# FILED
June 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-9703-CC- 0 009 9 ) vs. ) Montgomery County ) DONALD GENE

BROOKS, ) Hon. John H. Gasaway,Judge ) Appellant. ) (First Degree Mur der, ) Especial ly Aggravate d Robbery, Theft, Setting Fire to Persona l Propert y)

FOR THE APPE LLANT: FOR THE APPELLEE: GREGORY D. SMITH ( on appeal) JOHN KNOX WALKUP Attorney At Law Attorney General & Repor ter One Public Sq., Ste. 321 Clarksville, TN 37040 JANIS L. TUR NER Counsel for the State EDWARD E. DEWER FF (at trial) 425 Fifth Ave. N., 2d Floor Attorney at Law Nashville, TN 37243-0493 103 S. Third St. Clarksville, TN 37040 JOHN W. CARNEY, JR. District Attorney General ARTHUR BI EBER Asst. District Attor

ney General 204 Franklin St., Ste. 200 Clarksville, TN 37

040

OPINION FILED:________________ AFFIRMED CURWOOD WITT, JUDGE1 Tenn. Code Ann. § 39-13-202(2) (Supp. 1994) (am ended 1995).
2 Tenn. Code Ann. § 39-13-403 (1997).
3 Tenn. Code Ann. § 39-14-103 (1997).
4 Tenn. Code Ann. § 39-14-303 (a)(1) (1997). 2 OPINION The defendant, Donald Gene Brooks, stands convicted of first degree felony murder, 1 especially aggr avated robbery, 2 theft of property valued ov er $1,000, 3 and sett ing fire to persona l propert y, 4 all related to the robbery and killing of Joseph J. Wisniewski. He recei ved his con victions fol lowing a jury trial in the MontgomeryCounty Criminal Cour t. Brooks is incarcer

ated in the Depar

tmen t of Correction serving his effectiv e sentence oflifeplus 27 years. In this direct appeal, Brooks challenges the sufficiency of the convicting evi dence a nd the length of sentence imposed . Having revie wed the rec ord and th e briefs of the pa rties, we affirm the judgment of the trial cour t.

At trial, the state's first witness was Fl oyd Byrd, who testified that he
w as working as a truc k driver on October 28,1994. That afternoon, he w a s tr ans porting a load of grain to Hopkinsv ille Elevator Company. As he traveled on Barge Point Road, he noticed a man ly ing on the side

of the road and saw the man
move his head. When he reached Hopkinsvil le Elevator, he told two employees to call 911.

Robert Kithtwas o ne of the men whom Floyd Byr d told about the victim lying on the side of the r oad. Kitht jumped in his v an and wentto the vic

tim, whom he found with a bleeding neck wound. He went to tell his boss to call 911 , then returned to try to ass ist the victim. Kitht tried to app ly pressure to stop the bleeding, but discontinued his efforts whe n the victim began choking. Kitht said this occurred around 4:00 p.m. Kitht recall ed telling the investigating authoritiesthat he3

and Jason Brown had seen a car load of people driving erratically that day. At trial, Kitht could not recall how many people were in that car.

ShellyHogue, a secretary at Hopkinsville E levator, go t off work around 4 p.m. on Octobe r 18. She recalled seeing a cream col or car speeding u p Barge Point Road. A white man with shoulder length, dark hair was in the car.

Dennis Minnick, an emergency medical technician, responded to the
scene. When he found th e vic t im, there was nothing he was able to do for Mr. Wisniewski.

Adeline Wisniewski, the victim's wife , left home for work about 8:30
a.m. on the date of her husband's murder. The victim was goi ng grocery shoppin g and had approximately $200 i n cash on his person. The victim owned a li ght beige 1985 Chrysler New Yorker with a handicap license plate. The car w as valued at $3,000 to $3,500.

Edwin Nelson Lunceford, an inmate in the Montgomery County Jail, testified under a conditional grant of immunity from prosecution. Lu nceford's immunity was conditionedupon his testifying truthfully, assisting i n the investigation of the victim's murder by wearing a "wire" around the defendant, and not havin g been the person who actually killed the victim.

Lunceford met the defendant at a bar called the Pi ckle Factory on October 28, 1994. He talked and drank with other patrons, including the defendant , Randy Heardman, Rosemary Devito and the victim. During the afternoon, the victim offered Heardman a ride home. InLunceford's opinion, the vi ctim wastoo drunk to dri ve, and Lun ceford convinced the vic tim to let him drive. The d efendant,4

Heardman, Lunceford and the victim left i n the victim's car. Afterstopping for a twelve-pack

of Bud Light and dropping Hear dman off at his home, Lunceford, the defendant and the victim sto pped on Barge Point Road to relieve themselves. Lunceford, who was drivi ng, got ou t of the c ar and relieved himself. When he finished, he turned around and s aw the defendant holding the victim by his head with a knife to his throat. The victim ' s wallet was on the trunk of the car, and the defendant ordered Lunceford to get the w allet. Lunceford admittedhe punched the victim in the jaw. He claimed he wanted to knock the victim out so the victim would be unable to identify him. He was concerned about bein g identified because he
was on probation. Lunceford denied, how ever, that he andthe defendant had any prior plan to rob the victim. The defendant cut the victim's thr oat with a Buck knife.

With the defendant driving, Luncefor d and the defendan t left the vi ctim
on the side of Barge Poi nt Road. T hey went to "The Cut," w here the defendant boughtcrack cocaine. Then, th ey went to Ft . Defiance and smoked crack in the woods. After leaving Ft. Defiance , Lunceford and the Defendant went to C ooper Creek, where the d efenda nt threw the knife, the victim's w allet, and some of the wallet's contents by the creek bank. The men inspected the trunk of the victim's car and found four half gallo n cont ainers of whiskey, tw o cartons of cigarettes, a t ool box, an air pump, carburetor clean er, oil, and other contents. The defend ant gave Lunceford about $40 from the wallet as they were leaving. Thereafter, they took a ferryto Cumbe rland City, rode around, drank whiskey and went to Danville Bottoms. Lunceford asked the defendant why he had killed the victim, and the defe ndant said the victim could not identi fy them now. The defendant also talked about getting rid of the victim's car.

Some time later, Lunceford and the defendant returned to Cl arksville. Theywent tothe home ofConnie Gonzalez, the de fendant's girlfriend. They parked5

the victim's ca r under a b reezewa y of a ch urch building, Praise Center, near Ms. Gonzalez's home, doused the car in charcoal lighter, and set it on fire. Lunceford and the defendant drank alco hol and smoked crack throughout the n ight in an upstairs room at Ms. Gonzalez's home. The defendant hid the victim's keys i nside a stuffed animal

in the room.

Lunceford did not in itially rep ort the cr imes to la w enf orcement because he was afraid of the defendant. He claimed the defendant threatened him and his family with harm if he said anything.

Shortlyafter

Octo ber 28, the de

fendant came to Lunceford's h ome three to four times. He w anted to "work up a story" about the crimes. Lunceford told the defendant that the two needed t o say they were not

around each other.
Later, after Lunceford came forward, he ini tiated conversations w

ith the defendant while wearing a "wire" which al lowed transmission and t ape recording of the conversations. Dur ing the first s uch conve rsation, the defendant admitted killing the victim; however, the wire did not work. In subseque nt conversations, the defendant made statements such as "loose lips sink ships" and "I don 't know nothing."

At the time of the defe ndant's trial, Lunceford w as serving time for felony convictions of robbery and forgery, and he adm it ted to numerous past offenses of driving u n der the influence, driving on a revoked license, and "simple assaultsor domestic disputes ." Additi onally, he denied talking with David Mitchell,
a former cellmate, about the case. He denied having received any money from law enforcement for his assistance in the investigation.6 Connie Go nzalez, the defendant's girlfriend on Oc tober 28, recalled Lunceford and Brooks coming to her home the night of the fire at the chur ch near her house. The men were already in the house when the church st arted burning. Theyhad come in her bac k door, wh ich was 30 t o 40 yards from the church, and th eyhad beer and two half gall ons of whiskey with them. They left and t he n returned about ten minutes later. They were "happy" and "a littl e bit" in a hurry. The defendant told Gonzalez that if anyone came looking fo r him and Lunce ford, she should say they

had already left. The men spent the night in a room upstairs, where they drank and s moked crack.

Gonzalez

recalled having tel ephoned the Pic kle Factory on the afternoon of October 28 and asked the defen dant to c ome to her house. He told her "they" we re going to drink a couple more beers, drop Heardman off at his house, and then they

would be over. Later, she cal led Heardman's house, and he tol d her that "they" had just left an d should be at her house at any minute. Th e defendant and Lunceford arrived an hour and a half to two hours later

.
Finally, Gonzalez

recalled Brooks and Lunceford first pulling up in the church parking lot behind her house in a car she thought mig ht have been red. When they came back the second time, they did not have the car.

Detective Gary Hodges of the Clarksville Police Depart ment was in t he vicinity of F t. Defiance on October 28. He saw a large cream or white vehicl e occupied by two white m ales. The car ha d a handicap lice nse tag.

Detec tive A lan Charvis of the Clar ksville Police De partment was assigned to investigate the victim's homicid e. He had no suspect until another officer, Marty Watso n, brough t Edwin Lunceford to him in April 1995. Lunceford5 At trial, o nly portio ns of the tapes were played. T he entire tapes ha ve

been preserved in the rec ord. However, w

e have not been provided w ith any indication of which porti ons of the tapes were playe d, other than some oblique references via the testimony of Detective Charvi s. The court has review ed the entirety of the tapes in order to identify those portions to which Detective Charvis referred in his testimony . In the future, parties wh ose evidence contains excerpted portions of au dio or vid eo recordin gs may wish to make some provision for appellate r eview of only that por

tion of the recording heard or viewed by the jury. 7 demanded immunity from prosecution and the presence of a representativ e of the district attorney general's office as prerequisites to making a statement. After the conditional immunity was grant ed, Lunceford led Charvis first to Danville Bottoms, where nothing was found. Later, Lunceford told Charvis that the location where the knife, victim's wallet and walle t conten ts had been discarded was Cooper Creek. Nothing was found at Cooper Creek; however, there had been hi gh waters since the victim's killing in October. Lunceford also told Charv is about a tool box taken from the victim's car, w

hich Lunceford had taken home and enli sted the help of a
n eighbor in pawning. Charvi s recovered the tool box from the pawn shop. Luncefo rd als o gave Charvis information which led to the discovery of Connie Gonzalez and Gary H eardman, both of whom were int erviewed.

Lunceford agreed to wear a w ire around the defendant. Charvis played portions of three of the taped conv ersations from th e wire for th e jury. 5 In them, the defendant variously denies having killed the v ictim and knowing any

thing about the crime. Some of his protestations of ignor ance are accompanied by laughter. At one point, Lunceford says he is just as guilty as the defendantand that the defendant is in denial. The defendant repeats, "I'm in denial," and laughs. At another point , fo llowing Lunceford's pr ofession of concern because his prob ation officer has been by his house to notify him that the police want to talk to him about t he victim's murder, th e defendan t reassures Lunc eford that th ere is nothing t o6 It appears the defendant was suspi cious of Lunceford. On one of the

tapes, the defendant is heard asking Lunceford to raise his shir t and turn around. Lunceford testified the defendant searched hi m but failed to discover the w ire. 8 worry about an d he shou ld simply f ollow a plan they talked ab out the p revious da y. 6

Charvis also testified tha t the call for ass istance for th e victim at Barge Poi nt Road came a t 4:16 p.m., and the call for the fir e at Praise Center came at 7:48 p.m.

Lorena Parr, an employee of The Money Tree pawn shop, verified that
a tool box

pawned on December 22, 1994 was later recovered by Detective Charvis. The identity of the person w ho pawned the tool box was consistent w ith the information Lunceford gave Detective Charvis.

Detective Scott Cutler of the C la rksville Police Department assisted in processing evidence at Barge Point Road. Two beer cans were recovered at this
scene. The photographic exhibits offered in conjunction with Detective Cutler's testimony show two Bud Light cans.

Doctor Charles Harlan, assi stant county medical ex aminer and consulting forensic pathologist for Montgomery County, co nducted an autopsy of the victim. Among the victim's injurie s was a 6.60 inch inci sion of the neck and trachea, wh ic h caused the victim's death as he lost blood and his lungs filled with blood. Doctor Harlan estimated that the victim's death occurred between 5 and 15 minutes afterthe incision was infli cted. He opined that the incision was consi stent with one made with a Buck knife. The victim also had bilateral fractures of the mandi ble, or jaw bone, and lacerat ion s to the lips, which w ere inflicted at or near the time of death. The mandible fractures were consistent with the victim having been struck7 Nelson admitted convicti ons of larceny from a person, g rand larceny and

escape. At the time of his testimony, he was facing breach of tr ust charges for failing to return to the N ashville Community Se rvice Center after hav ing made parole. 9 with a fist.
Special Agent Hoyt Philli ps of the Tennessee Bureau of Investigation processed the Bud Light cans for latent fingerprints and determined that

the prints obtained from the cans matched an existing record of the defendant's f ingerprints.

Special A gent Anthony Clark of the Tennessee Bu reau of Investigation, formerly of theCla rksville Police Department, searched Connie Gonzalez's home with other officers. They discov ered a Spuds McKenzie stuffed animal which had been torn or cut. A key ring and keys belonging

to the victim were found inside the stuffed anim al.

Mike Nelson, a convicted fe lon incarcerated in the De partment of Correction, 7 testified he was in the Montgomery County Jail on June 7, 1996. He and the defendant shared a cell. The defendant tol d Nelson he might begoing to prison because he had killed a man . The de fendant said he had cut the victim's throat while another man hel d the victim. The defendant and his companion took the victim's car, and later they burned it at a church. They stashed th e victim's car keys in a stuffed animal ata girl's house. Nel son also testified that the defendant told him the only evidence against the defendant was his companion at the time of the crime. He identif ied this man as " Tony" or "Eddie " or something similar . The de fendant said "Tony" or "Eddie" had been w ired by law enforcement,so th e defendant had n ot talked to him about the crime. The defendant wished he had killed his companion, as well.8 The trial took place in Aug ust 1996. 10 In support of his defense, Brooks presented the testimony of Melissa Ann Springfield Conner. She testified that she had gotten to know Edwin Lunceford about a year and a half earlier. 8 Lunceford told the witness and two of her coworkers that he was

involved in a murder

trial. The police wi red him and gave him moneyand drugs to go into a bar, where hewas to "party" with a man and get him sufficiently "messed up" to confess. Lunceford said the other person had committed the crimes, and he had only gone along with him. Specifically, Lunceford told the witness that the other man had cut the victim's throat. He also admitted that they had burn ed a car at a church. The witness believed there was more to the story than Lunceford told her.

Jason Brown, an employee of Ho pkinsville Elevator C ompany, recalled that shortly before the v ictim was discove red on Barge Point Road he had
se en an older model, light, y ellowish car come dow n the hill, turn around, and go backup the hill "kind of fast." There were more than two people in the car, but he could no t say how ma ny.

Debbie O'Bryan, a former bartender and mana ger of the Pickle Factory, recalled the defendant, Lunceford , the victim and others being at the Pickle Factoryon October 28. However, she did not recall Hear dman being there tha t day. Lunceford was in and out all day . The defendant left at times, but was never gone formore than 5 to 10 minutes. O'Bry an left around 2:00 p.m. to get cigarettes

and chewing gum for the bar. She was gone approxi mately 45 minutes. The defendant
was at the bar when she left and w as there when she

returned. O'Bryan conceded it was difficult to separate the events of one day from those of another as far back as the day of the victim's death.9 Lyle admitted past convictions of worthless checks, theft of prope rty, third

degree burglary, grand larceny, lar ceny, and receiving

stolen property. Additionally, he had v

iolated his parole and had an addi tional federal conviction for mail fraud. 11

Fred Lunceford, Edwi n Lunceford's brother, recall ed a conversation he had with his brother ab out the victim's death. Ed win Lunceford to ld Fred Luncefo rd that he and the defendant had take n a man out to Barge Poin t Road

. The defendant had gotten the man around the neck andheld a knife on him. The defendant instructed Edwin Lunceford t o get the man's wallet, and Lunceford complied. Edwin Lunceford hit the man tw ice because he thought that the defendant would not kill the man if he was unconscious. Edwin Lunceford told his brother that a woman had been with them at the time of the murder. After the murder, they took the vi ctim's car to town and bu rned it.

Dorothy Suggs was a par t time employee of the Pickle F actory on October 28, 1994 . She did not learn of the v ictim's dea

th until a l ong time afterwards. When she hea rd of it, s he asked Debbie O'Bryan w hether the death occurred the same day that Suggs sat at a table with the v

ictim and others at th e Pickle Factory, which O 'Bryan confirmed. On that day, the victi m bought beers for
a large group of people, including the defendant and Lunceford. At some point, the victim expressed his desire to go to another bar. A patron nicknamed "Boston Rick" picked up the victim's keys and said he would take the victi m. Lunceford said he would go as well, and the three men left. A female patron may have accompanie d the men. The witness admitted that she and the de fendant are good friends, and the defend ant has spent t he night in her hom e when he has bee n too drunk to go home.

Robert Lyle, a convicted felon awaiting transfer from th e Montgomery County Jail t o the Department of Correction, 9 testified that he had talked to12

Lunceford in jail. Lunceford told con flicting versions o f the crimes, although the defendant was involved in so me degree in both versi ons. Lyle also talked t o the defendant in jail and admonished him not to show his "paperwork" to other inmates.

Johnathan Mitchell, a pre -trial det ainee in t he Montgo mery C ounty Jail , was Lunceford's cellmate for ten months. L unc eford told Mitchell about the defendant's case. Later, Mitchell overheard Lu nceford talking to another i nmate about the crime. The story Lunceford told this inmate wasdifferent from the one he told Mitchell. Lunceford wa s con sistent in h is admission that he had broken the victim's jaw and h is claim the defendant had cut the v ictim's throat.

LieutenantDouglas Tackett test if ied he had known Michael Nelson for about fifteen years and did not believe him to be truthf ul.

In rebuttal, the state recalled Agent Cla rk, wh o claimed that Debbie O'Bryan told him nothing during hi s intervi ew of her about what happened at the Pickle Factory on Oc

tober 28, 1994.

On this evide nce, the jury foun d the def endant gu ilty of firs t degree felony murder, especially aggravated robbery, theft of property valued over $1,000, and sett ing fire to persona l propert y.

I

In his first issue, the defendant cha llenges the suf fi ciency of the convictingevidence . Specif ically, he claims the evidence v ia the testimony of

Edwin Luncef ord is incredible. When an accused challenges the sufficiency of th e evidence, an appellate court’s standar d of review

is whether, after

considering the evidence in the light most favo rable to the prosecution, any rational trier of fact13

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 44 3 U.S . 307, 324, 99 S. Ct. 2781, 2791-92 ( 1979); State v. Duncan , 698 S.W.2d 63, 67 (Te nn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings of guilt based upon di rect evidence, circu mstantial evidence, o r a combination of direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In deter mini ng the sufficiency of the evi dence, this court should not reweigh or reevaluate the evi dence. State v. Ma tthews , 80 5 S.W.2d 77 6, 779 (Tenn. Crim. App. 1990). Questions concerning th e credibility of the w itnesses, the weight and value of the evi dence, as w ell as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this c ourt substitute its inferenc es for those drawn by the trier of fact from the evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2 d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 ( Tenn. Crim. App. 1978). On the contrary, this cour

t must afford the State of Tennessee the strong est legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be draw n from the evidence. Cabbage , 571 S.W.2d at 835.

The defendant challenges Lunceford' s credibility, and the record reflect s that defense counsel ably and v igorously cross-

examined Lunceford and assailed his cred ibility through other witn esses. Ad ditiona lly, the state's evidence at trial supported its theory of the defe ndant's guilt of each of the four cr imes of which he was ultimatelyconvicted , although the defendant br ought forw

ard some evidence of an alibi. Thus, the jury had before it evidence which would allow it, on
one hand, to convict the defendant, or on the other, to acquit him. The decision was
one which hinge d on the ju ry's assess ment of the credi bility of the wit nesses, particularlyEdwin Lunceford, a nd the weight and val ue which should be afforded14

the ev idence . The decision was w holly one for the jury

to make as trier of fact. Un fortunately for the defendant, the jury's discharge of its function resu lted i n a c creditation of Lunceford's testimony and weighing and evaluating the state's evidence over that brought forward by the defense. Cl early, a rational tr ier offact, such as the jury at the defendant's trial, could f ind the defendant guilty bey ond a reasonable doubt of each of the four crimes on the evidence presented.

II The defendant's second issue challenges the length of the sentence imposed by the t rial co urt. The sentenc es are l ife for first degree felony murder, 25 years for espe cially aggra vated rob bery, fou r years for theft of property, and two years for setting fire to

personal property. The c ourt ordered the murder, robbery and setting fire convictions to be served consecutively and the theft conv iction to be served concurrently. The effective sentence is life plus 27 years.

The defendant's precise appellate issue alleges, "The sentence given to Defendant/Appellant was ex cessive because said cr imes should merge into a single conviction." The state defends the defendant's sentence by arguing that the defendant is an appro priate can didate for consecutive sentenc ing. First, we find the defendant's crimes should not be merged, and second, we are unable to review the issue of consecutive sent encing due to deficiency of the record.

The defendant' s a rgument is that all of his a cts which constitute the fourcrimes of which he stands convicted occurred as part of a single course of conduc t. The theft, robbery and murder al l occurred simultaneously, while th e burning of personal property took place a few hours later as a means of destroying evidence of the earlier crimes. As part o f a continuous course of conduct, the defendant conten ds, the issues "are so clos ely associated in both fact and legal15

detail that all counts

should merge into a sing le conviction." At another point in his brief, he limits his merg er argument to merger "for s entencing purposes."

In support

of these novel arguments, Brooks cites Nelson v. State , 208 Tenn. 179, 344 S.W .2d 540 (1960), State v. Banes , 874 S.W.2d 73 (Tenn.Crim. App. 1993) and State v. Bilbrey , 8 16 S. W.2 d 7 1 (

Te nn . C ri m. Ap p. 19 91 ). We disagreethat the cases relied on by the defendant manda te the result he seeks, whether it is true mer

ger of his convictions

or "merger for sentencing purposes."

In Nelson , officers of a labor union wer e pr osecuted for fraudulent breach of trust base

d upon their ongoing sc heme to "re imburse" themselves wi th union funds for "expenses" incurred in pursuit of union business which they had not act ually i ncurred. Nelson , 208 Tenn. at 180-82, 344 S.W.2d at 541-42. The supremecourt held that the officers' co nviction of fraudulent breach of trust based upon an ongoing scheme to cash c hecks signed by both

officers and drawn on the union's funds was prop er, a s opposed to separate larceny convictions for each check. Nelson , 208 Tenn. at 182-87, 344 S.W.2d at 542-44.

In Banes , the defendant was indic ted with aggrav ated rape and the lesser include d offense of aggravated sexual battery. Banes , 874 S.W.2d at 76. At t rial, the court allow ed the jury to consider both issues and report a verdict o n both offenses, rather than submitting a ggravatedsexual battery as a lesser included offense to be considered only if the jury found the d efendan t not guilty of aggravatedrape. Banes , 874 S. W.2d at 76. The jury returned a g uilty verdict of both offenses, even though such a v erdict was

possible only if the same facts were used to support both offenses. Banes , 874 S. W.2d at 77. In other words, there
were not two separate

sexual acts supporting verdicts on bothcrimes. On appeal, thi s court held that the defendant could only be convicted of one crime, and the16

lesser offense merged into the g reater offense. Banes , 874 S.W.2d at 79-81.

In Bilbrey , the defendant was indicted on 22 counts o f fraudu lent breach of trust based upon a scheme he devised in his employment a s a truck dispatcher

whereby he used money which came into his possession by virtue of his position for his own use, rather than acco unting to his employer for it. Bilbrey , 816 S.W.2d at 73. Eac h c ount of the indic tment co vered one month of this activi ty. Bilbrey , 816 S.W.2d at 74. He entered nolo contendere pleas to five counts of fraudulentbreach of trust, andthe court imposed consecutive sentences. Bilbrey , 816 S.W.2d at 74. On appeal, he argued that Nelson required merger of four of the
co nvictions

into the one remaining conviction because his criminal a ctivit y constituted a single larcenous scheme, rather than separate takings. Bilbrey , 816 S.W.2d at 75. This court held that the defendant wai ved appellate considerati on of the propriety of separate convictions by virtue of his plea agreement, in which he did not reserve the questi on for appellate review

. Bilbrey , 816 S.W.2d at 75-76.

We find no support for the defendant's arg ument i n t hese cases. First, none of these ca s es support any argument tha t the defendant's convictions should be merged into one convic tion. In contrast to Banes , Brooks has not been convicted of both lesser included and

greater offen ses based upo n the same set of facts. Brooks committed four separate crimes, each hav ing elemental differences with each oth er. None o f the crim es is a stat utory l esser i ncluded offense of any ot her. See generally State v. Trusty , 919 S.W.2d 305 (Te nn. 1996). Likewise , Nelson is not instructive.Unlike the Nelson defendants, Brooks's convic tions do not stem from an ongo ing scheme to repeat the same act on diff erent occasions, thereby warranting a conv

iction of a continuous conduct cr ime, rather than separate but similar offenses for each act. For the same reason , B ilbrey is inapposite, as well.10 Appellate defense counsel, in his representation of another defendant, has previously raised this issue in this c ourt. See State v. Franklin , 919 S.W.2d 362 (Tenn. Crim. App. 1995). In Franklin , we found the defendant, who pleaded guilty without r

eserving a certified question, had waived consideration of whether his multiple forgery offenses should be merged into a sing le offense based upon his alleged continuing

motivation to support his drug habit. Howev

er, on the issue of whether se parate co nvictions merge fo r sentenc ing purpo ses, we commented that a defendant who receiv es a number of convictions w ill receive a like numb er of sen tences. "Althou gh those . . . senten ces may run concurre ntly, in no sense do they 'merg e for sentencing purposes.'" Franklin , 919 S.W.2d at 368. 17

Moreover, we find no support for the argument the convictions should be "merged for purposes of sentencing ." The trial court imposed th e murde r, robberyand burning of personal property senten ces consecutive to each other, and concurrent

to the theft sentence. W e find no authority which requires a "merger" of convi ct ions for sentencing purposes, that is, a requirement of concur rent sentencing where multipl e crim es are committed during a co ntinuing course of criminal conduct. 10 The law allows other wise in certain situa tions. S ee generally Tenn. Code Ann. § 40-35-115 and Sentencing Comm'n Com ments (1997).

Although we do not view the defendant's argument as a direct attack
on the propriety of consecutive sent encing, the state has concluded otherw ise and arguesthat the defendant's sentence is proper beca use he has an extensive history of criminal activity, is a danger o us offender, and was on probation at the time he committed these offenses. See generallyTenn. Code Ann. § 40-35-115(b)(2), (4), (6) (1997). We express no view in that regard , as we are unable to rev iew the propriety of the court's imposition of consecutive sentencing on th ree of the four convictions

because the record on a ppeal does not contain the transcript of the sentencing hearing. Thus, we are unaware of the evidence which was before the trial court w hen it made its sentencing determin ation and thereby precluded from appellate review.18 Therefore, the judgment of the trial court is affirmed.

_______________________________ CURWOOD WITT, JUDGE
CONCUR:

_____________________________ GARY R. WADE, JUDGE

_____________________________ WILLIAM M. BARKER, JUDGE