State v. McMahan

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MAY 1998 SESSION
March 31, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9707-CR-00262
)
) Knox County
v. )
) Honorable Mary Beth Leibowitz, Judge
)
WILLIAM JASON McMAHAN, ) (Aggravated Robbery, Criminally Negligent
) Homicide, and Theft)
Appellant. )
For the Appellant: For the Appellee:
J. Jeffrey Whitt John Knox Walkup
706 Walnut Street Attorney General of Tennessee
Suite 902 and
Knoxville, TN 37902 Ellen H. Pollack
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
and
Fred Bright
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED:____________________
JUDGMENTS OF CONVICTION FOR AGGRAVATED ROBBERY AND CRIMINALLY
NEGLIGENT HOMICIDE AFFIRMED; JUDGMENT OF CONVICTION FOR THEFT
VACATED AND CONVICTION MERGED INTO THE AGGRAVATED ROBBERY
JUDGMENT OF CONVICTION
Joseph M. Tipton
Judge
OPINION
The defendant, W illiam Jason McMahan, appeals as of right following his
1997 jury convictions in the Knox County Criminal Court for aggravated robbery, a
Class B felony, criminally negligent homicide, a Class E felony, and theft of more than
one thousand dollars but less than ten thousand dollars, a Class D felony. He received
consecutive sentences of twelve years, two years and four years, respectively, to be
served in the Department of Correction as a Range I, standard offender. The
defendant presents the following issues for our review:
(1) whether the evidence is sufficient to support the
defendant’s aggravated robbery conviction;
(2) whether the defendant can be found guilty of both
aggravated robbery and theft;
(3) whether the trial court erred by refusing to allow the jury to
rehear testimony upon request once deliberations had begun;
and
(4) whether the trial court erred in sentencing the defendant
with regard to the weight given certain enhancement factors
and to the imposition of consecutive sentencing.
We conclude (1) that the evidence is sufficient to support the defendant’s aggravated
robbery conviction, (2) that the convictions for both aggravated robbery and theft violate
double jeopardy principles, (3) that although the trial court should have allowed the jury
to rehear the testimony, the error was harmless and (4) that the defendant was properly
sentenced.
The defendant was charged with felony murder for the killing of the victim,
Robert Lambdin, in perpetration of robbery and theft. The defendant also was charged
with one count of especially aggravated robbery and one count of theft of property
valued at more than ten thousand dollars but less than sixty thousand dollars.
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At trial, James “J.L.” Keaton testified that on the afternoon of September
15, 1995, he went to The Finish Line bar after work. He said that while there, he ran
into Danny Carroll and another person, whom he identified as the defendant. He stated
that he and Carroll went behind the bar to drink and smoke cocaine, but the defendant
remained in the bar. He said that after a couple of hours, he drove the three of them to
an apartment in South Knoxville where they bought some cocaine. He testified that all
three of them used the cocaine initially, but then the defendant ran out of money. He
said that he and Carroll continued to use cocaine but did not give any to the defendant.
Keaton testified that the defendant said he wanted to be driven to his
house to get some money. He said that he was driving, Carroll was in the passenger
seat and the defendant was in the backseat. He said that the defendant directed him to
a subdivision, which he later learned was Murphy Hills. He stated that once there, they
had to drive around before the defendant could identify the right house. He said that
when they left the defendant at the house, the defendant did not ask them to wait for
him.
Keaton testified that he and Carroll then drove to his mother’s trailer,
which was about two miles from where they left the defendant. He stated that he and
Carroll continued to smoke cocaine in the trailer. He said that about thirty minutes later,
the defendant came to his door. He said that the defendant had been to the trailer
once before to help Carroll repair his car while he was at work. He said that when he
answered the door, the defendant was breathing heavily and sweating like he had been
running. He stated that Carroll went out on the porch and spoke with the defendant.
Keaton testified that the defendant left and Carroll came inside and said
that the defendant had to go drop off his car. He said that he and Carroll stayed at the
trailer and finished using the cocaine, then they drove up the street and picked up the
3
defendant who was walking and carrying a lunch cooler that he did not have earlier. He
said he then drove the three of them back to the apartment in South Knoxville, where
they continued to use cocaine, drink and take Valium throughout the night. He stated
that he did not remember what happened to the defendant after this but that he thought
that he and Carroll left the defendant at the apartment and that he took Carroll home.
He said that he did not know whether they used Carroll’s or the defendant’s money for
the final cocaine purchase but that he had no money at that point.
On cross-examination, Keaton testified that did not know the defendant
before running into him at the bar that afternoon. He said the purpose of taking the
defendant to his house was for the defendant to get money to get high with them but
that he did not remember if the defendant said that he was going to get the money or
borrow it. He stated that when the defendant came to the trailer door, he did not notice
any blood on the defendant’s clothes, and the defendant did not come into his trailer to
change clothes.
Danny Carroll testified that on September 15, 1995, he and the defendant
worked together building homes. He said that he and the defendant left work together
and went to The Finish Line bar around 5:00 or 6:00 p.m. He stated that he saw J.L.
Keaton at the bar, and he introduced the defendant to Keaton. He said while at the bar,
the three of them were drinking and using cocaine. He stated that Keaton drove the
three of them to South Knoxville, where they bought more cocaine. Carroll said that he
thought they all got some cocaine but that he did not remember who paid for it. He
stated that they used more cocaine while in South Knoxville, then they returned to The
Finish Line about 7:00 or 8:00 p.m.
Carroll testified that the three of them left the bar after a couple of hours.
He stated that the defendant said he wanted to borrow some money from Blue, who
4
owed the defendant money because the defendant had repaired his truck. Carroll said
he knew Robert Lambdin, who ran Greenway Sports, by the nickname Blue. He
testified that Keaton drove, he rode in the passenger’s seat and the defendant rode in
the backseat. He said that he did not know where Blue lived, but they took the
defendant to Murphy Hills. He said the defendant did not know which house was
Blue’s, and they had to drive around the block before dropping off the defendant. He
said they did not wait on the defendant because he told them that Blue would give him
a ride home.
Carroll testified that he and Keaton went to Keaton’s trailer, which was
about one to one and one-half miles away, and they used cocaine and drank. He said
one to one and one-half hours later, the defendant came to the door. He said that the
defendant had been to Keaton’s trailer with him before to work on Keaton’s car while he
was not there. Carroll said that he and the defendant talked outside and that the
defendant looked like he had been in a fight. He stated that the defendant was upset
and crying. He said the defendant told him that he and Blue got into a fight, Blue hit his
head on a table, and it might have knocked out Blue. He stated that the defendant told
him that he did not know whether the blow had killed Blue. He said Keaton gave the
defendant another shirt to wear because the defendant’s shirt was ripped and bloody.
