### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 2000 Session STATE OF TENNESSEE v. GDONGALAY PARLO BERRY Appeal from the Criminal Court for Davidson County No. 97-A-196 J. Randall Wyatt, Jr., Judge

No. M1999-01901-CCA-MR3-CD - Filed August 31, 2000

The defendant appeals his jury convictions of two counts of ag gravated robb ery for wh

ich he is serving two consecutive n ine-year sentences. The d

efendant raise

s the following iss

ues: 1) whether the evidence was sufficient to support his convictions; and 2) whether the trial court properly ordered the defendant's sentences to be served consecutively . We affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and A LAN E. G LENN , JJ., joined. William C. Roberts and Robert L. Marlow, Shelbyville, Tennessee , for the appellant, Gdongalay Parlo Berry. Paul G. Summers, Attorney General and Repo rter; Tod d R. Kelley, A

ssistant Attorney

General; Victor S. Johnson III, District Attorney General; and Katrin N. Miller, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS
On the night of February 12, 1996, between 7:00 and 8:00 p.m., the defendant and two other individuals

we re walki ng near Tennessee State University. The three individuals walke d to the university and entered the student activity center. Shortly after arriving at the activity center, the defendant and one of the two i

ndividuals entere

d the men’s bathro

om. The defendant was wearing a ski mask.
At the time the d efendant entered the bathroom, Noah Poellnitz was in the bathroom preparing to leave. The defendant pointed a gun at Poellnitz and demanded his wallet and coat. The defendant then told Poellnitz to take off all of his clothes. Minutes later Shelton Clerk, Poellnitz’s-2-

roommate

,entered the bathroom. After entering the bathroom, Clerk was also told by the defendant to take off his clothes. With the gun pointed at Clerk, he complied with the defenda

nt’s demands. Clerk turned over his cl

othes and car ke

ys. The two v

icti ms were the n put inside one of the bathroom stalls, and the defendant and the two individuals fled. The police subsequently searched the residence of the two indivi duals who were with the defendant on the night of the robberies. During the search the police found the jacket stolen from Poellnitzand the ski mask worn by the defendant during the robberies. One of the individuals who was with the defendant on the night of the robberies was taken

to the poli ce station for questi oning. He identified the defendant as the individual who wore the ski mask and brandished the weapon. The police later

questioned the de

fendant. One officer testified the defendant claimed that he was not the individual wearing the ski mask and br andishing the gun, but was merely standing behind the door in the bath room. The other of

ficer test ified that the defendant “confessed that he had committed [the] robbery.” The defendant of

fered no proof a

t the trial. Based upon testimonygiven at trial, the defendant was convicted by a Davidson County jury of two counts of agg

ravate d robber y, Class B felonies. The defendant was sentenced to two consecutive nine-year sentences as a standar d offender. This case now comes before thi s court on direct appeal. The defendant raises two issues: 1) whether the evidence presented at trial was sufficient as a matter of law to sustain the defendant’s two convictions for aggravated rob bery; and 2) whether the trial court properly ordered the defendant’s sentence s to be served consecutively. After reviewing the r ecord, we affirm the defendant’s convictions and hold that the trial court properly ordered the defendant to serve th e sen ten ces c ons ecut ive ly. SUFFICIENCY OF THE EVIDENCE
The defendant contends that the evidence is insufficient as a matter of law to sustain his two convictions for aggravated robbery . We disagree.
A. Standard of Review
In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the state's witnesses and resolves all conflicts in favor of the state. Statev. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This Courtwill not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that the facts contained in the record and the inferences which may be drawn therefrom-3-

are insufficient, as a matter of law, for a rational trier of fact to find the a ccused guilty beyond a reasonable doub

t. State v. Brewer , 93 2 S. W.2 d 1, 19 ( Ten n. C rim . Ap p. 1 996 ). A ccor din gly, it is the appellate court

's duty to a

ffirm the convict

ion if the evidenc

e, viewed under

these standards, was sufficient for any rational trier of fact to have found the essential ele ments of the offense beyond a reasonable

doubt. Tenn. R. App. P. 13(e); Jackson v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2

d 560 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994).
B. Analysis According to one of the officers, the defend ant confessed to t he robberies. Ac

cording to another officer, the defendant admitted to being in the bathroom, but contended that he was not the individual who wore the ski mask and brandished the gun during the robberies.
One of the two individuals who was with the defendant on the night of the robberies testified that he heard the def

endant tell the two

victims to give him t

heir possessions a

nd take off their clothes. The witness also

testified that the defendant had the gun when he entered the bathroom, and he saw the defendant wearing a ski mask and pointi

ng the gun at the

victims. Further, the wit ness also testi fied that the defendant was not the individual standing behind the door in the men’s bathroom. Finally, the witness testified that the defendant and the defendant’s acc om plice exited the bathroom carrying two coats, some pants and shoes. Viewing the evidence in

a light most favorable to the state, as we must, a rational trier of fact could conclude that the defendant took property from the two victims by the use of a deadly weapon. See Tenn. Code Ann. § 39-13-402(a)(1). This issue is without merit. CONSECUTIVE SENTENCING
A court may order

sentences to run consecutively if the court finds by a preponderance of the evidence that: (1) [t]he defendant

is a profession al criminal who has knowingly devoted such defendant’s life to criminal acts as a major source of livelihood; (2) [t]he defendant is an offender whose record of criminal activity is extensive; (3) [t]he defendant is a

dangerous ment

ally abnorm

al person so

declare d by a competent

psychiatrist who

c oncludes as a re

sult of an investig

ation prior to sentencing that

the defendant's criminal conduct has been characterized by a pattern of repetitive or c

ompulsive behavior

with heedless indif

ference to con

sequences; (4) [t]he defendant is a

dangerous off

ender whose beh

avior indic ates littl e or no regard for human life, and no hesita tion about committing

a crime in which th

e risk to human life is high;-4-

(5) [t]he defe nda nt is convicted of two (2) or more statutory offenses involving sexual abuse

of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or victims, the time span of defendant's undetected sexual activity, the nature and scope

of the sexual acts

and the extent of the residu

al, physica

l and mental damag

e to the victim or vic

tims; (6) [t]he defendant is sentenced for an offense committed while on probation; or (7) [t]he defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b); see also State v. Black , 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Specific

findings that an extended sentence is necessary to protect society

and is reasonably related to the severity of the offenses are prerequisites to consecutive se ntencing under the “dangerous offender” categor y in Tenn. Code Ann. § 40-35-115(b)(4). State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). However, such specific factual findings are not required for the other categories of Tenn. Code Ann. § 40-35-115(b). State v. Lane , 3 S.W.3d 456, 461 (Tenn. 1999). Nevertheless,

the gener a l principles of sen tencing requir

e that the length

of sentence be “

justly deserved in relation to the seriousness of the offense” and “be no greater than that deserved for the offense committed.” Id. at 460 (citing Tenn. Code Ann. §§ 40-35-102(1) and 103(2)).
A review of the se

ntencing transc

ript reveals that

the defendant wa s on probation for aggravate d assault at the time he committed the present offenses, which is a proper basis for imposing consecutiv e sentences . Tenn. Cod e Ann. § 40-3 5-115(b)(6 ). The sente ncing transcr ipt readily reflects that the trial court entered its judgment requ

iring the defen

dant to serve his

sentences co nsecutively

based upon this fa

ctor. The judgme

nt of the trial cour

t imposing conse

cutiv e sentences was, therefore, proper. CONCLUSION Based upon our

review of the trial record, sufficient evidence was presented at trial to find the defendant guil

ty of two cou

nts of aggrav

ated robbery

. Further, the tr

ial court was prop

er in entering a judgment

requiring the de

fendant to serve

his sentences consecutively. The judgment of the trial court is affirmed.

___________________________________ JOE G. RILEY, JUDGE