State of Tennessee v. Calvin Douglas

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 6, 2015

STATE OF TENNESSEE v. CALVIN DOUGLAS

Appeal from the Criminal Court for Shelby County

No. 12-05135 W. Mark Ward, Judge

____________________

No. W2014-00505-CCA-R3-CD - Filed February 26, 2015

____________________

The Defendant-Appellant, Calvin Douglas, was convicted by a Shelby County Criminal

Court jury of three counts of aggravated assault and one count of reckless endangerment with

a dangerous weapon. The trial court sentenced the Defendant to an effective sentence of 20

years‟ confinement. On appeal, the Defendant argues that (1) the evidence is insufficient to

sustain his convictions for aggravated assault and reckless endangerment with a deadly

weapon, and (2) the trial court abused its discretion in imposing consecutive sentences.

Upon 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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN and

ROGER A. PAGE, JJ., joined.

Tony N. Brayton, Assistant District Public Defender (on appeal), and Jim Hale, Assistant

District Public Defender (at trial), Memphis, Tennessee for the Defendant-Appellant, Calvin

Douglas.

Robert E. Cooper, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Nicole Germain, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

On March 7, 2012, several gunshots were fired in an area near the Perkins Grocery

Store in Memphis. The Defendant was subsequently implicated in the incident and indicted

for one count of attempted second-degree murder, one count of employing a firearm during a

dangerous felony, three counts of aggravated assault, and one count of reckless

endangerment with a deadly weapon. Following a jury trial, the Defendant was convicted of

three counts of aggravated assault and one count of reckless endangerment with a deadly

weapon.

State’s Proof. Javaris Cole testified that on March 7, 2012, he walked to Perkins

Grocery Store with his girlfriend, Tiera Nichols, and Ms. Nichols‟s sister, Anterrica Stokes.

Before entering the store, Javaris1 heard the Defendant shout, “There go that n***** there”

from the backseat of car being driven by the Defendant=s sister, Jasmine Douglas. Javaris

knew the Defendant from the neighborhood but did not know him personally and had not had

any prior altercations with him. As the car drove away, the Defendant stated, “I=ll be right

back.” Javaris followed the car down the street because he “wanted to know what was going

on” and saw it stop at a stop sign nearby. The Defendant exited the car to talk to someone,

and Javaris approached the car and asked Jasmine what was going on. Javaris then saw the

Defendant take off his shirt, run toward the car, and begin fighting the person standing next

to Javaris. Javaris attempted to break up the fight, but the Defendant tried to punch Javaris

and a fight ensued between them. After several individuals broke up the fight, Javaris saw

Ms. Nichols fighting with Jasmine.

Javaris testified that the police arrived and sounded their sirens, and the crowd

scattered. The police officers did not speak to anyone before leaving the scene. Javaris, Ms.

Nichols, and Ms. Stokes walked back toward the store. Chris Cole, Javaris‟s brother,

approached them in the parking lot of the store and asked what happened. While talking to

Chris, Javaris saw the Defendant running in the middle of the street toward him. Javaris saw

the Defendant pointing a gun at him but thought the Defendant was shooting in the air

because he did not “hear [any] bullet come past [his] ear.” Javaris testified that he heard

more than six shots. He assisted Ms. Nichols and Ms. Stokes over a gate behind the store to

escape the gunfire and then fled to a nearby house. Javaris testified that approximately 10

minutes had passed between the fight and when the Defendant returned to the scene. He was

“positive” the Defendant was the shooter.

After fleeing to the nearby house for shelter, Javaris saw Chris chase the Defendant

down the street. Chris returned and said that the Defendant had gotten away. The police

arrived on the scene, and Javaris told them what happened. He subsequently spoke with

Officer Todd Casinghino at the police station and identified the Defendant out of a

1

Several witnesses share the same last name in this case. For clarity, we will refer to these

witnesses by their first names. We intend no disrespect in doing so.

-2-

photographic lineup as the shooter. On cross-examination, Javaris denied that he initially

told police that he was only a witness and that the Defendant did not shoot at him.

