State of Tennessee v. Willie Bob King

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 26, 2005
STATE OF TENNESSEE v. WILLIE BOB KING
Appeal from the Circuit Court for Warren County
No. F-9178 Larry B. Stanley, Jr., Judge
No. M2004-00548-CCA-R3-CD - Filed May 25, 2005
The Defendant was convicted by jury verdict of two counts of aggravated burglary, two counts of
aggravated assault, and misdemeanor resisting arrest. The trial court sentenced the Defendant as a
Range II offender to ten years for each felony conviction and six months for the misdemeanor
conviction, with the first three felony conviction sentences to be served consecutively and the
remaining sentences to be served concurrently, resulting in an effective sentence of thirty years. On
appeal, the Defendant raises four issues: 1) the evidence was insufficient to support his two
aggravated burglary convictions and one aggravated assault conviction; 2) the trial court erred in
failing to allow the defense to impeach the testimony of one of the State’s witnesses by means of a
prior juvenile conviction; 3) the trial court erred in imposing excessive sentences in violation of
Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004); and 4) the trial court erred in imposing
consecutive sentences. We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.
Dan Bryant, Public Defender, McMinnville, Tennessee, for the appellant, Willie Bob King.
Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and
Dale Potter, District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
The convictions at issue in this appeal stem from an incident which occurred at the Country
Place Apartments in McMinnville during the early morning hours of July 25, 2002. The Defendant,
Willie Bob King, broke into his wife’s apartment and assaulted both her and a neighbor who came
to her aid, and then broke into a neighboring apartment where his wife sought refuge. When the
police arrived at the scene, the Defendant first fled and then fought with the officers as they placed
him under arrest. A Warren County grand jury returned an indictment against the Defendant
charging him with two counts of aggravated burglary, two counts of aggravated assault, and one
count of resisting arrest. The Defendant was tried by a jury.
At trial, Ms. King (the victim) testified that she heard a knock at her front door sometime
around 3:00 on the morning of July 25, 2002. She went to the window, saw it was her husband, and
told him to leave.1 She then testified that the Defendant “busted in like a fool,” diving through a
glass window into her apartment. The victim stated she then “hit [the Defendant] with [a] hickory
stick” until he overpowered her and began to choke her. The victim testified that at some point the
Defendant drug her outside the apartment and threw her against a “big old concrete thing,” and she
broke three ribs. However, the victim also stated that the Defendant jammed the front door so it
would not open, and she screamed for help from inside her apartment until her neighbor’s son kicked
in the front door to her apartment and confronted the Defendant.
The victim further testified that when her neighbor’s son, Mr. Knowles, came in to her
apartment, he “pulled” her away from the Defendant, and the two men began to scuffle. During this
altercation, the Defendant pulled out a knife and cut Mr. Knowles. The victim’s neighbor, Ms.
Stewart, then came in and ushered the victim next door to her own apartment, and, according to the
victim’s testimony, hid the victim in a closet. The victim testified that a short time later the
Defendant broke into her neighbor’s apartment and “tried to get me, but he didn’t know where I was
at in their house.” At the Defendant’s sentencing hearing, the victim again stated that the Defendant
never found her hiding in the closet, and never directly threatened or assaulted her while she was in
her neighbor’s apartment.
Mr. Knowles, the fifteen-year-old son of Ms. Stewart, testified that he was watching TV the
morning of the incident when he heard a woman screaming. He went outside and discovered the
screams were coming from inside the victim’s apartment. The door to the victim’s apartment would
not open, so he kicked it in and observed the Defendant on top of the victim, hitting her. When Mr.
Knowles entered the apartment, the Defendant got off the victim and verbally confronted him, to
which he responded: “I don’t appreciate you jumping on no woman.” At this point the two began
to scuffle and the Defendant pulled out a butterfly knife. Mr. Knowles stated that he “thought [the
Defendant] was going to kill me,” but admitted the Defendant actually “barely touched” him with
the knife, because he quickly moved away.
