The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
NOVEMB ER SESSION, 1998 May 6, 1999
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9712-CR-00564
)
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON. CHERYL BLACKBURN
RAYMOND HALE, ) JUDGE
)
Appe llant. ) (Dire ct Ap pea l - Cla ss C Felo ny)
FOR THE APPELLANT: FOR THE APPELLEE:
JEFFREY A. DEVASHER JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
(On A ppea l)
DARYL J. BRAND
JOAN A. LAWSON Senior Counsel
Assistant Public Defender 425 Fifth Avenu e North
(At Tr ial) Nashville, TN 37201-1649
1202 Stahlman Building
Nashville, TN 37201 VICTOR S. JOHNSON
District Attorney General
DAN HAMM
SHARON BROX
Assistant District Attorn eys
222 Se cond A venue N orth
Nashville, TN 37201-1649
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
The appellant, Raymond A. Hale, Jr., w as con victed by a Davidso n Cou nty
jury of one (1) count of robb ery, a C lass C felony. T he trial c ourt se ntenc ed him
as a Range I offender to five (5) years in community corrections and ordered that
Appe llant’s sentence run consecutively to his sentence on an unrelated offense
for which he was on probation at the time the present offense was committed.
On appeal, Appellant raises the following issues for our review:
(1) wheth er the e videnc e is sufficient to sustain the jury’s verdict of
guilt;
(2) whether the trial court erred in failing to instruct the jury on the
lesser inc luded o ffense of a ttempte d theft;
(3) whether the trial cou rt erred in charging th e jury with the “truth in
sentencing” instruction; and
(4) whether the trial court erred in imposing consecutive sentences.
After a thorough review of the record before this Court, we conclud e that there
is no reversible error. Accordingly, the judgment of the trial court is affirmed.
FACTS
At approximately 8:00 p.m. on December 13, 1996, Delores Butler, her
daughter and her granddaughter left the Walgreens’ drugs tore on Gallat in Pike
in Nash ville. As they w ere walk ing to their ca r, a man approa ched M s. Butle r
and deman ded that she give him her pu rse. Butler responded, “no, I’m not.”
The man reached for her purse, and as Butler stepped away from the man, she
fell backward s. As she fell, Butler dro pped her belongings, which scattered
throughout the parking lot. The man rea ched over B utler, and Butler b egan
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kicking and screaming. The man then ran away with an object in his hands.
Subseq uently, when B utler attem pted to co llect her be longings in the park ing lot,
she wa s unab le to locate her wallet.
Bystanders in the area heard the victim shouting and came to her
assistance. Several men chased the perpetrator, apprehended him and brought
him back to the Walgreens’ parking lot. Butler identified the man apprehended
by the bystanders as the man who robbed her. The offender was identified at
trial as the A ppellant.
The next morning, Ms. Butler went back to Walgreens’ and found her wallet
in the parking lot. The wallet was found in close proximity to where the incident
occurre d.
The jury found Appellant guilty of robbery, and the trial court sentenced
Appellant to five (5) years, to be served o n com munity c orrection s. The trial court
further ordered that Appellant’s sentence for robbe ry wou ld run c onse cutively to
his sentence on an unrelated offense for which he was on probation at the time
of the present offense. From his conviction and sentence, Appellant now brings
this ap peal.
SUFFICIENCY OF THE EVIDENCE
In his first is sue on appeal, Appellant challenges the sufficiency of the
convicting evidence. Sp ecifically, he claims that there was insufficient evidence
to establish that Appellant ob tained or exer cised contro l over M s. Butle r’s
property. Therefore, he argues that he did not commit a “theft of property” as
required by the robbery statute, and no rational trier of fact could have found him
guilty of robb ery beyo nd a rea sonab le doub t.
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A.
When an appellant challenges the sufficiency of the evidence, this Co urt
is oblige d to rev iew tha t challe nge according to certain well-settled principles.
Wh ere the sufficiency of the evidence is contested on appeal, the relevant
question for the reviewing court is whether any rational trier of fact could h ave
found the accu sed gu ilty of every elem ent of th e offen se be yond a reaso nable
doubt. Tenn. R. App . P. 13(e); State v. Harris , 839 S.W .2d 54, 75 (T enn. 1992 ).
On appe al, the s tate is e ntitled to the stro nges t legitim ate view of the evidence
as well as all reasonable and legitimate inferences that may be drawn therefrom.
State v. Cabbage, 571 S.W.2d 832, 835 (T enn. 1978). In conducting our
evaluation of the convicting eviden ce, this Court is precluded from reweighing or
reconsidering the evide nce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.
