State of Tennessee v. Kendrick Rivers

08/09/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

June 4, 2019 Session

STATE OF TENNESSEE v. KENDRICK RIVERS

Appeal from the Circuit Court for Lake County

No. 16-CR-10223 R. Lee Moore, Jr., Judge

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No. W2018-00861-CCA-R3-CD

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Defendant, Kendrick Rivers,1 was found guilty of aggravated assault in concert with two

or more other persons after an incident at Northwest Correctional Complex

(“Northwest”) in Tiptonville, Tennessee, during which a correctional officer was attacked

by several inmates. As a result of the conviction, Defendant was sentenced to fifteen

years in incarceration. On appeal, Defendant argues that the evidence was insufficient to

support the conviction, that the trial court erred in refusing to allow Defendant to

introduce another inmate’s conviction for the same offense, and that the trial court erred

in sentencing Defendant. For the following reasons, we affirm the judgment of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, J., and JOHN EVERETT WILLIAMS, P.J, joined.

David Camp, Jackson, Tennessee, for the appellant, Kendrick Rivers.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant

Attorney General; Jody S. Pickens, District Attorney General; and Lance Webb, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Defendant and Darrell Lamont Fleming, Jr., were indicted by a Lake County grand

jury in July of 2016 for attempted first degree murder and aggravated assault for their

1

Defendant testified at trial that his name is actually “Kenrick” Rivers. However, we will refer to

him as Defendant or Kendrick Rivers, as that is the name listed on the indictment.

role in an attack on Officer Shannon Williamson at Northwest. Defendant filed a motion

to sever his case from the codefendants, Mr. Fleming and Kaleb Tate, because they were

“indicted on the same charges as the movant.”2 The motion goes on to explain that the

severance was necessary because Mr. Tate had already pled guilty to the offense and Mr.

Fleming gave a statement implicating Defendant in the offense that could not be redacted.

The trial court granted the motion to sever. Prior to trial, the State nolle prossed the

attempted first degree murder charge in Count One of the indictment.

At trial, the following facts were introduced. On September 2, 2014, Defendant,

Mr. Fleming, and Mr. Tate were all inmates at Northwest. The correctional facility was

arranged in pods. Each pod contained cells on two “tiers” or levels, with thirty-four cells

on the upper tier and thirty cells on the lower tier. On the lower tier, located in the center,

was a protected area referred to as “the cage” where correctional officers could complete

paperwork and maintain a safe position as they supervised activities within the pod.

Defendant, Mr. Fleming, and Mr. Tate were all housed in Pod Nine. Defendant’s cell

was located on the first tier.

Officer Shannon Williamson, a correctional officer at Northwest, was the only

officer working in Pod Nine on the day of the incident. Pod Nine contained

approximately 128 inmates. Officer Williamson acknowledged that department policy

regarding tier management was in place at the time of the incident. Tier management

involved allowing only inmates on one tier out of their cells at a time. He “tried” to

follow that policy but acknowledged that he was not completely successful.

According to Officer Williamson, Defendant wanted to get back into his cell after

Officer Williamson “got a call on the radio saying that it was [recreation time for] the top

tier.” Officer Williamson “just told him to hold on and stuff and [he] would let

[Defendant] in his cell” after he “let out the top tier for rec.” Officer Williamson

explained that Defendant “wanted to argue [with him] a little bit.” Officer Williamson

returned to Defendant’s cell about fifteen or twenty minutes later. Mr. Tate was standing

outside the cell with Defendant. Officer Williamson recalled that “another inmate c[a]me

to [Defendant’s] cell and they w[ere] standing at each - - each side of the doorway. And

[Defendant] pushed the door wide open and said if I try to shut it, to hurt me.” Officer

2

The indictment included in the technical record for case number 16-CR-10223 names only Mr.

Fleming and Defendant and does not mention Mr. Tate. From what we can gather from discussion among

counsel and the trial court, there were several different iterations of the indictment. The first charged

Defendant and Mr. Tate with attempted first degree murder and aggravated assault; another added a

charge for a gang enhancement that was later removed after the gang enhancement statute was declared

unconstitutional; and the third charged Defendant with attempted first degree murder and aggravated

assault in concert with two or more others. The only indictment in the record on appeal charges both

Defendant and Mr. Fleming with attempted first degree murder and aggravated assault with two or more

others.

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Williamson turned around and “went to the cage,” letting Defendant stay in his cell while

it was open.

