# FILED May 6, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE NOVEMB ER SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9712- CR-00564 ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. CHERYL BLACKBURN RAYMOND HALE, ) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Cla ss C Felo ny)

FOR THE APPELLANT : FOR THE APPELLEE : JEFFREY A. DEVA SHER JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter (On A ppea l) DARYL J. BRAND JOAN A. LAWSON Senior Counsel Assistant Public Defender 425 Fifth Avenu e North (At Tr ial) Nashvill e, TN 37201-1649 1202 Stahlman Buildi ng Nashvill e, TN 37201 VICTOR S . JOHN SON Distri ct Attorney General DAN HAMM SHARON BROX Assistant District Attorn eys 222 Se cond A venue N orth Nashvill e, TN 37201-1649
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

# OPINION

The appellant , Raymond A. Hale, Jr., w as con victed by a Davidso n Cou nty jury of one (1) coun t of robb ery, a C lass C felony. T he trial c ourt se ntenc ed him
as a Range I offender to fiv e (5) years in communit y correct ions and orderedthat Appe llant’s sentence run consecutively to his sentence on an unrelated offense forwhich he was on probati on at the ti me the present of fense was committed. On appeal, Appella nt rai ses the followi ng issues for our revi ew: (1) wheth er the e videnc e is sufficient to sustain t he jury’ s verdict of guilt; (2) whether the t rial cour t erred i n faili ng to inst ruct thejury on the lesser inc luded o ffense of a ttempte d theft; (3) whether the trial cou rt erred in charging th e jury with the “truth in sentencing”

instruct ion; and (4) whether the t rial court err ed in imposing consecutive sentences. After a thorough review of the r ecord before this C o urt, we conclud e that there is no rever

sible err or. Accordi ngly, t he judgment of t he trialcourt is affirmed.

FACTS

At approximatel y 8:00 p.m. on December 13, 1996, Delores But ler, her daughter and her granddaughter left t he Walgreens’ drugs tore on Gallat in Pike in Nash ville. As they w ere walk ing to their ca r, a man approa ched M s. Butle r and deman ded that she give him her pu rse. Butler re sponded , “no, I’m not.” The man reached for her purse, and as Butler stepped away fr om the man, she fell backward s. As she fell, Butler dro pped her belo ngings, whi ch scattered throug hout the parking lot. The man rea ched over B utler, and Butler b ega n-3-

kicking and screaming. The man then r an away with an o bject in his hands. Subseq uently, when B utler attem pted to co llect her be longings in the park ing lot, she wa s unab le to locate her wallet. B ys tanders in the area heard the vi ctim shouti ng and came to her assistance. Several men chased the perpet rator, apprehended him and brought him back to the Walgreens’parking l ot. Butl er identified the man apprehended by the bystander

s as the man who robbed h er. The offender was i dentifi ed at trial as the A ppellant. The next morning, Ms. Butler went back to Walgreens’and found her wal let in the parking l ot. The wall et was found in close pr oximity to where the i ncident
occurre d. The jury found Appellant guilty of rob bery, a nd the tri al court s entenced Appellant

to fiv e (5) years , to be served o n com munity c orrection s. The trial court further ordered that

Appellant’ s sentence for robbe ry wou ld run c onse cutively to his sentence on an unrelated offense for whi ch h e was

on p rob ati on at

theti me of the present offense. From his convi ction and sentence, Appellant now brings this ap peal.

SUFFICI ENCY OF THE EVI DENCE

In his first is s ue on appeal, Appel lant chal lenges the suf ficien cy of the convicti ng evidence. Sp ecifically, he claims that there was insuffici ent evidence to establish th at Appe llant ob tained or exer cised contro l over M s. Butle r’s property. Th ere fore, he ar gues that he di d not commit a “t heft of pr operty” as required by the robbery statute, and no rationaltrier of fact could have fou nd him guilty of robb ery beyo nd a rea sonab le doub t.-4- A. When an appellant

challenges t he suffi ciency of the evidence, this Co urt is oblige d to rev iew tha t challe nge a ccording to certai n well-settl ed principles. Wh ere the suffi ciency of the evidence i s contested on appeal , the rel evant question for the r

