State of Tennessee v. Robert Fusco

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 19, 2011 Session

STATE OF TENNESSEE v. ROBERT FUSCO

Appeal from the Circuit Court for Montgomery County

No. 40900753 Michael R. Jones, Judge

No. M2010-01724-CCA-R3-CD - February 3, 2012

Following a jury trial, the Defendant, Robert Fusco, was convicted of two counts of

especially aggravated kidnapping, which were merged, and one count of each of the

following offenses: conspiracy to commit aggravated robbery, conspiracy to commit

aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. See Tenn.

Code Ann. §§ 39-12-101, -12-103, -13-202, -13-304, -13-305, -13-402, -13-403, & -14-403.

The trial court determined that the Defendant was a Range II, multiple offender for

sentencing purposes and imposed an effective 65-year sentence. In this appeal as of right,

the Defendant raises the following issues: (1) whether the trial court erred in failing to

charge the lesser-included offense of attempted especially aggravated kidnapping; (2)

whether the assistant district attorney general committed prosecutorial misconduct during

closing argument; (3) whether the evidence is insufficient to support his convictions for

especially aggravated kidnapping, conspiracy to commit aggravated robbery, and conspiracy

to commit aggravated kidnapping; (4) whether his dual convictions for especially aggravated

kidnapping and attempted aggravated robbery violate due process concerns because the

restraint of the victim was not beyond that necessary to complete the robbery; (5) whether

the trial court erred by not merging his two conspiracy convictions because the offenses were

the object of the same agreement; (6) whether the trial court erred by using certain out-of-

state convictions to enhance his sentencing range; and (7) whether his sentence was

excessive.1 Following our review, we remand this case to the Montgomery County Circuit

Court for the entry of corrected judgments to reflect merger of the Defendant’s conspiracy

convictions. In all other respects, we conclude that there is no reversible error in the

judgments of the trial court and affirm.

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

in Part; Reversed in Part; Remanded.

1

For the purposes of clarity and brevity, we have renumbered and reordered the issues as stated by the

Defendant in his brief.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the Court, in which J AMES C URWOOD

W ITT, J R., and J OHN E VERETT W ILLIAMS, JJ., joined.

Bryan P. Stephenson, Nashville, Tennessee, for the appellant, Robert Fusco.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; John Wesley Carney, Jr., District Attorney General; Helen O. Young, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

This appeal arises from the November 1, 2007 home invasion of John and Elke

Gilreath, who lived in Clarksville and owned a local jewelry store called the Golden Eagle.

On June 1, 2009, a Montgomery County grand jury returned an indictment against the

Defendant and his co-defendant, Kyle Swim, wherein the Defendant was charged with three

counts of especially aggravated kidnapping (alternative theories for the kidnapping of Elke)

and one count of each of the following offenses: conspiracy to commit aggravated robbery,

conspiracy to commit especially aggravated kidnapping, attempted especially aggravated

kidnapping (John), aggravated kidnapping (Elke), attempted aggravated kidnapping (John),

attempted aggravated robbery (John and Elke d/b/a Golden Eagle Jewelry), aggravated

burglary, and attempted first degree murder (Elke). The Defendant’s trial was conducted on

September 21 through 24, 2009.

The proof at trial, in the light most favorable to the State, revealed that the Defendant

and his 18-year-old co-defendant, Swim, residents of Florida, formulated a plan to rob the

Golden Eagle jewelry store in Clarksville, a location chosen by the Defendant. In furtherance

of their plan, the two men made five or six trips to Clarksville to gather information. They

learned that John and Elke Gilreath were the owners of the jewelry store and that the jewelry

store building formerly housed a bank, so they believed a vault filled with large amounts of

money was inside the store. They also followed the Gilreaths home from the store and

determined where they lived. Ultimately, the two men contrived to break into the Gilreaths’

home, abduct Mr. Gilreath while holding Mrs. Gilreath hostage, and force Mr. Gilreath to

take them to the jewelry store after hours to retrieve the valuables inside. During one of their

reconnaissance trips, they stayed at a Super Eight motel, and authorities later recovered a

receipt signed by Swim, which was entered into evidence.

They executed their plan on November 1, 2007. Some time between 8:30 and 9:00

a.m. that morning, Swim dropped the Defendant off about a block away from the Gilreaths’

home on Trahern Lane. The Defendant was armed with two handguns, a 25mm and a 9mm.

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After gaining entry into the home, the Defendant hid in the laundry room of the house for

several hours; Mrs. Gilreath was home when the Defendant entered that morning, but the

plan called for them to wait until Mr. Gilreath returned home from work. Throughout the

day, the Defendant and Swim exchanged text messages to stay apprised of the Gilreaths’

whereabouts. At some point, Mrs. Gilreath left the house and went to the store. When she

and Mr. Gilreath returned home in their respective vehicles later that day at approximately

5:10 p.m., Mr. Gilreath went to check the mail, and Mrs. Gilreath went to put something in

the laundry room. As Mrs. Gilreath entered, the Defendant jumped out, brandishing a

weapon, and said, “I’m here to kill you.” The Defendant placed Mrs. Gilreath in a chokehold

and held a gun to her head. Mr. Gilreath came running to the kitchen when he heard his wife

scream.

As Mr. Gilreath approached, the Defendant pointed his gun at Mr. Gilreath and

ordered, “Don’t move motherf---er, or I’ll kill you, and I’ll kill this b---h here.” Mr. Gilreath

responded, “No, you are not going to kill anybody, and I am going to get my gun and kill

you.” Mr. Gilreath then ran to his car to retrieve his handgun.

The Defendant “marched” Mrs. Gilreath into the kitchen, spun her around, and

slammed her into a door. The Defendant “held her left arm up, stood on one of her feet, and

pressed the gun to her forehead.” Mrs. Gilreath pleaded with the Defendant and told him that

she would give him anything he wanted, and the Defendant replied, “Shut up you f-----g b---

h, I am here to kill you. I am going to shoot you.” The Defendant then grabbed at Mrs.

Gilreath’s Rolex watch. As Mrs. Gilreath was bringing her arm down, the Defendant put the

gun against it and fired; the bullet went through her arm and into her chest. The Defendant

then grabbed Mrs. Gilreath by the hair and pushed her face into the floor, before fleeing.

On his way back inside the home, Mr. Gilreath was met by his wife, who had blood

squirting from a wound in her chest. He laid her on her stomach in the front yard and

gathered some towels to staunch the bleeding.

Swim relayed that at approximately 5:30 p.m., he was at Linda’s Pic-A-Rib on Tenth

Street, when the Defendant phoned him and told him that he had shot Mrs. Gilreath and

needed to be picked up so they could flee. Before leaving the Pic-A-Rib, Swim asked Melba

Cox, an employee of the restaurant, how to get to College Street. Also around 5:30 p.m, one

of the Gilreaths’ neighbors, Mr. Travis Tarpy, saw a man, who he later identified as the

Defendant, running through his backyard and phoned the police. Mr. Tarpy testified that the

Defendant was wearing a hooded sweatshirt. Soon after this, Harold McCarver encountered

the Defendant, who was on his cell phone, at B & D Garage; the Defendant asked McCarver

to direct him to College Street.

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Detective Tyler Barrett received a call about the shooting around 5:30 p.m. and began

looking for a light-skinned2 man wearing jeans and a hooded sweatshirt. As Det. Barrett

patrolled the area, he was flagged down by several men, who told him that someone was

hiding in a nearby building on College Street. Detective Barrett found the Defendant inside

the building with a cell phone in one hand and a gun in the other; he ordered the Defendant

to get on the ground, but when the Defendant remained standing, Det. Barrett warned him

that he would shoot if he did not do as he was told. The Defendant then dove under a nearby

truck, and it was only after Officer Bill Van Beber arrived on the scene that the two officers

were able to pull the Defendant from underneath the vehicle. The Defendant initially denied

having a weapon, but Officer Van Beber removed a 25mm handgun from the Defendant’s

left rear pocket. Another officer removed a pair of gloves from the Defendant’s person,

which gloves later tested positive for the presence of gunshot residue.

Swim finally arrived at the building on College Street, and after observing that the

Defendant had been taken into custody, he drove back to Florida. Swim was apprehended

several months later and incarcerated at the Montgomery County Jail. While there, he

encountered the Defendant and asked him why he had shot Mrs. Gilreath. The Defendant

answered that he shot her because he was “mad, pissed off.”

Detective Tim Anderson interviewed the Defendant shortly after the home invasion,

and the Defendant initially denied any involvement in the crime. After the Defendant was

told that Mrs. Gilreath would likely survive, the Defendant became more cooperative but still

denied shooting Mrs. Gilreath. It was only once Det. Anderson showed the Defendant the

text messages between the Defendant and Swim that were recovered from the Defendant’s

cell phone that the Defendant admitted his involvement. The Defendant claimed that he only

intended to fire a warning shot and that the shooting was accidental. He admitted to planning

the robbery, researching the Gilreaths prior to entering their home, and hiding in the laundry

room. The Defendant also provided information on the whereabouts of the 9mm handgun

he discarded as he was fleeing the scene.

Later, officers searched the area between the victims’ home and the building on

College Street; ultimately, the officers recovered a 9mm handgun in a ditch near the

Gilreaths’ home. The Rolex watch, originally thought to be stolen, was found several months

later inside the Gilreaths’ house; the watch was never turned over to the authorities.

At trial, the Defendant testified, claiming that he initially lied to the police to try and

protect Swim. He denied that their plan was to kidnap the Gilreaths in order to rob the

2

The exact of color of the assailant’s complexion, as opposed to the color of the Defendant’s complexion,

was disputed at trial.

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jewelry store, contending that he accidentally shot Mrs. Gilreath and that they only intended

to rob the Gilreaths at their home.

Following the conclusion of proof, the jury convicted the Defendant of two counts of

especially aggravated kidnapping, conspiracy to commit aggravated robbery, conspiracy to

commit aggravated kidnapping, attempted aggravated robbery, and aggravated burglary. The

especially aggravated kidnapping convictions were merged. A sentencing hearing was held,

and the trial court determined that the Defendant was a Range II, multiple offender. The trial

court ordered the Defendant to serve 10 years for each of the conspiracy convictions, 35

years for the merged especially aggravated kidnapping convictions, 10 years for the

attempted aggravated robbery, and 10 years for the aggravated burglary conviction. The

sentences for the conspiracy convictions were to be served concurrently with one another but

consecutively to the remaining convictions, which were likewise all consecutive terms,

resulting in a total effective sentence of 65 years in the Department of Correction. Timely

post-trial motions followed.

ANALYSIS

The Defendant appeals, alleging that the trial court committed multiple errors, both

at trial and in sentencing: (1) the trial court erred in failing to charge the lesser-included

offense of attempted especially aggravated kidnapping; (2) the assistant district attorney

committed prosecutorial misconduct during closing argument; (3) the evidence is insufficient

to support his convictions for especially aggravated kidnapping, conspiracy to commit

aggravated robbery, and conspiracy to commit aggravated kidnapping; (4) his dual

convictions for especially aggravated kidnapping and attempted aggravated robbery violate

due process concerns because the restraint of the victim was not beyond that necessary to

complete the robbery; (5) the trial court erred by not merging his two conspiracy convictions

because the offenses were the object of the same agreement; (6) the trial court erred by using

certain out-of-state convictions to enhance his sentencing range; and (7) his sentence was

excessive.

I. Jury Instruction on Attempt

The Defendant contends that the trial court erred by failing to instruct the jury on

attempted especially aggravated kidnapping as a lesser-included offense of especially

aggravated kidnapping. The Defendant acknowledges that he did not request the charge but

asserts that he nonetheless had a constitutional right that the jury be instructed correctly and

completely. Citing to State v. Burns, 6 S.W.3d 453 (Tenn. 1999), the Defendant submits that

plain error review is appropriate because reasonable minds could accept the evidence as

supporting a conviction of the attempt offense. The State responds that the Defendant has

waived review of this issue by failing to request the instruction at trial. The State further

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contends that plain error review is not warranted because the record on appeal, which does

not contain the jury instructions or any findings of fact, does not establish what occurred in

the trial court and because the Defendant failed to demonstrate that waiver of the issue was

not tactical.

As pointed out by the State, the Defendant failed to make a written request for this

jury instruction. “Absent a written request, the failure of a trial judge to instruct the jury on

any lesser included offense may not be presented as a ground for relief either in a motion for

new trial or on appeal.” Tenn. Code Ann. § 40-18-110(c). Similarly, our supreme court has

held that “if a defendant fails to request an instruction on a lesser-included offense in writing

at trial, the issue will be waived for purposes of plenary appellate review and cannot be cited

as error in a motion for new trial or on appeal.” State v. Page, 184 S.W.3d 223, 229 (Tenn.

2006). Therefore, we conclude that the issue regarding the attempted especially aggravated

kidnapping jury instruction is waived because the Defendant failed to file a written request.

However, our supreme court has also made clear that when a jury instruction is

waived for failure to request it in writing, an appellate court may still review the issue for

plain error. Id. at 230. “When necessary to do substantial justice, an appellate court may

consider an error that has affected the substantial rights of an accused at any time, even

though the error was not raised in the motion for a new trial or assigned as error on appeal.”

