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State v. Frost

Court of Criminal Appeals of Tennessee, Nashville

June 14, 2017

STATE OF TENNESSEE
v.
BRANDON FROST

          Session: October 19, 2016

         Appeal from the Circuit Court for Rutherford County No. F-72641 David M. Bragg, Judge.

         A 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.

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

          Gerald L. Melton (on appeal) and Russell N. Perkins (at trial and on appeal), Murfreesboro, Tennessee, for the Appellant, Brandon Frost.

          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 of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

          A 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.

         At 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.

         Initially, 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 gave.

         Mrs. 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.

         Mrs. 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.

         After 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 the offense.

         Mrs. 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 telephone number.

         On 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."

         Dale 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.

         Mr. 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."

         Mr. 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.

         Mr. 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.

         Mr. 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 "afraid."

         On 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 the knife.

         The parties stipulated that Mr. and Mrs. Lature's telephone number was in the discovery materials provided to the defense by the State.

         Officer 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.

         Detective 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.

         Lamarcus 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 one-half-inch blade.

         Ross 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.

         Mr. 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.

         On 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.

         The Appellant did not testify or put on proof.

         Based 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 Correction.

         On 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.

         II. ...


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