eviewing cour

t is wheth e r any rational trier of fact could h ave found the accu sed gu ilty of e very elem ent of th e offen se be yond a reaso nable doubt. Tenn. R. App . P. 13(e); State v. Harris , 839 S.W .2d 54, 75 (T enn. 1992 ). On appe al, the s tate is e ntitled to the stro nges t legitim ate viewof the evidence
as well asall reas onable and leg it imate in fer ence s th at may bedrawn t herefr om. State v. Cabbage , 571 S.W.2d 83 2, 835 (T enn. 1978). I n conducting our evaluati on of the convi cting eviden ce, this Court is pr ecluded from rewei ghing or reconsideri ng the evide nce. State v. Morgan , 929 S.W.2 d 380 , 38 3 (Te nn. Cri m. App. 1996 ); State v . Matt hews , 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ). Moreover, this Court

may not substi tute it s own inferences “for t hose drawn by the trier of fact from circumstant ial evidence.” State v . Matt hews , 805 S.W.2d at 779. Questions concerning the credib ilit y of the wi tnesses, t he weight and val ue to be given the evidence aswell as al l factua l issues r aised bythe evidence a re resolved by the trier of fact, n ot this Co urt. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). A verdict of gu ilty by the ju ry, approv ed by the trial judge, accredits the test imony of the state’s witnesses and resolves all conflicts in the testim ony in favo r of the state

. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris , 83 9 S.W .2d at 75. Alth ough an ac cuse d is origina lly cl oa ked w ith a pre sum ption o f innoc ence , a jury ve rdict rem oves th is presumption and replaces i t with oneof guilt. State v. Tug gle , 639 S.W.2d 913,-5-

914 (Tenn. 1982). Hence, on appeal, t he burden of proof re sts with Ap pellant to demo nstrate the insufficienc y of the con victing evide nce. Id. B. Robbe ry is defined a s the “inten tional or kn owing th eft of prope rty from the person of another by

violence or putti ng the person in fear.” Te nn. Co de Ann . § 39-13-401 (a). A person commits a theft of prop erty if “with inten t to deprive t he
o w ner of propert

y, the per

son knowingly

obtains or

exercises control ov er the property without the own er’s effective consen t.” Tenn. Code Ann. § 39-14-103. C. Appe ll ant argues that there is i nsuffic ient evi dence to establ ish tha t h e obtained or exercised co ntrol over Ms. Bu tler’s property, and acco rdingly, there is insuffi cient evi dence thathe committed a thef t. He bases thi s argument on the fact that the victim found her wall et in the Walgreens’ parking l ot the day after the incident. The victi m testifi ed thatAppellant appr oached her and demanded that she give him her purse . Butler declined to turn over her belongi ngs, stepped away from Appella nt and fell b ackwa rds. Appe lla nt reached over her, and she and Appellant st ruggled. As t hey were str uggling, Appellant gr abbed an object and
ran away with what ap peared to be her wallet in his h ands. An eyewitness t o the incident test ified that he saw A ppellant grab so mething b efore running a way. Anothereyewitness stated that Appellant appe ared to be clutching an object as he was running away from the scen e. Although the vict im found her wallet the next day

in the gener

al vici nity t hat the inc ident to ok pla ce, it was a jury question as to whether Appell ant obtained
or exercised control over the wall et. The jur y could have proper ly found t hat Appellant

seized the victim ’s wall et and then dropp ed the wall et during t he-6-

struggle with Butler

oras he fled the scen e. This Court may not second-guess the jury’ s findi ngs in thi s regard. We, therefore, concl ude that ther e is suff icient evidence for a rational trier of fact to find Appe llant guilty of robbery beyon d a
reason able do ubt. This issu e has n o merit.