Tenn. R. App. P. 36(b). In determining whether plain error review is appropriate, the

following factors must be established:

(a) The record . . . clearly establish[es] what occurred in the trial court;

(b) a clear and unequivocal rule of law [has] been breached;

(c) a substantial right of the accused [has] been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). On appeal, the defendant has the burden of

establishing that these five factors are met. State v. Gomez, 239 S.W.3d 733, 737 (Tenn.

2007) (“Gomez II”) (citing State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). The

appellate court need not consider all five factors if any single factor indicates that relief is

not warranted. Smith, 24 S.W.3d at 283.

Addressing the first plain error factor (whether the record clearly establishes what

occurred in the trial court), the Defendant admits that the jury instructions are not included

in the record on appeal, which is generally a prerequisite for plain error review of a lesser-

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included offense issue. Despite this admission, he gives the following explanation, making

the appropriate citations to the trial record, as to why we should grant plain error review:

[The Defendant] did not raise this issue in writing before the jury was

instructed, but he did raise it in his Motion for New Trial pursuant to T.R.A.P.

3. . . . Additionally, the jury instructions were apparently not included in the

record on appeal, and the court reporter did not transcribe the judge’s reading

of the instructions to the jury. However, the trial court’s denial on this ground

for relief in its Order denying the Motion for New Trial . . . acknowledges that

it did not instruct the jury on “Attempt” with respect to Counts Three and Four

(especially aggravated kidnapping).3 Further, the trial court’s reading of the

blank verdict form is included in the record on appeal, showing which lesser-

included offenses were instructed to the jury.

The Defendant is correct that the trial court’s reading of the blank verdict was transcribed

and is included in record on appeal, affirmatively showing which lesser-included offenses

were charged to the jury. Thus, we conclude that the first plain error factor has been met.

See State v. Glyn Dale, No. E2008-01139-CCA-R3-CD, 2010 WL 1241601, at *8 (Tenn.

Crim. App. Mar. 31, 2010), perm. app. denied, (Tenn. Aug. 25, 2010).

We begin our determination of whether a clear and unequivocal rule of law has been

breached by reviewing the standard established in State v. Burns, 6 S.W.3d 453 (Tenn. 1999),

for determining what constitutes a lesser-included offense:

An offense is a lesser-included offense if:

(a) all of its statutory elements are included within the statutory elements of the

offense charged; or

(b) it fails to meet the definition in part (a) only in the respect that it contains

a statutory element or elements establishing

(1) a different mental state indicating a lesser kind of culpability; and/or

(2) a less serious harm or risk of harm to the same person, property or

public interest; or

(c) it consists of

(1) facilitation of the offense charged or of an offense that otherwise

meets the definition of lesser-included offense in part (a) or (b); or

3

The jury found the Defendant guilty in Counts 3 and 4 (which charged respectively use of a deadly weapon

and where the victim suffers serious bodily injury). Attempt was likewise not charged in Count 5 (which

charged to hold the victim as a shield or hostage), but the Defendant was acquitted of this count.

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(2) an attempt to commit the offense charged or an offense that

otherwise meets the definition of lesser-included offense in part (a) or (b); or

(3) solicitation to commit the offense charged or an offense that

otherwise meets the definition of lesser-included offense in part (a) or (b).

Burns, 6 S.W.3d at 466-67. Once a trial court concludes that an offense is a lesser-included

offense, then the court must apply the following two-step analysis to determine if a

lesser-included offense instruction is warranted:

First, the trial court must determine whether any evidence exists that

reasonable minds could accept as to the lesser-included offense. In making

this determination, the trial court must view the evidence liberally in the light

most favorable to the existence of the lesser-included offense without making

any judgments on the credibility of such evidence. Second, the trial court must

determine if the evidence, viewed in this light, is legally sufficient to support

a conviction for the lesser-included offense. This two-step analysis is

practical, can be easily applied by the trial courts, and remains broad enough

to preserve both the State’s and defendant’s rights to consider any

lesser-included offenses fairly raised by the proof.

Id. at 469. Generally, “evidence sufficient to warrant an instruction on the greater offense

also will support an instruction on a lesser offense under part (a) of the Burns test.” State v.

Allen, 69 S.W.3d 181, 188 (Tenn. 2002).

Under part (c) of the Burns test, attempted especially aggravated kidnapping is a

lesser-included offense of especially aggravated kidnapping. However, “part (c) of the Burns

test, . . . applies ‘to situations in which a defendant attempts to commit . . . either the crime

charged or a lesser-included offense, but no proof exists of the completion of the crime.’”

State v. Marcum, 109 S.W.3d 300, 303 (Tenn. 2003) (quoting State v. Ely, 48 S.W.3d 710,

719) (Tenn. 2001)) (emphasis added). In Marcum, the defendant, who was convicted of

rape, appealed the denial of his request for an attempted rape instruction. In affirming the

trial court’s denial, our supreme court reasoned as follows:

The testimony in this case was susceptible of only two interpretations—that

the rape occurred or that it did not. The victim’s testimony that the defendant

forced her to place her mouth “on” his “private part” is evidence that she

engaged in fellatio and, therefore, supports a rape instruction. The defendant

testified that this event never happened and, further, that he was never left

alone with the victim at all. There was no evidence of attempt, and the jury

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found [the victim] a more credible witness. Thus, no instruction on attempt

was warranted.

Id. at 304.

Here, the jury was instructed in Counts 3 and 4 on especially aggravated kidnapping

defined as “false imprisonment . . . [a]ccomplished with a deadly weapon or by display of

any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon

. . . or [w]here the victim suffers serious bodily ” Tenn. Code Ann. § 39-13-305(a)(1) & (4).

“A person commits . . . false imprisonment who knowingly removes or confines another

unlawfully so as to interfere substantially with the other’s liberty.” Tenn. Code Ann. § 39-

13-302(a). Attempted especially aggravated kidnapping, which the Defendant argues should

have been included in the jury instructions, occurs when a person, “acting with the kind of

culpability otherwise required for” especially aggravated kidnapping, does any of the

following:

(1) Intentionally engages in action or causes a result that would constitute an

offense if the circumstances surrounding the conduct were as the person

believes them to be;

(2) Acts with intent to cause a result that is an element of the offense, and

believes the conduct will cause the result without further conduct on the

person’s part; or

(3) Acts with intent to complete a course of action or cause a result that would

constitute the offense, under the circumstances surrounding the conduct as the

person believes them to be, and the conduct constitutes a substantial step

toward the commission of the offense.

Tenn. Code Ann. § 39-12-101(a).

The Defendant provides the following rationale to support his contention that an

attempt instruction was warranted under the facts:

The proof showed that [the Defendant’s] interaction with Mrs. Gilreath lasted

approximately 30 seconds (possibly less). The proof further showed that Mrs.

Gilreath was never restrained beyond [the Defendant’s] pointing of the gun at

her, and his arm briefly around her. She was never tied up, locked up, or

transported beyond her home. She was moved from one side of the kitchen to

just beyond the kitchen door, which was a very short distance. Although the

proof showed that [the Defendant] had a plan to rob Mrs. Gilreath while inside

her home, which depending on how it might have occurred may have in fact

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risen to the level of especially aggravated kidnapping, no such plan ever

occurred.

In its order denying the Defendant’s motion for new trial wherein he raised the issue of

failure to instruct on the lesser-included offense of attempted especially aggravated

kidnapping, the trial court ruled on the issue as follows:

Instruction—attempt to commit especially aggravated kidnapping: the

proof established beyond a reasonable doubt that the [D]efendant did complete

the act of kidnapping. Kidnapping is a continuing offense. If the [D]efendant

had accomplished his desired goal, he may have removed both victims from

their home, but such was not required. All of the proof established that the act

was completed and an attempt was not raised by the evidence.

It appears the “attempt” aspect of the Defendant’s argument, at least in part, focuses

on the supposition that the robbery of the home was not completed, and we note that the jury

did convict of the lesser-included offense of attempted aggravated robbery.4 However, this

argument ignores the fact that the kidnapping was complete regardless of the completion of

any robbery; the two are separate offenses, with separate elements.

The Defendant himself admitted that he placed Mrs. Gilreath in a chokehold, while

pointing a gun to her head. After Mr. Gilreath refused to cooperate, the Defendant forced

Mrs. Gilreath into the kitchen; Mrs. Gilreath pleaded for leniency all the while. The two then

struggled over her Rolex watch, and the Defendant shot her. He then grabbed Mrs. Gilreath

by the hair and pushed her face into the floor, before fleeing. The statutory elements of

especially aggravated kidnapping do not require a finding that Defendant moved the victim

any specific distance or restrained her for any particular length of time in order for the

Defendant’s actions to substantially interfere with her liberty. See State v. Turner, 41 S.W.3d

663, 670 (Tenn. Crim. App. 2000) (stating that especially aggravated kidnapping does not

require the above-listed elements); see also State v. Dixon, 957 S.W.2d 532, 535 (Tenn.

1997). We find no error in the trial court’s finding that the proof established beyond a

reasonable doubt that the Defendant completed the act of kidnapping.

Accordingly, the facts of this case simply do not support an attempt instruction. We

conclude that the trial court’s refusal to give the instruction did not violate a clear and

unequivocal rule of law, therefore, it did not constitute plain error. The Defendant is denied

relief on this issue.

4

We later discuss in this opinion that the robbery charge of the indictment delineated the place of the

robbery to be the jewelry store, not the Gilreaths’ home.

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We also note that, after addressing factor one, the State does not address factors 2 and

3 of Adkisson but instead focuses on the fourth factor in its brief, that the Defendant failed

to establish that he did not waive the issue for tactical reasons, citing to State v. Joshua

Shannon Sides, No. E2006-01356-CCA-R3-CD, 2008 WL 538983, at *3 (Tenn. Crim. App.

Feb. 28, 2008) (refusing to engage in plain error analysis where defendant was unable to

show that his waiver of instructions on lesser-included offense was not tactical), perm. app.

denied, (Tenn. Aug. 25, 2008). Briefly, we point out that here, just as in Sides, despite any

failure to instruct on the lesser-included offense, the invitation for further requests was issued

to counsel for both parties, and the Defendant did not request the lesser-included offense or

any other instructions. See id. For the foregoing reasons, the Defendant is not entitled to

plain error relief.

II. Closing Argument

The Defendant contends that the prosecutor committed prosecutorial misconduct in

her closing argument by expressing her personal opinion and by impermissibly predicting the

consequences of a “not guilty” verdict. The Defendant admits that he did not object to the

closing argument but asserts that plain error review is appropriate. The State responds that

the Defendant has waived the issue because he failed to lodge a contemporaneous objection.

The State further asserts that the Defendant cannot establish the need for plain error treatment

because he failed to make any argument on the subject in his appellate brief, failing to

demonstrate that the alleged misconduct affected a substantial right or that consideration of

the alleged error is necessary to do substantial justice.

Initially, we agree with the State that the Defendant failed to contemporaneously

object to the comments made by the prosecutor during closing argument, and typically, when

a prosecutor’s statement is not the subject of a contemporaneous objection, the issue is

waived. Tenn. R. Crim. P. 33 & 36(a); see also State v. Thornton, 10 S.W.3d 229, 234

(Tenn. Crim. App. 1999); State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997);

State v. Little, 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992). Thus, if this court is to review

the claim of prosecutorial misconduct, we must again do so through the process of “plain

error” review embodied in Rule 36(b). This court will not grant relief on this issue unless

the alleged prosecutorial misconduct rises to the level of “plain error,” affecting a

“substantial right” of the accused. See Adkisson, 899 S.W.2d at 639. The State argues that,

while the Defendant makes a general allegation of plain error, he does so “without making

any argument to establish its existence”: “He has not demonstrated or even argued that the

alleged misconduct affected a substantial right or that consideration of the alleged error is

necessary to do substantial justice.” Because the Defendant does raise plain error in his brief

and supports this issue with some argument, albeit generally without specific delineation to

each Adkisson factor, we decline to conclude, on this basis alone, that the Defendant has

failed to carry his burden of demonstrating plain error.

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Proceeding with a plain error analysis, we note that the closing arguments are

transcribed and included in the appellate record; therefore, the first plain error factor is met.

We begin our determination of whether a clear and unequivocal rule of law has been

breached by re-affirming that trial courts have substantial discretionary authority in

determining the propriety of final argument, and although counsel is generally given wide

latitude, trial judges must restrict any improper commentary. See Coker v. State, 911 S.W.2d

357, 368 (Tenn. Crim. App. 1995). Closing arguments must be temperate, must be based

upon evidence introduced during trial, and must be relevant to the issues at trial. See State

v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978). The State should refrain from argument

designed to inflame or incite the emotions of the jury. See Coker, 911 S.W.2d at 368.

