# State of Tennessee v. Fabian Claxton

> Court of Criminal Appeals of Tennessee · March 7, 2011

URL: https://www.frixlaw.com/law-library/cases/1049010

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** March 7, 2011
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge D. Kelly Thomas, Jr.
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1049010

## How later opinions describe it (automated extraction)

- noting the requirements of Rule 32(c)(1) for purposes of consecutive sentencing

## Opinion text

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 14, 2010

STATE OF TENNESSEE v. FABIAN CLAXTON

Appeal from the Criminal Court for Shelby County
No. 07-06442 Chris Craft, Judge

No. W2009-01679-CCA-R3-CD - Filed March 7, 2011

Following a jury trial, the Defendant, Fabian Claxton, was convicted of four counts of
attempted first degree murder, a Class A felony, and unlawful possession of a handgun while
at a public place, a Class A misdemeanor. The Defendant was sentenced to consecutive
sentences of 22 years for each of the four attempted first degree murder convictions and a
concurrent sentence of 11 months and 29 days for the unlawful possession of a handgun
while at a public place conviction, for a total effective sentence of 88 years. In this appeal
as of right, the Defendant contends that (1) the evidence is insufficient to sustain his
convictions; (2) the trial court erred in instructing a witness to identify the Defendant; and
(3) the trial court improperly imposed consecutive sentences. Following our review, we
affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
J.C. M CL IN, JJ., joined.

Charles Mitchell (on appeal) and Larry Copeland (at trial), Memphis, Tennessee, for the
appellant, Fabian Claxton.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
William L. Gibbons, District Attorney General; and Dean DeCandia and Colin A. Campbell,
Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

On May 22, 2007, the Defendant, wearing a blue bandana that covered the lower part
of his face, approached the Riverview Park at the Riverview Community Center in Memphis,
Tennessee and fired a .40 caliber revolver into the air. After firing into the air, the Defendant
began shooting toward the basketball court with a semi-automatic handgun and the .40
caliber revolver, injuring three teenagers, Demarcus Fleming, Blessing Pollard, and Frederick
Buford, who had attempted to run away when the Defendant began shooting. There were
several other teenagers and children sitting near and playing on the basketball court that also
ran but were not injured by the Defendant.

In the investigation that followed, Investigator Jeffrey Garey of the Memphis Police
Department found four Winchester .40 Smith & Wesson bullet shell casings and six .25
automatic bullet shell casings near where the Defendant had been reportedly standing as he
shot toward the basketball court. When the Defendant was apprehended the next day, Officer
John Gorley of the Memphis Police Department found a small handgun and a purse in the
Defendant’s vehicle. In the purse, officers found a box of Remington .25 caliber ammunition
and a blue bandana. The handgun was a 6.32 millimeter handgun, which is equivalent to a
.25 caliber handgun and can fire .25 caliber ammunition. Officer Gorley did not find a
carrying permit for the weapon even though a permit is required when possessing a weapon
upon a public road “in the fashion that that gun was being transported.”

Once at the police station, the Defendant waived his Miranda rights and confessed to
his involvement in the shooting. Detective Robert Wilkie of the Memphis Police Department
transcribed the Defendant’s statement, which was signed by the Defendant. In his statement,
the Defendant admitted that he and Antonio Malone were responsible for shooting Frederick
Buford, Blessing Polard, and Demarcus Fleming. He stated that he was intending to shoot
Jeremy Gray. According to him, there were only two people, Jeremy Gray and a person
named A.J., on the basketball court when he began shooting. He was on the “top of the hill
for the first shots,” and he was “by the bridge” for the “second shots.”

