State of Tennessee v. Raymond Deshun Ross

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 8, 2007 Session

STATE OF TENNESSEE v. RAYMOND DESHUN ROSS

Direct Appeal from the Circuit Court for Henderson County

No. 05-082-1 Roy B. Morgan, Jr., Judge

No. W2006-01167-CCA-R3-CD - Filed November 2, 2007

A Henderson County Circuit Court jury convicted the appellant, Raymond Deshun Ross, of

carjacking; aggravated assault; theft of property valued more than one thousand dollars but less than

ten thousand dollars; and misdemeanor reckless endangerment as a lesser included offense of

attempted second degree murder. The trial court sentenced him to twenty, ten, and eight years and

eleven months, twenty-nine days, respectively, and ordered that he serve the twenty- and ten-year

sentences consecutively for an effective thirty-year sentence. On appeal, the appellant contends that

(1) the evidence is insufficient to support the convictions because it fails to show he was the

perpetrator of the crimes; (2) the trial court erred by sentencing him as a Range II, multiple offender

because the State failed to file a notice of enhanced punishment; and (3) the trial court erred by

ordering consecutive sentencing. We conclude that the evidence is sufficient to support the

convictions and that consecutive sentencing was appropriate in this case. However, we conclude that

the trial court erred by sentencing the appellant as a Range II, multiple offender and that the

appellant’s conviction for misdemeanor reckless endangerment must be merged into his conviction

for aggravated assault. Therefore, we remand the case to the trial court for resentencing the appellant

as a Range I, standard offender and for the entry of a corrected judgment for aggravated assault to

reflect the merger.

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

Part, Reversed in Part, and Case Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and

JERRY L. SMITH , J., joined.

Hewitt Chatman, Jackson, Tennessee, for the appellant, Raymond Deshun Ross.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;

Jerry Woodall, District Attorney General; and Bill Martin, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

I. Factual Background

This case relates to the appellant’s assault of the seventeen-year-old victim, Troy Lee

Bowman, III. At trial, Amber Nicole Gettings testified that on the evening of February 15, 2005, she

was at her grandmother’s house at 292 Derryberry Street with Lindsay Zaitz and that the two of them

were outside in the backyard. Gettings stated that she saw three vehicles pull into the area near the

old Salant and Salant warehouse nearby. One of the vehicles was a minivan; the second vehicle was

a black Chevrolet Blazer; and the third vehicle was a brown, older-model car. The victim jumped

out of the minivan and began running, and an African-American male jumped out of the minivan and

began chasing him. The victim fell, and the African-American male, who was wearing a red shirt

and light-colored blue jeans, “was on him.” The male returned to the minivan, and the three vehicles

left the scene with the Blazer traveling in one direction and the other two vehicles traveling in the

opposite direction. Gettings went next door to her uncle’s house and had him telephone the police.

She stated that she knew the victim on February 15 but did not immediately realize he was involved

in the assault.

On cross-examination, Gettings testified that trees were behind the Salant and Salant

warehouse but that she could see through them. She said she did not know what time the assault

occurred, but she acknowledged that it was dark outside and that she could have been as far as three

hundred feet away. From that distance, she could not positively identify the appellant. She stated

that the Blazer was black, not gold, and that it was not a PT Cruiser. On redirect examination,

Gettings testified that streetlights were shining in the area of the assault. After her uncle telephoned

the police, Gettings went to the crime scene, spoke with officers, and positively identified the victim.

Lindsay Zaitz testified that she was outside with Amber Gettings on the night of February

15, 2005, and that Gettings alerted her to a fight at the Salant and Salant warehouse. When Zaitz

looked toward the warehouse, she saw that the victim’s attacker was wearing a red shirt. After

assaulting the victim, the attacker got into a vehicle and left the scene. Zaitz said that three vehicles

were present, that one vehicle was a black PT Cruiser, and that another vehicle was an older-model

car. On cross-examination, Zaitz testified that a van also may have been present but that she did not

see it. She stated that trees were between her and the crime scene but that she could see through a

clearing. She said that the assault occurred under a streetlight and that the attacker’s red shirt “just

kind of stood out.” She acknowledged that the assault occurred about three hundred feet away from

her.

