State of Tennessee v. Kevin McDougle ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
May 5, 2009 Session
STATE OF TENNESSEE v. KEVIN McDOUGLE
Direct Appeal from the Criminal Court for Shelby County
No. 06-04209, 07-01739 W. Mark Ward, Judge
No. W2007-01877-CCA-R3-CD - Filed May 24, 2010
Following a jury trial, Defendant, Kevin McDougle, was convicted of two counts of
aggravated robbery, a Class B felony, and one count of aggravated assault, a Class C felony,
in case no. 06-04209. The trial court sentenced Defendant as a Range I, standard offender,
to twelve years for each aggravated robbery conviction and six years for his aggravated
assault conviction. Defendant was convicted in case no. 07-01739 of the offense of unlawful
possession of a handgun by a convicted felon, a Class E felony. The trial court sentenced
Defendant to two years for this conviction. The trial court ordered Defendant to serve all of
his sentences consecutively for an effective sentence of thirty-two years. On appeal,
Defendant argues that (1) the trial court erred in denying his motion to sever; (2) the trial
court erred in providing a jury instruction on flight; (3) the imposition of consecutive
sentencing violates his Sixth Amendment right to trial by jury; and (4) the trial court erred
in finding that Defendant was a dangerous offender for consecutive sentencing purposes.
After a thorough review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J. C. M CL IN and
C AMILLE R. M CM ULLEN, JJ., joined.
Claiborne H. Ferguson, Memphis, Tennessee (on appeal) and Stephanie Calvert, Memphis,
Tennessee (at trial) for the appellant, Kevin McDougle.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; Dean DeCandia, Assistant District
Attorney General; and Scot Bearup, Assistant District Attorney General, for the appellee, the
State of Tennessee.
OPINION
I. Background
Although Defendant does not challenge the sufficiency of the convicting evidence,
we will briefly review the evidence supporting Defendant’s convictions. James McGowan
testified that he parked his taxicab at approximately 3:00 p.m. on October 25, 2005, at the
intersection of Evergreen Street and Jackson Avenue in Memphis. Roderick Baker and his
young son got into the vehicle to talk to Mr. McGowan. Mr. Baker and Mr. McGowan are
friends. As they were talking, a man, whom Mr. McGowan identified at trial as Defendant,
walked up to the taxicab and asked Mr. McGowan for a ride. Mr. McGowan told Defendant
that he was busy, but he said that he would call Defendant another taxicab. Defendant pulled
out a gun, pointed it at Mr. McGowan’s face, and said, “Give me your money.” Mr.
McGowan said that Defendant took approximately one hundred dollars from him. A woman,
identified at trial as Erica Newburn, was with Defendant. Mr. McGowan stated that Ms.
Newburn stood with her back to the taxicab during the robbery and watched the area. After
he took money from Mr. McGowan and Mr. Baker, Defendant put the gun in his pants, and
he and Ms. Newburn walked away from the taxicab.
Mr. McGowan called 911 and then drove a short distance up the street until he could
see Defendant. Defendant and Ms. Newburn boarded a public bus traveling eastbound on
Jackson Avenue. Mr. McGowan followed the bus, and Defendant and his companion exited
the bus at the intersection of Jackson Avenue and Warford Street, an industrial area. Mr.
McGowan observed Defendant attempt to flag down a passing vehicle with the gun in his
hand. The vehicle drove past Defendant and Ms. Newburn.
Mr. McGowan flagged down a patrol car and told Officer Billy Jackson that
Defendant had just robbed him. Officer Jackson approached Defendant and spoke to him.
Mr. McGowan said that the two men appeared to converse for a short time, and then
Defendant and Ms. Newburn ran away in opposite directions. Officer Jackson chased
Defendant, and during the pursuit, Defendant turned around and pointed his gun at Officer
Jackson. Officer Jackson caught up with Defendant when Defendant tried to scale a fence.
The two men wrestled, and then Defendant scaled the fence. Mr. McGowan provided a
written statement about the incident later that day. On October 26, 2005, Mr. McGowan
identified Defendant as the perpetrator from a photographic line-up.
