### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Ma rc h 21
, 200 7

STA TE OF TEN NES SEE v. AN TON IO DA NTE ED MON DS ON

Appeal f rom the Cr im inal Cou rt for Davidson Coun ty No. 2005-B-876 Cher yl Blackb urn, Jud ge

No. M2006- 00990-CCA -R3-C D - F iled Augu st 20, 2007

The de fenda

nt, Antonio Dante Edmondson, was c onvicted at a jury trial of two counts of f

acilitation of a g g ra va te d rob be ry , Cla ss C fe lon ie s. He re c e ive d two fi ve -y e ar te rm s to be se rv e d c on se c uti ve ly in the Depa

rtment of Correc tion, for an e ffe ctive sente nce of ten y ear s. I n this appeal, he claims (1) that the evidenc e is insufficient to support his convictions, (2) that the trial court e rre d in admitting pr oo f o f oth e r ro bb e ri e s und e r Te nn e sse e Rul e of Ev ide nc e 40 4( b) , a

nd (3 ) t hat he wa s im

pr op e rl y
se nte nc e d. We a ff

ir m th e jud g me nts of

the tr ia l c ou

rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , P.J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL a n d J. C. M C L IN , J J ., joined.

J ennife r Ly

nn Thompson, Nashville, Tenne ssee, f or the a ppellant, Antonio Dante E dmondson.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; B e nj a

m i n A

. B a l l
, A s s i s t a

nt Attor ne y Ge ne ra l; Victor S. J ohnson, I I I , Distr ict Attorney Gene ral; and B ret Thomas G unn, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Br andy Go o d ma n te s ti f ie d th a t s h e was e mploy ed in the loss preve ntion department of Ma pco Ex press. She said that on January 1, 2005, the Mapc o Ex press store at 5040 Nolensville Road had a video surve illance sy stem installed with five c amer as and that none of the c amer as we re outside the store. She identifie d a disc c ontaining the surveillance footag e for that store on J anuar y 1 from 6:0 0 p .m. un til 6:2 4 p .m.

J ose Sosa testified throug h an interpr eter . He sa id he was r obbed in the Mapc o parkinglot on Nolensville Road in Davidson C o u n t y at about 6:00 p.m. on J anuar y 1, 2005. He sa id he was with his wife, J ulissa Ponce, and his cousins, Efr ian Sosa an d R u b en Sanche z. He said he wa s working on his car. Sosa said he saw a dark g ree n, four- door C adillac arrive and park two car s awa y-2-

from his ca

r. He sta t ed t h at a black man g ot out of the ca r, we nt into the store, returne d to the Ca dil la c , a

nd g ot i nto the pa sse ng e r s ide . H e sa id the man the n a pp ro a c he d him and

his c ou sin s, a ll of wh om we re sta

nd ing ou tsi de his c ar, po int e d a pis tol in h is f

a c e , a nd de mand e d mo ne y . H e sa id he g ave the man $400. Sosa said that the man pointed the gun at the ot hers in his g roup and that Mr. Sanchez surre ndere d his wallet, although he did not know t he amount of m oney inside. He sa id the man told him not t o call the police, walked to the Cadillac, g ot into the passeng er side, and lef t. He said he wa s not able t o see through the tinted windows of t he C adillac we ll enoug h to identify the dr ive r. He sai d that hi s w if e c a lle d th e po lic e and

that he inf

or me d th e po lic e a

bo ut t he c ri me throug h his wife. He said he viewed t he Mapco secur ity video on J anuar y 1 and saw the man who robbed him on it. He said Ef rain Sosa had move d to California.

On c ro ss- e xami natio n, Sos a

sa id he wa s not watc hin g the man clo se ly un til he saw h im c ome toward him with a gun. He sa id he did not pay attention to the driver of

the Cadillac.

J ulissa Ponce testified that althoug h she could unde rstand s o m e Eng lish, she was more comforta ble testifying thr oug h an interpr eter . She said she wa s sitti ng inside a truck at Mapco on J anuar y 1 when he r husband a

nd his cousin were robbed. She sa id her husband a nd his cousins were working on the truck when a man a pproac hed her

husband, stuck a gun in his face , and dema nded his wallet. She said t hat her husband gave the m an his money and that the m an then demanded a nd

rec eived her husba

nd’s cousin’s wa llet. She said the man bac ked up while holding the g un and g ot into the passeng er side of hi s car , which bac ked up and dr ove aw ay . She admitted she could not see the driver we l l enoug h to identify him, but she said he was a tall man. She said she we nt into the
sto re a ft e r t

he ro bb e ry

and tol d th e c le rk

that th e ro bb e r wa s a bla c k man wh o w a s w e ari nga

wh ite hat and white sw eate r.