Mr. Knowles further testified that while the two were involved in this altercation, his mother
came in to the victim’s apartment and took the victim away. After the Defendant pulled out the
knife, Mr. Knowles stated that he left the apartment. The Defendant followed him outside, but did
not pursue him. Mr. Knowles further testified that a short time later he returned to the apartment
complex and found the Defendant in the parking lot, and the two became involved in a second
altercation. This second fight had just concluded when the police arrived and the Defendant fled.
1
Several days prior to this incident, the victim was granted an Order of Protection prohibiting the Defendant
from “committing further acts of abuse or threats of abuse” against the victim, and restraining the Defendant from “any
contact” with her, including “communicating with [the victim], directly or indirectly, or coming about [the victim] for
any purpose.” This protection order was in effect when the crimes at issue in this case were committed.
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While Mr. Knowles was only fifteen at the time of the incident, the record reflects that he was about
6’1” and weighed approximately 220 pounds. On cross-examination, Mr. Knowles stated he did not
“pull” the victim away from the Defendant.
Ms. Stewart testified that she lived next door to the victim. The night of the incident she
witnessed her son and the Defendant in an altercation, assisted the injured victim to her apartment,
and locked her door. Shortly thereafter the Defendant broke into her apartment looking for the
victim. Ms. Stewart testified at trial that the Defendant found the victim in her apartment, “provoked
her and started hitting her,” and she called 911 to report the incident. However, at the Defendant’s
sentencing hearing, Ms. Stewart denied she stated at trial that the Defendant hit the victim in her
apartment, and testified: “[w]hether [the Defendant] was going to hit [the victim] or not, I don’t
know. He was mad and he was searching for her.”
On cross-examination, Ms. Stewart admitted she was once convicted of theft. She also stated
that the Defendant did not harm her, her seven children, one grandchild, or her babysitter, all of
whom were inside her apartment at the time of the incident. Ms. Stewart further testified that she
and her babysitter managed to get the Defendant out of her apartment the night of the incident, but
he lingered in the parking lot until the police arrived.
Officer Robert Hutchins of the McMinnville City Police Department testified that he received
a 911 dispatch call the morning of the incident reporting a suspect was beating his wife and a
juvenile had been cut with a knife. Officer Hutchins stated that upon arriving at the apartments, he
observed a group of people in the parking lot and heard someone say “police.” The Defendant then
turned, looked at Officer Hutchins, dropped something on the ground and ran. Officer Hutchins
shouted “Police, stop” three times, but the Defendant did not stop until he had been run down.
Officer Hutchins testified that the Defendant had to be tackled, and fought with him and another
officer until they managed to handcuff him. Officer Lisa Norris of the McMinnville police testified
that when she arrived at the scene, Officer Hutchins was pursuing the Defendant. She observed the
Defendant “turn” on Officer Hutchins, and she rushed to assist in the arrest. She stated that the
Defendant “fought” the two officers and he smelled of alcohol.
Officer Hutchins further testified that he recovered the object the Defendant dropped in the
parking lot, which turned out to be a butterfly knife. He also observed that the window to the
victim’s apartment was broken. The majority of the glass was on the inside, indicating that the
window was pushed in by someone on the outside. Officer Hutchins also stated that the victim was
visibly injured, explaining she was “bleeding from the mouth” and had “contusions about her face.”
At trial, the Defendant, informed of his rights by the court, declined to take the witness stand.
The defense offered no proof, but submitted a motion for a directed verdict, which the court denied.
The jury returned a verdict of guilty on all five offenses as charged in the indictment. The Defendant
timely filed a motion for a new trial, which was denied following an evidentiary hearing. This
appeal followed.
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ANALYSIS
I. Sufficiency
In his first issue on appeal, the Defendant claims the evidence is insufficient to support both
of his aggravated burglary convictions and one aggravated assault conviction.2 As to the burglary
convictions, the Defendant asserts that the State failed to prove he entered both the victim’s and Ms.
Stewart’s apartments with the “intent” to commit an assault therein as charged in the indictment.3
Also, the Defendant claims that the defense of self-defense should have negated any evidence that
he assaulted the victim as charged in count three, and therefore this conviction should also be
reversed. We disagree.
A. Standard of Review
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant
who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption
of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999).