In his statement, the Defendant said that prior to the shooting, Antonio Malone had
talked to Jeremy Gray, who told Antonio Malone that he believed that the Defendant and
Antonio Malone had shot “some dope boy” and that he was looking for them and that “some
GD’s were looking” for Antonio Malone. When the Defendant told Antonio Malone that he
wanted to “confront” Jeremy Gray about the situation, Antonio Malone told the Defendant
that Jeremy Gray “had a gun on him.” The Defendant said that when they approached the
park, Antonio Malone had the .40 caliber revolver while he had the .25 semi-automatic. The
Defendant told Antonio Malone that he would not shoot toward the basketball court because
“there were too many kids.” They eventually decided that Antonio Malone would “fire a
couple of shots to scare the little kids off.” After Antonio Malone “shot a couple of times
down there,” the Defendant took back the gun and “shot the rest of the shots out of the gun”
and “shot the [.25 semi-automatic] in the air until it was empty.” The Defendant stood on
the bridge for 15 or 20 seconds and after seeing that there “wasn’t no kids out there laying

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or screaming,” he “ran back to the car” and gave the .40 caliber revolver back to Antonio
Malone. Upon further questioning, the Defendant told Detective Wilkie that he shot the .25
caliber semi-automatic into the air but that he “shot at Jeremy with the [.40 caliber
revolver].”

At trial, Ortanio Sharp, who was 15 years old at the time of the trial and in State’s
custody for unrelated charges, testified that he observed Antonio Malone and Jeremy Gray
talking on May 22, 2007, sometime before the shooting. He believed that Jeremy Gray had
confronted Antonio Malone, and he heard Antonio Malone say that he was going to find the
Defendant. After observing the two talking, he went to his boss’s house for approximately
15 minutes before returning to the park.

Once he arrived back at the park but before he stepped onto the basketball court, he
heard people say, “[T]here go Fay.”1 He turned around and saw whom he believed to be the
Defendant fire a revolver into the air before firing toward Jeremy Gray, who was standing
on the basketball court. The Defendant had a “black rag across his face” and was “wearing
a hoodie over his head” while standing on a bridge that was near the basketball court. After
seeing the Defendant fire the first shot into the air, Ortanio Sharp saw the Defendant lower
his weapon before firing more shots. As Ortanio Sharp was running away, he heard gunshots
coming from a semi-automatic weapon. He returned to the basketball court when he heard
Blessing Pollard screaming. He admitted that he was unable to positively identify the
Defendant as the shooter but stated that the shooter looked like the Defendant and that he had
heard that others had identified the Defendant as the shooter. He stated that there were
“about” 21 kids in the area when the shooting occurred.

Demarcus Fleming, who was 15 at the time of the trial but 14 at the time of the
shooting, testified that on May 22, 2007, he was sitting on a bench with his 12-year-old sister,
Cashondra Fleming; his 12-year-old friend, Demetrius; and Blessing Pollard. He was at the
park watching “A.J.” and Jeremy Gray play basketball for approximately ten minutes when
he heard gunshots. He turned toward the sound of the gunshots and saw a “dark skin dude
with a [bandana] over his face.” The man “had two guns in his hands” and was pointing the
weapons toward the basketball court. He ran toward the railroad tracks with Cashondra
Fleming and Demetrius. Blessing Pollard tried to run with them but fell on the ground. After
approximately ten minutes, Demarcus Fleming stopped and realized that he had been shot
in the back of his left leg and that Fredrick Buford had been shot. They returned to the
basketball court to find that Blessing Pollard had also been shot and was “losing a lot of
blood.”

1
Several witnesses testified that the Defendant was commonly referred to as “Fay” or “Faith.”
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Blessing Pollard, who was 16 at the time of trial and in the State’s custody for
unrelated charges, testified that she was at Riverview Park sitting on a bench with Demarcus
Fleming and others on May 22, 2007. They were watching Jeremy Gray and others play
basketball when she noticed Jeremy Gray looking up. She turned around and saw a person
with two guns in his hands. The person was aiming the guns toward Jeremy Gray. She could
not remember how many times the person fired the weapons. She could not identify the
shooter, but she stated that the shooter was wearing a “scarf on his mouth” and that there was
only one shooter. She stated that she was shot in the back of her right calf.