Chris Cole testified that on the day of the incident, he walked to Perkins Grocery Store

and learned that Javaris had been involved in a fight. He then walked to a friend‟s house

nearby and went inside. After approximately three minutes, Chris heard gunshots coming

from the store‟s direction. Chris returned to the store and saw the shooter, whom he later

identified as the Defendant, shooting at someone running down the street. He estimated that

the Defendant fired four or five shots. The Defendant then turned toward Chris and

attempted to fire several shots at him. Chris heard the gun make a “click, click” noise and

realized the clip was empty, so he began to chase the Defendant but was unable to catch him.

Chris testified that he was within 10 or 15 feet of the Defendant and was able to get a clear

look at him. He stated that the Defendant was the only person he saw with a gun. When the

police arrived on the scene, Chris told them what happened and directed them to where he

last saw the Defendant. On cross-examination, Chris agreed that he told police he was

unable to see the shooter‟s face.

Vicki Strong testified that on the day of the incident, she stopped by her brother‟s

house to visit him. She parked her car near the Perkins Grocery Store and went inside her

brother‟s garage. A few minutes after entering the garage, she heard multiple gunshots and

“got down in the garage” until the shooting ended. She heard about six or seven gunshots but

did not see the shooter. After the shooting, someone came into the garage and told Ms.

Strong that the windows of her car had been shattered by the gunfire. She reported the

damage to the police.

Officer Jacques Pope of the Memphis Police Department (“MPD”) testified that he

responded to the scene of the shooting near Perkins Grocery Store. When he arrived on the

scene, he noticed a car whose front and back windshields had been shattered by gunfire.

While he was checking the damage to the car, several individuals approached and told him

what happened. Officer Pope secured the scene and spoke with Javaris, Chris, and the owner

of the damaged car, Vicki Strong. On cross-examination, Officer Pope stated that his initial

report listed Javaris as a witness and that Javaris did not tell him that the Defendant shot at

him.

Memphis Police Officer Stacy Milligan responded to the scene of the shooting as part

of the Crime Scene Investigation Unit. He collected evidence and took photographs at the

scene, which were introduced into evidence and shown to the jury. When he arrived at the

scene, he observed “quite a few shell casings,” all of which appeared to have been fired from

“a semi-automatic handgun.” He collected at least 14 shell casings from the scene and

-3-

testified that they were all 9 millimeter Luger shell casings. He opined that they were all

fired from the same weapon.

Sergeant Todd Casinghino testified that he assisted in the investigation of the crimes

in this case. He took a statement from Javaris and showed him a photographic lineup that

included the Defendant. He explained to Javaris the procedures for a photographic lineup

and told him that the shooter may or may not be depicted in the lineup. Javaris identified the

Defendant in the lineup as the shooter.

Sergeant Derrick Williams testified that a suspect was developed by the scene officers,

and a photographic lineup was compiled to show to the victims. After reviewing the

statements given by Javaris and Chris Cole and the photographic identification of the

Defendant, Sergeant Williams sought a warrant for the Defendant‟s arrest.

Defendant’s Proof. The Defendant testified that on the day of the offense, he,

Jasmine, and another friend drove by Perkins Grocery Store in Jasmine‟s car. They stopped

the car in front of the store because the road was blocked by two garbage trucks. While they

were stopped, Javaris approached the car and attempted to talk to Jasmine. Jasmine rebuffed

Javaris‟s advances, and he began making disrespectful comments to her. The Defendant told

Javaris to leave, but Javaris attempted to reach in the car window and “smack” Jasmine. His

arm got caught in the window, and he asked Chris to help him break the window. Instead,

Chris opened the car door and pulled Jasmine out of the car. The Defendant exited the car to

help Jasmine, and about 15 people “jumped” on him and Jasmine and began beating them.

When the fight ended, the Defendant and Jasmine left the scene and went to their mother=s

house.