We have previously observed that there are five generally recognized areas of

prosecutorial misconduct related to argument: (1) it is unprofessional conduct for the

prosecutor to intentionally misstate the evidence or mislead the jury as to the inferences it

may draw; (2) it is unprofessional conduct for the prosecutor to express his personal belief

or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant;

(3) the prosecutor should not use arguments calculated to inflame the passions or prejudices

of the jury; (4) the prosecutor should refrain from argument which would divert the jury from

its duty to decide the case on the evidence, by injecting issues broader than the guilt or

innocence of the accused under the controlling law or by making predictions of the

consequences of the jury’s verdict; and (5) it is unprofessional conduct for a prosecutor to

intentionally refer to or argue facts outside the record unless the facts are matters of common

public knowledge. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003). When a

defendant makes allegations of prosecutorial misconduct, on appeal, this court reviews the

record to see “whether such conduct could have affected the verdict to the prejudice of the

defendant.” State v. Smith, 803 S.W.2d 709, 710 (Tenn. Crim. App. 1990). In other words,

it will be reversible error if the improper comments of the prosecutor were so improper or

the argument so inflammatory that it affected the verdict. See State v. Reid, 164 S.W.3d 286,

344 (Tenn. 2005); Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965). The factors to

aid us in making this determination include:

(1) the conduct complained of viewed in context and in light of the facts and

circumstances of the case;

(2) the curative measures undertaken by the [c]ourt and the prosecution;

(3) the intent of the prosecutor in making the improper statement;

(4) the cumulative effect of the improper conduct and any other errors in the

record; and

(5) the relative strength or weakness of the case.

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State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d 340,

344 (Tenn. Crim. App. 1976)); see also Goltz, 111 S.W.3d at 5-6.

The Defendant did raise the issue in his motion for new trial. In denying the motion

for new trial, the trial court ruled, “Prosecutor’s closing argument: this court finds nothing

inappropriate with the argument of the [S]tate as it was a fair comment on the evidence

presented.” On appeal, the State also contends that the Defendant has failed to demonstrate

any prosecutorial misconduct because the prosecutor’s statements were innocuous.

Regarding his first assignment of misconduct—that the prosecutor repeatedly used the

phrases “I think” and “I don’t think” with respect to the credibility of the witnesses and the

issue of guilt, thereby impermissibly injecting her personal opinions—the Defendant does

not provide in his brief what statements these phrases preface. The Defendant does provide

page citations, and we glean from our review of those pages cited that, prior to the first

instance the phrase was used, the prosecutor noted the number of exhibits and said that the

pace of the presentation was boring but necessary. She then said, “I think when you all saw

the evidence, you realized that.” We agree with the State that the comment in no way

expressed a belief in the truth or falsity of any testimony or evidence or in the guilt of the

Defendant.

The next time the phrase was used, the prosecutor said that she did “not think” that

several facts were “at issue”—specifically that there was a conspiracy to commit aggravated

robbery, that a burglary was committed, and that the Defendant attempted to commit an

aggravated robbery, taking a substantial step toward commission of the offense. She further

stated that she thought “the evidence weighed out pretty much like” she said it would during

opening argument, which statement she followed with a recitation of the facts in the light

most favorable to the State. The State correctly notes on appeal that the Defendant testified

to these facts and, therefore, the prosecutor aptly stated that they were not “at issue.” Not

only did the Defendant testify to these facts, but defense counsel admitted the Defendant’s

guilt in Counts 1 (conspiracy to commit aggravated robbery), 9 (attempted aggravated

robbery5 ), and 10 (aggravated burglary) during closing argument. Even if these statements

amount to misconduct, they were harmless as the Defendant’s guilt on those counts was not

disputed.

Later toward the conclusion of her initial closing, the prosecutor, addressing the

attempted first degree murder charge, stating that she thought the Defendant “planned to kill”

5

In closing argument, defense counsel did take issue with whether the attempted aggravated robbery was

of the jewelry store or of the Gilreaths’ home. This matter is addressed later in this opinion.

-13-

when he entered the Gilreaths’ home. The Defendant was acquitted of the first degree

murder charge. Thus, if the statement amounts to misconduct, the error was harmless.

Next, the Defendant argues error based upon the fourth area of misconduct outlined

in Goltz—that the prosecutor diverted the jury from its duty to decide the case on the

evidence and predicted the consequences of the jury’s verdict. On this basis, the Defendant

takes issue with the following actions of the prosecutor during closing argument: she told the

jurors to “listen to [their] heart” when considering the evidence 6 ; she had the jurors twice

pause for 45 seconds—the approximate length of the encounter between the Defendant and

Mrs. Gilreath—instructing during the first pause to think about how Mrs. Gilreath felt during

that time period and during the second pause to imagine what decisions they could make in

that period of time; and she essentially told the jurors to consider how a verdict of not guilty

would affect Mrs. Gilreath. We agree with the State that these first three instances were

innocuous.

As for the allegation that the prosecutor told the jurors to speculate on how the

consequences of the verdict would affect Mrs. Gilreath, the Defendant refers to the following

comment made by the prosecutor during rebuttal argument: “You look at Elke Gilreath and

you tell her that forty-five seconds of pure terror that this man put her through -- you tell her

that that is not kidnapping, that he didn’t substantially interfere with her liberty?” Although

there may be no commentary on the consequences of an acquittal, the prosecution may point

out the gravity of a particular crime and emphasize the importance of law enforcement. See

State v. Dakin, 614 S.W.2d 812, 825 (Tenn. Crim. App. 1980); Bowling v. State, 458 S.W.2d

639, 641 (Tenn. Crim. App. 1970). The State submits that this statement was permissible

because the prosecutor offered no speculation on the results of the jury’s verdict in any way,

and the Defendant has failed to explain how the comments instructed the jury to imagine the

consequences of the verdict. We agree with the State that this comment did not actually ask

the jury to focus on the consequences of an acquittal, but rather focused on the fact, that

although short, 45 seconds is a sufficient amount of time to support a conviction for

kidnapping.

Under these circumstances, the Defendant has failed to establish that prosecutorial

misconduct occurred. Therefore, plain error relief is not warranted, and we need not proceed

with an examination of the remaining Adkisson factors. See Smith, 24 S.W.3d at 283 (the

appellate court need not consider all five factors if any single factor indicates that relief is

not warranted).

6

In bringing the initial argument to a close, the prosecutor surmised, “If you listen to your heart, and this

man is guilty. It’s easy, there is no doubt.”

-14-

III. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to sustain his convictions

of especially aggravated kidnapping and conspiracy (to commit aggravated robbery and to

commit aggravated kidnapping). Relative to the especially aggravated kidnapping

convictions, the Defendant asserts that “the brief time and slight physical distance pertaining

to the confinement or removal of Mrs. Gilreath” did not support his conviction for the

offense. As for the conspiracy convictions, the Defendant argues that the evidence was

insufficient because most of the evidence was provided by the uncorroborated testimony of

Swim, his co-defendant and accomplice. The State responds that the evidence was sufficient

to sustain the Defendant’s three convictions.

An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence 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 (1979). This

court does not reweigh the evidence; rather, it presumes 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). Questions regarding witness credibility, conflicts in

testimony, and the weight and value to be given to evidence were resolved by the jury. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). A guilty verdict “removes the

presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the

defendant has the burden of illustrating why the evidence is insufficient to support the jury's

verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Our supreme court recently clarified that circumstantial evidence is as probative as

direct evidence. State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the

supreme court rejected the previous standard which “required the State to prove facts and

circumstances so strong and cogent as to exclude every other reasonable hypothesis save the

guilt of the defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v.

Crawford, 470 S.W.2d 610, 612 (Tenn. 1971)) (quotation marks omitted). Instead, “direct

and circumstantial evidence should be treated the same when weighing the sufficiency of

such evidence.” Id. at 381. The reason for this is because with both direct and circumstantial

evidence, “a jury is asked to weigh the chances that the evidence correctly points to guilt

against the possibility of inaccuracy or ambiguous inference . . . [and i]f the jury is convinced

beyond a reasonable doubt, we can require no more.” Id. at 380 (quoting Holland v. United

States, 348 U.S. 121, 140 (1954)). To that end, the duty of this court “on appeal of a

conviction is not to contemplate all plausible inferences in the Defendant’s favor, but to draw

all reasonable inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d

60, 67 (Tenn. 2011).

-15-

A. Especially Aggravated Kinapping Convictions

The Defendant contends that the evidence is insufficient to support his two

convictions for especially aggravated kinapping, arguing that, at most, “the evidence may

have supported an attempt to commit that crime.” Specifically, he argues that due to “the

brief time and slight physical distance pertaining to the confinement or removal of Mrs.

Gilreath[,] . . . there was no evidence at trial that Mrs. Gilreath’s liberty was interfered with

‘substantially’ by the confinement or removal.”

As we have previously outlined in Section I of this opinion, the Defendant was

convicted of especially aggravated kidnapping as charged in Counts 3 and 4, defined

respectively as “false imprisonment . . . [a]ccomplished with a deadly weapon or by display

of any article used or fashioned to lead the victim to reasonably believe it to be a deadly

weapon . . . or [w]here the victim suffers serious bodily ” Tenn. Code Ann. § 39-13-

305(a)(1) & (4). “A person commits . . . false imprisonment who knowingly removes or

confines another unlawfully so as to interfere substantially with the other’s liberty.” Tenn.

Code Ann. § 39-13-302(a). “‘Serious bodily injury’ means bodily injury which involves: (A)

A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D)

Protracted or obvious disfigurement; or (E) Protracted loss or substantial impairment of a

function of a bodily member, organ or mental faculty[.]” Tenn. Code Ann. § 39-11-

106(a)(34). “Deadly weapon,” as applicable in this case, means “[a] firearm or anything

manifestly designed, made or adapted for the purpose of inflicting death or serious bodily

injury[.]” Tenn. Code Ann. § 39-11-106(a)(5)(A).

Our review of the record reveals that the evidence was sufficient for the jury to find

the Defendant guilty, beyond a reasonable doubt, of especially aggravated kidnapping. Both

Mrs. Gilreath and the Defendant testified that the Defendant placed Mrs. Gilreath in a

chokehold, while pointing a gun to her head. When Mr. Gilreath entered the kitchen and saw

what was happening in the laundry room, he refused to submit to the Defendant’s demands.

Mr. Gilreath left to retrieve his weapon from his car, and a struggle ensued between the

Defendant and Mrs. Gilreath. The Defendant forced Mrs. Gilreath into the kitchen, and as

Mrs. Gilreath was bringing her arm down, the Defendant put the gun against it and fired; the

bullet went through her arm and into her chest. Her injuries were life-threatening and

resulted in permanent impairment to her hand. As stated above, the statutory elements of

especially aggravated kidnapping do not require a finding that Defendant moved the victim

any specific distance or restrained her for any particular length of time in order for the

Defendant’s actions to substantially interfere with her liberty. See Turner, 41 S.W.3d at 670;

see also Dixon, 957 S.W.2d at 535. The facts are sufficient to show beyond a reasonable

doubt that the Defendant knowingly confined the victim by use of a deadly weapon and that

she suffered serious bodily injury as a result. Additionally, we have already determined that

-16-

the Defendant’s attempt argument is without merit because the proof established that the

kidnapping was completed.

B. Conspiracy Convictions

The Defendant contends that his convictions for conspiracy to commit aggravated

robbery and conspiracy to commit aggravated kidnapping (Counts 1 and 2) should be

dismissed because the evidence was legally insufficient to support the jury’s finding of guilt.

Conspiracy “is committed if two (2) or more people, each having the culpable mental state

required for the offense that is the object of the conspiracy, and each acting for the purpose

of promoting or facilitating commission of an offense, agree that one (1) or more of them

will engage in conduct that constitutes the offense.” Tenn. Code Ann. § 39-12-103(a).

Specifically, the Defendant submits that these conspiracy convictions are based upon

the uncorroborated testimony of his accomplice, Kyle Swim. It is well-settled that in

Tennessee, “a conviction may not be based solely upon the uncorroborated testimony of an

accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). This “very salutary rule” is

designed to prevent the “obvious dangers” of allowing a defendant to be convicted solely on

the basis of an accomplice’s testimony. Sherrill v. State, 321 S.W.2d 811, 814 (Tenn. 1959).

However, Tennessee law requires only a modicum of evidence in order to sufficiently

corroborate the testimony of an accomplice. State v. Copeland, 677 S.W.2d 471, 475 (Tenn.

Crim. App. 1984).

Our supreme court has described what is required to establish sufficient corroboration

as follows:

[T]here must be some fact testified to, entirely independent of the

accomplice’s testimony, which, taken by itself, leads to the inference, not only

that a crime has been committed, but also that the defendant is implicated in

it; and this independent corroborative testimony must also include some fact

establishing the defendant’s identity. This corroborative evidence may be

direct or entirely circumstantial, and it need not be adequate, in and of itself,

to support a conviction; it is sufficient to meet the requirements of the rule if

it fairly and legitimately tends to connect the defendant with the commission

of the crime charged. It is not necessary that the corroboration extend to every

part of the accomplice’s evidence.

Shaw, 37 S.W.3d at 903 (quoting State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). The

corroborative evidence need not be “overwhelming.” Id. In fact, “[o]nly slight

circumstances are required to corroborate an accomplice’s testimony.” State v. Griffis, 964

S.W.2d 577, 589 (Tenn. Crim. App. 1997). However, “the corroboration must include some

-17-

fact establishing the identity of the defendant as a criminal actor.” State v. Boxley, 76

S.W.3d 381, 387 (Tenn. Crim. App. 2001) (citing Shaw, 37 S.W.3d at 903). Whether there

is sufficient corroboration is a determination for the jury. Shaw, 37 S.W.3d at 903.

