IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 6, 2007

STATE OF TENNESSEE v. WILLIS AYERS

Direct Appeal from the Criminal Court for Shelby County

No. 04-07182 Chris Craft, Judge

No. W2006-02441-CCA-R3-CD - Filed May 6, 2008 

Defendant, Willis Ayers, was indicted for first degree murder and especially aggravated robbery.

Defendant was tried jointly with co-defendant, Charles Curtis, and another co-defendant, David

Milken, was tried separately for the charged offenses. Co-defendant Curtis’s case is not part of this

appeal. Following a jury trial, Defendant was found guilty of the lesser included offenses of second

degreemurder and facilitation of especiallyaggravated robbery. The trial court sentenced Defendant

as a Range I, standard offender, to twenty-two years for his second degree murder conviction, and

as a Range II, multiple offender, to fourteen years for his facilitation of especially aggravated robbery

conviction. The trial court ordered Defendant to serve his sentences consecutively, for an effective

sentence of thirty-six years. In his appeal, Defendant argues that (1) the evidence was insufficient

to support his convictions; (2) the trial court erred by failing to instruct the jury that State’s witness

Corey Smith was an accomplice to the charged offenses; (3) the trial court erred in denying

Defendant’s motion for severance; and (4) the trial court erred in imposing consecutive sentencing.

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

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

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

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

Eric Christensen, Memphis, Tennessee, for the appellant, Willis Ayers.

Robert E. Cooper, Jr., Attorney General and Reporter; Preston Shipp, Assistant Attorney General;

William L. Gibbons, District AttorneyGeneral; Michelle Kimbril-Parks, Assistant District Attorney

General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, the State of

Tennessee. 
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OPINION

I. Background

Christy Bernard testified that the victim was her brother, Charlie Jackson, Jr. Ms. Bernard

said that the victim drove a burgundy Cadillac which was registered in the name of Angela Morton,

the victim’s cousin. Ms. Bernard stated that she worked evenings, and the victim would take her

sons to football practice after school. The victim kept the children’s football gear in the trunk of the

Cadillac. Ms. Bernard said that she last saw the victim on April 22, 2004, between 7:00 and 7:30

p.m. at Ms. Morton’s residence when she picked up her sons after football practice. Ms. Bernard

observed the victim place her sons’ football gear into the trunk of his car before she left. Ms.

Bernard said that the victim’s leather coat was also in the trunk, and both the football gear and the

leather coat were missing from the Cadillac’s trunk when the vehicle was returned to her after the

commission of the offenses. Ms. Bernard identified the football helmet and shoulder pads which

were introduced as an exhibit at trial as her sons’ equipment. Ms. Bernard said that the leather coat

was never recovered.

Corey Smith testified that he had known Defendant for approximately four years and Mr.

Curtis, the co-defendant, approximately seven years. Mr. Smith stated that he went over to Monica

Terry’s apartment in Summit Park Apartments to play cards on April 22, 2004, between 7:00 p.m.

and 8:00 p.m. David Milken, Ms. Terry’s boyfriend, Ms. Terry, and Ms. Terry’s friend, Glenda,

were present. Mr. Curtis arrived approximately one hour later. Mr. Curtis told the group that he

needed money because he had no place to stay. Mr. Curtis asked Mr. Milken for his cell phone and

then retreated to the bathroom. Mr. Curtis came out of the bathroom a few minutes later, retrieved

Ms. Terry’s house telephone, and returned to the bathroom.

Defendant arrived at Ms. Terry’s apartment while Mr. Curtis was talking on the telephone.

Defendant had a book pack with him which he placed in Ms. Terry’s bedroom. Defendant, Mr.

Curtis and Mr. Milken went outside and stood at the bottom of the apartment’s staircase, conversing,

while Mr. Smith and Ms. Terry remained at the top of the stairs overlooking the apartment building’s

parking lot. Mr. Curtis continued to talk on Ms. Terry’s house telephone as the three men conversed.

Approximately thirty to forty-five minutes later, Mr. Smith observed a burgundy Cadillac pull

into the parking lot. Mr. Curtis got into the front passenger seat as Defendant and Mr. Milken

walked toward the “dark part” of the apartments located next door. The driver of the Cadillac and

Mr. Curtis remained in the Cadillac for approximately twenty minutes. Mr. Milken then walked up

to the driver’s side of the Cadillac and attempted to pull the driver out of the vehicle by his neck.

The vehicle jerked, and the brake lights came on. Mr. Smith said that Defendant walked up to the

driver’s side of the vehicle, pulled out a gun, and fired once. The driver slumped over in the car seat.

Mr. Milken pushed the driver into the passenger seat and got into the driver’s seat. Mr. Curtis got

into the back seat, and the two men drove away.
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Mr. Smith and Defendant went back inside Ms. Terry’s apartment. Defendant put his gun

in his book pack and told Mr. Smith that the shooting was an accident. Defendant said that he

thought he saw the victim reach down and believed that the victim was going to retrieve a weapon.

Mr. Curtis and Mr. Milken returned to Ms. Terry’s apartment approximately thirty to forty-five

minutes later in the burgundy Cadillac. Mr. Curtis told Mr. Smith that he needed “to put in some

work.” Mr. Smith told Mr. Curtis that he did not want to be involved, but Mr. Curtis began to

verbally threaten Mr. Smith.

Mr. Curtis opened the Cadillac’s trunk and handed Mr. Smith two football helmets, some

shoulder pads, and a leather coat. Mr. Smith took the items into Ms. Terry’s apartment. Mr. Smith

said that Mr. Curtis had taken some cocaine, marijuana, and twenty dollars from the victim. Mr.

Curtis began cooking the cocaine on Ms. Terry’s stove.

Mr. Smith, Mr. Curtis and Mr. Milken then drove the Cadillac to an insurance office building

approximately one-half mile from Ms. Terry’s apartment. Mr. Curtis handed Mr. Smith some lighter

fluid and told him to set the car on fire. Mr. Smith poured lighter fluid on the back seat, then he

handed the lighter fluid back to Mr. Curtis. Mr. Smith told Mr. Curtis that he did not want anything

“to do with it,” and Mr. Curtis set the Cadillac on fire. Mr. Smith, Mr. Curtis, and Mr. Milken

walked back to Ms. Terry’s apartment and played cards.

Mr. Smith testified that he did not know the victim. Mr. Smith said that he did not overhear

either Mr. Curtis’ telephone conversations or the conversation between Mr. Curtis, Defendant, and

Mr. Milken while they stood at the bottom of the stairs.