On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.
B. Aggravated Burglary Convictions
The Defendant was convicted of two counts of aggravated burglary for breaking into both
the victim’s and Ms. Stewart’s apartments. Tennessee defines burglary, in relevant part, as follows:
A person commits burglary who, without the effective consent of the property owner:
2
The Defendant does not challenge his conviction for resisting arrest or the sufficiency of evidence of his
conviction for aggravated assault against Mr. Knowles.
3
The Defendant concedes that he entered both apartments unlawfully.
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Enters a building other than a habitation (or any portion thereof) not open to the
public, with the intent to commit a felony, theft or assault[.]
Tenn. Code Ann. § 39-14-402(a)(1), (3). The offense of burglary is elevated to aggravated burglary
when the building unlawfully entered is a “habitation.” Tenn. Code Ann. § 39-14-403.
The Defendant concedes that in both instances he unlawfully entered the two apartments.
He nevertheless asserts that the evidence presented at trial was insufficient for a reasonable jury to
conclude that he had the intent to commit assault inside either apartment. First, the Defendant claims
that his intent upon breaking into the victim’s apartment was merely to “speak with his wife,” as
verified by the fact that he first knocked on the door and attempted to gain lawful entry. He further
claims that “[i]t is uncontraverted that [the Defendant] only grabbed [the victim] after she started
beating him,” thus, the Defendant argues, any actual assault of the victim was self-defense.
The Defendant also argues that the State failed to prove he broke into Ms. Stewart’s
apartment with the intent to assault his wife. Moreover, the Defendant argues, the contradictory
testimony of Ms. Stewart and the victim as to whether he actually hit the victim in Ms. Stewart’s
apartment would prevent a jury from finding “beyond a reasonable doubt that [the Defendant]
entered Ms. Stewart’s apartment with the intent to assault Ms. King.” Thus, the Defendant argues,
the facts and circumstances presented at trial were not “so strong and cogent as to exclude every
other reasonable hypothesis” as to the Defendant’s intent, and therefore the evidence was insufficient
to support both of his aggravated burglary convictions. State v. Bohanan, 745 S.W.2d 892, 895
(Tenn. Crim. App. 1987).
It is well established that “[i]ntent is rarely proven by direct evidence, and the trier of fact
may deduce or infer intent from the character and nature of the offense and the circumstances
surrounding the offense.” State v. J. D. Jones, No. E2003-01565-CCA-R3-CD, 2004 WL 1541309,
at *8 (Tenn. Crim. App., Knoxville, July 9, 2004) (citing State v. Inlow, 52 S.W.3d 101,104-105
(Tenn. Crim. App. 2000)); see also State v. Lowery, 667 S.W.2d 52, 57 (Tenn. 1984).
Circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe, 726
S.W.2d 896, 899-900 (Tenn. 1987). However, the circumstantial evidence must be consistent with
the guilt of the accused, inconsistent with innocence, and must exclude every other reasonable theory
except that of guilt. Tharpe, 726 S.W.2d at 900. Moreover, if a conviction is based entirely on
circumstantial evidence, the facts must be “‘so clearly interwoven and connected that the finger of
guilt is pointed unerringly at the Defendant and the Defendant alone.’” State v. Reid, 91 S.W.3d 247,
277 (Tenn. 2002) (quoting State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993)). Furthermore,
deference clearly lies with the jury, as the weight of circumstantial evidence is a matter for the jury
to determine. State v. Coury, 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985). Additionally, whether
all other reasonable theories have been excluded by the evidence is also a question of fact for the
jury. Pruitt v. State, 460 S.W.2d 385, 390-91 (Tenn. Crim. App. 1970).
The record on appeal establishes that the Defendant made a particularly violent unlawful
entry into the victim’s home by diving through a glass window. After gaining entry, the Defendant,
according to the victim’s testimony, resisted her efforts to eject him, overpowered her, pushed her
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to the ground and began hitting and choking her. Mr. Knowles testified that he witnessed the
Defendant assaulting the victim in her own apartment, and Officer Hutchins testified to the visible
injuries of the victim when he arrived at the scene. As to the second aggravated burglary conviction,
the record reveals that shortly after his first assault on the victim, the Defendant kicked in the locked
door to Ms. Stewart’s apartment, entered “in an uproar . . . cussing real bad,” and was “mad” as he
searched for the victim.