He stated that the defendant changed clothes in Keaton’s bathroom.
Carroll testified that the defendant said he was in Blue’s car and needed
to drop off the car. He stated that the defendant said he was going to park the car up
the street, and he wanted them to meet him there. He said that he and Keaton left a
few minutes after the defendant and picked him up about one mile down the road. He
said that when they picked him up, the defendant had a small Igloo cooler with him. He
stated that he had seen the cooler before at the pool hall, and Blue used it to hold his
marijuana. He said the cooler contained two bags of marijuana and some snacks. He
5
stated that he saw the defendant counting some money, and he overheard the
defendant say it was over two thousand dollars. He said that he did not think the
defendant had the money before they dropped him off at Blue’s house. He stated that
the defendant kept the marijuana but threw the cooler out of the car.
Carroll testified that the three of them then drove back to South Knoxville,
and the defendant gave him two or three hundred dollars to buy cocaine. He stated
that he did not know exactly how much cocaine he purchased that night but that he
made at least three purchases with money from the defendant. He said that the
defendant left while he was making the final purchase and that he rode home with
Keaton at 2:00 or 3:00 a.m. He stated that the next evening while watching the news,
he found out that Blue had been killed.
On cross-examination, Carroll testified that the defendant did not have a
gun or a knife with him when they dropped him off at Blue’s house. He stated that the
defendant had asked him to go inside Blue’s house. He said the defendant also asked
them to wait on him, but Keaton wanted to leave. He admitted that they had counted
the defendant’s money at Keaton’s trailer.
Jim Kesterson testified that he is a highway patrolman with the crime
scene unit for the Knox County Sheriff’s Department. He stated that on September 16,
1995, he went to the crime scene at the victim’s house. He said the victim was lying on
the floor near the front entrance, and a recliner was overturned on top of him covering
his face. He said the victim was clutching part of a plastic bag, and another part of the
bag was in front of the fireplace. He stated that a black nylon bag that held a .38
caliber revolver was on the end table. He said an open bag was on the couch, and it
contained money and an automatic pistol. He said that the victim’s wallet was in his
rear pocket and contained money. He stated that the fingerprints on a drinking glass in
6
the room matched those of the defendant. He testified that the telephone receiver
appeared to have been ripped from its base. He stated that blood spatters were found
in various places in the room, along with bloodstains on the recliner and on the rug
underneath the victim’s head.
On cross-examination, Officer Kesterson testified that he could not say
whether the blood in the room belonged to the victim or to the defendant. He stated
that there was no blood on the telephone. He said that he found clear plastic baggies
and a football betting sheet near the victim. He stated that he did not collect any
marijuana as a result of his investigation, but he knew that Detective Johnson collected
some.
Detective Darrell Johnson testified that he is a detective for the Knox
County Sheriff’s Department and that he went to the victim’s house on September 16,
1995. He stated that the victim appeared to have been dead for several hours and had
bruises and cuts. He stated that the victim’s 1988 red Ford Festiva was recovered. He
said that on September 29, 1995, he interviewed the defendant, and the defendant
gave him the name of an individual that might have information about the crime.
Detective Johnson stated that the next time he spoke with the defendant was on March
29, 1996, at the Sheriff’s Department and that the defendant was a suspect at that time.
He said that the defendant executed a written waiver and then gave a taped statement.
The defendant’s taped statement was played for the jury. In this
statement, the defendant said that he and Danny Carroll went to The Finish Line after
work. The defendant said he and Carroll took a cab from the bar to South Knoxville,
where they used cocaine before returning to the bar. The defendant said that at the
bar, he and Carroll ran into Carroll’s friend, J.L. Keaton, and the three of them left the
bar in Keaton’s car. The defendant stated that Carroll asked him where he could get
7
more money for cocaine. He said that he had them take him to Blue’s house in order
for him to borrow one hundred dollars. He stated that he already owed Blue two or
three hundred dollars.
The defendant’s statement revealed that they arrived at Blue’s house just
before nightfall. He said that he asked Carroll to go inside with him but Carroll declined.
The defendant said that Blue let him in the house. He said that Blue showed him some
marijuana in the kitchen, and Blue said that he intended to give the defendant an ounce
of marijuana for repairing his truck. He said that Blue refused his request to borrow
money because he owed Blue money, and Blue said if he did not pay him, Blue could
have “something done.”
In his statement, the defendant said that he went to make a telephone
call, and he felt Blue push or hit him in the back. He said that he turned and hit Blue
once on his head with the telephone. He said that he and Blue began to fight and that
when they fell to the floor, he got on top of Blue and hit him with his fist until Blue did
not move. He said that once Blue stopped moving, he tried to shake him, but Blue
would not wake up. He said he got up and wiped the blood from his hands onto the
wall. He said that he tried to get Blue to talk and shook him again. He said he sat in
the house for a period of time, then he pushed a chair on top of Blue.
In his statement, the defendant said that he realized that Carroll and
Keaton had not waited on him, so he checked Blue’s pockets for keys. He said that he
took keys and a bag of marijuana from Blue’s pockets, and he took an envelope
containing twenty-five hundred dollars from the table. He said that he left in Blue’s car,
a red Ford Festiva. He said he drove to Keaton’s trailer where he told Carroll that he
thought he had killed Blue. He stated that his nose was bleeding, and he changed into
Keaton’s clothes because his clothes had blood on them. He said that Carroll got rid of
8
his clothes and told him to move the victim’s car. He said he drove the car to a certain
spot, and Keaton and Carroll picked him up. He said they all left Keaton’s trailer at the
same time. He said that when he got in Keaton’s car, he had the victim’s cooler with
him. He said that he removed some marijuana and threw the cooler out the car
window.
The defendant’s statement revealed that he spent the entire twenty-five
hundred dollars on cocaine that night. The defendant stated that after purchasing and
using cocaine in South Knoxville, he left Carroll and Keaton and went with Robbie
Gibson to buy more cocaine with the last one hundred dollars, but he was cheated. He
said that he did not mean to kill the victim and that he did not go to the victim’s house
intending to rob him. He said that he did not come forward earlier because he was
scared.
On cross-examination, Detective Johnson testified that no tests were
performed on the blood at the crime scene. He stated that money was found in the
victim’s wallet and in the money bag and that a ring was found in the bathroom. He
said that he later recovered marijuana and money that had been in the victim’s house
but was not discovered when the police processed the crime scene. The detective said
that the defendant was upset and crying during his statement and during the preceding
interview.
