The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 14, 2010
STATE OF TENNESSEE v. COURTENAY DARRELL ROBERTSON
Direct Appeal from the Circuit Court for Madison County
No. 08-433 Roy B. Morgan, Jr., Judge
No. W2009-01853-CCA-R3-CD - Filed November 18, 2010
A Madison County jury convicted the defendant, Courtenay Darrell Robertson, of attempted
second degree murder, a Class B felony; aggravated arson, a Class A felony; and felony
evading arrest, a Class E felony. The trial court sentenced the defendant as a Range II
offender to twenty years at 35% for attempted second degree murder, thirty-five years at
100% for aggravated arson, and four years at 35% for felony evading arrest, to be served in
the Tennessee Department of Correction. The trial court ordered the defendant to serve the
aggravated arson sentence consecutively to the attempted second degree murder sentence and
to serve the sentence for felony evading arrest concurrently with the other two sentences, for
a total effective sentence of fifty-five years. On appeal, the defendant argues that (1) the
evidence was insufficient to support the aggravated arson conviction; (2) dual convictions
for aggravated arson and attempted second degree murder violate double jeopardy principles;
and (3) his sentence is excessive. Following a thorough review, we affirm the judgments of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and D. K ELLY
T HOMAS, J R., JJ., joined.
Joseph T. Howell, Jackson, Tennessee, for the appellant, Courtenay Darrell Robertson.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; James G. Woodall, District Attorney General; and Jody Pickens, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Background
In August 2008, a Madison County grand jury indicted the defendant, Courtenay
Darrell Robertson, on four counts: (1) the attempted premeditated murder of Belinda Jones,
a Class A felony; (2) the aggravated assault of Belinda Jones, a Class C felony; (3)
aggravated arson, a Class A felony; and (4) felony evading arrest, a Class E felony. The
parties tried the case before a jury on May 19, 2009.
State’s Proof. Nicky Parker testified that in November 2007, she lived in an
apartment complex on Daughtery Street in Jackson, Tennessee. The victim was her
neighbor. On November 24, 2007, at approximately 5:00 a.m., Ms. Parker was asleep in her
apartment when screaming outside awakened her. The screaming continued, and the fire
alarm sounded. Ms. Parker said that she thought the apartment was on fire, so she opened
the front door. When she opened the door, she saw the victim standing in the doorway. Ms.
Parker testified that she could tell the victim had been burned because the skin on her face
and chest was peeling off and had become discolored. The victim said, “[S]omebody call
911[;] he just set me on fire.” Ms. Parker brought the victim into her apartment, wrapped her
in a blanket, and sat her on a table. She called 911, and as the dispatcher asked questions,
she relayed the questions to the victim and told the dispatcher the victim’s responses. The
victim said that her boyfriend, the defendant, was responsible and that he was driving a
purple car. Ms. Parker could not recall the model of the car. Ms. Parker testified that she
went to the victim’s apartment and discovered a box burning under the table. She put out the
fire. Ms. Parker testified that there was a mud puddle behind the apartment building, but the
victim did not say anything to her about the puddle.
Officer Jay Stanfill, a patrol officer with the Jackson Police Department, testified that
on November 24, 2007, he responded to a call that an individual had been set on fire at 504
Daughtery Street. He arrived at the location within approximately three minutes. He went
inside Ms. Parker’s apartment and asked her where the individual was. Officer Stanfill said
that he did not realize that the seated figure in front of him was a human until Ms. Parker
instructed him that the figure was the victim. He testified, “[I]t just didn’t catch my eye as
being a person because it was so badly disfigured and just different colors. It didn’t look
human.” Officer Stanfill said that the victim’s skin on her forearms and neck was “peeled
back and broken.” Her jaw “looked more like plastic . . . . [Her skin] was fused together .
. . .”
