State of Tennessee v. John Edward Lynch

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 7, 2011

STATE OF TENNESSEE v. JOHN EDWARD LYNCH

Direct Appeal from the Circuit Court for Marshall County

Nos. 2008-CR-16, 2008-CR-98 Robert Crigler, Judge

No. M2010-02481-CCA-R3-CD - Filed August 24, 2012

A Marshall County Grand Jury returned two indictments against Defendant, John Edward

Lynch, charging him with violation of the Habitual Motor Offenders Act (count one),

eleventh offense driving under the influence of an intoxicant (DUI) (count two), and

violation of the implied consent law (count three) in Case No. 08-CR-16 and felony failure

to appear in Case No. 08-CR-98. Following two jury trials, Defendant was convicted of the

offenses. He was sentenced to four years for violation of the Habitual Motor Offenders Act,

three years for eleventh offense DUI, eleven months, twenty-nine days for violation of the

implied consent law, and four years for felony failure to appear. The trial court ordered count

three of case no. 08-CR-16 to run concurrently to count one, and the remaining counts in case

nos. 08-CR-16 and 08-CR-98 were ordered to run consecutively with each other for an

effective eleven-year sentence in the Department of Correction. On appeal, Defendant

argues: (1) that the evidence was insufficient to support his conviction for DUI; (2) that the

trial court erred in denying his request for a jury instruction on necessity; (3) that the trial

court erred in denying his request for a continuance in case no. 08-CR-98; and (4) that the

trial court erred in imposing consecutive sentences. After a thorough review, we affirm the

judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which R OBERT W.

W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

James O. Martin, Nashville, Tennessee; and Andrew Jackson Dearing, District Public

Defender, Shelbyville, Tennessee, (on appeal); and William J. Harold, Lewisburg,

Tennessee, (at trial), for the appellant, John Edward Lynch.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant

Attorney General; Charles Frank Crawford, Jr., District Attorney General; Weakley E.

Barnard, Chris Collins, and Carey Kefauver, Assistant District Attorneys General; for the

appellee, the State of Tennessee

OPINION

I. Background

Trial - Case No. 08-CR-16

On December 22, 2007, at approximately 1:00 a.m., Sergeant Anthony McLean of

the Lewisburg Police Department was stopped at the intersection of Spring Place Road and

Belfast Street when he witnessed Defendant’s vehicle run a stop sign. He estimated that the

car was traveling five to ten miles per hour. Sergeant McLean then activated his blue lights,

got in behind Defendant, and initiated a traffic stop.

After Sergeant McLean approached the car, Defendant said that the vehicle was

registered to Mike Martin. Sergeant McLean asked for Defendant’s driver’s license and the

vehicle registration, but Defendant said that he did not have a license. Defendant told

Sergeant McLean that he had just left Leonard’s Bar and Grill, and Defendant said that he

was “going back to jail” because he was a habitual motor vehicle offender. Defendant also

said that he “shouldn’t have been driving.” He told Sergeant McLean that he was driving

because he and his wife had gotten into an argument at Leonard’s Bar, and “she took out

walking, so he didn’t have no choice but to drive.” Sergeant McLean testified that the

description Defendant gave of his wife matched a woman that Sergeant McLean had seen

walking in front of the Lewisburg Police Department and the county jail. Sergeant McLean

described the weather as being warm that night because he was not wearing a jacket when

he stopped Defendant.

Sergeant McLean asked Defendant to step out if the vehicle and stand at the back of

the car while he radioed in Defendant’s name and date of birth. According to Sergeant

McLean’s report, Defendant “had a strong odor of alcohol on his person, eyes bloodshot, and

he stagger[ed] when he exit[ed] the vehicle.” He asked Defendant to perform a field sobriety

test, and Defendant said, “I don’t need to take it. I’m going to jail.” A driver’s license check

confirmed that Defendant was a habitual motor vehicle offender. Sergeant McLean placed

Defendant under arrest and transported him to the Marshall County Jail.

At the jail, Sergeant McLean read the implied consent form to Defendant, which

advised Defendant of the opportunity to take a blood alcohol or breath test and that refusal

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of the test would result in his driver’s license being revoked, cancelled, or suspended.