Detec tive Robert Russell of the M etro Police De partment testified that he and Ser g eant Stromatt c onducted a taped interview of the defe ndant on J anuar y 28 about the J anuar

y 1 ro bbery at Mapc o. He sa id that in that interview, the de fenda nt viewed st i l l p h o t o graphs from the Mapc o

surv e ill anc e vid e o a

nd ide nti fi e d h ims e lf

and Mic ha e l John so n in

tho se ph oto g ra

ph s.

A re dacte d portion of the def endant’ s videotaped inter view wa s play ed for

the jury . I n the interview, the defe ndant s aid he knew the other person in the still photogra phs only as “Micha el.” Th e de fe nd ant a dmi tte d th a t he ha d a g re e n, fo ur -d oo r Ca dil la c

. He sa id h e ha d a re c or din g stu dio and that Micha el was a

customer who c ame in to r ecor d. He said that Michae l never had a r ide and that on one occ asion, Michae l asked him for a ride a nd g ave him money for g as. He said that he wa s takin g Mic ha e l home and that th e y sto pp e d at Ma

pc o to g e t a

dr ink . H e sa id t

hat a ft e r h e ma de his purcha se, he w ent to hi s ca r with Michae l behind him and that Michae l robbed some pe ople who

wer e wor king on a car in the parkinglot. He said Michae l ha d a blac k handg un. He sa id he aske d Michae l w hat he was doing and profe ssed never to ha ve been involved in a

ny thing o f t h i s nature

. H e s a i d t h a th e d i d

n o tw an t M i c h a e l t o s h o o t h i m an d t h a t h e dr o v e M i c h a e l h o m e a f t e r t h e r o b b e r

y. He sa id he did not associate w ith Michael af ter this incident, althoug h he also said he had g iven Michae l a ride two or

three times after

the robbe ry . The de fenda nt said in the statement that he w as-3-

six fee t, three inc hes tall and that Micha el associated with someone named “O.J.” who was two or thr e e inc he s ta lle r t

ha n th e de fe nd ant.

Detec tive Russell said that t he def endant maintaine d in his statement that he had no pr ior knowledg e of a

plan for the robber

y . He sa id the defe ndant said he ha d recei ved the g as money be fo re the ro bb e ry

. He sa id the de fe nd ant re pe a te dly de nie d h a vin g be e n invo lve d in oth e r r ob be ri e s.

Detec tive Rex Dave nport of the Metro Police Depa rtment testified that he inter viewed the defe ndant on J anuar

y 28 and that Detec tives J ason Rosalia and Chad Gish were prese nt for portions of the intervie w. He sa id this i nterviewtook place a bout a n hour afte r the interview conducte d by Detec tive Russell and Serg eant Stromatt. He sa id the defe n d an t told him he did not know that Michae l J ohnson was g oing to r ob the people at Mapco on J anuary 1. He sa id that the defe ndant initially denied involvement in any other robbe ry

but that he admitted beingpre s en t fo r ot her robber ies in Dec ember

2004 and re ceivingproce eds.

Detec tive Dave nport said the defendant admitt ed his participation with Mi chae l J ohnson and Keith Fr ierson in a r obbery at Turtle Cre ek Apa

rtments about two miles from the Mapc o on Nolensville Road. He sa id the defe ndant admitted that he dr ove the other two men to the apa

rtment complex in his g r e e nCa d il la c an d th a t Jo h n s o nr o b b e d

a H is p an ic ma

na t gu np o in t. H e s a id

th at afte r this a dmission, the defe ndant was not que stioned ag ain about the Ma pco robbe ry . He sa id the defe ndant re ported that he had bee n the driver in another r obbery

at an a partment c omplex near

the zoo and at a “me x ican c lub.” He sa id the defe ndant ad m i t t ed h aving bee n the driver for other robber ies in Dec ember
, “[m] ay be five or six ” total. He said the def endant c laimed to have r ece ived le ss t ha n $ 10 0 to ta l f

or his pa rt ic ipatio n in

the va ri ou s r ob be ri e s. He te sti fi e d th a t w ithrespect t o one of the robberies ot her than the M apco robbery
, the defendant admitt ed that he knew what wa s g oing to ha

ppen.

Detec tive Dave nport said that he lea rned in the inve stigation that the defe ndant had owne d his gr een Ca dillac for a

short period of time, having pur chase d it in the middl e to latter p ar t of No ve mbe r and havin g ha d it fo r a bo ut t wo mon ths be fo re it w a s r e po sse sse d. He sa id t he re wa s a second g ree n Cadillac owne d by a suspec t’s roommate. He said he lear ned that the gun used in the robber ies was a

BB g un. He sa id the defe ndant denied having a g un or eve r g etting out of the ca r duri ngthe ro bb e ri e s.

