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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs July 13, 2010 STATE OF TENNESSEE v. CHRISTOPHER FIELDER
Direct Appeal from the Criminal Court for Shelby County No. 08-03221 John T. Fowlkes, Jr., Judge

No. W2009-01663-CCA-R3-CD - Filed August 22, 2011

Defendant, Christopher Fielder, was indicted along with his co-defendants Korry Hernandez and John Karcher for the class A felonies of especially aggravated robbery and especially aggravated kidnapping of Jason Seitz. Defendant proceeded to be tried by a Shelby County jury. His co-defendants testified against him pursuant to negotiated plea agreements. The jury found Defendant guilty as charged. The trial court sentenced Defendant to serve twenty years for each of the Class A felony convictions, and ordered the sentences to be served concurrently with each other. Defendant appeals, arguing that the evidence was insufficient to support his convictions and that the sentences are excessive because (1) the trial court improperly applied enhancement factors; (2) the trial court erroneously failed to apply appropriate mitigating factors; and (3) his sentences are excessive and disproportionate when compared with the sentences received by his co-defendants. We find no error and affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined. Paul K. Guibao and Matthew S. Lyons, Memphis, Tennessee (on appeal); and Robert Wilson Jones, District Public Defender; Glenda Adams, Assistant Public Defender; and Jennifer Johnson, Assistant Public Defender, Memphis, Tennessee (at trial), for the appellant, Christopher Fielder. Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; Pamela Fleming, Assistant District Attorney General; and Garland Erguden, Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION I. Facts The victim, Jason Seitz, testified as follows. On December 28, 2007, Mr. Seitz went to Korry Hernandez's house in Memphis to sell cocaine to John Karcher a/k/a "Droopy." The sale occurred outside the house in Mr. Seitz's car and he left. Approximately two hours later, Mr. Karcher called the victim again and asked him to bring more cocaine. The victim returned in about thirty minutes and honked the horn to have Mr. Karcher come outside for the transaction. A woman came out and told the victim the men were gone but would return soon, and invited the victim to come inside. Since he had known Mr. Karcher for some time, the victim went inside and waited. Soon, Mr. Karcher, Defendant, and Korry Hernandez arrived. They went into the kitchen. Mr. Hernandez stated he did not like the quality of the drugs previously brought, and wanted a "tax" for allowing Mr. Seitz to use Mr. Hernandez's scales for weighing the cocaine. In order to avoid further confrontation, Mr. Seitz tossed some cocaine down and started to leave the house. Defendant locked the door and blocked Mr. Seitz's access to the doorway. The victim made a statement to the effect of "what's going on" and was struck by an object in the back of his head. The victim went down on his knees, and all three of the other men "jumped" on him and commenced to repeatedly kick and hit him. As the assault continued to take place, the men threatened the victim, asked him where the rest of his money was, threatened to kill his family, and took all of his money in his pockets plus his car keys, drugs, wallet, identification, and his shoes. Despite the victim's pleas to stop, Defendant and the other two men continued the assault. At Mr. Hernandez's instruction, Defendant brought an electric circular saw, referred to by the witnesses by a brand name, "Skil" saw, to Mr. Hernandez. While Mr. Karcher was on top of the victim on the floor, Defendant held down the victim's arm. Mr. Hernandez plugged the saw into an electrical outlet and turned it on. Mr. Hernandez then threatened to cut off the victim's hand. When the victim was able to pull his arm away from the saw, Mr. Hernandez threatened to cut the victim's face while holding the turned-on "Skil" saw near the victim's head. By this time, the victim was bleeding profusely. Someone put a pillowcase over his head to keep the blood from spreading. This obstructed his vision, but the victim added that "[m]y eyeball had already popped out [of] the socket and my whole ocular bone was broke. I couldn't see anyway." With the pillowcase still on his head, the victim was taken outside and put into the back seat of his own vehicle, a 2004 Jaguar. Mr. Karcher restrained the victim in the car. The victim was then driven away. He complained that his ribs were broken -2-

