State of Tennessee v. Tyler Young

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 6, 2015

STATE OF TENNESSEE v. TYLER YOUNG

Appeal from the Criminal Court for Shelby County

No. 11-04219 Chris Craft, Judge

No. W2013-01591-CCA-R3-CD - Filed February 6, 2015

Appellant, Tyler Young, was convicted by a Shelby County jury of aggravated burglary,

employing a firearm during the commission of a dangerous felony, and two counts of

attempted aggravated robbery. The trial court ordered him to serve an effective sentence of

fourteen years in the Tennessee Department of Correction. On appeal, he challenges the

sufficiency of the evidence supporting his convictions for employing a firearm during the

commission of a dangerous felony and attempted aggravated robbery and argues that the trial

court erred in its sentencing. Following our review, we affirm the judgments of the trial

court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and

C AMILLE R. M CM ULLEN, JJ., joined.

Paul J. Springer, Memphis, Tennessee, for the appellant, Tyler Young.

Herbert H. Slatery III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy

P. Weirich, District Attorney General; and Jose Francisco Leon, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case stems from the home invasion burglary and attempted robbery of the

residence of Valarita Watt and Elijah Robinson on April 4, 2011, in Memphis, Tennessee.

During the course of the burglary, appellant was shot and his accomplice was killed. We

note that one of the victims, Elijah Robinson, passed away prior to the trial, which began on

February 5, 2013.

Valarita Watt testified that on April 4, 2011, she and Elijah Robinson lived in a house

on Glenbrook Street in Memphis. That day, she and her stepdaughter were lying in bed

watching television while Mr. Robinson was lying down in a room across the hall. She

recalled that Mr. Robinson asked her whether she heard noises. She said that at first, she did

not hear anything but that later she heard the same noises. Mr. Robinson checked the house

to see if anyone had entered. She said that he did not find anyone and that as he returned to

his room, he said, “‘I hope ain’t nobody in here, and if they is, I’m . . . back here.’” Ms. Watt

testified that eight to fifteen seconds later, a gunman stepped into her room and said, “‘Shut

up, [expletive].’” She said the gun was black. She threw the bed covers over her head,

pushed the child to the back of the bed, and yelled to Mr. Robinson that the man had a gun.

Ms. Watt said that after this statement, she heard “total shooting.” She then heard someone

screaming, “‘Don’t kill me, ‘E.’ ‘E,’ please don’t kill me.’” Ms. Watt explained that Mr.

Robinson was known as “E.” She said that she turned on the lights and saw Mr. Robinson

standing in the middle of the room, saw one man “in [her] floor jumping, deceasing, and one

guy in the corner, shot in the arm, screaming, ‘Don’t kill me.’” Ms. Watt identified appellant

in the courtroom as the injured man. She said that when Mr. Robinson saw appellant, he

asked, “‘Tyler, did you try to rob me and my family?’”

Ms. Watt testified that Mr. Robinson checked the house for more intruders but that

the two men in her room were the only “unwanted people” in the house. She said that neither

man had permission to be in her house. Ms. Watt testified that Mr. Robinson owned a

weapon at the time but that it was not a .45 caliber pistol. She said that she learned that the

men entered through a window in what she called their exercise room. The window was

broken and raised. Ms. Watt identified Mr. Robinson’s gun, and the assistant district

attorney general showed her a second gun that she had never seen before trial. Ms. Watt

testified that the incident was terrifying and that after the incident she was unable to sleep,

even after she moved out of the house where the incident occurred.

On cross-examination, Ms. Watt testified that appellant was not the man who entered

her room with the gun. Ms. Watt identified pictures of Mr. Robinson’s gun in a drawer and

a gun under her television cabinet. She testified that the gun under the cabinet was not Mr.

Robinson’s. Ms. Watt agreed that they had marijuana in the house for personal consumption,

but she testified that Mr. Robinson did not sell marijuana.1

1

After Ms. Watt’s testimony, the State played a video recording of Mr. Robinson’s preliminary

hearing testimony. However, the recording was not included in the appellate record.

-2-

Memphis Police Officer David Tisdell testified that he was the first police officer to

respond to Glenbrook Street. He said that Mr. Robinson met him at the door and explained

that two men had broken into his house. Mr. Robinson told him that he had shot both men

and gave him the location of the men within the house. Ms. Watt and the child were already

outside. Officer Tisdell said that he located the two men, one of whom was unresponsive.

