State of Tennessee v. Robert Jason Burdick

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 16, 2011 Session

STATE OF TENNESSEE v. ROBERT JASON BURDICK

Direct Appeal from the Criminal Court for Davidson County

No. 2008-B-1350 Seth Norman, Judge

No. M2009-02085-CCA-R3-CD - Filed April 18, 2012

A Davidson County jury convicted the Defendant, Robert Jason Burdick, of one count of

aggravated burglary and two counts of aggravated rape with bodily injury. The trial court

sentenced him as a Range I standard offender to a cumulative sentence of thirty-two years

in the Tennessee Department of Correction. On appeal, the Defendant argues that (1) the

evidence is insufficient to support his convictions for aggravated rape with bodily injury, (2)

the trial court erred by denying his pre-trial motions to suppress evidence, and (3) the trial

court erred by imposing partial consecutive sentences. Upon review, we affirm the

Defendant’s convictions and the length of his sentences but remand the case to the Criminal

Court of Davidson County for additional findings regarding consecutive sentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

in Part; Reversed in Part; and Case Remanded

D ONALD P. H ARRIS, S R. J., delivered the opinion of the court, in which J OSEPH M. T IPTON,

P.J., and R OBERT W. W EDEMEYER, J., joined.

John E. Herbison (at trial and on appeal), and Fletcher Long, and Carrie Gasaway (at trial),

Springfield, Tennessee, for the appellant, Robert Jason Burdick.

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

Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Roger

Moore, and Dana Shabayek, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

Background

In May 2008, the Davidson County Grand Jury indicted the Defendant on thirteen

counts. This appeal concerns counts eleven, twelve, and thirteen, which stem from the

November 19, 2007, rape of B.S.1

At the trial, he victim testified that in November 2007, she lived alone at her home in

Donelson, Tennessee. She was widowed and had grown children, who no longer lived at

home. On November 18, 2007, she spent the evening watching television and fell asleep in

the den near midnight. She was awoken by a man standing behind her telling her to get up.

She recalled that she was not wearing her glasses when she woke up, and there were no lights

on in the room. She could see the man, however, due to light from an adjoining room. She

said that he was wearing a face mask, which she also described as a stocking cap with the

eyes, nose, and mouth cut out, and a “hoodie-type jacket.” She testified that she stood up,

and the man put duct tape over her eyes. He told her to undress, and she complied. He then

put duct tape around her wrists. The victim testified, “At that time he French kissed me and

then he kissed my breast and then he told me to lay down on the floor.” She followed his

directions. The man told her that he would use a condom, and she heard a package opening.

The man put his finger in her rectum and penetrated her vagina with his penis. The victim

testified that her focus was on staying alive, so she allowed the contact. She said that she

asked him to loosen her wrists, but he refused. She did not know whether he ejaculated or

not, but he eventually told her to get up. He told her that he was taking her to the shower,

which was at the opposite end of the house. When they reached the bedroom adjacent to the

bathroom, the man cut the tape from her wrists. He put her in the shower and turned on the

water. The man took the tape off of her eyes and told her to stay in the shower for ten

minutes. He left the room but returned to turn on the light before leaving again. The victim

testified that she did not stand under the water stream in the shower because she wanted to

preserve whatever evidence he might have left. She got out of the shower after she thought

that he had left. The victim testified that she swabbed her mouth with Q-tips and placed the

Q-tips in a plastic bag. She noticed that an ornament, previously located in a bedroom

window, had been moved. She dressed and left the house, intending to go to a hospital. On

her way, she called her brother, and he convinced her to return to her home to wait for the

police. She called the police, and they responded to her house. A police officer took her to

a hospital, and the hospital staff performed a vaginal exam, took swabs of her breast and

mouth, and took pictures. The victim gave the Q-tips from her house to the hospital staff.

She recalled having “duct tape markings around [her] wrist” and a small cut on her wrist

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It is the policy of this court to refer to victims of sexual assault by their initials.

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from when the man cut the tape off her wrists. The victim described the man as taller than

her and of average weight. While she could not tell his race visually, she believed that he

was Caucasian based on his voice.

On cross-examination, the victim testified that she had “[n]o physical injuries, other

than the tape.” She agreed that she meant that there was “a residue or a film” from the tape

left on her wrists.