Th e de fe nd ant t e sti fi e d th a t he wa s twe nty y e ars old in Janu ary 20 05

. He sa id t hat he and his partne r, Bo b b y S h i ft er, ha d a re cordingstudio where the y rec orded hip hop music. He said that althoug h the studio was not open to the public, some pe ople wer e allowed t o p ay t o re cord at the
stu dio . H e state d th a t on

Janu ary 1, Mic ha e l J oh ns on and “ his so -c a lle d g ro up ” of thr e e oth e rs c a me to t he stu dio to re c or d. He sa id that he kn e w John so n fr om havin g a tte nd e d the same sc ho ol a s h im in the seventh and eig hth g rade s but that the y wer e not f riends. The defe ndan t s t at ed t h at afte r J ohnson and his friends f inished rec ording , J ohnson asked him i f h e wo u ld give J ohnson a ride ho me . H e sa id t

hat he a g re e d a ft e r Joh ns on g a ve him $1 0 f or g a s. He sa id t

hat th e y sto pp e d at a Ma pc o o n th e wa

y and tha t he bo ug ht a

c ig ari llo , w e nt t o th e bathr oo m, and we nt to his c ar. He sa id-4-

he had f org otten about g oing to the bathroom when he spoke to the police. H e blamed his memory la p s e o na s tr o k e h e h a d

in th e s e v e n th

g r a d e

. H e s a id

th a t a b o u t t h ir ty

- f iv e o r f o rty s e c o n d s a f

te r he g ot into his car , he sawJ ohnson committi ng the robbe ry

. He state d that althoug h he did not deny having been w ith J ohnson on o t h er o cc as ions when robbe ries took place , he wa s surprised by J ohnson’s ac tions because they had both bee n in Mapco a nd would have be en reco rd ed by the

se c ur ity c a me ra s. He sa id that if he ha d kno wn John so n wa s g oin g to c omm it a ro bb e ry , h e wo uld have not g one inside Mapco and shown his f ace , or he w ould have at least put his hood on or kept his head down. The defenda nt claimed that Mr. Sosa’s te stimony was inac curate when Sosa te stified that th e ro bb e r ha d co me to the c ar an d ope ne d the c ar doo r b e fo re the ro bb e ry . H e sa id t hat he did not know why he had not dr iven off and left J ohnson and that he wished he ha d. He sa id he was ma d at J ohnson and told him that they would be ca

ug ht beca use t hey would be on tape in the Mapco. The de fe nd ant a c kn ow le dg e d h a vin g dr ive n Joh ns on and “ Ke ith ” to r ob be ri e s in mid -D e c e mbe r w ith advanc e knowledg e of w hat was to take place and said that he g ot caug ht in the peer pressure of appea ring “har d core .” He admitted that he had driven for robber ies at Turtle Cre ek Apa rtments, a “mex ican c lub,” and “ Maple Cre st.” He sa id there w as one oc casion, a s well, when he allowed J ohnson to borrow his ca

r.

The de fenda

nt testified that he talked to the p o l i ce voluntarily when he hear d they

wer e looking f or him. He said that he denied that he had known J ohnson was going to commit a robber y at Mapc o and that he had lied about his involveme nt in the other robber ies. He sa id that when the po lic e imp lie d th a t th e y

we re inv e sti g a tin g him fo r ab ou t twe nty ro bb e ri e s, he de c ide d to a dmi t th os e in which he wa s involved.

T h e d ef en d an tad m i t t edo ncr o s s -e x am i n at i o n t h at h e di d n o tb u y gas at M ap co ev en t h o u gh he nee ded g as. He admitted he parke d near the Hispanic victims, rathe r than at the g as pumps. He said that all of the pr evious robber y victims had been H ispanic, as we ll. He denied tha t there had been a ny discussion of targ eting Hispanics, howe ver.
Stella Thompson testified that she was the defendant’s mother. She said that she has know n the def endant to be a t ruthful person. She admitted on cross-e x amination that the def endant wa s not liv ing wi th he r in Janu ary 20 05

. She sa id sh e wa s awa re that the de fe nd ant “ wa s no t com pl e te ly honest” with the police

.

After rec eivingthis proof, the jury found the de fenda

nt not guilty

of the c harg ed offe nses of two counts of ag g ravated robbe ry of Ruben Sanche z and J ose Sosa. I t found him guilty of two

c o u n t s o f f a c i l i t a t i o no f

a g g r a v a t e d

r o b b e r y.