This Court has previously noted, in the context of reviewing a burglary conviction, that
“[o]ne’s actions are circumstantial evidence of his intent.” State v. Barker, 642 S.W.2d 735, 737
(Tenn. Crim. App. 1982). We have further held that in addition to a defendant’s actions, “the
circumstances surrounding the entry must also be viewed in determining intent.” State v. Holland,
860 S.W.2d 53, 59 (Tenn. Crim. App. 1993). Here, the Defendant’s violent entry of both
apartments--diving through a glass window and kicking in a locked door--amount to strong
circumstantial evidence of an intent to commit assault inside. In addition, the Defendant’s actions
of striking and choking the victim during the first aggravated burglary speak volumes as to his intent.
Likewise, the Defendant’s demeanor as he stormed about Ms. Stewart’s apartment in a rage, cussing
profusely while looking for the victim, along with his previous history of violence, also support the
jury’s conclusion that the Defendant intended to commit an assault inside Ms. Stewart’s apartment.
Based on these circumstances, we find the jury properly inferred the Defendant intended to commit
an assault against the victim in both apartments. Therefore, we conclude the evidence was sufficient
to convict the Defendant of aggravated burglary on both counts. This issue has no merit.
C. Aggravated Assault Conviction
The Defendant also challenges the sufficiency of the evidence pertaining to his aggravated
assault conviction for assaulting the victim.4 Specifically, the Defendant claims that because “Ms.
King was clearly the aggressor . . . the weight of the evidence supports a finding that [the Defendant]
acted in self-defense and that his conviction of aggravated assault should be reversed.”
Aggravated assault, as charged against the Defendant, is committed when:
A person . . . after having been enjoined or restrained by an order, diversion or
probation agreement of a court of competent jurisdiction from in any way causing or
attempting to cause bodily injury or in any way committing or attempting to commit
an assault against an individual or individuals, intentionally or knowingly attempts
to cause or causes bodily injury or commits or attempts to commit an assault against
such individual or individuals.
Tenn. Code Ann. § 39-13-102(c). Thus, at trial, the State bore the burden of proving that the victim
had a protection order against the Defendant, and the Defendant nonetheless intentionally or
knowingly either caused the victim bodily injury, assaulted her, or attempted to do either of the
4
The Defendant does not challenge, on sufficiency grounds, his conviction for aggravated assault against Mr.
Knowles.
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same. The Defendant does not allege that the State failed to prove all the necessary elements for
aggravated assault as required by statute, rather, the Defendant asserts that he is entitled to negate
any criminal responsibility attached to his aggravated assault of the victim because he acted in self-
defense.
The Defendant failed to raise the defense of self-defense at the trial level, and has therefore
waived this issue on appeal. The State is required to prove the negation of a defense only “if
admissible evidence is introduced supporting the defense.” Tenn. Code Ann. § 39-11-201.
Additionally, “[t]he issue of the existence of a defense is not submitted to the jury unless it is fairly
raised by the proof.” Tenn. Code Ann. § 39-11-203(c). Moreover, this Court is instructed to
interpret the above statute to read that “[t]he defendant has the burden of introducing evidence that
a defense is applicable.” Id., Sentencing Commission Comments. See also State v. Leaphart, 673
S.W.2d 870, 873 (Tenn. Crim. App. 1984) (holding “[a]lthough it is well-settled that an accused is
entitled to an affirmative instruction on every issue fairly raised by the evidence, there is no
requirement that the court charge on matters not raised by the proof”).
In the case at hand, the Defendant did not meet his burden of fairly introducing evidence
supporting the statutory defense of self-defense at trial. Moreover, he failed to request jury
instructions on self-defense, and failed to allege in his motion for a new trial that the trial court erred
in not charging the jury on self-defense. However, the Defendant now asks this Court to reverse his
aggravated assault conviction based on a theory of self-defense.