The Defendant argues that Swim’s testimony “was the only piece of evidence that

mentioned a sustained conspiracy or plan to rob the Golden Eagle Jewelry Store[,]” noting

that the Defendant testified that they abandoned the plan to rob the jewelry store, deciding

to only to rob the Gilreaths in their home. However, as previously outlined,

[t]he quantum of evidence necessary to corroborate an accomplice’s testimony

is not required to be sufficient enough to support the accused’s conviction

independent of the accomplices testimony nor is it required to extend to every

portion of the accomplice’s testimony. . . . To the contrary, only slight

circumstances are required to corroborate an accomplice’s testimony.”

Griffis, 964 S.W.2d at 588-89 (citations omitted) (emphasis added).

In a light most favorable to the State, the evidence demonstrated that the Defendant

and Swim decided to rob the Golden Eagle jewelry store by breaking into the Gilreaths’

home, holding Mrs. Gilreath hostage, and forcing Mr. Gilreath to take them to the jewelry

store to retrieve the valuables therein. To this end, the Defendant and Swim made five or six

trips to Clarksville and scouted the store and the Gilreaths’ home. On November 1, 2007,

the Defendant entered the Gilreaths’ home to execute the plan to rob the jewelry store,

despite the fact that the plan later fell apart.

Swim’s testimony was corroborated by a Super 8 motel receipt from one of their

overnight stays in Clarksville and by text messages between the Defendant and Swim on the

day in question. In one text message, the Defendant wrote, “Watch 4 pops then off 2 shop

. . . .”7 In another message, the Defendant spoke of the need to act quickly once Mr. Gilreath

returned home, not wanting to risk Mr. Gilreath “trying to you know . . . .” The Defendant

wrote in another message that he planned to “snatch her ass up . . . get whts in the house . .

. then wait 4” Mr. Gilreath. Based upon consideration of the proof in the record before us,

we conclude that the evidence was sufficient to corroborate the testimony of the accomplice

Kyle Swim.

7

The Defendant in his reply brief argues that the State is asking this court “to make an unfounded

assumption about a text message.” He points to his own testimony where he claimed that “‘shop’ meant the

verb form of the word; that he and Swim would essentially ‘shop’ for a truck to purchase and then head out

to Las Vegas.” The precise meaning of this text was a determination for the jury; they were free to disregard

the Defendant’s testimony.

-18-

The Defendant’s argument, citing to numerous inconsistencies in Swim’s testimony,

is essentially that Swim’s testimony was unreliable; however, the jury choose to accredit this

testimony, as was its prerogative. The evidence is sufficient to support the Defendant’s

conspiracy convictions, and this issue is without merit.

IV. Dixon analysis

The Defendant, citing to Dixon, 957 S.W.2d 532, contends that his dual convictions

for especially aggravated kidnapping and attempted aggravated robbery violate due process

concerns because the confinement of Mrs. Gilreath was not beyond that necessary to commit

the attempted aggravated robbery of the Gilreaths’ home. The Defendant extrapolates further

that he did not confine Mrs. Gilreath in an attempt to prevent her from summoning for help

or to lessen his risk of detection and that his confinement of her did not create a significant

danger or increase her risk of harm. The State asserts that the Defendant’s argument is

misplaced because the Defendant was convicted of the attempted aggravated robbery of the

jewelry store, not of the Gilreaths’ home. The State also submits that the confinement of

Mrs. Gilreath was beyond that necessary to accomplish the robbery of the jewelry store,

created a significant danger to Mrs. Gilreath, and was intended to secure Mr. Gilreath’s

cooperation.

In State v. Anthony, our supreme court held that dual convictions for armed robbery

and aggravated kidnapping violate the due process guarantees of article I, section 8 of the

Tennessee Constitution when the confinement, movement, or detention of the kidnapping is

“essentially incidental” to the robbery. 817 S.W.2d 299, 306 (Tenn. 1991). Therefore, in

order for dual convictions to stand, the trial court must determine whether the confinement,

movement, or detention was significant enough, in and of itself, to warrant independent

prosecution. Id. As guidance, our supreme court noted that “one method of resolving this

question is to ask whether the defendant’s conduct ‘substantially increased [the] risk of harm

over and above that necessarily present in the crime . . . itself.’” Id. (quoting State v. Rollins,

605 S.W.2d 828, 830 (Tenn. Crim. App. 1980)). The court also admonished courts “to apply

the [kidnapping] statute narrowly, so as to make its reach fundamentally fair and to protect

the due process rights of every citizen.” Id.

Six years later, in Dixon, the court refined Anthony’s applicability to those cases to

“prevent the injustice which would occur if a defendant could be convicted of kidnapping

where the only restraint utilized was that necessary to complete the act of rape or robbery.”

957 S.W.2d at 534. Likewise, a separate conviction for kidnapping may stand for “any

restraint in addition to that which is necessary to consummate rape or robbery.” Id. at 535.

The court went further to establish a two-prong test for analyzing when a separate conviction

for kidnapping violates due process. First, the trial court must determine “whether the

movement or confinement was beyond that necessary” to commit the accompanying felony.

-19-

Id. If so, the trial court must then ascertain “whether the additional movement or

confinement: (1) prevented the victim from summoning help; (2) lessened the defendant’s

risk of detection; or (3) created a significant danger or increased the victim’s risk of harm.”

Id.

More recently, in State v. Richardson, 251 S.W.3d 438 (Tenn. 2008), our supreme

court clarified the process for determining whether dual convictions for kidnapping and an

accompanying offense violate principles of due process. In Richardson, the court noted that

the two-part test pronounced in Dixon “fully replaces” the “essentially incidental” analysis

that was espoused in Anthony. 251 S.W.3d at 443. The court made clear that the Anthony

analysis “should not be used in conjunction with the Dixon two-part test” and that the Dixon

test is the exclusive test for “all future inquiries.” Id.

The State argues that the jury convicted the Defendant of the attempted aggravated

robbery of the Golden Eagle jewelry store, not, as alleged by the Defendant, of attempting

to rob the Gilreaths of personal property at their home. Therefore, the State contends that the

Defendant’s dual convictions do not raise due process concerns.

The record reflects that the jury convicted the Defendant of attempted aggravated

robbery “as charged in Count Nine.” Count Nine provides, in pertinent part, as follows:

[The Defendant] unlawfully, feloniously and knowingly did attempt to commit

the offense of Aggravated Robbery, as defined in TCA 39-13-402, of John and

Elke Gilreath, d/b/a Golden Eagle Jewelry, and the Defendants’ conduct did

constitute a substantial step toward the commission of said Aggravated

Robbery, to wit: Robert Fusco did enter the home of John and Elke Gilreath

and falsely imprison Elke Gilreath and attempted to falsely imprison John

Gilreath while Kyle Swim remained outside of the home and acted as a

lookout, in violation of TCA 39-12-101 . . . .

In fact, the Defendant himself even acknowledges this fact in his brief. In addressing the

sufficiency of the conspiracy counts, the Defendant notes that Count 1 alleges that the

Defendant and Swim conspired to rob the Gilreaths “d/b/a Golden Eagle Jewelry” but alleges

there was no corroborating proof supporting Swim’s testimony. He later changes positions

in his reply brief: “The State is asking this court to take a presumptive leap by concluding

that the addition of the words ‘d/b/a’ necessarily means that the jury found beyond a

reasonable doubt that the store itself was the only intended target.” Alternatively, the

Defendant submits that, even if the jury did find him guilty of the attempted robbery of the

jewelry store, this necessarily includes a robbery of the Gilreaths at their home. We agree

with the State that the Defendant was convicted of the attempted aggravated robbery of the

-20-

jewelry store, not of the attempted aggravated robbery of the Gilreaths’ home. The

Defendant could possibly have been indicted for a separate count involving an attempted

aggravated robbery of the Gilreaths at their home, but we doubt this was what he desired.

Thus, the Defendant’s argument that the especially aggravated kidnapping of Mrs.

Gilreath was not beyond that necessary to commit the attempted aggravated robbery of the

Gilreaths’ home is without merit. Both of the cases cited by the Defendant in support of his

argument involve kidnappings that took place at the site of the robbery and, therefore, are

inapplicable here. See State v. Jason Lee White, No. M2009-00941-CCA-R3-CD, 2010 WL

1930951 (Tenn. Crim. App. May 12, 2010), perm. app. granted, (Tenn. Oct. 12, 2010); State

v. Raymond Griffin, No. W 2001-01332-CCA-R3-CD, 2002 WL 1482689 (Tenn. Crim. App.

Mar. 15, 2002), perm. app. denied, (Tenn. July 15, 2002).

Applying the Dixon standards to the facts of this case (which, as the Defendant

correctly notes, apply regardless of the target of the robbery), the record reflects that when

Mrs. Gilreath approached the laundry room of her home, the Defendant immediately jumped

out, brandishing a weapon and threatening to shoot. The Defendant then placed Mrs.

Gilreath in a chokehold and pointed the gun at her head. After Mr. Gilreath failed to comply

with the Defendant’s demands, a struggle between the Defendant and Mrs. Gilreath ensued.

Ultimately, the Defendant shot Mrs. Gilreath in the arm and the bullet went into her chest,

before he fled. We conclude that this additional movement and confinement exceeded what

was necessary to accomplish the attempted aggravated robbery of the jewelry store.

Turning to the second prong of the Dixon analysis, the evidence shows that the victim

was able to summon help from her husband who had gone outside to get the mail, despite the

fact that Mr. Gilreath then again left the residence to retrieve his handgun from the car.

However, the evidence also shows that the Defendant intended to secure Mrs. Gilreath in an

effort to secure Mr. Gilreath’s cooperation and lessen the Defendant’s risk of detection to

outsiders. Furthermore, the confinement created significant danger to Mrs. Gilreath, who

suffered life-threatening injuries, which resulted in permanent impairment to her hand.

Therefore, we conclude that the additional movement and confinement both “lessened the

[D]efendant’s risk of detection” and “increased the victim’s risk of harm.” Accordingly, dual

convictions for especially aggravated kidnapping and attempted aggravated robbery do not

violate due process under these facts and circumstances of this case. The Defendant is not

entitled to relief on this issue.

V. Merger of Conspiracy Convictions

Next, the Defendant argues that the trial court erred when it failed to merge the

conspiracy convictions under Counts 1 (to commit aggravated robbery) and 2 (to commit

aggravated kidnapping) and sentenced him separately under each count. Specifically, he

-21-

asserts that his two conspiracy convictions should have merged because the facts sustaining

both convictions arose out of the same plan devised by he and Swim. The State concedes

error on this issue.

The Defendant raised the issue at sentencing. In ruling on whether the Defendant

could be sentenced separately for both convictions, the trial court determined as follows:

I do believe those are separate offenses, based on the peculiar facts of this

particular case in that there is actually -- could well have been two different

locations for robbery. Conspiracy to commit aggravated kidnapping would not

have necessarily have been necessary in the conspiracy to commit the

aggravated robbery at home, so I am go to -- I believe they are separate.

Contrary to the ruling of the trial court, the issue under Tennessee Code Annotated

section 39-12-103(c) is whether the multiple offenses were part of the same agreement, not

whether the offenses occurred, or could have occurred, at different locations. Tennessee

Code Annotated section 39-12-103 (c) provides as follows: “If a person conspires to commit

a number of offenses, the person is guilty of only one (1) conspiracy, so long as the multiple

offenses are the object of the same agreement or continuous conspiratorial relationship.”

Moreover, in addition to the statutory error, the Defendant has inferred a violation of his

constitutional rights to due process and to be free from double jeopardy in prosecution. See

State v. Ronallen Hardy, No. M2008-00381-CCA-R3-CD, 2009 WL 2733821, at *10 (Tenn.

Crim. App. Aug. 31, 2009).

In his testimony establishing the conspiracy, Swim discussed a single plan, and

although the plan involved multiple criminal acts at two locations, it was nonetheless part of

a single agreement between the two men. We conclude that the trial court erred when it

refused to merge the conspiracy convictions. See id. The case is remanded to the trial court

with instructions for the judgments to reflect merger of the Defendant’s conspiracy

convictions.

VI. Use of Out-of-State Convictions in Range-Determination

The Defendant contends that the trial court erred in considering his out-of-state

convictions for purposes of determining his status as a Range II, multiple offender. First, he

argues that the Florida convictions do not affirmatively show that he was represented by

counsel. Next, he submits that he was not transferred in Florida from juvenile to adult court

under a transfer statute that was similar to Tennessee’s transfer statute as required by

Tennessee Code Annotated section 40-35-106(b)(3)(A). He requests that we reduce his

sentence “to an appropriate length as a Range-I offender[.]”

-22-

The trial court may sentence a defendant as a Range II, multiple offender when it finds

that the defendant has received “[a] minimum of two (2) but not more than four (4) prior

felony convictions within the conviction class, a higher class, or within the next two (2)

lower felony classes”; or alternatively, “[o]ne (1) Class A prior felony conviction if the

defendant’s conviction offense is a Class A or B felony.” Tenn. Code Ann. § 40-35-

106(a)(1) & (2). For Range II purposes, a prior conviction includes

convictions under the laws of any other state, government or country that, if

committed in this state, would have constituted an offense cognizable by the

laws of this state. In the event that a felony from a jurisdiction other than

Tennessee is not a named felony in this state, the elements of the offense shall

be used by the Tennessee court to determine what classification the offense is

given.