Officer Stanfill asked the victim who was responsible, and she said that her boyfriend,
the defendant, was. He could not recall asking the victim what the defendant was driving,
but he said that another individual at the scene confirmed that the defendant was driving a
1970s model, purple Catalina. Officer Stanfill, who was a trained crime scene technician,
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took photographs of the interior of the victim’s apartment. Specifically, he photographed a
bottle of rubbing alcohol that did not have a top or seal; a bottle of rubbing alcohol that was
half-full but capped; a beer bottle that was cool to the touch; a box of what he believed to be
CDs and DVDs that had been set afire and recently extinguished; a portion of a lady’s bra,
which was burnt; a bottle of salt that “was almost completely melted;” a cigarette lighter; and
bedding material that was in a mud puddle outside of the victim’s apartment.
Dr. Michael Revelle, an emergency room physician at Jackson-Madison County
General Hospital, testified as an expert in emergency medicine. Dr. Revelle treated the
victim in the emergency room the morning of the incident. He testified that she had second
degree burns to her face, front and back of both arms, chest, and three-quarters of her
abdomen. Dr. Revelle testified that “[s]econd degree burns are probably the most painful
burns you can have.” He said that the integrity of her skin had diminished to the point where
it was “almost melted.” He also said that she “had a lot of mud and dirt [on her] as if she had
tried to either roll in the mud or something to put herself out.” Dr. Revelle testified that the
victim told him that “her boyfriend poured rubbing alcohol on her and set her on fire.” She
told him that she rolled on the ground to put out the fire. Dr. Revelle estimated that sixty
percent of her body was burned, and there was a high risk of her dying. Dr. Revelle stated
that the mud and dirt on her body increased the risk of infection. He immediately referred
her to the Elvis Presley Memorial Burn and Trauma Center in Memphis, Tennessee, and an
air medical evacuation helicopter transported her there.
Officer Buddy Crowell, a patrol officer with the Jackson Police Department, testified
that he was in the Lincoln Courts area when he received a call that a man had set a woman
on fire on Daughtery Street. As he was driving to that location, he received information that
the defendant was driving a purple Catalina. Officer Crowell saw the defendant pass by him
at Whitehall Street and Highway 70. Officer Crowell testified that the defendant was driving
at a high rate of speed. Officer Crowell pursued the defendant and caught up with him at
Ridgecrest Road and F.E. Wright Drive, when the defendant stopped at a red light. Officer
Crowell confirmed that the vehicle was a purple Catalina and radioed the license plate
number to dispatch. He activated his lights and sirens and attempted to pull the defendant
over. The defendant “took off in a very fast manner” toward Christmasville Road. Officer
Crowell pursued the defendant, and he testified that his vehicle reached eighty miles per hour
as he went over the I-40 bridge. The defendant proceeded down Christmasville Road,
reaching speeds in excess of 100 miles per hour. Officer Crowell testified that he could see
the defendant because he was leaning out of the vehicle’s door, looking back at him. The
defendant was also pointing something at Officer Crowell, but he was unable to tell what it
was. Officer Crowell testified that the chase lasted between three and five miles, and the
maximum speed reached was 110 miles per hour. The defendant turned off of Christmasville
Road and drove into the yard of 43 Greenview Drive. The defendant got out of the vehicle
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and ran into a wooded area. Officer Crowell lost sight of him and radioed for back-up.
Officer Crowell testified that his patrol car’s camera captured the pursuit, and the state played
that video for the jury.
Officer Stephen Story, a patrol officer with the Jackson Police Department, testified
that he was a part of the perimeter set up to contain the defendant after he ran away from his
vehicle. A helicopter with infrared equipment was flying over the area. The officers on
board the helicopter spotted a heat signature in the woods near Officer Story and directed him
to the heat signature. Following their directions, Officer Story located the defendant hiding
under a bush. Officer Story testified that the defendant complied with every instruction he
gave. Officer Story took the defendant into custody and performed a search incident to
arrest. He discovered a broken red lighter in the defendant’s jacket pocket. Officer Story
collected the defendant’s clothing as evidence once they arrived at the Criminal Justice
Center.