Frederick Buford, who was 16 at the time of trial, testified that on May 22, 2007, he
was at the Riverview Park playing basketball with Jeremy Gray, Demarcus Fleming, A.J.,
and others. As they were playing, he heard gunshots. He stated that when he heard gunshots
and saw everybody running, he ran toward the railroad tracks. He eventually realized that
he had been shot in the upper back; the bullet ended up in his neck. He could not identify
the shooter.

Jeremy Gray, who was 17 at the time of trial and in State’s custody for unrelated
charges, testified that he went to the Riverview park with Aven Farrow to play basketball on
May 22, 2007. He stated that he had a 10 or 15-minute conversation with Antonio Malone
“right before” he started playing basketball. He stated that Antonio Malone asked him about
“Clavin and Fay.” He stated that approximately three weeks prior to May 22, 2007, he and
the Defendant had a dispute at the Crystal Palace skating rink about the Defendant “shooting
in the neighborhood.” However, he stated that this dispute was not the topic of the
discussion that he had with Antonio Malone on May 22, 2007.

Mr. Gray testified that on May 22, 2007, he was not armed while he was playing
basketball. He said that while he was on the basketball court, he saw a person wearing a blue
bandana around his mouth standing on the bridge near the basketball court and that he
believed that this person was the Defendant because the Defendant “was the only problem
[he] had in the neighborhood.” Jeremy Gray further stated that he recognized how the
Defendant walked and “how his body shaped up.” He said that he ran when the Defendant
raised a handgun and pointed it toward him. He said that as he was running, he heard
“different shots come from different guns” and that he heard eight or nine gunshots before
he stopped running. When he returned to the basketball court, he called 9-1-1 with his
cellular telephone because he saw that a little girl had been shot.

The Defendant, who was 20 at the time of trial but 19 on May 22, 2007, testified at
trial that he went to the park to talk with Jeremy Gray. He said that as he was walking over
the bridge to the basketball court, he called out to Jeremy Gray, waving and raising his hand
to get his attention. When he saw Jeremy Gray reaching for what he believed was a weapon

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hidden under a t-shirt, he began shooting with a .40 caliber revolver that Antonio Malone had
handed him as they were walking toward the park. He admitted that he also used a .25 that
he had bought from Antonio Malone. He said that he brought weapons with him because
Antonio Malone had told him that Jeremy Gray was armed and wanted to kill him. He said
that he was carrying the weapons because he feared for his life.

The Defendant stated that he was wearing a white shirt and a black hat that was
“turned to the back” and that he did not have anything covering his face. He stated that he
did not mean for anyone to get hurt and that he only returned to his car after he scanned the
area and found that nobody was yelling or screaming. He admitted that he saw two or three
people sitting on the bench beside the basketball court when he shot toward Jeremy Gray, but
he stated that he did not see Blessing Pollard lying on the ground when he scanned the area.

Relative to his apprehension, he stated that he did not know that there was a bandana
in the purse in his car. He stated that he asked his sister if he could borrow the purse to store
the gun and the ammunition that Antonio Malone had given him. He admitted that he gave
a statement at the police station that was contrary to his trial testimony, but he explained that
his statement differed from his testimony because the detective was arguing with him and
telling him what to say.

The Defendant’s mother, Constance Claxton, testified at trial that Antonio Malone
was not allowed to come to her house and that despite her instructions, Antonio Malone was
at her house on May 22, 2007. She said that she told Antonio Malone to leave and that the
Defendant left with Antonio Malone but returned 30 or 45 minutes later. The Defendant’s
friend, Oscar Brent, testified that he worked with the Defendant and that he believed the
Defendant was a “reliable and trustworthy employee.”

ANALYSIS

I. Sufficiency

An appellate court’s standard of review when a 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). The
appellate court does not re-weigh 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 the evidence were resolved by the jury.

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State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt 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). “This rule applies to
findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999).