Defendant refused to submit to the test. Sergeant McLean then turned Defendant over to a

Corrections Officer Justin Christmas to be booked into the jail. Officer Christmas testified

that Defendant was taken to the holding cell where Defendant immediately passed out or

went to sleep. Officer Christmas considered this to be an indication of someone under the

influence of an intoxicant.

Elinor Foster, Marshall County Circuit Court Clerk, testified that the file in Case No.

12,760 contained an agreed order declaring Defendant to be a habitual motor vehicle

offender. The order was still in effect on December 22, 2007.

Defendant testified that on December 22, 2007, he had worked from 8 a.m. until 8

p.m. He then went to the Finish Line bar with his wife and drank one beer at 10:00 p.m. and

drank a second one at 11:00 p.m. Defendant denied being at Leonard’s Bar and Grill because

he did not have “credit” there. He said that he and his wife left the Finish Line bar when it

closed at midnight. Defendant testified that his wife was driving them to a friend’s house

when he and his wife got into an argument. He said that his wife stopped in front of the jail,

got out of the car, and began walking home.

Defendant testified that he sat in the car for a while and then became concerned for

his wife because it was “freezing cold out,” and she did not have a jacket. After

approximately fifteen minutes, he then started the car and drove around looking for her.

Concerning his reason for running the stop sign, Defendant testified:

I had these size 14 Army boots. They weren’t tied tight, and my wife had the

seat pulled up. You know, I was in a rush to go find her, and I didn’t come to

a complete stop at the stop sign, and Sergeant McLean, he said he was waiting

at the stop sign, but he was hiding down the road waiting for someone to run

the stop sign. As soon as I didn’t come to a complete stop, I looked over, and

he lit up his blue lights, and I pulled right over across the street from the stop

sign.

Defendant testified that he never told Sergeant McLean that he left Leonard’s Bar and Grill.

He said that he did not perform the field sobriety test because it was “freezing cold out.”

When asked why he refused the breath test, Defendant testified:

Well, I used to work with a police officer. He said they jerk around the station

and blow in the breathalyzer, just messing around, and one guy will have one

shot, and he will be 500 pounds and fail it, and another guy will be 150 pounds

and have 5 shots and pass it.

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The co-worker advised him that he would be better off not taking the test. Defendant said

that he fell asleep after he had been placed in the holding cell because it was 1:30 a.m., and

he was tired.

Trial - Case No. 08-CR-98

Deanna Reed, an employee of the Marshall County Circuit Court, testified that

according to Defendant’s file, he made bond in Case No. 08-CR-16 on December 22, 2007.

She said that the case was set for trial on August 4, 2008, with a pretrial conference on July

9, 2008. Ms. Reed testified that Defendant failed to appear in court on July 9, 2008, and a

order granting a conditional forfeiture was entered on that date. A capias was issued for

Defendant’s arrest, and he was to be held without bond. Ms. Reed noted that it was the

bonding company’s responsibility to find Defendant. She testified that Defendant’s file

contained a paper stating that Defendant was arrested in Monroe County, Florida on

September 6, 2008. The paper also contained a description of Defendant.

Katie Burk, an employee of the Marshall County Sheriff’s Department, testified that

she entered Defendant into the National Crime Information Center (NCIC) on July 28, 2008,

as a wanted person for failure to appear. On September 7, 2008, Ms. Burk received a

message that Defendant had been arrested on September 6, 2008, in Key West, Florida.

Defendant was asked to sign a waiver of extradition back to Tennessee, but he refused, and

a Governor’s Warrant was obtained on July 9, 2009, asking that Defendant be returned to

Tennessee. Ms. Burk testified that Defendant was eventually brought back to Marshall

County.

Levy Cochran testified that he and his wife own Cochran Bonding. He “wrote a

bond” for Defendant on December 22, 2007. Mr. Cochran testified that when Defendant

failed to appear in court, a “scire facias” was issued to the company granting them six months

“to bring [Defendant] in or get [him] into this court, the court - appointed - - whatever the

bond is made in - - until we have to pay the bond.” Mr. Cochran testified that it took

approximately five and a half months to find Defendant. He initially went to Defendant’s

house but found that it had burned down. Mr. Cochran explained that he tracked Defendant

to Massachusetts through Defendant’s wife and then followed him “through middle Florida.”