Tenn. Code Ann. § 40-35-106(b)(5). In order to label a defendant as a multiple offender,

the trial court has to determine beyond a reasonable doubt that the defendant has the requisite

prior felonies. Tenn. Code Ann. § 40-35-106(c).

Following his jury trial, the Defendant was convicted of especially aggravated

kidnapping, a Class A felony, and multiple Class C felonies—conspiracy to commit

aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated

robbery, and aggravated burglary. The trial court utilized the following Florida convictions

in its range-determination analysis: two “Burglary of a Dwelling” convictions (Case

Numbers 98-0619 and 98-0704), determined to be akin to aggravated burglary, a Class C

felony, in Tennessee; and one conviction for “Burglary of a Conveyance” (Case Number 98-

0621) considered analogous to burglary of a motor vehicle in Tennessee, a Class E felony.8

Due to the Class E felony denomination of burglary of a motor vehicle, only the two

aforementioned convictions for burglary of a dwelling formed the basis to enhance the

Defendant’s range on the Class A felony sentence. Moreover, absent the two burglary of a

dwelling convictions, the Defendant would be a Range I, standard offender for all of his

convicted offenses, including the Class C felonies—because otherwise there would only be

one Class E felony applicable for range purposes. We also note that the Defendant was a

juvenile at the time he committed the burglary of a dwelling offenses in Florida, but his

convictions followed his transfer to adult criminal court; he was an adult at the time of the

offense date in the burglary of a conveyance conviction.

8

The Defendant does not take issue with the finding that these Florida convictions would likewise be felony

convictions in Tennessee.

-23-

A. Representation of Counsel

Citing to Burgett v. Texas, 389 U.S. 109 (1967), and State v. Tansil, 72 S.W.3d 665

(Tenn. Crim. App. 2001), the Defendant argues that the trial court erred by using his prior

Florida convictions to enhance his range without an affirmative showing that the Defendant

was represented by counsel at the time of these convictions. Initially, the State responds that

the Defendant has waived review of this issue by failing to raise the issue at the sentencing

hearing.9 Turning to the merits of the issue, the State contends that the Defendant’s argument

is misplaced because the line of cases he relies upon, namely State v. O’Brien, 666 S.W.2d

484 (Tenn. Crim. App. 1984), and its progeny, concern the improper use of uncounseled

misdemeanor driving under the influence (DUI) convictions to convert a misdemeanor DUI

to a felony, i.e, the enhancement of a sentence of the predicate offense because of the

existence of prior convictions for the same offense. Thus, according to the State, O’Brien

is inapplicable in range-determination and should be limited to its facts.

Replying to the State’s retort, the Defendant concedes that he did not raise this issue

at the trial court level, but he argues that “the implications of this error are substantial, and

accordingly, . . . asks this [c]ourt nonetheless conduct an appropriate review of this issue.”

Moreover, the Defendant asserts that regardless of the fact that the cases to which he cites

deal with DUI convictions, the principle should be applicable to sentencing, specifically

within the context of range-determination.

The question posed by the Defendant is controlled by Baldasar v. Illinois, 446 U.S.

222 (1980), and Burgett, 389 U.S. 109, which hold that prior convictions may not be used

to enhance punishment upon a subsequent conviction unless the prosecution affirmatively

established that the defendant was represented by counsel or waived his right to counsel at

the time of the prior convictions. In Baldasar, the United States Supreme Court opined that

an uncounseled misdemeanor conviction could not be used to enhance a subsequent

misdemeanor conviction by converting the subsequent conviction into a felony. In that case,

the record affirmatively showed that the defendant was not represented by counsel and did

not waive counsel at the time of the prior misdemeanor conviction. However, in Burgett, the

Court stated that a judgment which does not show on its face that the defendant was

represented by counsel or waived his right to counsel is presumptively void for purposes of

the enhancement of punishment upon a subsequent conviction. See also Tansil, 72 S.W.3d

at 667 (citing Burgett, 389 U.S. at 114-15, and holding that “written waiver of the right to

counsel is necessary for the facial validity of the judgment because the United States

Supreme Court has held that in the context of using a prior conviction against a defendant

9

Originally, the Defendant also argued that these convictions could not be used for enhancement purposes.

In his reply brief, he concedes that this argument was in error. See State v. Massey, 757 S.W.2d 350, 352

(Tenn. Crim. App. 1988).

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to support guilt or enhanced punishment for another offense, a record of a conviction that

does not show either the existence of counsel or the waiver of counsel is presumptively

void”). It follows that where the record is silent as to whether the defendant was represented

by counsel or waived his right to counsel at the time of the prior convictions, the prosecution

must affirmatively establish that the defendant’s prior convictions were counseled or not

counseled by virtue of waiver in order to rely upon the prior convictions to enhance

punishment for a second or subsequent offense. Tenn. Op. Att’y Gen. No. 84-161, 1984 WL

186253, at *2 (May 10, 1984).

This reasoning was adopted by this court in State v. O’Brien, which involved proof

of prior DUI convictions to support a conviction for fourth offense DUI. Although

stipulating that he had three prior DUI convictions, O’Brien challenged their use to enhance

his punishment because the State did not prove that he was represented by counsel or waived

the right to counsel in those prior cases. O’Brien, 666 S.W.2d at 485. This court agreed and

reversed the defendant’s conviction, relying upon Baldasar and Burgett, in determining that

the prosecution had the affirmative burden of establishing the validity of the prior

convictions in order to rely upon the prior convictions to enhance punishment in a subsequent

prosecution. The court held that under Baldasar, “an uncounselled misdemeanor conviction

could not be used to enhance a subsequent misdemeanor conviction by converting the

subsequent offense into a felony” or by otherwise enhancing the sentence of the predicate

offense because of the existence of prior convictions for the same offense. O’Brien, 666

S.W.2d at 485.

In State v. Massey, this court cautioned “that the principle recognized and applied in

O’Brien should not be applied wholesale to the sentencing situation.” 757 S.W.2d 350, 352

(Tenn. Crim. App. 1988). The Massey Court held that for purposes of determining the

appropriate length of the sentence, the trial court was not limited to consideration of prior

convictions in cases in which it affirmatively appeared that the defendant was represented

by counsel, but could also consider prior incidents of “criminal behavior” that bore upon the

sentencing determination. Id. Under the issue as presented by the Defendant, this appears

to be a case of first impression in Tennessee—whether the rationale of Baldasar, Burgett, and

O’Brien are applicable to convictions used for range-determination purposes which are silent

on the issue of whether the Defendant was represented by counsel.

Initially, we agree with the State that the Defendant has waived consideration of the

issue by failing to contemporaneously object to these convictions on this basis at the

sentencing hearing. See State v. Pierre Jackson, No. W2006-02127-CCA-R3-CD, 2008 WL

2053652, at *5 (Tenn. Crim. App. May 12, 2008), perm. app. denied, (Tenn. Dec. 8, 2008).

For the first time on appeal, the Defendant argues that his prior convictions should not have

been used to determine his range because the State did not affirmatively show that he was

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represented by counsel or waived his right to counsel in his Florida convictions. In reaching

its conclusion of waiver, the Jackson Court relied on the holding in State v. Albert Evans,

No. W2005-00161-CCA-R3-CD, 2006 WL 1381585 (Tenn. Crim. App. May 17, 2006),

perm. app. denied, (Tenn. Oct. 16, 2006):

wherein the defendant was convicted of first degree premeditated murder and

sentenced to life in prison without parole on the basis of the jury’s finding of

three aggravating circumstances, including that the defendant was previously

convicted of a felony whose statutory elements involved the use of violence

to the person. 2006 WL 1381585, at *14. He argued on appeal that no

competent evidence supported the application of the violent felony aggravator

because the State erroneously introduced a negotiated plea agreement form,

rather than a copy of the judgment, to prove the prior conviction. This court

held that the defendant waived the issue for appellate review by failing to

contemporaneously object to the introduction of the document or deny the

existence of the prior conviction. Id. at *15.

Jackson, 2008 WL 2053652, at *5. Similarly, we conclude that the Defendant in this case

waived plenary review of this assignment of error by not objecting contemporaneously to the

introduction of these convictions at the sentencing hearing and by not denying the existence

of these prior convictions. Id.

We feel further constrained to note that the Defendant received the State’s notice to

seek enhanced punishment and did not raise any objection to any of the convictions listed

therein. Tennessee Code Annotated section 40-35-202(a) provides guidance for the State in

preparing a notice to seek enhanced punishment:

If the district attorney general believes that a defendant should be

sentenced as a multiple, persistent or career offender, the district attorney

general shall file a statement thereof with the court and defense counsel not

less than ten (10) days before trial or acceptance of a guilty plea; provided, that

the notice may be waived by the defendant in writing with the consent of the

district attorney general and the court accepting the plea. The statement . . .

must set forth the nature of the prior felony convictions, the dates of the

convictions and the identity of the courts of the convictions. The original or

certified copy of the court record of any prior felony conviction, bearing the

same name as that by which the defendant is charged in the primary offense,

is prima facie evidence that the defendant named therein is the same as the

defendant before the court, and is prima facie evidence of the facts set out

therein.

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In other words, the statute requires at a minimum that the State file “(1) written notice, (2)

clearly expressing the State’s intention to seek sentencing outside of the standard offender

range, (3) setting forth the nature of the prior felony conviction, the dates of the convictions,

and the identity of the courts of the convictions.” State v. Livingston, 197 S.W.3d 710,

713-14 (Tenn. 2006). The purpose of the statutory notice requirement is to provide a

defendant with fair notice that he or she is subject to greater than the standard sentencing

range, to facilitate plea agreements, to enable the defendant to make an informed plea, and

to aid trial strategy. State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990); State v. Taylor, 63

S.W.3d 400, 412 (Tenn. Crim. App. 2001). Our supreme court has held that “perfect” notice

is not required, but fair notice must be provided. Livingston, 197 S.W.3d at 713. This means

that “when the State has substantially complied with Section 40-35-202(a), an accused has

a duty to inquire about an ambiguous or incomplete notice and must show prejudice to obtain

relief.” Taylor, 63 S .W.3d at 412; see also State v. Cooper, 321 S.W.3d 501, 507 (Tenn.

2010); State v. Richard Douglas Lowery, No. 03C01-9604-CC-00146, 1997 WL 260070, at

*5 (Tenn. Crim. App. May 19, 1997), perm. app. denied, (Tenn. Mar. 16, 1998).

In this case, the State filed a notice of intent to seek enhanced punishment pursuant

to section 40-35-202 on September 16, 2009, five days before the Defendant’s trial began on

September 21, 2009.10 The State listed the following convictions: 1. Grand Theft Third

Degree, Case Number 99-363CFAWS, Circuit Court, 7th Judicial Circuit, Volusia County,

Florida, Conviction Date 05/19/99; 2. Burglary of a Structure or Conveyance, Case Number

2004-00399CFAWS, Circuit Court, 7th Judicial Circuit, Volusia County, Florida, Conviction

Date 11/22/04; 3. Grand Theft (Motor Vehicle), Case Number 2004-00399CFAWS, Circuit

Court, 7th Judicial Circuit, Volusia County, Florida, Conviction Date 11/22/04; 4. Burglary

of a Dwelling, Case Number 98-0619CFAWS, Circuit Court, 7th Judicial Circuit, Volusia

County, Florida, Conviction Date 03/17/99; 5. Burglary of a Conveyance, Case Number 98-

0621CFAWS, Circuit Court, 7th Judicial Circuit, Volusia County, Florida, Conviction Date

03/17/99; 6. Grand Theft of the Third Degree, Case Number 98-0623CFAWS, Circuit Court,

7th Judicial Circuit, Volusia County, Florida, Conviction Date 03/17/99; 7. Burglary of a

10

We note that, while the notice to seek enhanced punishment was untimely because it was not filed ten days

prior to trial, the Defendant did not object to the untimely notice or request a continuance. Moreover, he has

made no attempt to raise this issue on appeal, and we cannot conclude that any prejudice resulted from the

untimely filing. See State v. Christopher Lamont Kelso,No. E2000-01602-CCA-R3-CD, 2001 WL 681313,

at *5 (Tenn. Crim. App. June 18, 2001) (citing State v. Stephenson, 752 S.W.2d 80, 81 (Tenn. 1988)

(wherein our supreme court held that the State’s failure to file a timely notice of intent to seek enhanced

range sentencing did not prevent the trial court from imposing sentence in an enhanced range, absent a

demonstration of prejudice to the defendant from the untimely notice; furthermore, in the absence of a

defense motion for continuance, any objection to the late-filed notice is waived)); see also State v. Gilmore,

823 S.W.2d 566, 571 (Tenn. Crim. App. 1991) (declaring that “the rule fashioned by the Supreme Court in

Stephenson is equally applicable to the 1989 version of Tenn. Code Ann. § 40-35-202(a)”).

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Dwelling, Case Number 98-0705CFAWS, Circuit Court, 7th Judicial Circuit, Volusia

County, Florida, Conviction Date 03/17/99; and 8. Grand Theft of the Third Degree, Case

Number 98-0705CFAWS, Circuit Court, 7th Judicial Circuit, Volusia County, Florida,

Conviction Date 03/17/99.