A short time later, Defendant came out of his cell and approached Officer

Williamson while he was standing near the cage. According to Officer Williamson,

Defendant was “trying to argue” or “pick a fight.” The officer agreed that Defendant

appeared angry. Officer Williamson told Defendant that he was not “going to deal with

it,” so he intended to go back to the cage and start writing in his log. Officer

Williamson’s next memory is of being “on the ground” with someone hitting him on his

back. Once the assault was over, Officer Williamson was able to get up and press the

emergency button on his radio, walk to the cage, and shut the door, but he had no other

recollection of the incident. As a result of his injuries, Officer Williamson was out of

work for approximately three months.

Officer Williamson denied using the “N” word and acknowledged that the use of

the word would violate the policies of the Department of Correction.

David Abel of the Tennessee Department of Correction, Office of Investigation

and Compliance, worked as the Institutional Investigator at Northwest. Investigator Abel

testified that the facility housed about 2400 inmates and was equipped with video

surveillance cameras. The cameras did not record audio. Investigator Abel was notified

within less than fifteen minutes of the incident during which Officer Williamson was

attacked by three inmates. After being notified of the incident, he began an investigation.

As part of the investigation, Investigator Abel retrieved video from the surveillance

cameras.

At trial, the jury viewed video of the incident. The video cameras at Northwest

provided viewpoints from several camera angles. The common area of the pod and

“cage” can be seen in several of the camera angles. At time stamp 20:42:00, Officer

Williamson can be seen talking to an inmate outside the open door of the “cage.”

Approximately twenty-five seconds later, two additional inmates can be seen

approaching Officer Williamson. At time stamp 20:42:29, another inmate skips or walks

quickly diagonally across the pod from the area near the stairs toward the cage and

punches Officer Williamson near his head. The inmate knocks Officer Williamson to the

floor. Officer Williamson puts his hands near his face. At time stamp 20:42:34, two

other inmates can be seen joining in, punching and kicking Officer Williamson. One of

the inmates, later identified as Defendant, picks up a floor buffer and throws it at Officer

Williamson at time stamp 20:42:35. At that time, Officer Williamson moves into a fetal

position on the floor. At time stamp 20:42:48, the inmates walk away and Officer

Williamson rises to his feet and walks to the cage, where he leaves the door open. At

time stamp 20:43:54, two additional officers are seen running into the pod. A third

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officer enters the pod at time stamp 20:44:14. Several of the officers are seen leaving the

pod a few minutes later.

Officer Tommy Gurien was one of the officers that responded to the pod after the

emergency call. He described Officer Williamson as “loopy” after the attack. Officer

Williamson was “really swollen to one side and had some marks across his head.” He

thought that Officer Williamson identified “Tate” as one of the attackers.

As the video was playing for the jury, Investigator Abel identified Defendant, Mr.

Tate, and Mr. Fleming as the inmates depicted in the video. In fact, all three inmates

were standing near each other prior to the attack. Investigator Abel identified Defendant

as the person interacting with Officer Williamson prior to the assault. Investigator Abel

identified Mr. Tate as the first inmate moving across the pod before striking Officer

Williamson. According to Investigator Abel, Mr. Fleming joined Mr. Tate in the attack

shortly thereafter. Investigator Able confirmed that Defendant was the inmate picking up

a floor buffer and throwing it at the officer’s head. According to Investigator Abel, the

floor buffer weighed approximately ninety-nine pounds.

Mr. Tate was called to testify for the defense. Prior to his testimony, counsel for

the State objected to any testimony with regard to the offense to which Mr. Tate

ultimately pled. Counsel for Defendant confirmed that Mr. Tate was charged in one

version of the indictment along with Defendant but that he entered a best interest guilty

plea to aggravated assault prior to trial and did not plead guilty in exchange for his

testimony. The trial court sustained the objection, prohibiting counsel for Defendant

from questioning Mr. Tate about his guilty plea and/or involvement in the assault on

Officer Williamson. Counsel for Defendant made an offer of proof in which Mr. Tate

confirmed that he pled guilty to aggravated assault and chose to plead guilty based on the

evidence with which he was confronted.