Metropolitan Nashville Police (“MNP”) Officer Jacob Pilarski testified that he

responded to an aggravated rape call on November 19, 2007. He met the victim and her

brother at a Waffle House restaurant. The victim informed him that she had been raped at

her home, and he went with her back to her house. Officer Pilarski testified that the victim

had red marks on her face and wrists consistent with her report that the rapist used duct tape

on her eyes and wrists. He found one unlocked window in her house. Officer Pilarski

notified the sex crimes unit and transported the victim to the hospital for a sexual assault

examination.

MNP Officer Dylan Kinney testified that he responded to the victim’s home on

November 19, 2007. He stayed at the house while Officer Pilarski took the victim to the

hospital and remained on the scene while the identification section officers processed the

house.

MNP Officer Thomas E. Simpkins testified that, as part of the police department’s

identification unit, he participated in processing the victim’s home. In particular, he

photographed shoe impressions on the house’s air conditioning unit and lifted the

impressions with black powder and tape. He also photographed a patio chair with mud on

the legs and the holes in the yard underneath two windows that corresponded to the chair

legs. He testified that it appeared that the perpetrator stood on the chair and the air

conditioning unit to gain access to the victim’s home through a window.

Nurse Merrill Stopplebein testified that she performed the victim’s medical/legal

examination on November 19, 2007. Nurse Stopplebein recalled that the victim was calm

during her examination and that she had red marks on her wrists. The victim’s pelvic

examination was normal. As part of the medical/legal examination, Nurse Stopplebein

collected pubic hair combings from the victim, as well as vaginal swabs, perianal swabs,

labial swabs, and swabs of the victim’s mouth and breasts. She also took a sample of the

victim’s blood for comparative DNA purposes. She packed the items into a box, which was

sealed and locked into a cabinet until Detective Wiser took custody of it.

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On cross-examination, Nurse Stopplebein testified that she believed that she

prematurely marked the box on her report indicating that she did not observe any injuries on

the victim’s extremities. On the chart accompanying the report, she indicated that the victim

had injuries on her wrists. Nurse Stopplebein testified that the injuries were red marks from

the tape that the perpetrator used to bind the victim’s wrists. At the time of the examination,

she did not observe a cut or bruise on the victim’s wrists.

MNP Detective Jeff Wiser testified that on November 19, 2007, Officer Pilarski

apprised him of the victim’s complaint and the information the officers had gathered, and he

met the victim at the hospital. He interviewed her prior to her medical/legal examination.

The following day, he took the evidence box collected by Nurse Stopplebein to the

Tennessee Bureau of Investigation Crime Lab. He received the results approximately one

month later.

Detective Wiser testified that he inspected the victim’s house, along with other

officers. He recalled finding two condom wrappers in a ditch near the house and rolled duct

tape in another yard nearby. At the time, he did not know how long the items had been

outside or whether they were connected to the victim’s case. Another detective discovered

a Precious Moments figurine outside of a window of the victim’s home.

Detective Wiser testified that in April 2008, the Defendant’s name surfaced as a

suspect. Detective Wiser collected buccal swabs from the Defendant, which he gave to

Detective Kent McAlister, and participated in a search of the Defendant’s home and vehicle.

The police recovered a roll of duct tape, thirteen condoms inside a handgun case, a black ski

mask, a blue ski mask, and a blue toboggan from the Defendant’s home. They also recovered

a roll of duct tape from the Defendant’s vehicle. The detective recalled that the Defendant

had several handguns and “quite a few black clothes.” He testified that the police found

night vision goggles and anti-dog-barking devices in the Defendant’s bedroom. On cross-

examination, Detective Wiser admitted that the condom wrappers found outside of the

victim’s home were not the same type as the condoms found in the Defendant’s home.

MNP Detective Kent McAlister testified that he transported the Defendant’s buccal

swabs from the police department’s property room to the TBI crime lab. TBI Special Agent

Constance Howard, a forensic scientist, testified that she extracted DNA from the

Defendant’s buccal swabs to obtain his genetic profile, which she gave to Agent Chad

Johnson.

TBI Special Agent Chad Johnson, a forensic scientist, testified that he analyzed the

victim’s sexual assault kit. He stated that he found only the victim’s DNA on her gum

swabs, vaginal swabs, and labial swabs. He found a mixture of the victim’s DNA and male

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DNA on the anal swabs and tongue swabs and the same male’s DNA on the breast swabs.

Agent Johnson testified that the male DNA matched the Defendant’s genetic profile.