A. Attempted first degree murder

The Defendant contends that the evidence is insufficient to support his conviction of
attempted first degree murder of Jeremy Gray because he feared for his life. Relative to the
other counts, the Defendant contends that he never intended to hurt or kill anyone. He asserts
that the innocent bystanders were either unable to identify him or were forced to identify him
and that Jeremy Gray was a violent young man who held a grudge against the Defendant.
The State responds that the evidence is sufficient to sustain his conviction of attempted first
degree murder of Jeremy Gray because he approached the victim, armed with two weapons
and with his face partially covered with a bandana before shooting at the victim
approximately ten times. The State further responds that the evidence was sufficient to
sustain his convictions of attempted first degree murder of Demarcus Fleming, Blessing
Pollard, and Frederick Buford because “in his attempt to kill Jeremy Gray, the [D]efendant
shot those victims instead.”

First degree murder is defined as “[a] premeditated and intentional killing of another.”
Tenn. Code Ann. § 39-13-202(a)(1). “Premeditation is an act done after the exercise of
reflection and judgment. Premeditation means that the intent to kill must have been formed
prior to the act itself. It is not necessary that the purpose to kill pre-exist in the mind of the
accused for any definite period of time.” Tenn. Code Ann. 39-13-202(d) (internal quotations
omitted). The element of premeditation only requires the Defendant to think “about a
proposed killing before engaging in the homicidal conduct.” State v. Brown, 836 S.W.2d
530, 541 (Tenn. 1992). Factors from which a jury may infer premeditation include “the use
of a deadly weapon upon an unarmed victim; the particular cruelty of the killing; declarations
by the defendant of the intent to kill; evidence of procurement of a weapon; preparations
before the killing for concealment of the crime; and calmness immediately after the killing.”
Bland, 958 S.W.2d at 660. A person attempts to commit first degree murder when “acting
with the kind of culpability otherwise required,” a person

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(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).

As an initial matter, we will address the Defendant’s contention that because
witnesses were either biased or were unable to identify him, the evidence was insufficient.
The Defendant admitted at trial that he fired two handguns in the air and toward Jeremy Gray
and that he knew there were innocent bystanders on the basketball court and sitting on the
bench near the basketball court.2 Additionally, Jeremy Gray and Ortanio Sharp identified the
Defendant as the shooter. Any questions regarding the credibility of the witnesses were
resolved by the jury. Accordingly, we conclude that the evidence was sufficient to establish
that the Defendant was the shooter.

Relative to Jeremy Gray, the Defendant appears to contend that he acted in self-
defense. In order to prevail with a theory of self-defense, the Defendant would have had to
prove that he had a “reasonable belief that there [wa]s an imminent danger of death or serious
bodily injury” and that he believed that his use of force was “immediately necessary to
protect” himself from the victim’s “attempted use of unlawful force.” See Tenn. Code Ann.
§ 39-11-611(a). The Defendant would also have had to prove that his belief of imminent
death or serious bodily injury was “real, or honestly believed to be real at the time,” and
“founded upon reasonable grounds.” See Tenn. Code Ann. § 39-11-611.

While the Defendant testified that Jeremy Gray was reaching for a weapon, the jury
heard the proof regarding self-defense and rejected the Defendant’s assertion. Indeed, the
Defendant even admitted at trial that he never actually saw Jeremy Gray with a weapon;
instead, he stated that Jeremy Gray ran toward his t-shirt and that he believed that Jeremy