Roderick Baker testified that he and his young son were sitting in Mr. McGowan’s
taxicab when a man and a woman walked up and asked for a ride. Mr. Baker identified
Defendant at trial as the man who approached the taxicab. Mr. McGowan told Defendant
that he would call another taxicab. Defendant started to walk to the rear of the taxicab. He
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stopped, pulled a pistol out of his pants, and walked back to the front driver’s side window.
Defendant said, “You know what this is,” and Mr. McGowan handed Defendant some
money. Defendant pointed the gun at Mr. Baker, and Mr. Baker handed him eighty dollars.
Mr. Baker said that Defendant and Ms. Newburn boarded a public bus, and Mr. Baker got
out of the taxicab and drove away in his vehicle. Mr. Baker identified Defendant from a
photographic line-up on October 26, 2005, as the perpetrator of the offense.
Officer Billy Jackson, with the Memphis Police Department, testified that Mr.
McGowan flagged him down on October 25, 2005. Mr. McGowan told Officer Jackson that
he had just been robbed, and the perpetrator and his female companion were walking up
Warford Street. Officer Jackson identified Defendant at trial as the individual he approached
on Warford Street. Officer Jackson asked Defendant his name and where he had recently
been. Defendant and Ms. Newburn began moving apart from one another. Officer Jackson
asked both of them for identification. When neither could produce any identification, Officer
Jackson told Ms. Newburn to sit down. Defendant said that he was not going to go back to
jail and began running. Ms. Newburn ran in the opposite direction from Defendant.
Officer Jackson pursued Defendant. He saw Defendant pull a black 9 mm gun out of
his pants, and Officer Jackson also pulled out his pistol. Officer Jackson stated that
Defendant turned and pointed his weapon at Officer Jackson on three separate occasions
during the pursuit. Defendant then returned the gun to his pants and jumped onto a fence.
Officer Jackson pulled him down. Defendant pulled out his gun again and pointed it at
Officer Jackson’s chest. Officer Jackson and Defendant struggled, and Officer Jackson
managed to kick the gun away. Defendant pushed Officer Jackson down and jumped over
the fence. Officer Jackson said that Defendant’s gun contained three rounds of ammunition
when the weapon was recovered. Police officers from three different precincts responded
to the dispatcher’s call about the incident. The officers searched unsuccessfully for
Defendant both by patrol car and by helicopter. Officer Jackson identified Defendant from
a photographic lineup on October 26, 2005, as the man who had pointed a gun at him on
Warford Street.
Quinton Maples, an officer with the Memphis Police Department, testified that an
anonymous caller provided Defendant’s location through Crime Stoppers, and an arrest
warrant was issued for Defendant on November 1, 2005. Defendant was exiting the
residence when Officer Maples arrived. Officer Maples asked Defendant for his name,
Defendant “mumbled something,” and then ran. Officer Maples chased Defendant for
approximately one hundred yards and then managed to tackle Defendant and physically
restrain him.
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Gail Rankins testified that she is employed by the Criminal Court Clerk’s office and
maintains the records of the court as part of her job duties. Ms. Rankins testified that
according to the court’s records contained in file no. 283458, Defendant was convicted of
aggravated burglary on February 3, 2003, pursuant to a negotiated plea agreement. Linda
Rapper testified that she was employed by the Shelby County Sheriff’s Department as a
fingerprint examiner. Ms. Rapper stated that she took Defendant’s fingerprints prior to trial,
and his fingerprints matched the fingerprints in file no. 283458.
II. Motion to Sever
Defendant argues that the trial court erred in granting the State’s motion to consolidate
the offense of unlawful possession of a weapon by a convicted felon in case no. 07-01739
with the offenses of aggravated robbery and aggravated assault in case no. 06-04209.
Defendant contends that the joinder of the weapons offense with the other three offenses was
prejudicial because it allowed the jury to hear evidence of a prior conviction, which evidence
would have been otherwise inadmissible pursuant to Rule 404(b) of the Tennessee Rules of
Evidence. On appeal, the State first contends that Defendant has waived this issue because
he did not file a motion to sever the offenses. See Tenn. R. Crim. P. 13(b)(2)(E).
Alternatively, the State submits that the offenses constituted a single criminal episode and
were thus subject to mandatory, rather than permissive joinder, pursuant to Rule 8(a) of the
Tennessee Rules of Criminal Procedure. The State thus argues that Defendant has failed to
show that severance was necessary “to promote a fair determination of [his] guilt or
innocence of each offense.” Tenn. R. Crim. P. 14(b)(2)(A).