After the close of proof and deliberations, the jury found the Defendant guilty as

charged of aggravated burglary and two counts of aggravated rape. The trial court sentenced

him to three years for the aggravated burglary conviction and to sixteen years for each

aggravated rape conviction. The trial court ordered the Defendant to serve the aggravated

rape sentences consecutively, and the court imposed the aggravated burglary sentence

concurrently with the first aggravated rape sentence, resulting in a cumulative sentence of

thirty-two years.

Analysis

On appeal, the Defendant argues that the evidence was insufficient to support his

convictions for aggravated rape; that the trial court erred by denying his motion to suppress

evidence; and that the trial court erred by imposing partial consecutive sentences.

I. Sufficiency of the Evidence

The Defendant contends that the evidence presented at trial failed to prove that the

Defendant caused bodily injury to the victim during the rape, thus failing to meet the required

elements of a conviction for aggravated rape. He relies on State v. Tutton, 875 S.W.2d 295,

297 (Tenn. Crim. App. 1993), for the proposition that bodily injury must occur during the

rape rather than after the rape is accomplished in order for the offense to rise to the level of

aggravated rape. The State responds that the victim’s injuries were caused by the

Defendant’s use of duct tape to bind her during the rape.

For purposes of appellate review, a jury’s finding of guilty removes a defendant’s

presumption of innocence and replaces it with a presumption of guilt. State v. Evans, 838

S.W.2d 185, 191 (Tenn. 1992). Therefore, a convicted defendant bears the burden of

demonstrating to this court why the evidence will not support the jury’s verdict. State v.

Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). This court reviews the evidence to determine whether “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 (1979); see State v. Evans, 108 S.W.3d 231, 236

(Tenn. 2003); see also Tenn. R. App. P. 13(e). The State is entitled to the strongest

legitimate view of the evidence and all reasonable inferences that may be drawn from the

evidence. Carruthers, 35 S.W.3d at 558. The jury’s verdict approved by the trial judge

accredits the State’s witnesses and resolves all conflicts in favor of the State. State v. Harris,

839 S.W.2d 54, 75 (Tenn. 1992). We do not attempt to re-weigh or re-evaluate the evidence

because questions concerning the credibility of the witnesses, conflicts in trial testimony, the

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weight and value to be given the evidence, and all factual issues raised by the evidence are

resolved by the trier of fact and not this court. State v. Reid, 91 S.W.3d 247, 277 (Tenn.

2002); State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Likewise, we do not replace the

jury’s inferences drawn from the circumstantial evidence with our own inferences. Id.

As relevant to this case, aggravated rape is the “unlawful sexual penetration of a

victim by the defendant or the defendant by a victim” accompanied by the defendant’s

causing bodily injury to the victim. Tenn. Code. Ann. § 39-13-502(a). “‘Bodily injury’

includes a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness

or impairment of the function of a bodily member, organ, or mental faculty.” Id. § 39-11-

106(2).

The Defendant concedes that the evidence was sufficient to sustain a conviction for

rape but contends that any bodily injury occurred after the rape. He argues that, under

Tutton, the bodily injury must accompany the rape in order to elevate the offense to

aggravated rape, and any injury that occurs after the rape is insufficient to meet the

requirements for aggravated rape. In Tutton, the defendant raped the victim in a car, went

for a walk with her in a park, and then hit and stabbed her when they returned to the car. 875

S.W.2d at 296. On appeal, the defendant assigned error to the trial court’s refusal to charge

the jury with the lesser included offense of rape. Id. at 297. The appellate court ruled that

the trial court should have charged the lesser included offense of rape because the proof did

not show a temporal relationship between the rape and the stabbing. Id. The court further

ruled that the remedy was to modify the defendant’s conviction to rape. Id. 297-98.

Viewed in the light most favorable to the State, the evidence shows that the

Defendant’s unlawful sexual penetration of the victim was accompanied by bodily injury.

