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State v. Carter

Court of Criminal Appeals of Tennessee, Nashville

August 16, 2019

STATE OF TENNESSEE
v.
MICHAEL DAVID CARTER AND STEVEN EDWARD CARTER

          Assigned on Briefs June 19, 2019

          Appeal from the Criminal Court for Sumner County No. 240-2016, 231-2016 Dee David Gay, Judge

         Following 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.

         Tenn. 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 Carter.

          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 Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams, P.J., and D. Kelly Thomas, Jr., J., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         Procedural History

         The 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 trial.

         Trial Testimony

         On 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.

         Once 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.

         Mr. 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. Brimm's home.

         About 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 the incident.

         On 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.

         At the 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 prescription pills.

         Mr. 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 home.

         Mr. 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.

         Mr. 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.

         Mr. 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 cell phone.

         Mr. 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.

         Deputy 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 Carter's residence.

         On 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.

         Ashley 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.

         Deputy 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.

         Deputy 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.

         Deputy 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 ...


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