On the morning of trial and prior to voir dire, the State moved to consolidate case no.
07-01739 with case no. 06-04209 pursuant to Rule 13(a) of the Tennessee Rules of Criminal
Procedure. Rule 13(a) provides that “[t]he court may order consolidation for trial of two or
more indictments, presentments, or informations if the offenses and all defendants could have
been joined in a single indictment, presentment, or information pursuant to Rule 8.” Tenn.
R. Crim. P. 13(a). The trial court found that the weapons offense constituted “part of a
common scheme or plan” with the other offenses. See Tenn. R. Crim. P. 14(b)(1). The trial
court further found that the evidence that Defendant was in possession of a weapon was
relevant to show that Defendant possessed or display a deadly weapon in the trial of the other
offenses. T.C.A. §§ 39-13-102(a)(1)(B), 39-13-402(a)(1). The trial court did not make a
specific finding that Defendant’s status as a convicted felon was relevant to some material
issue in the trial of the other offenses. The trial court, however, found that the probative
value of the evidence of Defendant’s prior felony conviction, an element of the weapons
offense, was not outweighed by its prejudicial effect. The trial court observed that
Defendant’s prior conviction of aggravated burglary was “distinctly different” from the
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charged offenses, and the trial court noted that it would provide a limiting instruction to the
jury regarding the prior conviction.
We begin with the State’s waiver argument. Our supreme court has instructed that
when the State seeks to consolidate offenses pursuant to Rule 13 of the Tennessee Rules of
Criminal Procedure, and the defendant’s objection to consolidation is overruled, “the
defendant is not then required to immediately move for a severance in order to preserve a
severance issue for appeal.” Spicer v. State, 12 S.W.3d 438, 444 (Tenn. 2000). Under
circumstances such as the ones presented in the case sub judice, Defendant’s objection to the
State’s motion to consolidate has “the same procedural and substantive effect as a formal
motion to sever.” Id. We will, therefore, consider the merits of Defendant’s issue on appeal.
A trial court’s ruling concerning joinder and severance of offenses is reviewed for an
abuse of discretion. Id. at 442. As such, a trial court’s decision to consolidate or to sever
offenses will not be reversed unless the “court applied an incorrect legal standard, or reached
a decision which is against logic or reasoning that caused an injustice to the party
complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999) (quoting State v. Shuck, 953
S.W.2d 662, 669 (Tenn. 1997)).
A joinder of multiple offenses may be either mandatory or permissive. See Tenn. R.
Crim. P. 8(a)(1), 8(b)(2). Permissive joinder is appropriate when “the offenses constitute
parts of a common scheme or plan” or “they are of the same or similar character.” Id.
8(b)(2). “In Tennessee, there are three types of common scheme or plan evidence: (1)
offenses that reveal a distinctive design or are so similar as to constitute ‘signature’ crimes;
(2) offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that are
all part of the same criminal transaction.” Shirley, 6 S.W.3d at 248 (citing Neil P. Cohen et
al., Tennessee Law of Evidence § 404.11, at 180 (3d ed.1995)). A defendant is entitled to
a severance of permissively joined offenses “unless the offenses are part of a common
scheme or plan, and the evidence of one would be admissible in the trial of the others.”
Tenn. R. Crim. P. 14(b)(1).
On the other hand, “[t]wo or more offenses must be joined or consolidated if (1) the
offenses arise from the same conduct or criminal episode; (2) the conduct is known to the
appropriate prosecuting official at the time of the return of the indictment; and (3) the
offenses fall within the jurisdiction of a single court.” State v. Baird, 88 S.W.3d 617, 620
(Tenn. 2001) (citing Tenn. R. Crim. P. 8(a)); see also State v. Goodwin, 143 S.W.3d 771, 780
(Tenn. 2004). In the case of mandatorily joined offenses, the trial court may deny
consolidation before trial only if it “finds a severance appropriate to promote a fair
determination of the defendant’s guilt or innocence of each offense.” Tenn. R. Crim. P.
14(b)(2)(A); Shirley, 6 S.W.3d at 246 n.3.
