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State v. Woodard

Court of Criminal Appeals of Tennessee, Knoxville

June 15, 2017


          Session February 22, 2017

         Appeal from the Criminal Court for Knox County No. 104200 Steve Sword, Judge

         The defendant, Kaylecia Woodard, appeals her Knox County Criminal Court jury conviction of aggravated robbery, arguing that the evidence is insufficient to support her conviction and that the criminal gang enhancement statute, which was applied to enhance her sentence, is unconstitutional. We discern no infirmity relative to the guilt phase of the defendant's trial and affirm the defendant's conviction of aggravated robbery. Because, as this court has now repeatedly concluded, that portion of the criminal gang enhancement statute used to enhance the defendant's sentence is unconstitutional, we vacate the criminal gang enhancement and the 15-year sentence, modify the judgment to reflect a Class B felony conviction of aggravated robbery, and remand the case for resentencing.

         Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed in Part; Modified; Remanded

          Forrest L. Wallace (on appeal), and Douglas A. Trant (at trial), Knoxville, Tennessee, for the appellant, Kaylecia Woodard.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.



         The defendant's conviction relates to the June 16, 2014 robbery of the Grocery and Tobacco Market on Maryville Pike in Knoxville. On that date, Anthony Smith robbed the store clerk, Mohammed Islam, at gunpoint. Mr. Islam described the offense at trial:

What actually happened is I am working and my employee called me, I was talking to them. And one guy - with the bandana, he pull out the gun in front of me and said give the money. I said like two times, Hey, you play with me like I don't believe it two times. And third time merely I'm upset and I have the money so I give him the money. And one lady is outside walking.

         Store employee Michael Puri was on the telephone with Mr. Islam when he overheard someone "say give me all the money." Mr. Puri, who was visiting a friend in nearby Montgomery Village, ran toward the store. As he ran, he noticed an "out of place" vehicle "on the side street." He said that he knew "the two families that live in the houses right there next to that street very well and . . . knew that that car wasn't supposed to be there." He saw "that the driver was really on the steering wheel, " which made him assume "that that could be the people that robbed" the convenience market. He "also noticed there was somebody in the back seat scuffling trying to maybe take off clothes." Because he thought the car might be involved in the robbery, he shouted out the license plate number, which was then taken down by "neighbors." Mr. Puri identified a photograph of the defendant as a person who "could fit the description of the driver" but admitted during cross-examination that he could not positively identify the defendant.

         Nineteen-year-old Anthony Smith testified that he committed the robbery at the Grocery and Tobacco Market with the assistance of the defendant and Timeya Harris. He said that the defendant planned the robbery, provided the handgun used in the robbery, and acted as the driver. Mr. Smith identified text messages he exchanged with the defendant while planning the robbery. Ms. Harris testified and confirmed Mr. Smith's testimony that the defendant planned the robbery and provided the handgun that Mr. Smith used to commit the robbery.

         After committing the robbery, Mr. Smith returned to the defendant's car and returned the gun to the defendant, who wiped the gun and put it into her backpack. Mr. Smith, Ms. Harris, and the defendant split the proceeds of the robbery three ways. Mr. Smith then changed clothes in the backseat of the defendant's car and put his clothes into his backpack. Ms. Harris removed the black hat and black polo shirt she had worn during the robbery. The defendant then drove to Montgomery Village, where they visited briefly with Ms. Harris's sister. As they left, the police stopped the car.

         Knoxville Police Department Officer Dana Crocker effectuated a "felony stop" of a vehicle being driven by the defendant after confirming that it met the description of the getaway vehicle described by Mr. Puri. Both Mr. Smith and Ms. Harris were passengers in the vehicle. Inside the vehicle, Officer Crocker "observed a backpack in the rear seat . . . and it was open." Inside the backpack she saw "red sweat pants, sweat shirt, which is what the information was given through dispatch . . . that one of the suspects had red on at the time of the incident." Mr. Smith confirmed that that backpack and clothing belonged to him. Officers found a second backpack, which Ms. Harris identified as belonging to the defendant, in the trunk of the car. That bag contained the loaded .22 caliber revolver identified by Mr. Smith as the weapon used in the robbery and personal items belonging to the defendant, including the defendant's iPhone and pieces of mail addressed to her.

         Based upon this evidence, the jury convicted the defendant as charged of alternative counts of aggravated robbery.

         In a bifurcated proceeding, Ms. Harris testified that the defendant was a member of the 127 Athens Park Bloods criminal gang. Ms. Harris recalled that, following a 30-day "observation" period, the defendant was "jumped in" to the Athens Park Bloods, leaving the defendant with "two black eyes." After that, the defendant carried a red bandana as a symbol of her gang membership. Ms. Harris testified that the defendant attempted to recruit her and Mr. Smith into the Athens Park Bloods.

         The State presented certified copies of convictions of other members of the Athens Park Bloods: Eric Burney (aggravated assault), Dwight Schooler (possession with intent to sell less than .5 grams of cocaine), Justin Jackson (aggravated assault), Jefferson Grady (aggravated burglary), Zachary Siler (attempted especially aggravated robbery), Anthony Page (attempted possession with intent to sell cocaine), Antoneo Williams (attempted first degree murder), and Dayquan Shannon (aggravated robbery and unlawful weapons possession).

