### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs N ovember 2, 2004
STATE OF TENN ESSEE v. KENDRIC K NAYLOR
Appeal from the Criminal Court for Shelby County No. 01-06617 James C. Beasley, Jr., Judge

No. W2004-00329-CCA-R3-CD - Filed F ebruary 24, 2005

The ap pe ll an t, Ke nd ri ck Na ylo r, wa s c on vi ct ed by a jury of cr iminal atte

mpt to commi

t assault, felony evading arrest, and theft of prope rty over $10,000. The tria l court se ntenced the appe llant to four (4) years as a Range I I multiple offender for the evading arrest conviction and six (6) months for the attem pt to commit

assault c onviction , to run conc urrently to the sente

nce for evading arrest. The trial court sentenced the appellant to eight (8) y ears for the theft of property conviction, to be served consecutively to the f

our-yea r sentence f

or evading arrest, for a total ef fective sentence of twelve (12) yea

rs. After a motion for new trial wa s denied by the trial c ourt, a timely notice of appeal was filed. On appeal, the following issues are presented for review: (1) whether the trial court erred in denying the

appellant’s motion for a mistrial; (2) whether the evidence was s ufficie nt to sustain the convictions; and (3) whether the trial court erre d inimpos ing c onse cutiv e sen tenc es. We affirm the judgment of the trial court and the appellant’s sentenc e because we determine that the appellant’s history of c

riminal convictions more than justifies the sentence imposed.

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Tri al Court is Affirme d.

J ERRY L. S MITH , J., delivered the opinion of the court, in which R OBER T W. W EDEMEYER and J. C. M C L IN , JJ., joined. Juni S. Ganguli, Memphis, Tennessee, for the appellant, Kendrick Nay lor.

Paul G. Summ ers, Atto rney Genera l & Repor

ter; Rachel E. Willis , Assistan t Attorne y G eneral ; William L. Gibbons, District Attorney General, and Betsy

Carnesale and Paul Hagerman, Assistant District Attorneys Gene

ral, for the appellee, State of Tennessee

.-2- OPINION Factual Backgr

ound

On October 3, 2000, Sergeant Eddie Bass of the Memphis Police Depa rtment was actively searching for the appe llant on a

n outstand

ing war rant. Ser geant B ass received a tip that the appellant
was at the Wing ood Apar tments, soSergeant Bass contacted another detective and four uniformed office rs. The officers met and proceede d to the Wingood Apartments and set up a perimeter around the building

that the a ppellant was see n enteri ng. Thr ee of the office rs, inclu ding Ser geant B ass, went up to the second floor

apartment to locate the appellant. The two remaining officers stay

ed on the ground

outside th e apart

ment build

ing. As S ergeant Bass was knocking on the door of apartment number six (6), he heard officers on the gr ound shout thatthe appellant had jumped out of the window of apartment number four (4) to the g round below. Afoot chase ensued. The officers chased the appellant, y

elling at him to stop or “freeze” as he headed across the apartment grounds to the park

ing lot. Se

rgean t Bass sa w the app ellant g et into the driver’ s side of a

maroon Toyot

a Ca mr y. Sergeant Bass manag ed to open the passenger door of the ve hicle and get half of his body into the vehicle before the appellant could start the ve hicle and put it into reverse. The two struggled
over the gea r shift se nding the vehicle into reve rse, nea rly strikin g Detective Miguel Aguila, who
was witnessing the events unfold from the rear of the vehicle. The appellant was able to shift gears again and the ve

hiclebegan

to move forward. As it did so, Serge ant Bas s rolled o ut of the v ehicle to avoid injury.

As the v ehicle moved fo rward, it went over a curb and onto a g rassy ar ea. Officer Bob Parker, who was standing in front of the vehicle, was forc ed to jumponto the hood to avoid being hit by t he appe llant. Of

ficer Pa rker hit t he windsh

ield with h

is shoulde r and the n kicked i twith his foot before he “rolled off” the ca r. The vehicle then

turned to the left, nearly

striking Officer Antoine Owens. Officers Parker and Owens fired severa l shots at the car in a

n attempt t

o stop the a

ppellant

. The appellant continued to drive the vehic le acro ss the gr assy area un til he crashed into one of the apartment buildings. The appellant then exited