On cross-examination, Mr. Smith said that the only person he saw with a gun that night was

Defendant, and that the first time he noticed the weapon was when Defendant fired the gun at the

victim. Mr. Smith said that Defendant’s arm was fully extended, and that the victim was facing

forward in the vehicle. Mr. Smith acknowledged that Defendant was not present when the Cadillac

was set on fire. Mr. Smith denied making a statement to Kaylandra Ayers or Patricia Marchbanks.

Mr. Smith acknowledged that he did not hear anyone, including Defendant, plan to commit any

offenses involving the victim. 

Officer Jeff Sealey with the Memphis Police Department routinely patrolled Will Carruthers

Park during his evening shift. Officer Sealey testified that he observed an individual, who appeared

to be unconscious, lying on his back with outstretched arms in the park’s parking lot around

midnight on April 22, 2004. Officer Sealey approached the man and attempted to find a pulse.

When he could not do so, he called for an ambulance and back-up.

Officer Marlon Wright, a member of the Memphis Police Department’s crime scene

investigation unit, arrived at the park shortly after midnight. Officer Wright testified that the

victim’s pockets were turned inside out. Various pieces of a broken cell phone were recovered at

the crime scene including the cell phone’s face plate, back plate, rubber keypad and battery. A dime
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was found next to the victim’s left leg, and the victim had eleven cents in one of his pockets. Officer

Wright found the victim’s driver’s license but not a wallet.

Officer Bryan Davis responded to a call about an abandoned vehicle at approximately 1:00

a.m. on April 23, 2004. The vehicle was parked near a building behind the Summit Park

Apartments. Officer Davis stated that the vehicle was registered in the name of Angela Morton, and

the vehicle’s keys were missing.

Angela Morton, the victim’s cousin, spent the afternoon of April 22, 2004, with the victim

at her son’s and Ms. Bernard’s sons’ football practice. After practice, the football gear belonging

to Ms. Bernard’s sons was stored in the trunk of the Cadillac which the victim drove. The victim

left Ms. Morton’s apartment that evening at approximately 8:00 p.m. to attend a birthday party. Ms.

Morton said the victim was driving the burgundy Cadillac which was registered in her name. Ms.

Morton last spoke with the victim by cell phone between 8:45 and 9:00 p.m. Ms. Morton said that

the victim’s cell phone was registered in her name. 

Lakeshea Roche Cobb dated Mr. Curtis off and on for eleven years prior to the offenses. Ms.

Cobb testified that Mr. Curtis called her in mid-April, 2004, and asked where she was. Ms. Cobb

told him she was at Marlowe’s, a local restaurant, with her co-employees. Mr. Curtis arrived some

time after 11:00 p.m. Ms. Cobb said that she and Defendant sat down at a table to talk, and Ms.

Cobb noticed some specks of blood on Mr. Curtis’ white t-shirt. Mr. Curtis first told Ms. Cobb that

he had been in a fight and had been struck in the nose. When Ms. Cobb replied that nothing

appeared wrong with his nose, Mr. Curtis told her that he had shot someone. Ms. Cobb said that she

just “cried and looked at him.” Mr. Curtis then told Ms. Cobb that she knew he would not do

anything like that.

A man entered the restaurant and told Mr. Curtis, “Man, we got to go.” Ms. Cobb

accompanied the two men to the door. Ms. Cobb observed Mr. Curtis and the man get into an older,

large vehicle similar to a Cadillac and drive away. Ms. Cobb went back inside the restaurant.

Ms. Cobb said that Mr. Curtis called her approximately two weeks later and arranged a

meeting. Ms. Cobb picked Mr. Curtis up, and they stopped at a gasoline station. Mr. Curtis told her

that he was “feeling heavy about something.” Mr. Curtis told Ms. Cobb that he had shot “Big

Daddy.” Ms. Cobb identified the victim as the man she knew only as “Big Daddy.”

Ms. Cobb said that Sergeant Tim Sims contacted her on June 19, 2004, and escorted her to

the police station. Ms. Cobb identified Mr. Milken from a photographic line-up as the man who had

left Marlowe’s with Mr. Curtis. Ms. Cobb spoke with Mr. Curtis the day after he was arrested, and

Mr. Curtis told her to dispose of the football gear that was at Ms. Terry’s apartment. Ms. Cobb said

that she called Sergeant Sims and told him that she had retrieved the football gear. Ms. Cobb

acknowledged that Mr. Curtis had told her he used to buy drugs from the victim.
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On cross-examination, Ms. Cobb said that she did not see a weapon on either Mr. Curtis or

Mr. Milken while they were at Marlowe’s. Ms. Cobb denied that she had entered into a relationship

with Sergeant Sims after she gave her statement, but she acknowledged that she was in Sergeant

Sims’ boat when he drowned during a boating accident. Ms. Cobb said that she did not know

Defendant, and she acknowledged that Defendant was not present at Marlowe’s with Mr. Curtis and

Mr. Milken.

Officer Ernestine Davison testified that she was present when Ms. Cobb gave a statement to

Sergeant Sims concerning the shooting. Officer Davison said that she typed up Ms. Cobb’s

statement, and Ms. Cobb read it over, made corrections, and signed the last page. On crossexamination, Officer Davison said that she was not present during Sergeant Sims’ initial interview

of Ms. Cobb. Officer Davison acknowledged that when Ms. Cobb was asked why Mr. Curtis shot

the victim, she responded it was because the victim had shorted him on a drug sale.

Sergeant Elaine Shelby, an investigator with the District Attorney’s Office, attempted to

locate Monica Terry before trial. Ms. Terry’s mother told Sergeant Shelby that Ms. Terry had died

in November 2004, from a lung disease.

Tabatha Bender, an operations manager with Cricket Communications, testified that Ms.

Morton’s cell phone was used on April 22, 2004, to place two calls to the same specified telephone

number at 10:25 p.m. and 11:37 p.m. respectively. Ms. Morton’s cell phone received a call from that

number at 12:29 a.m. on April 23, 2004.