2
The Defendant admitted that a person named “A.J.” was on the basketball court with the Defendant and that
there two or three people sitting on the bench or “bleachers” near the basketball court.
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Gray had a weapon hidden under the shirt. Moreover, in the Defendant’s statement, the
Defendant recounted a planned, well-thought out attack of Jeremy Gray in which several
shots would be fired into the air to scatter the innocent bystanders before the Defendant
attempted to shoot Jeremy Gray. The evidence reflected that the Defendant fired his weapon
approximately ten times as Jeremy Gray and bystanders ran away. Blessing Pollard testified
that the Defendant aimed his weapon at Jeremy Gray before firing, and Jeremy Gray testified
that the Defendant aimed his weapon at him before firing. Thus, the Defendant acted “with
intent to cause a result that is an element of the offense, and believe[d] the conduct w[ould]
cause the result without further conduct on [his] part.” Tenn. Code Ann. § 39-12-101(a)(2);
see Joseph Jackson v. State, No. W2006-00606-CCA-R3-HC, 2007 WL 273649, at *3 (Tenn.
Crim. App. Jan. 31, 2007) (stating that pulling a gun and firing that gun at someone would
be sufficient evidence to support a conviction of attempted first degree murder).
Accordingly, we conclude that the evidence was sufficient to sustain the Defendant’s
conviction of the attempted first degree murder of Jeremy Gray.

Relative to the bystanders, Demarcus Fleming, Blessing Pollard, and Frederick
Buford, our supreme court has held that “[t]he definition of ‘intentional’ in the statute does
not require the State to prove that the defendant killed the intended victim.” Millen v. State,
988 S.W.2d 164, 165 (Tenn. 1999). Furthermore, “it is unnecessary to resort to the common
law doctrine of transferred intent under our first degree murder statutes” in determining the
sufficiency of the convicting evidence. Id. The supreme court held that when a person kills
an unintended victim, that person may be convicted of first degree murder committed in the
perpetration of or attempt to perpetrate any first degree murder – felony murder or first
degree premeditated murder. Id. at 168-69. In Millen, the Defendant was attempting to kill
Tony Gray, a rival gang member, when he inadvertently shot Lanetta King, a 14-year old
bystander. Id. at 165. In holding that the defendant was guilty of the first degree
premeditated murder of Lanetta King, the supreme court stated that a person acts
intentionally “‘with respect to the nature of the conduct or to a result of the conduct when it
is the person’s conscious objective or desire to engage in the conduct or cause the result.’”
Id. at 168 (quoting Tenn. Code Ann. § 39-11-302). The supreme court further stated,

A plain reading of this statute as applied to first degree murder indicates that
a defendant’s conscious objective need not be to kill a specific victim. Rather,
the statute simply requires proof that the defendant’s conscious objective was
to kill a person, i.e., “cause the result.” In short, if the evidence demonstrates
that the defendant intended to “cause the result,” the death of a person, and that
he did so with premeditation and deliberation, then the killing of another, even
if not the intended victim (i.e., intended result), is first degree murder.

Id. at 168 (Tenn. 1999). The fact that the Defendant was convicted of attempted first degree

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murder does not lessen the applicability of the supreme court’s reasoning in Millen. This
court has stated that when a person attempts to kill someone but inadvertently injures
another, the defendant may be convicted of the attempted first degree murder of the
unintended victim. Joseph Jackson, 2007 WL 273649, at *4. Accordingly, we conclude that
the evidence was sufficient to sustain the Defendant’s conviction when the evidence
introduced at trial reflected that the Defendant attempted to kill Jeremy Gray but instead shot
Demarcus Fleming, Blessing Pollard, and Frederick Buford.

B. Unlawful possession

The Defendant contends that the evidence was insufficient to sustain his conviction
of unlawful possession of a weapon while at a public place but offers no argument in support
of this assertion. The State responds that this issue should be waived for the Defendant’s
failure to comply with Tennessee Court of Criminal Appeals Rule 10(b).

Issues that “are not supported by argument, citation to authorities, or appropriate
references to the record” may be waived by this court. Tenn. Ct. Crim. App. R. 10(b).
Regardless of waiver, the Defendant is not entitled to relief on this issue. The conviction of
unlawful possession of a handgun while in a public place requires proof that the Defendant
carried a handgun while “at a place open to the public where one (1) or more persons were
present.” Tenn. Code Ann. § 39-17-1307(a)(2)(c) (2006). The Defendant admitted that he
possessed two handguns while at the Riverview Community Park and that he possessed one
handgun while driving in his car before he was apprehended. There was no evidence to
suggest that the Defendant had a carrying permit for the weapons. Accordingly, we conclude
that the evidence was sufficient to sustain his conviction.