App. 1996 ); State v. Matthews, 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ).
Moreover, this Court may not substitute its own inferences “for those drawn by
the trier of fact from circumstantial evidence.” State v. Matthews, 805 S.W.2d at
779.
Questions concerning the credibility of the witnesses, the weight and value
to be given the evidence as well as all factual issues raised by the evidence a re
resolved by the trier of fact, n ot this Co urt. State v. Tuttle , 914 S.W.2d 926, 932
(Tenn. Crim. App. 1995). A verdict of guilty by the jury, approved by the trial
judge, accredits the testimony of the state’s witnesses and resolves all conflicts
in the testim ony in favo r of the state . State v. Cazes, 875 S.W.2d 253, 259
(Tenn. 1994); State v. Harris , 839 S.W .2d at 75. Alth ough an ac cuse d is
origina lly cloaked w ith a pre sum ption o f innoc ence , a jury ve rdict rem oves th is
presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913,
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914 (Tenn. 1982). Hence, on appeal, the burden of proof re sts with Ap pellant to
demo nstrate the insufficienc y of the con victing evide nce. Id.
B.
Robbe ry is defined a s the “inten tional or kn owing th eft of prope rty from the
person of another by violence or putting the person in fear.” Te nn. Co de Ann . §
39-13-401 (a). A person commits a theft of prop erty if “with inten t to deprive the
owner of property, the person knowingly obtains or exercises control over the
property without the own er’s effective consen t.” Tenn. Code Ann. § 39-14-103.
C.
Appe llant argues that there is insufficient evidence to establish that he
obtained or exercised co ntrol over Ms. Bu tler’s property, and acco rdingly, there
is insufficient evidence that he committed a theft. He bases this argument on the
fact that the victim found her wallet in the Walgreens’ parking lot the day after the
incident.
The victim testified that Appellant approached her and demanded that she
give him her purse. Butler declined to turn over her belongings, stepped away
from Appella nt and fell b ackwa rds. Appe llant reached over her, and she and
Appellant struggled. As they were struggling, Appellant grabbed an object and
ran away with what ap peared to be her wallet in his h ands. An eyewitness to the
incident testified that he saw A ppellant grab so mething b efore running a way.
Another eyewitness stated that Appellant appeared to be clutching an object as
he was running away from the scen e.
Although the victim found her wallet the next day in the general vicinity that
the inc ident to ok pla ce, it was a jury question as to whether Appellant obtained
or exercised control over the wallet. The jury could have properly found that
Appellant seized the victim ’s wallet and then dropped the wallet during the
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struggle with Butler or as he fled the scen e. This Court may not second-guess
the jury’s findings in this regard. We, therefore, conclude that there is sufficient
evidence for a rational trier of fact to find Appe llant guilty of robbery beyond a
reason able do ubt.
This issu e has n o merit.
LESSER INCLUDED OFFENSE - ATTEMPTED THEFT
Appellant contends tha t he was den ied a fair trial when the trial court
refused to instruct the jury on the le sser inclu ded offe nse of atte mpted theft of
property. He asserts that the evidence presented at trial could have supported
a finding by the jury th at App ellant d id not o btain control ove r the victim’s property
and that his actions did not place the victim in fear. Therefore, he claims that the
evidence would su pport an instruction on attem pted the ft, and the trial court erred
in failing to so instruct the jury.
In a criminal trial, the accused has a right to a correct and complete charge
of the law applicab le to the ca se. State v. Phipps, 883 S.W.2d 138, 142 (Tenn.
Crim. App. 19 94); State v. Wright, 618 S.W .2d 310, 315 (Tenn. Crim . App. 1981 ).
It is well-established that a defendant is entitled to a jury instr uction “on all lesser
included offenses where ‘any facts . . . are susceptible of inferring guilt of any
lesser included offens e.’” State v. T rusty, 919 S.W.2d 305, 310 (Tenn. 1996)
(quoting State v. Wright, 618 S.W.2d at 315). Tenn. Code Ann. § 40-18-110(a)
provides:
It is the du ty of all judges charging juries in cases of criminal
prosecutions for any felony wherein two (2) or more grades or
classes of offense may be included in the indictment, to charge the
jury as to all of the law of each offense included in the indictm ent,
without an y reques t on the pa rt of the defe ndant to do so.