He testified that appellant was the second injured man and that appellant advised him that

he had been shot in the shoulder. Officer Tisdell assisted appellant in standing and took him

outside, where another officer took custody of appellant. Officer Tisdell said that paramedics

took appellant to the Regional Medical Center. Officer Tisdell testified that he saw one

handgun in the residence — a pistol located in a kitchen drawer to which he was directed by

Mr. Robinson.

Paramedic and firefighter Christopher Coleman testified that he responded to the

Glenbrook Street address on April 4, 2011. He determined that one of the suspects was

deceased. He treated the other suspect for a single gunshot wound to the right shoulder. He

also transported the suspect to the Regional Medical Center.

Memphis Police Sergeant Alvin Moore testified that he met appellant at the Regional

Medical Center. He took biographical information from appellant and took pictures of his

injury.

Memphis Police Officer Marcus Mosby testified that he collected two firearms from

the Glenbrook Street residence, one was a .40 caliber and the other was a .45 caliber Ruger.

He said that he located the .45 caliber Ruger under a television cabinet and that he was not

able to see the weapon until the medical examiner moved the deceased suspect’s body. The

other weapon was collected from a kitchen drawer. Officer Mosby testified that he also

collected six spent .40 caliber rounds and a magazine containing four live .40 caliber rounds.

On cross-examination, Officer Mosby agreed that the .45 caliber weapon was loaded

with a round in the chamber and six rounds in the clip.

Memphis Police Lieutenant Robert Scoggins testified that he interviewed appellant

on April 4, 2011, and that appellant signed a statement regarding his participation in the

offenses at 3:10 p.m. that day. In the statement, appellant agreed that he participated in the

attempted robbery. He said that his brother, Tonio Wilson, was with him but that his brother

was shot and killed by Elijah Robinson. Appellant told Lieutenant Scoggins that Tonio

Wilson had been armed with a .45 caliber pistol but that he himself did not carry a weapon.

Appellant said that he attempted to rob the victims because he believed they had marijuana

and money. He explained,

-3-

My brother had been living at my mother’s house for too long and she was

ready for him to get his own by him being that old. That’s when I convinced

him to go and rob [Elijah Robinson] because my brother is not from down here

so he didn’t never know [Elijah Robinson]. I gave him a plan and told him it

was simple and easy and we could do it.

Appellant told Lieutenant Scoggins that they did not believe that Mr. Robinson was at home

but that they knew that someone was inside the home. They entered through a window and

went down the hall. When Ms. Watt yelled, Elijah Robinson began shooting at them.

Appellant insisted that his brother never pointed his gun.

Following the close of proof and deliberations, the jury convicted appellant as

charged. The trial court sentenced him as a Range I, standard offender, to four years for

aggravated burglary and four years for each of the two attempted aggravated robbery

convictions. The court sentenced him as a violent offender to six years for employing a

firearm during the commission of a dangerous felony. The trial court imposed partially

consecutive sentence alignment for a total effective sentence of fourteen years. It is from

these judgments that appellant now appeals.

II. Analysis

A. Sufficiency of the Evidence

Appellant challenges the sufficiency of his convictions for attempted aggravated

robbery and employing a firearm during the commission of a dangerous felony. He does not

challenge his conviction for aggravated burglary. Regarding his convictions for attempted

aggravated robbery, he asserts that he could not have intended to gain control over Elijah

Robinson’s property because he believed that Mr. Robinson was not home and that no

evidence showed that he attempted to gain control over either victim’s property. He contests

his employing a firearm conviction on the basis that his brother carried a firearm, not him,

and that no evidence indicated that his brother employed the firearm. The State maintains

that the evidence was sufficient to support all of appellant’s convictions. We agree with the

State.

The standard for appellate review of a claim challenging the sufficiency of the State’s

evidence is “whether, after viewing the evidence in the light most favorable to the

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

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson

v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354

S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant

-4-

must demonstrate that no reasonable trier of fact could have found the essential elements of

the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of

review is identical whether the conviction is predicated on direct or circumstantial evidence,

or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “‘we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn

therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.

