Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs June 19, 2019
from the Criminal Court for Sumner County No. 240-2016,
231-2016 Dee David Gay, Judge
a jury trial, Michael David Carter (Michael Carter) was
convicted of aggravated robbery and aggravated assault and
Steven Edward Carter (Steven Carter) was convicted of
facilitation of aggravated robbery and aggravated assault.
Michael Carter was sentenced to twenty years for aggravated
robbery, and Steven Carter was sentenced to nine years for
facilitation of aggravated robbery. The trial court merged
the aggravated assault convictions into the aggravated
robbery convictions without imposing a sentence or entering a
judgment of conviction for aggravated assault. On appeal,
Defendants contend that: (1) the evidence presented at trial
was insufficient to support their convictions; (2) the
prosecutor improperly made a "Golden Rule" closing
argument; and (3) the trial court erred in applying Tennessee
Rules of Evidence 608 and 609 to exclude evidence of criminal
charges pending against the victim at the time of trial.
Michael Carter also contends that the trial court erred in
sentencing him as a Range II offender and that his sentence
was excessive. We remand for sentencing on the merged
aggravated assault convictions and entry of a judgment of
conviction for each Defendant pursuant to State v.
Berry, 503 S.W.3d 360 (Tenn. 2015). We affirm the
judgments of the trial court in all other respects.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed and Remanded
Michael W. Taylor (on appeal), and Michael Pickering (at
trial), Gallatin, Tennessee, for the appellant, Michael David
Christopher V. Boiano (on appeal), Hendersonville, Tennessee,
and Thomas Boyers (at trial), Gallatin, Tennessee, for the
appellant, Steven Edward Carter.
Herbert H. Slatery III, Attorney General and Reporter; James
E. Gaylord, Senior Assistant Attorney General; Ray Whitley,
District Attorney General; and Lytle Anthony James, Assistant
District Attorney General, for the appellee, State of
L. Holloway, Jr., J., delivered the opinion of the court, in
which John Everett Williams, P.J., and D. Kelly Thomas, Jr.,
L. HOLLOWAY, JR., JUDGE
Factual and Procedural Background
Sumner County Grand Jury indicted Michael Carter and Steven
Carter for aggravated assault and aggravated robbery.
Although Defendants were indicted separately, the trial court
consolidated their cases, and Defendants proceeded to a jury
January 25, 2016, Jennifer Key received a call from the
victim, Coty Brimm, asking her to pick him up at a gas
station in Gallatin. She drove from Portland to Gallatin and
picked up Mr. Brimm. On the way back to Mr. Brimm's
residence in Portland, they stopped at another gas station to
get some towels because Mr. Brimm's hand was bleeding
from a cut that he received during a fight with his brother
earlier in the day. They made a second stop to get Band-Aids.
home, Mr. Brimm called Michael Carter in an attempt to sell
him a computer. Michael Carter initially declined, but he
called back a short time later and told Mr. Brimm, who was a
tattoo artist, to bring his tattoo equipment to Michael
Carter's residence because he needed "a hundred
dollars['] worth of tattoo work." Mr. Brimm told Ms.
Key that he would give her some money if she took him to
Michael Carter's residence.
Brimm rode with Ms. Key to Michael Carter's home. After
they entered the residence, Ms. Key was talking to Steven
Carter when she heard Michael Carter and Mr. Brimm arguing.
She saw Michael Carter point a pistol at Mr. Brimm. According
to Ms. Key, Steven Carter said, "Don't worry
brother[, ] I got this" and he tried to diffuse the
situation by asking Michael Carter to put the gun down. Ms.
Key stated that Michael Carter was holding the pistol in one
hand and using a cell phone in the other hand to video Mr.
Brimm's begging not to be shot. Michael Carter told Mr.
Brimm to take off his jewelry. Ms. Key helped Mr. Brimm take
off his necklace, and she placed it on the barrel of the
pistol that Michael Carter was holding. Michael Carter then
made Mr. Brimm empty his pockets. In addition to the
necklace, Michael Carter took Mr. Brimm's rings, money,
wallet, cell phones, and tattoo equipment. Afterwards, Ms.
Key and Mr. Brimm were allowed to leave and returned to Mr.
two hours later, Ms. Key drove Mr. Brimm to the Portland
Emergency Room because he was having significant pain. After
they arrived at the emergency room, Ms. Key left to get food.
When she returned, Deputy Brian Gambino of the Sumner County
Sheriff's Office was taking a statement from Mr. Brimm
about the incident that occurred at Michael Carter's
residence. Ms. Key also gave Deputy Gambino a statement about
cross-examination, Ms. Key testified that when she arrived at
Michael Carter's house, she found out that Michael Carter
believed Mr. Brimm had stolen his cell phone. Ms. Key did not
see Steven Carter strike Mr. Brimm.
beginning of the State's direct examination, Mr. Brimm
agreed that he was currently in jail for a probation
violation. He explained that he "was sent to rehab, and
[he] left early without permission." Mr. Brimm pled
guilty to escape. Mr. Brimm also pled guilty to theft under
five hundred dollars in Davidson County on October 21, 2016.