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“An offens e is ne cess arily inclu ded in another if the elements of the greater
offense, as those elements are set forth in the indictment, include, but are not
congruent with, all the elements of the lesser.” Howa rd v. State, 578 S.W.2d 83,
85 (Tenn . 1979); see also State v. Trusty, 919 S.W.2d at 310-11. In other words,
an offens e is con sidere d a les ser inc luded offens e “if the elements of the included
offense are a subset of the elements of the charged offense” and “the greater
offense cannot be committed without also committing the lesser offense.” State
v. Trusty, 919 S.W.2d at 310.
In the case sub judice, the trial court charged the jury with robbery,
attempted robbery a nd theft of property. Appellant requ ested that the trial court
instruct the jury on attempted theft, but the trial court declined to do so.
Theft of prop erty is cle arly a lesser included offense of robbery as the
eleme nts of theft are a “subset” of the elements of robbery and one m ust co mm it
a “theft” in order to commit the offense of robbery. See State v. T rusty, 919
S.W.2d at 310; Tenn. Code Ann. §§ 39-13-401(a), 39-14-103. Furthermore, at
trial a defense theory was that Appellant did not complete the theft because he
did not obtain or exercise control over the victim’s property. Under these
circumstances, attempted theft was a lesser included offense of the indicted
offense of robb ery. “If the re is an y evide nce re ason able mind s cou ld accept as
to any such lesser offenses, the accu sed is entitled to appropriate instructions
regarding the lesser offenses.” State v. Atkins, 681 S.W.2d 571, 577 (Tenn.
Crim. App. 1 984). T hus, th e trial co urt erre d in failing to instruct the jury as to the
lesser inc luded o ffense of a ttempte d theft.
However, Appe llant is no t nece ssarily e ntitled to relief as a resu lt of this
error. Our Sup reme C ourt has held tha t a trial court’s failure to instruct on a
lesser included offense is subject to harmless error analysis. State v. Williams,
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977 S.W.2d 101, 106-08 (Tenn. 1998). In Williams, the defendant was charged
with premeditated first degree murder, and the trial court instructed the jury on
premeditated first degree mu rder, second degree murder and reckless homicide.
Id. at 104. T he trial court rejected a defense request for an instruction on
voluntary mans laughte r. Id. Wh ile ackn owled ging th at the tria l court e rred in
refusing to charge the jury o n voluntary ma nslaughter, the C ourt held such error
was harmle ss beyo nd a rea sonab le doub t. Id. at 106-0 8. The Court reasoned:
[b]y convicting the defe ndant of first degree murder the jury
determined that the proo f was suffic ient to establish all the elem ents
of that offense beyon d a rea sona ble doubt, including that the killing
was “intentional, deliberate and premeditated.” In other words, by
finding the defendant guilty of the highest offense to the exclusion
of the imme diately lesser offense , second de gree murder, the jury
nece ssarily rejected all other lesser offense s, including voluntary
manslau ghter. Acco rdingly, the trial court’s e rroneou s failure to
charge voluntary manslaughter is harmless beyond a reaso nable
doubt becau se the jury’s verdict of gu ilt on the gre ater offense of
first degree m urder and its disinclination to consider the lesser
included offense o f second degree murde r clearly dem onstrates that
it certainly would not have returned a verd ict on voluntary
manslau ghter.
Id. at 106.
The presen t case is clo sely ana logous to Williams. The trial cou rt prop erly
charged the jury with the lesser offenses of attempted robbery and theft, but the
jury returned a guilty verdict on the indicted offense of robbery. By returning a
guilty verdict on the greatest offense to the exclusion of the lesser charged
offenses, the jury “ nece ssarily rejected all other lesse r offenses.” Id. As a res ult,
we mu st conclu de that the error was harmle ss beyo nd a rea sonab le doub t.
This issu e is withou t merit.
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“TRUTH IN SENTENCING” JURY INSTRUCTION
In his next issue, Appellant contends that the trial court erred in instructing
the jury on the minimum number of years he would serve before becoming
eligible for parole. He claim s that Tenn . Code An n. § 40-35-20 1(b), 1 which
requires that parole eligibility be charged in conjunction with a range of penalties
charge, is unconstitutionally vague, violates due process, deprives a defendant
of a fair and im partial jury an d cons titutes an u ncons titutional attem pt by the
legislature to exercise judicial powers.
A.
The state responds that this issue is controlled by the recent Tennessee
Supreme Court case State v. King, 973 S.W.2d 586 (Tenn. 1998), wherein the
1
Tenn. Code Ann. § 40-35-201(b) provides:
(1) In all contested criminal cases, except for capital crimes which are governed by the
procedures cont ained in §§ 39-13-204 and 39-13-205, upon the motion of either party, filed
with the court prior to the selection of the jury, the court shall charge the possible penalties
for the offense charged and all lesser included offenses.