I

The de fenda

nt challeng es the suff

iciency of the c onvicting evidenc e. Our standa rd of r eview when the suf

ficienc y of t he evidence is questioned on appea l is “whe ther, after viewing the evidenc e in the light most favor able to the pr osecution, any rational trier

of fa ct could have found the essential

e le me nts of t he cr ime be y on d a re a so na ble do ub t.” Jac ks on

v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S.-5-

Ct. 2781, 2789 (1979). This means we do not rewe igh the evidenc e but pr esume that the jury has resolved a ll conflicts in the testimony and dra wn all re asonable infere nces f rom the evide nce in f

avor of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabba g e, 571 S.W .2d 832, 835 (Tenn. 1978)

.

The de fenda

nt was convicted of two counts of f acilitation of ag g ravated robbe ry

. Ag g rava ted robbe ry , as relevant to this appea l, is “the intentional or knowingtheft of pr operty from the pe rs on

of ano the r b y

vio le nc e or

pu tti ngthe pe rs on

in f e ar” tha t is “ [a]c c omp lis he d wi th a de a dly

we a po n o r b y dis pla y of any art ic le us e d or fa sh ion e d to l e a d th e vic timto r e a so na bly be lie ve it t o be a de adly

wea pon . .

. .” T.C.A. §§ 39-13-401, -402. “A person i s criminally responsible for

the fac ilitation of a felony , if, knowing that another intends to commit a spe cific f elony , but without the intent require d for c riminal responsibility under [Tenne ssee Code A nnotated sec tion] 39-11-402( 2), the per son knowing ly furnishes substantial assistance in the commi ssion of t he fe lony .” I d. § 39-11- 403(a)

.

The de fenda

nt argues that the state’ s proof of the offe nses is insufficient bec ause the re w as no proof the de fenda

nt participate d in the robber y . Mr. Sosa could not identify the def endant, a nd did not see whether the defe ndant’s companion g ot ba ck into the car or talked to the defe ndant bef ore committing the robbery

. Mr. Sanche z did not testify that he sawthe companion’ s g un and that he lost prop er t y . I n the light most favor able to the state , the evidenc e re flec ts that the defe ndant admitted his prese nce at the crime scene with Michael Johnson. He admitted that he saw Johnson rob the victims at g unpoint, which was a lso witnessed by Mr. S osa and Ms. Ponce. The defe ndant had bee n involved in prior robbe ries i n wh i ch h e was the driver a nd J ohnson was the pe rson who approa ched the victims, and he had r ece ived proc eeds of the prior r obberie s knowing them to be such. The jury had the opportunity to observe the defendant’s demeanor when he testified and wa s within its province in rejec ting the cre dibilit y of his te stimony that he had no knowledg e that Johnson was g oing to r ob the victims. Further , the evidenc e is uncontrove rted that the defenda nt observed J ohnson rob the victims but allowed Johns on to g et i nto his car a nd drove Johnson from the scene

. We conclude that the evidenc e is sufficie nt to support the def endant’ s convictions of fa cilitation of

a g g r a v a t e d

r o b b e r y.

II

Th e de fe nd ant a

rgue s th a t th e tr ia l c ourt

e rr e d in a dmi tti nge vid e nc e of oth e r c ri me s, wr on g s,

or a c ts p ur su ant t o T e nn e sse e Rul e of Ev ide nc e 40 4( b) . B e fo re tr ia l, th e st ate fi le d a mot ion to introduce e vidence of the de fenda nt’s statements a b o ut previous robbe ries, the de fenda nt’s prior kn ow le dg e of

his c o- de fe nd ant’ s in te nti on s, and his re c e ipt of

pr oc e e ds of

tho se ro bb e ri e s. Th e state soug ht to introduce this evidence to show the defe ndant’s i n t en t and prior know ledg e of his codefe ndant’s intent to rob the victims.

Tenne ssee Rule of E vidence 404(b ) p rohi bits the introduction of evidenc e of othe r cr imes

or a c ts, e xce pt w he n th e e vid e nc e of oth e r ac ts is re le va nt to a li tig a te d is su e , s uc h a s id e nti ty , in te nt,-6-

or mot ive , a

nd its pr ob a tiv e va lue i s no t ou tw e ig he d b y the da ng e r o f u nf a ir pr e jud ic e . T he ru le
state s:

Evidence of other c rimes, wrong s, or ac ts is not admissible to prove

the c ha ra c te r o f a pe rs on in o rd e r t o s ho w a c tio n in c on fo rm ity

wi th the charac ter tra it. I t may , howeve r, be a dmissibl e for some other purpose. The conditions which must be sati s fi ed bef ore a llowing such evide nce a

re:
(1) The court upon re q uest must hold a hear ing outside the jury ’s prese nce; (2) The co u rt must determine that a material issue e x ists other than

c on du c t c on fo rm ing wi th a c ha ra c te r tr a it and mus t up on

re qu e st s ta te on the re cord the materia l issue, the rul ing a nd the re asons for admitting the e vidence ; (3) The court must find proof of the other crime, wrong
, or act to be clea r and c onvincing ; and (4 ) T he c ourt

mus t e xclu de the e vid e nc e if its pr obati ve valu e is outweig hed by

the dang er of

unfair pr ejudice.