Tennessee Rule of Appellate Procedure 36(a) instructs this Court that it is not required to
grant relief “to a party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.” Additionally, Tennessee Rule of
Appellate Procedure 3(e) states in relevant part:
in all cases tried by a jury, no issue presented for review shall be predicated upon
error in the admission or exclusion of evidence, jury instructions granted or refused,
misconduct of jurors, parties or counsel, or other action committed or occurring
during the trial of the case, or other ground upon which a new trial is sought, unless
the same was specifically stated in a motion for a new trial; otherwise such issues
will be treated as waived.
See also State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (holding that a defendant relinquishes
the right to argue on appeal any issue that should have been presented in the motion for a new trial).
These procedural rules support our long-standing policy of refraining from finding a trial court to
have erred in matters not brought to its attention at trial or in a motion for a new trial. Therefore,
any claim to the statutory defense of self-defense outlined in Tennessee Code Annotated section 39-
11-611 has been procedurally waived. Thus, the Defendant can argue only that the evidence was
insufficient as a matter of law to find him guilty of aggravated assault because he assaulted the
victim only after he had been struck by her.
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The evidence presented in the record reveals that the Defendant violently attacked the victim:
he threw her to the ground, choked her, hit her, and threw her against a concrete protrusion. The
evidence also establishes that the victim received substantial physical injuries from the assault. The
fact that the victim struck the Defendant after he dove through a window and into her apartment is
of no consequence considering the ample evidence supporting the jury’s conclusion that the
Defendant assaulted the victim.
Moreover, the circumstances surrounding this incident also suggest the Defendant was where
he had no lawful right to be when the assault occurred, he provoked the confrontation, and he used
force well beyond that necessary to protect himself against the force used by the victim. The
evidence reveals that the victim had an order of protection out against the Defendant forbidding him
to have any contact with her. The evidence further shows that the Defendant ignored this order and
broke into the victim’s apartment–arriving at a place where he had no lawful right to be--and
subsequently provoked the altercation that left the victim injured.
The evidence also reveals that the Defendant was a physically imposing man. It took two
McMinnville Police officers to take the Defendant down and handcuff him. Quite the opposite of
the Defendant, the victim was described by the trial court as “a little bitty lady. For the Court of
Appeals, she probably doesn’t weigh 90 pounds and about 5’3” or 4” if she’s that tall.”
Accordingly, we find the evidence, when viewed in the light most favorable to the State, was indeed
sufficient to sustain the Defendant’s conviction for aggravated assault. This issue is without merit.
II. Impeaching a Witness Based on His Juvenile Record
In his second issue on appeal, the Defendant claims the trial court erred by failing to allow
him to impeach the testimony of Mr. Knowles by means of introducing a prior juvenile conviction.
The record reveals that at trial, defense counsel attempted to attack the credibility of Mr. Knowles’
testimony on cross-examination by questioning him about a prior juvenile adjudication for vandalism
when the State objected. After a brief discussion, the trial court sustained the State’s objection and
prohibited the defense from pursuing its impeachment line of questioning because it determined that
the conviction at issue, vandalism, was not a crime of dishonesty.
Now, on appeal, the Defendant infers that Mr. Knowles’s juvenile vandalism adjudication
may have been the equivalent of a felony, and therefore it need not be a crime of dishonesty to be
admitted for impeachment purposes. Thus, the Defendant argues, the trial court erred in preventing
the Defendant from impeaching Mr. Knowles’ testimony through use of his prior juvenile record.
The State elected not to address this particular claim on the merits, but rather argues that because the
Defendant never challenged the trial court’s ruling to prohibit the impeachment evidence on the basis
that it was a felony conviction either at trial or at the hearing on his motion for a new trial, he has
waived the right to raise this issue on appeal. While a review of this issue suggests it has no merit,
we agree with the State and find the Defendant has waived this claim by failing to raise it at the trial
level.