Dr. Sandra K. Elkins testified that she is the Knox County Medical
Examiner and that she performed an autopsy on the victim. She said that the victim
died from multiple, blunt force injuries sustained during a beating. She testified that
blows to the head had resulted in brain injuries and caused the victim’s brain to bleed.
She said that the victim had two broken cervical vertebrae in his lower neck. She
stated that blunt force injuries to the chest resulted in nine broken ribs. She testified
9
that ten moderate to severe blows with a telephone receiver, fists or feet could have
caused these injuries. She said that death could have resulted from either the head or
the chest injuries and that the victim could have survived for one and one-half hours
after sustaining these injuries.
Dr. Elkins testified that the victim was sixty-three years old, five-feet-eight-
inches tall, weighed one-hundred-sixty pounds, and had emphysema. She stated that
the victim had defensive wounds on the back of his lower right arm but no offensive
wounds on his hands or knuckles.
On cross-examination, Dr. Elkins testified that death could have occurred
within minutes but not instantaneously. She said that the injuries had no distinct
patterns and could have occurred from falling on a table or against a wall. She stated
that the victim’s spinal cord was not severed, and she believed that the broken
vertebrae were due to violent twisting or jerking of the neck. She stated that bones
break more easily as people age and that cardiopulmonary resuscitation (C.P.R.) often
causes broken ribs on sixty-year-old individuals.
The jury convicted the defendant of the lesser included offenses of
criminally negligent homicide, aggravated robbery and theft of more than one thousand
dollars but less than ten thousand dollars.
I. SUFFICIENCY OF THE EVIDENCE
The defendant contends that the evidence is not sufficient to support his
aggravated robbery conviction because he did not form the intent to take the victim’s
money until after the fight had concluded. The defendant states that the proof shows
that he went to the victim’s house to borrow money and was refused. The defendant
claims he then attempted to make a phone call. The defendant says at that point, a
10
fight took place which rendered the victim motionless. The defendant argues that it was
not until after the fight, as he was preparing to leave the house, that he decided to take
the money. The defendant contends that because the proof does not show that he
intended to take the money while the fight was in progress, he merely committed theft
and not aggravated robbery. The defendant argues that the evidence showing that he
asked Carroll to go into the victim’s house with him, that he took no weapons with him,
and that money, jewelry and other valuables were left in the victim’s home further
supports his contentions. The state argues that the evidence is sufficient.
Our standard of review when the sufficiency of the evidence is questioned
on appeal is "whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979). This means that we may not reweigh the evidence, but must
presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). This standard applies to both direct and circumstantial evidence. State v.
Thomas, 755 S.W.2d 838, 842 (Tenn. Crim. App. 1988); State v. Lequire, 634 S.W.2d
608, 614 (Tenn. Crim. App. 1981).
Circumstantial evidence may be used exclusively or in combination with
direct evidence to establish guilt for a criminal act. See State v. Smith, 868 S.W.2d
561, 569 (Tenn. 1993). The one element present in almost all criminal offenses which
is most often proven by circumstantial evidence is that relating to the culpable mental
state. See Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973). Other than an accused
stating what his or her purpose, intent, or thinking was at the relevant times, the trier of
fact is left to determine the mental state by making inferences drawn from the
11
surrounding circumstances it finds to exist. See, e.g., Poag v. State, 567 S.W.2d 775,
778 (Tenn. Crim. App. 1978). Furthermore, the jury is not obligated to accept the
defendant’s explanation of events. The weight to be given circumstantial evidence is
for the jury to determine. See Williams v. State, 520 S.W.2d 371, 374 (Tenn. Crim.
App. 1977).
Aggravated robbery is “the intentional or knowing theft of property from
the person of another by violence or putting the person in fear” when accomplished with
a deadly weapon or when the victim suffers serious bodily injury. T.C.A. § 39-13-402,
403. A deadly weapon is defined as “[a]nything that in the manner of its use or
intended use is capable of causing death or serious bodily injury[.]” T.C.A. § 39-11-
106(a)(5)(B).
Taking the evidence in the light most favorable to the state, the defendant
went to the victim’s house because he needed money to buy more cocaine. The victim
refused to lend him money. The defendant admitted that he hit the victim on the head
with the telephone. He also admitted hitting the victim numerous times on the head and
chest with his fist until the victim became motionless. The autopsy results revealed no
offensive wounds on the victim’s hands or knuckles but did show defensive wounds.
The victim died from the injuries he sustained in this beating. The defendant took an
envelope containing twenty-five hundred dollars from a table near the victim’s body.
The defendant preceded to use all of the money he took from the victim to purchase
cocaine that same night. The jury could rationally conclude beyond a reasonable doubt
that the victim did not participate in the “fight,” but, instead, the defendant attacked the
victim when the victim refused to lend him money in order to gain the money by force.
The evidence is sufficient to support the aggravated robbery conviction.
12
II. INCIDENTAL CONVICTION/ DOUBLE JEOPARDY
The defendant contends that because his theft conviction was factually
similar and involved the same property as his aggravated robbery conviction, the
conviction for theft is essentially incidental to the aggravated robbery conviction under
State v. Anthony, 817 S.W.2d 299 (Tenn. 1991). The state argues that theft and
aggravated robbery are two distinct offenses, with robbery involving a person and theft
involving property only. The state contends that the defendant beat the victim in order
to take his money, but only after the beating concluded did the defendant decide to take
the victim’s car.
In Anthony, our supreme court held that convictions for both kidnapping
and robbery violated the defendant’s due process rights when the detention resulting in
the kidnapping conviction was essentially incidental to the commission of the
accompanying felony. Id. at 306. However, when addressing whether convictions for
aggravated assault, attempted voluntary manslaughter and a weapons offense could
properly arise out of a single criminal act, the supreme court has preferred to address
the question under principles of double jeopardy rather than conducting a due process
analysis under Anthony. State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996). Unlike
the kidnapping and robbery statutes discussed in Anthony, which each required proof of
an element that the other did not, the aggravated robbery statute itself requires proof of
a theft. See T.C.A. §§ 39-13-402. We believe that a double jeopardy analysis under
Denton best reflects whether the defendant’s constitutional rights were violated.
Both the United States and Tennessee Constitutions protect against twice
being put in jeopardy for the same offense. U.S. Const. amend. V; Tenn. Const. art. I,
§ 10. The double jeopardy clause contains three protections: “It protects against a
second prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple
13
punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.