LESSER INCLUDED OFFENSE - ATTEMPTED THEFT
Appe ll ant contends tha t he was den ied a fair trial when the trial court refused to instruct the jury on the le sser inclu ded offe nse of atte mpt ed theft of property. He asserts that the evidence presented at t rial could have suppor ted
a findingby the jury th at App ellant d id not o btain control ove r the victim’s property and thathis acti ons did not pl ace the victi m in fear. Therefore, he c laims that the evidence would su pport an instruction on attem pted the ft, and the trialcourt err ed in failing to so instruct the jury. In a criminal tri al, the accused has a right to a correct an d complete charge of the lawapplicab le to the ca se. State v. Phipps , 883 S.W.2d 138, 142 (Tenn. Cri m. App. 19 94); State v. Wright , 618 S.W .2d 310, 315 (Tenn. Crim . App. 1981 ). It is well -establi shed that a defendant is ent itled t o a jury instr uction “on all lesser included offenses where ‘any facts . . . are suscept ible of inferr ing guil t of any lesser i ncl uded offens e.’” State v. T rusty , 919 S.W.2d 305, 310 (Tenn. 19 96) (quoting State v. Wright , 618 S.W.2d at 315). Tenn. Code Ann. § 40-18-110(a) provides: It is the du ty of all judges chargi ng juries in cases of crimi nal prosecution s for any felony wherei n two ( 2) o r mo re grades or classes of offense may be included i n the indi ctment, to charge the jury as to all of the law of each offense included in the indictm ent, without an y reques t on the pa rt of the defe ndant to do so.-7- “An offens e is ne cess arily inclu ded in another if the elements of

the greater offense, as those elements are set for th in the i ndictmen t, incl ude, but are not congruentwith, all the elements of the lesser.” Howa rd v. State , 578 S.W.2d 83, 85 (Tenn . 1979); see also State v. Trusty , 919 S.W.2d at 310-11. In other words,
an offens e is con sidere d a les ser inc luded offens e “if the elements of t he included offense are a subset of the elements of

the charged o f fense” and “t he greater offense cannot be committed withoutalso committi ng the lesser offense.” State v. Trusty , 919 S.W.2d at 310. In the case sub judice , the trial court charged the j ur y with ro bbery, attempted robbery a nd theft of property. Appellant requ ested that the trial court instruct the jury on attempted t heft, but the tri al court de clined to do so. Theft of prop erty is cle arly a le ss er includ ed offense of robbery as t he eleme nts of theft are a “subset” of the el ements of robbery and one m ust co mm it
a “theft ” in order

to commit the of

fense ofrobbery

. See State v. T rusty , 919 S.W.2d at 310; Tenn. Code Ann. §§ 39- 13-401(a), 39-14-103. Furthermore, at triala defense theor

y was that Appel lantdid notcomplete the t heft because he did not obtain or e xercise co ntrol over t he victim’s propert y. Under these circumstances, attempted theft wa s a lesser i ncluded offense of the i ndicted offense of robb ery. “If the re is an y evide nce re ason able mind s cou ld accept as to any such lesser

offenses, the accu sed is entitl ed to appropri ate inst ructions regarding the les ser offenses.” State v. Atkins , 681 S.W.2d 571, 577 (Tenn. Cri m. App. 1 984). T hus, th e trial co urt erre d in failing to instruct the jury as to the lesser inc luded o ffense of a ttempte d theft. H owe ver, Appe llant is no t nece ssarily e ntitled to relief as a resu lt of this
error. Our Sup reme C ourt has held tha t a trial court’s failure to instru ct on a lesser included offense is subject t o harmless error analysis. State v . Wil li ams ,-8-

977 S.W.2d 101, 106-08 (Tenn. 1998) . In Williams , the defendan t was charged with premeditated first deg ree murder, and t he trialcourt instructed t he jury on premeditated first degree mu rder, second degree murder and reckless homi cide. Id. at 104. T he tr ial court r ejected a defense request for an instruction on voluntary mans laughte r. Id. Wh ile ackn owled ging th at the tria l court e rred in refusing to charge the jury o n voluntary ma nslaughter, the C ourt held such err or was harmle ss beyo nd a rea sonab le doub t. Id. at 106-0 8. The Court reasoned: [b]y convicting the defe ndant of first degree murder the jury determined thatthe proo f was suffic ient to establish all the elem ents of that offense beyon d a rea sona ble doubt, in cluding t hat the ki lling was “intent ional, d eliberate and premeditated.” In other w ords, by findingthe defendant guilty of the hi ghest offens e to the excl usion of the imme diately lesser offense , second de gre e mur der, the jury nece ssarily rejected a l l oth er lesser offense s, including voluntary manslau ghter. Acco rdin gly, th e trial court’s e rroneou s failure to charge voluntar