When Mr. Tate testified at trial, he explained that he was incarcerated at

Northwest on a fifteen-year sentence for second-degree murder. Mr. Tate was

incarcerated in Pod Nine with Defendant and Mr. Fleming. Mr. Tate identified Pod Nine

and Officer Williamson on the video. Mr. Tate was unable to identify the inmate to

whom Officer Williamson is seen talking prior to the attack. Mr. Tate explained that just

prior to the attack, Officer Williamson “disrespected” him by calling him “everything

under the sun of God.” According to Mr. Tate, Officer Williamson called him a

“n****r” and “all type of different slogans and slangs he was throwing at me that day.”

Mr. Tate explained that if he ignored the disrespectful statements, he could “get beat, sent

to PC,3 [or] might even get killed” by other inmates. Mr. Tate explained that if he

attacked an officer in retaliation for disrespect, he would most likely get placed in “the

3

Mr. Tate does not explain what the initials PC stand for during his testimony.

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hole” away from other inmates, thereby avoiding an attack by other inmates. Mr. Tate

denied that Defendant encouraged or was involved in planning the attack, instead

claiming Mr. Tate “chose to do this on [his] own.” Mr. Tate was unable to identify one

of the inmates standing next to him on the video. He explained that at the time of the

incident, his “blood was pumping,” and he was not paying attention to who was around

him. He admitted that he later learned that Defendant and Mr. Fleming were implicated

in the attack.

Another inmate, Paul Sanders, gave his recollection of the attack. At the time, he

was housed on the upper tier of Pod Nine. During the attack, he was not inside his cell as

required by the tier management policy. According to Mr. Sanders, “they were trying to

enforce [tier management], but . . . it really wasn’t working.” Mr. Sanders heard “yelling

and just arguing” prior to the attack. He looked at the bottom tier, and “there was a

commotion going on.” From what Mr. Sanders could gather, the argument was about

Defendant “trying to get . . . in a cell quick.” Mr. Sanders heard Officer Williamson

“calling names” like “boy” and “n****r.” Mr. Sanders explained that “if you don’t act”

when someone “like the police or a white person” are disrespectful, it can cause “[a] list

of problems,” like being “robbed every day, beat up every day,” or even killed. Mr.

Sanders testified that he had heard Officer Williamson using derogatory terms toward

inmates before that day but that he had never heard him using the word “n****r” before.

Freddie Long, another inmate at Northwest, testified that he was housed on the

upper tier of Pod Nine on the day of the attack. Mr. Long explained that tier management

was not being followed in Pod Nine. He witnessed the incident from downstairs but

explained that he was not visible in the recording. Mr. Long heard “[a] couple of inmates

. . . talking to [Officer] Williamson about what he was saying, and just a whole lot of

stuff.” Mr. Long heard Officer Williamson tell the “monkeys” to “pipe down.”

Anywhere from 10 to 20 minutes before the attack, Mr. Long heard Officer Williamson

say, “I don’t know what y’all - - what y’all n*****rs think this is.” Mr. Long called the

comment “disrespectful” and expected that there would be an altercation as a result of the

statement. Mr. Long thought that Defendant was in the shower when Officer Williamson

used the derogatory language.

Defendant testified at trial. He confirmed that he was an inmate on the lower tier

of Pod Nine at Northwest on the day of the incident. He recalled being let out of his cell

to take a shower. Defendant was in the shower for about ten minutes. He “came back

out the shower and went to [his] cell,” where he “was standing there waiting on [Officer

Williamson] to come open the door.” Defendant was “vulnerable” because he was

wearing “shower shoes and just some - - a pair of short pants.” He asked Officer

Williamson to open his cell door, “[b]ut he ke[pt] refusing and just ke[pt] walking doing

everything else.” So, Defendant went to the “cage” and asked the officer again to open

the cell door. Defendant claims Officer Williamson told him he would let Defendant “in

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[his cell] when he get ready.” Defendant “slammed the door on the cage and walked

back toward [his] cell.” Defendant witnessed a discussion between Officer Williamson

and an inmate identified as “McKissack” during which the inmate was asking the officer

“why he keep disrespecting inmates.” Defendant explained that “McKissack” was “using

the ‘N’ word first,” explaining to Officer Williamson that the use of the word was

disrespectful and would “get him messed up.” At that point, Officer Williamson told

“McKissack” that he was not talking to him, and the officer pointed at Defendant and

said “he was talking to this stupid-ass n****r over there.” At that point, Defendant

walked toward Officer Williamson and told him he was “going to get a MF F’d up.”

