State of Tennessee v. Brandon Dewayne Theus, W2016-01626-CCA-R3-CD

Background

On May 19, 2015, police broadcast a BOLO for a white Chevrolet Silverado suspected in a robbery; Investigator Groves encountered a matching truck minutes later and initiated a traffic stop.
During the stop officers observed a .40 caliber Hi-Point handgun on the truck floorboard, within arm’s reach of the driver (the Defendant, Brandon Theus).
NCIC check showed Theus had prior felony convictions; he was arrested. While in the patrol car Theus made calls referencing the gun and later urged witnesses not to attend trial.
The State traced the gun to a third party and introduced a certified judgment showing Theus’s prior conviction (pled guilty to facilitation of first-degree murder).
A Madison County jury convicted Theus of unlawful possession of a firearm after a prior qualifying felony; the trial court sentenced him as a Range II multiple offender to nine years’ incarceration.
On appeal the Court of Criminal Appeals affirmed, but remanded to correct the statutory citation on the judgment form.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Theus)	Held
1. Motion to suppress: was the stop/search lawful?	BOLO description gave reasonable suspicion to stop; gun later observed in plain view, justifying officers’ actions.	Stop lacked a legal basis because Theus was lawfully operating the truck and BOLO was insufficient.	Affirmed. BOLO plus proximity/timing produced reasonable suspicion; officers saw the gun before BOLO cancelation.
2. Sufficiency: was there proof Theus unlawfully possessed the firearm and that his prior felony qualified?	Firearm was within driver’s reach supporting constructive possession; prior facilitation conviction derived from first-degree murder qualifies as a violent felony.	Theus argued he did not know about the gun and that his prior conviction did not qualify as a felony involving attempted use of force/violence/deadly weapon.	Affirmed. Circumstantial evidence supported constructive possession; facilitation of first-degree murder is a violent felony for § 39-17-1307(b)(1)(A).
3. Sentencing: was the Range II classification or confinement improper?	Prior convictions (facilitation of murder and attempted robbery) were properly treated as separate for range because they included (threatened/actual) bodily injury; confinement appropriate given criminal history and witness intimidation.	Theus argued sentence excessive, disputed Range II status, and contended he should receive minimum/alternative sentencing.	Affirmed. Trial court correctly applied enhancement/mitigating factors, lawfully found Range II, and reasonably ordered confinement.
4. Judgment form error	N/A	N/A (objected on appeal)	Remanded to correct judgment to cite § 39-17-1307(b)(1)(A) rather than § 39-17-1307(c).

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (establishes the standard for appellate review of sufficiency of the evidence)
State v. Bise, 380 S.W.3d 682 (Tenn. 2012) (presumption of reasonableness for within-range sentences and standard for sentencing review)
State v. Day, 263 S.W.3d 891 (Tenn. 2008) (reasonable suspicion standard for investigatory stops and review principles)
State v. Binette, 33 S.W.3d 215 (Tenn. 2000) (BOLO reports can supply reasonable suspicion for stops)
State v. Yeargan, 958 S.W.2d 626 (Tenn. 1997) (warrantless searches/seizures presumptively unreasonable)
State v. Shaw, 37 S.W.3d 900 (Tenn. 2001) (constructive possession principles)