Tenn. R. Evid. 404(b). We re view a tr ial court’s r uling on e vident i ar y

matters under

Rule 404(b) for a buse of discr etion, provi d ed t h e trial court ha s substantially complied with the proc edura l prer equisites of the rule . State v. DuB ose, 953 S.W.2d 649, 652 (Tenn. 1997). I f the c ourt did not

su bs tanti a lly

c omp ly wi th t he pr oc e dure , it s d e c is io n is no t e nti tle d to de fe re nc e by the a pp e llate court. See id. at 653.

We note
, first, that the defe ndant has failed to inc lude the transcr ipt of the pretria l hear ing that was he ld on the state’s motion. The re cord r efle cts that the trial co u rt h ea rd the motion on November

21, 2005. Although the technica l rec ord conta ins a written order disposing of the motion, the transc rip t o f t h at h ea ring has not bee n made pa rt of the r ecor d. We note that the def endant alleg ed in his second motion for a n ex t ension of time for f iling his appe llate brief

that he had inadver tently failed to re quest the Nove mber 21, 2005 he aringtranscr ipt and that “[t]he omis sion of the tr ans c ri pt o f t

his he ari ngwi ll s ig nif

ic antl y pr e jud ic e the a

pp e lla nt’s chan ces to pr e va il o n th is issue

. ” This court gr anted the motion for a second e x tension of time, y et the def endant did not supple m ent t he re cord w ith this err oneously excluded transcr ipt. The appe aling party has the ob lig a tio n o f p re pa

ri nga re c or d that inc lud e s tr ans c ri pts of e vid e nc e and pr oc e e din g s “ ne c e ssa

ry to provide a fair, a ccur ate, a

nd complete a ccount of

what tra nspired” w ith re s p ec t t o the issues on appea l. T.R.A.P. 24( b); State v. Taylor, 992 S.W .2d 941, 944 (Tenn. 1999) . I n the abse nce of an

a pp ro pr ia te re c or d, we mus t pr e su me that th e tr ia l c ourt ’s de te rm inatio ns are c or re c t. S e e , e .g ., Sta te v. Meeks, 779 S.W.2d 394, 397 (Tenn. Crim. App. 1988).

We note that the t rial cour t found that the video re cordingof the de fenda nt’s statement to the police, which was over t wo hours long, c ontained many portions which wer e unfa irly prejudicia l or-7-

ir re le va nt. Th e c ourt

ru le d th a t t he ta

pe wa s in a dmi ssi ble in i ts c omp le te fo rm bu t th a t c e rt a in portions of it might be a dmissibl e, subjec t to determination afte r re ceipt of the trial evidenc e. The court identified those portions in detail by the time shown on the videotape s and the subjec t matter, and it identifie d its ba sis f

or ruling that eac h portion might bec ome admissible dependingon the trial evidenc e. Af

ter pa rt of the state ’s proof, the tr i al court ruled that the portions of the vide otapes

wo uld be a dmi ssi ble , n oti ngsp e c if ic a lly the de fe nd ant’ s c ro ss- e xami natio n o f D ete c tiv e Rus se ll about the def

endant’ s denial of involvement in planning
, rec eipt of proc eeds, a nd intent to rob the

v i c t i m s

. T h e c o u rtf

o u n d t h a tt h e d e f

e n d an t ’ s “ kn o w l e d g e an d i n t e n tar e , c l e ar l y , a t i s s u e

