Assigned on Briefs May 17, 2017, at Knoxville.
from the Circuit Court for Madison County No. 16-14 Roy B.
Morgan, Jr., Judge.
Madison County jury convicted the Defendant, Brandon Dewayne
Theus, of unlawful possession of a firearm after previously
having been convicted of a felony involving the attempted use
of force, violence, or a deadly weapon. The trial court
sentenced the Defendant to nine years in the Tennessee
Department of Correction as a Range II, multiple offender. On
appeal, the Defendant challenges the trial court's denial
of his motion to suppress evidence discovered as a result a
vehicle stop, the sufficiency of the evidence, and his
sentence. Upon reviewing the record and the applicable law,
we affirm the judgment of the trial court. However, we remand
the case to the trial court for correction of the judgment to
reflect that the Defendant was convicted pursuant to
Tennessee Code Annotated section 39-17-1307(b)(1)(A) rather
than section 39-17-1307(c).
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed; Remanded
Morton Googe, District Public Defender, and Jeremy B.
Epperson, Assistant District Public Defender, for the
appellant, Brandon Dewayne Theus.
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; Jerry
Woodall, District Attorney General; and Jody S. Pickens,
Assistant District Attorney General, for the appellee, State
Everett Williams, J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J.,
EVERETT WILLIAMS, JUDGE.
AND PROCEDURAL HISTORY
Defendant's conviction resulted from a traffic stop
during which officers observed a .40 caliber firearm inside a
truck that the Defendant had been driving. The evidence
presented at trial established that on May 19, 2015, between
11:30 p.m. and midnight, Investigator Robert Groves with the
patrol division of the Jackson Police Department received a
be-on-the-lookout alert (BOLO) from the dispatcher regarding
a vehicle which was suspected to have been involved in a
robbery and which was traveling down East Chester Street into
the city from the Beech Bluff area. The vehicle was described
as a white Chevrolet Silverado pickup truck that was occupied
by an African-American man and a Caucasian man.
Groves turned onto East Chester Street and saw a white
Chevrolet Silverado pickup truck, which appeared to be
occupied by an African-American male, in the parking lot of
an Exxon. Investigator Groves reported over the police radio
that he observed a vehicle matching the description of the
vehicle reported in the BOLO alert and that he planned to
attempt to stop the vehicle. Investigator Groves allowed the
truck to drive out of the parking lot and then stopped the
truck in the area of Griffin Street and East Chester Street.
Kyle Hamilton and another officer joined Investigator Groves
at the stop. Investigator Groves approached the driver's
side of the truck, while Officer Hamilton and the other
officer approached the passenger's side. The driver of
the truck was identified as the Defendant. Investigator
Groves informed the Defendant that he had been alerted to an
incident outside of the city that involved a truck matching
the description of the truck that the Defendant was driving.
As Investigator Groves was speaking to the Defendant, Officer
Hamilton signaled to Investigator Groves that he saw a weapon
in the truck. Investigator Groves asked the Defendant to step
out of the truck in order to distance the Defendant from the
Groves testified that the Defendant initially refused to
comply with his instruction to exit the truck. The Defendant
stated that he was not going to exit the truck, asked why he
needed to exit the truck, and stated that his grandfather
lived down the street. The Defendant eventually exited the
truck after Investigator Groves opened the door.
Groves stated that the officers did not mention to the
Defendant that they saw a weapon inside of the truck. When
one of the officers told the Defendant that the officer was
going to pat the Defendant down for weapons, the Defendant
stated that the truck belonged to his grandfather and that
his grandfather had a gun inside the truck. Investigator
Groves informed the Defendant that the officers had to
determine whether the Defendant was allowed to possess a gun
and whether the gun was stolen. The Defendant told
Investigator Groves that the gun was not stolen and asked to
call his grandfather.
Groves ran the Defendant's information through the
National Crime Information Center (NCIC) and learned that the
Defendant had two prior felony convictions. He subsequently
arrested the Defendant and placed him in the backseat of the
patrol car. While the Defendant was in the backseat of the
patrol car and the officers were outside, the Defendant
retrieved his cellular phone and made multiple calls.
Investigator Groves testified that during one conversation, a
man asked whether the Defendant's fingerprints would be
on the gun, and the Defendant replied that they should not be
on the gun. The video of the stop from the dash camera and
the backseat camera of Investigator Groves's patrol car
were played for the jury. The man whom the Defendant called
was later identified as the Defendant's grandfather, and
the Defendant told his grandfather that a friend placed the
gun in the truck. During a call to a woman who was later
identified as the Defendant's girlfriend, the Defendant
informed her that he had been arrested due to "the
officers recovered a Hi-Point handgun with a magazine loaded
with ten .40 caliber rounds from the truck. Investigator
Groves stated that the gun was lying on the floorboard with
the grip of the gun facing the driver.
cross-examination, Investigator Groves testified that the
Defendant was not involved in the robbery in the Beech Bluff
area. The owner of the truck was Mr. Leroy Theus, who lived
on Griffin Street, the area in which Investigator Groves
stopped the truck. At one point during the stop, Investigator
Groves told the Defendant, "You're good, " but
he did not know why he made the statement.
