State of Tennessee v. Larry Allen Whited and William Henry Rutherford

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 22, 2005 Session

STATE OF TENNESSEE V. LARRY ALLEN WHITED

and WILLIAM HENRY RUTHERFORD

Appeal from the Criminal Court for Sumner County

No. 186-2003 Jane Wheatcraft, Judge

No. M2005-00167-CCA-R3-CD - Filed March 7, 2006

The Defendants were convicted of second degree murder and reckless endangerment. Defendant

Whited was also convicted of three counts of aggravated assault. On appeal, both Defendants argue

that the trial court erred by allowing the State to introduce evidence of certain activity they engaged

in after the crimes were committed, and that the evidence is insufficient to support their convictions.

Defendant Whited argues that the trial court erred by denying his motion to suppress the statement

he gave to the police. Both Defendants also challenge the trial court’s sentencing determination.

After review, we affirm the trial court’s judgments in all respects.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH , J., joined.

DAVID G. HAYES, J., filed a dissenting opinion.

Walter H. Stubbs, Gallatin, Tennessee, for the appellant, Larry Alan Whited.

Charles R. Bobbitt, Jr., Hendersonville, Tennessee, for the appellant, William Henry Rutherford.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;

Lawrence Ray Whitley, District Attorney General; and Sallie Brown, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

On March 6, 2003, the Sumner County Grand Jury indicted Defendants Larry Whited and

William Rutherford for premeditated and felony first degree murder and attempted first degree

murder. Defendant Whited was also indicted for three counts of aggravated assault. Following a

trial in April 2004, a jury convicted Whited of second degree murder, reckless endangerment, and

three counts of aggravated assault. The same jury convicted Defendant Rutherford of second degree

murder and reckless endangerment. The trial court sentenced Whited to twenty-five years for second

degree murder, two years for reckless endangerment, and six years for each aggravated assault

conviction, all of which were ordered to be served consecutively. Rutherford received consecutive

sentences of twenty-five years for second degree murder and two years for reckless endangerment.

Both Defendants filed motions for new trials, which were denied, and both have now appealed to

this Court.

The crimes in this case occurred in Gallatin on the evening of January 12, 2003. Whited

confronted Rhonda Demoss at her residence about statements she allegedly made to his wife

suggesting he was having an extramarital affair. Rutherford accompanied Whited to the Demoss

residence. Several other people were present at Rhonda Demoss’ home when the Defendants

arrived: Wayne Demoss, Rhonda Demoss’ husband; Charlie Demoss, Wayne Demoss’ brother;

Brandon Williams, a family friend; April Murdock, Wayne Demoss’ cousin who lived with Rhonda

and Wayne; Heather Engeman, a family friend; and Triston Bolton and Tyler, two young children

who Rhonda Demoss babysat. Both Defendants were armed with weapons when they arrived at the

Demoss residence. Altercations ensued during which Mr. Williams and Charlie Demoss were shot.

Mr. Williams, who was twenty years old, died as a result of his wounds; Charlie Demoss was not

fatally wounded and was able to flee from the home and seek help. The Defendants fled the

premises, but they were arrested the following day.

The following is a summary of the trial testimony. Rhonda Demoss and her family were

friends with both of the Defendants. When the Defendants knocked on Ms. Demoss’ front door,

Charlie Demoss opened the door and allowed them inside. The Defendants appeared to be angry.

Once inside, Whited approached Wayne Demoss, who was sitting in a reclining chair, pointed his

SKS assault rifle at him, and demanded money. Because they knew each other, Wayne Demoss

thought Whited was just joking around, so he stood up and pushed the rifle away. However, Whited

said he was not playing, and he aimed his rifle back at Wayne Demoss’ face. Wayne Demoss

thought: “I was fixing to die.” Whited then directed Rutherford, who was holding a 9-millimeter

Ruger semiautomatic handgun, to shoot Wayne Demoss. At this point, Charlie Demoss attempted

to intervene, and he initially succeeded in getting the gun from Rutherford. During the ensuing

struggle, Rutherford pulled the gun away from Charlie Demoss’ hand and shot him in the side.

Charlie Demoss ran upstairs; Wayne Demoss went into the kitchen to quiet the dogs but then

“slipped out the back door to try to get help.”

Ms. Demoss was upstairs checking on Triston when she saw Charlie Demoss. After learning

he had been shot, Ms. Demoss told her brother-in-law he had to leave, so they pushed out the

window screen. He then jumped from the second-story bedroom window and ran to get help.

Meanwhile, Ms. Demoss grabbed Triston and was on her way to Ms. Murdock’s bedroom to hide

him in the closet where Ms. Murdock had hidden Tyler when Whited came up the stairs. Whited

pointed his rifle at Ms. Demoss and yelled at her to put the baby down. Triston was still crying after

hearing the gunshot that struck Charlie Demoss.

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While standing at the top of the steps with his rifle pointed at her face, Whited questioned

Ms. Demoss about why she told his wife earlier that day that he was cheating on her. Whited told

Ms. Demoss that she owed him $2,000 because his wife destroyed some of his belongings after

hearing about his alleged affair. According to Ms. Demoss, Whited had a “look in his eyes. . . . Like

he was fixing to blow my head off or evil. Not a look I had ever seen on his face before.” Whited

was yelling at Ms. Demoss the entire time, and she thought to herself, “He was fixing to blow my

brains out.” Ms. Murdock and Ms. Engeman were standing near Ms. Demoss. Ms. Murdock begged

Whited not to hurt anyone. Whited pointed his rifle at her as well and yelled for her to keep quiet.

Ms. Demoss noticed Mr. Williams “creeping up” the stairs behind Whited. Whited turned around,

pointed the rifle at Mr. Williams, and yelled at Rutherford to “come get this bitch.” Mr. Williams

started backing down the stairs. Ms. Demoss and Ms. Murdock then observed Rutherford approach

Mr. Williams, point his handgun at his head, and lead him around the corner and out of view.

After Rutherford led Mr. Williams down the stairs, Ms. Demoss heard three gunshots within

what “seemed like a matter of seconds.” Ms. Murdock also heard the gunshots “right after”

Rutherford led Mr. Williams down the stairs and out of their sight. After hearing the gunshots,

Whited looked Ms. Demoss in the eyes, then turned and ran down the stairs. “And then just a couple

of seconds after he got down there, [Ms. Demoss] heard a different boom. And then [she] heard one

of them say, ‘Let’s bounce.’” When she went downstairs after the Defendants left the home, Ms.