The victim testified that she was twenty-five years old. She had been in a relationship
with the defendant since she was seventeen, and they had two daughters, ages seven and
eight. The victim said that in November 2007, she and the defendant were seeing other
people, and the defendant was not living with her. On November 24, 2007, the defendant
knocked on her door at approximately 5:00 a.m. She let him inside, and they began arguing
about their relationship. The defendant told her that he was going to throw alcohol on her.
She said that she was wearing a shirt and underwear at the time. The defendant threw
alcohol on her chest and struck a lighter. She said it happened very fast. The victim testified
that when he struck the lighter, her shirt “just blazed up.” She said that she could not
describe what it felt like it. She ran outside and rolled in the grass before going to her
neighbor’s apartment. She yelled for her neighbor to call the police. The victim said that the
defendant was standing on the porch while she was trying to put herself out, and he got into
his car and drove away when she went to her neighbor’s apartment. The last thing she
remembered about November 24 was getting into the back of an ambulance. When she woke
up several weeks later, she was in a hospital bed in Memphis. The victim testified that she
did not leave the hospital until March 4, 2008. She said that she was still suffering from her
injuries. She had skin grafts on one arm, and she planned to have more grafts on the other
arm and possibly her neck and face.
On cross-examination, the victim testified that she and the defendant ended their
exclusive relationship approximately one year prior to the incident. The night before the
incident, she had a Thanksgiving meal with her friends, family, and the defendant. She
recalled that she was supposed to go to Humboldt with the defendant but changed her mind.
She did not remember why she did not go. She said that the argument was about her seeing
other men and the defendant seeing other women, but she said that she had not been dating
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anyone at the time. She recalled that the defendant did not try to aid her or extinguish the
fire.
Defense Proof. The defendant testified that he and the victim had a good relationship
until she began seeing other men. The night before he set her on fire, he made Thanksgiving
dinner for them and their family and friends. Afterwards, they planned to go to Humboldt
together, but the victim changed her mind about going. He was suspicious of her reasoning
but went to Humboldt without her. Later that night, she picked him up in Humboldt, and
they returned to Jackson. The two decided to go to a night club. The defendant said that he
changed his mind about going to the club, so they bought beer and went back to the victim’s
apartment. The defendant said that he was living with the victim at the time and had a key
to her apartment. The defendant testified that he tried to talk to the victim about why she did
not want to go to Humboldt, but she became annoyed. The defendant said that she told him
that she did not love him anymore and did not want to be with him. He testified, “Before I
knew it[,] I had grabbed the alcohol[, and] next thing I [knew] she was on fire.” He said that
he grabbed a blanket and tried to put the fire out. He followed her outside with the blanket.
The defendant testified that he thought he put the fire out. He said that when he looked at
her, he panicked and ran away. He admitted that he was the driver of the car shown in the
police footage of the high speed chase. The defendant explained that he was scared and did
not know if the police would shoot him, so he tried to get to his mother’s house. The
defendant testified that he did not intend to harm the victim, that he loved her, and that he
was sorry for what he did to her.
On cross-examination, the defendant admitted that he was responsible for the victim’s
injuries and that he was guilty of evading arrest. He testified that he did not tell Investigator
Michael Parsons that he wanted the victim to feel the pain he was feeling. The defendant
further testified that he did not sign his statement as written by Investigator Parsons because
Investigator Parsons did not write his statement correctly and because an attorney had
advised him to never sign anything the police wrote.
State’s Rebuttal Proof. Investigator Michael Parsons, a violent crime investigator
with the Jackson Police Department, testified that he interviewed the defendant and took
notes during the interview. He testified that the defendant told him, “I should have just left,
but my heart was hurting so bad I wanted her to feel the pain that I was feeling because she
won’t let me go.” Investigator Parsons said that the defendant must not have given him a
home address because he wrote “at large” on that section of the interview form.