The Defendant entered the victim’s home without her permission, ordered her to remove her

clothes, bound her wrists and covered her eyes with duct tape, and raped her. The victim

testified that she asked the Defendant to loosen her wrist bindings, but he refused. The

victim also testified that she had marks around her wrists from the duct tape and a small cut

from the perpetrator’s removal of the duct tape. Officer Pilarsky observed red marks on the

victim’s face and wrists that were consistent with her report of the perpetrator using duct tape

on her eyes and wrists. Nurse Stopplebein also observed red marks on the victim’s wrists

from the tape used to bind the victim’s wrists. The evidence demonstrates that the Defendant

used duct tape to bind the victim’s wrists and cover her eyes in order to accomplish the

sexual assault. The use of the tape during the sexual assault established a temporal

relationship between the use of the tape and the crimes. The present case is distinguishable

from Tutton, in which the bodily injury was inflicted well after the sexual assault was

accomplished. See 875 S.W.2d at 297. We conclude that the evidence was sufficient to

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sustain the Defendant’s convictions for aggravated rape.

II. Motions to Suppress

The Defendant challenges the trial court’s denial of his pretrial motions to suppress

evidence seized by the police from his person, home, and vehicle. The State contends that

the Defendant waived appellate consideration of the trial court’s ruling because the record

does not contain the search warrant nor does it reflect that a warrant was issued pursuant to

the affidavit attached to the Defendant’s first motion to suppress evidence. The State has not

addressed the merits of the issue. We hold that the Defendant has not shown that the trial

court erred in denying the motions.

We consider, first, the State’s contention that the Defendant has waived appellate

consideration of the issue. The State is correct that the Defendant was required to prepare

a record that conveyed a fair, accurate, and complete account of what transpired with respect

to those issues that are the bases of the appeal. T.R.A.P. 24(b); State v. Ballard, 855 S.W.2d

557, 560 (Tenn. 1993). Likewise, the State is correct that there is no search warrant in the

record. The record reflects, though, that a nine page document titled “Affidavit in Support

of Application for Search Warrant” was attached to Defendant’s first Motion to Suppress.

The motion referred to the affidavit and stated that it was attached. The attached affidavit

contained detailed factual allegations and was signed by Detective Elliott. It was sworn to

before a general sessions judge and contained the judge’s signature.

The record reflects that the affidavit was offered as an exhibit by the Defendant at one

of the suppression hearings and that it was marked as exhibit 1, although that exhibit is not

part of the record that has been provided to this court. Defense counsel represented to the

court at that suppression hearing that “searches were carried out of [the Defendant’s]

residence, of his business, of his automobiles and of his person to obtain a DNA sample.”

Defense counsel also represented to the court that the affidavit that was attached to the

motion to suppress was the affidavit the police relied on to support the searches. The State

did not contest defense counsel’s representations at the hearing, and it argued that the

affidavit stated a sufficient basis from a which a judge found probable cause.

At the trial, Detective Wiser testified that pursuant to a search warrant, he obtained

buccal swabs from the Defendant and participated in searches of the Defendant’s home and

Jeep. He identified items seized during those searches, which were received as exhibits. We

conclude that the Defendant has not waived our consideration of the trial court’s ruling. See

State v. Bobbadilla, 181 S.W.3d 641, 642 (Tenn. 2005) (considering the merits of a

defendant’s appeal of the trial court’s denial of a motion to suppress where the search

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warrant was appended to the motion to suppress, but not received as an exhibit at the hearing,

and was part of the appellate record).

With respect to the merits of the Defendant’s issue, this court conducts a de novo

review of a trial court’s conclusions of law and application of law to facts when reviewing

the trial court’s decision on a motion to suppress. See State v. Walton, 41 S.W.3d 75, 81

(Tenn. 2001). However, we presume that the trial court’s findings of fact are correct unless

the evidence contained in the record preponderates against them. See State v. Daniel, 12

S.W.3d 420, 423 (Tenn. 2000). “Questions of credibility of the witnesses, the weight and

value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the

trial judge as the trier of fact.” State v. Lawrence, 154 S.W.3d 71, 75 (Tenn. 2005) (quoting

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). Moreover, the prevailing party is entitled

to the strongest legitimate view of the evidence and all reasonable and legitimate inferences

that may be drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001).

A. Defendant’s Motion to Suppress Evidence Obtained as a Result of the Search Warrant

The Defendant’s first motion to suppress contended that the affidavit in support of the

search warrant did not contain evidence providing a basis for probable cause. In Tennessee,

it is well-established that an affidavit is necessary to the issuance of a search warrant. Tenn.