As previously noted, the trial court used only the burglary of a dwelling and burglary

of a conveyance convictions to enhance the Defendant’s range, and we will limit our analysis

to those prior convictions. At the sentencing hearing, the State introduced the respective

informations charging burglary of a dwelling and burglary of conveyance. The Defendant

does not challenge the burglary of a conveyance conviction, admitting that the judgment

clearly reflects that he was represented by counsel. The State attached to the informations

charging the burglary of a dwelling offenses the respective orders of probation; none of the

documentation regarding these two convictions reflects whether the Defendant was

represented by counsel or waived his right to counsel. No additional proof was offered at the

sentencing hearing on the subject, and the presentence report is silent on the matter.

For range enhancement purposes, a “certified copy of the court record of any prior

felony conviction, bearing the same name as that by which the defendant is charged in the

primary offense, is prima facie evidence that the defendant named therein is the same as the

defendant before the court, and is prima facie evidence of the facts set out therein.” Tenn.

Code Ann. § 40-35-202(a). However, the use of certified copies of the judgments is not the

only avenue for establishing the requisite prior convictions. See State v. Danny Anderson,

1986 WL 9307, at *3 (Tenn. Crim. App. Aug. 27, 1986). Our sentencing statute further

provides that

reliable hearsay including, but not limited to, certified copies of convictions

or documents, may be admitted if the opposing party is accorded a fair

opportunity to rebut any hearsay evidence so admitted; provided, that this

subsection shall not be construed to authorize the introduction of any evidence

secured in violation of the constitution of the United States or Tennessee.”

Tenn. Code Ann. § 40-35-209(b). This court has held that “prior convictions need not be

certified when they are otherwise reliable and the defendant has been given the opportunity

to rebut the evidence.” Anderson, 1986 WL 9307, at *3. In this case, the Defendant received

the State’s notice to seek enhanced punishment, and he did not challenge the validity of the

convictions at the sentencing hearing.

Once again, the Defendant is limited to “plain error” review pursuant to Rule 36(b)

of the Tennessee Rules of Appellate Procedure. The record is clear regarding what occurred

in the trial court; the first Adkisson factor is met. See Adkisson, 899 S.W.2d at 641-42.

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Turning to the second Adkissson factor, we cannot conclude that plain error exists in

this case because it is not evident that a clear and unequivocal rule of law has been breached.

See Jackson, 2008 WL 2053652, at *5. It is clear that the State must affirmatively show

representation or waiver of the right to counsel when dealing with enhancement of a sentence

of the predicate offense because of the existence of prior convictions, i.e, the subsequent use

of prior convictions to prove the actual elements of a criminal offense. It is also clear that

when considering enhancement factors under Tennessee Code Annotated section 40-35-114

in setting the length of a defendant’s sentence, the trial court is not limited to prior

convictions in which it affirmatively appeared that the defendant was represented by counsel

or waived said right. However, the precise issue presented here, whether the rationale of

Baldasar, Burgett, and O’Brien are applicable to convictions used for range-determination

purposes, lies somewhere in between, and no clear and unequivocal rule of law exists in this

situation.

In fact, the jurisprudence on the topic is anything but clear. First, we note that

Baldasar was a fractured opinion within which the plurality opinion merely referenced the

rationale “in the concurring opinions” but, in which, there were separate concurrences

without wholly consistent explanations for their results. See Baldasar, 446 U.S. at 224

(Stewart, J., concurring, joined by Brennan and Stevens, JJ.), (Marshall, J., concurring, joined

by Brennan and Stevens, JJ.), (Blackmun, J., concurring). Additionally, Baldasar was not

the last word on the matter from the United States Supreme Court. In 1994, the United States

Supreme Court held in Nichols v. United States that an uncounseled misdemeanor

conviction, not resulting in a term of incarceration, could be used for enhancement purposes,

expressly overruling Baldasar. See 511 U.S. 738, 746-49 (1994) (according criminal history

points pursuant to the then-mandatory United States Sentencing Guidelines for an earlier

uncounseled misdemeanor DUI conviction to determine a Guideline range for a subsequent

federal drug offense, shifting the mandatory Guidelines range upward by approximately two

years). In Nichols, the Supreme Court distinguished the sentencing context from guilt

determinations. Id. at 747 (“Reliance on such a conviction is also consistent with the

traditional understanding of the sentencing process, which we have often recognized as less

exacting than the process of establishing guilt.”). An important rationale from Nichols, that

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seemingly cannot be reconciled with Burgett,11 was that the subsequent use of the conviction

for enhancement purposes did not change the penalty for the prior conviction; rather, the

subsequent sentence punished only the subsequent offense. The Court in Nichols stated as

follows:

Enhancement statutes, whether in the nature of criminal history provisions

such as those contained in the Sentencing Guidelines, or recidivist statutes that

are commonplace in state criminal laws, do not change the penalty imposed for

the earlier conviction. As pointed out in the dissenting opinion in Baldasar,

‘[t]his Court consistently has sustained repeat-offender laws as penalizing

only the last offense committed by the defendant.’

Id. (quoting Baldasar, 446 U.S. at 232).

The Nichols decision has come under some scrutiny. In 2002, the United States

Supreme Court in Alabama v. Shelton distinguished Nichols as a case arising in the

sentencing context and held that an uncounseled conviction resulting in a suspended term of

incarceration violated the Sixth Amendment. 535 U.S. 654, 665 (2002) (a direct appeal

involving the imposition of the original suspended sentence). The Court stated that the Sixth

Amendment applies at the time a defendant is adjudicated guilty of an offense, whether

actual incarceration is imposed contemporaneously with the finding of guilt, or later

following some subsequent triggering event. Id. at 663-64. The court also rejected the

argument that the provision of counsel at a subsequent hearing surrounding the revocation

of the suspended sentence and imposition of a term of incarceration could make up for the

absence of counsel at the guilt phase. Id. at 667.

Post-Nichols . . . it is arguable that the fact of an actual constitutional

violation is, perhaps, not only an important factor for determining when a prior

conviction may be used for sentence enhancement purposes, but a required or

controlling factor. It also seems clear that, where the subsequent use is to

prove the actual elements of a criminal offense, Nichols is of questionable

11

The Court in Burgett provided the following rationale:

To permit a conviction obtained in violation of Gideon v. Wainwright[, 372 U.S. 335

(1963),] to be used against a person either to support guilt or enhance punishment for

another offense is to erode the principle of that case. Worse yet, since the defect in the prior

conviction was denial of the right to counsel, the accused in effect suffers anew from the

deprivation of that Sixth Amendment right.

Burgett, 389 U.S. at 115 (internal citation omitted) (emphasis added).

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applicability, given that Court’s emphasis on the differences between

sentencing and guilt determinations.

United States v. Cavanaugh, 643 F.3d 592, 601 (8th Cir. 2011). In this case before us, there

still has not been any evidence provided that an actual Sixth Amendment violation occurred

during the conviction process of these two prior burglary of a dwelling convictions.

Nichols and Shelton, however, do not necessarily answer all questions regarding

permissible uses of prior convictions, id., and as we previously stated, the use of prior

convictions in Tennessee for range-determination purposes, lies somewhere in between. As

David Raybin has noted in the treatise Tennessee Practice: Criminal and Procedure, the

Nichols decision was decided on “constitutional grounds and federal procedures” and, in a

range-determination context, the “result would probably be different under Tennessee

procedure.” 11 David Louis Raybin, Tennessee Practice: Criminal Practice and Procedure

§ 32.54 (Sentencing hearing-Defendant’s record), at n.9 (2010-11) (emphasis added).

Moreover, analyzing the fifth Adkisson factor, we cannot conclude that consideration

of the error is necessary to do substantial justice. See Jackson, 2008 WL 2053652, at *5.

While Tennessee Code Annotated section 40-35-106(c) requires the trial judge to find that

a defendant is a multiple offender beyond a reasonable doubt, the section does not require

the a certified copy of the judgment form be introduced to establish the validity of the prior

conviction. See id. at *5 n.3. In Baldasar, Burgett, and Nichols, the Defendant objected to

the use of the prior conviction for the respective stated purpose at some point in the

proceedings in the court below. Here, although the documents submitted by the State to

establish the two prior convictions for burglary of a dwelling did not reflect the presence of

counsel or a waiver of that right, the Defendant at no time “‘put the State to its burden of

proof’ or otherwise challenged the accuracy of the conviction information.” See Lowery,

1997 WL 260070, at *5 (defendant argued that the record was “devoid of any evidence”

supporting the five prior convictions used to enhance his range; all five prior convictions

were mentioned in the notice, but the extent of the proof of the five qualifying convictions

was found only in the “Criminal History Report” and the transcribed comments of the trial

judge made at the sentencing hearing as he read from the original court file; this court

concluded that the trial court was justified in considering these convictions in support of the

enhancement of the range of sentence because the defendant did not challenge the

convictions in the court below). Where the Defendant did not challenge the reliability or

accuracy of the convictions, “he should not be heard now to claim that these two convictions

were not proven.” Id.

If we were to grant the Defendant a Range I sentence in this situation, it would always

be sound strategy for a defendant not to raise the issue in the trial court and wait to raise the

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issue on appeal. The Defendant has failed to establish that he is entitled to plain error relief.

See Jackson, 2008 WL 2053652, at *5 (defendant argued that his 1980 and 1993 DUI

convictions should not have been used to convict him of aggravated vehicular homicide

because the State did not affirmatively show that he was represented by counsel or waived

his right to counsel in those cases; this court held that defendant had waived the issue for

failing to contemporaneously object and that plain error relief was not warranted); see also

State v. Anthony Whited, No. M2010-00612-CCA-R3-CD, 2011 WL 6892352, at *10 (Tenn.

Crim. App. Dec. 27, 2011) (defendant, convicted of second degree murder and sentenced to

20 years as a violent offender, contended that “the trial court erred in enhancing his sentence

based in part upon prior convictions for which the State did not prove that the [d]efendant

either was represented by counsel or had executed a valid waiver of counsel when he was

convicted of each offense”; this court concluded that defendant waived this argument by

failing to object prior to trial when the State gave notice of convictions it intended to submit

for sentence enhancement or during the sentencing hearing).

B. Juvenile Transfer

The Defendant next contends that the procedures governing transfer from juvenile

court to criminal court differ in Florida and Tennessee; therefore, the juvenile transfer

statutes are not similar, as required by Tennessee Code Annotated section 40-35-

106(b)(3)(A). According to the Defendant, because the statutes are not similar, his prior

Florida convictions for burglary of a dwelling, procured when he was still a minor, cannot

be used to enhance his range. The State responds that this issue is without merit because

regardless of whether the transfer statutes are similar, the convictions were felony

convictions obtained in criminal court. The State asserts that the trial court was justified in

considering these convictions after determining that they would also have been felony

convictions in Tennessee.

When a defendant’s prior convictions are obtained while the defendant is still under

the age of majority, section 40-35-106(b)(3) applies in calculating the number of prior

convictions a defendant has received for range-determination purposes:

(A) A finding or adjudication that a defendant committed an act as a juvenile

that would constitute a felony if committed by an adult and that resulted in a

transfer of the juvenile to criminal court pursuant to § 37-1-134, or similar

statutes of other states or jurisdictions, shall not be considered as a prior

conviction for the purposes of this section unless the juvenile was convicted

of a felony in a criminal court[.]

(Emphasis added). In 2010, the legislature added an additional subsection to section (b)(3),

which provides as follows:

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(B) Notwithstanding subdivision (b)(3)(A), a finding or adjudication that a

defendant committed an act as a juvenile that would constitute a Class A or

Class B felony if committed by an adult shall be considered as a prior

conviction for the purposes of this section, regardless of whether the juvenile

was transferred to criminal court pursuant to § 37-1-134, or similar statutes of

other states or jurisdictions[.]

(Emphasis added).

The offense dates for the Defendant’s Florida burglary of a dwelling convictions are

March 21, 1998 and April 10, 1998. The pertinent sections of our 1998 statute outlined the

following procedure for transferring a juvenile defendant to criminal court:

(a) After a petition has been filed alleging delinquency based on conduct that

is designated a crime or public offense under the laws, including local

ordinances, of this state, the court, before hearing the petition on the merits,

may transfer the child to the sheriff of the county to be held according to law

and to be dealt with as an adult in the criminal court of competent jurisdiction.

The disposition of the child shall be as if the child were an adult if:

(1) The child was sixteen (16) years or more of age at the time of the

alleged conduct, or the child was less than sixteen (16) years of age if such

child was charged with the offense of first degree murder, second degree

murder, rape, aggravated rape, rape of a child, aggravated rape of a child,

aggravated robbery, especially aggravated robbery, kidnapping, aggravated

kidnapping or especially aggravated kidnapping or an attempt to commit any

such offenses. The district attorney general may not seek, nor may any child

transferred under the provisions of this section receive, a sentence of death for

the offense for which the child was transferred;

(2) A hearing on whether the transfer should be made is held in

conformity with §§ 37-1-124, 37-1-126 and 37-1-127;

(3) Reasonable notice in writing of the time, place and purpose of the

hearing is given to the child and the child’s parents, guardian or other

custodian at least three (3) days prior to the hearing; and

(4) The court finds that there are reasonable grounds to believe that:

(A) The child committed the delinquent act as alleged;

(B) The child is not committable to an institution for the

developmentally disabled or mentally ill; and

(C) The interests of the community require that the child be put

under legal restraint or discipline.