On cross-examination, Investigator Parsons testified that the defendant told him that
he had a key to the victim’s apartment.
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Following the close of proof and deliberations, the jury convicted the defendant of the
lesser included offense of attempted second degree murder, a Class B felony; aggravated
arson, a Class A felony; and felony evading arrest, a Class E felony. The trial court
sentenced the defendant as a Range II offender to twenty years at 35% for attempted second
degree murder, thirty-five years at 100% for aggravated arson, and four years at 35% for
felony evading arrest, to be served in the Tennessee Department of Correction. The trial
court ordered the defendant to serve the aggravated arson sentence consecutively to the
attempted second degree murder sentence and to serve the sentence for felony evading arrest
concurrently with the other two sentences, for a total effective sentence of fifty-five years.
The court denied the defendant’s motion for new trial, and he filed a timely notice of appeal.
Analysis
On appeal, the defendant argues that the evidence was insufficient to support his
conviction for aggravated arson. In the alternative, he contends that dual convictions for
aggravated arson and attempted second degree murder violate double jeopardy principles and
that the trial court erred by imposing consecutive sentences for aggravated arson and
attempted second degree murder.
Sufficiency of the Evidence
The defendant argues that the evidence was insufficient to support his conviction for
aggravated arson. Specifically, he contends that he did not intentionally damage by means
of fire any personal property of the victim because he set her person on fire. The state
responds that the defendant’s motive to harm the victim and not her property is irrelevant to
his conviction. Additionally, the state argues that the victim’s shirt was personal property.
Upon review, we reiterate the well-established rule that once a jury finds a defendant
guilty, his or her presumption of innocence is removed and replaced with a presumption of
guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the
convicted defendant has the burden of demonstrating to the appellate court why the evidence
will not support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000);
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the defendant must
establish that no “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); State v. Evans,
108 S.W.3d 231, 236 (Tenn. 2003); see Tenn. R. App. P. 13(e). In contrast, the jury’s
verdict, approved by the trial judge, accredits the state’s witnesses and resolves all conflicts
in favor of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled
to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. Carruthers, 35 S.W.3d at 558. Questions concerning the
credibility of the witnesses, conflicts in trial testimony, the weight and value to be given the
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evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not
this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to
re-weigh or re-evaluate the evidence. State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006).
Likewise, we do not replace the jury’s inferences drawn from the circumstantial evidence
with our own inferences. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
To sustain the defendant’s conviction for aggravated arson, the state had to prove
beyond a reasonable doubt that the defendant committed arson and that the victim suffered
serious bodily injury. In this case, the indictment alleged that the defendant committed arson
as defined in Tennessee Code Annotated section 39-14-303 by setting fire to the personal
property of the victim without her consent. The fact that the victim experienced serious
bodily injury as a result of the fire is not in dispute.
The central issue is whether the victim’s shirt constituted “personal property” when
she was wearing the shirt at the time the defendant poured alcohol on her and set the fire.
The Tennessee Code Annotated defines “property” as “anything of value, including, but not
limited to, money, real estate, tangible or intangible personal property . . . .” Tenn. Code.
Ann. § 39-11-106(a)(28). “‘Personal property’ includes money, goods, chattels, things in
action, and evidences of debt.” Id. § 1-3-105 (21). Under these definitions, the victim’s shirt
constituted personal property. The question remains, however, whether the fact that she was
wearing the shirt transformed the character of the shirt as personal property. In other words,
were the victim’s shirt and her person one and the same? While there does not appear to be
any Tennessee cases on point, certain out-of-state cases are helpful to our review of this
issue.
In the California case of People v. Reese, the California Court of Appeal reasoned that
the legislature intended to protect personal clothing, “particularly clothing being worn at the
time of the burning or fire,” when it expanded the definition of the term “property,” as used
in the arson statute, to include personal property. People v. Reese, 227 Cal. Rptr. 526, 528
(Cal. Ct. App. 1986).