Ct. 2072, 2076 (1969); Denton, 938 S.W.2d at 378.
In multiple punishment cases, such as this one, the focus is on legislative
intent with the presumption being that the legislature typically does not mean for the
same offense to be punished under two separate statutes. Id. at 379. In Tennessee,
double jeopardy analysis requires four steps: (1) an analysis of the two statutes in
question, (2) an analysis of the evidence needed to prove the two offenses, (3) a
consideration of the number of victims and discrete acts, and (4) a comparison of the
purposes behind the two statutes. Id. at 379-81. These steps are weighed as they
relate to each other with none being determinative. Id. at 381.
The analysis of the two statutory provisions is directed by the test
articulated in Blockburger v. United States:
[W]here the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is
whether each provision requires proof of an additional fact that
the other does not.
284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). As noted above, theft does not require
proof of an additional fact that aggravated robbery does not require. Thus, this step
reflects that the legislature did not intend for a defendant to be convicted of both
aggravated robbery and theft for the same set of facts.
Our supreme court in Duchac v. State examined the evidence required by
the two statutory provisions to determine whether multiple punishments could stand:
“One test of identity of offenses is whether the same evidence
is required to prove them. If the same evidence is not
required, then the fact that both charges relate to, and grow
out of, one transaction, does not make a single offense where
two are defined by statutes. . . . [T]here is no identity of
offenses if on the trial of one offense proof of some fact is
required that is not necessary to be proved in the trial of the
14
other, although some of the same acts may necessarily be
proved in the trial of each.”
505 S.W.2d 237, 239 (Tenn. 1973) (quoting Am. Jur. 2d Criminal Law, § 82) (noting
that this determination turns upon the facts of each case). In the present case, the
evidence supporting the aggravated robbery was that after the victim refused to loan
the defendant money, the defendant beat the victim until he was motionless and then
took twenty-five hundred dollars from a table in the victim’s home. Although the
defendant insisted that he was only participating in a fight initiated by the victim, the jury
could reasonably infer from the absence of offensive wounds on the victim and the
defendant’s need for money to buy cocaine, that the defendant intended to rob the
victim while he was inflicting the beating. The victim suffered serious bodily injury in
that he died as a result of the beating.
The state contends that different evidence supports the theft conviction.
“A person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s
effective consent.” T.C.A. § 39-14-103. The defendant admitted in his statement that
when he realized that the victim was no longer moving, he wiped the blood from his
hands and tried to revive the victim by shaking him and talking to him. After sitting
there for a period of time, the defendant said he turned a chair over onto the victim,
took the car keys and a bag of marijuana from the victim’s front pockets, took an
envelope of money from the table, went outside, and left in the victim’s car. The state
argues that although the defendant beat the victim in order to take money from him, the
defendant only decided to take the car after the beating had taken place. But even
under the state’s reasoning, the robbery of the victim was not complete until the
defendant took the envelope of money, which according to the defendant’s statement,
occurred at the same time he took the keys and the marijuana and just before he left in
the car.
15
In State v. Lowery, 667 S.W.2d 52, 53-54 (Tenn. 1984), our supreme
court held that the defendant could not be convicted of both robbery with a deadly
weapon and grand larceny that resulted from a single criminal act. In Lowery, the
defendant used a gun to take money and car keys from a service station clerk, then he
drove away in the clerk’s car. The state argued that the jury could have found that the
defendant formed the intent to steal the car subsequent to stealing the money and the
keys. Id. at 57. The supreme court reasoned that for multiple convictions based upon
such a subsequent intent to succeed, sufficient evidence must exist to support this
inference. Id. Here, as in Lowery, the defendant took the money at the same time he
took the keys, and he then took the victim’s car.
The third step of the double jeopardy analysis looks to the number of
victims and discrete acts. When there exists only one victim, as here, multiple
convictions generally are not justified. See Denton, 938 S.W.2d at 381. “Discrete acts
can justify multiple convictions.” Id.; State v. Phillips, 924 S.W.2d 662, 664-65 (Tenn.
1996) (holding evidence of three discrete penetrations supported three aggravated rape
convictions). As discussed, the evidence does not indicate that the aggravated robbery
of the victim and the theft of the victim’s car were two discrete acts because the
defendant completed the robbery by taking the keys, marijuana and money immediately
before he took the car.
The final step in the double jeopardy analysis is to consider the purposes
behind the two statutes involved. Denton, 938 S.W.2d at 381; see Lowery, 667 S.W.2d
at 54. In Lowery, our supreme court held that the statutory provisions defining robbery
and larceny protected overlapping interests. Id. The court held that both protected
property while robbery protected people as well. Id. The same reasoning also applies
to aggravated robbery and theft.
16
After considering these four steps as they relate to each other, we believe
that the defendant’s convictions for both aggravated robbery and theft violate the
principles of double jeopardy. The statutes are not distinct under Blockburger, the
same evidence is needed to support both convictions, the offenses have a single victim
and stem from a single act and the statutes have overlapping purposes. We hold that
the finding of guilt for the theft conviction merges into the aggravated robbery
conviction. The judgment of conviction for theft is vacated.
III. JURY REQUEST TO REHEAR TESTIMONY
The defendant contends that the trial court erred in refusing the jury’s
request to rehear the testimony of Dr. Sandra Elkins, the state’s expert in forensic
pathology, once deliberations had started. The defendant argues that this court has
upheld such a rehearing when reasonable, even over the defendant’s objection. See
State v. Jenkins, 845 S.W.2d 787 (Tenn. Crim. App. 1992). The defendant stresses
that in this case, the defendant did not object to the rehearing and even went so far as
to request that the trial court allow it. The state contends that the trial court did not
abuse its discretion in refusing the rehearing to avoid placing undue emphasis upon
one witness’s testimony. The state further argues that even if the trial court erred, the
defendant has not shown how he was prejudiced by the trial court’s refusal of the jury’s
request. We hold that the trial court erred in refusing the jury’s request to rehear
testimony but that the defendant was not prejudiced by this error.
The trial court denied the jury’s request to rehear the testimony of Dr.
Elkins because it did not want to give undue emphasis to this one witness’s testimony.