Code Ann. § 40-6-103; State ex rel. Blackburn v. Fox, 292 S.W.2d 21, 23 (1956); Harvey

v. State, 60 S.W.2d 420 (1933). The affidavit must set forth on its face the facts which

establish probable cause before a warrant may be issued. Tenn. Code Ann. § 40-6-104;

Tenn. R. Crim. P. 41(c). The issuing magistrate must make a neutral and detached judgment

that probable cause is shown. See State v. Nolan, 617 S.W.2d 174, 175 (Tenn. Crim. App.

1981). The following requirements must be met to show adequate probable cause:

Probable cause requires reasonable grounds for suspicion, supported by

circumstances indicative of an illegal act. State v. Stevens, 989 S.W.2d 290,

293 (Tenn. 1999). To ensure that the magistrate exercises independent

judgment, the affidavit must include more than conclusory allegations from the

affiant. [State v. Carter, 160 S.W.3d 526, 533 (Tenn. 2005)]. The affidavit

must present facts upon which a neutral and detached magistrate, examining

the affidavit in a commonsense and practical manner, can determine whether

probable cause exists for the issuance of a search warrant. Id. In examining

the affidavit, our standard of review is limited to a determination of whether

the issuing magistrate had “a substantial basis for concluding that a search

would uncover evidence of wrongdoing.” State v. Ballard, 836 S.W.2d 560,

562 (Tenn. 1992).

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State v. Smotherman, 201 S.W.3d 657, 662 (Tenn. 2006).

As noted above, the conclusory allegations of an affiant are not sufficient to sustain

a warrant. Carter, 160 S.W.3d at 533. “‘Recital of some of the underlying circumstances

in the affidavit is essential if the magistrate is to perform his detached function and not serve

merely as a rubber stamp for the police.’” State v. Moon, 841 S.W.2d 336, 337-38 (Tenn.

Crim. App. 1992) (quoting United States v. Ventresca, 380 U.S. 102, 108-09 (1965)). “Thus,

in Tennessee, probable cause to support the issuance of the warrant must appear in the

affidavit and judicial review of the existence of probable cause will not include looking to

other evidence provided to or known by the issuing magistrate or possessed by the affiant.”

Moon, 841 S.W.2d at 338. “Tennessee law is clear that in determining whether or not

probable cause supported issuance of a search warrant only the information contained within

the four corners of the affidavit may be considered.” State v. Keith, 978 S.W.2d 861, 870

(Tenn. 1998) (citing Jacumin, 778 S.W.2d at 432). “If probable cause is absent, the

magistrate is not empowered to issue a warrant.” State v. Kamara L. Whittington, No.

W2007-00148-CCA-R3-CD, 2008 WL 1891450, at *2 (Tenn. Crim. App., at Jackson, Apr.

20, 2008). “The reviewing court’s standard should be whether, in light of all the evidence

available, the magistrate had a substantial basis for finding probable cause.” State v. Meeks,

876 S.W.2d 121, 124 (Tenn. Crim. App. 1993).

The affidavit states the following: Eleven “rapes and/or personal attacks” occurred

between March 1994 and December 2006, in homes in the Forest Hills area, by an individual

known as the “Wooded Rapist,” due to similarities in the crimes. The attacker was a white

male of average build in his 20s or 30s, wore dark clothes and gloves, and covered his face.

The perpetrator had a gun, knife, or “other cutting instrument.” The victims were bound and

blindfolded, and some were taken to another part of the property. DNA evidence was

recovered from eight of the attacks. DNA analysis showed that all of these attacks were

perpetrated by the same person. The perpetrator made statements to the victims that

indicated he had been watching the victims or their homes. In 2005, the victim of a burglary

and attempted rape assisted the Tennessee Bureau of Investigation (TBI) develop a sketch

of the perpetrator. The sketch was similar to the Defendant’s driver’s license photograph.

Around 1:00 or 1:30 a.m. on November 4, 2004, a neighbor saw one of the victims outside

with another person during one of the rapes. The perpetrator of the rape took the victim

outside during the assault. The following day, a witness reported having seen a man at about

7:00 p.m. the previous day. The witness described a white male, dressed in black, wearing

a black stocking cap, and standing behind a tree near a business that was behind the victim’s

home. About two blocks away, on April 28, 2008, a witness who was visiting a family

member on the same block as the street where the November 4, 2004 rape took place was

sleeping in a camper when she was awakened by a growling dog. She looked outside and

saw a man in dark clothing and a ski mask standing between two cars on the property and