the vehic le and ra

n on foot un

til the police caught him. The appellant sustained a gun shot wound during the incident. Following his arrest, the appellant wa s interv iewed by the Me mphis Police. During the interview, the appellant admitted that he jumped out of the window a nd ran from the police. He claim ed tha t he ran becaus e he was scared , stat ing: [T]he Hisp anic officer tha t was in the car with me, he shot at me when I was at Extended Sta

y A merica a nd he told m

y mother and

every thing he was goi ng to kill
me. He told Monica [the resident of Wingoo d Apartme

nts], that I

should have been1 Eac h indic tment c harge d altern ative the ories o f aggra vated assault in tw o co unts.
-3- dead, and that

he was g oing to kill me. When I realized who he was, I panicked because I wa s scared.

The appella

nt was indicted by the Shelby County Grand Jury

on June 26, 2001, for three incident s of agg

ravate d assault , felony

evading arrest ina motor vehicle and two counts of theft of property ove

r $10,000.

A jury trial was held in Nove mber of 2003. At trial, the jury hear d testimony

from Sergeant Bass, D ete ctive Aguila, Officer Parker and Officer Owens reg arding the incident. Steve Street, a constructionforeman doing work at Wingood Apartments, was putting trash in the dumpster when he saw several police officers cha sing a black male acro ss the apart ment grounds. Mr. Street testified at trial that he saw the appellant get into a red vehicle and drive over a cur b nearly striking several of the o fficers. Mr. Street also heard the vehicle hit the building . Mr. Street remembered that the officers ordered the appellant to stop and did not fire their weapons until he began to drive away.
Ma ri lyn Smith testified on behalf of the appellant. She was in the apartment with the appellant at the time the police arrived. Ms. Smith informed the appellant that the police were “comingfor him” because she was awar e that the appellant was a wanted man . She saw the appellant pace the floor for a few sec onds before he jumped out of the window. Ms. Smith testified that she heard shots fired immediately after the appellant jumped out of the window.

The maroon Toyot

a Ca mr y driven by the appe llant belonged to Enterprise Car Rental. At trial, M yd

ris B oltze , the loss prevention coordinator for Enterprise, testified that the vehicle was rented by Jeffre

y Bier nesser on May

2, 2000, and had not been returned as scheduled. Ms. B oltze contacted Mr. Biernesser about thevehicle in July of 2000, and she was informed that the appellant
was in possession of the vehicle. Ms. Boltze actually talked to the a ppellant on July 31, 2000, and August 3 , 2000, ea

ch time te lling him t

hat the ve hiclehad been

reporte d stolen a

nd that he should return it. Ms. Boltze stated that the car was worth $17,000 to $18,000.

At the conclusion

of the proof, the trial court dismissed count one of each of the agg ravated assault indictmen

ts. 1 The jury

found the

appella nt not gui lty o f two cou

nts of aggrava

ted assa ult, g uilty of criminal attempt to commit assault, a Class B misdemeanor, evading arr est in a moto r vehicle, a Class E felony , and two counts of theft of property over $10,000, a Class C felony.

After a sentencing hearing, the

trial court sentenced the appel lant t o four (4) years as a Range II multiple of

fender for the e vading arrest c onviction , six (6) mont hs for the attempt to

commit assault convicti on, to run c oncurre ntly to the sen

tence f or evadi ng arr est and eight (8) yea rs for the2 Th e trial co urt me rged the two coun ts of theft of p rop erty ove r $1 0,00 0 into o ne co nviction

. -4- theft of property c onv ic tion, 2 to be served consecutively to the four-ye ar sentence, for a total effe ctive sentence of twelv e (12) y ears. The trial c ourt deni ed the ap pellant’ s motion for

new tria l and this appeal followed. On appeal, the following issues are presented for review: (1) whether the trial court erred in denying the

appellant’s motion for a mistrial; (2) whether the evidence was sufficie

nt to sustain the convictions; and (3) whether the trial court erre d in imposing consecutive sentences.

Denial of Mistrial

The appellant argues that

the trial court erred by

denying a motion for mistrial after Sergeant Bass testified that the appellant was “booked for an agg

ravated kidnapping charg e” at the time of the incident

. Specifically, the a ppellant claims that the trial court erred b ecause the trial court had granted a pre-trial motion filed by the appellant to limit the testimony of prosecution witnesses as to the basis of the underly

ing arr est warr ant. The State argues that the trial court “proper ly ruled that a mistrial was not necessary based on the testimony.”