2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and

the weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

has afforded the State all reasonable inferences from the evidence and resolved all conflicts

in the testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the

evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of

innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

As charged in this case, a defendant is guilty of criminal attempt to commit a crime

when he or she, acting with the kind of culpability otherwise required for the offense, “[a]cts

with intent to complete a course of action or cause a result that would constitute the offense,

under the circumstances surrounding the conduct as the person believes them to be, and the

conduct constitutes a substantial step toward the commission of the offense.” Tenn. Code

Ann. § 39-12-101(a)(3). A person commits the offense of aggravated robbery by the

“intentional or knowing theft of property from the person of another by violence or putting

the person in fear” and the theft is “[a]ccomplished with a deadly weapon or by display of

any article used or fashioned to lead the victim to reasonably believe it to be a deadly

weapon.” Tenn. Code Ann. §§ 39-13-401, -402. Tennessee Code Annotated 39-17-

1324(b)(1) provides, “It is an offense to employ a firearm during the commission of a

dangerous felony,” of which aggravated burglary is enumerated as a dangerous felony. Id.

§ 39-17-1324(i)(1)(H). The Tennessee Supreme Court has defined “employ” as “to make

use of,” which is also the definition included in the jury charge in this case. See State v.

Broderick Devonte Fayne, ---S.W.3d ---, No. W2012-01488-SC-R11-CD, 2014 WL

5430049, at *6 (Tenn. Oct. 27, 2014).

-5-

The State pursued a theory that appellant was criminally responsible for the actions

of his accomplice in this case. “A person is criminally responsible as a party to an offense

if the offense is committed by the person’s own conduct, by the conduct of another for which

the person is criminally responsible, or by both.” Tenn. Code Ann. § 39-11-401(a). Further,

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 benefit in the

proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another

person to commit the offense[.]” Id. § 39-11-402(2). While not a separate crime, criminal

responsibility is a theory by which the State may alternatively establish guilt based on the

conduct of another. Dorantes, 331 S.W.3d at 386 (citing State v. Lemacks, 996 S.W.2d 166,

170 (Tenn. 1999)). No specific act or deed needs to be demonstrated by the State, and

furthermore, the presence and companionship of an accused with the offender before and

after the offense are circumstances from which participation in the crime may be inferred.

State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). However, to be convicted, “the

evidence must establish that the defendant in some way knowingly and voluntarily shared in

the criminal intent of the crime and promoted its commission.” Dorantes, 331 S.W.3d at 386

(citing State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994); State v. Foster, 755

S.W.2d 846, 848 (Tenn. Crim. App. 1988)).

Viewed in the light most favorable to the State, the evidence adduced at trial showed

that appellant and his brother, Tonio Wilson, planned to steal drugs and money from Elijah

Robinson. In effectuating this plan, appellant and Wilson went to Mr. Robinson’s house,

forced open a window, and entered the house. They suspected that the house was occupied

but did not believe that Mr. Robinson was home at the time. However, Mr. Robinson was

home and so were Valaria Watt and Mr. Robinson’s young daughter. According to

appellant’s statement to police, Tonio Wilson was armed with a .45 caliber pistol. The pistol

was subsequently recovered near his body. Ms. Watt testified that Wilson pointed the gun

at her. Wilson and appellant were unable to complete their plan because Mr. Robinson shot

them both, killing Wilson. The only disputed evidence at trial was whether Wilson pointed

his gun at Ms. Watt, and the jury by its verdict credited Ms. Watt’s testimony over

appellant’s statement that Wilson did not do so. Appellant’s conduct in entering Mr.

Robinson and Ms. Watt’s house with the confessed intention to steal money and drugs from

them is sufficient evidence to support a finding that he took a substantial step toward the

completion of aggravated robbery. In addition, the evidence supported the finding that

Wilson was armed and that he made use of his weapon in the course of the aggravated

burglary. Moreover, there is more than ample evidence to support appellant’s criminal

responsibility for Wilson’s actions considering his presence with Wilson in the house and his

confession to police. Therefore, we affirm appellant’s convictions for attempted aggravated

robbery and employing a firearm during the commission of a dangerous felony.