Demoss saw Mr. Williams lying on the kitchen floor. He looked at her and begged her not to let him

die. Lying on the floor next to Mr. Williams was a knife, which Ms. Demoss placed on the counter

top. Ms. Engeman and Ms. Murdock stayed in the kitchen with Mr. Williams while Ms. Demoss

ran next door for help. Mr. Williams said to Ms. Murdock, “L.C. and Will. L.C. and Will. William

Rutherford did this.” L.C. is Whited’s nickname.

When Wayne Demoss left his house, he went to the home of their neighbor, Danny Burnette.

He told Mr. Burnette “they were shooting” and asked Mr. Burnette to get him out of the

neighborhood. Mr. Burnette saw the Defendants exit the Demoss residence. Both men were

carrying weapons. Mr. Burnette asked them what happened; Whited said: “He killed the

motherfucker.” The Defendants got into their car, and Mr. Burnette followed them. He noticed

Rutherford throw a pistol out the window.

The police found one bullet in the living room where Charlie Demoss was shot and three in

the kitchen where Mr. Williams was shot. One bullet was recovered from Mr. Williams’ body. All

of the bullets and shell casings were fired from the 9-millimeter Ruger. No shell casings were found

in the kitchen, and no blood stains were found in the living room. Gunshot residue was found on

the shirt Rutherford was wearing at the time of his arrest. Mr. Williams suffered four gunshot

wounds, two of which entered through his back. According to the medical examiner: “This pattern

of bullets, where the victim is shot in front, in the back; also shot on one side or the other, tells me

that this person was moving. It was a very dynamic scene, meaning there was movement going on.

This person was turning and moving as they were being shot.”

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The Defendants were arrested in a Nashville hotel room the following afternoon, January 13,

2003. Two women were present in the Defendants’ hotel room. Inside the hotel room, the police

found one ammunition round matching the assault rifle, a pipe used for smoking crack cocaine, and

a plastic bag containing eleven Xanax pills. When first interviewed by the police, both Defendants

denied any involvement in the crimes. They stated they were in Nashville in the hotel room with the

same two females watching television, taking drugs and having sex. When asked to explain why

eyewitnesses placed both of them at the Demoss residence on the evening of January 12, 2003, the

Defendants said the witnesses were lying. Upon further questioning by the police, both Defendants

eventually gave confessions. Rutherford told the police they were going to the Demoss residence

“to shoot up the house but we thought that wasn’t smart seeing how there might be some kids in

there.” Rutherford stated that he shot Mr. Williams because Mr. Williams was advancing toward

him with a knife in his hand.

I was like ah, Tank [Mr. Williams’ nickname] man chill Cuz it don’t concern you

like this man just chill. He kept saying I’m gonna die today, I’m gonna die today one

of y’all is gonna kill me, that’s all he kept saying and he came back downstairs and

so I’m watching you know what I’m saying so he went in there and picked up a big

ass kitchen knife man I was scared for my life, no lie, I was scared for my life so I

shot him. . . . It was like a movie you wouldn’t even believe. I shot him one time in

his arm and he like looked at it man like it wasn’t nothing. He said is that all and I

did it again. . . . Yea and I was telling him man, please Cuz stop don’t come in here

with that knife he just kept coming man.

Whited initially stated that they went to the Demoss residence with the intent to kill Ms.

Demoss. However, he stated they changed their mind and decided just to scare Ms. Demoss because

children would be present. “I mean we just went in with the sole purpose just to put some fear in

their heart.” He admitted pointing his weapon at Wayne Demoss and Ms. Demoss while she was

holding Triston. Whited stated that he acquired both of the weapons in advance and asked

Rutherford to join him in going to the Demoss residence. Whited admitted he was upset with Ms.

Demoss for telling his wife about his alleged affair and said his anger was the motivation for his visit

to her home that night. Both Defendants said they cried over the loss of their friend.

A sentencing hearing was conducted on June 24, 2004. At the time of the offenses in this

case, Rutherford was nineteen years old and Whited was twenty-one years old. Rutherford has an

extensive record of juvenile court proceedings in Sumner County. He was in and out of foster care

during his youth. At the time of his arrest, Rutherford was on probation for an assault conviction.

According to the presentence report, Rutherford was raised by his aunt. He did not know his mother

and did not have a personal relationship with his father. Rutherford dropped out of school after the

eleventh grade and has a sporadic work history.

Whited also has an extensive juvenile record and was in and out of state custody and foster

care during his adolescence. At the time of his arrest, Whited was on probation for a conviction for

attempt to possess under .5 grams of cocaine for resale. Whited also has a prior conviction for

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assault. Whited dropped out of high school, but he has completed his GED. Whited was married

at the time of the offenses, and he has a son. He was unemployed and has a sporadic work history.

During the sentencing hearing, several of the victim’s family members testified about the loss

of Mr. Williams. They asked the court to impose the maximum sentences for the crimes committed.

Whited’s mother, Tammy Whited, testified on his behalf. Whited has two younger brothers. His

father was abusive, and his mother moved with her three children to Tennessee when Whited was

about six years old. Ms. Whited acknowledged that her son was in and out of state custody from age

ten or eleven until adulthood. It is evident from her testimony that Ms. Whited was not particularly

involved in her son’s childhood: “Well, basically, I mean, I had three kids. It wasn’t a whole lot.

He was probably eleven and taking care of his brothers because I couldn’t afford to put a roof over

their head and feed them and be there all at the same time. He has had it kind of rough.” Rutherford

did not call any witnesses at sentencing to testify on his behalf.

Following the imposition of the sentences, the Defendants filed motions for new trials. The

trial court held a hearing on the motions, and after listening to the arguments of counsel, the court

denied the Defendants’ motions. This appeal followed.

ANALYSIS

On appeal, both Defendants raise issues concerning errors committed at trial and during

sentencing. They claim the trial court erred in allowing the State to introduce evidence about their

activity after the crimes. They also contend the evidence was insufficient to support their

convictions. In addition, Whited argues that the trial court erred in denying his motion to suppress

his statement to the police. Both Defendants also claim the trial court did not follow the applicable

sentencing guidelines before imposing the sentences.