Defendant claimed that Officer Williamson pushed his hand and shoved him. Defendant

explained that he would look like a coward if he did not react to the officer’s verbal

assault. Defendant further explained that if he “didn’t react to his - - what he - - his

action, [he] knew something was going to happen to [him].” Defendant picked up the

floor buffer “to secure [his] safety” and because he was in fear. He explained that he

would be moved out of the pod and would not have to deal with the other inmates.

Defendant claimed that the floor buffer hit the officer in the chest area, not in the head.

Defendant acknowledged that he had a parole hearing coming up on November 1, about

two months after the incident.

The jury found Defendant guilty of aggravated assault in concert with two or more

other persons as charged in the indictment. The trial court sentenced Defendant as a

Range II, Multiple Offender, to fifteen years in incarceration to run consecutively to “all

prior sentences.”

Defendant filed a motion for new trial in which he argued that the evidence was

insufficient and that his sentence was excessive. Counsel for Defendant did not file an

amended motion for new trial, but at the hearing on the motion for new trial, counsel for

Defendant noted that Defendant was “reiterating any of the objections raised during

trial,” especially the instruction on the “justification defense.” Additionally, counsel for

Defendant complained that Defendant did not receive pretrial jail credit on his sentence.

The trial court denied the motion for new trial.

Defendant filed a timely notice of appeal. On appeal, he challenges the

sufficiency of the evidence, the trial court’s decision to prohibit the introduction of Mr.

Tate’s conviction into evidence, and his sentence.

Analysis

I. Admissibility of Mr. Tate’s Conviction for Aggravated Assault

Defendant argues on appeal that the trial court erred in “prohibiting [Defendant]

from introducing the conviction of Kaleb Tate for aggravated assault instead of

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aggravated assault acting in concert with two (2) or more other persons.” The State

argues that the trial court properly excluded the evidence because it was irrelevant and

that Defendant waived this issue for failing to cite authority to support his proposition.

Neither party acknowledges that Defendant failed to raise this issue in his motion

for new trial. According to Tennessee Rule of Appellate Procedure 3(e), “in all cases

tried by a jury, no issue presented for review shall be predicated upon error in the

admission or exclusion of evidence, . . . unless the same was specifically stated in a

motion for a new trial; otherwise such issues will be treated as waived.” Defendant’s

failure to include this issue in a motion for new trial constitutes a waiver of the issue on

appeal. Such a broad assertion at a motion for new trial hearing that a defendant is

“reiterating any objections raised during trial,” with nothing more, fails to give the trial

court an opportunity to correct an action later labeled as “error.” Moreover, Defendant

fails to seek plain error review under Tennessee Rule of Appellate Procedure 36(b). This

issue is waived.

II. Sufficiency of the Evidence

Defendant argues that the evidence is insufficient to support his conviction.

Specifically, he contends that there was no proof he was acting in concert with Mr. Tate

or Mr. Fleming during the assault on the officer. The State disagrees, arguing that the

evidence “clearly supports a finding that the three inmates assaulted Officer Williamson

together with the common plan of injuring him.”

When a defendant challenges the sufficiency of the evidence, this Court is obliged

to review that claim according to certain well-settled principles. The relevant question is

whether any rational trier of fact could have found the accused guilty of every element of

the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,

443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with

one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence

introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d

247, 277 (Tenn. 2002). “‘A guilty verdict by the jury, approved by the trial court,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of

the prosecution’s theory.’” Id. (quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997)). Therefore, the prosecution is entitled to the “‘strongest legitimate view of the

evidence and to all reasonable and legitimate inferences that may be drawn therefrom.’”

State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v. Smith, 24 S.W.3d

274, 279 (Tenn. 2000)). Questions concerning the “‘credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are

matters entrusted to the jury as the trier of fact.’” State v. Wagner, 382 S.W.3d 289, 297

(Tenn. 2012) (quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). It is not

the role of this Court to reweigh or reevaluate the evidence, nor to substitute our own

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inferences for those drawn from the evidence by the trier of fact. Id. The standard of

review is the same whether the conviction is based upon direct evidence, circumstantial

evidence, or a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.