He then learned that Defendant was arrested in Key West, Florida. Mr. Cochran testified that

he would have taken care of requesting a continuance if Defendant’s attorney could not. He

said that Defendant never contacted him and advised him that Defendant’s house burned.

Mr. Cochran testified that he was in contact with Defendant’s family members, but he never

heard from Defendant.

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Defendant testified that it was “very shocking” when his house burned in March of

2008, and it was hard to concentrate on other things. He also testified that a neighbor had

attempted to molest his daughter in January of 2008. He said that his court case “slipped”

his mind. Defendant testified that although he did not receive written notices regarding his

court dates, he admitted that the bonding company or his attorney advised him of the dates.

He said that his family wanted to move to Florida so he “packed up the truck,” and they

“headed South” in May or June of 2008. Defendant said that he was stressed at the time, and

his court case was the “furthest thing” from his mind. He admitted that he did not let anyone

know that he was moving to Florida. Defendant testified that he fought extradition back to

Tennessee because he thought it was illegal because the “paperwork wasn’t certified.” He

claimed that he never went to Massachusetts.

Sentencing Hearing

Jim Grimes, an employee of the Tennessee Board of Probation and Parole, testified

that in preparing the presentence report, he attempted to talk with Defendant about his case.

He said that Defendant “refused to make any comments and declined to fill out any

paperwork.” Mr. Grimes testified that Defendant said, “I am uncooperative; I am sure the

Judge and the DA will give me the max[.]” Defendant also said that he was illegally

sentenced in 2005 and that “they are all crooks, and if you are working for the State, you are

a crook[.]” Mr. Grimes later asked a jail employee to talk with Defendant about the case, and

Defendant again refused to comment. He said that Defendant indicated that he was going

to sue the probation department.

Mr. Grimes testified that he found a presentence report that was written by Beth Flatt

in regard to Defendant’s sentencing hearing for another case in 2005. He incorporated that

report into the present report. Mr. Grimes testified that he did not find any mitigating factors

in Defendant’s case, and he found at least three enhancement factors. He noted that

Defendant had a previous history of criminal convictions or criminal behavior, in addition

to those necessary to establish the appropriate range, and Defendant was on state parole for

a conviction for driving after having been declared a habitual motor vehicle offender at the

time of the present offenses.

Defendant testified that his aggravated assault conviction from 1987 in Volusia

County, Florida had been improperly relied on by the State as a felony conviction when it

was actually a misdemeanor. He claimed that he was filing “a belated appeal” in twenty-four

of his previous cases because the conviction was used against him as a felony conviction in

those cases. Defendant testified that he had three children, and his wife had two, and he

helped take care of them. He had previously worked as a mechanic. Defendant said that his

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wife still lived in Key West, Florida, and that he needed shoulder surgery from a scooter

wreck and wanted to go back to his surgeon in Key West for the repair.

On cross-examination, the State submitted a certified copy of the Volusia County

aggravated assault conviction, “a third degree felony, 873890, . . ., with the order of

revocation of probation and the judgment form in relation to that case.” Defendant denied

that he used a .22-caliber rifle in the offense. He agreed that his first use of alcohol was at

approximately the age of ten, and said that he “might smoke a joint every five years at a

party.” Defendant testified that he had also tried cocaine and methamphetamine. He had

also been in two mental institutions.

II. Analysis

Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence for his DUI conviction and

argues that there was insufficient evidence to show that he was intoxicated. When an

accused challenges the sufficiency of the convicting evidence, our standard of review is

whether, after reviewing the evidence in a 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, 61 L.Ed.2d 560 (1979).