-6-

B. Sentencing

Appellant contends that the trial court erred in its sentencing by incorrectly finding

certain enhancement factors, not finding any mitigating factors, and not making the findings

required for designating a defendant as a dangerous offender for purposes of consecutive

sentencing. The State responds that the trial court did not abuse its discretion in sentencing.

We agree with the State.

1. Sentence Length

The trial court sentenced appellant as a Range I, standard offender, and he was

therefore subject to a sentencing range of three to six years for his aggravated burglary and

attempted aggravated robbery convictions, all Class C felonies. The trial court sentenced him

to four years for each of these convictions. His sentence for employing a firearm during the

commission of a dangerous felony was six years, which is the mandatory minimum set by

Tennessee Code Annotated section 39-17-1324(h)(1).

In determining an appropriate sentence, a trial court must consider 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 mitigating and enhancement factors; (6) any

statistical information provided by the administrative office of the courts as to sentencing

practices for similar offenses in Tennessee; (7) any statement the defendant makes on his

own behalf as to sentencing; and (8) the potential for rehabilitation. Id. §§ 40-35-103(5), -

113, -114, -210(b). In addition, “[t]he sentence imposed should be the least severe measure

necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory

presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.

Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain “advisory

sentencing guidelines” that are not binding on the trial court; however, the trial court must

nonetheless consider them. See id. § 40-35-210(c). Although the application of the factors

is advisory, a court shall consider “[e]vidence and information offered by the parties on the

mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-

210(b)(5). The trial court must also place on the record “what enhancement or mitigating

factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair

and consistent sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing

factors is left to the sound discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345

(Tenn. 2008). The burden of proving applicable mitigating factors rests upon appellant.

-7-

State v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim.

App. Sept. 18, 1995). The trial court’s weighing of the various enhancement and mitigating

factors is not grounds for reversal under the revised Sentencing Act. Carter, 254 S.W.3d at

345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at

*48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

When an accused challenges the length and manner of service of a sentence, this court

reviews the trial court’s sentencing determination under an abuse of discretion standard

accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.

2012). If a trial court misapplies an enhancing or mitigating factor in passing sentence, said

error will not remove the presumption of reasonableness from its sentencing determination.

Bise, 380 S.W.3d at 709. This court will uphold the trial court’s sentencing decision “so long

as it is within the appropriate range and the record demonstrates that the sentence is

otherwise in compliance with the purposes and principles listed by statute.” Id. at 709-10.

Moreover, under such circumstances, appellate courts may not disturb the sentence even if

we had preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging

the sentence imposed by the trial court has the burden of establishing that the sentence is

erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991).

In this case, the trial court considered five enhancement factors advocated by the State

and found that two of the five were applicable to appellant’s sentencing — that he was a

leader in the commission of the offense and that the actions of appellant resulted in the death

of a person other than the intended victim. See Tenn. Code. Ann. § 40-35-114(2), (12). The

trial court found that enhancement factors three (“The offense involved more than one (1)

victim[.]”), nine (“The defendant possessed or employed a firearm . . . during the commission

of the offense[.]”), and ten (“The defendant had no hesitation about committing a crime when

the risk to human life was high[.]”) were not applicable. See id. § 40-35-114(3), (9), (10).

The trial court stated that it considered mitigating factors but found that none applied to

appellant’s case. The record supports the trial court’s application of enhancement factors.

Appellant confessed that he formed the plan to rob Mr. Robinson that he and his brother

executed, and appellant’s brother died in the course of the aggravated burglary and attempted

aggravated robbery. Furthermore, the record otherwise demonstrates that the sentence is

within the applicable range and in compliance with the statutory purposes and principles.

Therefore, the trial court did not abuse its discretion in setting the length of appellant’s

sentences.

-8-

2. Consecutive Sentences

The trial court imposed partially consecutive sentences in this case. Appellant’s

sentence for employing a firearm during the commission of a dangerous felony was ordered

to be served consecutively to his aggravated burglary conviction by operation of law under

Tennessee Code Annotated section 39-17-1324(e)(1). The trial court aligned appellant’s two

four-year sentences for attempted aggravated robbery convictions concurrently. The court

then ordered that the concurrent four-year sentences for the attempted aggravated robbery

convictions be served consecutively to the four-year sentence for aggravated burglary and

the six-year sentence for the firearm conviction, resulting in an aggregate sentence of

fourteen years.