The Defendant testified that after the fight, he was “[b]lacking out” and angry about

the events. He recalled that several police officers and an ambulance came to his mother‟s

house. He also recalled that two women came to his mother‟s house and told the officers that

they wanted to press charges against the Defendant because he hit one of them. The

Defendant testified that a police officer tried to “grab [him] but [he] snatched away.” His

mother then drove him to his godmother‟s house nearby. He testified that he remained at his

godmother‟s house until an ambulance drove him to the hospital and insisted that he never

returned to Perkins Grocery Store after the fight with Javaris and did not shoot at anyone.

Wendy Douglas, the Defendant‟s mother, recalled that on the morning of the incident,

the Defendant and her daughter, Jasmine, left Wendy‟s house to take her grandchildren to

school. When they returned, they appeared “beat up real bad.” She testified that the

Defendant‟s face was swollen and he had knots on the back of his head. After learning about

the fight, Wendy went to Perkins Grocery Store to find out why the Defendant and Jasmine

-4-

were “jumped on like that.” When she returned home, she called an ambulance because the

Defendant was “going in and out of conscious[ness].” She recalled that several police

officers also came to her house to talk to the Defendant. She testified that the officers “w[ere

not] treating [the Defendant] right” so she told them to leave him alone and took him to his

godmother‟s house.

While driving home, she heard gunshots and drove to Perkins Grocery Store to see

what happened. At the scene, several individuals told her that the Defendant had returned to

the scene, but she did not believe them. She spoke with police officers at the scene and then

returned home. After returning home, a police officer came to her house and inquired into

the Defendant‟s whereabouts. Wendy called the Defendant and allowed the officer to speak

with him on the phone. He told the officer where he was located, and when police arrived,

they tried to arrest him; however, an ambulance transported him to the hospital to receive

medical attention instead.

Following deliberation, the jury found the Defendant not guilty of attempted second

degree murder and employing a firearm during the commission of a dangerous felony. The

jury convicted the Defendant of three counts of aggravated assault and one count of reckless

endangerment with a deadly weapon as charged in the indictment. Following a sentencing

hearing, the trial court sentenced the Defendant to the maximum of six years for each

aggravated assault conviction and two years for the reckless endangerment with a deadly

weapon conviction. The court ordered each of the sentences to be served consecutively for

an effective sentence of 20 years‟ confinement.

ANALYSIS

On appeal, the Defendant argues that the evidence is insufficient to sustain his

convictions for aggravated assault and reckless endangerment with a deadly weapon. He

further argues that the trial court abused its discretion in imposing consecutive sentences.

The State responds that the evidence is sufficient to support the Defendant=s convictions, and

the trial court acted within its discretion in sentencing the Defendant to consecutive

sentences. Upon our review, we agree with the State.

I. Sufficiency of the Evidence. The Defendant first challenges the sufficiency of the

evidence supporting his convictions for aggravated assault and reckless endangerment with a

deadly weapon. When a defendant challenges the sufficiency of the evidence, we are guided

by the following well-established legal principles. The State, on appeal, is entitled to the

strongest legitimate view of the evidence and all reasonable inferences which may be drawn

from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v.

Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant challenges the sufficiency of

-5-

the evidence, the standard of review applied by this court is “whether, after reviewing 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). Similarly, Rule 13(e) of the Tennessee Rules of Appellate

Procedure states, “Findings of guilt in criminal actions whether by the trial court or jury shall

be set aside if the evidence is insufficient to support the finding by the trier of fact of guilt

beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt where there is

direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331

(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

The standard of review for sufficiency of the evidence “„is the same whether the

conviction is based upon direct or circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d

370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The

jury as the trier of fact must evaluate the credibility of the witnesses, determine the weight

given to witnesses‟ testimony, and reconcile all conflicts in the evidence. State v. Campbell,

245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.

App. 1978)). Moreover, the jury determines the weight to be given to circumstantial

evidence and the inferences to be drawn from this evidence; the extent to which the

circumstances are consistent with guilt and inconsistent with innocence are questions

primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646,

662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court shall not

reweigh the evidence or substitute its inferences for those drawn by the trier of fact. Id.