I. Suppression of Whited’s Statement

Whited contends that the trial court erred in denying his pretrial motion to suppress his

incriminating statement to the police. Whited argues that, despite his request for an attorney, the

officer continued questioning him about his involvement in the crimes. After listening to the

testimony of the interrogating officer and the arguments of counsel, the trial court denied the motion

to suppress.

Before the officer started questioning Whited about the crimes in this case, Whited was

advised of his rights, including his right to counsel. Whited was given a printed form to read, which

explained his rights, and, in addition, the questioning officer read Whited his rights aloud. Whited

was informed that if he decided to answer any questions without a lawyer present, he would maintain

the right to stop the interview at any time and speak with an attorney. Whited signed a statement

waiving his rights, and the officer commenced the interview.

Whited initially denied any knowledge or involvement in the crimes; he stated he was in

Nashville on the night in question. However, as the interview progressed, Whited started to

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equivocate on his earlier denial. The officer, having the benefit of eyewitness accounts placing the

Defendants at the scene of the crimes, told Whited what the police already knew. Whited, at one

point during the interview, told the officer that he viewed his options as twofold: keep denying any

involvement, or tell the police that he and Rutherford went to the Demoss residence but that

“something happened wrong from how we planned it and somebody got shot and I didn’t see it.”

The officer then tried to convince Whited that it would be in his best interest to accept responsibility.

At this point during the interview, which is the exchange at issue on appeal, the following occurred:

Whited: Well ok I have like 3 questions, #1 I don’t think is gonna be possible

but I’m gonna ask it anyway #1 before I say anything else on this tape

or that I tell you that I f--king can jump over the Goddamn moon you

know ah, could I speak to William?

Officer: Uh ha [affirmative]

Whited: Ok, if I can speak to William and I can talk to him for a second and

another thing is I was gonna say can we stop this interview right now

and let me talk to a lawyer in the morning and then we have another

interview and, that’s not possible? Ok, and ah, shit I was fixing to

ask you another question. Ok, say I’m, I’m just making a scenario

here, say you kill somebody but you did it on accident and

Officer: Involuntary manslaughter.

Whited: Ok, and how much time is that?

[Emphasis added].

The officer then attempted to explain how much time Whited would serve if actually

convicted of manslaughter. Immediately thereafter, Whited asked, again, if he could speak to

Rutherford: “Ok, cause I mean . . . I just, I’d rather, I’d rather talk to him before I say anything else.”

The officer told Whited he would allow him to speak with Rutherford, and the officer stopped the

interview. However, after conferring with fellow officers, the interrogating officer returned to the

interview room, informed Whited that he would not be allowed to talk to Rutherford, and continued

the interview. Whited eventually admitted his involvement in the crimes.

Whited contends that he unequivocally requested an attorney when he asked, “can we stop

this interview right now and let me talk to a lawyer in the morning and then we have another

interview.” The State argues that this was not an unequivocal request for counsel. The State

contends that Whited was simply posing a hypothetical question to the officer. In his testimony

during the pretrial hearing, the interviewing officer stated that he “may have shook [his] head no”

when Whited asked if they could continue the interview if he spoke with an attorney in the morning.

In denying the motion to suppress, the trial court stated:

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This is a pretty close question, I think. One of the things that does influence me is

that he had earlier signed a waiver, an admonition and waiver, and it stated – in there

it states, ‘You also have the right to stop answering at any time until you talk to a

lawyer.’ The fact that he had been read that and signed it, and given his past

experience, which I’m not sure I can really rely on, but given the fact that he did have

his rights read to him and waived them, that might be enough to not suppress that

statement because he did go on talking after that.

The findings of fact made by the trial court at a hearing on a motion to suppress are

conclusive on appeal and binding upon this Court unless the evidence preponderates otherwise.

State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

However, this Court is not bound by the trial court’s conclusions of law, State v. Randolph, 74

S.W.3d 330, 333 (Tenn. 2002), as the application of the law to the facts found by the trial court are

questions of law that this Court reviews de novo on appeal. State v. Daniel, 12 S.W.3d 420, 423

(Tenn. 2000); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Furthermore, “[q]uestions of

credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the

evidence are matters entrusted to the trial judge as the trier of fact.” Yeargan, 958 S.W.2d at 628.

The prevailing party is entitled to the strongest legitimate view of the evidence adduced at the

suppression hearing, as well as all reasonable and legitimate inferences that can be drawn from that

evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). Finally, both the evidence presented

at the suppression hearing and the proof adduced at trial may be considered in reviewing the trial

court’s ruling on a motion to suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

The Fifth Amendment to the United States Constitution provides, in relevant part, that “no

person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const.

amend. V. Likewise, the Tennessee Constitution guarantees that “in all criminal prosecutions, the

accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. An

accused may waive these rights, however, the waiver must be voluntary, knowing, and intelligent.

Miranda v. Arizona, 384 U.S. 436, 444 (1966). Moreover, “the accused must be adequately and

effectively apprized of his rights and the exercise of those rights must be fully honored.” Id. at 467.

In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the United States Supreme Court held

that police officers must immediately cease questioning a suspect once the suspect clearly asserts his

or her right to have counsel present during custodial interrogation. The suspect’s request for an

attorney during any further questioning must be articulated “sufficiently clearly that a reasonable

police officer in the circumstances would understand the statement to be a request for an attorney.”

Davis v. United States, 512 U.S. 452, 459 (1994). Our supreme court has held that “[t]he standard

for a valid invocation of the right to counsel is the same under both Article I, Section 9 [of the

Tennessee Constitution] and the Fifth Amendment [to the United States Constitution].” State v.

Saylor, 117 S.W.3d 239, 246 (Tenn. 2003). Accordingly, if the accused’s statement fails to meet the

requisite level of clarity, the officers are not required to stop the interrogation to clarify any equivocal

request for counsel. Id. Whether a suspect makes an equivocal or an unequivocal request for an

attorney is a question of fact. State v. Farmer, 927 S.W.2d 582, 594 (Tenn. Crim. App. 1996). And,

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as set forth above, “a trial court’s findings of fact in a suppression hearing will be upheld unless the

evidence preponderates otherwise.” Odom, 928 S.W.2d at 23.