Sergeant Anthony Mullins, a member of the Memphis Police Department’s homicide unit,

testified that the victim’s fingerprints were found on the cell phone located in the park where the

victim was found. Sergeant Mullins accompanied Sergeant Sims to Ms. Cobb’s apartment on June

19, 2004. Ms. Cobb told the officers about her meeting with Mr. Curtis at Marlowe’s. Ms. Cobb

also stated that Mr. Curtis told her that he had just shot someone and taken his car. Mr. Curtis then

started laughing and told Ms. Cobb he “was just playing.” Ms. Cobb said that Mr. Curtis left in “a

brown or burgundy car, possibly a Cadillac.” On cross-examination, Sergeant Mullins said that the

police investigation of the crimes had been concluded before Sergeant Sims died.

Dr. Tom Deering was serving as Shelby County’s Interim Chief Medical Examiner at the

time of the incident and performed an autopsy on the victim on April 23, 2004. Dr. Deering testified

that the victim died as a result of a single gunshot wound to his forehead. The wound was located

above the mid-point of the victim’s right eyebrow. The presence of stippling and soot around the

wound indicated that the barrel of the gun was between six and twenty-four inches from the victim

when the weapon was discharged. Dr. Deering said that the presence of stippling in the victim’s eyes

and the even spacing of the stippling around the wound indicated that the victim was directly facing

the shooter and his eyes were open when he was shot. 

Dr. Deering stated that the bullet traveled to the back of the victim’s head, causing subdural

and subarachnoid hemorrhaging. Dr. Deering said that the victim would have immediately lost
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consciousness after he was shot, but that the victim could have lived for a few seconds to a few

minutes after the injury. The bullet was extracted from the victim’s head during the autopsy. Dr.

Deering stated that the victim also had bruising and swelling around his eyes and two abrasions on

the back of his left wrist. On cross-examination, Dr. Deering testified that he did not know if the

victim’s eyes were blackened before the shooting or as a result of the shooting. Dr. Deering said that

he did not detect any injuries to the victim’s neck.

Mr. Curtis testified in his own behalf. Mr. Curtis said that he arrived at Ms. Terry’s

apartment on April 22, 2004, between 6:00 p.m. and 7:00 p.m. Mr. Smith, Mr. Milken, and Ms.

Terry’s friend, Glenda, were also present. At some point, Mr. Curtis called Ms. Cobb, and a male

voice responded on her answering machine. Mr. Curtis grew angry. He continued to call Ms. Cobb

until he reached her, and they argued over the telephone. When the battery on the cell phone he was

using went dead, Mr. Curtis continued to talk to Ms. Cobb on Ms. Terry’s house telephone. 

Mr. Curtis stated that he did not have a way to get to Marlowe’s where Ms. Cobb worked,

so he called the victim, whom he had known since elementary school, and asked for a ride. Mr.

Curtis told the victim that he wanted to go to Marlowe’s to get something to eat, but the victim

believed that Mr. Curtis wanted to see if Ms. Cobb was with another man. The victim told Mr.

Curtis he would go buy him something to eat from another restaurant. The victim left and returned

to the Summit Park Apartments between 9:45 and 10:00 p.m. The victim and Mr. Curtis sat in the

victim’s vehicle and talked for approximately ten to twenty minutes.

Mr. Curtis said that Mr. Milken walked passed the Cadillac, and the victim appeared nervous.

Mr. Curtis reassured the victim that Mr. Milken was a friend. Mr. Milken walked passed the vehicle

a second time, grabbed the victim’s head, and tried to pull him out of the Cadillac. Defendant

appeared at the front passenger side of the vehicle and pointed a gun through the open window. Mr.

Curtis said that he hit Defendant’s arm, and the gun discharged, striking the victim in the forehead.

Mr. Curtis described the events immediately following the shooting:

After the shooting, Mr. Jackson fell forward onto my shirt. And, I jumped out of the

car. [Defendant] ran. When [Defendant] ran, [Mr.] Milken panicked and talk[ed]

about burning the car. So, I said, no, I said, let’s go to the baseball park. I went to

the baseball park because I played softball up there, and I know what time the police

run. They run every hour up there like clockwork. So, instead of burning the body

in the car[,] I dropped the body and took the car. We left, when we left the park, [we]

went to Marlowe’s.

Mr. Curtis stated that he told Ms. Cobb he had shot someone “basically, to scare her.” Mr.

Curtis went to Marlow’s because he wanted “to show [his] face.” Mr. Curtis explained that “if you

see a murder, no witness, no case,” and Mr. Curtis wanted Ms. Cobb to see that he was with Mr.

Milken if anything happened to him. Mr. Curtis said that after they left Marlowe’s, Mr. Milken

drove the Cadillac back to the Summit Park Apartments. Mr. Milken handed Mr. Smith the football

gear and the leather coat from the Cadillac’s trunk, and Mr. Smith took the items into Ms. Terry’s
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apartment. Mr. Milken retrieved some lighter fluid from the apartment, and Mr. Curtis told Mr.

Milken that he would burn the vehicle. Mr. Curtis said that he and Mr. Smith drove to an insurance

building a short distance from the apartments. Mr. Smith poured lighter fluid on the vehicle and set

it on fire. Mr. Curtis said that he did not return to Ms. Terry’s apartment but walked instead to a

nearby hotel where he had a room.

Mr. Curtis gave a statement to Sergeant Sims about the incident. As he was leaving, Sergeant

Sims told Mr. Curtis that he would need a second statement the next day about the shoulder pads that

were in the victim’s Cadillac. Mr. Curtis said that “shook [him] up,” so he called Ms. Cobb asked

her to dispose of the football gear. Mr. Curtis denied that he knew what Mr. Milken and Defendant

planned to do that night. Mr. Curtis acknowledged that he helped dispose of the body and burn the

victim’s Cadillac.

On cross-examination, Mr. Curtis said that the victim was facing him when Defendant shot

him through the front passenger side window. Mr. Curtis said that Mr. Milken pulled the victim out

of the vehicle by himself after they arrived at the park, and Mr. Curtis remained in the Cadillac. Mr.

Curtis acknowledged that he did not try to help the victim after he was shot and that his only thought

was “to clean up the mess.” Mr. Curtis denied that Mr. Smith was afraid of him and said that he did

not talk to Mr. Smith after the shooting.

Mr. Curtis said that he had heard about Defendant but did not personally know him. Mr.

Curtis acknowledged that he bought cocaine from the victim which he later resold. Mr. Curtis said

that a police car appeared behind them while Mr. Milken was driving to the park. The victim was

in the front passenger seat, bent over with his face pointed toward the floorboard. Mr. Curtis told

Mr. Milken not to panic. Mr. Curtis said that he did not know whether the victim was still alive

when they arrived at the park. Mr. Curtis denied taking any money or drugs from the victim. Mr.