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The Advisory Commission Comments to Rule 8 provide, in pertinent part:
This rule is designed to encourage the disposition in a single trial of multiple
offenses arising from the same conduct and from the same criminal episode,
and should therefore promote efficiency and economy. Where such joinder of
offenses might give rise to an injustice, Rule 14(b)(2) allows the trial court to
relax the rule.
Thus, our supreme court has concluded that “[t]he rule clearly permits a subsequently
returned indictment to be joined with a previous indictment where the alleged offenses relate
to the same criminal episode. State v. Carruthers, 35 S.W.3d 516, 573 (Tenn. 2000) (citing
King v. State, 717 S.W.2d 306 (Tenn. Crim. App. 1986)).
Although the trial court approached the issue at trial as one involving the permissive
joinder of offenses, we conclude that the weapons offense was subject to mandatory joinder
with the aggravated robbery and aggravated assault offenses. “A ‘criminal episode relates
to several distinct offenses which arise out of separate actions or conduct but which occur
in a closely connected series of events in place and time.’” Baird, 88 S.W.3d at 620 (quoting
D. Raybin, Tennessee Criminal Practice and Procedure § 17.23, p. 490 (1984)). After
robbing Mr. McGowan and Mr. Barker, Defendant left the scene and was confronted a short
time later by Officer Jackson, which confrontation led to the aggravated assault charge. The
gun was used to commit each offense and the use of a gun escalated both offenses to an
aggravated status. Therefore, we conclude that the weapons offense was part of the same
criminal episode, the prosecutor was aware of the use of a weapon at the time of the return
of the indictment, and “the offenses fall within the jurisdiction of a single court.”
Accordingly, Defendant’s argument on appeal that he had the right to the severance of the
offenses under a permissive joinder analysis is of no avail. Instead, to establish an abuse of
discretion on the part of the trial court, Defendant is required to show that severance was
“necessary to achieve a fair determination of [his] guilt or innocence of each offense.” Tenn.
R. Crim. P. 14(b)(ii).
Defendant contends that he was prejudiced by the joinder of offenses because the jury
was allowed to hear testimony concerning his prior conviction which would have been
inadmissible pursuant to Rule 404(b) of the Tennessee Rules of Evidence in a separate trial
on the aggravated robbery and aggravated assault offenses. Rule 404(b) of the Tennessee
Rules of Evidence excludes evidence of “other crimes, wrongs, or acts” committed by the
defendant when offered only to show the defendant’s propensity to commit the crime
charged. Generally, evidence that a defendant has committed a prior crime is inadmissible
because the evidence lacks relevance and “invites the finder of fact to infer guilt from
propensity.” State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993).
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Evidence of Defendant’s convicted felon status is an essential element of his weapons
offense and, therefore, evidence of his prior conviction constitutes relevant evidence under
Rule 404(b) in a trial on this offense. See T.C.A. § 39-17-1307(b)(1)(A); State v. James, 81
S.W.3d 751, 761 (Tenn. 2002). However, evidence of Defendant’s convicted felon status
would normally not be admissible in a separate trial on the aggravated robbery and
aggravated assault charges under Rule 404(b) of the Tennessee Rules of Evidence.
However, in this case, the trial court provided a limiting instruction to the jury at the
conclusion of Ms. Rankins’ testimony that it could only consider Defendant’s prior
aggravated burglary conviction for the purpose of proving the elements of the weapons
charge and not as evidence of Defendant’s propensity to commit a crime. The jury is
presumed to follow the instructions of the court. See State v. Banks, 271 S.W.3d 90, 134
(Tenn. 2008) (citations omitted). We conclude that under the circumstances presented in
this case, severance of the weapons charge from the aggravated robbery and aggravated
assault charges was not necessary “to promote a fair determination of [Defendant’s] guilt or
innocence of each offense.”
However, if the trial court erred in joining the offenses for trial, we conclude that it
was harmless error. Evidence of the aggravated robbery and aggravated assault offenses
would be admissible in a separate trial of the weapons offense to prove a contextual
background. State v. Gillilard, 22 S.W.3d 266, 272 (Tenn. 2000). Moreover, the witnesses’
identification of Defendant as the perpetrator before and at trial and the other evidence
presented provided overwhelming proof of Defendant’s guilt of aggravated robbery and
aggravated assault. See Spicer, 12 S.W.3d at 447-448 (quoting Delk v. State, 590 S.W.2d
435, 442 (Tenn. 1979) (observing that “[i]n most severance cases, ‘the line between harmless
and prejudicial error is in direct proportion to the degree ... by which proof exceeds the
standard required to convict . . .’”)). Defendant is not entitled to relief on this issue.