Tennessee Rule of Evidence 609, in pertinent part, permits a party to attack “the credibility
of a witness” by introducing “evidence that the witness has been convicted of a crime” but only if
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the crime was “punishable by death or imprisonment in excess of one year,” i.e., a felony, or if it was
a crime that “involved dishonesty or false statement.” Tenn. R. Evid. 609(a)(2). The same rule of
evidence also generally prohibits the introduction of “[e]vidence of juvenile adjudications” for the
purpose of impeachment. Tenn. R. Evid. 609(d). However, a trial court may allow such evidence
if: 1) the “conviction of the [juvenile] offense would be admissible to attack the credibility of an
adult,” and 2) “the court is satisfied that admission in evidence is necessary for a fair determination
in a civil action or criminal proceeding.” Id.
We begin our analysis by first noting that nowhere in the record does the Defendant provide
evidence that Mr. Knowles’ juvenile adjudication for vandalism was a felony conviction or the
equivalent. The Defendant simply states in his appellate brief: “Except in cases where the damage
is less than $500.00, all vandalism convictions are felony offenses that are punishable by death or
imprisonment in excess of one year or more.” The Defendant has failed to demonstrate that the
witness’ juvenile vandalism adjudication “would be admissible to attack the credibility of an adult,”
Id. However, we need not address the merits of the Defendant’s claim at length because we find
the Defendant has waived this issue.
Tennessee Rule of Appellate Procedure 36(a) instructs this Court that it is not required to
grant relief “to a party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.” Additionally, this Court has held that
a defendant cannot change theories from the trial court to the appellate court, and doing so generally
waives appellate review of the issue. See State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App.
2001) (holding that “[i]t is well-settled that an appellant is bound by the evidentiary theory set forth
at trial, and may not change theories on appeal”). These procedural rules support our long-standing
policy of refraining from finding a trial court to have erred in matters not brought to its attention
through proper objections at trial.
In the case at hand, the Defendant failed to inform the trial court of a proper basis for
allowing the impeachment testimony, and the trial court was left to rule on the State’s objection with
the information presented by the defense at that time. While the Defendant raised the general issue
of the court’s ruling on the impeachment evidence in his motion for a new trial, at the hearing on this
motion the Defendant again, through counsel, challenged only the trial court’s determination that the
juvenile vandalism adjudication was not “a charge of dishonesty.” However, on appeal, the
Defendant has changed his evidentiary theory, arguing that the vandalism adjudication may have
been a felony and therefore admissible. Because the Defendant failed to properly present the issue
at trial and now wishes to change his theory on appeal, we find the issue has been waived.
III. Excessive Sentences
The Defendant claims the trial court imposed excessive sentences for all four of his felony
convictions. Specifically, the Defendant asserts that Blakely v. Washington, 124 S. Ct. 2531 (2004),
requires a sentencing reduction because the trial court erroneously enhanced his felony conviction
sentences based on facts not submitted to a jury. The Defendant also claims that the trial court
violated Blakely when it “enhanced” his aggregate sentence by running three of his four felony
conviction sentences consecutively. We disagree.
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A. Standard of Review
Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider
(a) the evidence adduced at the trial and the sentencing hearing; (b) the pre-sentence 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 sections 40-35-
113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704
(Tenn. 2002). To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and the
method by which the mitigating and enhancement factors have been evaluated and balanced in
determining the sentence. See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).
Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. See
Tenn. Code Ann. § 40-35-401(d). However, this presumption “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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that
the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under
the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,
then the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported
by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that
a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401 Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.
B. Improper Enhancements
The Defendant asserts the trial court erred in imposing excessive sentences for all four of his
Class C felony convictions by enhancing them beyond the statutory minimum based on facts not
submitted to the jury: a Blakely violation. In calculating a sentence for a Class C felony conviction,
the “presumptive sentence . . . shall be the minimum sentence in the range if there are no
enhancement or mitigating factors.” Tenn. Code Ann. § 40-35-210(c). If there are enhancement,
but no mitigating factors, the trial court may set the sentence above the minimum, but still within
the range. See Tenn. Code Ann. § 40-35-210(d). A sentence involving both enhancement and
mitigating factors for a Class C felony requires the court to start at the minimum, next assign the
proper weight for any applicable enhancement factor(s), and finally apply a reduction within the
range as appropriate for any mitigating factor(s). See Tenn. Code Ann. § 40-35-210(e).