Having reviewed the entire record on appeal, we conclude that the trial court did not err in

denying Whited’s motion to suppress. The evidence does not preponderate against the trial court’s

findings. When read in context of the ongoing interview, Whited’s question to the officer was not

an equivocal request for an attorney. Whited’s primary concern was being able to talk to his co-

defendant. After he was initially granted permission to speak to Rutherford, Whited then asked the

officer whether the interview could continue if Whited met with an attorney. The officer, apparently

by shaking his head in the negative, informed Whited that the interview would terminate. Contrary

to the Defendant’s assertion, we do not believe the evidence shows that the officer, by shaking his

head, informed Whited that he could not confer with an attorney. Whited did not clearly request an

attorney; he asked whether or not he would be allowed to continue talking with the officer. Whited,

who was already aware of his right to stop the interview at any time and meet with an attorney,

decided to continue talking with the officer. Whited did not make any further mention of an

attorney, even after he was ultimately denied permission to meet with Rutherford. Given these

circumstances, we do not believe a reasonable police officer would have understood Whited’s

question to be an unequivocal request for an attorney. This issue is without merit.

II. Evidence of Other Bad Acts

When first questioned by the police, the Defendants denied any involvement in the crimes

stating, instead, that they were with two women in a hotel room in Nashville having sex and taking

drugs. The Defendants ultimately confessed to being present at the scene of the crimes, however,

they were arrested in a hotel room in the presence of women and drugs. Prior to trial, the Defendants

filed motions in limine to exclude the admission of any evidence regarding the women or drugs. The

State argued that the statements made by the Defendants were relevant because the Defendants

initially denied any involvement in the crimes. The State further argued that the evidence was

relevant to help establish premeditation and show lack of remorse. The trial court allowed the police

detective to testify about the Defendants’ initial statements in which they denied being involved

because they were in a hotel room having sex and using drugs. The court also allowed into evidence

the fact that the Defendants were arrested the following day in the hotel room in the presence of the

two women and the drugs. The trial court, however, did not allow the officer to mention any vulgar

language used by the Defendants to describe their sexual activity or drug use.

The Defendants argue that any probative value of this evidence was outweighed by the

danger of unfair prejudice. The Defendants argue the State’s sole purpose for introducing this

evidence was to establish their bad character. The State contends the trial court ruled appropriately.

In the alternative, the State argues any error by the trial court in this respect was harmless.

Rule 404(b) of the Tennessee Rules of Evidence provides that “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show action in

conformity with the character trait. It may, however, be admissible for other purposes.” Prior to the

admission of such evidence, the trial court must hold a jury-out hearing upon request, determine if

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there is a material issue other than conduct conforming to a character trait, and upon request state

on the record the material issue, the ruling and the reasons for admitting the evidence. Id. The court

must find by clear and convincing evidence that the defendant committed the acts at issue and must

then conclude that the probative value outweighs the danger of unfair prejudice. Id.

It is generally recognized that evidence of other acts may be admitted under Rule 404(b) in

order to prove intent. State v. Drinkard, 909 S.W.2d 13, 16 (Tenn. Crim. App. 1995). The

Defendants were both charged with first degree murder, and the State argued that evidence about

their activities immediately after the crimes was probative of premeditation. See, e.g., State v.

Millsaps, 30 S.W.3d 364, 369 (Tenn. Crim. App. 2000) (calmness immediately after a crime is

relevant in determining premeditation). Although the trial court permitted the State to introduce this

evidence in its effort to prove premeditation, the court was concerned about the prejudicial effect of

the particular language used by the Defendants. The court redacted much of the Defendants’

statements and allowed the State to introduce only enough evidence to show the jury the Defendants’

initial alibi claims and the location of the Defendants at the time of their arrest. Although the

Defendants stated, while fabricating their alibis, that they engaged in sexual activity and drug use

in the hotel, nowhere in their latter statements in which they admitted going to the Demoss residence

did they say they went back to the hotel to have sex or use drugs. Instead, the jury heard evidence

that both Defendants went back to the hotel and “cried for hours.” Having reviewed the entire

record, including transcript of the parties’ pretrial arguments and the trial court’s ruling, we cannot

conclude that the trial court erred by admitting the evidence.

Nevertheless, even assuming for the sake of argument the trial court erred in allowing this

evidence, the Defendants have failed to demonstrate how they were unfairly prejudiced by its

admission. The Defendants were actually convicted of lesser included offenses on the indicted

charges. Accordingly, the State was unsuccessful in its effort to establish premeditation based upon

the post-crime activities of the Defendants. Furthermore, as discussed below, there was ample

evidence otherwise to support the jury’s verdict. Thus, any error regarding the admission of this

evidence was harmless. See Tenn. R. Crim. P. 52(a) (“No judgment of conviction shall be reversed

on appeal except for errors which affirmatively appear to have affected the result of the trial on the

merits.”).

III. Sufficiency of the Evidence

Both Defendants challenge the sufficiency of the evidence to support their convictions for

second degree murder. They argue that Rutherford killed Mr. Williams during a state of passion

produced by adequate provocation. Thus, they argue, the evidence warrants convictions of voluntary

manslaughter instead of second degree murder. Whited also challenges the jury’s verdict as to the

aggravated assault charge against Triston Bolton. Whited argues that, because of the victim’s age,

the victim could not have been “cognizant of the threat of physical harm posed by the display of a

firearm.”

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal

actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support

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the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant

who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the

evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption

of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.

2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the

sufficiency of the evidence if, after considering the evidence in a light most favorable to the

prosecution, we determine that any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.

Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all

reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at

558; Hall, 8 S.W.3d at 599. Questions about the credibility of witnesses, the weight and value of

the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, and

this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Nor will this Court substitute its own inferences drawn

from circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;

Carruthers, 35 S.W.3d at 557.

A. Second Degree Murder

Second degree murder is defined by statute as the “knowing killing of another.” Tenn. Code

Ann. § 39-13-210(a)(1). A person acts knowingly in the context of second degree murder when he

or she is “aware that [his or her] conduct is reasonably certain to cause the result.” Tenn. Code Ann.