In State v. Harrington, the defendant poured lamp oil on the victim and her clothing
and set her and her clothing on fire. Harrington, 782 So.2d 505, 506 (Fla. Dist. Ct. App.
2001). The victim subsequently died because of her injuries, and the state charged the
defendant with murder and arson. Id. The trial court dismissed the arson charge, in part
because it did not consider the burning of the victim’s clothing to be sufficient to support the
charge. In interpreting the arson statute, which defined arson as damaging by fire “a
dwelling or its contents,” the Florida District Court of Appeal ruled that the victim’s clothing
constituted contents of a dwelling. It reasoned as follows:
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Clearly, if [the defendant] had gone to a closet and set fire to any of [the
victim’s] clothing hanging in the closet, we would not be faced with this issue.
Merely because [the victim] was wearing the clothing at the time [the
defendant] set the clothing on fire does not make them any less “contents” of
the dwelling.
Id. at 507 (citation omitted).
We find the analysis and reasoning set forth in the aforementioned cases to be
persuasive and applicable to this case. In this case, the evidence established that the
defendant poured alcohol on the victim and her shirt, then struck a lighter. The victim
testified that when the defendant struck the lighter, her shirt “just blazed up.” She did not
give consent to the defendant to set fire to her shirt, and she suffered second degree burns to
sixty percent of her body. We conclude, therefore, that the evidence was sufficient for a
rational jury to find, beyond a reasonable doubt, that the defendant was guilty of aggravated
arson.
Double Jeopardy
For his second argument, the defendant claims that dual convictions for aggravated
arson and attempted second degree murder, under the facts of this case, violate his
constitutional protection against double jeopardy. Specifically, he argues that the same
course of conduct established both offenses; the offenses involved one victim and a single
discrete act; and the statutes have the same legislative purpose. The state responds that each
offense required proof independent of the other and that the statutes have different legislative
purposes.
The Double Jeopardy Clause in the United States Constitution provides that no person
“shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .”
U.S. Const. amend V. Similarly, the Tennessee Constitution states that “no person shall, for
the same offense, be twice put in jeopardy of life or limb.” Tenn. Const. art. I, § 10. The
constitutional right against double jeopardy protects against, inter alia, multiple punishments
for the same offense. State v. Denton, 938 S.W.2d 373, 378-79 (Tenn. 1996). To determine
whether a defendant has received multiple punishments for the same offense, our supreme
court has said that the reviewing court should consider: (1) the statutory elements of the
offenses; (2) the evidence used to prove the offenses; (3) whether there were multiple victims
or discrete acts; and (4) the purposes of those respective statutes. Id. at 381. “None of these
steps is determinative; rather the results of each must be weighed and considered in relation
to each other.” Id. at 381.
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A defendant commits attempted second degree murder when he or she takes a
substantial step towards the knowing killing of another. Tenn. Code Ann. §§ 39-13-
210(a)(1); -12-101. The indictment specifically charged the defendant with taking the
substantial step of setting the victim on fire. Aggravated arson, as charged in this case, is
committed when a defendant knowingly damages personal property by means of fire, without
the owner’s consent or with intent to destroy the property for any unlawful purpose, and any
person suffers serious bodily injury as a result of the fire. Id. §§ 39-14-303, -302. Therefore,
aggravated arson requires proof that the offender knowingly damaged property by fire, which
is not an element of attempted second degree murder. Additionally, attempted second degree
murder requires proof that the offender was aware that his conduct was reasonably certain
to kill the victim, which is not required by the arson statutes. However, the defendant
maintains that the proof was the same for each offense. Here, the proof showed that the
defendant poured alcohol on the victim and her clothing, struck a cigarette lighter, and set
the victim on fire. The proof that he poured alcohol on the victim’s body and set her on fire
supported the attempted murder conviction, and the proof that he poured alcohol on her shirt
and set her shirt on fire supported the aggravated arson conviction. Under the third prong
of the Denton analysis, we note that there was a single victim, and the same course of
conduct - pouring alcohol and striking a cigarette lighter - led to both offenses. In examining
the legislative purpose behind the offenses, we conclude that they are different because the
plain language of the statutes reveals that the legislative intent behind the attempted second
degree murder statutes is protection of the person, while the legislature intended to protect
property through the arson statutes. See Tenn. Code Ann. §§ 39-13-210(a)(1), -12-101; 39-
14-303, -302. Therefore, the elements of the offenses were not identical, the evidence
proving the offenses was separate, and the legislature intended to protect different interests
through the statutes. The fact that a single victim and single course of conduct were involved
is not sufficient to outweigh the other three factors. We conclude that dual convictions for
aggravated arson and attempted second degree murder, under the facts of this case, do not
violate the principles of double jeopardy. Therefore, the defendant is without relief on this
issue.