At t rial, Sergeant

Bass testified that on the date of the incident, he was looking f or the appellant because he was “booked for a n aggravated

kidnapping charge.” De fense counsel immediate ly

objected and requested a mistrial. The trial court denied the request and admonished the jury not to consider the stateme nt. Specifically, the trial c ourt told the jury that the testimony “with regard t o why they were on th e scene has ab solu tely no be aring, whatsoever, on the facts of the case that we’re try

ing” and that the facts that are “a lleged in the indictment” are “the only ” facts that they were

to consider.

The decis ion whe ther to grant a mistrial is within the discretion of the trial court and that decision will not be disturbed on appeal unless there was an abuse of discr etion. State v. Re id , 91 S.W.3d 247, 279 (Tenn. 2002); State v. Smi th , 871 S.W.2d 667, 672 (Tenn. 1994) . Moreover, the burden of establishing the necessity for a mistrial lies with the party see king it. State v. Will iams , 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). “The purpose for declaring a mistrial is to correct damage done to the judicial process when s ome event has occurred which prec ludes an impartial verdict.” Williams , 929 S.W.2d at 388. Generally , a mistrial will be declared and the jury discharged

in acriminal case only

if there is “manifest necessity ” requiring such

action by the trial judge. State v. Millbrooks , 819 S .W.2 d 441, 443 (T enn. C rim. A pp. 19 91) (q uoti ng Arnold v. State , 563 S.W.2d 792, 794 (Tenn. Crim. App. 1977)).

Inthe case herein, the appe l lant has not shown a “manifest necessity ” for a mistrial to be declared. The statement made by Sergeant Ba ss was bri ef and di d not prej udice the appella nt. Further, the lack of prejudice is demonstrated by the fact tha

t the jury acquitte d the appe llant on a ll of t he ag gr av at ed as sa ul t c ha rg es . M or ov er , t he tr ia l c ou rt ga ve a c ur at iv e i ns tr uc ti on to th e j ur y. The trial court’s curative instruction was sufficient to counter the potential for prejudice, and the law presumes th at ju ri es fo ll ow th e i ns tr uc ti on s t ha t t he y re ceive a bsent cle ar and c onvincing proof to the contrary

. See State v. H all , 976 S.W.2d 1 21, 148 (T enn. 1998 ); State v. Vanzant , 659 S.W.2d-5-

816, 819 ( Tenn . Crim . App . 1983 ). This issue is w ithou t mer it. F inall y, discu ssed

in the next sectionof this opinion, the evidence of the appellant’s guilt of the offe nses for w hich he was convicted is overwhelming. Sufficiency of the Evidence

The appellant next contends that the evidence was not sufficient to support the jury ve rdict
onthe charges of theft of prope rty and eva

ding arrest. Specifically, he argues that the evidence was insufficient

to support the theft conviction because the vehicle had bee n r ent ed by

another individua l. Further, the appellant argues that he should not have been convicted of evading arrest because

he was running from the officers to avoid being shot rather thanto avoid being arrested. The State counters that the evidence supports the jury verdict.

When a defendant challenges the suf ficiency of

the evidence, this Court

is obliged to review that claim according to certain well-se ttled p rinc iples. A verdict of guilty , rendered by a jury and “appr oved

by t he trial j udge, a

ccredi ts the test

imony of the” St

ate’s wi tnesses a nd reso lves al l conflic ts in the testimony

in favor of the state. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harr

is , 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked with a presumption

of innoce nce, the jury verdict of guilt y r emoves th

is presumption “and replaces it with one of guilt.” State v. Tu ggle , 639 S.W.2d 91 3, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The rele

vant question the re

viewing court mus t answer

is whethe r any rationa l trier of fact co uld have found the accused guilty of every element of the offense bey ond a reasonable dou

bt. See Tenn. R. App. P. 13( e); Harris , 839 S.W.2d at 75. In making this decision, we ar e to accord the State “the stronge st legitima te view of the evidence as well as all reasonable a nd legitimate inferences that may be drawn therefrom.” See Tuggl e , 639 S.W.2d at 914. As such, t his C ourt is precluded from reweighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan , 929 S.W.2d 380, 383 ( Tenn. Cri m. App. 199 6); State v. Matthews , 805 S.W.2d 776, 779 (Ten n. Crim. App. 1990). Moreover, we may not substitute our

own “inferences for

those drawn by the

trier of fact from circumstantial evidence.” Matthews , 805 S.W.2d at 779. Further, questions concerning witnesscr ed ib il it y ar e r es ol ve d b y th e j ur y. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