Curtis said that Mr. Milken smashed the victim’s cell phone and jumped back in the Cadillac. Mr.

Curtis acknowledged that he told Ms. Cobb he “had a heavy conscious [sic],” but said that they had

that conversation in a hotel room, not a gasoline station.

On redirect examination, Mr. Curtis said that the victim did not carry drugs late at night

because he was afraid he would be robbed.

Defendant then presented his defense to the jury. Kaylandra Ayers, Defendant’s sister,

testified that Mr. Smith contacted her after the shooting and asked Ms. Ayers to take him to

Defendant’s attorney. Ms. Ayers said that Mr. Smith wanted to tell the attorney that Defendant was

with him on the porch when the victim was shot, and that Defendant did not shoot the victim.

On cross-examination, Ms. Ayers said that she did not know Mr. Smith, but Mr. Smith knew

some of her siblings. Ms. Ayers said that she never told her brother about Mr. Smith’s statement that

Defendant was not the shooter. Ms. Ayers acknowledged that Mr. Smith testified at the preliminary

hearing that Defendant shot the victim. Ms. Ayers acknowledged that she did not tell the police

about Mr. Smith’s statement, and she did not see Mr. Smith again after the preliminary hearing.
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Patricia Marchbanks testified that she was working as a paralegal for Defendant’s attorney

at the time of the incident. Ms. Marchbanks said that Ms. Ayers brought Mr. Smith to the office the

day before Defendant’s preliminary hearing, but Defendant’s attorney was not there. Ms.

Marchbanks took notes as Mr. Smith talked. Mr. Smith told Ms. Marchbanks that the investigating

officers had changed his statement, and he felt bad and wanted to clear things up. Ms. Marchbanks

said that she intended to type up Mr. Smith’s statement, but Mr. Smith said he would not sign the

statement, and left the office before the statement could be prepared.

On cross-examination, Ms. Marchbanks said that she did not have an opportunity to tell

Defendant’s attorney about the meeting before the preliminary hearing.

II. Sufficiency of the Evidence

Defendant contends that the evidence was insufficient to support his convictions of second

degree murder and facilitation of especially aggravated kidnapping. Defendant argues that Mr.

Smith was an accomplice as a matter of law whose testimony that Defendant was the shooter was

uncorroborated by anyone other than his co-defendant, Mr. Curtis. Defendant also contends that the

trial court erred in not instructing the jury that Mr. Smith was an accomplice as a matter of law.

The trial court found that Mr. Smith was not an accomplice as a matter of law and that his

status as an accomplice was a question for the jury to decide. The trial court specifically found:

[O]f course, Mr. Smith’s testimony was that he had nothing to do with the murder or

the robbery at all. That after it was completed he then took the, he put lighter fluid

in the car and at the request of the defendants he took the football equipment. So,

that’s a question for the jury to decide. They’re going to have to evaluate all of that.

I did not hear Mr. Curtis testify that Mr. Smith was in on anything. Nor, [in] any of

the proof you put on. So, for that reason because it’s a question for the jury, I’m

going to use that paragraph and make it optional.

The trial court instructed the jury:

[i]f you find from the proof that the witness was an accomplice, then a defendant

cannot be convicted upon the uncorroborated testimony of this witness. If you find

that the witness was not an accomplice, then you will judge the weight to be given

to his testimony just as you do that of the other witnesses in the case.

“An accomplice is one who knowingly, voluntarily, and with common intent participates with

the principal offender in the commission of a crime.” State v. Bough, 152 S.W.3d 453, 464 (Tenn.

2004) (citing State v. Lewis, 36 S.W.3d 88, 94 (Tenn. 2000); Conner v. State, 531 S.W.2d 119, 123

(Tenn. Crim. App. 1975)). “This means that the person must do more than have guilty knowledge,

be morally delinquent, or participate in other offenses with the principal actor.” State v. Jackson,

52 S.W.3d 661, 665 (Tenn. Crim. App. 2001) (citing Pennington v. State, 478 S.W.2d 892, 898
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(Tenn. Crim. App. 1971)). “Essentially, an accomplice must be a person who could be indicted for

the offense at issue.” Jackson, 52 S.W.3d at 665. If the offense in question was not committed by

the person’s own conduct, the person may, nonetheless, be criminally responsible as a principal to

the offense if the person “solicits, directs, aids, or attempts to aid another person to commit the

offense.” T.C.A. § 39-11-402(2).

It is well established in Tennessee that a defendant cannot be convicted upon the

uncorroborated testimony of an accomplice. Bough, 152 S.W.3d at 464. A trial court must declare

a witness to be an accomplice as a matter of law and so advise the jury when it is clear and

undisputed that the witness participated in the crime. Jackson, 52 S.W.3d at 665. However, “[w]hen

the evidence is unclear, conflicts or is subject to different inferences, then the jury is to determine

whether the witness is an accomplice.” Id.

The only evidence connecting Defendant to the commission of the offenses was presented

through the testimony of Mr. Smith and Mr. Curtis, the co-defendant, who was clearly an accomplice

as a matter of law. By its verdict, the jury obviously found that the evidence supported a finding that

Mr. Smith was not an accomplice to the crimes.

Mr. Smith, who was not indicted following the crimes, denied any involvement in the

offenses although he acknowledged that he was present before, during, and after the shooting and

robbery. Mr. Smith testified that he remained on the porch in front of Ms. Terry’s apartment while

Defendant, Mr. Milken and Mr. Curtis accosted the victim. Mr. Smith’s presence during the victim’s

murder, by itself, is not enough to support a finding that he was an accomplice to the crimes. See

Jackson, 52 S.W.3d at 666 (finding that the witness’s presence in the hallway while the victim was

beaten in an adjoining room did not implicate “him in either the kidnapping or murder in such a way

as to be an accomplice”).

Mr. Smith acknowledged that he poured lighter fluid onto the Cadillac’s back seat after the

victim was shot and his body left in the park. However, it has long been held that an accessory after

the fact is not an accomplice to the charged offenses whose testimony must be corroborated. State

v. Thomas, 158 S.W.3d 361, 402 (Tenn. 2005) (concluding that the witness’s “actions in allowing

the defendant into her home after the commission of the crimes, going shopping with the stolen

money and receiving part of the proceeds for herself, do not make her a principal to the offense of

murder or robbery of the victim”); see also Pennington v. State, 478 S.W.2d 892, 897 (Tenn. Crim.