In Jenkins, this court recognized the benefit gained from having jurors base their
decisions on accurate recollections of the evidence. Id. at 792. It noted that a trial
court does not emphasize the requested evidence by permitting it to be reheard;
instead, it is the jury that has placed emphasis on this evidence. Id. This court held
17
that the rehearing of testimony after deliberations have begun is within the trial court’s
discretion as limited by ABA Standards Relating to the Administration of Criminal
Justice 15-4.2 regarding jury trials:
(a) If the jury, after retiring for deliberation, requests a review
of certain testimony or other evidence, they shall be conducted
to the courtroom. Whenever the jury’s request is reasonable,
the court, after notice to the prosecutor and counsel for the
defense, shall have the requested parts of the testimony read
to the jury and shall permit the jury to reexamine the requested
materials admitted into evidence.
(b) The court need not submit evidence to the jury for review
beyond that specifically requested by the jury, but in its
discretion the court may also have the jury review other
evidence relating to the same factual issue so as not to give
undue prominence to the evidence requested.
Id. at 793. This court further noted that the trial court had the “discretion to take such
action as necessary, including denying the jury’s request, to insure that the jury’s
determination of a factual issue would not be distorted by undue emphasis on particular
evidence.” Id. (emphasis in original).
In the present case, the trial court erred in refusing the jury’s request to
rehear Dr. Elkins’ testimony. The ABA standard directs that the trial court shall permit
the requested testimony to be reheard if the request is reasonable. Here, the jury was
not asking for evidence that had yet to be created or given, nor were they asking to
rehear everyone’s testimony. Dr. Elkins was the only witness to give expert testimony
as to the cause of death and the extent of the victim’s injuries. The defendant, in his
statement, gave an account of how the victim received these injuries. The defendant’s
account conflicts with Dr. Elkins’ testimony that the victim had only defensive and no
offensive wounds and her testimony regarding how the victim’s vertebrae were broken.
As suggested in subsection (b) of the ABA standard, the trial court could have avoided
giving undue prominence to Dr. Elkins’ account by having the jury also rehear the
portion of the defendant’s statement describing the altercation.
18
Although the refusal of the jury’s request was error, the defendant has not
shown how he was harmed. Even though Dr. Elkins testified that the bones of older
individuals break more easily and that the victim’s injuries could have resulted from
falling into a table or the wall, her testimony that the victim had defensive wounds but
no offensive wounds supported the state’s theory that the victim did not participate in
the “fight,” but was attacked by the defendant. She stated that the victim’s spinal cord
was not severed, but she also testified that the victim’s broken vertebrae were the result
of a violent jerking or twisting of his head. The potential for her testimony to support
inferences that the victim’s injuries were sustained in mutual combat because the victim
was merely the older and weaker of the two combatants was negated by other portions
of her testimony. The jury convicted the defendant of the least degree of homicide
existing rather than felony murder. Thus, it is logical to infer that the jury’s inability to
rehear this testimony did not harm the defendant.
IV. SENTENCING
The defendant contends that the trial court imposed an excessive
sentence because it improperly considered certain enhancement factors, improperly
weighed other enhancement factors and failed to give any weight to the defendant’s
mitigating factors. The defendant also argues that consecutive sentences are not
supported by a preponderance of the evidence. The state responds that in light of the
number of applicable enhancement factors, the trial court properly imposed the
maximum sentence for each conviction. The state also contends that consecutive
sentences are appropriate because the defendant is a dangerous offender.
Appellate review of sentencing is de novo on the record with a
presumption that the trial court's determinations are correct. T.C.A. §§ 40-35-401(d)
and -402(d). As the Sentencing Commission Comments to these sections note, the
burden is now on the appealing party to show that the sentencing is improper. This
19
means that if the trial court followed the statutory sentencing procedure, made findings
of fact that are adequately supported in the record, and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing under the
1989 Sentencing Act, we may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, "the presumption of correctness which accompanies the trial
court's action 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). In this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving
at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting
each enhancement factor found, and articulate how the
mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. T.C.A. § 40-35-210(f)
(1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).
Also, in conducting a de novo review, we must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature
and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf and (7) the
potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
The sentence to be imposed by the trial court for a Class B, C, D or E
felony is presumptively the minimum in the range if neither enhancement nor mitigating
factors are present. T.C.A. § 40-35-210(c). Procedurally, the trial court is to increase
the sentence within the range based upon the existence of enhancement factors and,
20
then, reduce the sentence as appropriate for any mitigating factors. T.C.A. § 40-35-
210(d) and (e). The weight to be afforded an existing factor is left to the trial court's
discretion so long as it complies with the purposes and principles of the 1989
Sentencing Act and its findings are adequately supported by the record. T.C.A. § 40-
35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at 237; see Ashby,
823 S.W.2d at 169.
At the sentencing hearing, Donald Jones testified that he first met the
victim in 1989 or 1990 and that they were very good friends. Jones said that he knew
the victim from the Greenway Pool Hall, that he sometimes worked around the pool hall
as a volunteer and that occasionally he would run the pool hall for the victim. He said
that the victim was a peaceful person. He stated that he had never seen the victim lose
his temper, even when someone shot a hole in the victim’s Coke machine. Jones said
that the victim would always politely ask obnoxious customers to leave or to refrain from
cursing in the presence of women or children.
Jones testified that he knew the defendant for a little over a year at the
time the victim was killed. He said that the victim and the defendant were business
acquaintances, that the defendant had worked on the victim’s car and that the victim
had loaned the defendant money and marijuana. Jones stated that he had never seen
the defendant in a fight but that he knew the defendant had been in fights. He said he
once overheard the defendant say that if anyone wanted to fight with the defendant, he
would try to kill them. Jones testified that the defendant had once started to hit him with
a pool stick. Jones also said that the defendant once explained his bloody hand by
saying that he had hit a bed.
On cross-examination, Jones testified that the defendant was five feet,
seven or eight inches tall, stocky and weighed between one hundred forty-five and one
21
hundred fifty pounds. He admitted that the defendant and the victim could have seen
each other when he was not around them, but he said that he never knew of the
defendant running errands for the victim. He stated that he knew the defendant would
buff and wash the victim’s car but that he thought this was a business arrangement. He
said that he knew that the defendant was supposed to work on the victim’s truck but
that the defendant never did.
Dr. Peter Young, a psychologist who specializes in clinical psychology and
neuropsychology, testified that he first treated the defendant on April 5, 1996 and had
met with him at the jail once a week since then. He stated that the defendant is
depressed and anxious and that this condition predates his incarceration. He said that
the defendant has had multiple substance abuse issues and has borderline personality
disorder. He also found the defendant to have learning problems and weak language
skills. He stated that the defendant has had problems since he was a little boy that
could have stemmed, in part, from head injuries.