The sentence for a Class C felony, where the defendant is a Range II offender is “not less than
six (6) nor more than ten (10) years.” Tenn. Code Ann. § 40-35-112(b)(3). Thus, the presumptive
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sentence for each of the Defendant’s Class C felony convictions is six years. However, the weight
to be afforded enhancement factors is left to the trial court’s discretion so long as it complies with
the principles of the sentencing act and the court’s finding are supported by the record. See State
v. Palmer, 10 S.W.3d 638, 646 (Tenn. Crim. App. 1999).
In this case, the trial court determined the Defendant to be a multiple, Range II offender.5
The court further determined that six separate enhancement factors applied to either some or all of
the Defendant’s four felony conviction sentences. See Tenn Code Ann. § 40-35-114(2), (7), (9),
(10), (12), and (14). The court found no mitigating factors applicable in the Defendant’s case. Based
on these findings, the trial court enhanced each of the Defendant’s four felony sentences beyond the
presumptive starting point by four years, up to the statutory maximum of ten years.
The Defendant now claims that his Sixth Amendment right to a trial by jury was impugned
when the trial court made determinations of fact for sentence enhancement purposes that were not
submitted to a jury, citing Blakely v. Washington, 124 S. Ct. 2531 (2004). However, our supreme
court has recently held that the enhancement component of Tennessee’s sentencing structure does
not violate a defendant’s Sixth Amendment right to a trial by jury. See State v. Gomez, ___ S.W.3d
___, No. M2002-01209-SC-R11-CD, 2005 WL 856848 (Tenn. 2005). Our supreme court stated that
Tennessee’s sentencing structure “merely requires judges to consider enhancement factors,” and
unlike the sentencing guidelines struck down in Blakely, “does not mandate an increased sentence
upon a judge’s finding of an enhancement factor.” Gomez, ___ S.W.3d at___, 2005 WL 856848,
at *26. Thus, relying on Blakely as clarified by United States v. Booker, __ U.S. ___, 125 S. Ct. 738(2005), our supreme court has determined that Tennessee’s sentencing structure provides the type
of “‘intermediate,’ non-mandatory, advisory sentencing scheme” that the United States Supreme
Court has expressly ruled acceptable, permitting judges to exercise the type of sentencing discretion
applied in the case at hand. Id. Therefore, the Defendant’s claim of a Sixth Amendment right
violation based on the trial court’s enhancement of his sentences is without merit.
C. Consecutive Sentences and Blakely
The Defendant also claims that the trial court committed a Blakely error when it increased
the Defendant’s aggregate sentence beyond the possible minimum by imposing consecutive
sentencing. As stated above, our supreme court has recently held that Tennessee’s sentencing
structure does not trigger a Blakely violation, therefore this claim is also without merit. See Gomez,
___ S.W.3d ___ (Tenn. 2005). We also note that even prior to our supreme court’s recent ruling in
Gomez, this Court has consistently held that Blakely does not affect consecutive sentencing
determinations. See State v. Rose Marie Hernandez, No. M2003-01756-CCA-R3-CD, 2004 WL
2984844, at * 4 (Tenn. Crim. App., Nashville, Dec. 16, 2004); State v. Earice Roberts, No. W2003-
02668-CCA-R3-CD, 2004 WL 2715316, at * 15 (Tenn. Crim. App., Jackson, Nov. 23, 2004); State
v. Lawrence Warren Pierce, No. M2003-01924-CCA-R3-CD, 2004 WL 2533794, at * 16 (Tenn.
Crim. App., Nashville, Nov. 9, 2004).
5
The Defendant does not challenge the fact that his criminal record requires that he be sentenced as a multiple,
Range II offender.
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IV. Consecutive Sentencing
In his last issue on appeal, the Defendant claims that the trial court erred in mandating that
three of his four ten-year felony conviction sentences be served consecutively. Specifically, the
Defendant argues that this consecutive sentencing, resulting in a thirty year effective sentence, was
not reasonably related to the severity of the offenses involved, and was not the least severe measure
necessary to protect the public from his future criminal conduct. We disagree.