2011); State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

Defendant was convicted of aggravated assault in concert with two or more other

persons. One commits the offense of aggravated assault with a deadly weapon who

intentionally or knowingly “causes another to reasonably fear imminent bodily injury” by

the use or display of a deadly weapon. T.C.A. §§ 39-13-101(a)(2), -102(a)(1)(B). 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.” T.C.A. § 39-11-302(a). A person “acts knowingly with respect to the

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

nature of the conduct or that the circumstances exist.” Id. § 39-11-302(b). Furthermore,

“[a] person acts knowingly with respect to a result of the person’s conduct when the

person is aware that the conduct is reasonably certain to cause the result.” Id. A “deadly

weapon” includes “[a]nything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.” Id. § 39-11-106(a)(5)(B). “Bodily injury”

includes “a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary

illness or impairment of the function of a bodily member, organ, or mental faculty.” Id. §

39-11-106(a)(2). Tennessee Code Annotated section 39-12-302 provides that “[a] crime

of force or violence committed while acting in concert with two (2) or more other persons

shall be classified one (1) classification higher than if it was committed alone.”

Aggravated assault is a Class C felony, but it is a Class B felony when committed while

acting in concert with two or more other persons. T.C.A. §§ 39-13-102(e)(1)(A)(iii); -12-

302(a). The question of whether one defendant is acting in concert with another is one of

fact for the jury. Rice v. State, 475 S.W.2d 178, 179 (1971). This Court has likened

“acting in concert” with criminal responsibility in the context of a case involving the

commission of a robbery. State v. Lenardo DeQayne Spencer, Reginald Tyrone Baxter,

Jr., and Deandre Jajuan Dean, No. M2016-01219-CCA-R3-CD, 2017 WL 2800147, at

*6 (Tenn. Crim. App. June 28, 2017) (citing T.C.A. § 39-11-402(2)) (explaining that a

defendant “acts in concert with another if the defendant acts ‘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.’”), perm. app. denied (Tenn. Nov. 16, 2017)

In a light most favorable to the State, the evidence introduced at trial, including the

video surveillance of the attack, shows that Mr. Tate first attacked Officer Williamson by

punching him in the face and knocking him to the ground. Mr. Tate continued to beat

and kick Officer Williamson and was soon joined by Mr. Fleming, who also beat and

kicked the officer. Defendant comes into the frame and picks up a ninety-nine pound

floor buffer, throwing it at the officer. The entire attack lasted approximately thirty

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seconds. Officer Williamson suffered injuries after he was hit in the head and face by the

floor buffer and body parts of Mr. Tate, Mr. Fleming, and Defendant. Defendant himself

admitted that he picked up the floor buffer and threw it at the officer for his own safety.

As the trial court stated several times during the trial, the video “speaks for itself.” There

was sufficient evidence from which a rational jury could have concluded that the men

were acting in concert while committing the aggravated assault.

III. Sentencing

Defendant argues on appeal that the trial court’s sentence fails to conform to the

requirements of Tennessee Code Annotated section 40-23-101(c). Specifically,

Defendant argues that he should have been given pretrial jail credit on his fifteen-year

sentence beginning in November of 2014. Defendant asserts that the trial court’s ruling

that Defendant’s conviction was to run consecutively to all prior sentences, with no credit

for time served while awaiting trial, supersedes and ignores the language of Tennessee

Code Annotated section 40-23-101(c). Defendant also argues that his sentence is

excessive because it does not represent the “least restrictive alternative.” The State, on

the other hand, argues that the trial court did not abuse its discretion in fashioning

Defendant’s sentence.

When a defendant challenges the length or manner of service of a within-range

sentence, this Court reviews the trial court’s sentencing decision under an abuse of

discretion standard with a presumption of reasonableness. State v. Caudle, 388 S.W.3d

273, 278-79 (Tenn. 2012); State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This

presumption applies to “within-range sentencing decisions that reflect a proper

application of the purposes and principles of the Sentencing Act.” Bise, 380 S.W.3d at

707. A trial court abuses its discretion in sentencing when it “applie[s] an incorrect legal

standard, or reache[s] a decision which is against logic or reasoning that cause[s] an

injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)

(citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)). This deferential standard

does not permit an appellate court to substitute its judgment for that of the trial court.

Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The defendant bears the

burden of proving that the sentence is improper. T.C.A. § 40-35-101, Sentencing

Comm’n Cmts.

In reaching its decision, the 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 enhancement and mitigating 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 by the appellant in his own

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behalf; and (8) the result of a validated risk and needs assessment. T.C.A. § 40-35-

210(b). The trial court should also consider the defendant’s potential for rehabilitation or

treatment. T.C.A. § 40-35103(5); see also Bise, 380 S.W.3d at 697-98. Additionally, the

sentence imposed “should be no greater than that deserved for the offense committed”

and also “should be the least severe measure necessary to achieve the purposes for which

the sentence is imposed.” T.C.A. § 40-35-103(2), (4).