A. Aggravated Assault. In challenging the sufficiency of the evidence supporting his

convictions for aggravated assault against Javaris Cole, Chris Cole, and Tiera Nichols, the

Defendant contests the proof establishing that he “intentionally and knowingly” caused each

victim to reasonably fear imminent bodily injury by the use of or display of a deadly weapon.

He argues that the evidence merely established that he fired the gun into the air and failed to

prove that he pointed the gun at any victim. Further, he notes that Ms. Nichols did not testify

at trial and asserts that there was no proof that the Defendant was aware that she was in the

area during the incident; thus, the State failed to prove that he intentionally or knowingly

caused her to fear imminent bodily injury.

To sustain the Defendant‟s convictions in the present case, the State was required to

prove that the Defendant intentionally or knowingly caused the victims to reasonably fear

imminent bodily injury and used or displayed a deadly weapon. T.C.A. ' 39-13-

102(a)(1)(A)(iii). A person acts “intentionally with respect to the nature of the conduct or to

a result of the conduct when it is the person=s conscious objective or desire to engage in the

conduct or cause the result.” Id. ' 39B11B302(a). A person acts “knowingly with respect to

-6-

the conduct or to circumstances surrounding the conduct when the person is aware of the

nature of the conduct or that the circumstances exist.” Id. ' 39B11B302(b); see State v.

Szumanski Stroud, No. W2006-01945-CCA-R3-CD, 2007 WL 3171158, at *5 (Tenn. Crim.

App. Oct. 29, 2007) (concluding that the offense of aggravated assault committed by

intentionally or knowingly using or displaying a deadly weapon is a “nature of conduct”

offense, which “focuses on the defendant=s conduct of using or displaying a weapon, rather

than the result from that conduct”).

Viewed in the light most favorable to the State, the evidence at trial established that

Javaris was standing in front of Perkins Grocery Store when he saw the Defendant running

towards him while firing a gun. Javaris testified that although he did not hear any bullets

pass by his head, he saw the Defendant aim the gun at him and pull the trigger. Likewise,

Chris testified that the Defendant pointed the gun at him and pulled the trigger, but the gun‟s

clip was empty. At the scene, police officers observed a car that had been damaged by

gunfire and collected more than 14 shell casings all matching a single weapon. Moreover

and contrary to the Defendant‟s assertions, Javaris testified that Ms. Nichols was present with

him in front of Perkins Grocery Store when the Defendant began shooting and that he helped

her and her sister escape by climbing over a gate because he feared for their safety. The jury

obviously accredited this testimony, as was their prerogative. Based upon this evidence, a

rational juror could find beyond a reasonable doubt that the Defendant was aware that his

conduct was reasonably certain to cause all three victims to reasonably fear imminent bodily

injury. See State v. Joseph H. Adkins, No. E2012-02415-CCA-R3-CD, 2014 WL 1516331,

at *13 (Tenn. Crim. App. April 17, 2014) (noting that the aggravated assault statute “only

requires that the gun be displayed to the victim and not directly pointed at the victim”)

(internal quotation marks and citations omitted); cf. State v. Wilson, 924 S.W.2d 648 (Tenn.

1996) (concluding that the evidence was insufficient to sustain the defendant‟s aggravated

assault conviction where the defendant fired into a house without knowing whether anyone

was inside).

B. Reckless endangerment with deadly weapon. The Defendant argues that the

evidence is insufficient to sustain his conviction for felony reckless endangerment against

Anterrica Stokes. He notes that Ms. Stokes did not testify at trial, and the only proof that she

was present at the scene was presented through the testimony of Javaris Cole. Accordingly,

he maintains that the State failed to prove that Ms. Stokes was placed in imminent danger of

death or serious bodily injury by the Defendant.