App. 1971); State v. Tyree Robinson, No. W2004-02555-CCA-R3-CD, 2006 WL 3371411, *12

(Tenn. Crim. App., at Jackson, Nov. 17, 2006), no perm. to appeal filed; State v. Christopher Duwan

Robertson, No. M2001-00976-CCA-R3-CD, 2002 WL 31188228, *13 (Tenn. Crim. App., at

Nashville, Oct. 2, 2002)), perm. to appeal denied (Tenn. Jan. 27, 2003).. 

Based on our review of the record, we conclude that the trial court did not err in finding that

Mr. Smith was not an accomplice as a matter of law and by accordingly instructing the jury.

Moreover, the evidence justified the jury in determining that Mr. Smith was not an accomplice

whose testimony must be corroborated.
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Turning now to Defendant’s challenge to the sufficiency of the evidence, we must review the

evidence in a light most favorable to the prosecution in determining whether a rational trier of fact

could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). Once a jury finds

a defendant guilty, his or her presumption of innocence is removed and replaced with a presumption

of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of

overcoming this presumption, and the State is entitled to the strongest legitimate view of the

evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State

v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts

and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value to be given

the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this

court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of

guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and

circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

The offense of second degree murder is an unlawful and “knowing killing of another.”

T.C.A. § 39-13-210(a)(1); see id. § 39-13-201(a)(1). A person acts “knowingly” with respect to the

result of the person’s conduct when the person is aware that the conduct is reasonably certain to

cause the result. Id. § 39-11-302(b). Mr. Smith testified that Mr. Milken grabbed the victim by the

neck while the victim sat in his vehicle, and that Defendant walked up to the vehicle after the victim

was restrained, pulled out a gun, and shot the victim. Mr. Smith stated that Defendant returned to

Ms. Terry’s apartment and put the gun in his book pack. When Mr. Smith asked why Defendant shot

the victim, Defendant said that it was an accident because he though the victim was reaching for a

weapon.

Mr. Curtis’ testimony mirrored Mr. Smith’s version of the events leading up to the victim’s

death except that Mr. Curtis testified that Defendant shot the victim through the front passenger side

window instead of the driver’s side window as indicated by Mr. Smith. We also observe that Ms.

Cobb testified that Mr. Curtis told her that he had shot the victim but then indicated that he was

merely joking. Deciding whether there are inconsistencies in testimony, reconciling conflicts in

testimony, and how this might affect a witness’s credibility, are all within the province of the jury.

Based on our review, we conclude that a rational trier of fact could find beyond a reasonable doubt

that Defendant was guilty of second degree murder. Defendant is not entitled to relief on this issue.

“A person is criminally responsible for the facilitation of a felony if, knowing that another

intends to commit a specific felony, ... the person knowingly furnishes substantial assistance in the

commission of the felony.” T.C.A. § 39-11-403(a). An especially aggravated robbery is a robbery

accomplished with a deadlyweapon and where the victim suffers serious bodily injury. Id. § 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). 
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Defendant argues that the evidence was insufficient to support a finding that a robbery

occurred. Viewing the evidence in a light most favorable to the State, Mr. Curtis arrived at Ms.

Terry’s apartment, announcing that he needed money because he did not have a place to stay. After

the victim was shot, Mr. Curtis and Mr. Milken disposed of the victim’s body in a local park and

then returned to Ms. Terry’s apartment. Officer Wright testified that the victim’s pockets were

turned inside out when he was found. Mr. Smith testified that he removed the victim’s personal

items from the trunk of the Cadillac before it was set on fire. Ms. Cobb testified that she later

retrieved the football equipment from Ms. Terry’s apartment at Mr. Curtis’s request. Mr. Smith

testified that Mr. Curtis took twenty dollars and some cocaine from the victim. Although there was

no evidence that Defendant was present when the victim’s personal items were taken, the evidence

supports a finding that Defendant’s action of shooting the victim in the forehead facilitated the

commission of the robbery offense.

Based on the foregoing, we conclude that a rational trier of fact could find beyond a

reasonable doubt that Defendant was guilty of the facilitation of especially aggravated robbery.

IV. Motion to Sever

Although jointly indicted, the State initially set separate trial dates for Defendant, Mr. Curtis,

and Mr. Milken. Mr. Milken was tried separately first and convicted of first degree felony murder

and especially aggravated kidnapping. See State v. David Milken, No. W2006-01850-CCA-R3-CD,

2007 WL 2768078 (Tenn. Crim. App., at Jackson, Sept. 21, 2007), no perm. to appeal filed. In

February 2006, the State filed a motion to consolidate Defendant’s and Mr. Curtis’s trials which was

opposed by Defendant. At a pre-trial hearing on March 10, 2006, the State explained that the reason

the three co-defendants were initially severed was because it intended to introduce Mr. Milken’s

statement to the police at trial. This was no longer an issue after Mr. Milken was tried and

convicted.

Defendant filed a motion opposing consolidation on March 17, 2006, on the basis that his

theory of defense and that of Mr. Curtis were mutually antagonistic. An order disposing of

Defendant’s motion for severance is not in the record. However, at a pre-trial hearing on June 28,

2006, the trial court orally denied Defendant’s motion. Relying on State v. Ensley, 956 S.W.2d 502,

509 (Tenn. Crim. App. 1996), the trial court found that “[u]nder the circumstances I’m seeing here,

merely pointing the finger at each other would not fall into the criteria where I would need to sever

this case” and granted the State’s motion to consolidate. Both defendants orally renewed their

respective motions to sever periodically during trial, which motions were denied by the trial court.

“The practice of trying co-defendants in a single trial is ‘aimed at achieving improved judicial

economy and efficiency.’” State v. Mickens, 123 S.W.3d 355, 383 (Tenn. Crim. App. 2003) (quoting

Tenn. R. Crim. P. 8, Committee Cmts). A trial court must grant a severance before trial, however,

if “appropriate to promote a fair determination of the guilt or innocence of one or more defendants,”

and during trial if “necessary to achieve a fair determination of the guilt or innocence of one or more

defendants.” Tenn. R. Crim. P. 14(c)(2)(A) and (B). The grant or denial of a motion for severance
-12-

is a matter that rests within the sound discretion of the trial court. Mickens, 123 S.W.3d at 383

(citing State v. Maddox, 957 S.W.2d 547, 556 (Tenn. Crim. App. 1997)). “This Court has held,

‘[w]here a motion for severance has been denied, the test to be applied in determining whether the

trial court abused its discretion is whether the defendant was “clearly prejudiced” in his defense as

a result of being tried with his co-defendant.’” Mickens, 123 S.W.3d at 383 (quoting State v. Price,

46 S.W.3d 785, 803 (Tenn. Crim. App. 2000)).

It is not unusual in a joint trial for one defendant to attempt to lay blame on the other. See

State v. Ensley, 956 S.W.2d 502 (Tenn. Crim. App.1996); State v. Robinson, 622 S.W.2d 62 (Tenn.

Crim. App. 1981). However, antagonistic defenses are not prejudicial per se. State v. Gosnell, 62

S.W.3d 740 (Tenn. Crim. App. 2001); Ensley 956 S.W.2d at 509; see also Zafiro v. United States,

506 U.S. 534, 538-539, 113 S. Ct. 933, 938, ,122 L. Ed. 2d 317 (1993). Indeed, severance is not

necessarily warranted even if prejudice is shown. Zafiro, 506 U.S. at 538-539, 113 S. Ct. at 938.

The defendant must establish that he was so prejudiced that granting a severance ceased to be within

the trial court’s discretion. State v. Burton, 751 S.W.2d 440, 447 (Tenn. Crim. App. 1988).

Defendant submits that the prejudicial effects of the joint trial began when Mr. Curtis’

counsel repeatedly asked Mr. Smith on cross-examination to confirm that it was Defendant and not

Mr. Curtis who was armed that night. Although Defendant’s argument emphasizes the conflict

between his theory of defense and that of Mr. Curtis, Defendant was not hindered in presenting

testimony that implicated Mr. Curtis as the shooter. Based on our review of the record, this incident

does not evidence an effect so prejudicial as to warrant a separate trial.

Defendant argues that the trial court’s limitations on his cross-examination of the State’s

witnesses as well as his defense witnesses resulted in his inability to thoroughly present his theory

of defense. Defendant contends that the trial court’s rulings in this regard were prompted solely by

considerations arising out of a joint trial.

For example, Mr. Curtis’ counsel objected when Defendant’s counsel attempted to lay a

foundation for the presentation of rebuttal evidence based on Mr. Smith’s prior inconsistent

statement to Ms. Ayers and Ms. Marchbanks. Although Mr. Curtis’s counsel and the State initially

objected, the trial court allowed Defendant’s defense counsel to pursue this line of questioning. In

both instances, Mr. Smith denied knowing either woman, and Mr. Smith’s prior inconsistent

statement was subsequently explored during the presentation of Defendant’s defense. Based on our

review of the record, we do not discern any prejudice that would warrant the grant of a severance.

Defendant argues that he was prejudiced by the joint trial when counsel for Mr. Curtis sought

to challenge Ms. Cobb’s credibility on cross-examination. Ms. Cobb’s testimony that Mr. Curtis told

her that he had shot the victim was clearly beneficial to Defendant’s theory of defense. Defendant

submits that Ms. Cobb’s credibility would not have been an issue had he been tried separately.

Ms.Cobb’s vulnerabilityto a credibility challenge resulted from an alleged relationship with

Sergeant Sims after she gave her statement to the police and before trial. On cross-examination by
-13-

Mr. Curtis’s counsel, Ms. Cobb acknowledged that she accompanied Sergeant Sims on a boating trip

prior to trial, and that Sergeant Sims drowned during the outing. Ms. Cobb, however, repeatedly

denied that she was involved in a romantic relationship with Sergeant Sims. Mr. Curtis’ counsel

followed up on this line of questioning during Sergeant Mullins’ cross-examination. Sergeant

Mullins acknowledged that as a general proposition, he believed that it was inappropriate for an

investigating officer to become involved with a witness in a murder case during the investigation of

the crime. Sergeant Mullins testified, however, that the police department’s investigation of the

offenses had been concluded and turned over to the district attorney’s office prior to Sergeant Sims’

death. After a lengthy hearing out of the presence of the jury, the trial court determined that none

of the circumstances surrounding Sergeant Sims’s death or the police department’s investigation into

Sergeant Sims’s death could be explored during cross-examination.

Defendant’s theory of defense was that Mr. Curtis was the shooter. Defendant candidly

acknowledges that Ms. Cobb’stestimony was beneficial to him in presenting this defense to the jury.

Ms. Cobb’s testimony on cross-examination about her contacts with Sergeant Sims prior to trial were

brief, and she repeatedly denied any relationship. The trial court carefullylimited the scope of crossexamination concerning the events before and after Sergeant Sims’s death. Based on our review of

the record as a whole, we conclude that Defendant has failed to show that he was so prejudiced by

Ms. Cobb’s cross-examination on this issue that a severance was warranted.

Defendant argues that he was prejudiced when Mr. Curtis made an inflammatory remark in

front of the jury as the jury was leaving the courtroom. At the conclusion of Sergeant Shelby’s

testimony, a recess was called and the jury began leaving the courtroom. As they were leaving, Mr.

Curtis apparently said a curse word which was overheard by the trial court. The trial court

admonished Mr. Curtis for his conduct. After court reconvened, but before the jury was brought out,

Mr. Curtis apologized for his outburst, and Defendant’s counsel expressed concern over the incident.

The following colloquy occurred:

DEFENSE COUNSEL: Your Honor, toward that end I did hear what [Mr.

Curtis] said and it was a very unkind remark directed

to the jury. And, my concern is that they may have

heard that. I don’t know if they heard it. I heard it. I

don’t know —

THE TRIAL COURT: Well, all I heard was the word [s . . .t]. And, I was

watching him at the time. And so, the jurors never

turned around. So, the reason I waited until the jury

left and then I talked to him is because I don’t think

anybody was aware of it. If they were it was his own

doing and it would not impact your client at all,

[defense counsel].
-14-

DEFENSE COUNSEL: My concern is if they did hear it I don’t know if they

would know the source. And, I don’t know if that

would potentially prejudice [Defendant] Ayers if the

jury heard what he said, because I heard what he said

and it was directed . . .

THE TRIAL COURT: Right[,] and you were standing next to him. . . . I

heard it because I was looking right at him at the time.

Otherwise, I would not have said what I said. I just

wanted to stop that. So, I make a finding of fact the

jury did not hear anything he said that they could

understand regarding it being directed at them. For all

they know if anybody heard anything, he was talking

about his opinion of the State’s proof, which would

not make any difference.

Based on our review of the record, we conclude that Defendant has failed to show that the

trial court abused its discretion in determining that Mr. Curtis’s isolated remark did not clearly

prejudice Defendant. See State v. Mickens, 123 S.W.3d 355, 384 (Tenn. Crim. App. 2003)

(concluding that a co-defendant’s single flash of a gang sign in front of the jury was not so

prejudicial as to warrant a mid-trial severance). Defendant is not entitled to relief on this issue.

Defendant contends that the prejudicial effect of a joint trial was further manifested because

of the limitations placed on his direct examination of defense witnesses Kaylyndra Ayers and Patricia

Marchbanks. On direct examination, Mr. Smith denied that he knew Ms. Ayers or Ms. Machbanks

and testified that he had not made any statements to them about the shooting. At the close of the

State’s case-in-chief, the trial court conducted a hearing out of the presence of the jury concerning

the proposed testimony of Defendant’s witnesses, Ms. Ayers and Ms. Marchbanks

Ms. Ayers testified that Mr. Smith told them that Defendant was upstairs with him when the

shooting occurred and that “Day-Day” shot the victim. At the conclusion of Ms. Ayers’ testimony

the following colloquy occurred:

TRIAL COURT: I think we need to treat this as we would a Bruton

problem in a statement. I think what needs to happen

is that [Ms. Ayers] needs to be allowed to testify to

this alleged prior inconsistent statement. But she’s

not going to be allowed to say that Day-Day or

[Defendant] Milken were the ones that did the killing.

She would be allowed to say that he said that

[Defendant] Ayers was not the person who shot. That

he was with him at that time. . . . In other words, this

is being offered not to prove that [Defendant] Curtis
-15-

did the killing. It’s being offered to prove that Corey

Smith’s statement, his testimony is not credible. So,

the fact that [Defendant Ayers] would be upstairs with

Mr. Smith and the shooting was in the car would not

in any way stop you from being able to argue that Mr.

Smith’s statement, that your client did this, is not

credible.

DEFENSE COUNSEL: Would she be allowed to say who he told her was

downstairs by the car or in the car?

TRIAL COURT: I think we need to just leave that out. Because if

[Defendant Ayers] is upstairs then that’s all that needs

to happen. If she was talking about the other two

people that were in the car, all that would do is . . .

inculpate someone else and it would not tend to

further exculpate your client.

Defendant argues that as a result of the trial court’s ruling, Ms. Ayers and Ms. Marchbanks

only testified to “the pared down version” of Mr. Smith’s statements to them thereby hindering

Defendant’s efforts to present a complete defense. Defendant contends that had he not been tried

jointly with Mr. Curtis, the witnesses would have been permitted to testify that Mr. Smith told them

that Mr. Curtis was the shooter.

Tennessee Rule of Evidence 613(b) provides that:

[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible

unless the witness is afforded an opportunity to explain or deny the same and the

opposite party is afforded an opportunity to interrogate the witness thereon, or the

interests of justice require otherwise. This provision does not apply to admissions

of a party opponent as defined in Tennessee Rule of Evidence 803(1.2).

See also State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982). Tennessee Rule of Evidence 613(b)

allows the introduction of otherwise inadmissible extrinsic evidence for impeachment purposes.

State v. Martin, 964 S.W.2d 564, 567 (Tenn. 1998). A prior inconsistent statement introduced for

purposes of impeachment, however, may be considered only on the issue of credibility and not as

substantive evidence. State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000) (quoting Jones v. Lenoir City

Car Works, 216 Tenn. 351, 392 S.W.2d 671, 673 (Tenn.1965)); Reece, 637 S.W.2d at 861; State v.

Jones, 15 S.W.3d 880, 891 (Tenn. Crim. App. 1991). 

Both Ms. Ayers and Ms. Marchbanks testified at trial that Mr. Smith told them that

Defendant was with him on Ms. Terry’s porch when the shooting occurred in contradiction to his

trial testimony that Defendant was downstairs at the victim’s vehicle when the victim was shot.
-16-

Testimony that Mr. Smith went further and named Mr. Curtis as the shooter would have provided

another example of inconsistency but such statement could not be considered by the jury as

substantive evidence that Mr. Curtis was, in fact, the shooter. Even assuming that a more thorough

direct examination of these rebuttal witnesses might have been possible in a separate trial, Defendant

has not shown that the limitation on the scope of his direct examination, even if error, was so

prejudicial as to warrant a separate trial. Defendant is not entitled to relief on this issue. 

V. Sentencing Issues

Defendant challenges the trial court’s imposition of consecutive sentences based on a finding

that Defendant was a dangerous offender. Specifically, Defendant submits that the trial court failed

to make the requisite findings set forth in State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995) and

thus may not rely upon Defendant’s status as a dangerous offender in determining whether Defendant

should serve his sentences consecutively.

At the sentencing hearing, the State relied on Defendant’s presentence report which was

introduced as an exhibit without objection. Defendant did not offer any evidence at the sentencing

hearing.

According to the presentence report, Defendant stated that he was expelled from Hillcrest

High School in the eleventh grade. Defendant worked periodically at various jobs in the past but has

not been employed since 2000. Defendant stated that he joined the “Crips” when he was

approximately nine years old but said that he ended his affiliation with the gang at some point in

2000. Defendant denied drinking alcohol or using any type of illegal drugs.

Defendant was twenty-four years old at the time the offenses were committed. According

to the presentence report, Defendant was convicted in 1999 of aggravated burglary, a Class C felony,

and sentenced to three years. In 2000, Defendant was convicted of evading arrest, a Class A

misdemeanor; felony evading arrest, a Class E felony; and theft of property valued over $1,000, a

Class D felony. Defendant was sentenced to eleven months, twenty-nine days for his misdemeanor

evading arrest conviction, one year for his felony evading arrest conviction, and two years for his

theft conviction. In 2003, Defendant was convicted oftwo counts of criminal trespass and one count

of theft of property under $500.00, all misdemeanor sentences.

Based on the presence of the Class C and Class D felony convictions, the trial court

sentenced Defendant as a Range II, multiple offender, for his facilitation of especially aggravated

robbery conviction and as a Range I, standard offender, for his second degree murder conviction.

See T.C.A. §§ 40-35-105; 40-35-106(a)(1). The trial court found that enhancement factor (1) based

on Defendant’s history of prior convictionsin addition to those necessary to establish the appropriate

range, was applicable to both convictions. Id. § 40-35-114(1). The trial court also found

enhancement factor (9) applicable to Defendant’s murder conviction in that Defendant possessed or

employed a firearm during the commission of the offense. Id. § 40-35-114(9). Accordingly, the trial
-17-

court sentenced Defendant to twenty-two years for his murder conviction and fourteen years for his

facilitation conviction.

The trial court found that the circumstances surrounding the offense were aggravated. The

trial court found that confinement for an extended period of time was necessary to protect society

from Defendant’s unwillingness to lead a productive life and his “resorting to criminal activity in

furtherance of an anti-societal lifestyle.” The trial court found that an effective sentence of thirty-six

years reasonably related to the offenses which consisted of “basically murdering a man and dumping

him in a park after robbing him of his football equipment for the football team, kids that he’s

working with.” Based on these considerations, the trial court found that Defendant was a dangerous

offender for whom consecutive sentencing was appropriate.

We note that the legislature has recently amended several provisions of the Sentencing

Reform Act of 1989, which became effective June 7, 2005. However, although Defendant was

sentenced after the effective date of the amended Act, Defendant’s crime in this case occurred prior

to June 7, 2005, and Defendant did not elect to be sentenced under the provisions of the amended

Act by executing a waiver of his ex post facto protections. See 2005 Tenn. Pub. Acts ch. 353 § 18.

Therefore, this case is not affected by the 2005 amendments, and the statutes cited in this opinion

are those that were in effect at the time the instant crimes were committed.

When a defendant challenges the length or the manner of service of his or her sentence, this

Court must conduct a de novo review with a presumption that the determinations made by the trial

court are correct. T.C.A. § 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). This

presumption, however, is contingent upon an affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances. State v. Pettus, 986

S.W.2d 540, 543-44 (Tenn. 1999). If the record fails to show such consideration, the review of the

sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In making its sentencing determinations the trial court must consider: (1) the evidence

presented at the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and

arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct;

(5) any appropriate enhancement and mitigating factors; (6) the defendant’s potential or lack of

potential for rehabilitation or treatment; and (7) any statements made by Defendant in his own

behalf. T.C.A. §§ 40-35-103 and -210; State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App.

1995). The defendant bears the burden of showing that his sentence is improper. T.C.A. § 40-35-

401(d), Sentencing Commission Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

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 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.” T.C.A. § 40-35-115(a)(4). If the trial court rests its determination of consecutive
-18-

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. Wilkerson, 905 S.W.2d at 939. 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 T.C.A. §§ 40-35-102(1) and -103(2)); State v. Lane, 3 S.W.3d 456, 461

(Tenn. 1999). Once appropriate factors have been found, it is within the sound discretion of the trial

court whether or not to impose consecutive or concurrent sentences. See State v. Adams, 973 S.W.2d

224, 230-31 (Tenn. Crim. App. 1997).

The trial court specifically addressed the Wilkerson factors at the sentencing hearing. That

is, the trial court found that Defendant’s continual engagement in criminal activity since reaching

adulthood evidenced a need to protect society from further criminal conduct by Defendant, and that

the effective sentence was reasonably related to the severity of the offenses. Based on our review

of the record, we conclude that the length of Defendant’s sentence is “‘justly deserved in relation to

the seriousness of the offense’” and “‘no greater than that deserved for the offenses committed.’”

Defendant is not entitled to relief on this issue.

Although not raised on appeal, we observe that the trial court’s application of enhancement

factor (9) to enhance Defendant’s sentence for his second degree murder conviction is problematic

in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In

Blakely, the United States Supreme Court concluded that the “‘statutory maximum’ for Apprendi [v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed. 2d 435 (2000),] purposes is the maximum

sentence a court may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant. Blakely, 542 U.S. at 303. Our supreme court has recently concluded that other

than a defendant’s prior criminal convictions (or other enhancement factors admitted to by the

defendant), the application of enhancement factors by the trial court rather than a jury, which

increases the defendant’s sentence beyond the statutorily presumptive minimum sentence, deprives

the defendant of his or her Sixth Amendment right to have a jury determine whether those

enhancement factors apply. State v. Gomez, 239 S.W.2d 740 (Tenn. 2007) (citing Cunningham v.

California, 549 U.S. ___, 127 S. Ct. 856, 860, 166 L. Ed. 2d 856 (2007)). Thus, consideration of

Defendant’s prior criminal history, to which the trial court gave great weight “does not offend the

Sixth Amendment.” Id.

As noted above, Defendant did not execute a waiver as a means of electing sentencing under

the Blakely-compliant 2005 amendments to the sentencing law. In setting the length of Defendant’s

sentence for his facilitation of especially aggravated robbery conviction, however, the trial court

considered only Defendant’s prior criminal history, and thus no Sixth Amendment concerns are

implicated. Id. As for his sentence for second degree murder, Defendant is limited to plain error
-19-

review of this sentencing issue because he did not raise a Blakely issue as to the length of his

sentence for this conviction either at trial or on appeal. Id. at 737.

Before an error is recognized as plain error, it must be “plain” and must affect a substantial

right of the accused. The term “plain” equates to “clear” or “obvious.” See United States v. Olano,

507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993). Plain error is not error that is simply conspicuous;

rather, it is especially egregious error that strikes at the fairness, integrity, or public reputation of

judicial proceedings. See State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). In State

v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994), this court defined “substantial right” as a

right of “fundamental proportions in the indictment process, a right to the proof of every element of

the offense and ... constitutional in nature.” Id. at 639. 

Based on our review, even though the trial court erred in considering enhancement factor (9)

in determining the length of Defendant’s sentence for his second degree murder conviction,

consideration of Defendant’s prior criminal convictions was entitled to sufficient weight to justify

the enhancement of Defendant’s sentence for his second degree murder conviction from the

presumptive sentence of twenty years to twenty-two years. See Gomez, 239 S.W.3d at 743

(observing that the extent of the weight placed on the defendants’ history of prior criminal

convictions may well justify the imposition of the maximum sentence for all convictions). Thus,

consideration of the Sixth Amendment concerns raised by the trial court’s misapplication of

enhancement factor (9) is not necessary to do substantial justice and Defendant is not entitled to plain

error review.

CONCLUSION

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

___________________________________ 

THOMAS T. WOODALL, JUDGE