We begin by noting that it is within the sound discretion of the trial court whether to impose
consecutive or concurrent sentences. See State v. Adams, 973 S.W.2d 224, 230-31(Tenn. Crim.
App. 1997). A Tennessee court may order consecutive sentences in cases where it finds any of seven
statutorily enumerated criteria to be applicable “by a preponderance of the evidence.” Tenn. Code
Ann. § 40-35-115(b). In addition to these criteria, consecutive sentencing is also subject to the
general sentencing principles that the overall sentence imposed “should be no greater than that
deserved for the offense committed,” that it “should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed,” and that a defendant’s “potential” for
“rehabilitation” be considered. Tenn. Code Ann. § 40-35-103(2), (4) and (5). Additionally, we are
reminded that “the aggregate maximum of consecutive terms must be reasonably related to the
severity of the offenses involved.” Tenn. Code Ann. § 40-35-115 Sentencing Commission
Comments.
In the case at hand, the trial court found two 6 consecutive sentencing critera applied: the
Defendant is “an offender whose record of criminal activity is extensive,” and he was being
“sentenced for an offense committed while on probation.” Tenn. Code Ann. § 40-35-115(b)(2), (6).
The trial court also stated for the record that it imposed consecutive sentences because the
“circumstances surrounding the commission of the [Defendant’s] offense” were such that
“confinement is necessary to protect society from the [Defendant’s] unwillingness to lead a
productive life . . . .” The court further found that the “aggregate length of the sentence reasonably
relates to the offense[s] [of] which the [Defendant] stands convicted.”
We find that the record contains sufficient evidence to support consecutive sentences. The
trial court noted that it had “read contract books that were shorter” than the Defendant’s criminal
record. Indeed, the pre-sentence report, contained in the record on appeal, lists no less than forty-six
charges, with at least twenty-five ending in convictions. The report also noted that, while not
verified due to the absence of computer records, a previous case file for the Defendant listed an
additional thirty-two charges between the years of 1966 and 1979. The Defendant’s prior
convictions include multiple DUIs, multiple assaults, theft, robbery and aggravated robbery. When
asked about his extensive criminal record at his sentencing hearing, the Defendant replied that he
“pled guilty to a lot of stuff [he] didn’t do.” We conclude the trial court properly found the
Defendant “is an offender whose record of criminal activity is extensive.” Tenn. Code Ann. § 40-35-
115(b)(2).
6
The trial court also considered applying consecutive sentencing criterion (4), that the Defendant was a
“dangerous offender.” However, the court first determined this factor “maybe” applied, then stated it “probably” applied,
but in its final analysis concluded that it did not attribute “much weight” to criterion (4).
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A certified judgment form indicating the Defendant was on probation when he committed
the instant crimes was admitted into evidence at the sentencing hearing. Additionally, Mr. Earl
Bloodworth of the Department of Probation and Parole testified at the sentencing hearing that the
Defendant was placed on probation for two separate felony offenses in May and June of 2002, and
was on probation for these offenses when he committed the instant offenses. Therefore, we find that
the trial court properly found that the Defendant was “sentenced for an offense committed while on
probation.” Id. at § 40-35-115(b)(6).
Additionally, the violent nature of the offenses the Defendant committed against the victim
and her juvenile neighbor indicates that the effective sentence is reasonably related to the severity
of these crimes. The Defendant’s extensive criminal history reveals that he has little potential for
rehabilitation, and his blatant disregard for legal consequences less severe than imprisonment is
obvious. While on probation for two other prior assaults, the Defendant committed the aggravated
assaults and aggravated burglaries at issue in this case. Furthermore, a court order of protection did
nothing to prevent the Defendant from diving through the victim’s window and violently assaulting
her, and then turning a knife on those rushing to her assistance. An extended sentence is warranted
in this case to protect the public from any further criminal conduct by the Defendant. Accordingly,
we affirm the trial court’s imposition of consecutive sentences. This issue has no merit.
CONCLUSION
Based on the foregoing reasoning and authorities, we affirm the judgments of the trial court.
___________________________________
DAVID H. WELLES, JUDGE
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