III. Instruction to the Jury on Flight
Defendant argues that the trial court’s instruction to the jury on the law of flight was
unwarranted by the evidence. Defendant submits that no evidence was presented to support
a finding that he was “hiding out” or attempting to conceal himself when he was
apprehended by Officer Maples on November 1, 2005.
The trial court has a duty “to give a complete charge of the law applicable to the facts
of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim.
P. 30. “In order for a trial court to charge the jury on flight as an inference of guilt, there
must be sufficient evidence to support such instruction.” State v. Berry, 141 S.W.3d 549,
588 (Tenn. 2004). Sufficient evidence to support such an instruction requires “‘both a
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leaving the scene of the difficulty and a subsequent hiding out, evasion, or concealment in
the community.’” State v. Burns, 979 S.W.2d 276, 289-90 (Tenn. 1998) (quoting State v.
Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989)). Our Supreme Court has held that
“[a] flight instruction is not prohibited when there are multiple motives for flight” and that
“[a] defendant’s specific intent for fleeing a scene is a jury question.” Berry, 141 S.W.3d at
588.
Defendant focuses on the events surrounding his arrest on November 1, 2005, to
support his argument that a flight instruction was not warranted. However, the trial court
found that Defendant robbed Mr. McGowan and Mr. Baker at gun point and then left the
scene of the crime by boarding a public bus. A few minutes later, Mr. McGowan flagged
down Officer Jackson and identified Defendant as the man who had robbed him a few
minutes earlier. When Officer Jackson attempted to question Defendant about Mr.
McGowan’s allegation, Defendant fled to evade arrest.
Based on our review, we conclude that this evidence was sufficient to establish both
a “leaving of the scene” and a subsequent evasion. Accordingly, the trial court did not err
by providing the instruction. Defendant is not entitled to relief on this issue.
IV. Sixth Amendment Challenge to Consecutive Sentencing
Defendant argues that the imposition of consecutive sentencing under the Sentencing
Act of 1989 violates his Sixth Amendment right to a jury trial. Defendant acknowledges that
at the time this matter was on appeal, our supreme court had rejected this argument. State
v. Allen, 259 S.W.3d 671 (Tenn. 2008). In Allen, our supreme court held that:
[t]he decision whether to impose consecutive sentences for multiple crimes is
a decision about the manner in which a defendant serves his or her multiple
punishments. Whether or not to “stack” sentences for multiple crimes is
therefore akin to a trial court’s decision as to how and where a defendant
serves his sentences: on probation, on community corrections, in split
confinement, or in the penitentiary. Apprendi and Blakely simply do not
require the jury to determine the manner in which a defendant serves multiple
sentences. That Tennessee’s statutes require (in most instances) trial courts to
make specific factual findings before imposing consecutive sentences does not
extend the reach of Apprendi and Blakely.
Id. at 689 -690. On January 14, 2009, after the submission of Defendant’s brief, the United
States Supreme Court concluded that a defendant’s constitutional right to trial by jury is not
implicated by sentencing structures, such as Tennessee’s, which require the trial court “to
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make certain predicate fact findings” before imposing consecutive sentencing. Oregon v.
Ice, ___ U.S. ___, 129 S. Ct. 711, 715 n.3, 716-720 (2009). Thus, Defendant is not entitled
to relief on this issue.
V. Consecutive Sentencing Generally
Defendant also argues that the trial court erred in ordering him to serve his sentences
consecutively because the evidence does not support the trial court’s finding that he is a
dangerous offender for sentencing purposes. Defendant also submits that his criminal
history, which includes juvenile adjudications, is not so extensive as to warrant an extended
sentence.
On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is improper. See T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant
challenges the length, range, or manner of service of a sentence, it is the duty of this Court
to conduct a de novo review on the record with a presumption that the determinations made
by the court from which the appeal is taken are correct. T.C.A. § 40-35-401(d). This
presumption of correctness, however, “‘is conditioned upon the affirmative showing in the
record that the trial court considered the sentencing principles and all relevant facts and
circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v.