(2)(A)(I) When a charge as to possible penalties has been requested pursuant to subdivision
(b)(1), the judge shall also include in the instructions for the jury to weigh and consider the
meaning of a sentence of imprisonment for the offense charged and any lesser included
offenses. Such instruction shall include an approximate calculation of the minimum number
of years a person sentenced to imprisonment for the offense charged and lesser included
offenses must serve before reaching such person's earliest release eligibility date. Such
calculation shall include such fa ctors as the releas e eligibility percenta ge esta blishe d by §
40-35-501, maximum and minimum sentence reduction credits authorized by § 41-21-236
and the governor's power to reduce prison overcrowding pursuant to title 41, chapter 1, part
5, if applicable.
(ii) Such instructions to the jury shall also include a statement that whether a defe nda nt is
actu ally released from incarce ration on th e date w hen su ch defe ndant is first eligible for
release is a discretionary decision made by the board of paroles based upon many factors,
and that such board has the authority to require the defendant to serve the entire sentence
impo sed by the court.
(B) On an annua l basis, the department of correction shall provide each judge exercising
criminal trial court jurisd iction with the appr oxim ate calculation required in subdivision (2)(a).
Such calculation shall be broken down to show the effect of each factor used in making such
calculation. If the calculation provided by the dep artme nt to the judges changes because of
a change in the law or correctional policy, court intervention, the governor's prison
overcrowding policy or any other such circumstance, the department shall send a revised
calculation to the judges as such chang es occur.
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Court held Te nn. Co de Ann . § 40-35-201(b)(2) cons titutiona l.2 In King, the Court
rejected similar challenges to the parole eligibility jury instruction, concluding that
the statute was not impermissibly vague and did not violate the separation of
powers clauses of the Tennessee C onstitution . Id. at 588-92. The Court also
noted that the jury instruction did not deprive the defendant of an impartial jury.
Id. at 588, n. 4. Furthermore, the Court determined that the defendant’s due
process rights were not violated by the instruction and observed:
[t]he jurors in this case were pro perly instruc ted that the State must
prove each element of the charged offe nse b eyond a reas onab le
doubt. Significantly, they were additionally instructed that they were
not to attem pt to fix punish ment for the offense and that the
sentencing inform ation w as “for y our info rmatio n only.” When the
trial court e xplains , as it did here, that the sentencing, parole, and
early release information is not to be considered in the
determination of guilt or innocence, then certainly no due process
violation has occurred.
Id. at 592 (em phasis add ed).
The holding in King was limited, however, to the circumstances of that
particular case. The Court concluded, “[i]n sum, under the circumstances
presented we find that the jury instruction given under Tenn. Code Ann. § 40-35-
201(b)(2) did not deprive the appellant of his due process right to a fair trial.” Id.
B.
Subsequent to the release of King, this Court filed its opinion in the case
of State v. Jason M. Weiskopf, C.C.A. No. 02C01-9611-CR-00381, 1998 Tenn.
Crim. App. LEXIS 1228, Shelby County (Tenn. Crim. App. filed December 4,
2
Effective May 18, 1998, Tenn. Code Ann. § 40-35-201(b) was amended to provide the following:
In all contested criminal cases, except for capital crimes which are governed by the
procedures contained in §§ 39-13-204 and 39-13-205, and as necessary to comply with the
Constitution of Tennessee, article VI, section 14, and § 40-35-301, the judge shall not instruct
the jury, no r sha ll the at torne ys be p erm itted to com me nt at a ny tim e to th e jury, o n pos sible
penalties for the offense charged nor all lesser included offenses.
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1998, at Jackson). 3 Judg e Joe G. Rile y, writing for the Court, held that the
defendant’s due proce ss rights had be en violated by the p arole eligibility jury
instruction. The C ourt dis tinguis hed th e Sup reme Cour t’s hold ing in King on the
basis that, unlike in King, the jury in Weiskopf was in structe d that th ey cou ld
“weigh and co nsider the mean ing of a sentence of imprisonm ent.” Id. at *3-4.
The Court observed that the jury does not determine a defen dant’s sente nce in
non-capital cases, and therefore, such sentencing information is irrelevant to the
jury’s determ ination of g uilt or innoce nce. Id. at *4. As a result, the Court
concluded that instructing the jury that they c ould “weigh an d consider”
extraneo us, irrelevan t informa tion depr ived the d efenda nt of a fair trial. Id.