Dr. Young testified that the defendant needs to come to a more integrated
sense of self. He said that when the defendant becomes stressed, depressed or
anxious, he will inflict physical injuries upon himself and during these times, he is
psychotic. He stated that the defendant has borderline personality disorder because in
between these psychotic episodes, the defendant calms down to a more normal,
rational state. Dr. Young said that at the time the crimes were committed, the
defendant was already in an altered state from alcohol, marijuana and cocaine use. Dr.
Young stated that the defendant related that he believes he was hit from behind, he
turned and began striking the victim and continued to strike the victim. Dr. Young
testified that he believes the defendant was not in a normal state of mind at the time of
the offenses.
22
Dr. Young testified that the defendant’s mental condition has improved
over the last year and that the defendant now takes antidepressants. He said that the
defendant has repeatedly brought up his feelings of guilt and remorse and his inability
to imagine how he can make up for what has happened. Dr. Young said that the
defendant told him that he does not envision ever forgiving himself for the offenses.
On cross-examination, Dr. Young testified that borderline personality
disorder involves intermittent breaks with reality and that these breaks can be violent.
He stated that the defendant still poses a threat to his own safety but that due to the
defendant’s remorse, the chance of him injuring others in the future is unlikely. He
stated that if the defendant drinks alcohol or uses cocaine again, he could pose a
danger to others as well as to himself but that he believed the defendant was sincere in
his decision not to use these substances again.
A presentence report was introduced into evidence. It reflects that the
then twenty-four year old defendant studied auto mechanics in high school but that he
dropped out after ninth grade. It reflects that the defendant reported beginning to use
alcohol at age fourteen, marijuana at sixteen and cocaine at twenty-one. The
defendant stated that by the time he was twenty-two, he used one hundred dollars
worth of cocaine a week and that he was under the influence of cocaine when he
committed the offenses. The report shows that the defendant worked four months as a
fork-lift operator before being arrested in this case. The report reveals that before
taking the fork-lift operator position, the defendant had resigned from a job as a
mechanic, which he had held for three years. The defendant had six misdemeanor
convictions from September 1992 through May 15, 1996, four of which occurred after
the offenses in this case. The defendant’s probation for misdemeanor theft was
revoked on September 1, 1992. The report reflects an extensive juvenile record
beginning in November of 1986 and including assault with a knife, shoplifting, several
23
probation violations, attempting to start a fire in a group home, illegal consumption of
alcohol and twice being beyond parental control.
Ms. Arlena Ruther, the victim’s daughter, gave a statement in which she
described the effect that the victim’s death has had on her family. She stated that
although her father had been portrayed as a drug addict and a bookie who had a lot of
money and guns lying around his house, he was a kind, generous person who had
overcome alcoholism and did not use drugs. She testified that several family members
now take antidepressants, one has anxiety attacks, and another is on the verge of a
nervous breakdown as a result of the offenses. She asked that the defendant receive
the maximum sentence possible for these offenses.
The defendant addressed the court before he was sentenced and stated
that he realized what he had done and that he was sorry. The trial court sentenced the
defendant as a Range I, standard offender to twelve years for the aggravated robbery,
two years for the criminally negligent homicide and four years for the theft conviction, to
be served consecutively.
A. ENHANCEMENT AND MITIGATING FACTORS
The trial court applied the following eight enhancement factors as listed in
T.C.A. § 40-35-114:
(1) The defendant has a previous history of criminal
convictions or criminal behavior in addition to those
necessary to establish the appropriate range;
(4) A victim of the offense was particularly vulnerable because
of age or physical or mental disability . . .;
(5) The defendant treated or allowed a victim to be treated with
exceptional cruelty during the commission of the offense;
(6) The personal injuries inflicted upon or the amount of
damage to property sustained by or taken from the victim was
particularly great;
24
(7) The offense involved a victim and was committed to gratify
the defendant’s desire for pleasure or excitement;
(8) The defendant has a previous history of unwillingness to
comply with the conditions of a sentence involving release in
the community;
(10) The defendant had no hesitation about committing a crime
when the risk to human life was high; [and]
(20) The defendant was adjudicated to have committed a
delinquent act or acts as a juvenile that would constitute a
felony if committed by an adult.
The defendant argues not only that the trial court misapplied these factors but also that
the trial court was not clear as to how it applied these factors to the convictions for
criminally negligent homicide and theft. The defendant contends that our review should
be de novo without the presumption of correctness with regard to the convictions for
criminally negligent homicide and theft. As noted above, the judgment of conviction
for theft is vacated, therefore, we will address the defendant’s contentions with regard
to the convictions for aggravated robbery and criminally negligent homicide.
A trial court is required to state specifically how the facts indicate
enhancement or mitigation with respect to each conviction. See T.C.A. § 40-35-210(f).
A trial court’s failure to do so will normally result in a remand of the case. See State v.
Clifton, 880 S.W.2d 737, 745 (Tenn. Crim. App. 1994). However, from the trial court’s
direct references to the aggravated robbery conviction, indirect reference to the
criminally negligent homicide conviction when discussing its belief that the defendant
did not go to the victim’s house to enjoy killing someone under factor (7) as reflected in
the jury’s verdict, and its obvious application of the enhancement factors to enhance
both convictions up to the maximum sentence within the range, we assume that the trial
court’s discussion of the enhancement and mitigating factors applied to both
convictions.
25
With regard to enhancement factor (1), the trial court found that the
defendant had a pattern of criminal behavior starting at age thirteen when the
defendant was found delinquent for assault with a knife. The trial court found that the
defendant was declared a serious habitual offender as a juvenile, had a misdemeanor
conviction for theft when he was eighteen and has had a misdemeanor conviction every
year from 1994 until his present convictions in 1997. Thus, the court found that the
defendant had many more offenses than that necessary to establish him as a Range I,
standard offender.
The defendant argues that the bulk of his prior criminal history relates to
driving on a suspended license. The defendant contends that because he had never
been charged with a felony, this factor should not be given any weight. Enhancement
factor (1) is not limited to felonies but instead extends to any criminal convictions or
behavior above that needed to establish the defendant’s range. A defendant qualifies
as a Range I offender when he does not fall within any of the other higher ranges. See
T.C.A. § 40-35-105. Thus, all of the defendant’s prior convictions qualify under this
factor because none were needed to establish the range itself. The defendant had
misdemeanor convictions for theft on October 29, 1991, and on March 16, 1994, for
driving while his license was suspended on October 30, 1995 and on May 15, 1996, for
driving with a revoked license on May 15, 1996, and for a violation of the bad check law
on May 15, 1996.