Ashby, 823 S.W.2d 166, 169 Tenn. 1991)). “If, however, the trial court applies inappropriate
mitigating and/or enhancement factors or otherwise fails to follow the Sentencing Act, the
presumption of correctness fails,” and our review is de novo. Carter, 254 S.W.3d at 345
(quoting State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992); State v. Pierce, 138
S.W.3d 820, 827 (Tenn. 2004)).
A trial court is mandated by the Sentencing Act to “impose a sentence within the
range of punishment.” T.C.A. § 40-35-210(c). A trial court, however, “is no longer required
to begin with a presumptive sentence subject to increase and decrease on the basis of
enhancement and mitigating factors.” Carter, 254 S.W.3d at 346. Therefore, an appellate
court is “bound by a trial court’s decision as to the length of the sentence imposed so long
as it is imposed in a manner consistent with the purposes and principles set out in sections
-102 and -103 of the Sentencing Act.” Id.
In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
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sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70
S.W.3d 698, 704 (Tenn. 2002).
A trial court may impose consecutive sentencing upon a determination that one or
more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exists.
Included within this criteria is a finding that “[t]he defendant is an offender whose record of
criminal activity is extensive.” T.C.A. § 40-35-115(b)(2). Also, the trial court may order
sentences to run consecutively if it finds by a preponderance of the evidence that “[t]he
defendant is a dangerous offender whose behavior indicates little or no regard for human life,
and no hesitation about committing a crime in which the risk to human life is high.” T.C.A.
§ 40-35-115(b)(4). When imposing consecutive sentences based on the defendant’s status
as a dangerous offender, the trial court must, “in addition to the application of general
principles of sentencing,” find “that an extended sentence is necessary to protect the public
against further criminal conduct by the defendant and that the consecutive sentences must
reasonably relate to the severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d
933, 939 (Tenn. 1995). Additionally, the trial court should consider general sentencing
principles, including whether the length of a sentence is justly deserved in relation to the
seriousness of the offense. Imfeld, 70 S.W.3d at 708. The decision to impose consecutive
sentencing falls within the sound discretion of the trial court. See State v. Adams, 973
S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).
At the sentencing hearing, the State relied on Defendant’s presentence report which
was introduced as an exhibit without objection. Defendant did not present any evidence at
the sentencing hearing. According to the presentence report, Defendant was twenty-three
years old at the time of sentencing. Defendant reported that he dropped out of school in the
eighth grade, and he did not report any history of employment.
Defendant was first placed in the custody of the Department of Children’s Services
(“DCS”) in 1997 when he was thirteen years old. He was subsequently placed in several
different facilities before his eighteenth birthday following episodes of violent behavior
toward his peers and the staff at the facility. Defendant reported in the presentence report
that he suffers from bipolar disorder and has been treated at the Western Mental Health
Institute (the “Institute”).
According to the evaluations attached as an exhibit to the presentence report,
Defendant was admitted to the Institute in November 1999, at the request of DCS following
a display of disruptive and aggressive behavior at the facility in which he was then residing.
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Testing revealed that Defendant had a composite IQ score of 83, and no sign of mental
retardation or psychopathologic disorders. The evaluator concluded that Defendant should
be returned to the facility “where he can learn to be responsible for his decisions, attitudes
and behavior and learn to take the consequences of the same. While he may injure others by
fighting or attempting to get even, it is by choice and not because of mental illness.”
In 2001, Defendant was again admitted to the Institute from the Wilder Youth
Development Center “following threats to harm himself and others.” During the evaluation,
Defendant reported a past history of using crack cocaine and alcohol, and selling drugs.
Defendant was prescribed Depakote and Seroquel to help control his behavior and
aggression. The evaluator noted that Defendant possessed “adequate verbal skills [and]
average intelligence” and concluded that a diagnosis of impulse control disorder was
appropriate.
Defendant had two juvenile adjudications for aggravated burglary in 1997, a juvenile
adjudication for theft of property valued at less than $500.00 in 1998, a juvenile adjudication
for assault in 1999, and juvenile adjudications for burglary of a building and theft of a
vehicle in 2001. In addition, Defendant committed several delinquent acts which were
“adjusted [sic] nonjudicially,” which include burglary of a building, evading arrest,
vandalism under $500, four acts of criminal trespassing, disorderly conduct, and two escapes
from the custody of DCS.
