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State v. Tenaz

Court of Criminal Appeals of Tennessee, Nashville

July 27, 2017

STATE OF TENNESSEE
v.
ERICK TENAZ

          Assigned on Briefs July 19, 2017

         Appeal from the Criminal Court for Davidson County No. 2015-B-1422 Mark J. Fishburn, Judge

         The defendant, Erick Tenaz, appeals his Davidson County Criminal Court guilty-pleaded conviction of conspiracy to commit second degree murder, claiming only that the trial court erred by ordering that he serve his entire nine-year sentence in confinement. Discerning no error, we affirm.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

          Dwight E. Scott, Nashville, Tennessee, for the appellant, Erick Tenaz.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Jan Norman, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which John Everett Williams and Timothy L. Easter, JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         Originally charged with three counts of attempted first degree murder and one count of felony murder, the defendant pleaded guilty to a single count of conspiracy to commit second degree murder as a Range I offender, with the length and manner of service of the sentence to be determined by the trial court following a sentencing hearing. The defendant failed to include a copy of his own guilty plea submission hearing in the record. He did, however, exhibit to the sentencing hearing and include in the record on appeal a transcript of the hearing for his co-defendant, Sergio Baeza, in which the State summarized the facts of the offenses as follows:

[T]he State's proof would have been that in the early morning hours of Sunday, September 8th, 2013, Sergio Baeza, [the defendant], Issac Tenaz and Luis Diaz [sic] drove to Club Cielo, which is an after-hours nightclub, it is located at 15115 Old Hickory Boulevard. Surveillance video shows all four men arrive at the club together in a black Honda Accord around 4 o'clock a.m. All four of the men are standing outside of the club near the entrance. And they arrive about 4:00 a.m., they go inside the club, they spend a little bit of time in the club, and then sometime later they're standing outside the club near the entrance when Issac Tenaz appears to get into a verbal confrontation with a male black. During this confrontation, the surveillance video shows Rafi Shalizi swing a Grey Goose bottle and hit Issac Tenaz over the head causing a fairly deep laceration, immediately after this, Mr. Baeza, [the defendant], Issac Tenaz and Mr. Lopez run from the club, and they run back to the black Honda Accord, which they had parked in front of the Porter Paints parking lot. The club security outside the club immediately maces an entire group of individuals because of this incident, Rafi Shalizi is one of the people in the area when the security officers sprayed the mace. Shivon A[bd]ullatif, Nej[y]ar Osman, Priscilla Hernandez all go to aid Mr. Shalizi who is suffering from the effects of the mace, and they walk to an area to the right of the front entrance of the club where Mr. Shalizi lays on the ground. Shivon Abdullatif, Mr. Osman and Ms. Hernandez also began to suffer the effects of the mace and they are standing, bent over in the immediate area of Mr. Shalizi, who is lying on the ground.
Surveillance video from businesses in the area, as well as statements given by both [the defendant] and Issac Tenaz indicate that when Mr. Baeza, both Tenaz brothers and Mr. Lopez reached the black Honda Accord in the nearby parking lot that [the defendant] got into the driver's seat, Luis Lopez got into the front passenger's seat, Issac Tenaz got in the back passenger's seat, and Sergio Baeza got into the back seat behind the driver.
Surveillance video also shows that when the black Honda Accord is turned on, the headlights immediately come on, the car is backed up, and then the headlights are turned off. [The defendant], who is the driver of the car, drives toward the front entrance of Club Cielo, but is stopped by traffic of others driving in and out of the area. Once their vehicle reaches the area where Mr. Shalizi, Shivon Abdullatif, [Nejyar] Osman and Priscilla Hernandez are lying, standing and bent over, the surveillance video shows muzzle flashes coming from the driver's side of the black Honda Accord. [The defendant] and Issac Tenaz both told detectives in interviews that Sergio Baeza fired multiple shots out of the car at that group of people. Nej[y]ar Osman was struck once in the hip and Shivon Abdullatif was shot eight times and those gunshots resulted in his death.
There were approximately nine 40-caliber cartridge casings, which were found at the scene. There was also a 40-caliber magazine and cartridges that were later found by detectives in [the defendant's] bedroom and there was a nine millimeter magazine located in Issac Tenaz's bedroom, neither of the guns were located.

         Mr. Baeza then told the court that, as he and his co-defendants started to drive away from the club, they "seen them" and "just ended up shooting them" for "[r]etaliation for what they did, basically." Mr. Baeza stated that the defendant had provided him with the handgun earlier in the night. According to Mr. Baeza, he asked the group in the car, "'What you want me to do, you want me to go ahead and do something, '" and both the defendant and Issac Tenaz responded, "'Do what you want to do, do what you wanna do.'" Mr. Baeza testified that, following the shooting, he gave the gun ...


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