The appell ant

was convicted of theft of property over $10,000 in violation of Tennessee Code Annotated

section 39-14-103. According to Tennessee Code Annotated section 39-14-103, in order to prove that the appellant was guilty of the offense, the State was required to prove beyond a
reasona ble doubt that the appellant: (1) knowingly obtained or exercised control over th e p ro pe rt y; (2) did not hav e the owner’s ef fective consent; an d ( 3) in te nd ed to de pr iv e t he ow ne r o f t he pr op er ty. Tenn. Code Ann. § 3 9-14-103. The appellant was indicted on alternate theories that he either obtained the 2000 Toy

ota Camry without the owner’ s effective consent with the intent to deprive the
owner of the pro per ty or that he exercised c ontrol over the property without the owner’s effective consent with the intent to deprive the own er of the property . The jury convicted the appellant on both counts of theft of property

.-6-

The appellant argues that the vehicle wa s rented by Mr. B eirnesser and that Mr. Biernesser failed to return the car. However, the appe llant obtained the vehicle from Mr. Biernesser without the eff ective c onsent of

Enterpr ise Car Renta

l even af ter bein g conta cted by Enterpr ise Car Rental
ontwo sepa

rate oc casions. Myd

ris Boltze testified that she spoke with the appellant on July 31 and August 3, each time notifying

the appellant

that the v ehicle

had been reported stolen. The appellant retained possession of the vehicle even after rec eiving notification from the owner of the vehicle that it had been reported stolen, showing a clear intent to deprive the owner of the property . The evidence of guilt on this charge is ove rwhelming.

The appella

nt also ar gues tha t he should

not have b een con

victed of evading arrest b ecause he raised the defense of necessity , asserting that he was not evading arrest, but avoiding being shot by the offic ers. Ten

nessee C ode Annot

ated section 39-16 -603(b) (1) make s it “unla wful for any person, while ope

rating a motor ve

hicle on a

ny s tr eet, road , alley

or highway

in this stat

e, to intentiona

lly flee or attempt to elude any lawenforcement officer, afte r having received any

signal from such officer to bring the vehicle to a stop.” Tenn. Code Ann. § 39-16-603(b)(1).

The evidence at trial indicated that the appellant jumped out the window and ran to the vehicle as the police were getting re ady to knock on the door of the apartment where the appellant was located. The appe llant go t into the ve hicle, ig noring r epeate d requests of the police to stop or “freeze.” The appe llant stru ggle d to get t

he vehic le into gear when Sergea nt Bass managed to get half-way into the ve

hicle an d grab onto the g ear shif

t. Even after the

struggle ended, the appellant dr ove the vehicle over a curb, nearly striking two officers. The appellant did not ev en stop th e vehicle when the officers began to fir e their weap ons at him. Further, even after the appe llant crashed the vehic le into the apartment building, he exited the vehicle and tried to run on foot. The only evidenc e that sup

ports the appella nt’s cont ention tha

t he ran o

ut of “ne cessity

” is his o w n statement alleging that he wasaf

raid that the “hispanic officer” would shoot him because of prior confrontations between the two. Implicit in the jury verdict is the dete

rmination that the appellant’s statement was not credible . The pro of was ov erwhelm ing that t he appel lant evaded arrest in an automobile. Therefore, we cannot say that the evidence preponderates against the jury verdict . This issue is without merit. Sentencing

F in al ly, the appella

nt argu es that the

trial cou rt erre d by

imposing

“excessi ve” sent ences. Speci fical ly, the appellant complains that the trial court ordered his sentences to be served
co ns ec ut iv el y. The appellant argues that the consec utive sentences imposed

were no t “reas onably related to the severity of the of

fenses committed.” The State counters that the record “supports the trial court’s finding that the defendant has an e xtensive criminal record deserving of consecutive sentences.”