y manslaughter i s harmless be y ond a reaso nable doubt becau se the jury’s verdict of gu ilt on the gre ater off ens e of first degree m urd er and its di sincli nation to consider t he lesser incl uded offense o f second degree murde r clearly dem onstr ates tha t it ce rtainly would not have returned a verd ict on voluntary manslau ghter. Id. at 106. The presen t case is clo sely ana logous to Williams . The trial cou rt prop erly charged the jury wi th the les ser offenses of attempted robber

y and theft , but the jury returned a gui lty ve rdict on t he indicted offense of robbe ry. By returni ng a guilty verdic t on the greatest of fense to t he exclusi on of the l esser charged offenses, the jury “ nece ssarily rejected all other lesse r offenses.” Id. As a res ult,
we mu st conclu de that the error was harmle ss beyo nd a rea sonab le doub t. This issu e is withou t merit.1 Tenn. Code Ann. § 40-35-201(b) provi des: (1) In all

contested cri minal cases, except for capit

al crimes which are governed by th e procedures cont ained in §§ 39-13-204 and 39- 13-205, upon t he motion of ei therparty,filed with the court pri or to the selection of the jury, the courtshall char ge the possible penalti es for the off

ense charged and all lesser i ncluded offenses. (2)(A)(I) When a charge as to possi ble penalties has been request ed pursuant to

subdivision (b)(1), the judgeshall also include i n the inst ructions f or the jury t

o weigh and consi der the meaning of a sentence of imprisonment for the offense charged and any lesser incl uded offenses. Such instruction shall include an approximate calculation of the minimum number of years a person sentenced t o imprisonment for the offense charged and lesser i nclude d offenses must serve bef ore rea ching such person's earli est release eligi bility date. Such calculat ion shall include such fa ctors as the releas e eligibility percenta ge esta bl ishe d by § 40-35-501, maximum and minimum sentence reduction credits authorized by § 41-21-236 and the governor's power to reduce prison overcrowdin g pursuant to title 41, chapter 1, part 5, if app licabl e. (ii) Such instructions to the jury shal l also i nclude a stat ement thatwhet her a defe nda nt is actu ally released from incarce ration on th e date w hen su ch defe ndant is fir st el igibl e for release is a discretionary deci sion made by the boar d of paroles based upon many factors, and that such boar

d has the authority

to requi re the defendant to serve t he entire sentence impo sed by the court. (B) On an annua l basis, the department of correction shall pro v ide each judge e xercising criminal trial court jurisd iction with the appr oxim ate calculation required in subdivision (2)(a). Such calculation shall be broken down to show t he effect of each factor usedin making such calculat ion. If the calculati on provided by the dep artme nt to the judges changes be cause of a change in the law or correctional policy, court intervention, the govern or's pri son overcrowdingpolicy

or any ot her such circumstance, the dep artment shall send a revised calculation to the judges as such chang es occur. -9- “TRUTH I N SENTENCI NG” JURY INSTR UCTION

In his next i ssue, Appell ant contends that the t rial cour t erred i n instruc

ting the jury on t he minimum number of years he woul d serve befor e becoming eligible for parole. He claim s that Tenn . Code An n. § 40-35-20 1(b), 1 which requiresthat parol e eligi bilit y be charged in conjunct ion with a range of penal ties charge, is unconstitut ionally vague, violates due process, deprivesa defendant of a fair and im partial jury an d cons titutes an u ncons titutional attem pt b y th e legislature t

o exercise judici al powers. A. The state resp onds that t his issue i s control led by the r ecent Tennessee Supr eme Court case State v. King , 973 S.W.2d 586 (Tenn. 1998) , wh erein the2 Effectiv e May 18, 1998, Tenn. Code Ann. § 40-35-2 01(b) was amended to provide the fol lowing: In all contested cri minal case s, except for capital crimes which are gov erned by t he procedures contained i n §§ 39-13-204 and 39-13-205, and as necessary t o comply wit h the Constitution of Tennessee, art icle VI , secti on 14, and § 40-35-301, the judge shal l not i nstruct the jury, no r sha ll the at torne ys be p erm itted to com me nt at a ny tim e to th e jury, o n pos sible penalti es for the of

fense charged nor al l lesser included of

fenses. -10- Court held Te nn. Co de Ann . § 40-35-201(b)(2) cons titutiona l. 2 In King , the Court rejected similar

challenges to the parole eligib ilit y jury i nstructi on, concludi ng that th e st atute was not impermissibl y vague and did not violate the separati on of powers clauses of t he Tenne ssee C onstitution