§ 39-11-302(b). The lesser charge of voluntary manslaughter also includes the “knowing killing of

another,” but adds the additional element that the killing was done “in a state of passion produced

by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn.

Code Ann. § 39-13-211(a).

Whited was found guilty of second degree murder based upon his criminal responsibility for

Rutherford’s conduct. Our statutes provide that “[a] person is criminally responsible for an offense

committed by the conduct of another if . . . [a]cting with intent to promote or assist the commission

of the offense, or to the benefit in the proceeds or results of the offense, the person solicits, directs,

aids, or attempts to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2).

This statute codifies the longstanding common law theories of “accessories before the fact and aiders

and abettors.” Id., Sentencing Commission Comments. However, criminal responsibility is not

itself a separate crime; rather, it is “solely a theory by which the State may prove the defendant’s

guilt of the alleged offense . . . based upon the conduct of another person.” State v. Lemacks, 996

S.W.2d 166, 170 (Tenn. 1999). Under a theory of criminal responsibility, a defendant’s presence

and companionship with the perpetrator of a felony before and after the commission of the offense

are circumstances from which the defendant’s participation in the crime may be inferred. State v.

Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). No particular act need be shown, and the

defendant need not have played a physical role in the crime in order to be held criminally responsible

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for the crime. State v. Caldwell, 80 S.W.3d 31, 38 (Tenn. Crim. App. 2002). Rather, to be held

criminally responsible for the acts of another, the defendant need only “‘associate himself with the

venture, act with knowledge that the offense is to be committed, and share in the criminal intent of

the principle in the first degree.’” Id. (quoting State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim.

App. 1994)).

Relying upon Rutherford’s own version of the events, the Defendants both argue that

Rutherford shot Mr. Williams in order to prevent him from attacking Rutherford with a knife. The

Defendants allege that Rutherford “attempted to avoid mortally wounding the victim and shot him

in what Rutherford thought was his arm.” However, according to the Defendants’ theory, Mr.

Williams “kept coming towards Rutherford with the knife and Rutherford fired the gun three times

in rapid succession to stop [Mr.] Williams’ advance.”

Examining the evidence in the light most favorable to the State, we conclude that there was

sufficient evidence to sustain the Defendants’ convictions for second degree murder. The jury heard

testimony that Mr. Williams was shot within a matter of seconds after having been led, at gunpoint,

downstairs and out of view. Furthermore, the medical evidence revealed that Mr. Williams was shot

twice in his back. This evidence tends to refute the Defendants’ version that Mr. Williams, after

being led down the stairs at gunpoint, went into the kitchen, retrieved a knife, and was then shot

while advancing toward Rutherford. Again, the jury was not obligated to accept Rutherford’s

version of the facts. The jury was expressly charged with instructions on voluntary manslaughter,

reckless homicide and criminally negligent homicide, but they rejected those and convicted the

Defendants of second degree murder. As stated above, this Court will not re-weigh or re-evaluate

the evidence. See Evans, 108 S.W.2d at 236. A guilty verdict by the trier of fact accredits the

testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the

prosecution’s theory. See Bland, 958 S.W.2d at 659.

Furthermore, the evidence was sufficient for the jury to find that Whited was criminally

responsible for the conduct of Rutherford. Whited was the leader of the criminal enterprise in this

case. Whited furnished Rutherford with the pistol, solicited Rutherford to accompany him to the

Demoss residence, and directed Rutherford to lead Mr. Williams back down the stairs after Mr.

Williams attempted to intervene in Whited’s confrontation with Ms. Demoss. The Defendants have

failed to carry their burden of demonstrating that no rational trier of fact could have reached the

conclusion of guilt of second degree murder beyond a reasonable doubt.

B. Aggravated Assault

Aggravated assault, as charged in this case, is committed when a person intentionally or

knowingly causes another to reasonably fear imminent bodily injury by the use or display of a deadly

weapon. Tenn. Code Ann. § 39-13-102(a)(1)(B). A person acts knowingly when, with respect to

a result of the person’s conduct, “the person is aware that the conduct is reasonably certain to cause

the result.” Tenn. Code Ann. § 39-11-302(b). A person’s action may be knowing, irrespective of

that person’s desire that the conduct or result will occur. Id., Sentencing Commission Comments.

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Whited argues that he did not intentionally place Triston in fear of bodily injury. He also

argues that Triston, because he was only seventeen months old, could not appreciate the fear of any

imminent bodily injury as a result of the weapon being pointed in his direction. Whited contends

“it would be implausible for a child that age” to understand the potential harm posed by an assault

rifle. Ms. Demoss held the child in her arms while Whited pointed the rifle at her. Whited alleges

that he specifically directed Ms. Demoss to put Triston down. Although Whited may not have acted

intentionally toward Triston, the evidence clearly shows that his actions were knowing, as defined

above.

In support of his argument, Whited comments on the fact that Triston did not testify at trial.

Whited’s argument, however, ignores the long-standing rule that criminal offenses may be

established exclusively by circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 393

(Tenn Crim. App. 1999). Indeed, this Court has previously held that a victim’s fear may be inferred

from the circumstances surrounding the offense, even though the victim did not testify about being

afraid. See State v. Jamie John Schrantz, No. W2002-01507-CCA-R3-CD, 2003 WL 22888910

(Tenn. Crim. App., Jackson, Dec. 2, 2003) (though victim denied being placed in fear, court found

victim’s fear of imminent bodily injury could be inferred from circumstances, including witness

descriptions that victim was crying and acting scared); State v. James Albert Adams, No. M1998-

00468-CCA-R3-CD, 1999 WL 1179580 (Tenn. Crim. App., Nashville, Dec. 15, 1999) (though

defendant’s actions were directed toward another and victim did not testify she was afraid, fear

inferred from circumstances in which defendant wielded deadly weapon toward another in victim’s

immediate presence); State v. Harry Jamieson, No. W2003-02666-CCA-R3-CD, 2004 WL 2996910

(Tenn. Crim. App., Jackson, Dec. 23, 2004) (though victims did not testify at trial, court concluded

evidence sufficient for jury to infer victims were in fear based on testimony of other witnesses); State

v. Jessie James Austin, No. W2001-00120-CCA-R3-CD, 2002 WL 32755555 (Tenn. Crim. App.,

Jackson, Jan. 25, 2002) (victim did not testify at trial but fear inferred from circumstances of the

offense). Accordingly, the fact that Triston did not testify or offer any statements about being placed

in fear does not discount the jury’s verdict.

Moreover, we agree with the State’s assertion that Whited’s argument, that “it is unlikely a

17-month old baby even has the capacity to fear imminent bodily injury from the use or display of

a deadly weapon,” is without merit. The evidence in this case sufficiently showed that Whited’s

actions placed Triston in fear of imminent bodily injury. In State v. Gregory Whitfield, No. 02C01-

9706-CR-00226, 1998 WL 227776, at * 2 (Tenn. Crim. App., Jackson, May 8, 1998), this Court

observed that “[t]he element of ‘fear’ is satisfied if the circumstances of the incident, within reason

and common experience, are of such a nature as to cause a person to reasonably fear imminent bodily

injury.” The Court further recognized that “the apprehension of imminent bodily harm may be

inferred from the conduct of the victim following the assault.” Id.

According to the testimony in this case, the scene at the top of the stairs was very intense.

In addition to screaming and cursing at her for betraying him, Whited was yelling at Ms. Demoss to

put Triston down. Ms. Murdock was yelling at Whited not to hurt the child. Triston was crying and

grabbing Ms. Demoss. Ms. Demoss tried to pull Triston away from her, but he would not let go.

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All the while he was screaming and cursing, Whited was pointing his rifle at Ms. Demoss. All the

while Ms. Demoss was standing there at the barrel-end of the rifle, she was holding Triston in her

arms. Moreover, Ms. Demoss testified that Triston first started crying after he heard the gunshot that

struck Charlie Demoss in the side. Ms. Demoss was holding Triston in her arms when Charlie

Demoss ran upstairs to her bedroom, said he had been shot, and lifted up his shirt to show Ms.

Demoss the wound. Under all of these circumstances, a rational jury could easily infer that Triston

was in reasonable fear of imminent bodily injury, and also that Whited knew his actions were

reasonably certain to cause this result. This issue is without merit.

IV. Sentencing

Both Defendants make several arguments regarding the propriety of the sentences imposed.

They argue that the trial court erroneously applied enhancement factors that were elements of the

charged offenses, failed to consider appropriate mitigating evidence, and erred in considering facts

not previously adjudicated by the jury. They also argue that the trial court erred in imposing

consecutive sentences.

Before a trial court imposes a sentence upon a convicted criminal defendant, it 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; and (f) any statement the defendant wishes to make in the defendant’s own

behalf about sentencing. Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704

(Tenn. 2002).1 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 State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review

of the sentence with a presumption that the determinations made by the trial court are correct. See

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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that

the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence

after having given due consideration and proper weight to the factors and principles set out under

the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,

then the presumption is applicable, and we may not modify the sentence even if we would have

1

W e note that the legislature has recently amended several provisions of the Criminal Sentencing Reform Act

of 1989, said changes becoming effective June 7, 2005. However, the Defendants’ crimes in this case, as well as their

sentencing, predate the effective date of these amendments. Therefore, this case is not affected by the 2005 amendments,

and the statutes cited in this opinion are those that were in effect at the time the instant crimes was committed.

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preferred a different result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes

and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported

by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that

a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401 Sentencing

Commission Comments; Arnett, 49 S.W.3d at 257.

A. Length of Sentences

The trial court must begin its sentencing consideration with a presumption at the midrange

for Class A felonies and at the minimum of the sentencing range for Class B, C, D and E felonies.

From this presumptive sentence, the court may then enhance the sentence within the range as

appropriate, based upon applicable statutory enhancement factors, and may then reduce the sentence

as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(c) and (e). The weight to

be given any individual enhancement or mitigating factor is within the sound discretion of the trial

court. State v. Souder, 105 S.W.3d 602, 606 (Tenn. Crim. App. 2002).

In this case, both Defendants were Range I, standard offenders. They were facing sentences

of fifteen to twenty-five years for second degree murder, a Class A felony, and one to two years for

reckless endangerment, a Class E felony. Whited was also facing three to six years for each

aggravated assault conviction, Class C felonies. For Rutherford, the trial court applied seven2

enhancement factors for the second degree murder conviction and five3 of the same enhancement

2

(2) The defendant has a previous history of criminal convictions or criminal behavior in addition to

those necessary to establish the appropriate range;

(9) The defendant has a previous history of unwillingness to comply with the conditions of a sentence involving

release in the community;

(10) The defendant possessed or employed a firearm, explosive device or other deadly weapon during the

commission of the offense;

(11) The defendant had no hesitation about committing a crime when the risk to human life was high;

(14) The felony was committed while on . . . probation;

(17) The crime was committed under circumstances under which the potential for bodily injury to a victim was

great; and

(21) The defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would

constitute a felony if committed by an adult.

Tenn. Code Ann. § 40-35-114.

3

The trial court did not apply factors (10) and (11) toward this conviction.

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factors for the reckless endangerment conviction.4 For Whited, the court applied nine5 enhancement

factors for the second degree murder and reckless endangerment convictions and eight6 enhancement

factors for the aggravated assault convictions.7 The trial court did not find any applicable mitigating

factors. The trial court imposed upon the Defendants the maximum sentences for each conviction.

Both Defendants argue that the trial court erroneously applied enhancement factors (10) and

(17) toward the sentences for second degree murder and reckless endangerment. Whited also

challenges the application of these same factors, in addition to factor number (4), toward his

aggravated assault sentences. On appeal, the State concedes the trial court misapplied enhancement

factor (17), that the crime was committed under circumstances under which the potential for bodily

injury to the victim was great, to both of the Defendants’ sentences for second degree murder and

reckless endangerment, as well as to Whited’s convictions for aggravated assault. See State v. James

Johnson, No. W2003-02009-CCA-R3-CD, 2004 WL 2378256, at *13 (Tenn. Crim. App., Jackson,

Oct. 20, 2004) (this enhancement factor inherent in offense of second murder); State v. Kerry D.

Hewson, No. M2004-02117-CCA-R3-CD, 2005 WL 2438386, at *6 (Tenn. Crim. App., Nashville,

Sep. 28, 2005) (this enhancement factor inherent in offense of reckless endangerment); State v. Hill,

885 S.W.2d 357, 363-64 (Tenn. Crim. App. 1994) (this enhancement factor inherent in the offense

of aggravated assault).

4

In its brief, the State assumes that the trial court applied the same seven enhancement factors for both

convictions. However, Rutherford argues that it is unclear which factors were applied to which conviction. Having

reviewed the transcript of the trial court’s findings, we conclude that the trial court applied seven factors toward the

second degree murder sentence and five toward the reckless endangerment sentence.

5

(2) The defendant has a previous history of criminal convictions or criminal behavior in addition to

those necessary to establish the appropriate range;

(3) The defendant was a leader n the commission of an offense involving two (2) or more criminal actors;

(4) The offense involved more than one (1) victim;

(9) The defendant has a previous history of unwillingness to comply with the conditions of a sentence involving

release in the community;

(10) The defendant possessed or employed a firearm, explosive device or other deadly weapon during the

commission of the offense;

(11) The defendant had no hesitation about committing a crime when the risk to human life was high;

(14) The felony was committed while on . . . probation;

(17) The crime was committed under circumstances under which the potential for bodily injury to a victim was

great; and

(21) The defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would

constitute a felony if committed by an adult.

Tenn. Code Ann. § 40-35-114.

6

The trial court applied all of the same enhancement factors, except number (4), for these offenses.

7

Similar to Rutherford, W hited argues in his appellate brief that it is unclear which factors the trial court

applied to which convictions. Having again reviewed the transcript, we conclude that the trial court applied the same

nine enhancement factors toward the second degree murder and reckless endangerment sentences and applied eight

enhancement factors toward each aggravated assault sentence.

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In addition, the State concedes the trial court misapplied enhancement factor (4), that the

offense involved more than one victim, toward Whited’s sentences for second degree murder and

reckless endangerment.8 See State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995) (this

factor cannot be applied when defendant is convicted of separate offenses against each victim). The

State also concedes the trial court erroneously applied enhancement factor (10), that the Defendants

possessed or employed a firearm during the commission of the offense, to both of the Defendants’

sentences for reckless endangerment and to Whited’s sentences for aggravated assault. Because the

use of a deadly weapon is an essential element of each of these offenses as found by the jury, the trial

court was not allowed to enhance the sentences based upon this factor. Tenn. Code Ann. § 40-35-

114. We agree with the State regarding these trial court errors.

However, the State asserts the trial court properly applied enhancement factor (10) to the

Defendants’ sentences for second degree murder. The State contends this factor, that the Defendants

possessed or employed a firearm during the commission of the offense, is not an element of the

crime of second degree murder. See State v. Hampton, 24 S.W.3d 823, 832 (Tenn. Crim. App.

2000) (“The use of a gun is neither an element of second degree murder nor inherent in the

offense.”). We agree. Furthermore, having conducted our de novo review of the record, we

conclude the remaining enhancement factors applied by the trial court are appropriate.

Accordingly, the trial court properly applied six enhancement factors, numbers (2), (9), (10),

(11), (14) and (21), toward Rutherford’s sentence for second degree murder, and five enhancement

factors, numbers (2), (9), (11), (14) and (21), toward his sentence for reckless endangerment. The

trial court appropriately applied seven enhancement factors, numbers (2), (3), (9), (10), (11), (14)

and (21), to Whited’s sentence for second degree murder, and six enhancement factors, numbers (2),

(3), (9), (11), (14) and (21), to his sentences for reckless endangerment and aggravated assault.

The trial court did not specifically comment on any mitigating factors. Both Defendants

argue the trial court erred when it failed to consider mitigation or state on the record that it was not

giving any weight to any mitigating factors. Rutherford argues that one mitigating factor is

applicable toward his sentences, mainly, that the Defendant, although guilty of the crime, committed

the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the

law motivated the criminal conduct. Tenn. Code Ann. § 40-35-113(11). Whited argues that four

mitigating factors are applicable to his sentences: (9) the Defendant assisted the authorities in

uncovering offenses committed by other persons or in detecting or apprehending other persons who

had committed the offenses; (10) the Defendant assisted the authorities in locating or recovering any

property or person involved in the crime; (11) the Defendant, although guilty of the crime,

committed the offense under such unusual circumstances that it is unlikely that a sustained intent to

8

In its brief, the State concedes that enhancement factor (4) should not have been applied to W hited’s

sentences for aggravated assault. However, the trial court did not apply this factor to those sentences. Instead, the trial

court applied factor (4) to W hited’s sentences for second degree murder and reckless endangerment. W e assume the

State mistakenly referred to the aggravated assault convictions. Based upon every other reference in its brief on this

issue, the State recognizes that factor (4) was applied to W hited’s second degree murder and reckless endangerment

convictions.

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violate the law motivated the criminal conduct; and (13) any other factor consistent with the

purposes of this chapter, mainly, that the Defendant showed remorse for his actions. § 40-35-113

(9), (10), (11) and (13).

Although the trial court apparently did not find any mitigating factors, we recognize that no

particular weight need be given a particular enhancement or mitigating factor. Hampton, 24 S.W.3d

at 832. Having again conducted our required de novo review of the entire appellate record in this

case, we cannot conclude that the trial court erred by not finding the presence of the mitigating

factors argued by the Defendants, or, if the factors were present, that the trial judge abused her

discretion by giving the factors insufficient weight. Given the criminal background of both

Defendants, mitigating factor (11) warrants little weight, if any at all. Although Whited claims to

have assisted the police in recovering the weapons used in the commission of the crimes, the

investigating officer testified at trial that the recovery of the guns “was more good work by the police

department than [Whited’s] help.” Factor number (10), therefore, is not given much weight. Whited

argues that his confession assisted the authorities in obtaining Rutherford’s confession. However,

as the State observes, the police already had Rutherford in custody, and they possessed other direct

evidence of Rutherford’s involvement in the crimes. Accordingly, we do not assign any weight to

mitigating factor (9). Finally, Whited states that his showing of remorse should be considered in

mitigation. Whited argues that the victim was his “good friend and [he] regretted that the events had

taken place.” Even though Whited and Rutherford both stated they cried that night after committing

the crimes, neither one attempted to assist Mr. Williams after he had been shot. Instead, the

Defendants immediately fled the scene, stealing a video game on their way out of the house.

Furthermore, both Defendants initially denied any involvement in the crimes. We therefore give

little weight to the Defendant’s remorse.

Based upon the foregoing analysis, and keeping in mind the purposes and principles of the

1989 Sentencing Act, we conclude that the sentences imposed by the trial court are appropriate under

the facts and circumstances of this case. Although the trial court misapplied several enhancement

factors, we find that the remaining enhancement factors, weighed against the lack of any substantial

mitigation, justifies the punishment handed down by the trial court. Accordingly, the Defendants’

challenges to the lengths of their sentences are denied.

B. Consecutive Sentencing

Both Defendants argue that the trial court erred in imposing consecutive sentences. They

claim the length of the punishments do not reasonably relate to the severity of the offenses

committed. However, our review of the record on appeal leads us to conclude that the trial court

made the requisite factual findings necessary to support consecutive sentencing and that the

aggregate length of the sentences imposed was indeed reasonably related to the Defendants’ offenses.

We begin by noting the trial court has the discretion to impose either consecutive or

concurrent sentences. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997). A

trial court may order consecutive sentences in cases where it finds applicable, by a preponderance

of the evidence, any of seven statutorily enumerated criteria. See Tenn. Code Ann. § 40-35-115(b).

-17-

In addition to these criteria, 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) and (4). The Defendants’

potential for rehabilitation should also be considered. § 40-35-103(5). Additionally, we are advised

that “the aggregate maximum of consecutive terms must be reasonably related to the severity of the

offenses involved.” Tenn. Code Ann. § 40-35-115 Sentencing Commission Comments.

The trial court found two of the sentencing criteria applicable in this case: (4) the Defendants

are dangerous offenders 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; and (6) the Defendants committed

the offenses while both were on probation. § 40-35-115(a)(4) and (6). As to the first criterion,

number (4), our supreme court has mandated that

the imposition of consecutive sentences on an offender found to be a dangerous

offender requires, in addition to the application of general principles of sentencing,

the finding 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 933, 939 (Tenn. 1995).

In the case at hand, the trial court made adequate findings that the Defendants were

dangerous offenders and that extended sentences were necessary to protect the public. The trial court

stated for the record:

I do think 4 is applicable, that he is dangerous offender whose behavior

indicates little or no regard for human life. The circumstances of this were, I thought,

pretty extreme, to go armed into a home with these type weapons. . . .

. . . I find that Mr. Rutherford is a dangerous offender. I think that society

needs protection from him, and I think that the aggregate sentence is reasonably

related to the severity of the present offenses. . . .

....

Now, I will say this, as to Mr. Whited, I have to determine whether or not I’m

going to run these all consecutively. Mr. Whited, in my opinion, is a dangerous

offender[.] . . .

. . . The fact is, I have been on this bench a long time and I’ve seen a lot of

defendants come through here, and I think Mr. Whited represents one of the most

dangerous I’ve ever seen. I think society needs protection from him. I think he is

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dangerous, and I am going to have all these sentences run consecutively; and I think

that the aggregate length of the sentence I’m imposing today is reasonably related to

the severity of the [Defendant’s] present offense.

We conclude that the trial court’s findings are supported by the record. Whited contends

there is no factual basis to support the trial court’s “subjective opinion.” We disagree. Whited was

convicted of five separate criminal offenses, each involving violence toward different individuals.

Whited also has a history of criminal activity. Furthermore, we find Rutherford’s argument equally

unpersuasive. Rutherford suggests that his sentences should have been ordered to run concurrently

because he acted in self-defense. The jury obviously found otherwise when rendering its verdicts

in this case; Rutherford’s suggestion is not supported by the facts. Accordingly, the trial court

properly applied factor (4).

Nevertheless, the trial court also ordered consecutive sentences based upon the fact that both

Defendants were on probation when they committed the crimes in this case. As the State notes on

appeal, neither Defendant challenges the trial court’s finding in this respect. This Court has

previously recognized that only one factor need be proven to support a consecutive sentence. State

v. Ernest Leon Powers, Jr., No. 03C01-9606-CC-00222, 1997 WL 665986, at *9 (Tenn. Crim. App.,

Knoxville, Oct. 28, 1997). “Because only one ground is required to justify consecutive sentencing,

as long as that ground is proven by a preponderance of the evidence, we are able to affirm the trial

court’s order of consecutive sentencing.” Id. (citing Tenn. Code Ann. § 40-35-115). Accordingly,

the trial court’s finding that both Defendants were on probation at the time of the crimes in this case

is sufficient to support its order of consecutive sentencing. When a trial court imposes consecutive

sentences based upon this factor, it is not required to make the additional finding, mandated by

Wilkerson, 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. See State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999). Having reviewed

the record, we conclude that the length of the Defendants’ sentences are “justly deserved in relation

to the seriousness of the offense[s]” and are “no greater than that deserved for the offense[s]

committed.” Tenn. Code Ann. §§ 40-35-102(1) and 40-35-103(2).

C. Blakely v. Washington

The Defendants also argue, relying upon the United States Supreme Court’s decision in

Blakely v. Washington, 542 U.S. 296 (2004), that their sentences were imposed in violation of their

Sixth Amendment right to a trial by jury. The Blakely decision holds that the Sixth Amendment to

the federal Constitution permits a defendant’s sentence to be increased only if the enhancement

factors relied upon by the trial judge are based upon facts reflected in the jury verdict or admitted

by the defendant. The only basis upon which enhancement would otherwise be permitted is the

defendant’s previous criminal history. The Tennessee Supreme Court has considered the impact of

the Blakely ruling on Tennessee’s sentencing scheme and has concluded that the Criminal

Sentencing Reform Act of 1989, under which the Defendants in this case were sentenced, does not

violate a defendant’s Sixth Amendment rights. See State v. Gomez, 163 S.W.3d 632, 661 (Tenn.

2005). The Defendants acknowledge our supreme court’s ruling in Gomez, however, they state in

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their appellate briefs that they raise this issue in order to preserve it should Gomez be overturned.

Accordingly, given the current state of the law, the Defendants’ argument on this basis has no merit.

CONCLUSION

Based upon the foregoing analysis and discussion, we hereby affirm the Defendants’

convictions and sentences.

___________________________________

DAVID H. WELLES, JUDGE

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