In 2003, when he was eighteen years old, Defendant was convicted of aggravated
burglary, a Class C felony, and was sentenced as a Range I, standard offender, to three years.
Defendant was convicted of two counts of misdemeanor assault and one count of vandalism
in February 2005. In November 2005, Defendant was convicted of unlawful possession of
a weapon, a Class A misdemeanor.
As a Range I, standard offender, Defendant was subject to a sentence of between eight
and twelve years for each aggravated robbery conviction, a sentence of between three and
six years for his aggravated assault conviction, and a sentence of between one and two years
for his weapons conviction. In determining the length of Defendant’s sentences, the trial
court found that (1) Defendant has a history of previous criminal convictions beyond those
necessary to establish his sentencing range; (2) Defendant was a leader in the commission
of the offenses; and (3) Defendant was adjudicated to have committed delinquent acts which
would have been felonies if committed as an adult. See T.C.A. § 40-35-114(1), (2), and (16).
In addition, as to the aggravated assault conviction, the trial court found that the victim of
the offense was a law enforcement official performing an official duty, and Defendant knew
or should have known that the victim was such an officer. See id. § 40-35-114(19). The trial
court found that no mitigating factors were present. Based on the presence of three
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enhancement factors, the trial court sentenced Defendant to twelve years for each aggravated
robbery conviction and two years for his conviction of unlawful possession of a weapon by
a convicted felony. Based on the presence of four enhancement factors, the trial court
sentenced Defendant to six years for his assault conviction.
In considering the manner of service of his sentences, the trial court found that
Defendant was a dangerous offender “whose behavior indicates little or no regard for human
life, and no hesitation about committing a crime in which the risk to human life is high.” See
id. 40-35-115(b)(4). The trial court also found that an extended sentence was necessary to
protect society from future criminal conduct by Defendant, and the aggregate length of the
sentence reasonably related to the severity of the offenses. Wilkerson, 905 S.W.2d at 939.
The trial court stated, however, that “[t]he only question in [its] mind [was] on whether the
circumstances surrounding these offenses were so aggravated or exaggerated that they justify
consecutive sentencing.” The trial court then found:
I am going to impose consecutive sentencing though because I believe it is
clear the defendant in this case is an offender whose record of criminal activity
is extensive. So I think that alone justifies consecutive sentencing, but if I’m
wrong, then my backup to that would be that he also is a dangerous offender
in this matter. . . . When you add his juvenile record together with his adult
record that he’s accumulated already, then you have quite an impressive list,
especially, for a person this young, of criminal activity. Of course, in his adult
convictions we have two assaults which causes me concern and possession of
a deadly weapon causes me great concern.
Juvenile delinquent adjudications may be considered by the trial court in determining
whether a defendant has an extensive record of criminal activity. See State v. Gann, 251
S.W.3d 446, 465 (Tenn. Crim. App. 2007); State v. Mickens, 123 S.W.3d 355, 396 (Tenn.
Crim. App. 2003).
Defendant, who was twenty-one years old at the time of the commission of the
charged offenses, has been engaging in criminal activities since he was nearly twelve years
old. Although many of his numerous delinquent acts did not result in an adjudication, he
does have two juvenile adjudications for aggravated burglary which would have been Class
C felonies had the offenses been committed as an adult. His juvenile adjudications also
include assault, theft, and burglary of a building. Defendant was convicted of aggravated
burglary when he was eighteen years old and was sentenced on February 3, 2003, to three
years. While on release into the community, Defendant was convicted of vandalism, two
counts of assault, and unlawful possession of a weapon.
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Based on our review, we conclude that the trial court’s imposition of consecutive
sentences based upon the defendant’s extensive record of criminal activity was supported by
the record, and only one factor is needed for the trial court to act within its discretion to
impose consecutive sentences. See T.C.A. § 40-35-115, Sentencing Comm’n Cmts. We
further conclude that an extended sentence is “justly deserved in relation to the seriousness
of the offense” and “no greater than that deserved” under the circumstances. Defendant is
not entitled to relief on this issue.
CONCLUSION
After a thorough review, we affirm the judgments of the trial court.
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THOMAS T. WOODALL, JUDGE
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