The trier of fact, not this Court, resolves questions concerning the credibility of the

witnesses, and the weight and value to be given the evidence as well as all factual issues

raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor

may this Court reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). On appeal, the State is entitled to the strongest legitimate view of the evidence

and all inferences therefrom. Id. Because a verdict of guilt removes the presumption of

innocence and replaces it with a presumption of guilt, the accused has the burden in this

Court of illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “[D]irect and

circumstantial evidence should be treated the same when weighing the sufficiency of [the]

evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

Pursuant to the DUI statute in effect at the time of the offense,

[i]t is unlawful for any person to drive or to be in physical control of any

automobile or other motor driven vehicle on any of the public roads and

highways of the state, or on any streets or alleys, or while on the premises of

any shopping center, trailer park or any apartment house complex, or any other

premises that is generally frequented by the public at large, while under the

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influence of any intoxicant, marijuana, narcotic drug, or drug producing

stimulating effects on the central nervous system.

Tenn. Code Ann. § 55-10-401(a)(1).

Viewed in the light most favorable to the State, in this case, Sergeant McLean testified

that he observed Defendant run a stop sign at the intersection of Spring Place Road and

Belfast Road at approximately 1:00 a.m. He estimated that the vehicle was traveling five to

ten miles per hour. When Sergeant McLean approached the car, Defendant said that he did

not have a license and that he had just left Leonard’s Bar and Grill. He also told Sergeant

McLean that he should not have been driving and that he was going back to jail because he

was a habitual motor vehicle offender. In his report, Sergeant McLean noted that Defendant

“had a strong odor of alcohol on his person, eyes blood shot, and he stagger[ed] when he

exit[ed] the vehicle.” Defendant refused to perform a field sobriety test or take a breath or

blood alcohol test. Corrections Officer Christmas testified that once Defendant was booked

into the jail and placed in a holding cell, Defendant immediately went to sleep or passed out.

Officer Christmas considered this to be an indication of someone who was under the

influence of an intoxicant. Defendant himself testified that he and his wife had been at the

Finish Line bar and said that he consumed two beers before leaving at midnight.

Based on our review of the evidence, we conclude that the evidence was sufficient to

support beyond a reasonable doubt Defendant’s conviction for DUI. Defendant is not

entitled to relief in this appeal.

Defense of Necessity

Next, Defendant argues that the trial court erred in denying his request for jury

instruction on the defense of necessity. The trial court has the duty of giving a correct and

complete charge of the law applicable to the facts of the case, and the defendant has the right

to have every issue of fact raised by the evidence and material to the defense submitted to the

jury upon proper instructions by the trial court. State v. Teel, 793 S.W.2d 236, 249 (Tenn.

1990), superseded by statute on other grounds as stated in State v. Reid, 91 S.W.3d 247

(Tenn. 2002); State v. Bryant, 654 S.W.2d 389, 390 (Tenn. 1983); State v. Thompson, 519

S.W.2d 789, 792 (Tenn. 1975) (citing Poe v. State, 212 Tenn. 413, 370 S.W.2d 488 (1963)).

Neither duress or necessity is an affirmative defense. Rather, both are general defenses and,

as a result, if evidence fairly raises either defense, the trial court must submit the defense to

the jury and must instruct the jury that any reasonable doubt on the existence of the defense

requires acquittal. The State is required to negate the defense beyond a reasonable doubt.

State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994); Tenn. Code Ann. § § 39-11-

203, -504, -601, -609.

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With regard to necessity, Tennessee Code Annotated section 39-11-609 provides:

Except as provided in §§ 39-11-611 [through] 39-11-616, 39-11-620 and 39-

11-621, conduct is justified if:

(1) The person reasonably believes the conduct is immediately necessary to

avoid imminent harm; and

(2) The desirability and urgency of avoiding the harm clearly outweigh the harm

sought to be prevented by the law proscribing the conduct, according to ordinary

standards of reasonableness.

The sentencing Commission Comments to the section further states:

This section codifies the common law defense of necessity. It excuses the

criminal liability in those situations where criminal activity is an objectively

reasonable response to an extreme situation. For example, the necessity

defense would bar a trespass conviction for a hiker, stranded in a snowstorm,

who spends the night in a vacant cabin rather than risking death sleeping in the

open.

The defense is limited to situations: (1) where the defendant acts upon a

reasonable belief that the action is necessary to avoid harm; and (2) where the

harm sought to be avoided is clearly greater than the harm caused by the

criminal act.

Prior to the beginning of trial in this case, the State made a motion to preclude

Defendant from presenting the defense of necessity. The trial court determined that

Defendant could not be precluded from presenting the defense, but did not state whether it

would give the defense of necessity as part of the jury charge. At the close of proof,

Defendant asked the trial court to charge the jury on the defense of necessity. After hearing

arguments from both sides, the trial court determined that the defense was not properly raised

by the proof and refused to give the instruction.

At trial, Defendant testified that it was necessary for him to drive because his wife,

who had been driving the car, got out and began walking home after an argument between

the two. He claimed that he needed to find his wife because it was “freezing cold” outside,

and she got out of the car wearing a thin shirt with no jacket. However, Defendant has failed

to show that his actions were necessary to prevent harm to himself or to his wife. Sergeant

McLean testified that he remembered the night of the offense to be a warm December night.

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He said that he was not wearing a jacket at the time he stopped Defendant. The proof at trial

also showed that Defendant and his wife stopped in front of the county jail and near the

Lewisburg Police Department. In fact, Sergeant McLean testified that he saw a woman

walking in front of the county jail who matched the description that Defendant gave of his

wife. There was no indication that Defendant’s wife was in any imminent danger or that

Defendant could not have walked to the jail or to the police department and asked for help.

We conclude that the trial court properly denied Defendant’s request for a jury instruction

on the defense of necessity because it was not fairly raised by the proof. This issue is without

merit.

Denial of a Continuance

Third, Defendant contends that the trial court abused its discretion in denying his

motion for a continuance. It is well established that the decision to grant a continuance rests

within the sound discretion of the trial court and will not be overturned on appeal absent a

clear showing of prejudice to the defendant. State v. Russell, 10 S.W.3d 270, 275 (Tenn.

Crim. App. 1999)(citing State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982)); Baxter v.

State, 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973). In order to reverse the judgment of

the trial court, we must be convinced that Defendant “did not have a fair trial and that a

different result would or might reasonably have been reached had there been a different

disposition of the application for a continuance.” Baxter, 503 S.W.2d at 230.

We recognize that in most cases, a defendant seeking a continuance on the basis of

an absent witness must support the motion with an affidavit alleging the substance of the

witness’s testimony, the testimony’s relevance and materiality to the defense, that the

testimony was admissible and not cumulative, that the witness would be available at a later

date, and that counsel exercised diligence in trying to obtain the witness’ presence at trial.

See State v. Dykes, 803 S.W.2d 250, 257 (Tenn. Crim. App. 1990), overruled on other

grounds; State v. Bennett, 798 S.W.2d 783, 787-88 (Tenn. Crim. App. 1990); State v. Frahm,

737 S.W.2d 799, 802 (Tenn. Crim. App. 1987). This Court has also recognized, however,

that the lack of a written affidavit is not always controlling. State v. Edward Mitchell, No.

W1999-01314-CCA-R3-CD, 2001 WL 204180 (Tenn. Crim. App., Jackson, Mar. 1, 2001),

no perm. to appeal filed; State v. Alvin Glenn Hughes, No. 02C01-9208-CR-00183, 1993 WL

193712 (Tenn. Crim. App., Jackson, June 9, 1993), no perm. to appeal filed. Cases relying

on the mandatory filing of an affidavit in support of a motion for a continuance rely primarily

on case law decided before the adoption of the Tennessee Rules of Criminal Procedure.

Hughes, 1993 WL 193712, at *4. Tennessee Code Annotated section 40-18-103(c) provides

that the trial court may grant a continuance upon “good cause shown.”

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Defendant has failed to show that the trial court abused its discretion in denying his

request for a continuance in this case. It appears from the record that Defendant’s trial for

failure to appear in Case No. 08-CR-98 was originally scheduled for October 7, 2010,

however, the case was reset due to an unrelated trial on that date. The case was later reset for

October 13, 2010. On the day of trial, Defendant indicated that he thought his trial was

supposed to be on November 3, 2010. However, the trial court noted that an open date

occurred sooner, and the case was reset for October 13, 2010. The court said, “Since we had

a jury coming in it was my idea to put your case today. We have got to do it sooner or later.”