. ” In

r e s p o n s e t o t h e t r i a l c o u rt ’ s r u l i n g , t h e d e f

e n d an t m o v e d t h e c o u rt t o a d m i tt h e t a p e s i nt h e i r

e n t i r e t y. The de fense stated that it maintained its objection to the 404(b) motion but that if some of the tape s

wer e admitted, it pref

err ed that the e ntirety

of both tapes be admitted. After taking the matter unde r

a dv ise me nt o ve rn ig ht, the tr ia l c ourt ru le d th a t th e ta

pe s w e re “ too pr e

jud ic ia l” to b e pla

y e d in the ir entirety

. The court stated t hat i ts ruling relied on Te nnessee Rule of Evidenc e 403, not Rule 404(b). I t ruled, howe ver, that the defe nse would be a llowed to broade n its inqui ry based upon the portions of the ta pe s w hic h the c ourt

ha d r ule d a dmi ssi ble . T he de fe nd ant t he n p ro c e e de d to pr e se nt a de fe ns e tha t e mbr a c e d t h e p r i o r r o b b e r i e s i n d e t a i l an d p o s i t e d t h a t t h e d e f e n d an t ’ s a d m i s s i o n o f h is involvement in the ear lier robbe ries lent cr edibility to his denial of prior knowled g e and intent on J anuar y 1, 2005, for the r eason that if the defe ndant had the r equisite k n o wledg e and intent on Janu ary 1, he wo uld

have a dmi tte d it

to t he po lic e , ju st a s h e did

wi th s e ve ra l e arl ie r r ob be ri e s.

We hol d t h at t h e trial court did not abuse its discretion in admitti ng the evidenc e. The defe ndant admitted his prese n ce at the cr ime scene . The c entra l issue was whe ther the de fenda nt knew his compa

nion was g oing to rob the victims. During the state’s c ase- in-chief , the def endant

a tte mpt e d to de mon str a te by his c ro ss- e xami natio n o f D e te c tiv e Rus se ll that th e de fe nd ant h a d s a id in his stat ement to t he police tha t he did not know of his companion’s plan to r ob the victims and

was a n unwitting par

ticipant in the crime. When the defe ndant place d his knowledg e and intent at iss ue, ev ide nc e of

the de fe nd ant’ s k

no wi ngpa

rt ic ipatio n in

pr e vio us c ri me s w iththe same companion bec ame hig hly probative. The trial court complied with the procedur al pre requisites for admission of the evidenc e. The court det er m i n ed at t rial that the probative value of some of the limit ed evide nce outwe ighe d any unfair pr ejudice to the de fenda nt. The c ourt imposed limit ations desig ned to exclude unfa irly prejudicia l information from the de fenda nt’s statement to the police. T h e c o u rt i n s tr

u c te d th e ju r y o f th e li mi te d p u r

p o s e f o r w h ic h th e e v id e n c e c o u ld b e c o n s id e r e d

. We hold that the court a cted within its discretion in allowing the evidenc e.

III

Finally , the def

endant c halleng es the eff

ective ten-y ear sentenc e he rec eived. He c laims that he wa s improperly

sentenc ed to enhanc ed, five-y ear sentenc es and that he should not have re ceive d

consec utive sentenc es.
We beg in with a revie w of the e vidence prese nted at the se ntencing hear ing. The de fenda nt’s stepfathe r, Kenda ll Thompson, testified that the def endant wa s living in the home the w itness shared wi th h is w if

e , who wa s th e de fe nd ant’ s mo the r, and his so n. He sa id t

he de fe nd ant w a s li vin g wi thW e n ot e t h at on J u n e 7, 2005, t h e G en er al As s embl y a men ded T en n es s ee C o d e Ann ot at ed s ec t i on s 40- 35- 1

1 0 2 (6), - 1 1 4
, - 2 1 0
, - 4 0 1

. See 2 0 0 5 T enn. P ub

. A ct s ch. 35 3
, §§ 1, 5, 6, 8. H o wever, t he a m e n d e d c o d e sect i o ns are ina p p lica b le to th e d e fen d a n t’s a p p e a l. T h e d e fen d a n t w a s se n te n c e d a fter the c h a n g e in the se n te n c ing law s to o k e ff e c t, but t he r ecor d do es not ref l ect t hat t he def

endan t s i gn ed a wa i ver of hi s ex post f

act o prot ect i ons t o be s ent enc ed un der
t he am en d ed p ro visi o ns. S ee T .C .A

. § 4 0

- 3 5

- 2 1 0
, C o m p i l er’s N o t es.

-8- his g ra ndmot he r at the tim e of the of

fe ns e s. He sa id the de fe nd ant h a d a nig ht- sh if

t jo b, bu t he a lso mentioned the defe ndant having lost a job. He said the defe ndant had a six -month-old daug hter. He

sa id the de fe nd ant ha d a str ok e wh e n he wa s tw e lve or thi rt e e n, wh ic h a ff e c te d his me mor

y and his

a bil ity “ to p ro c e ss i nf

or ma tio n v e rb a lly .” He sa id t he de fe nd ant h a d n e ve r b e e n in tr ou ble a s a juvenile and had not bee n in trouble as an a dult until “a c ouple of months span” w hen the de fenda nt

was a rre sted for dr iving unde r the influenc e and w as i nvolved i n the robberies. The witness said that he wa s a school teac her, that the defendant’s mother was a retire d librarian, and that they would be

su pp or tiv e of the de fe nd ant’ s ef

fo rt s if h e we re g ive n a

no n- inc arc e ra

tiv e se nte nc e . T he c ourt

a lso

rec eived the pr esente nce r eport a nd the def

endant’ s pretria l statements to the pol ice as evidenc e at t h e s en t en ci n g h ea ri n g.