II. Identification at trial

The Defendant contends that the trial court erroneously instructed a witness, Ortanio
Sharp, to identify the Defendant and that the trial court’s order influenced the witness’s
testimony because the witness only complied with the order after the trial court threatened
to hold the witness in contempt and send him to jail. The Defendant further contends that
the witness should have been allowed to consult an attorney to explain “what penalties could
occur if he did not testify.” The State responds that the trial court “properly required the
witness to point at the defendant to identify him.” The State asserts that the witness had
already identified the Defendant and was merely refusing to point at the Defendant;
therefore, the trial court’s instruction to the witness did not influence the witness’s testimony
and did not prejudice the defense.

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The record clearly indicates what occurred in the trial court as relevant to this issue,
and we believe that a recitation of the line of questioning is appropriate here:

Attorney: Was anybody with Malone?
Witness: No, not at the time but Malone had contact with Fay.
Attorney: With who?
Witness: Fay.
Attorney: Do you know Fay’s real name?
(No audible response)
Attorney: Do you see Fay here in court?
Court: I’m sorry, do you know Fay’s real name and you just moved
your head. Is that a yes or a no?
Witness: No.
Court: Okay.
Attorney: Do you see Fay in the courtroom today?
Witness: Yep.
Attorney: All right. What I want you to do is this person that you refer to
as Fay, I want you to point him out for the jury and describe him
enough so that they know who you’re talking about in the
courtroom?
Witness: Ya’ll know who I’m talking about. I don’t have to point him
out.
Attorney: I know that you know but the jury doesn’t. So if you could point
him out for the jury and describe him.
Witness: I ain’t pointing.
Court: All right. Let’s - -
Witness: No sense pointing.

At this point, the trial court sent the jury out of the courtroom before engaging in further
discussion with the witness. The trial court instructed the witness that he could be charged
with contempt if he did not cooperate and testify as directed by the State. The trial court
noted for the record that the witness was smiling and appeared to be amused by the colloquy
before specifically instructing the witness that he would be held in contempt if he refused to
cooperate. The trial court further stated,

You’re refusing to testify. And I’m telling you that as part of your testimony
if you’re asked to point, you have to point, if you can point someone out. If
there is no one for you to point out, obviously, no. But you said, yes, but I
refuse to point. So you’re refusing to testify in this case. That’s what I take

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it as. So I want to know now, are you going to refuse to testify and violate my
court order or are you not going to?

In response, the witness asked to speak with the prosecutors. The trial court informed
the witness that he could not speak with them because he was in the middle of his testimony.
Defense counsel suggested that they should call the public defender’s office and have an
attorney appointed. The trial court continued his discussion with the witness and repeatedly
told the witness that if he refused to testify in the manner in which he was instructed, he
would be held in contempt of court. The trial court told the Defendant that an attorney could
be appointed to represent him but cautioned the witness that his refusal to testify could “mess
up the rest of his life.” Eventually, the witness agreed to testify and ultimately identified the
Defendant as the person whom he referred to as Fay.

When the trial court intervened, the witness had already indicated that “Fay” was in
the courtroom but had simply refused to point him out for the jury’s benefit. The trial court
never told the witness that he had to point at the Defendant. On the contrary, the trial court
told the witness that if the person whom he believed to be Fay was in the courtroom, he was
required to follow instructions and point to that person.

“[M]atters pertaining to the examination of witnesses” are entrusted to the sound
discretion of the trial court. State v. Schiefelbein, 230 S.W.3d 88, 133 (Tenn. Crim. App.
2007) (citing State v. Johnson, 670 S.W.2d 634, 636 (Tenn. Crim. App. 1984)). “Absent a
clear abuse of this discretion that results in manifest prejudice to the accused, this court will
not interfere with the trial court’s exercise of its discretion.” Id. As the witness had already
stated that Fay was in the courtroom, the trial court’s instructions did not influence the
witness’s testimony. Moreover, the Defendant was not prejudiced by the event because the
witness was instructed outside of the jury’s presence. Accordingly, we conclude that the trial
court did not abuse its discretion in instructing the witness.

