IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 1, 2005

STATE OF TENNESSEE v. GEORGE HAMPTON

Direct Appeal from the Criminal Court for Shelby County

Nos. 03-01711,18 Joseph B. Dailey, Judge

No. W2004-01248-CCA-R3-CD - Filed July 14, 2005

Following a jury trial, Defendant was found guilty in case No. 03-01711 of three counts of

aggravated robbery, Class B felony, involving victims Henry Skelton, Mark Mears, and John Norris,

and one count of aggravated assault, a Class C felony, involving victim Myron Raymond. The trial

court sentenced Defendant as a Range III, persistent offender, to thirty years for each aggravated

robbery conviction and fifteen years for the aggravated assault conviction. Defendant was found

guilty in case No. 03-01718 of one count of especially aggravated robbery, a Class A felony, of Dr.

Charles White, and the trial court sentenced Defendant to sixty years as a Range III, persistent

offender, for this offense. The trial court ordered Defendant’s sentences in case No. 03-01711 to be

served consecutively to each other and consecutively to his sentence in case No. 03-01718, for an

effective sentence of one hundred and sixty-five years. On appeal, Defendant does not challenge the

sufficiency of the convicting evidence. Defendant argues, however, that the trial court’s application

of enhancement factors in determining the length of his sentences violated his Sixth Amendment

right to trial by jury. Defendant also argues that the trial court erred in imposing consecutive

sentencing. After a thorough review of the record, we affirm the judgments of the trial court, and

the imposition of consecutive sentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court Affirmed

THOMAS T. WOODALL,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR.,

and J.C. MCLIN, JJ., joined.

Robert Wilson Jones, District Public Defender; Garland Erguden, Assistant Public Defender; and

Trent Hall, Assistant Public Defender, Memphis, Tennessee, for the appellant, George Hampton.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;

William L. Gibbons, District Attorney General; Amy Weirich, Assistant District Attorney General;

and Steve Jones, Assistant District Attorney General, for the appellee, the State of Tennessee. 
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OPINION

I. Background

Judy Murphy, a nurse with the Memphis SurgeryCenter, was feeding some stray cats outside

the Center around 6:15 a.m on July 30, 2002. She saw Dr. Charles White drive into the parking lot.

Dr. White started walking toward the Center, and Ms. Murphy saw two men behind him, one of

whom carried a shotgun. The man with the gun said, “Where do you think you are going, old man.”

Dr. White began to run. He tripped and fell face forward onto the pavement. Both men leaned down

to search through Dr. White’s pockets.

Ms. Murphy ran toward the Center. Candy Stidum opened the locked door, and Ms. Murphy

was able to get into the Center just as the man with the gun reached the door. The man pounded on

the door with his gun and pointed the weapon at Ms. Stidum, who was behind the glass panel.

Another nurse in the Center called 911. Ms. Murphy and Ms. Stidum later identified Defendant as

the man who carried the gun during the robbery. 

John Norris, Henry Skelton, Mark Mears, and Myron Raymond had gathered in the parking

lot of a Steak and Ale Restaurant around 6:15 a.m. on July 30, 2002, to collect the newspapers they

would later deliver throughout the city. Two men drove up in a late-model, gray automobile. Mr.

Raymond identified Defendant as the driver of the vehicle. Defendant’s car window was down. Mr.

Norris said that Defendant pulled a stocking mask over his face, pointed a sawed-off shotgun out of

the window and told him and Mr. Skelton to hand over their wallets. Defendant stuck his hand out

of the window, and Mr. Skelton and Mr. Norris handed him their wallets.

The passenger with Defendant, whom Mr. Raymond and Mr. Mears later identified as

Anthony Wallace, exited the vehicle and approached Mr. Mears, demanding money. Mr. Wallace

grabbed some keys and a pager from Mr. Mears’ pockets and then began hitting Mr. Mears. Mr.

Raymond rushed to Mr. Mears’ assistance and pulled Mr. Wallace away from him. Mr. Wallace

went over to the gray car and grabbed the shotgun from Defendant. The three men began circling

Mr. Mears’ truck as Mr. Wallace yelled that he was going to kill Mr. Mears. In the meantime,

Defendant was having trouble starting the gray car, and Mr. Wallace ordered Mr. Mears to hand over

the keys to his truck. The gray car started, however, and Defendant and Mr. Wallace drove away.

Mr. Skelton said he thought that the license plate number of the gray car was HVY 647.

Later that day, around 4:30 p.m., Officer Michael Jackson received information that a car

matching the description of the vehicle used in the early morning robberies was parked at 575

Williams Street. Officer Jackson parked about five hundred feet from the house. Twenty minutes

later, a man came out of the house and drove away in the gray car. The license plate number of the

gray car was HVY 847. Officer Jackson radioed that the vehicle was moving and followed the car

up Williams Street until the driver turned into an alley. A patrol car entered the alley from the other

end and blocked the car’s exit. Officer Jackson identified Defendant as the driver of the vehicle.
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On August 1, 2002, Officer Jackson was at the Greyhound Bus Terminal picking up a family

member when he spotted Mr. Wallace sitting in the waiting room. Mr. Wallace had a one-way ticket

to Buffalo when he was apprehended.

The proof showed that David White was robbed at 12:45 a.m. on July 30, 2002, in the

parking lot of his place of employment. He said that a car pulled into the parking lot as he was

walking toward his vehicle. The car stopped, and the driver stuck a shotgun out of the window. The

passenger got out of the car and took Mr. White’s wallet from his pocket. The driver yelled,

“Anthony, just get his wallet, just get his wallet, Anthony.” Mr. White later identified Defendant

as the driver of the vehicle. 

Officer Kevin M. Shaffer testified that he found one 12-gauge live shotgun shell wrapped in

a Kleenex in the front seat of Defendant’s car.

Sergeant Bart Ragland testified that the Memphis Surgery Center and the Steak and Ale at

which the offenses took place were less than a mile apart. Sergeant Ragland said that some of Dr.

White’s personal belongings were found in a garbage can in the house located on Williams Street

after Defendant was transported to the police station. Sergeant Ragland read Defendant his Miranda

rights at 7:57 p.m. on July 30, 2002. He said that Defendant was cooperative, but he told Sergeant

Ragland that he did not want to talk that night because he was tired. Sergeant Ragland said he

decided to wait until the next day to interview Defendant. The following evening, Defendant stated

that he participated in Dr. White’s robbery, but he denied carrying the shotgun. He said that it was

Mr. Wallace’s idea to rob Dr. White, and Mr. Wallace carried the weapon during the commission

of the offense. Defendant said that he was driving a gray car which he had purchased for two rocks

of cocaine. Defendant said that the shotgun was unloaded because he did not want anyone to get hurt

during the robbery.

Immediately after this statement, Defendant gave a statement detailing his participation in

the robberies at the Steak and Ale Restaurant. Once again, Defendant said that the robberies were

Mr. Wallace’s idea, and Mr. Wallace, not Defendant, carried the shotgun.

Defendant testified in his own behalf at the trial. During the trial and prior to Defendant

testifying, the trial court held a hearing on Defendant’s motion to suppress the numerous statements

he gave to the police after his arrest on July 30, 2002. The trial court ruled that Defendant’s

statements concerning Dr. White’s robbery and the robberies of the men at the Steak and Ale

Restaurant were admissible. The trial court ruled Defendant’s statements concerning his

participation in five other robberies on July 30, 2002, were inadmissible, but cautioned Defendant

that the other statements might be admissible if he testified inconsistently with his prior statements

or mentioned the other robberies during his testimony.

Defendant testified that he spent the night of July 29, 2002 with a woman whom he had just

met, and then went to visit an elderly gentleman the following morning. Some time that morning,

Defendant went to a house on Williams Street which Defendant referred to as a “crack house.”
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Defendant said he smoked some marijuana and took an Ecstacy pill. Mr. Wallace stopped by the

house, and he and Defendant argued because Mr. Wallace had given Defendant’s sixteen-year-old

daughter a sexually transmitted disease.

After Mr. Wallace left, two men arrived at the house and asked if anyone wanted to buy the

tires from a stolen car. One of the men was carrying a gun. Defendant bought the car for two rocks

of cocaine. He laid down for a while and then went to find someone to help him take the tires off

the gray car. Defendant said he was driving down the alley when he was stopped by police officers.

Defendant said that he did not want to talk to the police on July 30, 2002, because he was still

feeling the effects of the drugs he had consumed that day, and he was tired. Defendant said he called

his brother who told him that Mr. Wallace and another man had called Crime Stoppers about

Defendant’s involvement in the robberies. Defendant decided to talk to the police in order to get Mr.

Wallace into trouble.

Defendant said that he could not have committed the robberies that occurred on July 30,

2002, within the time frame described by the witnesses. Defendant said that the newspaper said that

Charles Liberto was robbed at 6:10 a.m., Dr. White at 6:15 a.m., and the men at the Steak and Ale

Restaurant at 6:20 a.m. Defendant also challenged the accuracy of the witnesses’ physical

descriptions of him.

On cross-examination, the State introduced Defendant’s statements admitting to his

participation in the following robberies, all of which occurred on July 30, 2002: Kennedy Anthony

at 12:25 a.m., Rodney Peterson at 2:15 a.m., Ray Penno at 2:50 a.m., Donald Allen at 4:20 a.m., and

Charles Liberto at 6:12 a.m. All five men were robbed at gunpoint. Defendant denied that he

participated in the robberies. He said his only purpose in talking to the investigating officers was

to implicate Mr. Wallace in the offenses. Defendant admitted that it was his signature and initials

on each of the statements, but he said that Sergeant Ragland told him what details to write down.

Defendant said the shotgun belonged to one of the men who sold him the gray car, and Defendant

claimed that these men were the perpetrators of the offenses.

II. Sentencing Issues

When a defendant challenges the length, range, or manner of service of a sentence, this Court

conducts a de novo review with a presumption that the determinations made by the trial court are

correct. Id. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the

record that the trial court considered the sentencing principles and all relevant facts and

circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). “If the trial court applies

inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of

correctness falls.” State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). 

The Sentencing Commission Comments provide that the burden is on the defendant to show

the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
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Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing

hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments of counsel

relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating

or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the

defendant’s potential for rehabilitation or treatment. Id. §§ 40-35-102,-103, and -210; State v. Smith,

735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

A persistent offender is sentenced within the applicableRange III, or between ten and fifteen

years for a Class C felony, between twenty and thirty years for a Class B felony, and between forty

and sixty years for a Class A felony. Tenn. Code Ann. §§ 40-35-107(c) and 40-35-112(c). In

calculating the sentence for a Class C or a Class B felony conviction, the presumptive sentence is

the minimum of the range if there are no enhancement or mitigating factors. Id. § 40-35-210(c). In

calculating the sentence for a Class A felony conviction, the presumptive sentence is the midpoint

of the range if there are no enhancement or mitigating factors. Id. If there are enhancement but no

mitigating factors, the trial court may set the sentence above the presumptive sentence for the range,

but still within the range. Id. § 40-35-210(d). If both enhancing and mitigating factors are present,

the trial court must start at the presumptive sentence for the range, enhance the sentence within the

range as appropriate for the enhancing factors, and then reduce the sentence as appropriate for the

mitigating factors. Id. § 40-35-210(e). If there are mitigating but no enhancement factors present for

a Class A felony, then the trial court may set the sentence either at the midpoint of the sentencing

range, or below the midpoint. Id. § 40-35-210(d).

At the sentencing hearing, the State introduced the pre-sentence report and copies of

Defendant’s prior judgments of conviction which include the following felony offenses: three counts

of grand larceny, a Class D felony; two counts of attempt to sell cocaine, a Class C felony; one count

of possession of cocaine of less than 0.5 grams with intent to sell, deliver or manufacture, a Class

C felony; two counts of receiving stolen property valued at over $200, a Class D felony; and one

count of theft of property over $1,000 and under $10,000, a Class D felony. In addition, Defendant

has numerous misdemeanor convictions for driving violations, unlawful possession of a weapon,

failure to appear, and possession of an automobile with an altered serial number. Defendant was

found in violation of parole in 1990 and again in 1995. Based on Defendant’s prior criminal history,

the trial court classified Defendant as a Range III, persistent offender, for purposes of sentencing,

and Defendant does not challenge this classification. See Tenn. Code Ann. 40-35-107(a)(1).

In determining the length of each of Defendant’s sentences the trial court considered the

following enhancement factors: factor (2), Defendant has a previous history of criminal convictions

in addition to the five felony convictions necessary to support his Range III classification; factor (3)

Defendant was a leader in the commission of the offenses; factor (4), the offenses involved more

than one victim; and factor (9), Defendant has a previous history of unwillingness to comply with

the conditions of a sentence involving release into the community. In addition the trial court applied

factor (5), the victim was particularly vulnerable because of age, to Defendant’s conviction for

especially aggravated robbery. SeeTenn. Code Ann. §§ 40-35-114(2), (3), (4), (5), and (9). Without

being more specific, the trial court applied enhancement factors (11) and (17) “to those sentences
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where bodily injury was not an element of the underlying offense.” See id. §§ 40-35-114(11) and

(17). The trial court found that no mitigating factors were appropriate. Based on the enhancement

factors, the trial court sentenced Defendant to the maximum sentence within Range III for each

conviction, or sixty years for the especially aggravated robbery conviction, thirty years for each

aggravated robbery conviction, and fifteen years for the aggravated assault conviction.

The trial court found that consecutive sentencing was appropriate based on its findings that

Defendant has an extensive criminal history, and that he is a professional criminal and dangerous

offender. See id. §§ 40-35-115(b)(1), (2) and (4). The trial court ordered each of Defendant’s

sentences in case Nos. 03-01711 to be served consecutively to each other, and consecutively to

Defendant’s sentence in case No. 03-01718, for an effective sentence of one hundred and sixty-five

years.

A. Length of Sentences

Defendant’s sole challenge on appeal as to the application of enhancement factors is based

on the recent United States Supreme Court decision in Blakely v. Washington, 542 U.S. ___, 124

S.Ct. 2531 (2004). Relying on Blakely, Defendant argues that his Sixth Amendment right to trial

by jury was violated because the trial court failed to submit to a jury the enhancement factors not

based on his prior convictions. See Blakely, 124 S. Ct. at 2536. Our Supreme Court, however, has

recently concluded that Tennessee’s sentencing scheme does not violate a defendant’s Sixth

Amendment rights under Blakely. State v. Edwin Gomez and Jonathan S. Londono, ___ S.W.3d

___, No. M2002-01209-SC-R11-CD, 2005WL856848, at *27 (Tenn. Apr. 15, 2005). Accordingly,

Defendant’s reliance on Blakely is misplaced. Nonetheless, because we find that the trial court

misapplied certain enhancement factors, we will conduct a de novo review of the length of

Defendant’s sentences. 

Defendant concedes the applicability of enhancement factor (2) based on his previous history

of criminal convictions. See Tenn. Code Ann. § 40-35-114(2). The record also supports the trial

court’s finding that he has failed in the past to successfully comply with the terms of a paroled

sentence, and that he was a leader in the commission of each of the offenses. See id. §§ 40-35-

114(3) and (9). Ms. Murphy testified that Defendant carried the gun during the robbery at the

Memphis Surgery Center, and Defendant chased her as she fled into the Center. Ms. Stidum said

that Defendant pointed the shotgun at her from behind the window. Mr. Raymond identified

Defendant as the driver of the vehicle during the offenses committed at the Steak and Ale restaurant.

Mr. Norris said that Defendant pulled a stocking mask over his face before he demanded his wallet.

“[E]nhancement for being a leader in the commission of an offense does not require that the

[defendant] be the sole leader but only that he be ‘a’ leader” in the commission of the offense. State

v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993) (citation omitted.). 

The trial court found that multiple victims were involved in each of the offenses based

apparently upon the presence of Ms. Murphy and Ms. Stidum during Dr. White’s robbery, the
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presence of Mr. Raymond during the robberies at the Steak and Ale Restaurant, and the presence of

Mr. Myers during the aggravated assault of Mr. Raymond. See Tenn. Code Ann. § 40-35-114(4).

The term “victim” for enhancement factor (4) purposes, however, is limited to persons who

are injured or killed, or who have property stolen or destroyed by the perpetrator of the charged

offense. State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994). Our Supreme Court has

held that there cannot be multiple victims for any one offense where the indictment specifies a

named victim. State v. Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002). Each of Defendant’s indictments

for aggravated robbery, aggravated assault and especially aggravated robbery have a specific, named

victim. The fact that there were other individuals present during Defendant’s various offenses on

whose behalf charges were not filed does not support application of enhancement factor (4). Id.

Accordingly, we conclude that the trial court erred in applying enhancement factor (4) to each of

Defendant’s sentences.

In addition, we conclude that the trial court improperly considered enhancement factor (5),

that the victim was particularly vulnerable because of age and physical limitations, to Defendant’s

conviction of especially aggravated robbery. See Tenn. Code Ann. § 40-35-114(5). Marge White,

Dr. White’s wife, testified that prior to the offense Dr. White had heart surgery and had difficulty

using his right hand because of nerve damage. As a result, Dr. White was no longer able to perform

surgery but worked at the Memphis Surgery Center in an administrative capacity. Although the trial

court referred to Dr. White as elderly, the record is silent as to any indication of Dr. White’s age at

the time of the offense other than Defendant’s characterization of Dr. White as “an old man.” 

A victim may be vulnerable because of physical limitations in a general sense, but that

vulnerability may not have any relevance to the offense committed against him. State v. Lewis, 44

S.W.3d 501, 505 (Tenn. 2001). Ms. Murphy testified that Defendant and Mr. Wallace walked up

behind Dr. White. Dr. White turned to run, tripped, and fell onto the pavement. There is no

indication that Dr. White tripped because of a physical disability, or that any physical limitations or

his age were factors in the commission of the offense. State v. Butler, 900 S.W.2d 305, 313 (Tenn.

Crim. App. 1994). Based on the circumstances presented in this case and upon applicable case law,

we find that the trial court erred in considering enhancement factor (5) in determining the length of

Defendant’s sentence for especially aggravated robbery.

Without specifically stating which enhancement factor applied to which offense, the trial

court considered enhancement factors (11) and (17) in increasing the length of Defendant’s sentences

to the extent that these factors were not an element of the underlying offense. Enhancement factor

(17) requires a finding that the crime was committed under circumstances which posed a great

potential for bodily injury to a victim. Tenn. Code Ann. § 40-35-114(17). Defendant was charged

with aggravated assault against Mr. Raymond with the use of a deadlyweapon causing Mr. Raymond

to fear imminent bodily injury. Id. §§ 39-13-101(a)(2); 39-13-102(a)(1)(B). This Court has

previously concluded that the presence of great potential for bodily injury is inherent in an

aggravated assault committed with a deadly weapon. State v. Hill, 885 S.W.2d 357, 363-64 (Tenn.
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Crim. App. 1994). Thus, enhancement factor (17) is not applicable to Defendant’s sentence for his

aggravated assault conviction.

Enhancement factor (17) is also not applicable to Defendant’s sentence for especially

aggravated robbery because serious bodily injury is an element of the offense. In addition, factor

(17) may not be based on the risk of potential bodily injury to an individual other than the victim of

the crime. Imfeld, 70 S.W.3d at 706; State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995).

Thus, the presence of Ms. Murphy and Ms. Stinnet during the commission of the especially

aggravated robbery offense does not support application of enhancement factor (17) to this sentence.

Defendant was charged with the aggravated robbery of Mr. Skelton, Mr. Norris and Mr.

Mears by use of a deadly weapon. This Court has previously held that enhancement factor (17)

generally cannot be used to enhance a sentence for aggravated robbery because the offense of

aggravated robbery entails a high risk of bodily injury. See State v. Claybrooks, 910 S.W.2d 868,

872-73 (Tenn. Crim. App. 1994). As noted above, there is always a great potential for bodily injury

when a deadly weapon is used in the commission of the offense. Hill, 885 S.W.2d at 363. Thus the

trial court erred to the extent it considered enhancement factor (17) in determining the length of any

of Defendant’s sentences.

Enhancement factor (11) applies when the defendant has “no hesitation about committing

a crime when the risk to human life” is high. Tenn. Code Ann. § 40-35-114(11). It may be applied

if the defendant’s conduct creates a high risk to the life of the victim, and the creation of a high risk

to life is not an essential element of the charged offense. See Tenn. Code Ann. § 40-35-114(11);

State v. Bingham, 910 S.W.2d 448, 452-53 (Tenn. Crim. App. 1995), overruled in part on other

grounds, State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000) (citing State v. Jones, 883 S.W.2d 597 (Tenn.

1994)). That is, “where the proof necessary to establish an element of the offense would establish

that the ‘risk to human life was high,’ the enhancement factor is an essential element of the offense

and thus inapplicable.” Id. Defendant’s use of a deadly weapon during the commission of the

robberies and assault was what elevated his offenses to aggravated, and was an essential element of

each of his offenses. As a general rule, enhancement factor (11) is necessarily inherent in an

aggravated assault or an aggravated or especiallyaggravated robberythat is committed with a deadly

weapon. See State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim. App. 1994).

However, “[w]hile this Court has consistently held that [factor 11] should not be applied

when the only person subject to being injured is the victim, this factor is not inherent . . . when other

persons present could have been injured.” Id.; see also Bingham, 910 S.W.2d at 452. During Dr.

White’s robbery, Defendant chased Ms. Murphy into the Memphis Surgery Center and she barely

managed to get into the building and lock the door before Defendant caught up with her. Defendant

brandished his shotgun at both Ms.Murphy and Ms. Stidum. No charges were filed against

Defendant as a result of his conduct towards Ms. Murphy and Ms. Stidum. The record supports

application of enhancement factor (11) to Defendant’s sentence for especially aggravated robbery

based on the risk of injury Defendant’s conduct created for Ms. Murphy and Ms. Stidum.
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Defendant’s convictions arising out of the offenses committed at the Steak and Ale do not

support application of enhancement factor (11). Each of the men present during the commission of

these offenses was a named victim in an indictment resulting from these offenses.

In summary, we find that the trial court’s application of enhancement factors (2), (3), and (9)

to each of Defendant’s sentences was proper. We find enhancement factor (11) was properly applied

to Defendant’s sentence for his especially aggravated robbery conviction, but improperly applied to

Defendant’s sentences for his aggravated robbery and aggravated assault convictions. We find that

the trial court misapplied enhancement factor (5) in determining the length of Defendant’s sentence

for especially aggravated robbery. The facts surrounding the commission of Defendant’s offenses

do not support the application of enhancement factors (4) and (17) to any of Defendant’s sentences.

Although we have determined that the trial court misapplied certain enhancement factors

during its sentencing considerations, this does not necessarily lead to a reduction in the length of

Defendant’s sentences. State v. Winfield, 23 S.W.3d 279, 284 (Tenn. 2000). Based on the presence

of three enhancement factors for Defendant’s sentences for aggravated assault and aggravated

robbery convictions, four enhancement factors for his especially aggravated robbery conviction, and

no mitigating factors, we cannot conclude that the trial court erred in determining the length of

Defendant’s sentences. Also, the imposition of maximum sentences within the appropriate ranges

for these offenses based upon the applicable enhancement factors is well within the discretion

afforded to the trial court under Tennessee’s sentencing scheme. See Gomez, 2005 WL 856848, at

** 20-22 The Gomez court concluded that “even after an enhancement factor is found, this statute

affords to the judge discretion to choose an appropriate sentence anywhere within the statutory range,

including the presumptive minimum sentence within the range.” Id., at 20 (emphasis added). Thus,

we affirm Defendant’s sentence of sixty years for his especially aggravated robbery conviction, his

sentence of thirty years for each of his aggravated robbery convictions, and his sentence of fifteen

years for his aggravated assault conviction.

B. Consecutive Sentencing

The trial court ordered Defendant’s sentences for his aggravated robbery and aggravated

assault convictions to be served consecutively to each other and consecutively to his sentence for his

especially aggravated robbery conviction based on its findings that Defendant is a professional

criminal, that he has an extensive criminal history, and that he is a dangerous offender. Defendant

challenges the trial court’s findings and argues that consecutive sentencing is not warranted by the

circumstances surrounding his offenses.

When a Defendant is convicted of multiple crimes, the trial court, in its discretion, may order

the sentences to run consecutively if it finds by a preponderance ofthe evidence that a defendant falls

into one of seven categories listed in Tennessee Code Annotated section 40-35-115. In this instance,

the trial court found as one of the factors that Defendant was “a dangerous offender whose behavior

indicates little or no regard for human life, and no hesitation about committing a crime in which the

risk to human life is high.” Tenn. Code Ann. §40-35-115(a)(4). If the trial court rests its
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determination of consecutive sentencing on this category, the court must make two additional

findings. Imfeld, 70 S.W.3d at 708. First, the trial court must find that an extended sentence is

necessary to protect the public from further criminal conduct by Defendant, and, second, it must find

consecutive sentencing to be reasonably related to the severity of the offenses. State v. Wilkerson,

905 S.W.2d 933, 939 (Tenn. 1995).

Although such specific factual findings are unnecessary for the other categories enumerated

in Tennessee Code Annotated section 40-35-115(b), the imposition of consecutive sentences is also

guided by the general sentencing principles that the length of a sentence be ‘justly deserved in

relation to the seriousness of the offense’ and ‘no greater than that deserved for the offense

committed.’” Imfeld, 70 S.W.3d at 708 (quoting Tenn. Code Ann. §§ 40-35-102(1) and -103(2));

State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). 

Based on our review, we find that the evidence does not support a finding that Defendant is

a professional criminal who knowingly devoted his life to criminal acts as a major source of his

livelihood for the purposes of consecutive sentencing under Tennessee Code Annotated section 40-

35-115(b)(1). As the trial court noted at the sentencing hearing, Defendant has a sparse employment

record. He worked for a few months in 1999 and again in 2000 as a forklift operator. There is no

evidence, however, reflecting the amount of money Defendant derived from his criminal offenses,

or that he used that income, if any, to support himself. See State v. Desirey, 909 S.W.2d 20 (Tenn.

Crim. App. 1995). Because the State failed to prove that Defendant’s criminal acts provided a major

source of livelihood, we find that the trial court’s consideration of this factor in its sentencing

determinations was inappropriate.

The evidence, however, does not preponderate against the the trial court’s findings that

Defendant has an extensive criminal history. See Tenn. Code Ann. § 40-35-115(b)(2). Defendant

has at least three Class C felony convictions and nine Class D felony convictions in addition to

numerous misdemeanor convictions. On August 25, 1987, Defendant pled guilty to two counts of

grand larceny and two counts of receiving stolen property over $200, and received five-year

sentences for each conviction. On November 13, 1987, he pled guilty to larceny and received a fouryear sentence. In 1991, he was sentenced to two six-year sentences for two counts of attempt to sell

cocaine. In 1996, Defendant was convicted of possession of a controlled substance and sentenced

to three years. On March 15, 2002, he was convicted of a Class D felony theft conviction March 15,

2002, for which he received a sentence of two years. The current offenses were committed on July

30, 2002. Thus, Defendant’s criminal history was an appropriate consideration in determining the

manner of service of his sentences.

The trial court found that Defendant was a dangerous offender whose behavior indicated little

or no regard for human life based on the circumstances surrounding the commission of the offenses.

The trial court stated:

But this man, and the person who helped him do this, are certainly, by any definition,

dangerous offenders. They are urban terrorists. They took a shotgun and prowled
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the streets of our city, threatening people’s lives, taking their belongings. The

testimony of each of the victims was extremely compelling.

The trial court found that consecutive sentencing was reasonably related to the severity of

the offenses and necessary to protect the public based on the extent that Defendant’s conduct

impacted the lives of the victims. It is also apparent from the record that Defendant cannot refrain

from committing crimes despite repeated convictions which evidences his dangerousness to society.

Based on our review, we cannot conclude that the trial court erred in classifying Defendant as a

dangerous offender for purposes of consecutive sentencing.

In any event, it is necessary to find the presence of only one of the statutory categories listed

in Tennessee Code Annotated section 40-35-115(b) to support the imposition of consecutive

sentencing. See State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). Defendant’s

extensive criminal history alone is sufficient to support consecutive sentencing. Defendant is not

entitled to relief on this issue.

CONCLUSION

After a thorough review of the record, we affirm the judgments of the trial court and the

imposition of consecutive sentencing.

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THOMAS T. WOODALL, JUDGE