Sentencing
For his final argument, the defendant contends that his sentences for attempted
second-degree murder and aggravated arson are excessive. Specifically, he argues that the
trial court erred by applying enhancement factors that were elements of the offenses and by
imposing consecutive sentences. The defendant does not challenge his offender status or the
application of three of the five enhancement factors found by the trial court.
A. Standard of Review
An appellate court’s review of a challenged sentence is de novo on the record with a
presumption the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d).
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The Sentencing Commission Comments to this section of the statute indicate that the
defendant bears the burden of establishing that the sentence is improper. When the trial court
follows the statutory sentencing procedure and gives due consideration to the factors and
principles relevant to sentencing, this court may not disturb the sentence. See State v. Carter,
254 S.W.3d 335, 344-45 (Tenn. 2008).
B. Enhancement Factors
It is well-settled that statutory enhancement factors may not be applied if they are
essential elements of the offense or if they are inherent within the offense. See Tenn. Code
Ann. § 40-35-114; see also State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). In this case,
the trial court found that the following enhancement factors applied: (1) the defendant has
a history of criminal convictions and behavior in addition to those necessary to establish the
range; (2) the defendant treated the victim with exceptional cruelty; (3) the personal injuries
inflicted were particularly great; (4) the defendant had failed to comply with a sentence
involving release into the community; and (5) the defendant was on probation at the time he
committed the offenses. The defendant contends that the trial court improperly applied the
enhancement factors that he treated the victim with exceptional cruelty and that the injuries
inflicted were particularly great because those factors are elements of the offenses.
In order to sustain application of the “exceptional cruelty” enhancement factor, the
facts of the case “must ‘denote[ ] the infliction of pain or suffering for its own sake or from
the gratification derived therefrom, and not merely pain or suffering inflicted as the means
of accomplishing the crime charged.’” State v. Arnett, 49 S.W.3d 250, 258 (Tenn. 2001)
(quoting State v. Kelly Haynes, No. W1999-01485-CCA-R3-CD, 2000 WL 298744, at *3
(Tenn. Crim. App., at Jackson, Mar. 14, 2000). At trial, Investigator Parsons testified that
the defendant told him that he wanted the victim to experience the pain that he was feeling.
In our view, this testimony denotes the infliction of pain or suffering for its own sake beyond
that necessary to establish the offenses. Therefore, the trial court did not err by applying this
enhancement factor.
As for the “particularly great injury” enhancement factor, the Tennessee Supreme
Court has previously held that “the conditions for proving the serious bodily injury element
‘satisfy the definition of a “particularly great” injury’ and that ‘proof of serious bodily injury
will always constitute proof of a particularly great injury.’” State v. Poole, 945 S.W.2d 93,
98 (Tenn. 1997) (quoting State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994)) (internal
footnotes omitted). In this case, serious bodily injury is an essential element of aggravated
arson. Tenn. Code Ann. § 39-14-302(a)(2). Therefore, we conclude that the trial court erred
by applying the “particularly great injury” enhancement factor to the aggravated arson
sentence. However, serious bodily injury is not an essential element of attempted second
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degree murder, and the trial court did not err by applying the “particularly great injury”
enhancement factor to the attempted second degree murder sentence.