Reckless endangerment is committed when a person “recklessly engages in conduct

which places or may place another person in imminent danger of death or serious bodily

injury.” T.C.A. ' 39-13-103(a) (2012). When committed with a deadly weapon, reckless

endangerment is a Class E felony. Id. ' 39-13-103(b)(2). In order for the threat of death or

-7-

serious bodily injury to be imminent, “the person must be placed in a reasonable probability

of danger as opposed to a mere possibility of danger.” State v. Payne, 7 S.W.3d 25, 28

(Tenn. 1999). The “zone of danger” is “that area in which a reasonable probability exists that

the defendant=s conduct would place others in imminent danger of death or serious bodily

injury if others were present in that zone or area.” Id. Thus, the State must prove that “a

person or class of person were in an area in which a reasonable probability of danger

existed.” Id.

This court has previously recognized that “[m]erely discharging a gun, standing alone,

is not sufficient to constitute commission of reckless endangerment.” State v. Fox, 947

S.W.2d 865, 866 (Tenn. Crim. App. 1996) (internal quotation marks and citations omitted).

It is not enough to show that the defendant discharged a weapon “under any circumstances

where any human being might possibly be present or where a stray bullet might possibly

strike another person.” Id. (quoting State v. Michael David Culbertson, No. 03C01-9412-

CR-00449, 1995 WL 512077, at *2 (Tenn. Crim. App. Aug. 30, 1995) (emphasis in Michael

David Culbertson)). Rather, the Defendant=s conduct must “place another person in

imminent danger of death or serious bodily injury.” State v. Alder, 71 S.W.3d 299, 304

(Tenn. Crim. App. 2001).

In the instant case, the Defendant argues that the proof at trial showed that Ms. Stokes

“might have heard or seen the shooter firing into the air,” but there was no evidence that she

was placed in imminent danger of death or serious bodily injury. We disagree. Viewed in

the light most favorable to the State, the proof at trial showed that the Defendant fired at least

14 shots in the area of Perkins Grocery Store where Ms. Stokes was present. Javaris testified

that he was standing with Chris, Ms. Nichols, and Ms. Stokes when he saw the Defendant

point the gun at him and pull the trigger. He further testified that he, Ms. Nichols, and Ms.

Stokes fled behind the store where he helped them climb over a gate to escape the gunfire

because he feared for their safety. Based on this testimony, a rational juror could have

concluded beyond a reasonable doubt that Ms. Stokes was placed within the “zone of danger”

created by the Defendant‟s conduct and was in imminent danger of death or serious bodily

injury. Compare Alder, 71 S.W.3d at 304 (concluding that proof that victim was standing

next to individual that was shot and was in the defendant=s line of fire was sufficient to prove

that the victim was in imminent danger of death or serious bodily injury) with State v.

Thomas R. Baldwin, No. 01C01-9612-CR-00530, 1998 WL 426199, at *3 (Tenn. Crim. App.

July 29, 1998) (concluding that “mere speculation” that a bullet could have ricocheted off an

appliance in a small restaurant and hit a customer was insufficient to prove that the customer

was in imminent danger of death or serious bodily injury). The Defendant is not entitled to

relief on this issue.

-8-

II. Sentencing. The Defendant argues that the trial court abused its discretion in

imposing consecutive sentencing based upon the trial court‟s finding that the Defendant has

an extensive criminal record and is a dangerous offender. He asserts that the court‟s

determination regarding his criminal record was “based almost exclusively on the

[D]efendant=s juvenile history” and many of his charges were dismissed; thus, he maintains

that his criminal record is “not so extensive that it justifies the imposition of a twenty[-]year

sentence for a nineteen[-]year[-]old man.” He also argues that the court improperly

concluded that he is a dangerous offender based on the nature and circumstances of the

offenses involved.

The 2005 amendments to the sentencing act “served to increase the discretionary

authority of trial courts in sentencing.” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In

light of this broader discretion, “sentences should be upheld so long as the statutory purposes

and principles, along with any applicable enhancement and mitigating factors, have been

properly addressed.” Id. at 706. Moreover, “a trial court‟s misapplication of an enhancement

or mitigating factor does not invalidate the sentence imposed unless the trial court wholly

departed from the 1989 Act, as amended in 2005.” Id. “So long as there are other reasons

consistent with the purposes and principles of sentencing, as provided by statute, a sentence

imposed by the trial court within the appropriate range should be upheld.” Id. Therefore,

this court reviews a trial court‟s sentencing determinations under “an abuse of discretion

standard of review, granting a presumption of reasonableness to within-range sentencing

decisions that reflect a proper application of the purposes and principles of our Sentencing

Act.” Id. at 707.