. Id. at 588-92. The Court also noted that t he jury i nstructi on did not depr ive thedefendant of an impartial jury. Id. at 588, n. 4. Furthermore, the Court determined that the d efendant’s due process ri ghts were not v iolated by the inst ruction and observed: [t]hejurors in this case were pro perly instruc ted that the State must prove each element of t he char ged offe nse b eyond a reas onab le doubt. Signifi cantly, theywere additi onally i nstructedthat they were not to attem pt to fix punish ment f or the offense and t hat the sentencing inform ation w as “for y our info rmatio n only .” When the trialcourt e xplains , as it did here , that t he sentencing, parole, and early release i nformation i s not to be consi dered in t he determinati on of guilt or i nnocence, then certainly no due process violat ion has occurr

ed. Id. at 592 (em phasis add ed). The holding i n King was limited, ho wever, to the ci rcumstances of t hat particul ar case. The Court concl uded, “[i ]n sum, un der t he circumstances presented we find that the jury instruct ion given under Tenn. Code Ann. § 40-35- 201(b)(2) did not deprive the appel lant of his due processright to a fair trial.” Id. B. Subsequent to the release of King , this Court fil ed its opi nion in the case of State v. Jason M. Weiskopf , C.C.A. No. 02C01-9611- CR-00381, 1998 Tenn. Cri m. App. LEXIS 1228, Shelby County (Ten n. Cr im. App. fi led December 4,3 The original opinion i n Weiskopf was filedon February 4,1998, wherei n this Court held Tenn. Code Ann. § 40-35-201(b)to be unconstitutional as it is vi olative of the due proces s clause s of the fe deral and state constitu tions. State v. Jason M. Weiskopf , C.C.A. No. 02C01-9611-CR-00381, 1998 Tenn. Crim. App. LEXIS 153, Sh elby Coun ty (Tenn. Crim. App . filed February4, 1998, at Jackson). The Supreme Court remanded the case to the Court

of CriminalAppeals for r econsideration of the i ssue in light of the Cour t’s hol ding in King

. State v. Jason M. Weiskopf , 1998 Tenn. Cri m. App. LEXIS 1228, at * 1. -11- 1998, at Jackson). 3 Judg e Joe G. Rile y, writ ing for th e Court, hel d that the defenda nt’s due proce ss rights had be en violated by the p arole eligibility jury instruct ion. The C ourt dis tinguis hed th e Sup reme Cour t’s hold ing in King on the basis that, unl ike in Ki ng , the jur y in Weiskopf was in structe d that th ey cou ld “weigh and co nsider the mean ing of a sentence of imprisonm ent.” Id. at *3-4. The Court observed t hat the ju ry does not determine a defen dant’s sente nce in non-capitalcases, and ther efore, such sentencing i nformation is irrelevant to the j ury’s determ ination of g uilt or innoce nce. Id. at *4. As a resu lt, t he Cour t concluded that instructing the jury that they c ould “weigh an d consider” extraneo us, irrelevan t informa tion depr ived the d efenda nt of a fair trial. Id. C. In the case sub judice , the trial court in structed th e jury th at the y could “weigh and cons id er the mea ning of a sente nce of impriso nment.” Th e court further instructed the jury as to the range of p unishment for robber y, attempted robbery and the ft. The jury w as instruc ted that the earliest rele ase eligib ility date for robbery was .36 years (13 1 days) a nd the e arliest relea se eligibility date for attempted robbe ry was .24 years ( 87 days). The t rial cour t also i nstructed t he jury that punishm ent for t heft of property “ may be set up to el even (11) months and twe nty-nine (2 9) days.” We agree wit h the Weiskopf court that instruct ing the j ury to “wei gh and consider