However, we believe that the trial court improperly relied on the
defendant’s juvenile record to support factor (1). This court has held that when the
legislature enacted enhancement factor (20) in 1995, factor (20) became the exclusive
means for using juvenile offenses to enhance a defendant’s sentence for offenses
occurring after July 1, 1995. State v. Brent Brown, No. 02C01-9710-CC-00419,
Hardeman County, slip op. at 5-6 (Tenn. Crim. App. Oct. 26, 1998). On the other hand,
26
the record supports consideration of the defendant’s admitted use of controlled
substances as criminal behavior under factor (1). Although the trial court improperly
considered the defendant’s juvenile record with regard to this factor, factor (1) was
properly applied to both convictions in light of the defendant’s misdemeanor convictions
and admitted substance abuse.
The trial court applied enhancement factor (4), finding that the victim was
particularly vulnerable because he was sixty-three years old and suffered from
emphysema. The trial court gave this factor less weight than the others. The
defendant contends that the trial court erred in considering this factor because this
factor relates to the victim’s physical and mental limitations, rather than merely his age.
The defendant argues that the victim had no mental or physical defects, that he ran a
pool hall and that he was apparently able to function as fully as any other sixty-three
year old man. In assessing vulnerability under this factor, the trial court should
“consider whether evidence in the record with regard to the victim’s age or physical or
mental attributes demonstrated an inability to resist the crime, summon help, or testify
at a later date.” State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997); State v. Adams, 864
S.W.2d 31, 35 (Tenn. 1993). The record must contain evidence other than the victim’s
age and must relate to the victim’s condition at the time the offense was committed.
Poole, 945 S.W.2d at 97.
The defendant apparently ignores the evidence given by Dr. Elkins that
the victim suffered from emphysema which made it more difficult for him to try to
survive the injuries inflicted by the defendant. This condition would have also affected
his ability to resist the beating and to call for help during the offense. The trial court
properly applied factor (4) to enhance the convictions for aggravated robbery and
criminally negligent homicide.
27
With regard to enhancement factor (5), the trial court found that the
victim’s injuries were significant, that blood was found all around the scene, that the
injuries inflicted by the defendant caused the victim a great deal of pain and suffering
before he died, and that the victim’s death resulted in part from his inability to breathe.
The defendant contends that the trial court should not have considered this factor
because it was not supported by the evidence. The defendant argues that Dr. Elkins
testified that the victim received ten moderate to severe blows, that these blows were
mostly to the body rather than the head, and that the victim’s skull was not fractured.
Additionally, the defendant argues that he did not mutilate or degrade the victim’s body.
The trial court properly applied factor (5) to enhance the aggravated
robbery conviction. Exceptional cruelty is not an element of aggravated robbery nor is it
automatically established by proof of serious bodily injury. See Poole, 945 S.W.2d at
98 (holding that factor (5) may be used to enhance an especially aggravated robbery
conviction). “[T]he facts in a case may support a finding of ‘exceptional cruelty’ that
‘demonstrates a culpability distinct from and appreciably greater than that incident to’
the crime.” Id. (quoting State v. Jones, 883 S.W.2d 597, 603 (Tenn. 1994)). In Poole,
our supreme court relied upon a finding that after striking the seventy-year-old victim in
the head with a baseball bat, the defendants, who knew the victim lived alone, left the
victim unconscious and bleeding, and she was not discovered until the next day. The
supreme court held that this evidence supported an enhancement of the especially
aggravated robbery sentence for exceptional cruelty under factor (5). Id. at 99.
In the present case, the defendant beat the victim until he was motionless,
covered his face with a recliner and left the house locking the door behind him. The
victim, who could have lived for one and one-half hours after the beating, was
discovered the next day. We believe the record supports a finding of exceptional
cruelty. Exceptional cruelty is not an element of criminally negligent homicide, and
28
therefore, we hold that factor (5) was properly applied to this conviction under the same
reasoning. See T.C.A. § 39-13-212.
The trial court found that enhancement factor (6) should be given little
weight because it found that aggravated robbery usually involved considerable property
damage and because it had already applied factor (5) with regard to the extent of the
victim’s injuries. The defendant contends that particularly great personal injuries under
factor (6) equate with serious bodily injury which is an element of aggravated robbery.
See Jones, 883 S.W.2d at 602. Particularly great injury is also an essential element of
criminally negligent homicide because no greater injury than death can be inflicted upon
a person. See State v. Lambert, 741 S.W.2d 127, 134 (Tenn. Crim. App. 1987). This
factor was improperly applied to both convictions.
With regard to enhancement factor (7), the trial court found that although
the defendant did not derive pleasure or excitement from the act of killing the victim,
this factor could be applied because the defendant injured the victim in order to get
money to purchase drugs. Thus, the trial court found that offenses were committed so
that the defendant could satisfy his desire for the drugs which brought him pleasure or
excitement. The defendant argues that the trial court should not have considered this
factor because the record contains no proof that the defendant committed these
offenses by engaging in what the jury determined to be negligent conduct in order to
gratify his desire for pleasure or excitement. This court has held that the state failed to
meet its burden of proof with regard to this factor when the proof demonstrated that the
defendant stole from the victim in order to buy drugs. State v. Antonio D. Mason, No.
01C01-9607-CC-00315, Bedford County, slip op. at 7-8 (Tenn. Crim. App. Oct. 24,
1997) (citing State v. Chad Douglas Poole, No. 02C01-9506-CC-00178, Hardeman
County, slip op. at 6 (Tenn. Crim. App. Jan. 31, 1996), aff’d 954 S.W.2d 93 (Tenn.
29
1997) (not discussing this enhancement factor)). Thus, the trial court erred in applying
factor (7) to both convictions.
In applying enhancement factor (8), the trial court found that the
defendant exhibited a previous unwillingness to comply with conditions of his release
into the community because the defendant’s probation was revoked with regard to one
of his misdemeanor convictions. The defendant argues that this factor should be given
little weight because the defendant’s probation was revoked when he was a juvenile
struggling with divorced parents. The trial court did not rely on the defendant’s juvenile
probation revocations to support this factor but referred instead to the revocation of his
1991 suspended sentence for misdemeanor theft when the defendant was nineteen
years old. The trial court properly applied this factor to both convictions.
The trial court applied enhancement factor (10), finding that the defendant
had no hesitation in committing this crime because he gave no thought to the crime
itself but was instead thinking only of the cocaine he wanted. The defendant argues
that factor (10) cannot be used to enhance an aggravated robbery conviction because it
is an element of the offense. See State v. Claybrooks, 910 S.W.2d 868, 872-73 (Tenn.