Prior to 2013, on appellate review of sentence alignment issues, courts employed the

abuse of discretion standard of review. See State v. Hastings, 25 S.W.3d 178, 181 (Tenn.

Crim. App. 1999). Our supreme court has since extended the standard of review enunciated

in State v. Bise, abuse of discretion with a presumption of reasonableness, to consecutive

sentencing determinations. State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013); Bise, 380

S.W.3d at 707 (modifying standard of review of within-range sentences to abuse of discretion

with a presumption of reasonableness); see also State v. Caudle, 388 S.W.3d 273, 278-79

(Tenn. 2012) (applying abuse of discretion with a presumption of reasonableness to review

of alternative sentencing determinations by the trial court). Thus, the presumption of

reasonableness gives “deference to the trial court’s exercise of its discretionary authority to

impose consecutive sentences if it has provided reasons on the record establishing at least

one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b) . . . .”

Pollard, 432 S.W.3d at 861.

The procedure used by the trial courts in deciding sentence alignment is governed by

Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant to a

trial court’s sentencing decision. Imposition of consecutive sentences must be “justly

deserved in relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102(1).

The length of the resulting consecutive sentence must be “no greater than that deserved for

the offense committed.” Id. § 40-35-103(2). The court may order consecutive sentences if

it finds by a preponderance of the evidence that one or more of the following seven statutory

criteria exists:

(1) The defendant is a professional criminal who has knowingly devoted

the defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

-9-

(3) The defendant is a dangerous mentally abnormal person so declared by

a competent psychiatrist who concludes as a result of an investigation

prior to sentencing that the defendant’s criminal conduct has been

characterized by a pattern of repetitive or compulsive behavior with

heedless indifference to consequences;

(4) The 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;

(5) The defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and

victim or victims, the time span of defendant’s undetected sexual

activity, the nature and scope of the sexual acts and the extent of the

residual, physical and mental damage to the victim or victims;

(6) The defendant is sentenced for an offense committed while on

probation; or

(7) The defendant is sentenced for criminal contempt.

The Pollard court reiterated that “[a]ny one of these grounds is a sufficient basis for

the imposition of consecutive sentences.” Pollard, 432 S.W.3d at 862 (citing State v.

Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So long as a trial court properly articulates

reasons for ordering consecutive sentences, thereby providing a basis for meaningful

appellate review, the sentences will be presumed reasonable and, absent an abuse of

discretion, upheld on appeal.” Id.

Of the seven statutory factors, the trial court in this case found that factor (4) — that

appellant was a dangerous offender — applied to appellant’s sentencing. Appellant argues

that the trial court failed to engage in a discussion of the Wilkerson factors that must

accompany the application of Tennessee Code Annotated section 40-35-115(b)(4). State v.

Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Pursuant to Wilkerson, before imposing

consecutive sentences based upon the defendant’s status as a dangerous offender, the trial

court “must conclude that the evidence has established that the aggregate sentence is

‘reasonably related to the severity of the offenses’ and ‘necessary in order to protect the

public from further criminal acts.’” Pollard, 432 S.W.3d at 863 (quoting Wilkerson, 905

S.W.2d at 938)).

-10-

In this case, the trial court made the following statements with regard to its

determination that partially consecutive sentencing was appropriate:

I also make findings as far as consecutive sentencing that the 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. . . . .

I find that the circumstances surrounding the commission of the offense

are aggravated. The masks and the gun and the death of the brother. I find

that confinement for an extended period of time is necessary to protect society

from the defendant’s unwillingness to lead a productive life. He dropped out

of school when he was in 10th grade. He resorted to an armed attack on a

home.

I find that count one -- that count three and four should be run

concurrently -- they happened at the same time -- but consecutively to count

one and two. And count two of course is consecutive as well by law, which

would be an aggregate sentence of 14 years. The first six years would be at a

hundred percent in the Department of Correction. I do find that the aggregate

length of that 14-year sentence reasonably relates to the offense that he stands

convicted of.

Thus, the trial court appropriately considered the Wilkerson factors and did not abuse its

discretion in finding that appellant was a dangerous offender. Therefore, we affirm

appellant’s sentences.

CONCLUSION

Based on the record, the applicable law, and the briefs of the parties, we affirm the

judgments of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

-11-