“Whenreviewi

ng sente ncing is sues . . . , the appe llate cou rt shall c onduct a de novo review
onthe record of such issues. Such review shall be conduc ted with a presumption that the determinations made by the c ourt from which the appeal is taken are correct.” Tenn. Code Ann. §3 Th e State notes th at “the d efend ant ap pare ntly does not cont est t he enhancement

fact ors appli ed by the tri al
cou rt” but that Bla kely “would not apply” t o the appel lant’ s enhanced s entence for t heft and that the f our (4) y ear senten ce on the eva ding a rrest ch arge is “j ustified” even if the trial cou rt impr ope rly app lied en hanc eme nt factor s.
-7- 40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action is conditioned up on the aff irmative showing in the record that the trial court consider ed the sentencingprinciples and all relevant facts and circumstanc es.” State v. A shby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider the defe ndant’s potential for
re ha bilitation, the trial and sentencing hearing evidence, the pre-sentence r eport, the sentencing principle s, sentenc ing alte rnative argume nts, the nature and character of the offense, the enhancing and mitigating factors, and the defenda nt’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b); Ashby , 823 S.W.2d at 169. We are to also recognize that the defenda nt bears “the burden of demonstrating that the sentence is improper.” Ashby , 823 S.W.2d at 169.

At the outset, we note that the appellant does not make any a

rgument concerning the

validity of his sentence under the United States Supreme Court’s recent decision in Blakely v. Washington , 542 U.S. ___ , 124 S.C t. 2531 (2004). 3 Prior to the release of Blakely , in order to determine a defendant’s sentence, a trialcourt started at the presumpt ive sente nce, en hanced the sente nce withi n the range for existin

g enha ncement factors, and then reduced the sentenc e within the range for existing mitigating factors in accordanc e with Tennessee Code Annotated section 40-35-210(e). No particular weight for eac

h factor is prescribed by

the statute; the weight given to each fa ctor is left to the discretion

of the trial court as long as it comports with the sentencing principles and purposes of our Code and as long as its findings are supported by the record. See Stat e v. Sa ntiago , 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995). This Court has rec ently

recog nized that Blakely

“calls into question the continuing validity of our current sentencing scheme.” State v. Juliu s E. Smith , No. E2003-01059-CCA-R3-CD, 2004 WL 1606998, a

t *4 (Tenn . Crim. App . at Knoxvil le, Ju ly 19, 2004); see also State v. Michael Wayne Poe , No. E2003-00417-CCA-R3-CD, 2004 WL 1607002, at *9 (Tenn. Crim. App. at Knoxville, July 19, 2004).

Becau se we belie

ve that th e decisi on in Blakely has compr

omised the

validity of Tennessee’s current sentenc ing sche

me we ha ve dete rmined that we mu st sua sponteanalyze the appe llant’s sentence. Because this issue was not raised by the appellant, the only wa y the issue may

be address ed is through a plain error analy sis. In exercising our discretion as to whe ther plain err o r review under Tenness ee Rule o f Criminal Procedu re 52(b) is appropriate, the Tenne ssee Supr eme Courthas directed that we examine fi ve fact ors: (1) the record must clearly establish what occurred inthe trial court; (2) a

clear and unequivocal rule of law must have be en breached; (3) a substantial right of the de fendant

must have been adversely

affected; (4) the accused did not waive the issue for tactical reasons ; and (5)consider ation of the error

is neces sary

to do substa

ntial just ice. S tate v. Smith , 24 S. W.3d 274, 2 82-83 (Tenn . 2000 ) (cit ing State v. Adkisson , 899 S.W.2d 626, 641 (Tenn. Crim. App. 1994)). All five (5) factors must be present for plain error re view. Smith , 24 S.W.3d at 283.4 In Apprendi v. New Jer sey , 530 U.S. 466 (2 000), th e Uni tedSta tes Supr eme Co urt held that, “[o]ther than t he fact of a prior conviction, any fact t hat increases t

he penalty for a cri me beyond the prescribed statutory maximum must be submi tt ed to ajury , an d proved be yond a r easonable doubt .” Id. at 490. In Ring v. Arizona , 536 U.S. 584, 587 (2002), the Court

applied Apprendi to hol d tha t bec ause Ariz ona condi ti oned el igi bil ity f or th e deat

h penal ty upon the presence o f an agg ravating f act that was not an element of first degree murder, the Sixt h Amendm ent guaranteed the defen dan t a right to a jury de termin ation o f that fact.