III. Sentencing

The Defendant does not challenge the length of his sentence but contends that the trial
court erred in imposing partial consecutive sentences because imposition of the consecutive
sentences was not warranted given the facts of the case. The Defendant further contends that
the trial court’s finding relative to his “unwillingness to lead a productive life is an
assumption based on the nature of the crime and is not based in fact.” The Defendant asserts
that there was no proof in the record to support the trial court’s conclusion that “he resorted
to criminal activity in furtherance of an anti-societal lifestyle.” The State responds that the
record supports the trial court’s sentencing decision because the trial court properly
determined that the Defendant was a dangerous offender and that the aggregate length of the

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sentence reasonably related to the severity of the offenses. The State also submitted the
Defendant’s lengthy juvenile criminal history, which included juvenile adjudications for
disorderly conduct, burglary, theft, vandalism, and assault.

In imposing consecutive sentences, the trial court stated, “I find that [the Defendant]
is not only a dangerous offender, but an extremely dangerous offender” because the
Defendant’s behavior indicated “little or no regard for human life and no hesitation about
committing a crime in which the risk to human life was high.” The trial court discussed the
crime and the Defendant’s history contained in the pre-sentence report and found that “the
circumstances surrounding the commission of this offense [we]re aggravated;” that
confinement was “necessary to protect society from his unwillingness to lead a productive
life;” and that the aggregate length of the sentence “reasonably relate[d] to the offense of
which [the Defendant stood] convicted.” The trial court said that the aggregate length of the
sentence was a “problem” but concluded that 88 years was “not too much . . . of a sentence
for these offenses” considering the circumstances of the crime and the fact that the Defendant
would be “looking at a thirty percent parole eligibility on these cases.”

An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2005).
The appealing party has the burden of showing that the sentence is improper. However, “the
presumption of correctness which accompanies the trial court’s action is conditioned upon
the affirmative showing in the record that the trial court considered the sentencing principles
and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). If review of the record reflects that the trial court properly considered all relevant
factors, gave due consideration to each factor, and its findings of fact are adequately
supported by the record, this court must affirm the sentence. State v. Fletcher, 805 S.W.2d
785, 789 (Tenn. Crim. App. 1991). Should the record fail to demonstrate the required
considerations by the trial court, then appellate review of the sentence is purely de novo.
Ashby, 823 S.W.2d at 169.

Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b),
which states, in pertinent part, that the trial court may order sentences to run consecutively
if it finds by a preponderance of the evidence that “[t]he defendant is a dangerous offender
whose behavior indicates little or no regard for human life, and no hesitation about
committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-
115(b)(2), (4) (2006). When imposing consecutive sentences based on the defendant’s status
as a dangerous offender, the trial court must, “in addition to the application of general
principles of sentencing,” find “that an extended sentence is necessary to protect the public
against further criminal conduct by the defendant and that the consecutive sentences must
reasonably relate to the severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d

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933, 939 (Tenn. 1995). In all cases where consecutive sentences are imposed, the trial court
is required to “specifically recite [on the record] the reasons” behind imposition of
consecutive sentences. See Tenn. R. Crim. P. 32(c)(1); see, e.g., State v. Palmer, 10 S.W.3d
638, 647-48 (Tenn. Crim. App. 1999) (noting the requirements of Rule 32(c)(1) for purposes
of consecutive sentencing).

As noted above, the trial court discussed the reasons behind his sentencing decision
on the record. Following our review, we conclude that the record does not preponderate
against the trial court’s reasoning and ultimate sentencing decision and that the effective
sentence imposed was not greater than that deserved for the offenses in this case.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.

___________________________________
D. KELLY THOMAS, JR., JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1049010. Public record. Not legal advice.