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looking inside the cars with a flashlight. She yelled at the person, who said something

unintelligible and walked toward Williamsburg Road. The witness notified the police. A

police officer found a Jeep, which was registered to the Defendant, parked on a street within

walking distance. The Jeep’s hood was warm. He saw a red hat, a black bag, and beverage

containers in the Jeep. The officer remained in the area and, around 1:31 a.m., he saw the

Jeep leaving the area. He stopped the Jeep, which was driven by the Defendant. The

Defendant was wearing camouflage pants, a gray t-shirt with cut-off sleeves, tennis shoes,

and the red hat the officer had seen earlier in the Jeep. The Defendant was approximately

5'11", weighed about 200 pounds, and had a muscular build, brown hair, and blue eyes. The

Defendant told the officer that he had been visiting a friend named Ricky Douglas at a house

located near the place the officer saw the Jeep earlier. The Defendant said he parked on the

street because there were several other cars in the driveway. The Defendant refused to

consent to a search of the Jeep. Officers went to the home the Defendant identified as his

friend’s and spoke with one of its residents. She denied knowing the Defendant or that there

had been a gathering at the house earlier, although she identified six other people who were

staying overnight at the house. Police officers conducted hundreds of hours of nighttime

surveillance of the area in 2006 and 2007 and never saw anyone on foot in the neighborhood.

The Defendant’s physical appearance matched that given by the victims and a sketch

prepared by the TBI. The affiant believed there was probable cause to believe the Defendant

was the person on foot in November 2004 and the perpetrator of the attacks. The affidavit

identified the Defendant’s home by address, appearance, and photograph and requested

permission to search the home and its occupants, as well as outbuildings and cars on the

premises.

As we have noted, there were no witnesses at the hearing. Defense counsel offered

the affidavit as an exhibit, although the exhibit has not been transmitted to this court as such.

The trial court filed a written order denying the motion. In considering the sufficiency of the

affidavit, the court considered the facts alleged in the affidavit as well as those stated in a

transcript of the April 28, 2008 9-1-1 call. To the extent that the trial court considered the

9-1-1 transcript, it erred. The court was limited to the facts set forth on the face of the

affidavit. See Tenn. Code Ann. § 40-6-104; Tenn. R. Crim. P. 41(c); Keith, 978 S.W.2d at

870; Jacumin, 778 S.W.2d at 432.

The question becomes whether the trial court properly denied the motion despite its

erroneous reliance on matters outside the four corners of the affidavit. The written order

denying the first motion to suppress contains detailed findings of fact. The court noted the

proximity of the attacks and the similar descriptions of the perpetrator. It found that the

“[m]ost important” fact was that on April 28, 2008, the Defendant’s still-warm car was

parked a short distance from the address where a few minutes earlier, a witness saw a

suspicious person. The court also noted that the Defendant’s report of his whereabouts that

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night was contradicted by the resident whose home the Defendant said he had been visiting.

The court found that the Defendant’s clothing appeared to be dry, as if he had just changed,

although “it was evidently raining on April 28, 2001 [sic].” The court noted the similarities

of the clothing worn by the suspicious person seen that night, the “Wooded Rapist,” and the

perpetrator of the November 2004 rape on the same block. The court found that despite the

gap of almost four years between the November 2004 rape and the April 2008 suspicious

person sighting, the attacks had occurred sporadically over a fourteen-year period. The court

discredited as unreliable the evidence of the Defendant’s height of 5'11" as estimated by the

police officer who conducted the traffic stop and the 9-1-1 caller’s estimate that the person

looking in the cars with a flashlight was about 5'7". Considering these facts, the trial court

found that the magistrate had probable cause to issue the search warrant. Upon review, we

conclude that the affidavit provided sufficient facts to support a finding of probable cause,

the trial court’s erroneous reliance upon the 9-1-1 transcript notwithstanding. In so holding,

we note that aside from the information from the 9-1-1 transcript about the suspicious man’s

height, which the court discredited as unreliable, the facts the trial court recited in its order

that appear in the 9-1-1 transcript also appear in the affidavit.

B. Defendant’s Motion to Suppress the Evidence Obtained as a Result of the Traffic Stop

and the Search Warrant

After the trial court denied the first motion to suppress, the Defendant filed a second

motion focusing on the legality of the April 28, 2008 traffic stop. Attacking the evidence

obtained pursuant to the search warrant a second time, the Defendant contended that the

evidence was tainted as “fruit of the poisonous tree” because the investigation of the

Defendant and subsequent search warrant were based upon information obtained during the

illegal traffic stop. See Wong Sun v. United States, 371 U.S. 471, 488 (1963).