Crim. App. 1994). When determining the applicability of factor (10), we focus on
whether the defendant created a high risk to human life. Jones, 883 S.W.2d at 602.
This factor represents a legislative determination that “acts which cause high risk to
human life may establish culpability beyond that necessary for conviction of a charged
offense.” Jones, 883 S.W.2d at 603. Thus, for factor (10) to apply, the facts
establishing the high risk to human life must demonstrate a culpability greater than that
necessary to establish the offense. Id.
In this case, the defendant committed the offenses upon the victim while
he was alone in his home, thus his culpability did not go beyond that involved in the
30
aggravated robbery. See Claybrooks, 910 S.W.2d at 873 (holding that the “offense of
aggravated robbery necessarily entails a high risk to human life”). Factor (10) is not
applicable to the criminally negligent homicide committed when only the victim and the
defendant were present because a high risk to human life always accompanies the
commission of a homicide. See State v. Bingham, 910 S.W.2d 448, 452-53 (Tenn.
Crim. App. 1995) (noting that factor (10) does not apply to vehicular homicide when the
defendant presents no risk to the life of anyone other than the victim). The trial court
erred in applying this factor to both convictions.
The trial court also enhanced the defendant’s convictions with
enhancement factor (20), finding that both the 1986 assault with a knife and the 1988
attempt to start a fire in a residence, which were committed while the defendant was a
juvenile, would have constituted felonies had the defendant been an adult. The
defendant concedes that this factor applies but argues that it should be given little
weight because the defendant was thirteen years old at the time of the assault. We
note that the presentence report reflects that the defendant was sixteen at the time he
attempted to start the fire. The weight to be given an enhancement factor is within the
sound discretion of the trial court. Nothing in the record indicates that the trial court
abused that discretion. The trial court properly applied this factor to both convictions.
The defendant requested that the trial court consider the following factors
in mitigation:
(2) The defendant acted under strong provocation;
(8) The defendant was suffering from a mental or physical
condition that significantly reduced the defendant’s culpability
for the offense; however the voluntary use of intoxicants does
not fall within the purview of this factor; [and]
(11) The defendant, although guilty of the crime, committed the
offense under such unusual circumstances that it is unlikely
that a sustained intent to violate the law motivated the criminal
conduct.
31
T.C.A. § 40-35-113. The defendant also lists factor (13), the catch-all provision, in his
brief, but he does not specify how this factor is applicable. We conclude that it is not.
The trial court rejected the application of mitigating factor (2), finding that
even if the defendant thought that the victim hit him or even if the victim did hit him, the
injuries that the defendant inflicted upon the victim went far beyond self-defense. The
trial court refused to give much weight to factor (8), finding that although Dr. Young
stated that the defendant could not always control himself, the cocaine that the
defendant had ingested was a significant factor in the defendant’s inability to control
himself at the time of the offense. Because the use of voluntary intoxicants cannot be
considered under factor (8), the court gave that factor little weight. The trial court found
that factor (11) did not apply because the defendant’s sustained intent to violate the law
was his desire to obtain drugs. Without pointing to any specific errors on the part of the
trial court, the defendant contends that the trial court ignored the mitigating factors. The
trial court specifically addressed the three factors presented by the defendant and
made its findings based upon evidence in the record. The defendant’s argument with
regard to the mitigating factors is without merit.
The trial court properly applied enhancement factors (1), (4), (5), (8) and
(20) to the convictions for aggravated robbery and criminally negligent homicide. The
trial court found that only factor (8) applied in mitigation, and it gave this factor little
weight. In light of the number and significance of the applicable enhancement factors
and the little weight given the sole mitigating factor, we affirm the trial court’s imposition
of the maximum sentence for both of the convictions.
B. CONSECUTIVE SENTENCING
32
The defendant contends that the trial court erred in ordering his sentences
to be served consecutively because the state did not prove by a preponderance of the
evidence that the defendant is a dangerous offender. We disagree.
Consecutive sentencing is guided by T.C.A. § 40-35-115(b), which states
in pertinent part:
The court may order sentences to run consecutively if the court
finds by a preponderance of the evidence that:
....
(2) The defendant is an offender whose record of criminal
activity is extensive;
....
(4) The 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.
Furthermore, “consecutive sentences cannot be imposed unless the terms reasonably
relate to the severity of the offenses committed and are necessary in order to protect
the public from further serious criminal conduct by the defendant.” State v. Wilkerson,
905 S.W.2d 933, 938 (Tenn. 1995). Rule 32(c)(1), Tenn. R. Crim. P., requires that the
trial court “specifically recite the reasons” behind its imposition of a consecutive
sentence.
In the instant case, the trial court determined the defendant to be a
dangerous offender. The trial court found that the defendant was a danger to himself
and to others, especially if he used drugs again. Also, the trial court found that the
defendant had an extensive record with some violence in his past. The court expressed
concern that the defendant would eventually be released into the community. The trial
court noted that although it thought the defendant’s remorse was genuine, the
defendant had not been able to control his cocaine use and that unless he were able to
control it, these crimes would happen to someone else.
33
The record supports the trial court’s findings. Although he was only
twenty-two at the time he committed the present offenses, the defendant’s criminal
record shows continuous criminal behavior from the age of thirteen, including assault
with a knife, forgery and theft of property up to five hundred dollars in value. He has
demonstrated no signs of rehabilitation over this extensive criminal history. At sixteen,
he was declared a serious habitual juvenile offender. His probation was revoked as a
result of an adult misdemeanor conviction. The instant offenses were particularly
violent. The determination that the defendant is a dangerous offender is supported by
a preponderance of the evidence.
The defendant has admitted drug abuse since age sixteen, with alcohol
use predating the drug use. Dr. Young’s testimony that the defendant would continue
to be a danger to himself and to others if he used drugs, in combination with the
defendant’s lack of self control, supports a finding that consecutive sentences are
necessary to protect the public from further crimes by the defendant. Finally, the record
also supports a determination that consecutive sentences would be reasonably related
to the severity of the offenses. The defendant brutally beat the victim, ultimately
causing his death. The effective fourteen-year sentence imposed by the trial court is
supported by the record.
We affirm the judgments of conviction for criminally negligent homicide
and aggravated robbery. However, we vacate the judgment of conviction for theft and
merge this conviction into the judgment of conviction for aggravated robbery.
_______________________
Joseph M. Tipton, Judge
CONCUR:
34
___________________________
Joe G. Riley, Judge
___________________________
James Curwood W itt, Jr., Judge
35