themean ingof a

sen ten ce o f i mp risonmen t” affects an ac cuse d’s constit utional right to a fair trial. Therefore, we conclude that the trialcourt err

ed-12-

in instruct ing the j ury that they could “weigh and consi der” such irrelev an t sentencing i nformation. D. Erroneous jury instruction s are sub ject to harmle ss error re view. State v. Belser , 945 S.W .2d 776 , 782 (T enn. C rim. App . 1996). However, if the error

is constit utional in natu re, ther e mu st be a revers al u nless t he error is harmless beyond a reaso nable d oubt. Id. In Weiskopf , the Court declined to find harml ess er ror. T he Court observed that the jury was instru cted that the ea rliest release el igibil ity date for first degree murder was 25 years; for second degree murder, the earli est release eligibility date was 1.0 6 years; and the earliest release eligibility date for volunta ry manslaughter

was .21 years. State v. Jason M. Weiskopf , 1998 Tenn. Crim. App. LEXIS 1228, at *4. The Court stressed t he gross discr epancies between t he release eligi bilit

y date for

first degree murder as opposed to that for second degree murde r and volu ntary ma nslaug hter. Id. The Court stated , [w]e know no t to what extent , if any , the jur y considered t he ridiculo usly low releas e eligi bilit y dates for

second d egree m urder and voluntar

y manslaughter as

compar ed to the much higher release eligibility date for first degree mu rder. Nevertheles s, we are unab le to con clude that this informati on had no im pact upon th e jury since the primary issue was the degree of homicide. Id. In the present case, the j ury was inst ructed that t he earliest rel ease eligibility date for robbery w as .36 years, ap proximately 4 months, 11 days, and .24 years, appr

o ximately

2 months, 27 days, for attempted robbery. The distin ction between the rele ase e ligibility da tes is slig ht and in no way approaches the glaring di screpancies i n release el igibil ity dates not ic ed by th is Cou rt in Weisk opf

. Furthermore, the jury was not i nstructed on a minimum release-13-

eligibility date for t heft of property, but was inst ructed that the sentence “ may be set up to eleven (11) months and twent y-nine (29) days.”

When read with the
rema in ing instruction s as to se ntencing range, th is statem ent gives th e impression that Appe lla nt could be r equired to s erve the ent ire eleven (11) months and twenty-nine (29) days, clearly a more lengthy sentence than approximately 4 months, 11 days or approxi mately 2 months, 27 days. “Jury instruc tions m ust be read a s a wh ole rath er than in isolation.” State
v. Belser , 945 S.W .2d at 782 . After review ing the jury in str uctions, we are convinced that theparole eligibility jury instruct ion does not “affirmatively appear to ha ve affecte d th e result of the trial on the m erits.” Tenn. R. C rim. P. 52(a). The error was, therefore, harmless. This issu e is withou t merit.

CONSECUTIVE SENTENCING

In his final issue, Appel lant contends that t he trialcourt err ed in orderi ng thathis sentence for robber y run consecutively to his sentence f or a prior

offense. Appellant

acknowledges that the t rial cour t properl y found that

he committed the presentoffense whi le on probati on for a prev ious offense. See Tenn. Code Ann. § 40-35-115(b)(6). However, he argues that consecutive sen t encing is not
reaso nably related to the severity of the offense co mmitted a nd is not nece ssary to protect the pub lic fro m futur e crimina l acts. See State v. Wilkerson , 905 S.W .2d 933, 939 (Tenn. 199 5). A. When an appellant chall enges the lengt h, range, or manner of service of
a sentence, t his Court conduct s a de novo review wi th a p resu mption that the-14-

determinati on of the trial court was corre ct. Tenn. Co de Ann. § 4 0-35-401(d ). Howeve r, this presum ption of correctne ss is “conditioned upon the affirm ative showing that thetrialcourt in the record cons idered thesentencing principl es and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In t he eve nt that the record f ails to demonstrate such considerati on, review of the sente nce is purely de novo