and he could not breathe. Mr. Karcher continued to hit the victim on the head and told the victim he was "about to die." Eventually, the car stopped and the victim was thrown out. The victim stated he could hear all three men talking. He was kicked and hit some more after being thrown from his car, and then his car was driven away. The victim went to a house and "banged" on the door and told the woman there to call an ambulance. The victim laid on the porch until the ambulance arrived and took him to Methodist Hospital North where he was treated for his injuries. The victim testified that as a result of the attack upon him by Defendant, Mr. Hernandez, and Mr. Karcher, he received twenty-two staples in his head, he had a dislocated jaw, a broken ocular bone, (his eye actually "came out"), a broken rib, and he passed blood in his urine for approximately one month. Regarding pain, the victim said that for the first week after the incident, he was confined to the couch; "everything" was sore - his head, chest, neck, back, ribs, and he also hurt internally. Because Defendant and the co-defendants threatened the victim and his family, and because the victim was scared that he might be prosecuted for selling drugs, he initially lied to police officers about how he was injured. When confronted by officers that his story did not "add up," the victim then told the truth. He identified Defendant and the co-defendants from photograph line-ups presented to him, and identified Defendant at trial. Heather Bierbrodt, keeper of the patient records for Methodist Hospitals in Memphis, brought a copy of the victim's medical records which was made an exhibit at trial. She testified, concerning injuries noted in the records, that the victim had a contusion of the face, an orbital fracture, a laceration to his scalp, and a contusion to his scalp. Officer Tyont Shabazz of the Memphis Police Department testified that he and his partner pulled over, and then chased, two individuals who were in the victim's Jaguar vehicle on the night of December 28, 2007. After receiving a dispatched broadcast of the stolen vehicle and general direction it was believed to be traveling, Officer Shabazz parked and waited. They saw the vehicle, pulled in behind it, and confirmed through the license plate number that it was the vehicle reported as stolen. They turned on the blue lights and the Jaguar, with two occupants, came to a stop. However, just after Officer Shabazz exited his patrol car, the Jaguar took off. An ensuing chase resulted in the Jaguar wrecking through a fence at an apartment complex. The two occupants, including Defendant, ran off in different directions. The officers gave chase and momentarily lost sight of Defendant, but ultimately found him out of breath in a stairwell to a basement door at a church. Defendant was taken into custody. No money or drugs were found in Defendant's possession.

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John Karcher, one of the co-defendants, testified that he was guilty of especially aggravated robbery and especially aggravated kidnapping of the victim. Mr. Karcher stated that he had accepted an effective sentence of "13.5 years at 100%" for his truthful testimony in Defendant's trial. Mr. Karcher had known the victim for about a year prior to the crimes, and had previously bought cocaine from the victim. Mr. Karcher called the victim both times on the day of the incident. After the victim came inside the house on his second trip there to sell cocaine, Defendant and Mr. Hernandez returned to the house. The victim and Mr. Hernandez went into the kitchen. They were arguing about the cocaine previously supplied and Mr. Hernandez said he wanted the victim to pay a "tax" on the use of Mr. Hernandez's scales. The victim threw a bag of cocaine and started to leave. Defendant then locked the door and Mr. Hernandez hit the victim in the back of his head. All three men then started punching and kicking the victim while he was down on the floor. Defendant took money and keys out of the victim's pockets. Mr. Hernandez grabbed a "circular saw" and instructed Defendant to hold down the victim's hand. Mr. Hernandez turned on the electric saw and held it in a threatening manner toward the victim. Someone put a pillowcase over the victim's head and placed the victim into the back seat of his car. Mr. Karcher and Mr. Hernandez left with the victim in the victim's car. Defendant followed as a passenger in a car driven by Mr. Hernandez's sister, who was also at the house. Mr. Hernandez was driving the victim's car and Mr. Karcher was in the back seat with the victim. After driving for a while, they stopped and put the victim out of his vehicle. Then Defendant and Mr. Karcher swapped vehicles they were riding in, so that Defendant left as a passenger in the victim's vehicle. Mr. Karcher stated that he saw "a lot of [the victim's] blood" on the floor at the house. He reiterated that all three men were kicking and punching the victim at the house. The other co-defendant, Korry Hernandez, also testified under the same plea agreement terms and conditions as Mr. Karcher. Mr. Hernandez also admitted that he was guilty of the crimes. Mr. Hernandez's testimony was very similar to the testimony by Mr. Karcher. Mr. Hernandez admitted hitting the victim in the back of the head with brass knuckles after the victim pushed Defendant when Defendant had locked the door and was blocking the victim's access to the door. Mr. Hernandez confirmed that all three men were kicking and punching the victim while he was down on the floor. He stated that there was a lot of blood on the floor and he got a towel to clean it up. Mr. Hernandez admitted that he turned on the electric Skil saw to frighten and threaten the victim while Mr. Karcher lay on top of the victim and Defendant stepped on the victim's hand to hold it down. Mr. Hernandez acknowledged that they took the victim's money, cocaine, keys, and his cell phone. Mr. Hernandez also confirmed the other witnesses' testimony about taking the victim away, putting him out of his car, leaving in the car, the police chase, and the wreck.