C.
In the case sub judice, the trial court in structed th e jury that they could
“weigh and cons ider the mea ning of a sente nce of impriso nment.” Th e court
further instructed the jury as to the range of punishment for robbery, attempted
robbery and the ft. The jury w as instruc ted that the earliest rele ase eligib ility date
for robbery was .36 years (13 1 days) a nd the e arliest relea se eligibility date for
attempted robbery was .24 years (87 days). The trial court also instructed the
jury that punishm ent for theft of property “may be set up to eleven (11) months
and twe nty-nine (2 9) days.”
W e agree with the Weiskopf court that instructing the jury to “weigh and
consider the meaning of a sentence of imprisonment” affects an ac cuse d’s
constitutional right to a fair trial. Therefore, we conclude that the trial court erred
3
The original opinion in Weiskopf was filed on February 4, 1998, wherein this Court held Tenn. Code
Ann. § 40-35-201(b) to be unconstitutional as it is violative of the due proces s clause s of the fe deral and state
constitutions. State v. Jason M. Weiskopf, C.C.A. No. 02C01-9611-CR-00381, 1998 Tenn. Crim. App. LEXIS
153, Sh elby Coun ty (Tenn. Crim. App . filed February 4, 1998, at Jackson). The Supreme Court remanded
the case to the Court of Criminal Appeals for reconsideration of the issue in light of the Court’s holding in King.
State v. Jason M. Weiskopf, 1998 Tenn. Crim. App. LEXIS 1228, at *1.
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in instructing the jury that they could “weigh and consider” such irrelevant
sentencing information.
D.
Erroneous jury instruction s are sub ject to harmle ss error re view. State v.
Belser, 945 S.W .2d 776 , 782 (T enn. C rim. App . 1996). However, if the error is
constitutional in natu re, ther e mu st be a revers al unless the error is harmless
beyond a reaso nable d oubt. Id.
In Weiskopf, the Court declined to find harmless error. The Court
observed that the jury was instructed that the earliest release eligibility date for
first degree murder was 25 years; for second degree murder, the earliest release
eligibility date was 1.0 6 years; and the earliest release eligibility date for volunta ry
manslaughter was .21 years. State v. Jason M. Weiskopf, 1998 Tenn. Crim. App.
LEXIS 1228, at *4. The Court stressed the gross discrepancies between the
release eligibility date for first degree murder as opposed to that for second
degree murde r and volu ntary ma nslaug hter. Id. The Court stated,
[w]e know not to what extent, if any, the jury considered the
ridiculo usly low release eligibility dates for second degree murder
and voluntary manslaughter as compared to the much higher
release eligibility date for first degree mu rder. Nevertheles s, we are
unab le to con clude that this information had no im pact upon th e jury
since the primary issue was the degree of homicide.
Id.
In the present case, the jury was instructed that the earliest release
eligibility date for robbery w as .36 years, ap proximately 4 months, 11 days, and
.24 years, approximately 2 months, 27 days, for attempted robbery. The
distinction between the rele ase e ligibility da tes is slig ht and in no way approaches
the glaring discrepancies in release eligibility dates noticed by th is Cou rt in
Weiskopf. Furthermore, the jury was not instructed on a minimum release
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eligibility date for theft of property, but was instructed that the sentence “may be
set up to eleven (11) months and twenty-nine (29) days.” When read with the
rema ining instruction s as to se ntencing range, th is statem ent gives th e
impression that Appellant could be required to serve the entire eleven (11)
months and twenty-nine (29) days, clearly a more lengthy sentence than
approximately 4 months, 11 days or approximately 2 months, 27 days.
“Jury instruc tions m ust be read a s a wh ole rath er than in isolation.” State
v. Belser, 945 S.W .2d at 782 . After review ing the jury in structions, we are
convinced that the parole eligibility jury instruction does not “affirmatively appear
to have affecte d the result of the trial on the m erits.” Tenn. R. C rim. P. 52(a).
The error was, therefore, harmless.
This issu e is withou t merit.
CONSECUTIVE SENTENCING
In his final issue, Appellant contends that the trial court erred in ordering
that his sentence for robbery run consecutively to his sentence for a prior offense.
Appellant acknowledges that the trial court properly found that he committed the
present offense while on probation for a previous offense. See Tenn. Code Ann.