-8- For a “substantial right” of

the acc used to ha ve been affected, the e

rror must have prejudiced the appellant. In other words, it must have af fected th e outcome

of the tri al court

procee dings. Unite d States v. Olano , 507 U.S. 725, 732-37 (1993) (analy zing the substantially similar F edera l Rule of Crimina

l Procedu re 52(b) ); Adkisson , 899 S.W.2d at 642. This is the same type of inquiry
as the harm

less error analysis under Te

nnessee Rule of Appellate Procedure 36(b), but the a ppellant bears the burden of persuasion with respect to plain er ror claims. Olano , 507 U.S. at 732-37.

In Blakely

, the Supreme Court determined that the “statutory maximum” sentence for Apprendi 4 purposes is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict

or admitted by the def

endant.” 542 U .S . at
___ , 12 4 S .C t. at 2 537 . In other words: [T]he relevant “statutory maximum” is not the maximu m sentence a judge may imposeafter finding additional facts, but the maximum he may impose without any additiona l finding s. When a ju

dge inf licts punishment that the jury’sverdict alone does not allow, the jury

has not found all the facts “which the law makes es sential to the punishment,” and the judge exceeds his proper authority

. Id. Blakely

involved the sentenci ng scheme of the State of Washington where the criminal code establishes maximum sentences for felonies according to the class of felony. Washing ton also has presumptive sentenc ing ran ges ba sed on the

seriousness leve l of the of fense a nd th e offend er’s criminal history . In Wa shington , a judg e is permitted to impose a sentence above the presumptive range when the

re exists “ substantia

l and comp ellin g reas ons justifying an exceptional sente nce.” Blakely , 542 U.S. at ___, 124 S.Ct. at 2535. A judge may imposean exceptional sentence utilizing
one of these

“reasons” illustr

ated in th e Sentenc ing Ref orm Act on

ly if it is not alre ady

taken int o account in the calculation of the presumptive rang e. Blakely pled gu ilty to second -degr ee kidna pping wi th a fire arm. As a

Class B felony , it was punishabl e by a sentenc e of up to 10 yea rs. The Sentencing Reform Act of Washington, howe ver, specified a presumptive range of 49 to 53 months. The sentencing judge imposed an exceptional sentence of 9 0 months on the ground that the defendant had acted with “de liberate cruelty ,” a statutori ly enumerated ground for upwar d departure. The Supre

me Court ultimately determined that Washington’s sentenc ing proc edure vi olated th e defen dant’s Sixth A

mendment

right to a tr i al by jury. Id. 542 U.S. at ___, 124 S.Ct. at 2538.5 The tri al c ourt rel ied on several

enhancement

fact ors when det ermini ng the a ppellant ’s s entence. As sta ted

a bove, only

enhan cement

fac tors tha t ar e ref

lect ed in the jury

verdi ct or

admit ted by the defe ndant

may be used t o enhance the de fenda nt’s senten ce. Bla kely , 542 U.S. at___, 124 S.Ct . at 2537. The trial courtrelied upon the foll owing enhancement factors i n sentencing t he appellant on the convicti on for evading arrest: (1) that t he appellant had a previous historyof crim inal co nviction s in add ition to thos e nece ssar y t o est abli sh t

he appr opria te r ange, Tenn. Code Ann. § 40- 35-114(2); (2) th e appe ll ant had n o hes it ati on abo ut commi tt in g a c ri me in which t he risk to human li fe was high, Tenn. Code Ann. § 40-35-114(11); and (3) the cri me was committ ed under ci rcumstances under which the poten ti al f

or bod ily injury to a victim was gre at, Tenn. Cod e Ann. § 40-35-114 (17). The appli cati on of e nhanc ement fac tors (11) a nd (17) is clearly in violatio n of Bla kely as th ey were n ot ref lect ed in t

he jury verdict or admitt ed by the a ppe llant. Bla kely , 542 U.S . at ___ , 124 S.Ct. at 2 537