. Id. If appell ate revi ew reflects that the t rial court p roper ly considered al l relev ant factor

s and its f indings of fact are ade qu ately suppor ted by the r

ecord, thi s Court must aff irm the senten ce. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ). In condu cti ng a review, this Court must consider t he evidence, t he presentence report, the sentenci ng princi ples , the arguments of counsel , the nature and ch aracter o f the offens e, mitigatin g and e nhanc emen t f actors, any st ateme nts made by the defendant , and the potential f or rehabil itat ion o r treatme nt. State v. Holland , 860 S .W.2d 53, 60 (Tenn. Cri m. App. 1993). The defendantbears the burden of showing t he impropriet y ofthe sentence imposed. State v. Grego ry , 862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ). Consec utive sentencing i s gover ned b y Tenn. Code Ann. § 40-35- 115. Th e trial cou rt may order s enten ces to run co nsec utively if it fin ds by a preponderance of the evidence that one or mo re of the require d statu tory crite ria exist. State v. Black , 924 S.W.2d 912, 917 ( Tenn . Crim. App. 19 95). Furthermore, the court i s required t o determine whether the c onsec utive sentences (1) are reasonably related to the severit y of theoffenses committed; (2) serve to pr

otect the public f rom further criminal conduct by t he offender; and4 Currently pending befo re the Sup rem e Co urt is th e issu e wh ethe r a tria l cour t is requi red to make Wilkerson findi ngs when consecutiv e sentencing is based upon crit eria other

than the “d angerous offender” standard under Tenn . Code A nn. § 40- 35-115 (b)(4). See State v. David Keit h Lane , C.C.A. No. 03C01-9607- CC-00259, 1997 Tenn. Crim. App. LEXIS 5 66, Bradley County (Tenn. Crim. App. fi led June 18, 19 97, at Knoxville), perm. to app.granted (Tenn. February 2,1998). Nevertheless, under our review of this issue, we willrequire Wilkerson findi ngs regardless o f the statutory basis for consecutive sentencing. -15- (3) are congruent with general principl es of senten cing. State v. Wilkerson , 905 S.W.2d at 939. 4 B. The trialcourt, after consideri ng the enhancement and mitigating factors, sentenced Appellant as a Range I offender

to fiv e ( 5) ye ars for his robbery convicti on. The court fur ther found t hat Appellant committed the present offense while he was on probati on for a prev ious offense. Tenn. Code Ann. § 40- 35- 115(b)(6). After considering the consec utive sen tencin g facto rs enu nciate d in Wilkerson , the trial court ordered that App ellant’s sen tence ru n cons ecutively to his sente nce fo r a prior offens e for wh ich he was o n prob ation a t the tim e the present offense was committed. C. Appellant

concedes that t he presentoffense was committed while he was
on probation f

or aggravate d burglary . Therefore, consecutive sentencing was
a ppropri ate under Tenn. Code Ann. § 40-35- 115(b)(6). However, Appell ant contends tha t the re is i nsuffic ient evi dence to support the facto rs requir

ed by Wilkerson

. The presentenc e report reflects that Ap pellant has a crim inal history includ ing conviction s for agg ravated b urglary, ag gravated assau lt, assault, disord erly condu ct and ha rassm ent. He w as on p robation for aggra vate d b urg lary and was awaiting trialfor harassment at the ti me the present offense
was committed. Fur thermore, he was ar res ted for dr iving on a s uspended5 Accor ding to the p resente nce rep ort, Appellant was arrested f

or drivin g on a sus pen ded licens e in July 1992,but failed to appear i n court. I n January 1995,he was arrested due to his prior failure to appear and convicted on the offense of drivi ng on a suspended li cense.

-16- license while on probation forassault i n 1992, and was subsequent ly convi cted of that of

fense. 5 Appellant

has shown a continu ing disre gard for the laws of t his stat e. He has repeatedly

violated the terms of

release i nto the community . Moreover, the severity of his cr imes have escal ated over time. After consideri ng the general principl es of senten cing, we c onclud e that c ons ecutive sente nces are rea sona bly related t o the s everity o f the offe nse c omm itted an d serve to prote ct the p ublic from Appellant’ s further criminal con du ct. See State v. Wilkerson , 905 S.W.2d at 939. This issu e has n o merit.

CONCLUSI ON

After a thoroug h review of the record bef

ore this Cour

t, we fi nd no reversi ble error . Accordingly, the j udgment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOHN H. PEAY, JUDGE