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State v. Smith

Court of Criminal Appeals of Tennessee, Nashville

April 6, 2018

STATE OF TENNESSEE
v.
DAVID SMITH, JR.

          Session December 12, 2017

          Appeal from the Criminal Court for Davidson County No. 2015-C-1984 Monte Watkins, Judge

         The Appellant, David Smith, Jr., pled guilty in the Davidson County Criminal Court to robbery with the trial court to determine the length and manner of service of the sentence. After a sentencing hearing, the trial court ordered that he serve four years in confinement. On appeal, the Appellant contends that the trial court erred by denying his request for judicial diversion or probation. Based upon the oral arguments, the record, and the parties' briefs, we affirm the judgment of the trial court.

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

          Manuel B. Russ (on appeal) and David von Wiegandt (at trial), Nashville, Tennessee, for the appellant, David Smith, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Deborah Housel and Kristen Kyle-Castelli, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         In August 2015, the Davidson County Grand Jury indicted the Appellant for aggravated robbery in which the victim suffered serious bodily injury and driving on a suspended license. On March 17, 2017, he pled guilty to robbery, a Class C felony, and the State dismissed the remaining charge. Pursuant to the plea agreement, the trial court was to determine the length and manner of service of the sentence.

         The Appellant's guilty plea hearing transcript is not in the appellate record. However, according to the Appellant's presentence report, police officers were dispatched to the Kroger store on Old Hickory Boulevard in Hermitage on July 5, 2015. When they arrived, sixty-six-year-old Melanie Mundy was lying on the ground. The victim had been loading her groceries into the trunk of her car when a black GMC Yukon pulled up to the vehicle, and the driver grabbed her purse from the back of her shopping cart. The victim also grabbed her purse, and the driver of the Yukon accelerated. The victim continued holding onto her purse until she fell to the pavement. She suffered injuries to her head and the right side of her body. The victim gave a description of the driver to the police, and her son used the "Find my iPhone" application to track the victim's cellular telephone. The "app" showed the phone was at the Avalon Apartments. Police officers went to the apartment complex and saw the black Yukon in the parking lot. The engine was idling, and the Appellant, who matched the description given by the victim, was sitting in the driver's seat. The officers stopped the Appellant and took him into custody.

         At the Appellant's April 20, 2017 sentencing hearing, the victim read her victim impact statement to the trial court. In the statement, the victim said the following: On the day of the incident, she was "robbed and injured" at the Kroger in Hermitage. Her right arm was "shattered at the ball joint of the shoulder, " and she had a large gash above her right eye. Her glasses were broken, she bit through her lower lip, and she had scrapes on the right side of her body. The victim visited doctors and received physical therapy for six months. She was ineligible for shoulder replacement surgery due to prior medical issues, and her arm bone, which had been broken into seven pieces, was allowed to heal on its own. The victim was told she would never recover completely. She suffered "unending horrible pain"; had to have help showering, dressing, and eating because her right hand was her dominant hand; and slept in a recliner for months. When she returned to work in November 2015, she did so on a part-time basis. At the time of the sentencing hearing, she still was working only part time. The victim thought the Appellant "target[ed] an older woman" and noted he could have let go of her purse when she held onto it. Instead, he sped up and knocked her down with his vehicle. The victim experienced pain every day and lived with fear and anxiety every time she went to her car in a parking lot. After reading her statement, the victim said the Appellant should have to serve his sentence in confinement.

         Tammy Branham, the Appellant's mother, testified for him that in July 2015, the Appellant, his "baby-mama, " and their two children were living with her. The Appellant had moved his family from Memphis in order to find employment and was working at Logan's Steakhouse. Mrs. Branham said the Appellant was a good father, spent "quality time" with his children, and did the best he could to provide for his family. At the time of sentencing, the Appellant's children were ten and three years old. The Appellant was working at Johnson Solutions, and he and his family were was living in their own home.

         Mrs. Branham read a letter written by the owner of Johnson Solutions to the trial court. In the letter, the owner stated that the Appellant had been working for her since August 2015, was a "great asset" to the company, and was "a hard worker with a great attitude." She said that the Appellant took medical leave from April 2016 to January 2017 due to heart complications and that he was allowed to take as much time as he needed. The owner stated that the Appellant had "built a strong, trustworthy ...


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