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(b) In making the determination required by subsection (a), the court shall

consider, among other matters:

(1) The extent and nature of the child’s prior delinquency records;

(2) The nature of past treatment efforts and the nature of the child’s

response thereto;

(3) Whether the offense was against person or property, with greater

weight in favor of transfer given to offenses against the person;

(4) Whether the offense was committed in an aggressive and

premeditated manner;

(5) The possible rehabilitation of the child by use of procedures,

services and facilities currently available to the court in this state; and

(6) Whether the child’s conduct would be a criminal gang offense, as

defined in § 40-35-121, if committed by an adult.

(c) The transfer pursuant to subsection (a) terminates jurisdiction of the

juvenile court with respect to any and all delinquent acts with which the child

may then or thereafter be charged, and the child shall thereafter be dealt with

as an adult as to all pending and subsequent criminal charges; provided, that

if a child transferred pursuant to this section is acquitted in criminal court on

the charge or charges resulting in such transfer, or if such charge or charges

are dismissed in such court, this subsection (c) shall not apply and the juvenile

court shall retain jurisdiction over such child. If a child is in the legal custody

of the department at the time of transfer, such custody shall terminate at the

transfer hearing, except that if a child is already committed to the department,

the court may determine if it is in the best interest of the child to remain in the

legal custody of the department until conviction occurs. In any case, legal

custody by the department shall terminate upon any conviction in adult

criminal court. If there is no conviction and charges so transferred are

dismissed or acquittal occurs, the presiding trial judge shall notify the

transferring juvenile court judge of such dismissal or acquittal so that the

juvenile court may at its discretion set a hearing to ascertain status of the child

as to the department’s custody.

(d) If a person eighteen (18) years of age or older is to be charged with an

offense that was alleged to have been committed prior to such person’s

eighteenth birthday, the petition shall be brought in the juvenile court that

would have had jurisdiction at the time of the offense. The juvenile court shall

either adjudicate the case under its continuing jurisdiction authority under §

37-1-102(b)(4)(B) and (C) or undertake transfer proceedings consistent with

this section.

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Tenn. Code Ann. § 37-1-134 (1998). The 1998 Florida law imposed the following the

guidelines when transferring a juvenile defendant to adult court:

985.226 Criteria for waiver of juvenile court jurisdiction; hearing on motion

to transfer for prosecution as an adult.--

(1) VOLUNTARY WAIVER.--The court shall transfer and certify a child’s

criminal case for trial as an adult if the child is alleged to have committed a

violation of law and, prior to the commencement of an adjudicatory hearing,

the child, joined by a parent or, in the absence of a parent, by the guardian or

guardian ad litem, demands in writing to be tried as an adult. Once a child has

been transferred for criminal prosecution pursuant to a voluntary waiver

hearing and has been found to have committed the presenting offense or a

lesser included offense, the child shall be handled thereafter in every respect

as an adult for any subsequent violation of state law, unless the court imposes

juvenile sanctions under s. 985.233(4)(b).

(2) INVOLUNTARY WAIVER.--

(a) Discretionary involuntary waiver.--The state attorney may file a

motion requesting the court to transfer the child for criminal prosecution if the

child was 14 years of age or older at the time the alleged delinquent act or

violation of law was committed. If the child has been previously adjudicated

delinquent for murder, sexual battery, armed or strong-armed robbery,

carjacking, home-invasion robbery, aggravated battery, or aggravated assault,

and is currently charged with a second or subsequent violent crime against a

person, the state attorney shall file a motion requesting the court to transfer and

certify the juvenile for prosecution as an adult, or proceed pursuant to s.

985.227(1).

(b) Mandatory involuntary waiver.--If the child was 14 years of age or

older at the time of commission of a fourth or subsequent alleged felony

offense and the child was previously adjudicated delinquent or had

adjudication withheld for or was found to have committed, or to have

attempted or conspired to commit, three offenses that are felony offenses if

committed by an adult, and one or more of such felony offenses involved the

use or possession of a firearm or violence against a person, the state attorney

shall request the court to transfer and certify the child for prosecution as an

adult or shall provide written reasons to the court for not making such request,

or proceed pursuant to s. 985.227(1). Upon the state attorney’s request, the

court shall either enter an order transferring the case and certifying the case for

-35-

trial as if the child were an adult or provide written reasons for not issuing

such an order.

(3) WAIVER HEARING.--

(a) Within 7 days, excluding Saturdays, Sundays, and legal holidays,

after the date a petition alleging that a child has committed a delinquent act or

violation of law has been filed, or later with the approval of the court, but

before an adjudicatory hearing and after considering the recommendation of

the juvenile probation officer, the state attorney may file a motion requesting

the court to transfer the child for criminal prosecution.

(b) After the filing of the motion of the state attorney, summonses must

be issued and served in conformity with s. 985.219. A copy of the motion and

a copy of the delinquency petition, if not already served, must be attached to

each summons.

(c) The court shall conduct a hearing on all transfer request motions for

the purpose of determining whether a child should be transferred. In making

its determination, the court shall consider:

1. The seriousness of the alleged offense to the community and

whether the protection of the community is best served by transferring the

child for adult sanctions.

2. Whether the alleged offense was committed in an aggressive,

violent, premeditated, or willful manner.

3. Whether the alleged offense was against persons or against

property, greater weight being given to offenses against persons, especially if

personal injury resulted.

4. The probable cause as found in the report, affidavit, or

complaint.

5. The desirability of trial and disposition of the entire offense

in one court when the child’s associates in the alleged crime are adults or

children who are to be tried as adults.

6. The sophistication and maturity of the child.

7. The record and previous history of the child, including:

a. Previous contacts with the department, the Department

of Corrections, the former Department of Health and Rehabilitative Services,

the Department of Children and Family Services, other law enforcement

agencies, and courts;

b. Prior periods of probation or community control;

c. Prior adjudications that the child committed a

delinquent act or violation of law, greater weight being given if the child has

previously been found by a court to have committed a delinquent act or

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violation of law involving an offense classified as a felony or has twice

previously been found to have committed a delinquent act or violation of law

involving an offense classified as a misdemeanor; and

d. Prior commitments to institutions.

8. The prospects for adequate protection of the public and the

likelihood of reasonable rehabilitation of the child, if the child is found to have

committed the alleged offense, by the use of procedures, services, and facilities

currently available to the court.

(d) Prior to a hearing on the transfer request motion by the state

attorney, a study and report to the court relevant to the factors in paragraph (c)

must be made in writing by an authorized agent of the department. The child

and the child’s parents or legal guardians and counsel and the state attorney

shall have the right to examine these reports and to question the parties

responsible for them at the hearing.

(e) Any decision to transfer a child for criminal prosecution must be in

writing and include consideration of, and findings of fact with respect to, all

criteria in paragraph (c). The court shall render an order including a specific

finding of fact and the reasons for a decision to impose adult sanctions. The

order shall be reviewable on appeal under s. 985.234 and the Florida Rules of

Appellate Procedure.

(4) EFFECT OF ORDER WAIVING JURISDICTION.--If the court finds,

after a waiver hearing under subsection (3), that a juvenile who was 14 years

of age or older at the time the alleged violation of state law was committed

should be charged and tried as an adult, the court shall enter an order

transferring the case and certifying the case for trial as if the child were an

adult. The child shall thereafter be subject to prosecution, trial, and sentencing

as if the child were an adult but subject to the provisions of s. 985.233. Once

a child has been transferred for criminal prosecution pursuant to an involuntary

waiver hearing and has been found to have committed the presenting offense

or a lesser included offense, the child shall thereafter be handled in every

respect as an adult for any subsequent violation of state law, unless the court

imposes juvenile sanctions under s. 985.233.

985.227 Prosecution of juveniles as adults by the direct filing of an

information in the criminal division of the circuit court; discretionary criteria;

mandatory criteria.--

(1) DISCRETIONARY DIRECT FILE; CRITERIA.--

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(a) With respect to any child who was 14 or 15 years of age at the time

the alleged offense was committed, the state attorney may file an information

when in the state attorney’s judgment and discretion the public interest

requires that adult sanctions be considered or imposed and when the offense

charged is:

1. Arson;

2. Sexual battery;

3. Robbery;

4. Kidnapping;

5. Aggravated child abuse;

6. Aggravated assault;

7. Aggravated stalking;

8. Murder;

9. Manslaughter;

10. Unlawful throwing, placing, or discharging of a destructive

device or bomb;

11. Armed burglary in violation of s. 810.02(2)(b) or specified

burglary of a dwelling or structure in violation of s. 810.02(2)(c);

12. Aggravated battery;

13. Lewd or lascivious assault or act in the presence of a child;

14. Carrying, displaying, using, threatening, or attempting to use

a weapon or firearm during the commission of a felony; or

15. Grand theft in violation of s. 812.014(2)(a).

(b) With respect to any child who was 16 or 17 years of age at the time

the alleged offense was committed, the state attorney may file an information

when in the state attorney’s judgment and discretion the public interest

requires that adult sanctions be considered or imposed. However, the state

attorney may not file an information on a child charged with a misdemeanor,

unless the child has had at least two previous adjudications or adjudications

withheld for delinquent acts, one of which involved an offense classified as a

felony under state law.

(2) MANDATORY DIRECT FILE.--

(a) With respect to any child who was 16 or 17 years of age at the time

the alleged offense was committed, the state attorney shall file an information

if the child has been previously adjudicated delinquent for murder, sexual

battery, armed or strong-armed robbery, carjacking, home-invasion

robbery,aggravated battery, or aggravated assault, and is currently charged

with a second or subsequent violent crime against a person.

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(b) Notwithstanding subsection (1), regardless of the child’s age at the

time the alleged offense was committed, the state attorney must file an

information with respect to any child who previously has been adjudicated for

offenses which, if committed by an adult, would be felonies and such

adjudications occurred at three or more separate delinquency adjudicatory

hearings, and three of which resulted in residential commitments as defined in

s. 985.03(45).

(c) The state attorney must file an information if a child, regardless of

the child’s age at the time the alleged offense was committed, is alleged to

have committed an act that would be a violation of law if the child were an

adult, that involves stealing a motor vehicle, including, but not limited to, a

violation of s. 812.133, relating to carjacking, or s. 812.014(2)(c)6., relating

to grand theft of a motor vehicle, and while the child was in possession of the

stolen motor vehicle the child caused serious bodily injury to or the death of

a person who was not involved in the underlying offense. For purposes of this

section, the driver and all willing passengers in the stolen motor vehicle at the

time such serious bodily injury or death is inflicted shall also be subject to

mandatory transfer to adult court. “Stolen motor vehicle,” for the purposes of

this section, means a motor vehicle that has been the subject of any criminal

wrongful taking. For purposes of this section, “willing passengers” means all

willing passengers who have participated in the underlying offense.

(3) EFFECT OF DIRECT FILE.--

(a) Once a child has been transferred for criminal prosecution pursuant

to information and has been found to have committed the presenting offense

or a lesser included offense, the child shall be handled thereafter in every

respect as if an adult for any subsequent violation of state law, unless the court

imposes juvenile sanctions under s. 985.233.

(b) When a child is transferred for criminal prosecution as an adult, the

court shall immediately transfer and certify to the appropriate court all

preadjudicatory cases that pertain to that child which are pending in juvenile

court, including, but not limited to, all cases involving offenses that occur or

are referred between the date of transfer and sentencing in adult court and all

outstanding juvenile disposition orders. The juvenile court shall make every

effort to dispose of all predispositional cases and transfer those cases to the

adult court prior to adult sentencing. It is the intent of the Legislature to

require all cases occurring prior to the sentencing hearing in adult court to be

handled by the adult court for final resolution with the original transfer case.

(c) When a child has been transferred for criminal prosecution as an

adult and has been found to have committed a violation of state law, the

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disposition of the case may be made under s. 985.233 and may include the

enforcement of any restitution ordered in any juvenile proceeding.

(4) DIRECT-FILE POLICIES AND GUIDELINES.--Each state attorney shall

develop and annually update written policies and guidelines to govern

determinations for filing an information on a juvenile, to be submitted to the

Executive Office of the Governor, the President of the Senate, the Speaker of

the House of Representatives, and the Juvenile Justice Advisory Board not

later than January 1 of each year.

Fla. Stat. §§ 985.226 & .227 (1998).

The Defendant argues that these two juvenile transfer statutes are not similar, noting

that unlike the transfer statute in Tennessee, Florida law mandates that particular offenses

be automatically transferred to adult court without a hearing. According to the Defendant,

in Florida, the prosecutor is vested with the exclusive discretion in certain cases to prosecute

a child in adult court; stated another way, the Florida statute gives prosecutors “discretion to

direct-file 16 and 17 year old offenders into adult court.” The Defendant does not say, and

the record does not reflect, whether the Defendant’s burglary of a dwelling convictions were

“direct-filed” into Florida adult court.

The Defendant asserts that “Tennessee has long recognized the great significance

created by transfer hearings, and noted the attendant constitutional implications.” Moreover,

the Defendant submits that the legislative changes in 2010 bolster his argument that for lower

level offenses, the “similar transfer statute requirement . . . must be strictly construed.”