Groves testified that the gun was located on the back
floorboard with a portion of the gun "barely"
underneath the seat. He acknowledged that he believed that
the gun was physically placed within arm's reach of the
redirect examination, Investigator Groves testified that he
had to make a "U-turn" in order to initiate the
stop. He said that as a result, the Defendant had ample time
to discard the gun or place it anywhere inside the truck.
Leroy Theus, the Defendant's grandfather, testified that
he lived on Griffin Street and owned a white Chevrolet
Silverado pickup truck. Mr. Theus denied that the gun found
in the truck belonged to him and said he did not know who
owned the gun.
Amiee Oxley, the director of the property and evidence unit
of the Jackson Police Department, was unable to find any
identifiable fingerprints on the gun. She explained that
according to the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, the likelihood of locating fingerprints on a
firearm is approximately ten percent because firearms
generally have few smooth surfaces. Officer Oxley stated that
based on her experience, the likelihood is approximately five
percent. Officer Oxley did not attempt to obtain fingerprints
from the rounds in the magazine.
traced the gun seized from the truck to Ms. Briyana Gray. Ms.
Gray purchased the gun through a website in 2014; the gun was
transferred to Range USA in Jackson; and Range USA
transferred the gun to Ms. Gray in November 2014. Ms. Gray
testified that she kept the gun for six or eight months and
then sold it to her cousin, Rondrez Billings, because her
mother did not want it in her house. Ms. Gray did not know
what happened to the gun after she sold it.
cross-examination, Ms. Gray testified that she received a
subpoena to testify a few months before trial. She said she
did not have any issues coming to court to testify. She did
not know the Defendant and had not seen him or spoken to him
State introduced a recording of telephone calls made by the
Defendant from the jail two days prior to trial. During one
of the calls, the Defendant instructed his girlfriend to tell
Mr. Billings and Ms. Gray not to attend the trial and told
his girlfriend to inform Mr. Billings that the Defendant knew
where he lived and was "serious as a heart attack."
Ashley Robertson with the Jackson Police Department testified
that after officers initially interviewed Ms. Gray, they
attempted to locate Mr. Billings but were unsuccessful. A
subpoena was issued for Mr. Billings on March 16, 2016, to
testify during the May 2016 trial but was returned on March
18 as undeliverable because the apartment listed on the
subpoena was vacant.
State introduced a certified judgment showing that on
February 12, 2001, the Defendant pled guilty to facilitation
of first degree murder and received a fifteen-year sentence.
Defendant testified that he was with Mr. Billings prior to
the stop. He said they had just left work for the day and
stopped by his grandfather's house to borrow his truck so
that they could go to the convenience store to purchase
cigarettes. The Defendant stated that as they were driving
into the parking lot, he saw six cars from the sheriff's
office driving down East Chester Street. He saw two patrol
cars driving up and down the street as he entered the
convenience store. He said that when he returned to the
truck, Mr. Billings was gone.
Defendant testified that he was driving to his
grandfather's house to return the truck when he was
stopped by the police. The Defendant stated that after the
officer approached the truck, the officer told him that he
"was good, " which meant that he was allowed to
leave. The officer then instructed him to step outside of the
truck. The Defendant told the officer that he did not do
anything wrong, that he could produce a valid driver's
license and the truck's registration, and that the truck
belonged to his grandfather, who could give the officers
permission to search the truck.
Defendant maintained that the video recording of the stop was
not accurate because it did not depict the second officer
assuming control of the situation and the second
officer's statements could not be heard in the recording.
According to the Defendant, the second officer instructed him
to exit the truck and that when the Defendant asked why, the
second officer replied, "It's a gun right
there." The Defendant testified that he did not know
that a gun was inside the truck and did not learn about the
gun until the officers informed him of it. The Defendant
stated that the gun was on the floorboard behind the
passenger's seat and tucked a bit underneath the seat. He
explained that he believed that the gun had to belong to his
grandfather because the gun was in his grandfather's
truck. The Defendant stated that after he received discovery
from the State, he saw Mr. Billings's name on the witness
list and Ms. Gray's statement to the police that she sold
the gun to Mr. Billings. The Defendant explained that after
reviewing this information, he believed that Mr. Billings
placed the gun inside the truck and then fled.
Defendant also maintained that the recording of his cellular
phone conversations while in the backseat of the patrol car
was inaccurate. He stated that when his girlfriend asked him
why he was going to jail, ...