When a defe ndant appe als the leng th or manner of ser vice of a sente nce imposed by

the trial court, this court c onducts a de novo re v i ew of the re cord w ith a presumption that the trial cour t’s de te rm inatio ns a re c or

re c t. T .C. A. § 4 0- 35 -4 01 (d ). Ho we ve r, the pr e su mption o f c or re c tne ss i s “conditioned upon the a ffirmative showing in the rec ord that the trial c ourt consider ed the sentenc ing principles and a ll releva

nt fac ts and circumstance s.” S tate v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991). The bur den is o n t h e ap p ea l ing pa rty to show that the sentenc e is improper. T.C.A. § 40-35-401( d), Sent’gComm’n Cm ts. This means if the t rial court followed the statutory sentenc ing proce dure, ma d e f

in d in g s o f

f a c t t h a t a r e a d e qu a te ly

s u p p o rte d in th e r e c o r d
, an d

g a v e d ue consideration and proper

weig ht to the fac tors and princ iples rele vant to se ntencing under the 1989 SentencingAct, we may

not disturb the sentence even if a differe nt result were prefe rre d. State v. Fletc her, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

I n conductinga de novo r eview, w e must consider ( 1) the e vidence , if any , rec eived at the trial and sente ncing hear ing, ( 2) the pre sentenc e re port, (3) the principles of se nten ci n g and

argume nts a s to se nte nc ing a lte rn a tiv e s, (4 ) the natur e and c ha ra c te ri sti c s o f t

he c ri min a l c on du c t, (5) a ny mitigating or statutory enhanc ement fac tors, (6) any statement that the de fenda nt made on his own behalf, and (7) the pot ential for reha bilitation or t reatment. T.C.A. §§ 40-35-102, - 103, - 210; see Ashby , 823 S.W .2d at 168.

The defe ndant argues, first, that the trial court err ed in imposing sentenc es which w ere enhanc ed above the pre sumptive mini mum s en t en ce b ased upon the defe ndant’s prior history of criminal activity

. See T.C.A. § 40-35- 114(2) ( 2003) (amended 2005)

. The de fenda nt claims that 1 the trial cour

t violated Blakely

v. Washington, 542 U.S. 29 6 (2 0 0 4 ), in enhanc ing his sente nces absent prior

convictions or a jur

y finding s of the prior c ri m i n al ac t i v i ty relied upon f

or sentenc e enhanc ement.-9-

We a re no t inc lin e d to gr ant the de fe nd ant’ s re qu e ste d re lie f. B lake ly do e s, ind e e d, lim it a
tr ia l ju dg e ’s a

bil ity to e nh anc e a

de fe nd ant’ s se nte nc e . What the de fe nd ant ove rl oo ks , h ow e ve r, is that Blakely ’s limitation encompasses not only fac ts not found by

the jury
, but f

acts not a dmitted by the def endant, a s well. I d. at 303-04; see A pprendi v. Ne w J erse y , 530 U.S. 466, 488 (2000). In the prese nt case , the defe ndant argues that his “ statements to police [reg ardingthe prior r obberie s] were confuse d and vague.” H e neg lects to addre ss, howeve r, t he fact t hat he admitted under oath at trial that he had be en involved in the De cembe r robber ies. Ba sed upon the def endant’ s sworn admissions
to prior robberies, we hold that the trial cour t properly enhanc ed the de fenda

nt’s sentenc es above the presumptive minimum in t he ra ng e.