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John Poindexter, an officer with the Memphis Police Department, testified that he was the case investigator in the victim's case. In the course of the investigation, he interviewed the victim. In particular regard to the victim's injuries, Officer Poindexter testified that when the victim had to sneeze, he covered his injured eye because the medical staff had advised him that the action of sneezing could cause his eye to come out again. He also observed that the victim had "twenty-four [sic] staples that closed the wounds to his jaw which was also dislocated below his left eye." Officer Poindexter stated that the victim picked out Defendant and the co-defendants from three separate photo line-ups (one for each perpetrator). He also interviewed Defendant and took a written statement from him. Defendant admitted in the statement that he was present when the victim was robbed and kidnapped, but denied any involvement in the incident. In Defendant's words, "I witnessed it, but I didn't participate." Defendant did not mention Mr. Hernandez in his statement to police. Defendant told police that "Droopy" (Mr. Karcher) was the only person who hit the victim. Defendant stated that Mr. Karcher hit the victim in the back of his head with brass knuckles, and also kicked him a few times. Defendant stated that Mr. Karcher took the stuff out of the victim's pockets, put a pillowcase over the victim's head and shoved the victim into the back seat of the victim's car, and drove off. He told the police about getting into the victim's vehicle after the victim had already been tossed out, the police chase, and being apprehended by the police. Defendant acknowledged that at the house, "[a]t one point I was standing in front of the door. I think I checked to see if it was locked and natural instinct to block it so the guy [the victim] couldn't get out." The State rested its case at the conclusion of Officer Poindexter's testimony. Defendant testified in his defense as follows. He was at Korry Hernandez's house on the day the victim was robbed. Defendant had been there since spending the previous night at the house. Also present was Mr. Hernandez, Mr. Hernandez's sister, and Mr. Karcher. They had been "partying," consuming beer, whiskey, marijuana, and cocaine. Defendant had known Mr. Hernandez for quite a few years, and had met Mr. Karcher a week or so before the incident involving the victim. The victim brought cocaine, left, and some time later was called and asked to bring more cocaine. Defendant was temporarily away from the house when the victim came the second time. He locked the door because there was "drugs in the house." He heard Mr. Hernandez and the victim arguing. Defendant testified that he walked to the front door as the victim was headed toward the door. Defendant stated that he was planning to unlock the door for the victim, but the victim became aggressive and pushed Defendant. Mr. Hernandez then came running toward the victim. The victim hit the ground, and Mr. Karcher and Mr. Hernandez kicked and beat the victim. Defendant added that "I don't remember exactly whether I physically beat him or not." Defendant did not deny beating the victim, and he did acknowledge that he "might" have beat the victim.

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Defendant admitted in his testimony that he stepped on the victim's hand while the Skil saw was being used. Defendant denied taking any property from the victim. Defendant confirmed that the victim was placed into the back seat of his own car, and Mr. Karcher also got into the back seat and Mr. Hernandez drove the victim's car. Mr. Hernandez told his sister to follow them. Defendant testified that he got into the car with Mr. Hernandez's sister because "[i]t's not really my house. I wasn't really supposed to stay there. I suppose I could have taken off walking or something." Defendant described how Mr. Karcher dropped the victim out of the victim's car and then the car was driven away with only Mr. Hernandez and Mr. Karcher inside. The two vehicles went to a gas station, and Defendant got into the victim's car along with Mr. Hernandez, and Mr. Karcher got into the other vehicle. He then testified that he did not tell the police about Mr. Hernandez's involvement in his (Defendant's) statement to the police because the police did not already know about Mr. Hernandez being involved. During crossexamination, Defendant admitted the he had made sure the front door of the house was locked and stood at the door to make sure the victim could not escape. Defendant also admitted holding down the victim's hand so Mr. Hernandez "could scare him" with the Skil saw. Defendant confirmed that money (at least $100.00), keys, and "maybe" a cell phone were taken from the victim. II. Analysis A. Sufficiency of the Evidence Although phrased as trial court error by failing to grant a motion for judgment of acquittal, Defendant in essence challenges in his first two issues the legal sufficiency of the evidence to support his convictions for especially aggravated robbery and especially aggravated kidnapping. Defendant chose to present evidence in his defense, and therefore has waived the right to specifically appeal the denial of his motion for judgment of acquittal. Finch v. State, 226 S.W.3d 307, 317 (Tenn. 2007); State v. Mathis, 590 S.W.2d 449, 453 (Tenn. 1979). However, this does not affect Defendant's ability to challenge the sufficiency of the evidence on appeal

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