The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures, and “‘article 1, section 7 [of the Tennessee Constitution]

is identical in intent and purpose with the Fourth Amendment.’” State v. Downey, 945

S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 423 S.W.2d 857, 860 (1968)). The

analysis of any warrantless search must begin with the proposition that such searches are per

se unreasonable under the Fourth Amendment to the United States Constitution and article

1, section 7 of the Tennessee Constitution. This principle against warrantless searches is

subject only to a few specifically established and well-delineated exceptions. See Katz v.

United States, 389 U.S. 347, 357 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim.

App. 1980). Evidence discovered as a result of a warrantless search or seizure is subject to

suppression unless the State establishes that the search or seizure was conducted pursuant to

one of the narrowly defined exceptions to the warrant requirement. State v. Binette, 33

S.W.3d 215, 218 (Tenn. 2000).

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An exception to the warrant requirement exists when a police officer conducts an

investigatory stop based on a reasonable suspicion that a criminal offense has been or is

about to be committed. Terry v. Ohio, 392 U.S. 1, 21 (1968); Binette, 33 S.W.3d at 218.

Reasonable suspicion is “a particularized and objective basis for suspecting the subject of a

stop of criminal activity[.]” Binette, 33 S.W.3d at 218 (citing Ornelas v. United States, 517

U.S. 690, 696 (1996)). Reasonable suspicion is determined based upon the totality of the

circumstances of the encounter. Binette, 33 S.W.3d at 218 (citing Alabama v. White, 496

U.S. 325, 330 (1990)). The police may stop a vehicle if they have either probable cause or

an “articulable and reasonable suspicion” that the vehicle or its occupants are subject to

seizure for violation of the law. See Delaware v. Prouse, 440 U.S. 648, 663 (1979); State

v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992). An officer’s subjective intention for stopping

a vehicle is irrelevant, as long as independent grounds exist for the detention. See Whren v.

United States, 517 U.S. 806, 813 (1996); State v. Vineyard, 958 S.W.2d 730, 731 (Tenn.

1997).

At the hearing on the second motion, Brentwood Police Officer Elliot Hamm testified

that he was on patrol duty on the evening of April 27, 2008, through the morning of April 28,

2008. He recalled that it was raining intermittently that night. Officer Hamm testified that

on rainy nights his patrol duties focused on the investigation of the so-called Wooded Rapist.

On April 28 at approximately 12:30 a.m., the police received a suspicious person call in the

Meadowlake subdivision. The caller reported that a masked man was looking into vehicles.

Officer Hamm and five other officers responded to the area to look for a man on foot.

Officer Hamm testified that he observed a Jeep Grand Cherokee, with Tennessee license

plate number 771-QZJ, parked on the side of the road at an intersection. He stated that the

suspicious person was last seen walking toward that area and that the Jeep was the only

vehicle parked on the side of the road in the area. The Jeep was unoccupied, and the engine

was warm. Officer Hamm ran the tag and learned that the Jeep was registered to the

Defendant. He also obtained the Defendant’s driver’s license photograph. He continued

searching the area on foot and assisted other officers in stopping cars leaving the area. He

returned to the Jeep approximately one hour later and noticed that it was moving eastbound

on Meadowlake Drive. He initiated a traffic stop with his emergency equipment in order to

determine the driver’s identity. The driver stopped, and the officer approached the Jeep. The

driver, the Defendant, was alone and wore a red cap and a sleeveless gray shirt. Officer

Hamm said that he explained to the Defendant that the police were searching for a prowler

in connection with the suspicious person call. The Defendant told him that he had been at

a party at 5201 Meadowlake Drive visiting Ricky Douglas. Officer Hamm said the

Defendant became nervous during the stop. He checked the Defendant’s driver’s license and

obtained the Defendant’s phone number in order to complete a field interview card. Officer

Hamm asked the Defendant for permission to search his vehicle, and the Defendant refused.

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Officer Hamm spent three to five minutes with the Defendant and allowed the Defendant to

leave.

On cross-examination, Officer Hamm testified that the person who called about the

suspicious person said the person was dressed in all black and wore a ski mask. He said he

saw the parked Jeep within five minutes of being dispatched to the area. He said he saw the

Jeep in motion three-tenths of a mile from the location it had been parked. He stated that his

patrol car camera captured the stop of the Defendant but that the video was of poor quality.