Pursuant to the 2005 amendments to the sentencing act, a trial court must consider the

following when determining a defendant‟s specific sentence and the appropriate combination

of sentencing alternatives:

(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 the mitigating and

enhancement factors set out in '' 40-35-113 and 40-35-114;

(6) Any statistical information provided by the administrative office of the

courts as to sentencing practices for similar offenses in Tennessee; and

(7) Any statement the defendant wishes to make in the defendant=s own behalf

about sentencing.

-9-

T.C.A. ' 40-35-210(b). The defendant has the burden of showing the impropriety of

the sentence on appeal. Id. ' 40-35-401(d), Sentencing Comm‟n Cmts. In determining the

proper sentence, the trial court must consider the defendant‟s potential for rehabilitation or

treatment. Id. '' 40-35-102, -103. In addition, the court must impose a sentence “no greater

than that deserved for the offense committed” and “the least severe measure necessary to

achieve the purposes for which the sentence is imposed.” Id. '' 40-35-103(2), (4).

Where a defendant is convicted of one or more offenses, the trial court has discretion

to decide whether the sentences shall be served concurrently or consecutively. T.C.A. ' 40-

35-115(a) (2006). The Tennessee Supreme Court has held, “[T]he abuse of discretion

standard, accompanied by a presumption of reasonableness, applies to consecutive sentencing

determinations.” State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013). A trial court may

order multiple offenses to be served consecutively if it finds by a preponderance of the

evidence that a defendant fits into at least one of seven categories enumerated in code section

40-35-115(b). Those categories include:

(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;

(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

-10-

(7) The defendant is sentenced for criminal contempt.

T.C.A. ' 40-35-115(b) (2006). An order of consecutive sentencing must be “justly deserved

in relation to the seriousness of the offense.” T.C.A. ' 40-35-102(1); see State v. Imfeld, 70

S.W.3d 698, 708 (Tenn. 2002). In addition, the length of a consecutive sentence must be “no

greater than that deserved for the offense committed.” T.C.A. ' 40-35-103(2); see Imfeld, 70

S.W.3d at 708.

“The existence of a single category is sufficient to warrant the imposition of

consecutive sentences, and indeed, „[e]xtensive criminal history alone will support

consecutive sentencing.‟” State v. Gann, 251 S.W.3d 446, 464 (Tenn. Crim. App. 2007)

(citing and quoting State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997)

(alteration in Gann)). Where the court imposes consecutive sentencing based upon the

dangerous offender category, the trial court must also conclude that the proof establishes 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 State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)).

In the case sub judice, the trial court imposed consecutive sentencing based upon its

finding that the Defendant has an extensive criminal record and is a dangerous offender. See

T.C.A. ' 40-35-115(b)(2), (4). In reaching its determination, the court stated:

As far as the issue of consecutive sentencing, I do find the [D]efendant

is qualified because he is an offender whose record of criminal activity is

extensive. Now, that‟s hard to say about a 19-year old individual.

You have to keep in mind the primary purpose of consecutive

sentencing for those offenders whose record is extensive is to protect the

public from an individual not likely to be rehabilitated. A defendant‟s record

of criminal activity includes not only the defendant‟s prior record, but also the

convictions for which [he] is currently being sentenced. . . . Likewise, juvenile

adjudication may be considered in assessing the defendant‟s criminal activity.

[The Defendant] has 24 contacts with the juvenile system, two of which

involve weapons. I‟ve already mentioned the adjudications for felonies that he

has.

....

And I just think it all adds up to a record of criminal activity that is

-11-

extensive and I do think he‟s not likely to be rehabilitated. I mean, 25 times. I

mean, . . . they tried everything they could at juvenile court for this fellow.