Defendant then told the court that he wanted to hire new counsel and that he was requesting

a continuance because he wanted his wife to testify, and she had already bought a plane ticket

for November 3, 2010. Concerning the continuance, the trial court said:

The charge is failure to appear. I really don’t know what witnesses you would

have. I don’t want to go into the facts of the case because that is not my role

to discuss strategy. It seems to me like either you showed up or you didn’t .

That is just the way I would think of it.

Defendant then told the court that his house burned, and he had a good excuse for wanting

to leave town. He also said, “I need my family here to testify, you know, of what happened

and, you know, when, how and where. I am not being afforded that right.”

Defendant offered no proof as what his wife’s testimony or that of any other family

member would have been or how the testimony was relevant to his trial for failure to appear.

On appeal, Defendant has not alleged how he was prejudiced by the trial court’s denial of his

request for a continuance. Defendant is not entitled to relief on this issue.

Consecutive Sentencing

On appeal, the party challenging the sentence imposed by the trial court has the burden

of establishing that the sentence is improper. See Tenn. Code Ann. § 40-35-401, Sentencing

Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a

Defendant challenges the length, range, or manner of service of a sentence, it is the duty of

this Court to conduct a de novo review on the record with a presumption that the

determinations made by the court from which the appeal is taken are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption of correctness, however, “‘is conditioned upon the

affirmative showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008)

(quoting State v. Ashby, 823 S.W.2d 166, 169 Tenn. 1991)). “If, however, the trial court

applies inappropriate mitigating and/or enhancement factors or otherwise fails to follow the

Sentencing Act, the presumption of correctness fails,” and our review is de novo. Carter,

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254 S.W.3d at 345 (quoting State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004); State v.

Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992)).

A trial court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that any of the following factors are applicable:

(1) The defendant is a professional criminal who has knowingly devoted such

defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal person so declared by a

competent psychiatrist who concludes as a result of an investigation prior to

sentencing that the defendant’s criminal conduct has been characterized by a

pattern of repetitive or compulsive behavior with heedless indifference to

consequences;

(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;

(5) The defendant is convicted of two (2) or more statutory offenses involving

sexual abuse of a minor with consideration of the aggravating circumstances

arising from the relationship between the defendant and victim or victims, the

time span of the defendant’s undetected sexual activity, the nature and scope

of the sexual acts and the extent of the residual, physical and mental damage

to the victim or victims;

(6) The defendant is sentenced for an offense committed while on probation;

or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b); See also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

The length of the sentence should be “justly deserved in relation to the seriousness of the

offense” and “no greater than that deserved for the offense committed.” Tenn. Code Ann.

§ 40-35-102(1), 103(2). Unless mandated by statute or rule, the determination of whether

sentences are to be served concurrently or consecutively is a matter addressed to the sound

discretion of the trial court. State v. Hastings, 25 S.W.3d 178, 181 (Tenn. Crim. App. 1999).

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In this case, the trial court found that consecutive sentencing was appropriate based

on a finding that Defendant was an offender whose record of criminal activity is extensive.

The trial court specifically found that the effective eleven-year sentence in this case was

“justly deserved in relationship to the seriousness of these offenses and based on the

defendant’s prior record.” The trial court further found that “less restrictive measures than

confinement have frequently and recently been applied unsuccessfully to the defendant.” At

the sentencing hearing, Mr. Grimes testified that Defendant was on state parole for a

conviction for driving after being declared a habitual traffic offender at the time of the

offenses. Furthermore, Defendant’s criminal record consists of thirty-seven convictions

which include: ten DUI convictions, ten driving on a revoked license convictions, two

resisting arrest convictions, three public intoxication convictions, two traffic offenses, three

violations of the Motor Vehicle Habitual Offenders Act, two assault convictions, and

convictions for theft, sale of a controlled substance, evading arrest, aggravated assault, and

vandalism. The presence of a single factor is sufficient to justify the imposition of

consecutive sentences under Tennessee Code Annotated section 40-35-115. State v. Black,

924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Defendant is not entitled to relief on this

issue.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

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THOMAS T. WOODALL, JUDGE

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