§ 40-35-115(b)(6). However, he argues that consecutive sentencing is not
reaso nably related to the severity of the offense co mmitted a nd is not nece ssary
to protect the pub lic from future crimina l acts. See State v. Wilkerson, 905
S.W .2d 933, 939 (Tenn. 199 5).
A.
When an appellant challenges the length, range, or manner of service of
a sentence, this Court conducts a de novo review with a presumption that the
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determination of the trial court was corre ct. Tenn. Co de Ann. § 4 0-35-401(d ).
Howeve r, this presum ption of correctne ss is “conditioned upon the affirm ative
showing that the trial court in the record considered the sentencing principles and
all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). In the event that the record fails to demonstrate such
consideration, review of the sente nce is purely de novo. Id. If appellate review
reflects that the trial court p roper ly considered all relevant factors and its findings
of fact are adequately supported by the record, this Court must affirm the
senten ce. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
In condu cting a review, this Court must consider the evidence, the
presentence report, the sentencing principles, the arguments of counsel, the
nature and ch aracter o f the offens e, mitigatin g and e nhanc emen t factors, any
stateme nts made by the defendant, and the potential for rehabilitation or
treatme nt. State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The
defendant bears the burden of showing the impropriety of the sentence imposed.
State v. Grego ry, 862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).
Consec utive sentencing is governed by Tenn. Code Ann. § 40-35-115.
The trial cou rt may order s enten ces to run co nsec utively if it fin ds by a
preponderance of the evidence that one or mo re of the require d statu tory crite ria
exist. State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 19 95).
Furthermore, the court is required to determine whether the consecutive
sentences (1) are reasonably related to the severity of the offenses committed;
(2) serve to protect the public from further criminal conduct by the offender; and
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(3) are congruent with general principles of senten cing. State v. Wilkerson, 905
S.W.2d at 939.4
B.
The trial court, after considering the enhancement and mitigating factors,
sentenced Appellant as a Range I offender to five (5) years for his robbery
conviction. The court further found that Appellant committed the present offense
while he was on probation for a previous offense. Tenn. Code Ann. § 40-35-
115(b)(6). After considering the consec utive sentencin g facto rs enu nciate d in
Wilkerson, the trial court ordered that App ellant’s sen tence ru n cons ecutively to
his sente nce fo r a prior offens e for wh ich he was o n prob ation a t the tim e the
present offense was committed.
C.
Appellant concedes that the present offense was committed while he was
on probation for aggravated burglary. Therefore, consecutive sentencing was
appropriate under Tenn. Code Ann. § 40-35-115(b)(6). However, Appellant
contends that there is insufficient evidence to support the factors required by
Wilkerson.
The presentenc e report reflects that Ap pellant has a crim inal history
including conviction s for agg ravated b urglary, ag gravated assau lt, assault,
disorderly condu ct and ha rassm ent. He w as on p robation for aggra vated
burglary and was awaiting trial for harassment at the time the present offense
was committed. Furthermore, he was arrested for driving on a suspended
4
Currently pending befo re the Sup rem e Co urt is th e issu e wh ethe r a tria l cour t is required to make
Wilkerson findings when consecutive sentencing is based upon criteria other than the “dangerous offender”
standard under Tenn . Code A nn. § 40- 35-115 (b)(4). See State v. David Keith Lane, C.C.A. No. 03C01-9607-
CC-00259, 1997 Tenn. Crim. App. LEXIS 566, Bradley County (Tenn. Crim. App. filed June 18, 1997, at
Knoxville), perm. to app. granted (Tenn. February 2, 1998). Nevertheless, under our review of this issue, we
will require Wilkerson findings regardless of the statutory basis for consecutive sentencing.
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license while on probation for assault in 1992, and was subsequently convicted
of that offense.5
Appellant has shown a continuing disregard for the laws of this state. He
has repeatedly violated the terms of release into the community. Moreover, the
severity of his crimes have escalated over time. After considering the general
principles of senten cing, we c onclud e that consecutive sente nces are rea sona bly
related to the severity o f the offe nse c omm itted an d serve to prote ct the p ublic
from Appellant’s further criminal conduct. See State v. Wilkerson, 905 S.W.2d
at 939.
This issu e has n o merit.
CONCLUSION
After a thorough review of the record before this Court, we find no
reversible error. Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JOHN H. PEAY, JUDGE
5
Accor ding to the p resente nce rep ort, Appellant was arrested for drivin g on a sus pen ded licens e in
July 1992, but failed to appear in court. In January 1995, he was arrested due to his prior failure to appear
and convicted on the offense of driving on a suspended license.
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