. -9- This Court has a

cknowle dged that Blakely “extended A ppren di’s holding that, under the SixthAmendmen

t, a jury mu st fi nd all facts used to increase a defenda nt’s sentence bey

ond the statutory maximum.” See State v. Charles Benson , No . M2003 -021 27-CC A-R3 -CD, 2004 W L 2266801, at *8 (Te

nn. Crim. A

pp. at Na shville, O ct. 8, 200 4). I n so doing , this Court

went on to state tha t: [N]othing in A pprend i sugge sted that t he phras e “statu

tory maximum” eq

uated to anything other than the max imum in the range. To the contrary , the United States Supreme Court stated the issue in Appren di as “whether the 12-y ear sentence imposed

. . . was permissible, given that it was above the 10-y ear maximum for

the offense charg ed in that

count.” 5 30 U.S. at 474, 120 S.Ct. at2354. We also note that the Supreme C ourt has considered the retroactive effe ct of the holding in Ring v. Arizona , 536 U.S. 584, 592-93, 122 S.Ct. 2428, 2435 n.1, 153 L.Ed.2d 556 (2002),
as a new rule for capital cases even though it was based on Apprendi

. See Schriro ,

___ U.S. at ___, 124 S.Ct. at 2525-27. . . . We conc lude that Blakely alters Tennessee courts’ interpretation of the phrase “statutory

maximum” andestablishes a new rule in this state. . . .

Id. at *8.

We now turn to the five factors required for plain er ror review. The record in the case he rein clearly es t ablishes

what hap

pened a t trial. Further, because

it has bee

n determ ined that Blakely established

a new rule of law, it is clear that a rule of la w was violated. It isthus without question that a new rule established for sentencing affects a substantial ri ght of the app ellant. T he fourt h factor, the defendant did not waive the issue for tactical reasons, has been met. Finally , despite the trial court’s application of enhancement factors in violation of Blakely , 5 we determine that review of this issue is not clearly nece ssary to do substantial justice beca use the appellant’s prior record
more than justifies a four-year sentencefor eva ding ar rest. The record establishes that appellant had at least eight (8) prior felony convictions and ten (10) prior misdemeanor convictions as set forth in the pre-sentence report. Thus, we will not revie w the sentence for plain error.-10-

As to consecutive sentencing, we note that a trial c ourt may impose consec utive sentencing upona determination that one or more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exists. This s ection pe rmits the tr

ial cour t to impose c onsecuti

ve sente nces if the court fi nds, among o ther cr

iteria, t hat “the defenda nt is a dan

gerou s offend

er whose behavior indicate s little or no regard for human life, a nd no hesitation about committing a crime in which th e risk to humanlife is high.” Tenn. Code Ann. § 40-35-115(b)(4). However, before ordering the defendant to serve consecutive sentenceson the basis that he is a dangerous offender, the trial court must find that the resulting sentence is reasonably related to the severity of the c rimes, necessary

to protect the public against further criminal conduct, and in ac cord with the general se

ntencing principle s. See State v. Imfe ld , 70 S.W.3d 698, 708- 09 (Tenn . 2002); State v. Wilkerson , 905 S.W.2d 933, 938-39 (Tenn. 1995).

Inthe case herein, the trial court found that the appellant had an extensive criminal record, noting that the pre-sentence report re flecte d eight (8) prior felony convictions and ten (10) misdemeanor

convictions. The trial court emphasized that on “at least three other occasions when officers attempted to arrest or detain . . . [the appellant], he has either fled or resisted or in some way attempted to e lude t hem.” The trial court also noted that the appellant had sever al prior theft convictions.

The trial court herein made specific findings whe n imposing consecutive sentences. The trial court stated:

Th e Cou rt further finds that . . . [the appellant] is an offender whose recor d of criminal activity is extensive as the Court has prev iously read int o the record. And for that reason, based upon

the long record of . . . [the appellant], the Court feels that consecutive sentencing is appropriate for this particular c ase a nd the l ength of sentencingin this case 12 yea rs the aggravat

ed mann er in whic

h the I ntentiona lly EvadingArrest occurred and the Theft of Property , this Court

feels that consecutive sentence is appropriate . . . .

After a review of the record, we de termine that the trial court properly sentenced the appellant. This issue is without merit.

Conclusion For the foregoing r

easons, the judgment of the trial court is affirmed.

___________________________________ JERRY L. SMITH, JUDGE