This Court will uphold the sentence “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.” Bise, 380 S.W.3d at 709-10. The weighing of

various enhancement and mitigating factors is within the sound discretion of the trial

court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The misapplication of an

enhancement or mitigating factor by the trial court “does not invalidate the sentence

imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”

Bise, 380 S.W.3d at 706. Trial courts are “required under the 2005 amendments to ‘place

on the record, either orally or in writing, 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.’” Bise, 380 S.W.3d at 698-99 (quoting T.C.A. § 40-35-210(e)).

The trial court sentenced Defendant as a Range II offender to a sentence of fifteen

years, a within-range sentence entitled to a presumption of reasonableness. Bise, 380

S.W.3d at 709-10. The record before this Court shows that the trial court thoroughly and

completely applied the statutory sentencing principles. The trial court enhanced

Defendant’s sentence on the basis that he had “previous convictions or behavior, in

addition to those necessary to establish the appropriate range” and because Defendant

was “[i]ncarcerated in [a] penal institution on a . . . felony conviction” at the time of the

commission of the offense. See T.C.A. § 43-35-114(1), (13). The trial court considered

Defendant’s conduct “serious,” noting that his actions could have gotten someone

“killed.” The trial court noted Defendant’s two prior felony drug convictions and nine

prior misdemeanors. The trial court determined that confinement was necessary to avoid

depreciating the seriousness of the offense and noted that rehabilitative efforts were not

to be “considered” because Defendant failed to accept “responsibility for what he did.”

The trial court did not abuse its discretion in determining the length of Defendant’s

sentence.

Defendant complains that the trial court ordered his sentence to run consecutively

to all of his prior sentences and that he did not receive pretrial jail credit on the service of

his sentence for aggravated assault. Defendant correctly notes that whenever a defendant

receives a sentence of imprisonment,

the trial court shall . . . render the judgment of the court so as to allow the

defendant credit on the sentence for any period of time for which the

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defendant was committed and held in the city jail or juvenile court

detention . . . or county jail or workhouse, pending arraignment and trial.

The defendant shall also receive credit on the sentence for the time served

in the jail, workhouse or penitentiary subsequent to any conviction arising

out of the original offense for which the defendant was tried.

T.C.A. § 40-23-101(c). The awarding of pretrial jail credits is mandatory. See State v.

Brown, 479 S.W.3d 200, 212 (Tenn. 2015). However, pretrial jail credits do not include

time spent incarcerated on another conviction or before the commission of the offense at

issue. See State v. Frederick Cavitt, No. E1999-00304-CCA-R3-CD, 2000 WL 964941,

at *2 (Tenn. Crim. App. July 13, 2000) (“This Court has repeatedly held that [Tennessee

Code Annotated] § 40-23-101(c) provides for credits against the sentence only if the

incarceration, claimed as a basis for the credits, arises from the offense for which the

sentence was imposed.”), no perm. app. filed; see also Trigg v. State, 523 S.W.2d 375,

376 (Tenn. Crim. App. 1975) (“It is only when the time spent in jail or prison is due to or,

as the statute says, ‘arises out of’ the offense against which the claim is credited that such

allowance becomes a matter of right.”). When a defendant has pretrial jail credits to be

applied to consecutive sentences, the credits are applied only to the first sentence that is

served; anything else would allow a defendant to “double dip.” See, e.g., Elijah Truitt v.

State, No. M2013-01848-CCA-R3-HC, 2014 WL 1408301, at *4 (Tenn. Crim. App. Apr.

10, 2014), no perm. app. filed; Timothy L. Dulworth v. Henry Steward, Warden, No.

W2012-00314-CCA-R3-HC, 2012 WL 2742210, at *2 (Tenn. Crim. App. July 9, 2012)

(citing Marvin Rainer v. David G. Mills, Warden, No. W2004-02676-CCA-R3-HC, 2006

WL 156990, at *5 (Tenn. Crim. App. Jan. 20, 2006), no perm. app. filed), no perm. app.

filed. It is undisputed that Defendant was incarcerated on another offense at the time of

the commission of this offense. There is no proof in the record that his prior sentence had

expired before he was sentenced in this case. Defendant is not entitled to relief on this

issue.

Conclusion

Based on the foregoing, we affirm the judgment of the trial court.

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TIMOTHY L. EASTER, JUDGE

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