An error in the application of enhancement factors will not necessarily result in
modification of the sentence if the trial court, in determining the specific sentence,
considered the nature and characteristics of the crime, the character and background of the
defendant, and the purposes of the Sentencing Act. See Tenn. Code Ann. § 40-35-210(b).
Despite the trial court’s reliance on an inapplicable enhancement factor, the record supports
the court’s consideration of the remaining four enhancement factors with regard to the
aggravated arson sentence. The record supports the trial court’s reliance on all five
enhancement factors with regard to the attempted second degree murder sentence. The
record reflects that in determining the specific sentence length, the trial court considered the
provisions of Tennessee Code Annotated section 40-35-210, as well as the required
principles of sentencing. As such, we affirm the length of the sentences as imposed.
C. Consecutive Sentencing
The defendant contends that the trial court erred by imposing consecutive sentences
for aggravated arson and attempted second degree murder because the convictions stemmed
from a single act.
Generally, it is within the discretion of the trial court to impose consecutive sentences
if it finds by a preponderance of the evidence that at least one of following statutory criteria
apply:
(1) [t]he defendant is a professional criminal who has knowingly
devoted such defendant’s life to criminal acts as a major source
of livelihood;
(2) [t]he defendant is an offender whose record of criminal
activity is extensive;
(3) [t]he defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a result
of an investigation prior to sentencing that the defendant’s
criminal conduct has been characterized by a pattern of
repetitive or compulsive behavior with heedless indifference to
consequences;
(4) [t]he defendant is a dangerous offender whose behavior
indicates little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life is
high;
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(5) [t]he defendant is convicted of two (2) or more statutory
offenses involving sexual abuse of a minor with consideration
of the aggravating circumstances arising from the relationship
between the defendant and victim or victims, the time span of
defendant’s undetected sexual activity, the nature and scope of
the sexual acts and the extent of the residual, physical and
mental damage to the victim or victims;
(6) [t]he defendant is sentenced for an offense committed while
on probation; or
(7) [t]he defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b).
If the court concludes the defendant is a dangerous offender under Tennessee Code
Annotated section 40-35-115(b)(4), it must make two further determinations in addition to
applying general sentencing principles. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
First, it must find an extended sentence is necessary to protect the public from further
criminal conduct by the defendant, and, second, it must find consecutive sentencing to be
reasonably related to the severity of the offenses. State v. Wilkerson, 905 S.W.2d 933, 939
(Tenn. 1995). However, such specific factual findings are unnecessary for the other
categories of Tennessee Code Annotated section 40-35-115(b). State v. Lane, 3 S.W.3d 456,
461 (Tenn. 1999).
In this case, the trial court found that (1) the defendant had an extensive criminal
history; (2) he was on probation when he committed the offenses; and (3) he was a dangerous
offender. The court further found that “[t]he circumstances surrounding the commission of
the offenses [were] aggravated, and . . . confinement for an extended period of time [was]
necessary to protect society from the Defendant’s unwillingness to lead a productive life . .
. and . . . the aggregate length of sentences reasonably relate[d] to the offense[s] . . . .” A trial
court need only find one statutory criterion to support an imposition of consecutive sentences.
See State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Here, the trial court found
that three separate statutory criteria applied to the defendant and made the additional findings
necessary under Wilkerson when the defendant is a dangerous offender. The record does not
preponderate against the trial court’s findings, and the defendant does not present any
statutory or case law to support his position that consecutive sentences should not be imposed
under the facts of this case. Therefore, the defendant is without relief on this issue.
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Conclusion
Based on the foregoing reasons, we affirm the judgments of the trial court.
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J.C. McLIN, JUDGE
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