He said that when he stopped the Jeep, he thought he was investigating a car burglar, not that

he had apprehended the Wooded Rapist. He said he investigated the Defendant’s claim to

have been at a party and learned that the Defendant had lied about being at the home. He

stated that there were four or five cars parked in the home’s driveway when he went to

investigate the Defendant’s claim but that there was still room in the driveway to park

another car.

The trial court denied the Defendant’s motions to suppress in a written order. In

considering the totality of the circumstances, the court noted that there were very few cars

in the area and virtually no foot traffic, that the Defendant’s Jeep was the only car parked on

the street in the neighborhood where the witness saw the suspect looking into cars, that the

hood of the Jeep was warm when it was parked on the street, that the traffic stop was in the

area where the Wooded Rapist attacked took place, that the Wooded Rapist watched his

potential victims in that area, and that the Wooded Rapist wore clothing similar to that the

witness described the suspect as wearing.

Upon de novo review, we hold that the Defendant has not shown error in the trial

court’s ruling. The evidence of record demonstrates that after a 9-1-1 call reporting a masked

person peering into cars was received, six officers searched the area on foot. When Officer

Hamm stopped the Defendant, he knew about the Wooded Rapist attacks in the area and that

a suspicious person wearing clothes similar to the Wooded Rapist’s had been seen in the area

that night. He knew that the Defendant’s unoccupied Jeep was parked on the side of the road

around the time the suspicious person was reported, that it was the only car parked on the

street in the area, and that it had been driven shortly before the 9-1-1 call was received.

These specific and articulable facts support the trial court’s finding that Officer Hamm had

reasonable suspicion to conduct a brief investigative stop of the Defendant. The Defendant

is not entitled to relief on this basis.

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III. Sentencing

Finally, the Defendant argues that the trial court erred by imposing consecutive

sentences on the basis of a finding that the Defendant was a dangerous offender without the

analysis necessary to support such a finding.

An appellate court’s review of a challenged sentence is de novo on the record with a

presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-

401(d). The Sentencing Commission Comments to this section of the statute indicate that

the defendant bears the burden of establishing that the sentence is improper. When the trial

court follows the statutory sentencing procedure and gives due consideration to the factors

and principles relevant to sentencing, this court may not disturb the sentence. See State v.

Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008).

Generally, it is within the discretion of the trial court to impose consecutive sentences

if it finds by a preponderance of the evidence that at least one of following statutory criteria

apply:

(1) [t]he defendant is a professional criminal who has knowingly devoted the

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

(2) [t]he defendant is an offender whose record of criminal activity is

extensive;

(3) [t]he 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) [t]he defendant is a dangerous offender whose behavior indicates little or

no regard for human life, and no hesitation about committing a crime in which

the risk to human life is high;

(5) [t]he 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 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;

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(6) [t]he defendant is sentenced for an offense committed while on probation;

or

(7) [t]he defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

In the present case, the trial court simply found the Defendant was a dangerous

offender. “That finding required the trial court to analyze whether the Defendant’s criminal

behavior indicated ‘little or no regard for human life’ and whether he had ‘no hesitation

about committing a crime in which the risk to human life is high.’” State v. Allen, 259

S.W.3d 671, 689 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-115(b)(4)). In addition,

specific findings that an extended sentence is necessary to protect society and is reasonably

related to the severity of the offenses are prerequisites to consecutive sentencing under the

“dangerous offender” category in Tennessee Code Annotated section 40-35-115(b)(4). Id.,

State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). The general principles of sentencing

require that the length of sentence “be justly deserved in relation to the seriousness of the

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

§§ 40-35-102(1), -103(2); see State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

In this case, the trial court’s justification for imposing consecutive sentences was a

conclusory finding that the Defendant was a dangerous offender. The trial court indicated

that it accepted the State’s argument but did not explicitly make the analysis and findings

necessary under Allen and Wilkerson to categorize the Defendant as a dangerous offender.

Therefore, we remand this matter to the trial court solely to make the appropriate analysis and

findings to determine whether the imposition of consecutive sentencing is appropriate.

Conclusion

Based on the foregoing, we affirm the Defendant’s convictions but remand the case

to the trial court for sentencing proceedings in accordance with this opinion.

___________________________________

DONALD P. HARRIS, SENIOR JUDGE

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