I also find the [D]efendant is a dangerous offender whose behavior

indicates little or no regard for human life and no hesitation about committing

the crime in which the risk to human life is high. I do find the circumstances

of the offense were aggravated. You know, he got up here and testified that he

B you know, I don‟t know how you say it. In the street wise lingo of the gang

bang, got up here and just decided to unload at least 14 rounds at this B at this

group of people. I think that‟s more than just an aggravated assault. That‟s

showing total indifference.

I also find that confinement for an extended period of time is necessary

to protect society from the [D]efendant‟s unwillingness to lead a productive

life and I find the aggregate length of the sentences that I‟m going to impose

reasonably relate to the offense for which the [D]efendant stands convicted.

. . . . [The Defendant] is a menace to society and we need protecting

from this individual.

The Defendant argues that the trial court placed too much weight on his juvenile

record and asserts that his criminal history is “not so extensive” that it justifies consecutive

sentencing. Initially, we are compelled to note that “[i]n making the determination to impose

consecutive sentencing the court is not limited to consideration of criminal activity or

conduct occurring after one reaches the age of eighteen (18) years.” State v. Stockton, 733

S.W.2d 111, 112 (Tenn. Crim. App. 1986). “It would serve neither the interests of society,

nor the protect the public from further criminal conduct by the defendant, to wipe the slate

clean and deny the sentencing authority the benefit of a defendant‟s past history of criminal

activity, in assessing his sentence, simply because some part of that history occurred during

his juvenile years.” Id. Although the nineteen-year-old Defendant‟s criminal record consists

almost entirely of juvenile offenses, it is indeed extensive. The Defendant‟s presentence

report reflects at least 20 juvenile offenses beginning in 2005 and continuing through the

Defendant‟s eighteenth birthday in March 2012. We acknowledge that some of these

offenses were dismissed; notwithstanding, his record of criminal activity remains extensive

and includes, inter alia, adjudications for assault, theft of property, unlawful possession of a

weapon, and aggravated burglary. Thus, the record fully supports the trial court‟s finding

that the Defendant‟s criminal activity is extensive.

The Defendant also argues that the trial court improperly concluded that he is a

dangerous offender whose behavior indicates little or no regard to human life. At the outset,

-12-

we must note that the trial court‟s finding that the Defendant‟s criminal history is extensive is

alone sufficient to impose consecutive sentencing. See Adams, 973 S.W.2d at 231.

Notwithstanding, our review of the record shows that the trial court also made the additional

factual findings as required to determine that the Defendant is a dangerous offender. The

court emphasized the serious nature of the offenses involved, highlighting that the Defendant

fired at least 14 shots at the victims in this case.2 The court stated on the record that it found

consecutive sentencing was warranted to “protect society from the [D]efendant‟s

unwillingness to lead a productive life” and that the aggregate length of the sentence

“reasonably relate[s] to the offense for which the [D]efendant stands convicted.” Cf.

Wilkerson, 905 S.W.2d at 938 (holding that the trial court‟s conclusory statement that “the

proof in the record indicates . . . [the defendant] is a dangerous . . . offender, and there was

little or no regard for the value of human life” was insufficient to impose consecutive

sentencing). Accordingly, we discern no abuse of discretion by the trial court in ordering the

Defendant to serve his sentences consecutively.

CONCLUSION

Based on the foregoing authority and analysis, we affirm the judgments of the trial

court.

_________________________________

CAMILLE R. MCMULLEN, JUDGE

2

In his brief to this court, the Defendant argues that the trial court considered evidence outside of the

record, calling attention to the following statement made by the trial court at the sentencing hearing: “In the

street wise lingo of the gang bang, [the Defendant] got up here and just decided to unload at least 14 rounds at

this B at this group of people.” The Defendant argues that the trial court abused its discretion because there

was no proof presented that the Defendant is or has ever been in a gang. However, when read in context, it is

clear that the trial court‟s statement was highlighting the serious nature of the offenses and the fact that the

Defendant fired at least 14 shots at the victims, which the court found to show a “total indifference” to human

life. Contrary to the Defendant‟s assertions, there is no indication that the court considered whether the

Defendant was involved in a gang when making its sentencing determination.

-13-