         Mr. Smith testified that he was a member of the Four Hundred Block Tree Top Piru, an affiliate of the Bloods criminal gang, and that the defendant was a member of the 127 Athens Park Bloods, a separate affiliate of the Bloods. He identified text messages between him and the defendant concerning membership in their gangs and a gang-related shooting. In the messages, Mr. Smith told the defendant that he wanted to leave the Four Hundred Block Tree Top Piru "because they jumped" him and wanted to join the 127 Athens Park Bloods. He told the defendant that he wore his "red flag, " or red bandana, as proof of his allegiance to the Bloods.

         Knox County Sheriff's Office Gang Intelligence Unit Officer Thomas Walker testified as an expert witness on criminal gang culture. Officer Walker said that the Athens Park Bloods originated in the Rosedale community on the west side of Los Angeles in the early 1970s and that each block of Figueroa Boulevard between 120th Street to 127th Street "has its own click." The Athens Park Bloods eventually made their way to Knoxville via Atlanta sometime in 2009. He explained that "Folk Nation" and "People Nation" are the rival gangs at the top of the criminal gang hierarchy in the United States. The Bloods, he said, fall within the People Nation, and the Athens Park Bloods fall within the Bloods. Within the Athens Park Bloods, "there are seven different clicks" in Knoxville. Other gangs affiliated with the Bloods in Knoxville include the Tree Top Pirus and the East Side Bloods.

         Officer Walker testified that he and other members of the Gang Intelligence Unit keep track of 1, 503 known gang members in Knox County. He verified that his unit had confirmed that Messrs. Burney, Schooler, Jackson, Grady, Siler, Page, Williams, and Shannon were members of the Athens Park Bloods. He said that the defendant had been "confirmed as an Athens Park Blood gang member" going by "the street name Lady Park." He explained, "We have her with graffiti, picture of her throwing a hand sign, wearing gang colors, known gang association, federal criminal history, outside jurisdictional information . . . . And then arrested on a violent crime." The defendant's Facebook page also included the name Lady Park and featured a photo of her making a gang sign and a list of her Facebook friends included several known members of the Athens Park Bloods. Officer Walker testified that he had no file on Ms. Harris but did have Mr. Smith as a confirmed member of Four Hundred Block Tree Top Piru, "which is another Blood set."

         Based upon this evidence, the jury found that the defendant was a criminal gang member and that she had committed a criminal gang offense.

         Following a sentencing hearing, the trial court imposed a Range I, Class A felony sentence of 15 years, to be served at 85 percent by operation of law. The defendant filed a timely but unsuccessful motion for new trial followed by a timely notice of appeal.

         In this appeal, the defendant contends that the evidence was insufficient to support both her conviction of aggravated robbery and the jury's finding that she was a member of a criminal gang. Additionally, the defendant asserts that Tennessee Code Annotated section 40-35-121 is unconstitutional on its face because it is overbroad so as to impinge upon her constitutional right to freedom of speech and because it offends principles of due process.

         I. Sufficiency

         The defendant argues that the evidence was insufficient to support the underlying conviction of aggravated robbery because the State failed to introduce sufficient evidence to corroborate the testimony of Mr. Smith and Ms. Harris. She also argues that the State failed to introduce sufficient corroboration of the accomplice testimony during the gang enhancement phase, rendering the evidence of her membership in the Athens Park Bloods insufficient.

         We review the defendant's claim of insufficient evidence mindful that our standard of review is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011).

         When examining the sufficiency of the evidence, this court should neither re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id. Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. Id.

         It is well settled "that a conviction may not be based solely upon the uncorroborated testimony of an accomplice to the offense." State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001) (citing State v. Stout, 33 S.W.3d 531 (Tenn. 2001); State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379 S.W.2d 34, 43 (Tenn. 1964)). Indeed, "[w]hen the only proof of a crime is the uncorroborated testimony of one or more accomplices, the evidence is insufficient to sustain a conviction as a matter of law." State v. Jones, 450 S.W.3d 866, 888 (Tenn. 2014) (citing State v. Collier, 411 S.W.3d 886, 894 (Tenn. 2013) (citing State v. Little, 402 S.W.3d 202, 211-12 (Tenn. 2013)). By way of explanation, our supreme court has stated:

There must be some fact testified to, entirely independent of the accomplice's testimony, which, taken by itself, leads to the inference, not only that a crime has been committed, but also that the defendant is implicated in it; and this independent corroborative testimony must also include some fact establishing the defendant's identity. This corroborative evidence may be direct or entirely circumstantial, and it need not be adequate, in and of itself, to support a conviction; it is sufficient to meet the requirements of the rule if it fairly and legitimately tends to connect the defendant with the commission of the crime charged. It is not necessary that the corroboration extend to every part of the accomplice's evidence.

Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at 803); see also State v. Fowler, 373 S.W.2d 460, 463 (Tenn. 1963).

         The State concedes, and the evidence unquestioningly establishes, that both Mr. Smith and Ms. Harris were accomplices. Both admitted their participation in the offense at trial, ...

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