Therefore, the Defendant contends that because these burglary of a dwelling convictions

should not have been considered due to the dissimilarities between the two transfer statutes,

he should have been sentenced as a Range I, standard offender. At the sentencing hearing,

the trial court found the Defendant’s argument to be meritless, reasoning as follows: “He

was, in fact, under the information that you have provided me, tried as an adult, based on the

transfer statute, whether we call it transfer statute or not that existed in Florida at the time.”

This court’s primary duty in construing a statute is “to ascertain and give effect to the

legislative intent without unduly restricting or expanding a statute’s coverage beyond its

intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995); see also State v. Davis,

940 S.W.2d 558, 561 (Tenn. 1997). Legislative intent should be gleaned from the “natural

and ordinary meaning of the language used, without a forced or subtle construction that

would limit or extend the meaning of the language.” Carter v. State, 952 S.W.2d 417, 419

(Tenn. 1997). Furthermore, this court should construe a statute so that its component parts

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are consistent and reasonable, and inconsistent parts should be harmonized, where possible.

State v. Odom, 928 S.W.2d 18, 30 (Tenn. 1996).

We conclude that the relevant comparison is not between the transfer statutes of the

two states but between the nature of juvenile and adult proceedings. As exemplified by the

lengthy transfer statutes outlined above, we do not believe that the legislature intended to

require sentencing judges to determine the nuances of the transfer statutes of the various

states in its range-determination. This holding does not run afoul the policy that juvenile

adjudications are not to be used in collateral matters. See State v. Butler, 626 S.W.2d 6, 10

(Tenn. 1981). “On those occasions when a juvenile is transferred to criminal court to be tried

as an adult, he or she is afforded the full panoply of constitutional rights accorded to criminal

defendants, including jury trials.” State v. Burns, 205 S.W.3d 412, 417 (Tenn. 2006). For

purposes of the range-determination statute, we conclude that the transfer proceeding in

Tennessee is similar to the transfer proceeding held in Florida in that both proceedings result

in a similar outcome—a determination of a juvenile’s legal status and tentative transfer to

adult criminal court. We think this to be a more sensible interpretation of section 40-35-

106(b)(3)(A) (“that resulted in a transfer of the juvenile to criminal court pursuant to § 37-1-

134, or similar statues of other states or jurisdictions . . . .”) than that proposed by the

Defendant.

Additionally, the 2010 change to section 40-35-106(b)(3) contradicts, rather than

bolsters, the Defendant’s argument that the “similar transfer statute requirement . . . must be

strictly construed.” The legislature has now seen fit to give juvenile adjudications even less

protection, by allowing the sentencing judge to consider acts that would constitute a Class

A or Class B felony regardless of whether the Defendant was transferred to criminal court

under our transfer statute or any other. During the discussion on the Senate floor of this 2010

amendment to the statue, Senator Doug Jackson noted that juvenile adjudications do not

involve the same constitutional guarantees afforded an accused in adult criminal court but

commented that the amended provision permits the use of those juvenile adjudications to

enhance a Defendant’s range. See Tenn. Senate Session, Debate on Senate Bill 3314, April

15, 2010. The Senate was not dissuaded by Senator Jackson’s comments and passed the

amendment into law.

Thus, even assuming arguendo, that the Defendant has raised a distinction between

Tennessee and Florida law pertaining to juvenile transfers, it is not a difference which is

relevant to the issue before this court. We agree with the State that, upon determining that

these Florida convictions would likewise be felony convictions in Tennessee, the trial court

properly considered them in establishing the Defendant’s range.

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VII. Imposition of Sentence

The Defendant challenges the length of his various sentences and their consecutive

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

burden of establishing that the sentence is erroneous. 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). However, this presumption “is conditioned upon the affirmative

showing in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also

State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial

court failed to consider the sentencing principles and all relevant facts and circumstances,

then review of the challenged sentence is purely de novo without the presumption of

correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d

at 344-45.

In conducting a de novo review of a sentence, this court must consider (a) the

evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) evidence and information offered by the

parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated

sections 40-35-113 and 40-35-114; (f) any statistical information provided by the

Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;

and (g) any statement the defendant wishes to make in the defendant’s own behalf about

sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.

Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). The defendant’s potential for rehabilitation or

treatment should also be considered. See Tenn. Code Ann. § 40-35-103(5).

A. Length

The Defendant’s conduct occurred after the enactment of the 2005 amendments to the

Sentencing Act, which became effective June 7, 2005. The amended statute no longer

imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further explained by our

supreme court in Carter,

the trial court is free to select any sentence within the applicable range so long

as the length of the sentence is “consistent with the purposes and principles of

[the Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes

and principles include “the imposition of a sentence justly deserved in relation

to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a

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punishment sufficient “to prevent crime and promote respect for the law,”

[Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s

“potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §

40-35-103(5).

Id. (footnote omitted).

The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing

of the enhancement and mitigating factors, as it rendered these factors merely advisory, as

opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing

law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that

is relevant to the sentencing determination, including the application of enhancing and

mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing

factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to

Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court

exercises when imposing a sentencing term. Id. at 344.

To facilitate appellate review, the trial court is required to place on the record its

reasons for imposing the specific sentence, including the identification of the mitigating and

enhancement factors found, the specific facts supporting each enhancement factor found, and

the method by which the mitigating and enhancement factors have been evaluated and

balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492

(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating or

enhancement factors or otherwise failed to follow the Sentencing Act, the presumption of

correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.

Following his jury trial, the Defendant was convicted of especially aggravated

kidnapping, a Class A felony, and multiple Class C felonies—conspiracy to commit

aggravated robbery, conspiracy to commit aggravated kidnapping, attempted aggravated

robbery, and aggravated burglary. See Tenn. Code Ann. §§ 39-12-101, -12-103, -13-202, -

13-304, -13-305, -13-402, -13-403, & -14-403. As a Range II, multiple offender, the

Defendant faced a potential sentence of 25 to 40 years for his Class A felony conviction and

6 to 10 years for his Class C felony convictions. See Tenn. Code Ann. § 40-35-112(b). The

trial court imposed an enhanced sentence of 35 years for the Class A felony and enhanced

sentences of 10 years for each of the Class C felony convictions.

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In setting the length of the Defendant’s sentences, the trial court found two

enhancement factors12 to be applicable to all of the Defendant’s convictions: the Defendant

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

necessary to establish the appropriate range; and the Defendant was a leader in the

commission of the offense, citing to the Defendant and Swim’s testimony, the text messages

between the two men, and the fact that the Defendant chose the location. See Tenn. Code

Ann. § 40-35-114(1) & (2). The trial court found that two mitigating factors applied to the

Defendant’s various convictions: the Defendant assisted the authorities in locating and

recovering any property or person involved in the crime, noting the Defendant assisted the

authorities in locating the weapon he discarded as he was fleeing the Gilreaths’ home; and

the “catch-all” mitigating factor, noting that the Defendant gave a statement to the

authorities. See Tenn. Code Ann. § 40-35-113(10) & (13). The trial court declined to apply

as a mitigating factor to the especially aggravated kidnapping conviction that the Defendant

voluntarily released the victim. See Tenn. Code Ann. § 39-13-305(b)(2). In weighing the

various factors, the trial court stated that it assessed these two mitigating factors “some”

value.

The Defendant argues that the trial court erred in several ways. First, he submits that

the especially aggravated kidnapping sentence was not proportionate to the offense he

committed when his conviction “was based on facts that pale in comparison to other

kidnapping cases.” Second, he argues that the trial court gave the two enhancement factors

“undue weight.” Third, the Defendant further contends that the trial court erred by giving

“little weight” to the fact that he assisted the authorities by helping them find the weapon and

by disregarding the fact that he voluntarily released the victim alive. The State argues that

the Defendant’s argument that the court gave “undue weight” to certain enhancement factors

is misplaced because the 2005 amendments to the Sentencing Act preclude appellate review

of the weight assigned to these factors. Because the trial court considered the relevant

advisory factors and imposed a sentence consistent with the purposes and principles of the

Sentencing Act, the State asks us to affirm the sentence. Finally, the State asserts that the

record supports the trial court’s application and rejection of the proposed enhancement and

mitigating factors.

The Defendant makes no real argument that enhancement factor (1) did not apply,

only that the trial court gave it “undue weight” as “each of his prior cases was a non-violent

12

It was later clarified in the sentencing ruling that the trial court was also applying enhancement factor

(9)—the Defendant possessed or employed a firearm during the commission of the offense—to the

Defendant’s conviction for aggravated burglary. See Tenn. Code Ann. §40-35-114(9). This additional factor

was not necessary to support the sentences as imposed, but we note that the record does support its

application.

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property crime” and six of them occurred while he was juvenile. We conclude that this factor

was properly applied given that the Defendant had numerous previous convictions. As

previously noted in footnote 9 of this opinion, the Defendant’s argument that all of his

convictions must reflect his representation by counsel or waiver of that right in order for

them to be used for enhancement purposes has been found to be without merit; all of his

conviction can be considered regardless of whether the convictions reflect his representation

by counsel or waiver of said right. See Massey, 757 S.W.2d at 352. As delineated in the

State’s notice to seek enhanced punishment, it is clear that the Defendant had a plethora of

prior criminal convictions or criminal behavior adjudicated in adult court, in addition to those

convictions used to establish his Range II status. Moreover, based upon the evidence at trial,

the record supports the trial court’s determination that the Defendant was a leader in the

commission of the offense. Swim testified that the Defendant came up with the idea of

robbing the Gilreaths and their jewelry store. As found by the trial court, this was supported

by both the Defendant and Swim’s testimony at trial and by the text messages sent between

the two men on the day of the home invasion.

In its sentencing determination, the trial court did consider the mitigating factors

espoused by the Defendant, finding two factors to be applicable, and disregarding the fact

that the Defendant left the victim alive. We agree with the trial court that section 39-13-

305(b)(2) should not be applied as a mitigating factor in a situation, where as here, the victim

was shot and a bullet lodged in her chest, causing a life-threatening injury before the

Defendant fled from the scene; this is a correct conclusion regardless of the fact that the

victim ultimately lived and the fact that the jury later acquitted the Defendant of the murder

charge.

The weight to be given the various factors is within the broad discretion afforded our

trial courts. We conclude that the trial court did not err or abuse its discretion in setting the

Defendant’s various sentences at 35 and 10 years.

B. Consecutive Nature

As his last issue, the Defendant challenges the consecutive nature of his sentences.

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in its

discretion, order sentences to run consecutively if it finds any one of the following criteria

by a preponderance of the evidence:

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

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

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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 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.

These criteria are stated in the alternative; therefore, only one need exist to support the

appropriateness of consecutive sentencing. However, the imposition of consecutive

sentencing is subject to the general sentencing principles that the overall sentence imposed

“should be no greater than that deserved for the offense committed” and that it “should be

the least severe measure necessary to achieve the purposes for which the sentence is

imposed[.]” Tenn. Code Ann. § 40-35-103(2) & (4).

The trial court found that factors (2) and (4) applied to the Defendant and ordered

consecutive sentences. The Defendant argues that the trial court erred in giving great weight

to his criminal history in determining that consecutive sentencing was warranted. The

Defendant admits that he had eight prior felony convictions but asserts that most of these

felony offenses should not have been considered pursuant to his previously dismissed Burgett

argument. The Defendant then contends that, even if they were properly considered, the trial

court gave them “undue weight,” once more noting that the crimes were non-violent property

crimes and that six of the convictions were committed while he was a juvenile. Additionally,

the Defendant argues that the trial court erred in giving great weight to the fact that he was

a dangerous offender, submitting that the evidence does not substantiate this finding when

the jury acquitted him of attempted first and second degree murder.

The State replies that the trial court properly ordered the Defendant to serve four of

his sentences consecutively because of the Defendant’s extensive criminal record and

because the Defendant was a dangerous offender whose behavior indicated little or no regard

for human life and no hesitation about committing a crime when the risk to human life was

high.

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We agree with the State. The evidence at the sentencing hearing supports the

conclusion that the Defendant had an extensive criminal record, the presentence report and

sentencing exhibits reflect numerous prior felony convictions. As found by the trial court,

the Defendant’s criminal record is “very, very extensive from the age of sixteen up through

the present age.”

Regarding the imposition of consecutive sentences because the Defendant was a

dangerous offender, the trial court complied with State v. Wilkerson, 905 S.W.2d 933, 938

(Tenn. 1995), and determined that the terms imposed were reasonably related to the severity

of the offenses committed and were necessary in order to protect the public from further

criminal acts by the offender. The facts of this case support this conclusion. As noted by the

trial court, the Defendant had only recently been released from the penitentiary before he

formulated this detailed plan to rob the Gilreaths and their jewelry store. The trial judge

found this to be “the worse case of non-homicide that [he had] seen in [his 40] years of

criminal practice[.]”

The presence of a single factor is enough to justify the imposition of consecutive

sentences. We affirm the trial court’s imposition of consecutive sentencing.

CONCLUSION

For the reasons articulated above, we remand the judgments for conspiracy to commit

aggravated robbery and conspiracy to commit aggravated kidnapping to reflect their merger.

In all other respects, we affirm the Defendant’s convictions and sentences.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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