs. Lature that
"he wasn't that kind of a person" and that he
had "found God." Mrs. Lature said that the
Appellant acknowledged the call "would have no bearing
on his case. But he just wanted to let [them] know that he
wasn't a bad person." The call frightened Mrs.
Lature because she did not know how the Appellant knew her
cross-examination, Mrs. Lature acknowledged that in her
statement to the police, she said that the Appellant said
"just drive" and "I'm not going to hurt
you." She further acknowledged that she said the
Appellant "didn't sound angry, just
determined." She thought the Appellant's apology as
he got out of the car and his comment to have a "blessed
day" was unusual. Mrs. Lature said that during the
telephone call, the Appellant did not try to get her or her
husband to "do anything."
Lature testified that around 7:30 or 8:00 p.m. on Memorial
Day 2014, he and his wife went to get food from Subway, which
was in the "Food Lion shopping center." Because the
restaurant was closed, they went to the Fortune Express
restaurant, got some food, and returned to their car. They
did not notice anyone else in the parking lot. Mr. Lature
unlocked the doors, and they got into the car. Mr. Lature
heard someone get into the back seat and close the door. Mr.
Lature was able to see that the person was a young, white
male, but he could not identify the Appellant as the man
inside the car. The Appellant had a knife and instructed Mr.
Lature to drive. Mr. Lature complied.
Lature said that the Appellant asked, "[W]hat do you
have there in terms of money?" Mr. Lature thought the
Appellant was speaking to him and his wife. The Appellant
promised not to hurt them if they complied with his demands
to "drive [him] somewhere and give [him] a little
money." The Appellant told Mr. Lature to drive down
Murfreesboro Road then gave further directions. When they
reached Mason Road, the Appellant told Mr. Lature to stop.
The Appellant got out of the car and said, "[S]orry for
the inconvenience, have a blessed day."
Lature was unsure whether the Appellant displayed the knife
throughout the incident but surmised that he probably did
not. After the Appellant got out of the car, Mr. Lature drove
away and called 911. They met the police at a Methodist
church on Waldron Road and then went to the police station
and gave a statement.
Lature said that neither he nor Mrs. Lature told the
Appellant their names and that the Appellant did not take
anything that would reveal their identities. Nevertheless,
sometime after the offense, they received a telephone call
from the Appellant. The Appellant said that after he was
incarcerated, he realized that he made a bad decision on
"that night back in May" and that he hoped they
could forgive him. Mr. Lature thanked the Appellant for
calling. Mr. Lature said that the Appellant's statements
sounded "pre-written" but sincere.
Lature said that he had never met the Appellant before the
night of the robbery. Mr. Lature did not feel free to leave
while the Appellant was in the car with the knife. During the
incident, Mr. Lature felt "apprehensive" and
cross-examination, Mr. Lature said that the Appellant was
pointing at Mrs. Lature's purse when he said "let me
see what you have got there." Mr. Lature said that once
he saw the knife, he did not turn to look at the Appellant or
parties stipulated that Mr. and Mrs. Lature's telephone
number was in the discovery materials provided to the defense
by the State.
Steven Crotts, a crime scene technician with the Lavergne
Police Department, testified that he was dispatched to a
church on Waldron Road to meet with Mr. and Mrs. Lature.
After they told Officer Crotts about the incident, he took
them to Mason Road so they could show him where they had left
the Appellant. Subsequently, he took them to the police
station, and they wrote statements regarding the incident.
Officer Crotts took photographs of their blue Honda Civic,
but he was unable to find usable fingerprints on the vehicle.
Matt Fracker testified that he spoke with Mr. and Mrs. Lature
at the police station. Afterward, Detective Fracker learned
that a potential suspect was at Right Road Ministries
("Right Road"), which was a "recovery rehab
type center." Detective Fracker spoke with Ross
Marshall, a resident at Right Road, then talked with Lemarcus
Moore, who shared a room with the Appellant. After receiving
the Appellant's consent, Detective Fracker searched the
Appellant's room and found a light blue and green t-shirt
on the bed. Detective Fracker later showed the shirt to Mrs.
Lature, who identified it as the one the Appellant was
wearing during the crimes. Additionally, she identified the
Appellant as the perpetrator.
Moore testified that in May 2014, he was living at Right
Road, which he described as a "transition" facility
to help people "get back up on their feet." Mr.
Moore had two roommates, one of whom was the Appellant. Mr.
Moore was unsure whether the Appellant had a job at the time
of the offense. On the day of the robbery, Mr. Moore did not
see the Appellant until 7:00 or 8:00 p.m. The Appellant came
into their room "real sweaty" and "out of
breath, " removed his blue shirt, and put on a white
shirt. Mr. Moore identified the shirt found by Detective
Fracker as the one the Appellant removed. Mr. Moore asked
what was wrong, but the Appellant did not respond. Mr. Moore
then left the room. A short time later, the Appellant
returned and apologized for stealing Mr. Moore's knife,
which was a silver pocket knife with a three and
Marshall testified that in May 2014, he was living at Right
Road and that he knew the Appellant. Mr. Marshall could not
recall whether the Appellant had a job at that time. Mr.
Marshall said that the Appellant was preparing to leave Right
Road because "[h]e couldn't stay there no
more." On the evening of the robbery, the Appellant
approached Mr. Marshall and said that "he had to get
something off his chest." The Appellant revealed that he
had robbed an older couple near a grocery store and obtained
sixty dollars. Mr. Marshall did not believe the Appellant and
asked how the robbery was accomplished. The Appellant
responded, "I jumped in the car, and I had a
knife." When Mr. Marshall remained skeptical, the
Appellant showed him "a wad of cash." Mr. Marshall
said, "[T]hat's not good." Mr. Marshall
testified that the Appellant acted nervous.
Marshall encouraged the Appellant to tell the director of the
ministry, Steve Beecham, about the robbery, but the Appellant
refused. Mr. Marshall got Mr. Beecham alone outside and
informed him of the Appellant's crime. Around that time,
the police arrived at Right Road, and Mr. Marshall told them
everything the Appellant had said.
cross-examination, Mr. Marshall said that he did not give a
statement at the police station but that he wrote a statement
while at Right Road. In the statement, he wrote that the
Appellant said he stole a knife from the kitchen of Right
Road and walked to Food Lion.
Appellant did not testify or put on proof.
upon the evidence adduced at trial, the jury found the
Appellant guilty of the aggravated kidnapping of Mr. Lature,
the aggravated kidnapping of Mrs. Lature, the aggravated
robbery of Mrs. Lature, and the attempted aggravated robbery
of Mr. Lature. The trial court imposed a total effective
sentence of ten years in the Tennessee Department of
appeal, the Appellant challenges the sufficiency of the
evidence sustaining his convictions, arguing that he did not
demand money or property from Mr. Lature and that his
confinement of Mr. and Mrs. Lature was incidental to the
robbery offenses. The Appellant also contends that the trial
court erred by failing to consider mitigating factors when
determining the length of his sentences and by failing to
grant alternative sentencing.