Mr. Brimm claimed that he was addicted to methamphetamine and
Brimm testified that, on January 25, 2016, he did not have
any money, so he called Michael Carter to see if he would buy
Mr. Brimm's girlfriend's computer. Michael Carter
declined and hung up. Michael Carter called Mr. Brimm back
within ten minutes and said that he had some tattoo work that
Mr. Brimm could do at Michael Carter's home. Mr. Brimm
and Ms. Key took his tattoo equipment to Michael Carter's
Brimm said he walked into Michael Carter's residence,
shook Steven Carter's hand, turned to shake Michael
Carter's hand, and Steven Carter hit him. Mr. Brimm fell
to the floor, and when he tried to stand up, he saw that
Michael Carter was pointing a pistol at him. Mr. Brimm said
he "balled up," and Steven Carter continued to hit
and kick him for about two minutes. After the beating
stopped, Ms. Key helped Mr. Brimm get into a chair. Mr. Brimm
said Michael Carter had the pistol in one hand and a cell
phone in the other and told Mr. Brimm to "tell the world
how much of a b***h you are." Mr. Brimm said he told
Michael Carter that "[y]ou [will] have to shoot me
first." Michael Carter then "loaded and  cocked
the gun," after which Mr. Brimm complied with his
demand. Michael Carter recorded a video of the incident on
his cell phone and uploaded it to Facebook. The video was
played for the jury and admitted into evidence.
Brimm asked Michael Carter if they could leave. Michael
Carter told Mr. Brimm that "he needed everything out of
[Mr. Brimm's] pockets and his jewelry." When Mr.
Brimm could not get his necklace off, Michael Carter told Ms.
Key to help Mr. Brimm. Mr. Brimm stated that Defendants took
his necklace, rings, money, wallet, cell phones, and tattoo
equipment. Shortly afterwards, Mr. Brimm and Ms. Key were
allowed to leave.
Brimm testified that the reason his eye was a little red in
the video on Facebook was because Michael Carter had kicked
him. Mr. Brimm identified the necklace that he was wearing in
the video as the necklace that Michael Carter took from him.
Mr. Brimm testified that the video showed him holding his
left side with his hands because "that [wa]s where [he]
got kicked." Mr. Brimm testified that, before the
beating started Michael Carter accused him of stealing his
Brimm said Ms. Key drove him to the emergency room the next
day because he was "throwing up blood." He stated
that he had multiple bruises on his left side, a collapsed
left lung, and injury to his left eye and left side ribs. At
the emergency room, he gave a statement to Deputy Gambino,
who was dispatched to the hospital to investigate an assault.
When Deputy Gambino asked about the cut on his hand, Mr.
Brimm lied and told Deputy Gambino that the cut happened at
Michael Carter's home.
Gambino came to Mr. Brimm's home the next day. Mr. Brimm
informed Deputy Gambino about the video Michael Carter
uploaded on Facebook. When Deputy Gambino again asked Mr.
Brimm about the injury on his hand, Mr. Brimm told Deputy
Gambino that the injury might have happened at Michael
cross-examination, Mr. Brimm testified that he lied to Deputy
Gambino on both occasions concerning the cut on his hand. Mr.
Brimm actually sustained the injury earlier in the day on
January 25, 2016, during an altercation with his brother.
Colonello, Mr. Brimm's ex-girlfriend, testified that she
was incarcerated at the Davidson County Jail. She said she
regularly spoke to Mr. Brimm by phone. In January 2016, she
called Mr. Brimm's phone from the jail, but Michael
Carter answered. Michael Carter told her, "We warmed
[Mr. Brimm] up real good. He was crying like a little
girl[.]" Michael Carter told her that she was calling
"a phone that wasn't [Mr. Brimm's] phone, and
[that] it was his phone and he got it back." Michael
Carter also told Ms. Colonello that she did not have to worry
about paying off her debt to Michael Carter because he
"made [Mr. Brimm] pay for it." Ms. Colonello
explained that Michael Carter believed she owed him money
because of a bad drug deal. Ms. Colonello also testified that
"[Michael Carter] said, 'you know, you should see
the video I have got of [Mr. Brimm] now, '"
referring to the video uploaded on Facebook. The phone
conversation between Ms. Colonello and Michael Carter was
recorded, and the recording was admitted into evidence and
played for the jury.
Gambino testified that he spoke to Mr. Brimm on January 26,
2016, after receiving a call from dispatch advising that
there had been an assault and that the victim was at the
Portland Emergency Room. Deputy Gambino obtained a written
statement, in which Mr. Brimm claimed that when he walked
through the door at Michael Carter's home, Steven Carter
hit him and knocked him to the ground, and Michael Carter
threatened him with a gun. Mr. Brimm said Michael Carter took
his necklace, rings, money, wallet, knife, cell phones, and
tattoo equipment. Mr. Brimm told Deputy Gambino that he
sustained a collapsed lung from the assault. Deputy Gambino
took photographs of Mr. Brimm at the emergency room, which
the State admitted into evidence.
Gambino testified that Mr. Brimm originally claimed the cut
on his hand must have happened at some point during the
altercation at Michael Carter's home. On January 27,
2016, Deputy Gambino learned that the cut occurred earlier on
January 25, 2016, in Lebanon. Deputy Gambino later contacted
the Lebanon Police Department and received a copy of an
incident report concerning Mr. Brimm and his brother.
Gambino went to Michael Carter's home on January 27,
2016, to speak with Defendants. He noticed that Michael
Carter was wearing the necklace that matched the one
described by Mr. Brimm. Michael Carter denied Mr. Brimm had
been assaulted at his home, claiming that he did not touch
Mr. Brimm and the incident "never happened[.]"
Michael Carter then said that "even if [it did happen],
that it happened inside the house and [Mr. Brimm] was trying
to steal from him." When pressed by Deputy Gambino,
Michael Carter responded, "Well [Mr. Brimm] was trying
to steal and I may have slapped [him] but it was ...