The de fendan t als o claims that the trial cour t erre d in imposi ng consec utive sentenc es. Consecutive sente ncing is guide d by Tenne ssee Code A nnotated section 40-35- 115(b), whic h states in pertinent par

t that the court may order

sentenc es to run conse cutively if it finds by

a pre pondera

nce of the e vidence that the def endant is an “ offe nder whose record of criminal ac tivity is ex tensive” or a “da ng erous of

fende r whose be havior indicates littl e or no reg ard for human life, and no hesitation about committing a c rime in which the risk to huma n life is hig h.” T.C.A. § 40-35- 115(b)( 2), (4)

. F or da ng e ro us of

fe nd e rs , “ c on se c uti ve se nte nc e s c ann ot be imp os e d un le ss the te rm s re aso na bly relate to the sever ity of the offe nses committed a nd are nece ssary in or der to pr otect the public from further serious cr iminal conduct by the def endant.” State v. Wil kerson, 905 S.W .2d 933, 938 (Tenn. 1995); see State v. L ane, 3 S.W.3d 456, 461 ( Tenn. 1999). Rule 32(c) (1) of the Te nnessee Rules of Criminal Procedure require s that the trial court “spec ifically rec ite the rea sons” behind its imposi tion of a c onsecutive se ntence

. See State v. Donnie Thompson, No. M2002-01499- CCA-R3-CD, Maury County , slip op. at 5 (Tenn. Crim. App. Mar . 3, 200 3 ) (r ev er s i n g the trial cour t’s imposit ion of

consec utive sentenc ing be cause it failed to make a finding under Tenne ssee Code Annotated se ction 40-35-115( b) and the rec ord did not suppor t a conc lusion that the defenda nt met the consec utive
sentenc ing pr ere quisites).

I n th e pr e se nt c a se , th e c ourt ma de the fo llo wi ngob se rv a tio ns on the re c or d wi th re sp e c t to

co n s ec u t i v e s en t en ci n g:

Now, let’s g o to the i ssue about conse cutive or c oncurr ent sentenc es. I

have to f

ollow 40-35-115, which outl i n es t h e – the particula r rea sons that I could g ive consec utive sentenc es. Ther e ar e

on ly tw o th a t mi g ht a

pp ly

. An d th a t is that he is a n o ff e nd e r w ho se

rec ord of c riminal activity is ex tensive or, f

our, that he’ s a dang erous offe nder w hose beha

vior indicates little o r no reg ard f or human life

and no he sit a tio n a

bo ut c omm itt ing a

c ri me in w hic h th e ri sk to human life is hig h.

Clearly , when you point a g un at – at people , that’s a se rious of fe ns e . N ow , ju st be c a

us e it’ s a se ri ou s of

fe ns e do e s n ot n e c e ssa

ri ly

me an th a t y ou

g e t c on se c uti ve se nte nc e[ s]

. Th is i s a fi ve or six of f e n s e s

. S o i t ’ s a p r e t t y e xt e n s i v e c r i m i n a l h i s t o r y j u s t fr om t his

.-10- And thes e are all Ag g ravated Robberies. H e mig ht have be en

c on vic te d o f F a c ili ta tio n, bu t he wa s in vo lve d in tho se c ri me s.

So I ’m g oing to f

ind that the – that the sentenc es nee d to run

consec utive, that the a ggre gate ter m relate s to the sever ity of the offe nses. I t’s nece ssary

to protect t h e public fr om further serious

c on du c t f ro m th e de fe nd ant, th ou gh he has – h is l if e up un til thi s point, but these are just ve ry serious offe nses. And I can’ t ignor e the – th e inc re dib le vic timse le c tio n in thi s c a se . A nd

that is , in div idu a ls who ar e her e, may

be, leg ally

or illeg ally

being the victims . Imean, they are just in – and – and it’s done for the sole purpose of they won’ t r e p o rt th e c r im e o r th a t th e y w o n ’ t b e h e r e to f u rther a ny investigation. So – a lo t o f Hi s p anic victims don’t have bank

a c c ounts , h a ve mon ey on th e m f ro m – b e c a

us e the y g e t pa id c a sh b ec au s e p eo p l e d o n ’t wa n t t o p ay t h em b y ch ec k

. Al l o f t h es e t h i n gs sort of filter into being a gre at victim selection, but it’s also very da ng e ro us

. Upon re view, we hold that the trial court did not er r in imposing consec utive sentenc es. The

re c or d r e fl e c ts that th e de fe nd ant ha d admit te d his inv olv e me nt in fiv e or six ot he r a rm e d r ob be ri e s. The trial evidenc e supported a conclusion, despite the defe ndant’s protestations to the contra ry , that the def endant kne w that Michae l J ohnson targ eted Hispa nic individuals for ar

med robbe ries and ha d knowing ly

participated in sever al robbe ries as a driver. T he def

endant c ould offer

no more compelling rea son for his involvement in the crimes than pee r pre ssure to appe ar “ hard c ore.” The trial court pr operly

conclude d that consec utive sentenc es wer e re asonably related to the seve rity

of the of fe ns e s and

we re ne c e ssa

ry to p ro te c t th e pu

bli c fr om t

he de fe nd ant.

I n considera

tion of the fore g oing a

nd the re cord a s a whole, the judgme nts of the trial cour t

are aff irmed.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE