IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 11, 2015 Session

STATE OF TENNESSEE v. MICHAEL ANTHONY LOGAN

Appeal from the Criminal Court for Davidson County

No. 2008-A-821 Monte Watkins, Judge

No. M2013-02701-CCA-R3-CD – Filed July 27, 2015

Aggrieved of his Davidson County Criminal Court jury convictions of attempted 

especially aggravated robbery, aggravated robbery, carjacking, reckless endangerment, 

and three counts of aggravated assault, the defendant appeals. He claims that (1) the trial

court erred by denying his motion to dismiss based upon a violation of his right to a 

speedy trial; (2) the trial court denied his right to due process of law by failing to rule on 

his pretrial motions; (3) the evidence was insufficient to support his convictions of 

attempted especially aggravated robbery, aggravated robbery, and aggravated assault; (4) 

his conviction of reckless endangerment is void because that offense was not a lesser 

included offense of the charged offense of aggravated assault; (5) the dual convictions of 

aggravated robbery and carjacking violate principles of double jeopardy; (6) he was 

denied the constitutional right to confront the witnesses against him; (7) the trial court‟s 

failure to enforce its subpoenas denied him the right to compulsory process; (8) the trial 

court should have either excluded certain evidence or granted the defendant‟s motion for 

a continuance; (9) the trial court erred by denying his motion to suppress certain 

evidence; (10) the trial court erred by failing to exclude an out-of-court identification of 

the defendant; (11) the trial court erred by failing to order the production of certain 

evidence; and (12) the trial court erred by imposing consecutive sentences. Because 

felony reckless endangerment is not a lesser included offense of aggravated assault, the 

defendant‟s conviction of that offense is reversed, and that count is remanded for a new 

trial on the remaining lesser included offense of assault. We affirm the judgments of the 

trial court in all other respects.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed 

and Remanded in Part

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and ROGER A. PAGE, JJ., joined.
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Richard C. Strong (on appeal) and Sean McKinney, Nashville, Tennessee (elbow counsel 

at trial), and Michael Anthony Logan, pro se (at trial), for the appellant, Michael Anthony 

Logan.

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

Attorney General (Senior Counsel); Victor S. Johnson III, District Attorney General; and 

Roger Moore and Hugh Ammerman, Assistant District Attorneys General, for the 

appellee, State of Tennessee.

OPINION

A Davidson County Criminal Court jury convicted the defendant of 

attempted especially aggravated robbery, aggravated robbery, carjacking, three counts of 

aggravated assault, and reckless endangerment based upon evidence that he committed a 

series of violent offenses on July 22, 2006.

On July 22, 2006, 83-year-old Virginia Mary Gallagher went to the 

McDonald‟s restaurant on Nolensville Road as was her custom to order hash browns and 

coffee for her lunch. As was also her custom, Ms. Gallagher double-parked her BMW 

automobile near the dumpster so as to avoid the potential for damage caused by other 

cars. At some point after her arrival, the McDonald‟s maintenance man alerted store 

manager Jason Hendricks to a problem with Ms. Gallagher. Believing that some damage 

had been done to her car, Mr. Hendricks went outside to check on her. When he got 

outside, however, he saw “two sets of feet[] sticking out the driver‟s side door” of Ms. 

Gallagher‟s car and a man lying on top of Ms. Gallagher. Mr. Hendricks thought that 

Ms. Gallagher was being raped and immediately ran to her aid.

Ms. Gallagher called out, “Jason, help me,” and, after the man, whom Mr. 

Hendricks identified as the defendant, got out of the car, she said, “Jason, he has my 

purse.” Mr. Hendricks saw the purse in the man‟s hand, and he reached for it. The man 

then struck Mr. Hendricks “a couple of times with the knife” that the man had in his hand 

and “took off running.” Mr. Hendricks gave chase. The defendant got into a black 

pickup truck, and Mr. Hendricks climbed into the bed of the truck, grabbed a “metal stake 

thing[] that was in the back of the truck” and shattered the back window of the truck. 

When the truck began to pull away, Mr. Hendricks jumped from the truck and ran back to 

check on Ms. Gallagher, whose shirt was covered in blood. Other testimony established 

that Ms. Gallagher suffered four superficial knife wounds that were treated during a 24-

hour hospital stay.

After leaving the McDonald‟s, the defendant crashed his black pickup truck 

on Nolensville Road and then ran into the parking lot of the Aquatic Critter, where he 
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encountered the Goble family, who had just left the store and were in the process of 

entering their Dodge Caravan. The defendant approached Mr. Goble “frantically yelling, 

„They‟re trying to kill me, they‟re after me,‟ or something to that effect.” The defendant 

tried to take Mr. Goble‟s car keys, and Mr. Goble held them over his head until the 

defendant “come up with a knife and started, kind of, racking it across [Mr. Goble‟s] 

hands and wrists.” Mr. Goble let the man have the keys. At that point, Mr. Goble‟s 

teenage grandson, Josh Goble, stepped in, and the man struck Josh Goble twice with the 

knife, leaving bruises but no lacerations. The defendant then got into the Goble‟s van 

and drove away while Ms. Goble stood at the open passenger‟s side door. The door 

struck Ms. Goble in the abdomen.

Lee Majors and Keith Brumley, who had observed the fracas at the 

McDonald‟s, followed the defendant‟s black pickup truck from the McDonald‟s. The 

men saw the defendant crash the truck and then run into the parking lot of the Aquatic 

Critter brandishing a large knife. The men watched the defendant‟s encounter with the 

Gobles, and then Mr. Majors, who was driving, positioned his own truck behind the 

Gobles‟ van in an attempt to prevent the defendant‟s leaving the scene. The defendant 

“slapped it in reverse and floored it, and managed to shove the truck out of the way, get 

enough room and get turned and take off south on Nolensville Road.” Both men 

identified the defendant as the perpetrator.

Metropolitan Nashville Police Department (“Metro”) officers discovered 

the defendant‟s driver‟s license and other identifying documents in the crashed pickup 

truck, which was registered to the defendant. Officers also discovered a tan purse inside 

the pickup truck, and deoxyribonucleic acid [“DNA”] testing established the presence of 

Ms. Gallagher‟s DNA on a lipstick inside the purse. The police were unable to recover 

the Gobles‟ van or locate the defendant until September 2006, when authorities from the 

Van Zandt County, Texas Sheriff‟s Office alerted them that the defendant had been 

apprehended in Texas and that the Gobles‟ van had been found.

Based upon this evidence, the jury convicted the defendant as described 

above, and, following a sentencing hearing, the trial court imposed a total effective 

sentence of 74 years‟ incarceration to be served consecutively to the life sentence 

imposed for the defendant‟s 1979 conviction of second degree murder.

The defendant filed a timely but unsuccessful motion for new trial followed 

by a timely notice of appeal. The trial court appointed counsel to represent the previously 

pro se defendant, and this appeal followed.

In this appeal, the defendant challenges the denial of his motion to dismiss 

the charges based upon a violation of his right to a speedy trial, the trial court‟s failure to 
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rule on various pretrial motions filed by the defendant, the sufficiency of the convicting 

evidence, the imposition of a conviction of reckless endangerment in count seven, the 

imposition of dual convictions for the aggravated robbery and carjacking of Mr. Goble, 

the denial of his right to confront the witnesses against him, the trial court‟s failure to 

enforce its subpoenas, the trial court‟s refusal to exclude DNA evidence or grant a 

continuance, the denial of his motion to suppress evidence seized from his truck, the trial 

court‟s failure to exclude Mr. Hendricks‟ out-of-court identification of the defendant, the 

trial court‟s failure to order production of the transcript of Detective Donaldson‟s 

testimony before the Tennessee Board of Probation and Parole, and the imposition of 

consecutive sentences. We consider each claim in turn.

I. Speedy Trial

The defendant first asserts that the trial court erred by denying his motion 

to dismiss the charges against him because the State violated his constitutional right to a 

speedy trial. The State contends that the trial court properly denied the defendant‟s 

motion because the defendant was not deprived of his right to a speedy trial.

The right to a speedy trial, which is constitutionally and statutorily 

guaranteed, see U.S. Const. amend. VI; Tenn. Const. art. I, § 9; see also T.C.A. § 40-14-

101, “attaches at the time of arrest or indictment, whichever comes first, and continues

until the date of the trial.‟” State v. Berry, 141 S.W.3d 549, 568 (Tenn. 2004) (quoting 

State v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim. App. 1997)). A reviewing court considers 

four factors when determining whether the right to a speedy trial has been compromised: 

(1) the length of the delay, (2) the reason for the delay, (3) the assertion of the right to 

speedy trial, and (4) any prejudice to the defendant occasioned by the delay. See Barker 

v. Wingo, 407 U.S. 514, 530 (1972); State v. Bishop, 493 S.W.2d 81, 83-85 (Tenn. 1973). 

Of these factors, the most important is prejudice, and the critical inquiry concerning 

prejudice “is the impairment of the ability to prepare a defense.” State v. Vance, 888 

S.W.2d 776, 778 (Tenn. Crim. App. 1994). To activate the four-part inquiry, the interval 

between accusation and trial must have “crossed the threshold dividing ordinary from 

„presumptively prejudicial‟ delay.” Doggett v. United States, 505 U.S. 647, 651-52 

(1992) (quoting Barker, 407 U.S. at 530-31). On appeal, the trial court‟s application of 

the four-part balancing test is reviewed for abuse of discretion. State v. Jefferson, 938 

S.W.2d 1, 14 (Tenn. Crim. App. 1996).

Initially, we note that we can find no evidence in the record on appeal that 

the trial court ever issued a formal ruling on the defendant‟s motion either orally or in 

writing. That said, the fact that the trial court proceeded with the trial indicates that the 

court effectively denied the motion and implies that the court did not agree that the 

defendant‟s right to a speedy trial had been violated.
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The facts regarding the defendant‟s detention prior to his trial are not 

entirely clear based upon the record before us, and we glean some of the facts from the 

Texas Court of Appeals opinion affirming the denial of the defendant‟s attempt to block 

his extradition. Warrants were issued for the defendant‟s arrest shortly after the offenses 

in this case, and Metro Detective Michael Donaldson added information concerning the 

warrants to the National Crime Information Center database. Approximately two months 

later, in September 2006, authorities with the Van Zandt County, Texas Sheriff‟s Office 

alerted Metro that they had the defendant in custody, and Metro authorities asked that the 

defendant be held pending his extradition to Tennessee. The defendant made a pro se 

demand for a speedy trial on May 31, 2007. The defendant was indicted on the charges 

in this case in March 2008. Some evidence adduced at the hearing on the defendant‟s 

motion to dismiss suggested that the defendant was being held in Texas pending the 

resolution of criminal charges in two different Texas counties and that an “exit detainer” 

was placed so that the defendant would be transferred as soon as his Texas charges were 

resolved.

Van Zandt County, Texas authorities dismissed charges against the 

defendant in December 2009 and transferred the defendant to Dallas County, Texas at 

that time to answer charges there. See Ex Parte Logan, No. 05-10-01354-CR, slip op. at 

1, 2011 WL 989066, at *1 (Tex. App. Mar. 22, 2011). The Dallas County charges were 

eventually dismissed in August 2010. See id. Meanwhile, proceedings to extradite the 

defendant began in April 2010, and a governor‟s warrant issued on June 3, 2010. See id., 

2011 WL 989066, at *2. The defendant thereafter filed in Texas a petition for writ of 

habeas corpus seeking to block his extradition. The petition was denied, and the Texas 

Court of Appeals affirmed the denial of habeas corpus relief on March 22, 2011. See id.

Following his extradition to Tennessee in October 2011, the defendant 

elected to represent himself throughout his case, which representation included the filing 

of hundreds of pages of handwritten pleadings, many of which asked that the trial be 

continued.

The length of the delay between the defendant‟s arrest, which triggered his 

speedy trial right, and his July 2013 trial is significant enough to trigger further inquiry 

under Barker. Regarding the reason for the delay, we conclude that the State, based upon 

its failure to promptly begin the process of extradition, must bear some of the 

responsibility for the delay in bringing this case to trial. That said, however, the bulk of 

the responsibility for the delay must be attributed to the defendant. The resolution of the 

defendant‟s Texas charges encompassed more than three years of the delay, and the 

remainder can be attributed to the defendant‟s bid to halt his extradition and his own 

nearly obstreperous pretrial litigation. The defendant asserted his right to a speedy trial 
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in May 2007, before the indictment issued in this case but after arrest warrants were 

posted. Finally, we conclude that the defendant failed to show that he suffered any 

prejudice as a result of the delay in this case. Although the defendant suffered a lengthy 

period of incarceration prior to the trial, his incarceration was inevitable and not the result 

of the charges filed in this case. At the time he committed the offenses in this case, the 

defendant was on parole from a life sentence for a 1979 second degree murder 

conviction. Moreover, the defendant was held in Texas pending the resolution of 

unrelated charges. Additionally, although Ms. Gallagher was unavailable at trial, nothing 

suggests that her testimony would have been exculpatory to the defendant. Under these 

circumstances, the trial court did not err by effectively denying the defendant‟s motion to 

dismiss.

II. Failure to Rule on Motions

The defendant next contends that the trial court violated principles of due 

process by failing to rule on several of his pretrial motions, including motions for expert 

assistance, a subpoena duces tecum for Ms. Gallagher‟s medical records, and to dismiss 

the indictment for the failure to preserve certain evidence. The State urges us to find the 

defendant‟s claim waived for failure to adequately cite to the record and for his failure to 

“properly address the trial court‟s failure to rule on these other motions.” In the 

alternative, the State argues that the trial court‟s failure to rule on the motions was 

harmless because the motions lacked merit.

We decline the State‟s invitation to find the defendant‟s claim waived. The 

defendant‟s brief contains adequate citations to the record, and the record is replete with 

instances when the defendant asked the trial court to rule on his motions. Even 

throughout the trial, the defendant pointed out that the trial court had failed to address 

many of his pretrial motions.

That being said, the defendant has presented no authority for the 

proposition that the trial court‟s failure to issue a formal ruling on the defendant‟s 

motions, standing alone, amounted to a violation of principles of due process. The pro se 

defendant filed hundreds of pages of handwritten pleadings, among which were requests 

for the assistance of various experts to help him prepare his defense and motions to 

dismiss the indictment for a variety of reasons. He presented little or no evidence at any 

of the pretrial hearings to support any of his motions. The defendant argues that because 

he elected to proceed pro se, he was placed at a disadvantage. We note that the decision 

to proceed pro se was the defendant‟s own, entered into after the trial court granted his 

repeated requests to do so following a hearing to determine the defendant‟s ability to 

proceed pro se. The court warned the defendant that, because he was incarcerated and 

untrained in the law, choosing to proceed pro se was fraught with peril. The defendant 
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cannot now be heard to complain that he was disadvantaged by the trial court‟s giving 

him exactly what he wanted. Finally, although we agree with the defendant that the trial 

court should have ruled on his motions, we cannot say, based on the record before us, that 

the trial court‟s failure to do so resulted in any harm to the defendant‟s case. In 

consequence, the defendant is not entitled to relief on this issue.

III. Sufficiency

The defendant asserts that the evidence was insufficient to support his 

convictions of the attempted especially aggravated robbery of Ms. Gallagher, the 

aggravated robbery of Gregory Goble, and the aggravated assaults of Joshua and Beverly 

Goble. The State submits that the evidence was sufficient to support each of the 

defendant‟s convictions.

We review the defendant‟s claim of insufficient evidence mindful that our 

standard of review is whether, after considering the evidence in the light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 

307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This 

standard applies to findings of guilt based upon direct evidence, circumstantial evidence, 

or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 

370, 379 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither 

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id. 

Questions concerning the credibility of the witnesses, the weight and value of the 

evidence, as well 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). Significantly, this court must 

afford the State the strongest legitimate view of the evidence contained in the record as 

well as all reasonable and legitimate inferences which may be drawn from the evidence. 

Id.

A. Attempted Especially Aggravated Robbery

The defendant contends that the evidence was insufficient to support his 

conviction of attempted especially aggravated robbery because the State failed to 

establish that Ms. Gallagher suffered serious bodily injury. The State asserts that because 

the defendant was convicted of the lesser included offense of attempted especially 

aggravated robbery, it was not required to prove that Ms. Gallagher suffered serious 

bodily injury.
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“Especially aggravated robbery is robbery as defined in § 39-13-401 . . . 

[a]ccomplished with a deadly weapon; and . . . [w]here the victim suffers serious bodily 

injury.” T.C.A. § 39-13-403(a). “Robbery is the intentional or knowing theft of property 

from the person of another by violence or putting the person in fear.” Id. § 39-13-401(a). 

Criminal attempt occurs when a person “acting with the kind of culpability otherwise 

required for the offense . . . [a]cts with intent to complete a course of action or cause a 

result that would constitute the offense, under the circumstances surrounding the conduct 

as the person believes them to be, and the conduct constitutes a substantial step toward 

the commission of the offense.” Id. § 39-12-101(a)(3). To qualify as a “substantial 

step,” the person‟s “entire course of action” must be “corroborative of the intent to 

commit the offense.” Id. § 39-12-101(b).

The evidence adduced at trial established that Mr. Hendricks found the 

defendant lying on top of Ms. Gallagher inside her automobile. Mr. Hendricks saw the 

defendant in possession of both Ms. Gallagher‟s purse and a knife. Ms. Gallagher was 

stabbed four times. To be sure, serious bodily injury is an element of the offense of 

especially aggravated robbery, and proof of that element is necessary for a conviction of 

that offense. Because the jury convicted the defendant of the lesser included offense of 

attempted especially aggravated robbery, however, a showing of serious bodily injury 

was unnecessary. The evidence overwhelmingly established that the defendant used a 

deadly weapon, the knife, to take Ms. Gallagher‟s purse and that Ms. Gallagher suffered 

four stab wounds, facts that were more than sufficient to support a conviction of 

attempted especially aggravated robbery.

B. Aggravated Assault and Aggravated Robbery

The defendant avers that the evidence was insufficient to support his 

convictions of the aggravated robbery of Gregory Goble and the aggravated assaults of

Beverly Goble and Joshua Goble, claiming that the State failed to establish his identity as 

the perpetrator. He also claims that the evidence was insufficient to establish that he 

intentionally or knowingly placed Ms. Goble in fear of serious bodily injury or that he 

used a knife.

Aggravated assault, as charged in the indictment, is an intentional or 

knowing “assault as defined in § 39-13-101(a)(1)” that is committed via the use or 

display of a deadly weapon. T.C.A. § 39-13-102(a)(1)(B). Assault, as is relevant to this 

case, occurs when one “[i]ntentionally or knowingly causes another to reasonably fear 

imminent bodily injury.” Id. § 39-13-101(a)(2).

“Aggravated robbery is robbery as defined in § 39-13-401 . . . 

[a]ccomplished with a deadly weapon or by display of any article used or fashioned to 
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lead the victim to reasonably believe it to be a deadly weapon.” Id. § 39-13-402(a)(1). 

“Robbery is the intentional or knowing theft of property from the person of another by 

violence or putting the person in fear.” Id. § 39-13-401(a).

Here, all three of the Gobles identified the defendant at trial as the man who 

attacked them in the parking lot of the Aquatic Critter. Additionally, Messrs. Majors and 

Brumley identified the defendant as the man who attacked the Gobles in the parking lot. 

Both the defendant and the Gobles‟ van were later discovered in Van Zandt County,

Texas. This evidence clearly established the defendant‟s identity as the perpetrator of the 

attacks on the Gobles. Additionally, Ms. Goble‟s testimony established that she feared 

for her life as the defendant grappled with her husband for the keys to their van. She 

testified that the defendant wielded a knife during the attack and that she was still 

standing inside the open door of the van when the defendant got into the van and sped 

away. This evidence was sufficient to support the defendant‟s conviction of the 

aggravated assault of Ms. Goble.

IV. Reckless Endangerment Conviction

The defendant contends that his conviction of felony reckless 

endangerment as a lesser included offense of the charged offense of the aggravated 

assault of Mr. Majors must be vacated because felony reckless endangerment is not a 

lesser included offense of aggravated assault as charged in this case. The State concedes 

that felony reckless endangerment is not a lesser included offense of aggravated assault 

and that the defendant‟s conviction of that offense should be reversed.

The parties are correct that felony reckless endangerment is not a lesser 

included offense of aggravated assault. See State v. Cross, 362 S.W.3d 512, 522 (Tenn. 

2012) (“Reckless endangerment with a deadly weapon is not a lesser-included offense of 

aggravated assault committed by intentionally or knowingly causing another to 

reasonably fear imminent bodily injury by use or display of a deadly weapon.”); State v. 

Moore, 77 S.W.3d 132, 136 (Tenn. 2002). Accordingly, the defendant‟s conviction of 

that offense must be reversed and the case remanded for a new trial on the remaining 

lesser included offense of assault. See Cross, 362 S.W.3d at 522 (vacating felony 

reckless endangerment conviction and remanding “for a new trial on any other lesserincluded offense that has not already been rejected by the jury.”).

V. Double Jeopardy

The defendant next contends that his convictions of the aggravated robbery 

and carjacking of Mr. Goble violate principles of double jeopardy. The State avers that 

the convictions do not violate double jeopardy principles.
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Both the federal and state constitutions protect an accused from being 

“twice put in jeopardy of life or limb” for “the same offence.” U.S. Const. Amend. V; 

Tenn. Const. art. 1, sec. 10. The state and federal provisions, which are quite similar in 

verbiage, have been given identical interpretations. See State v. Waterhouse, 8 Tenn. (1 

Mart. & Yer.) 278, 284 (1827) (“[W]e did not feel ourselves warranted in giving [the 

double jeopardy provision of the state constitution] a construction different from that 

given to the constitution of the United States, by the tribunal possessing the power, (and 

of pre-eminent qualifications) to fix the construction of that instrument.”). The United 

States Supreme Court has observed of the double jeopardy clause:

Our cases have recognized that the Clause embodies two 

vitally important interests. The first is the „deeply ingrained‟ 

principle that „the State with all its resources and power 

should not be allowed to make repeated attempts to convict 

an individual for an alleged offense, thereby subjecting him to 

embarrassment, expense and ordeal and compelling him to 

live in a continuing state of anxiety and insecurity, as well as 

enhancing the possibility that even though innocent he may 

be found guilty.‟ The second interest is the preservation of 

„the finality of judgments.‟

Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360, 2365-66 (2009) (citations 

omitted). To these ends, our state supreme court has observed that the Double Jeopardy 

Clause provides “three separate protections: (1) protection against a second prosecution 

for the same offense after acquittal; (2) protection against a second prosecution for the 

same offense after conviction; and (3) protection against multiple punishments for the 

same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

Whether multiple convictions violate double jeopardy principles is a mixed 

question of law and fact that we review de novo with no presumption of correctness. 

State v. Smith, 436 S.W.3d 751, 766 (Tenn. 2014) (citing State v. Thompson, 285 S.W.3d 

840, 846 (Tenn. 2009)).

The defendant‟s claim involves the third category of double jeopardy 

protection, multiple punishments for a single offense. “In single prosecutions, multiple 

punishment claims ordinarily fall into one of two categories, frequently referred to as 

„unit-of-prosecution‟ and „multiple description‟ claims.” Id. at 543. Where, as is the case 

here, a defendant has been convicted of violating two different statutes, the claim is one 

of multiple description. “[W]here the same act or transaction constitutes a violation of 
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two distinct statutory provisions, the test to be applied to determine whether there are two 

offenses or only one, is whether each provision requires proof of a fact which the other 

does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). In Watkins, our 

supreme court “adopted the two-pronged Blockburger test for multiple description 

claims.” Smith, 436 S.W.3d at 767 (citing Watkins, 362 S.W.3d at 556).

“[T]he threshold inquiry under Blockburger is whether the alleged statutory 

violations arise from „the same act or transaction.‟” Watkins, 362 S.W.3d at 545 (quoting 

Blockburger, 284 U.S. at 301-04).

Where the threshold is met, meaning the convictions arose 

from the same act or transaction, a court next examines the 

statutes to determine whether the crimes of which the 

defendant was convicted constitute the same offense. Where 

each statutory offense includes an element not contained in 

the other, the offenses are distinct. Where the offenses are 

distinct under Blockburger, the legislature is presumed to 

have intended to allow the offenses to be punished separately.

Watkins, 362 S.W.3d at 545-46 (citations omitted).

Considering the threshold Blockburger inquiry, we conclude that the taking 

of the keys to the van from Mr. Goble was part of the same transaction as the taking of 

the van. Mr. Goble held the keys in his hand as he stood outside the van while loading 

the items he had purchased at the Aquatic Critter. The defendant came up to him 

wielding a knife and began trying to take the keys. The defendant was eventually 

successful in taking the keys, and he immediately got into the van and sped away. 

Clearly, the taking of the keys was part and parcel of the taking of the van. Because we 

have concluded that the taking of the keys and the taking of the van were part of the same 

transaction, we must next consider whether the crimes of carjacking and aggravated 

robbery, as charged in this case, constitute the same offense. To do this, we must 

determine whether “each statutory offense includes an element not contained in the 

other.” Watkins, 362 S.W.3d at 545.

“„Carjacking‟ is the intentional or knowing taking of a motor vehicle from 

the possession of another by use of: (1) A deadly weapon; or (2) Force or intimidation.” 

T.C.A. § 39-13-404(a). “Aggravated robbery is robbery as defined in § 39-13-401 . . . 

[a]ccomplished with a deadly weapon or by display of any article used or fashioned to 

lead the victim to reasonably believe it to be a deadly weapon.” Id. § 39-13-402(a)(1). 

“Robbery is the intentional or knowing theft of property from the person of another by 

violence or putting the person in fear.” Id. § 39-13-401(a). Robbery requires proof that 
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the taking was done with the intent to deprive the owner of the property, but carjacking 

contains no such requirement. See State v. Wilson, 211 S.W.3d 714, 721 (Tenn. 2007)

(explaining that robbery includes all the elements of theft, including an intent to deprive 

the owner of the property while carjacking does not contain such a requirement). 

Additionally, robbery requires that the property be taken “from the person of another”

while carjacking requires that the property be taken “from the possession of another.” 

See State v. Edmondson, 231 S.W.3d 925, 929 (Tenn. 2007) (noting that the legislature 

“chose to use less limiting language” in the carjacking statute than that in the robbery 

statute). Carjacking requires the taking of a motor vehicle while robbery may occur with 

the taking of any property. Because each of the offenses contains an element that the 

other does not, we must presume that the legislature intended separate punishments for 

the takings that occurred in this case. Watkins, 362 S.W.3d at 545-46. But see

Edmondson, 231 S.W.3d at 933 (concluding that Edmonson was guilty of carjacking 

when he “confronted [the victim], knowingly obtained her keys by intimidation, and 

drove off in her car”) (emphasis added).

VI. Confrontation

The defendant argues that the State‟s failure to call Ms. Gallagher as a 

witness at trial violated his constitutional right to confront the witnesses against him. The 

State asserts that the defendant is precluded from seeking relief on this claim because he 

failed to call Ms. Gallagher as a witness. In the alternative, the State avers that the State 

is not constitutionally required to present the testimony of the victim of the offense if the 

offense can be established by other evidence.

The State‟s assertion that the defendant did not attempt to call Ms. 

Gallagher as a witness is incorrect. There is at least some evidence in the record that the 

defendant attempted to subpoena Ms. Gallagher and that she was deemed unavailable due 

to her dementia.

The Sixth Amendment to the federal constitution and article I, section 9 of 

the Tennessee Constitution afford the criminal accused the right to confront the witnesses 

against him. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Although the 

provisions are not coterminous, our supreme court “„has largely adopted the standards 

used by the United States Supreme Court . . . in determining whether the Tennessee 

constitutional right has been violated.‟” State v. Parker, 350 S.W.3d 883, 897-98 (Tenn.

2011) (quoting State v. Maclin, 183 S.W.3d 335, 343 (Tenn. 2006)); see also State v. 

Lewis, 235 S.W.3d 136, 144 (Tenn. 2007).

In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme 

Court held that “[w]here testimonial evidence is at issue . . . the Sixth Amendment 
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demands . . . unavailability and a prior opportunity for cross-examination.” Crawford, 

541 U.S. at 68. “Where nontestimonial hearsay is at issue, it is wholly consistent with the 

Framers‟ design to afford the States flexibility in their development of hearsay law.” Id.

In Crawford, the Court laid the groundwork for what came to be known as “the primary 

purpose” test for distinguishing testimonial statements from non-testimonial statements. 

The Court refined the test in later opinions:

Statements are nontestimonial when made in the course of 

police interrogation under circumstances objectively 

indicating that the primary purpose of the interrogation is to 

enable police assistance to meet an ongoing emergency. 

They are testimonial when the circumstances objectively 

indicate that there is no such ongoing emergency, and that the 

primary purpose of the interrogation is to establish or prove 

past events potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822 (2006). The Court noted that objective 

evaluation of “the circumstances in which the encounter occurs and the statements and 

actions of the parties” is necessary to determine whether a statement is testimonial or 

non-testimonial. Michigan v. Bryant, ___ U.S. ___, 131 S. Ct. 1143, 1156 (2011).

The trial court admitted only two of Ms. Gallagher‟s statements, both of 

which were made to Mr. Hendricks during the attack at the McDonald‟s: “Jason, help 

me,” and “Jason, he has my purse.” Utilizing the primary purpose test, we easily 

conclude that neither of these statements was testimonial. Both were made during the 

ongoing emergency of the defendant‟s attack on Ms. Gallagher, and neither could be said 

to have been made to assist in a later criminal prosecution. In consequence, the 

admission of these statements did not violate the defendant‟s right to confront the 

witnesses against him.

With regard to the defendant‟s claim that Ms. Gallagher‟s absence from the 

trial, in and of itself, violated his rights under the Confrontation Clause, we note that the 

defendant has presented no authority to support his position. The Confrontation Clause is 

implicated only when the prosecution seeks to use the testimonial statement of a witness 

without making a showing that the witness is unavailable for trial and that the defendant 

has had an opportunity to cross-examine the witness. See Crawford, 541 U.S. at 68. The 

constitution does not require that the State present the victim of a crime as a witness if the 

elements of the offense can be proven beyond a reasonable doubt by other means, so long 

as those means do not run afoul of the rulings in Crawford and its progeny. “The 

Confrontation Clause categorically entitles a defendant to be confronted with the 

witnesses against him; and the primary-purpose test sorts out . . . who is acting as a 
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witness and who is not.” Ohio v. Clark, No. 13-1352, 2015 WL 2473372, at *10 (U.S. 

June 18, 2015) (Scalia, J., concurring). When a person offers no evidence against a 

criminal defendant, the person is not “a witness against” the accused, and the person‟s 

status as a victim does not alter that fact. See id. (“Crawford sought to bring our 

application of the Confrontation Clause back to its original meaning, which was to 

exclude unconfronted statements made by witnesses—i.e., statements that were 

testimonial.”).

VII. Compulsory Process

The defendant asserts that the trial court‟s failure to enforce its subpoenas 

denied him the constitutional right to compulsory process. The State responds that the 

trial court was under no duty, save the issuance of the subpoenas, to compel the 

attendance of the potential witnesses identified by the defendant.

Both the state and federal constitutions guarantee a criminal accused the 

right to compulsory process for attaining the presence and participation of witnesses in 

his favor. See U.S. Const. Amend. VI; Tenn. Const. art. I, § 9. 

Because these rights are basic to our adversary system of 

criminal justice, they are part of the „due process of law‟ that 

is guaranteed by the Fourteenth Amendment to defendants in 

the criminal courts of the States. The rights to notice, 

confrontation, and compulsory process, when taken together, 

guarantee that a criminal charge may be answered in a 

manner now considered fundamental to the fair 

administration of American justice—through the calling and 

interrogation of favorable witnesses, the cross-examination of 

adverse witnesses, and the orderly introduction of evidence.

Faretta v. California, 422 U.S. 806, 818 (1975).

In constitutional law, as in all things in life, however, there are limits. 

“„[T]he constitutional right to compulsory process requires such process for, and only for, 

competent, material, and resident witnesses whose expected testimony will be 

admissible.‟” State v. Smith, 639 S.W.2d 677, 680 (Tenn. Crim. App. 1982) (quoting 

Bacon v. State, 385 S.W.2d 107, 109 (Tenn. 1964)); see also United States v. ValenzuelaBernal, 458 U.S. 858, 867 (1982) (observing that, to establish a violation of the right to 

compulsory process, the defendant “must at least make some plausible showing of how 

the[] testimony would have been both material and favorable to his defense”).
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Following the conclusion of the State‟s case-in-chief, the defendant 

attempted to call Sherry Douglas as a witness. At that point, the court officer alerted the 

court and the parties that none of the witnesses subpoenaed by the defendant had 

appeared for trial. The court officer stated that he had “subpoenaed everyone that [the 

defendant] had on [his] list.” The defendant named a few of those he wished to call, but 

the complete list of his desired witnesses does not appear anywhere in the record. Of the 

witnesses he named, the defendant mentioned with particularity Ms. Douglas, Chris 

Wright, Tony Azafar, and Gongal Hall, and he claimed that those witnesses were material 

because they had each examined a photographic array but failed to identify the defendant 

as the perpetrator. The court ruled that the witnesses‟ failure to identify the defendant did 

not make them material witnesses.

In our view, the defendant has failed to show that his right to compulsory 

process was violated. The defendant asked that the witnesses be subpoenaed, and the 

trial court ensured that the witnesses were subpoenaed. It is not clear that more was 

required under the circumstances presented here, particularly because the defendant made 

no showing that the testimony of the potential witnesses was material and admissible.

VIII. Failure to Exclude DNA Evidence

The defendant avers that the trial court should have excluded the results of 

DNA testing that were not disclosed until the week before trial or granted the defendant‟s 

motion for a continuance to review the DNA results. The State asserts that the trial court 

ruled appropriately.

The defendant claims, first, that the late disclosure of the results of DNA 

testing performed on several items violated the terms of Tennessee Rule of Criminal 

Procedure 16 and that, as such, the State should not have been permitted to utilize the 

results during its case-in-chief. Initially, we note that it is unclear from the record exactly 

what evidence the defendant seeks to challenge or when the defendant actually received 

the evidence in relation to the beginning of the trial. As best we can glean, however, the 

defendant is aggrieved regarding the results of DNA testing on a ball cap discovered 

inside his wrecked pickup truck.

Tennessee Rule of Criminal Procedure 16 requires, as is relevant here, the 

disclosure of “the results . . . of scientific tests or experiments if . . . the state intends to 

use the item in its case-in-chief at trial.” Tenn. R. Crim. P. 16(a)(1)(G). The State 

conducted DNA testing on a number of items seized during the investigation in this case, 

including Ms. Gallagher‟s purse, which was discovered inside the defendant‟s wrecked 

pickup truck, a ball cap that was also discovered inside the pickup truck, and the 

contractor‟s bag and its contents that were discovered inside Ms. Gallagher‟s BMW. The 
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record establishes that the State received the results of testing performed on the ball cap 

on July 8, 2013, and that the State disclosed the results of this testing to the defendant as 

soon as the results became available. Rule 16 requires nothing more.

The defendant argues that the trial court should have granted him a 

continuance to seek expert assistance to understand the results of the DNA testing and to 

prepare for its use at trial. The trial court refused the defendant‟s request for a 

continuance, noting that nothing in the results could be seen as exculpatory and that the 

results of the testing did not form the basis of the State‟s case.

“[T]he granting or denying of a continuance is a matter which addresses

itself to the sound discretion of the trial judge.” Moorehead v. State, 409 S.W.2d 357, 

358 (Tenn. 1966) (citing Bass v. State, 231 S.W.2d 707 (Tenn. 1950)). An abuse of 

discretion is demonstrated by showing that the failure to grant a continuance denied the 

defendant a fair trial or that it could be reasonably concluded that a different result would 

have followed had the continuance been granted. State v. Hines, 919 S.W.2d 573, 579 

(Tenn. 1995) (citing State v. Wooden, 658 S.W.2d 553, 558 (Tenn. Crim. App. 1983)). 

“The burden rests upon the party seeking the continuance to show how the court‟s action 

was prejudicial. The only test is whether the defendant has been deprived of his rights 

and an injustice done.” State v. Goodman, 643 S.W.2d 375, 378 (Tenn. Crim. App.

1982) (citing Baxter v. State, 503 S.W.2d 226, 228 (Tenn. Crim. App. 1973)).

In our view, the trial court did not abuse its discretion by denying the 

defendant‟s motion to continue. Evidence that the ball cap discovered inside the truck 

that was registered to the defendant bore the defendant‟s DNA was neither exculpatory 

nor particularly probative of the defendant‟s guilt and, perhaps more importantly, was 

cumulative to other proof that the truck belonged to the defendant and that the defendant 

had committed the offenses at issue. Mr. Hendricks, Mr. Goble, Ms. Goble, Joshua 

Goble, Mr. Majors, and Mr. Brumley all identified the defendant as the perpetrator, and 

Messrs. Hendricks, Majors, and Brumley placed the defendant inside the black pickup 

truck. Additionally, the defendant‟s wallet, which contained his driver‟s license and 

other identifying information, was found inside the truck, along with the defendant‟s 

blood.

IX. Suppression

The defendant next asserts that the trial court erred by refusing to suppress 

evidence seized from his black pickup truck, arguing that “the information contained in 

the affidavit in support of probable cause was obtained during an illegal search of his 

vehicle that occurred on the scene.” Essentially, he claims that the officers illegally 

searched his truck at the scene of the crash and then used the information obtained during 
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that illegal search as the basis for getting a warrant to search the truck. The State avers 

that the trial court did not err by denying the defendant‟s motion because probable cause 

existed for the issuance of the warrant to search the defendant‟s truck aside from the 

evidence seized during the purported inventory search that was conducted at the scene.

A trial court‟s factual findings on a motion to suppress are conclusive on 

appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 

217 (Tenn. 2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, questions of 

credibility, the weight and value of the evidence, and the resolution of conflicting 

evidence are matters entrusted to the trial judge, and this court must uphold a trial court‟s 

findings of fact unless the evidence in the record preponderates against them. Odom, 928 

S.W.2d at 23; see also Tenn. R. App. P. 13(d). The application of the law to the facts, 

however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 

1998).

Both the federal and state constitutions offer protection from unreasonable 

searches and seizures with the general rule being “that a warrantless search or seizure is 

presumed unreasonable and any evidence discovered subject to suppression.” State v. 

Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (citing U.S. Const. amend. IV; Tenn. Const. 

art. I, § 7).

Although not raised by the parties, we address the issue of whether the 

seizure of items from the pickup amounted to a search or seizure for constitutional 

purposes.

The constitutional protections against unreasonable search and seizure “„are 

personal in nature, and they may be enforced by exclusion of evidence only at the 

instance of one whose own protection was infringed by the search and seizure.‟” State v. 

Cothran, 115 S.W.3d 513, 520 (Tenn. Crim. App. 2003) (quoting State v. Ross, 49 

S.W.3d 833, 840 (Tenn. 2001)). “One who challenges the reasonableness of a search or 

seizure has the initial burden of establishing a legitimate expectation of privacy in the 

place where property is searched.” State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. 

App. 1991) (citing Rawlings v. Kentucky, 448 U.S. 98 (1980); State v. Roberge, 642 

S.W.2d 716, 718 (Tenn. 1982)); see Katz v. United States, 389 U.S. 347, 357 (1967); see 

also State v. Prier, 725 S.W.2d 667, 671 (Tenn. 1987) (stating that our state constitution 

affords no greater protection than the federal constitution and adopting the Katz

standard). Thus, we must determine “(1) whether the individual had an actual, subjective 

expectation of privacy and [if so] (2) whether society is willing to view the individual‟s 

subjective expectation of privacy as reasonable and justifiable under the circumstances.” 

State v. Munn, 56 S.W.3d 486, 494 (Tenn. 2001) (citing Smith v. Maryland, 442 U.S. 

735, 740 (1979); Ross, 49 S.W.3d at 839). The second part of this inquiry focuses on 
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“whether, in the words of the Katz majority, the individual‟s expectation, viewed 

objectively, is „justifiable‟ under the circumstances.” Smith, 442 U.S. at 740 (quoting 

Katz, 389 U.S. at 357).

Because the Fourth Amendment protects people and privacy rather than 

places and property, a property interest does not determine standing to challenge a search 

and does not control the right of officials to search and seize. See Oliver v. United States, 

466 U.S. 170, 183 (1984); Katz, 389 U.S. at 351, 353. As the Supreme Court has 

recognized, “[w]hat a person knowingly exposes to the public, even in his own home or 

office, is not a subject of Fourth Amendment protection. . . . But what he seeks to 

preserve as private, even in an area accessible to the public, may be constitutionally 

protected.” Katz, 389 U.S. at 351. Importantly, a “person can lose his reasonable 

expectation of privacy in his real property if he abandons it. Thus, a person can, as he 

can with any other property, sufficiently manifest an intent to abandon his house.” 

United States v. Harrison, 689 F.3d 301, 307 (3d Cir. 2012). “Abandonment for 

purposes of the Fourth Amendment differs from abandonment in property law; here the 

analysis examines the individual‟s reasonable expectation of privacy, not his property 

interest in the item.” United States v. Fulani, 368 F.3d 351, 354 (3d Cir. 2004) (citing 

United States v. Lewis, 921 F.2d 1294, 1302 (D.C. Cir. 1990)). Consequently, 

“abandonment,” as understood in the constitutional context of unreasonable searches and 

seizures, “is not meant in the strict property-right sense, but rests instead on whether the 

person so relinquished his interest in the property that he no longer retained a reasonable 

expectation of privacy in it at the time of the search.” United States v. Veatch, 674 F.2d 

1217, 1220-21 (9th Cir. 1981).

In this case, the defendant fled the McDonald‟s in his black pickup truck 

and then crashed the truck a short distance away. The defendant jumped from the 

crashed truck and ran into the parking lot of the Aquatic Critter, where he stole the 

Gobles‟ van and fled the scene, ultimately traveling to Texas where he was later arrested. 

When officers arrived on the scene, the defendant‟s truck was partially obstructing the 

roadway. By leaving his crashed vehicle in a position that was blocking the roadway and 

fleeing in another vehicle, the defendant manifested through his own actions an intent to 

abandon the truck and its contents. As a result, the defendant maintained no reasonable 

expectation of privacy in the vehicle or the materials contained therein. Consequently, no 

search occurred for constitutional purposes, and neither the seizure of evidence from the 

truck at the scene or thereafter violated the defendant‟s constitutional rights.

X. Mr. Hendricks’ Out-Of-Court Identification

The defendant argues that the trial court erred by refusing to exclude 

evidence regarding Mr. Hendricks‟ out-of-court identification of the defendant as the 
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perpetrator. We need not tarry long over the defendant‟s claim because it was the 

defendant who admitted this evidence at trial. At no point during the direct-examination 

of Mr. Hendricks did the State mention Mr. Hendricks‟ out-of-court identification. 

During his cross-examination of Mr. Hendricks, however, the defendant brought the issue 

before the jury and described in detail the circumstances surrounding the identification. 

The State only broached the subject during redirect-examination and only did so in a 

manner designed to clarify the circumstances of the identification. See Tenn. R. App. P. 

36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party 

responsible for an error or who failed to take whatever action was reasonably available to 

prevent or nullify the harmful effect of an error.”).

XI. Detective Donaldson’s Testimony to the Tennessee Board of Probation and Parole

The defendant asserts that the trial court erred by refusing to require 

production of the transcript of Detective Donaldson‟s testimony before the Tennessee 

Board of Probation and Parole at the defendant‟s parole revocation hearing. The 

defendant failed to raise this issue in his motion for new trial and, in consequence, it is 

waived. Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented for 

review shall be predicated upon error in the admission or exclusion of evidence, . . . or 

other ground upon which a new trial is sought, unless the same was specifically stated in 

a motion for a new trial; otherwise such issues will be treated as waived.”). Additionally, 

the defendant has failed to support this issue with any citations to the record, and his 

citation to Jencks v. United States, 353 U.S. 657 (1957), is inapt. See Tenn. Ct. Crim.

App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or 

appropriate references to the record will be treated as waived in this court.”). Under 

these circumstances, the defendant has waived our consideration of this issue.

XII. Sentencing

In his final claim for relief, the defendant contends that the trial court erred 

by imposing partially consecutive sentencing in this case. The State asserts that 

consecutive sentencing was appropriate given the defendant‟s history of violent criminal 

offenses and the defendant‟s parole status at the time of the offenses.

Our standard of review of the trial court‟s sentencing determinations in this 

case is whether the trial court abused its discretion, but we apply a “presumption of 

reasonableness to within range sentencing decisions that reflect a proper application of 

the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 

(Tenn. 2012). The application of the purposes and principles of sentencing involves a 

consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of 

the defendant . . . in determining the sentence alternative or length of a term to be 
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imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005 

amendments to „place on the record, either orally or in writing, what enhancement or 

mitigating factors were considered, if any, as well as the reasons for the sentence, in order 

to ensure fair and consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. § 

40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is 

within the appropriate range and the record demonstrates that the sentence is otherwise in 

compliance with the purposes and principles listed by statute.” Id. at 709.

With respect to consecutive sentencing, our supreme court has held that the 

standard of review adopted in Bise “applies similarly” to the imposition of consecutive 

sentences, “giving deference to the trial court‟s exercise of its discretionary authority to 

impose consecutive sentences if it has provided reasons on the record establishing at least 

one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b).” 

State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013).

In this case, the trial court imposed partially consecutive sentences based 

upon its findings that the defendant had knowingly devoted himself to a life of crime, that 

the defendant committed the offenses while on parole, and that the defendant was a 

dangerous offender who had shown no hesitation about committing crimes where the risk 

to human life was high. See T.C.A. § 40-35-115(b)(1), (4). The court also found that 

consecutive sentencing was “necessary to protect the public against further criminal 

conduct by the defendant” and that “consecutive sentencing reasonably relates to the 

seriousness of the offenses committed.” See Pollard, 432 S.W.3d at 863.

In our view, the record supports the sentencing decision of the trial court. 

The evidence adduced at the sentencing hearing established that the defendant committed 

his first murder at age 14, and then, in 1978, the defendant stabbed a woman to death. 

The defendant pleaded guilty in 1979 to second degree murder and received a life 

sentence. The defendant escaped from prison in 1983, and was convicted of robbery and 

felony escape in relation to that escape. He was paroled in January 2005, and he 

committed the offenses in this case on July 22, 2006.

Conclusion

Because felony reckless endangerment is not a lesser included offense of 

aggravated assault, the defendant‟s conviction of felony reckless endangerment in count 

seven must be reversed and that count remanded for a new trial on the remaining lesser 

included offense of assault. Finding no other error, we affirm the judgments of the trial 

court in all other respects.
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__________________________________

JAMES CURWOOD WITT, JR., JUDGE