Lexington Police Department Officer David Stanhope testified that on the evening of

February 15, he was dispatched to a disturbance on Derryberry Street, which is behind the old Salant

and Salant building. When Officer Stanhope arrived, he noticed people behind the building and

pulled up to the scene. The victim was lying on his back in the parking lot and was unconscious.

The victim’s feet were crossed at his ankles, his hands were clenched into fists, and his fists were

drawn up to his chest. The victim could not open his eyes and was unresponsive, and Officer

Stanhope noticed marks on his head and face. The victim’s necklace was broken, and Officer

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Stanhope called for an ambulance and spoke with witnesses. On cross-examination, he

acknowledged that his log showed he responded to the scene at 7:43 p.m.

Dr. Joe Wilhite testified that he treated the victim in the Henderson County Community

Hospital emergency room on February 15. The victim had a head injury, a laceration over his left

eye, and abrasions. The victim also had clenched fists and a Glasgow rating of five, indicating that

his head injury was severe. Dr. Wilhite stated that the victim’s head injury was life-threatening and

that he did not expect the victim to live. The victim was stabilized and was flown to Jackson for

further treatment. On cross-examination, Dr. Wilhite testified that when the victim arrived at the

emergency room, he was unresponsive but was breathing on his own.

The victim testified that at the time of the assault, he was a senior at Lexington High School.

In order to pay for a graduation trip to Florida, the victim planned to sell the stereo in his 1997 two-

door gold Blazer. The truck had twenty-inch rims, Euro taillights, and a stereo system worth about

one thousand dollars. The victim stated that the Blazer was worth about five thousand dollars, that

he paid two thousand to twenty-five hundred dollars for the wheels and tires, that the truck had a

compact disc player worth about three hundred dollars, and that it had a stereo system worth one

thousand dollars. In total, he estimated that the truck was worth ten to eleven thousand dollars. He

stated that he did not remember anything about the assault but that he later woke up on the “rehab

floor” in Jackson. The victim was in Jackson for three weeks to relearn how to walk and talk. He

stated that he did not know the appellant and that the appellant had no reason to have his Blazer. He

stated that when he finally saw his Blazer, it was “beat up” and looked like it had been burned. The

truck had been stripped of its rims, tires, and stereo equipment, and none of the missing items were

returned to the victim.

On cross-examination, the victim acknowledged that based on his estimates, the total value

of the Blazer was eight thousand eight hundred dollars. He said he did not remember if he ever met

the appellant. On the morning of the assault, the victim went to traffic court for a ticket, but he did

not remember anything else about that day.

Lieutenant Donna Hetherington of the Lexington Police Department’s Criminal

Investigations Division testified that she was the second officer to respond to the Salant and Salant

warehouse on the night of February 15. The victim was lying on his back with his legs crossed at

his ankles. His arms and fists were clenched to his chest, and he was unresponsive. From her

training, Lieutenant Hetherington knew these were signs of severe head trauma. After the victim was

removed from the scene, Lieutenant Hetherington went to the emergency room and spoke with the

victim’s parents. Based on their description of the victim’s Blazer, a “be on the lookout” (BOLO)

was issued for the vehicle. The next day, Lieutenant Hetherington received a call from Patrolman

Jimmy Arnold in Humboldt, Tennessee. Patrolman Arnold told her that he believed he had stopped

the Blazer in question the previous night but that he had been unaware of the BOLO at that time.

Officer Arnold told her that he had a video camera in his patrol car and that he may have captured

the Blazer on videotape. Lieutenant Hetherington went to Humboldt, met with Patrolman Arnold,

and viewed the tape. She stated that on the tape, Patrolman Arnold could be seen approaching the

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rear of the Blazer. Lieutenant Hetherington later learned that the Gibson County Sheriff’s

Department had found the victim’s Blazer in a field.

Lieutenant Hetherington testified that the appellant was not arrested until July 2005. She

interviewed the appellant twice and read him Miranda warnings before each interview. In the

appellant’s first statement on July 21, 2005, he told Lieutenant Hetherington that he should not have

“left this place these/there rims on this truck or whatnot. My crime in detail is that I took a jack and

borrowed a four-way lug and stole some rims. I’m not saying I didn’t get [the] radio. I’ve just stolen

so much that it’s a blur.” In the appellant’s second statement on July 25, he stated that he stole the

rims off a parked vehicle and that he left the vehicle where he found it. Lieutenant Hetherington

stated that a person could drive from Lexington to Humboldt in about one hour.

On cross-examination, Lieutenant Hetherington testified that police found shoes, a winter-

type hat, and a broken necklace at the crime scene. The victim’s mother identified the items as the

victim’s. Lieutenant Hetherington stated that she could not tell from Patrolman Arnold’s video if

the Blazer in the video was the victim’s Blazer.

Patrolman James Arnold of the Humboldt Police Department testified that he already knew

the appellant at the time of this incident. On the night of February 15, a man named Charlie Ward

told Patrolman Arnold that he had allowed the appellant to borrow his 1989 Ford Ranger pickup

truck and that the appellant had not returned it. Patrolman Arnold began looking for the pickup.

About 9:30 p.m., he found the pickup truck parked in a driveway on Sawyer Drive. A gold Blazer

with a Henderson County license plate was also in the driveway. Patrolman Arnold approached the

Blazer and saw the appellant sitting in the driver’s seat. The Blazer had chrome rims, and the

appellant was wearing a red shirt, a headband, blue jeans, and bands around his arms. A man named

Robert Treadway was sitting in the Blazer’s passenger seat. Treadway told Patrolman Arnold that

he was working on the Blazer, and Patrolman Arnold did not suspect anything unusual because he

knew that Treadway worked on cars. Patrolman Arnold spoke with the appellant and called a

wrecker for the pickup truck. Patrolman Arnold said the appellant “began pulling some items from

the back-end of the pickup truck. It was like a chrome-plated stereo amplifier that had some flames

on it, and there was a speaker box.” The appellant told the officer that the stereo equipment came

out of his Pontiac Bonneville. The next day, a Blazer matching the one Patrolman Arnold had seen

was found in Gibson County.

The State recalled the victim to testify. The victim testified that the stereo in his Blazer was

“a black box like a hexagon shape, three tens in the inside of it, plexi-glass front on it where you

could see the speakers.” He stated that the amplifier was “silver-looking, chrome-looking . . . with

chrome flames on the top of it.” The victim stated that he had never seen anyone with a stereo like

his. On cross-examination, the victim testified that on February 15, he was supposed to meet with

a friend, Domingo Thomas, about buying the stereo but that “I think he backed out on that day. I

don’t really remember it.”

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Dr. Herbert Lee Sutton, a trauma surgeon, testified that he treated the victim in Jackson on

February 15, 2005. The victim was unconscious when he arrived from Lexington, was in critical

condition, and was on a ventilator. The victim was on the ventilator for ten days to two weeks. He

progressed slowly and woke up enough to follow commands and walk in the hospital hallway. The

victim was discharged to rehabilitation on March 8, where he remained until June 28. The victim

received rehabilitation because he could not go to the bathroom by himself and could not function

normally. On cross-examination, Dr. Sutton testified that most patients with the victim’s type of

head injury did not remember anything about how they were injured.

Robert Franklin Rice, an investigator for the Twenty-Sixth Judicial District Public

Defender’s Office, testified for the appellant that he took photographs of the crime scene on February

26, 2006. The distance from the crime scene to a gray house beside Amber Gettings’ grandmother’s

house was three hundred two feet. The grandmother’s house was an additional twenty-five to thirty

feet away from the Salant and Salant warehouse. Although the appellant had been charged with

attempted second degree murder, the jury convicted him of misdemeanor reckless endangerment as

a lesser included offense. The jury also convicted the appellant of the charged offenses of

carjacking, a Class B felony; aggravated assault, a Class C felony; and Class D felony theft.

II. Analysis

A. Sufficiency of the Evidence

The appellant contends that the evidence is insufficient to support the convictions because

the evidence failed to establish his identity as the perpetrator. The State contends that the evidence

is sufficient. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard for

review by an appellate court is “whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R.

App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all

reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value

to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the

trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or

reevaluate the evidence, nor will this court substitute its inferences drawn from the circumstantial

evidence for those inferences drawn by the jury. Id. Because a jury conviction removes the

presumption of innocence with which a defendant is initially cloaked at trial and replaces it on appeal

with one of guilt, a convicted defendant has the burden of demonstrating to this court that the

evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The State may prove a criminal offense by direct evidence, circumstantial evidence, or the

combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). Before a jury may

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convict a defendant of a criminal offense based upon circumstantial evidence alone, the facts and

circumstances “must be so strong and cogent as to exclude every other reasonable hypothesis save

the guilt of the defendant, and that beyond a reasonable doubt.” State v. Crawford, 470 S.W.2d 610,

612 (Tenn. 1971); see also State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). As in

the case of direct evidence, the weight to be given circumstantial evidence and “‘[t]he inferences to

be drawn from such evidence, and the extent to which the circumstances are consistent with guilt

and inconsistent with innocence, are questions primarily for the jury.’” Marable v. State, 313

S.W.2d 451, 457 (Tenn. 1958) (quoting 2 Wharton’s Criminal Evidence 1611).

At trial, Amber Gettings testified that she saw an African-American male wearing a red shirt

and light-colored blue jeans chase the victim and assault him. She also stated that she saw a black

Chevrolet Blazer at the scene. About two hours later, Humboldt Patrolman James Arnold saw the

appellant sitting in the passenger seat of a Blazer that matched the description of the victim’s Blazer.

The appellant was wearing a red shirt and blue jeans. Patrolman Arnold watched as the appellant

took stereo equipment, including a chrome-plated amplifier with flames on it, out of a pickup truck.

The victim testified that the stereo stolen out of his Blazer had a chrome amplifier with flames on

it and that he had never seen another amplifier like it. The next day, the victim’s Blazer was found

in Gibson County, and its stereo and rims had been removed. When the appellant was arrested

several months later, he admitted taking the rims. Although the appellant never admitted to

assaulting the victim, the jury obviously determined that he was the person who chased and beat the

victim at the Salant and Salant warehouse on February 15, 2005. Taken in the light most favorable

to the State, the evidence is sufficient to support the jury’s determination that the appellant was the

perpetrator of the crimes.

We note that the appellant’s brief also mentions that “there is not proof that he took any

vehicle by force.” The trial court instructed the jury that it could convict the appellant of carjacking

if he “took a motor vehicle from the possession of another by force or intimidation . . . and . . . acted

either intentionally or knowingly.” See Tenn. Code Ann. § 39-13-404(a)(2). In State v. Henry A.

Edmondson, Jr., 231 S.W.3d 925, ___ (Tenn. 2007), No. M2005-01665-SC-R11-CD, 2007 Tenn.

LEXIS 662, at *8 (Nashville, Aug. 20, 2007), our supreme court recently explained that the crime

of carjacking includes “forcible takings of motor vehicles from victims even when the victim is some

distance from his or her car at the time of the taking” and that the time between the taking and the

attack on the victim should be instantaneous or almost instantaneous. Given that the victim testified

that he did not know the appellant, that he stated there was no reason the appellant should have been

in possession of his Blazer, and that eyewitnesses saw the appellant assault the victim and leave in

a group with the Blazer, we believe the jury could infer that the appellant took the victim’s Blazer

by force.

B. Enhancement Notice

Next, the appellant contends that the trial court erred by sentencing him as a Range II,

multiple offender because the State failed to provide notice of its intent to seek enhanced

punishment. The State contends that the appellant has waived this issue because he failed to object

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at trial and raises this issue for the first time on appeal. The State also argues that, in any event, the

appellant is not entitled to Range I, standard offender sentencing because he conceded at the

sentencing hearing that he is a Range II offender and has failed to demonstrate prejudice. We

conclude that the trial court could not sentence the appellant as a Range II, multiple offender because

the State failed to provide any written notice of its intent to seek enhanced punishment.

The State concedes in its appellate brief that it did not file a notice of intent to seek enhanced

punishment. At the sentencing hearing, the defense repeatedly acknowledged that the appellant

qualified as a Range II offender. However, the appellant’s attorney urged the trial court several times

to sentence the appellant as a Range I offender because the appellant was a fairly young man, was

acquitted of the most serious charge of attempted second degree murder, and “does not have a bad

record as such.” The court chose to sentence the appellant as a Range II offender, stating that

“[t]hat’s the only thing appropriate in this case.”

Tennessee Code Annotated section 40-35-202(a) provides that “[i]f the district attorney

general believes that a defendant should be sentenced as a multiple, persistent or career offender, the

district attorney general shall file a statement thereof with the court and defense counsel not less than

ten (10) days before trial.” The statement “must set forth the nature of the prior felony convictions,

the dates of the convictions and the identity of the courts of the convictions.” Tenn. Code Ann. §

40-35-202(a). The purpose of the notice requirement “is to provide fair notice to an accused that he

is exposed to other than standard sentencing.” State v. Adams, 788 S.W.2d 557, 559 (Tenn. 1990).

If information in the notice is omitted or incorrect, “the inquiry should be whether the notice was

materially misleading.” Id. Where an ambiguity or contradiction appears on the face of the notice,

the defendant has a duty to inquire further. Id. The defendant must show prejudice to obtain relief.

Id.

The State contends that in State v. Livingston, 197 S.W.3d 710 (Tenn. 2006), our supreme

court held that “where the State failed to file a notice of intent to seek enhanced punishment for a

crime but where the defendant had ‘fair warning’ that the State intended to seek enhanced

punishment, the State had accomplished the purpose of Tenn. Code Ann. § 40-35-202(a)” and that

strict adherence to the statute was not required. However, the State’s reliance on Livingston is

misplaced. In Livingston, the defendant was originally indicted for Class E evading arrest, and the

State filed notice of enhanced punishment. Id. at 711. Subsequently, a superseding indictment was

issued, charging the defendant with Class D felony evading arrest. Id. Although the State did not

amend its notice to seek enhanced punishment, our supreme court held that the original notice

sufficiently informed the defendant of the State’s intent to seek enhanced punishment. Id. at 716.

Unlike Livingston, the State in the present case failed to file any notice to warn the appellant of its

intent to seek enhanced punishment. Moreover, as the supreme court explained,

While “perfect” notice is not required, . . . we have strictly

applied the requirement of section 40-35-202(a) that some notice

meeting the minimal requirements of the statute be given. . . .

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To reiterate, the notice provision of Tenn. Code Ann. §

40-35-202(a) requires, at a minimum, that the State file: (1) written

notice, (2) clearly expressing the State’s intention to seek sentencing

outside of the standard offender range, (3) setting forth the nature of

the prior felony conviction, the dates of the convictions, and the

identity of the courts of the convictions.

Id. at 713-14 (footnote omitted).

The State also argues that the instant case is similar to Brooks v. State, 756 S.W.2d 288

(Tenn. Crim. App. 1988), in which the petitioner claimed that his guilty pleas were voidable because

the State failed to provide him with written notice of enhanced punishment. Id. at 290. However,

this court found the petitioner’s claim to be without merit, stating,

First, the petitioner had actual knowledge and was acutely aware he

would receive a Range II sentence. Moreover, the petitioner did not

complain when the trial judge revealed the petitioner would receive

a Range II sentence. Second, the petitioner has failed to illustrate

how he was prejudiced by a lack of notice when (a) he agreed to

accept the sentence as part of the plea bargain agreement and (b) the

pleas were entered before the assistant district attorney general was

required to give such notice. See Tenn. R. Crim. P. 12.3(a).

Id. at 291. While the appellant in the present case acknowledged at the sentencing hearing that he

qualified as a Range II offender, he repeatedly urged the trial court to sentence him as a Range I

offender. Moreover, the appellant’s being sentenced as a Range II offender in the instant case was

not part of a negotiated plea agreement, and the announcement that he was a Range II offender was

made at the sentencing hearing, long after the State’s deadline for providing written notice had

expired. Therefore, we conclude that Brooks also is too dissimilar from the present case to be

dispositive.

In our view, the supreme court’s strong language in Livingston required more notice than

what the State gave in this case, which was none. We note that had the State filed an untimely notice

or a notice that did not perfectly comply with the requirements, then the outcome of this issue may

have been different. See State v. Carter, 121 S.W.3d 579, 585 (Tenn. 2003) (stating that “if notice

is filed late or is filed timely but is otherwise defective, the defendant must show prejudice before

the notice will be rendered ineffective”). However, because the State completely disregarded the

notice requirement, we must conclude that the trial court should have sentenced the appellant as a

Range I offender and that the case must be remanded for resentencing. See also State v. Pender, 687

S.W.2d 714, 719-20 (Tenn. Crim. App. 1984) (ordering that defendant be resentenced as Range I

offender when State failed to file any notice of intent to seek enhanced punishment).

C. Consecutive Sentencing

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The appellant contends that the trial court erred by ordering him to serve his sentences for

carjacking and aggravated assault consecutively because the evidence does not support the trial

court’s conclusion that he is a dangerous offender. The State argues that consecutive sentencing is

proper in this case. We conclude that the trial court properly classified the appellant as a dangerous

offender and that consecutive sentencing was appropriate in this case.

At the sentencing hearing, the victim testified that the assault and resulting brain injury had

ruined his dreams of joining the military. He stated that he had to relearn how to walk, talk, dress

himself, and “do everything again basically like a newborn baby.” He believed the appellant should

serve the maximum sentences.

Constance Lynn Bowman, the victim’s mother, testified that the victim could not walk when

he woke up but could mumble. Once the victim was moved into rehabilitation, it was three weeks

before he could walk, talk, or know where he was. Since the victim was a little boy, he had wanted

to join the military. However, the assault had left the victim with a fifteen percent permanent partial

disability, concentration problems, and learning problems. She stated that the victim had to be toilet-

trained again and that the family had been near bankruptcy. She believed the appellant should serve

his sentences in prison. Patricia A. Bowman, the victim’s grandmother, testified that the family was

still healing and that the appellant should serve the maximum sentences.

Roger L. Wright, a project manager for the Victim Assistance and Advocacy Project at West

Tennessee Legal Services, testified that he is a nationally certified victim advocate and that the

victim had filed a criminal injuries compensation claim. Two doctors had evaluated the victim, and

one concluded that he had “very severe and significant impairments.” The victim also had a fifteen

percent impairment to the body based on his brain and neuromuscular injuries.

The State introduced the appellant’s presentence report into evidence. According to the

report, the then twenty-three-year-old appellant was single with several young children. The

appellant dropped out of high school in the ninth grade but obtained his GED in prison. In the

report, the appellant stated that he began using alcohol and marijuana at age twelve and that he also

used cocaine previously. The only employment the appellant reported was a few weeks of farm

work, one month of roofing work, and some work as a barber. According to the appellant’s

statement in the report, he saw no benefit in being honest because “I did that with my case and look

at me now . . . I have not committed nor can I accept the charges.” The report shows that the

appellant has prior convictions for criminal responsibility for selling less than one-half gram of

cocaine, misdemeanor aggravated criminal trespass, misdemeanor theft, disorderly conduct, and

misdemeanor assault. At sixteen, the appellant was also charged with second degree murder and

convicted of voluntary manslaughter. For that offense, he received a ten-year probation sentence,

which was revoked when the appellant was charged with other crimes.

In sentencing the appellant, the trial court noted that it had considered the evidence at trial

and sentencing, counsel’s arguments, enhancement and mitigating factors, the appellant’s potential

for rehabilitation, and the principles of sentencing. The trial court applied enhancement factors (1),

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that the appellant “has a previous history of criminal convictions or criminal behavior, in addition

to those necessary to establish the appropriate range”; (8) that the appellant previously “failed to

comply with the conditions of a sentence involving release into the community”; and (10), that the

appellant “had no hesitation about committing a crime when the risk to human life was high.” See

Tenn. Code Ann. § 40-35-114(1), (8), (10). The court noted that the appellant continued to deny that

he did anything wrong and concluded that he had a low potential for rehabilitation. The trial court

sentenced the appellant as a Range II offender to the maximum punishment for each offense, which

was twenty years for carjacking, ten years for aggravated assault, and eight years for theft. See Tenn.

Code Ann. 40-35-112(b)(2), (3), (4). The trial court also ordered that the appellant serve eleven

months, twenty-nine days at seventy-five percent for the misdemeanor reckless endangerment

conviction.

Regarding consecutive sentencing, the trial court concluded that the appellant “is a dangerous

offender whose behavior indicates little or no regard for human life, and no hesitation about

committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4).

In reaching this conclusion, the trial court noted that the victim almost had been beaten to death for

his vehicle. The trial court stated that confinement was “necessary to protect society from the

Defendant’s unwillingness to lead a productive life and the Defendant’s resort to criminal activity

in furtherance of an anti-social lifestyle.” The trial court also stated that consecutive sentencing

reasonably related to the offenses. The trial court ordered that the appellant serve his twenty- and

ten-year sentences consecutively and that he serve the remaining sentences concurrently with the

other two for an effective sentence of thirty years in confinement.

Appellate review of the length, range, or manner of service of a sentence is de novo. See

Tenn. Code Ann. § 40-35-401(d). In conducting its de novo review, this court considers the

following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the

presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)

the nature and characteristics of the criminal conduct involved; (5) evidence and information offered

by the parties on enhancement and mitigating factors; (6) any statement by the appellant in his own

behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102,

-103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the

appellant to demonstrate the impropriety of his sentences. See Tenn. Code Ann. § 40-35-401,

Sentencing Commission Comments. Moreover, if the record reveals that the trial court adequately

considered sentencing principles and all relevant facts and circumstances, this court will accord the

trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

Tennessee Code Annotated section 40-35-115(b)(4) provides that a trial court may impose

consecutive sentences if a defendant is convicted of more than one offense and the trial court finds

by a preponderance of the evidence that “[t]he defendant is a dangerous offender whose behavior

indicates little or no regard for human life, and no hesitation about committing a crime in which the

risk to human life is high.” In State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), our supreme

court held that satisfying Tennessee Code Annotated section 40-35-115(b)(4), by itself, is not

sufficient to sustain consecutive sentences. If the defendant is found to be a dangerous offender

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under the statute, the trial court must also determine whether the sentences imposed are reasonably

related to the severity of the offenses and necessary to protect the public from further criminal

activity by the defendant, the “Wilkerson factors.” Id. Moreover, trial courts must make specific

findings regarding these factors before imposing consecutive sentences. State v. Lane, 3 S.W.3d

456, 461 (Tenn. 1999).

The trial court in the instant case specifically addressed the Wilkerson factors and made

specific findings regarding those factors. We agree with the trial court that the appellant qualifies

as a dangerous offender and that consecutive sentencing was proper in this case. However, although

not raised by the appellant, the appellant’s conviction for misdemeanor reckless endangerment in

count 1 must be merged into his conviction for aggravated assault in count 2. Aggravated assault

as charged in the indictment occurs when a person “[i]ntentionally or knowingly commits an assault

as defined in § 39-13-101 and causes serious bodily injury.” Tenn. Code Ann. § 39-13-102(a)(1)(A).

The trial court instructed the jury that a person commits assault who “intentionally or knowingly

caused bodily injury to another.” See Tenn. Code Ann. § 39-13-101(a)(1). Misdemeanor reckless

endangerment occurs when a person “recklessly engages in conduct that places or may place another

person in imminent danger of death or serious bodily injury.” In this case, the appellant’s

convictions arose out of a single attack involving one victim. Therefore, convictions for both

offenses violate double jeopardy protections, and the misdemeanor offense must be merged into the

felony offense. See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932);

State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996); State v. Adams, 973 S.W.2d 224, 229 (Tenn.

Crim. App. 1997).

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the appellant’s convictions.

However, the trial court erred by sentencing the appellant as a Range II, multiple offender and by

failing to merge the misdemeanor reckless endangerment conviction into the aggravated assault

conviction. Therefore, we remand the case to the trial court in order for the court to conduct a new

sentencing hearing and to resentence the appellant as a Range I, standard offender and for correction

of the aggravated assault judgment form to reflect that the misdemeanor reckless endangerment

conviction has been merged into that offense.

___________________________________

NORMA McGEE OGLE, JUDGE

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