### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 12, 200 7

ST A TE OF TE N N ES SE E v

. M A R IO M ORR IS

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 03-01051 Jam es C. Beasley, Jr ., Judge

No. W2006-02345-C CA-R 3-CD - F iled Dece m ber 3, 2007

Th e de fe nd ant, Mari o Mor ri s, wa s convic te d by a She lby County Cr imi na l Cour t jur y of fo ur c ounts of a g g ra vate d r ob be ry , a

Cla ss B fe lony , a

nd on e c ount of e sp e c ia lly

a g g ra vate d k idn a

pp ing , a Cla ss A fe lony . After

merg ing the four c ounts of ag g ravated robbe ry in t o t wo co u n ts, the trial court
sentenc ed him as a Rang e I
, standard offende r t o ten y ear s at 30% for eac h of the a g g ravated robbe ry convictions and as a violent of fende r to twe nty y ear s at 100% for the espe ci al l y ag g ravated kidnapping conviction. Finding the defe ndant to be a dang erous of fende r, the trial c ourt order ed that

eac h of the sente nces be serve d consec utive l y fo r a tot al ef fec tive sentenc e of f

orty y ear s in the Depa rtment of Corre ction. On appe al, the defe ndant challeng es the sufficie ncy of the evidenc e and the trial cour

t’s imposit ion of consec utive sent en ci n g. Following our re view, we aff irm the jud g me nts of the tr ia l court

. Ho we ve r, be c a us e the re c or d re ve a ls that th e de fe nd ant w a s im pr op e rl y sentenc ed under

the 2005 amendme nts to the 1989 Sentencing Act, we rema nd to the t rial cour

t for

re s en t en ci n g.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Cr im ina l C our t A ffirm e d and Re m ande d for Re se nt e nc ing

A L AN E. G L EN N , J
., d el i v er ed the opinion of the cour t, in which D AVI D H. W EL L ES and J OHN E VE R E TT W I L L I AMS , J J ., joined.

R. Pr ic e Ha

rr is, Me mph is, Te nn e sse e , f or the a pp e lla nt, Ma ri o M or ri s.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and Re po rt e r; Sop hia S. L e e , Ass ist ant A tto rn e y Ge ne ra l; Wil liam L . Gibb o n s , Di s trict Attorney Gene ral; and Stac y

McEndre e, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TSA t t he t i me of t r i al
, t he wi t nes s ’ s na me was E l i s ha W i nf ord r at her t han E l i s ha W i l ki ns

. W e wi l l
, howev er , r ef er 1

t o h e r by t h e n a me “ W i l k i n s , ” s i n c e t h a t w a s t h e n a me by w h i c h s h e w a s k n ow n a t t h e t i me of t h e c r i me s a n d t h e n a me b y w h ic h sh e w a s re fer re d to thr o u g h o u t t h e trial.

-2- On May 14, 2002, the kidnapping vict im, Elisha W ilkins, was alone in her boy friend’ s Memphis home when a

g roup of a

rmed men br oke in demand i ng to know wher e the money was kept. Afte r r an s a c k in g th e h o me , th e me n to o k Wi lk in s ’ w a ll e t an d c ar k e y s , f o r c e d h e r in to her

ve hic le , a nd dr ov e he r t o th e re sid e nc e of he r f ri end
, L aTo ny a

Coo pe r, wh o w a s h ome a lon e wi th her two young daug hters. The men forc ed Wilkins at g unpoint to knock on th e door a nd identify herse lf to Cooper, there by g aining entry

into the home. Once i n s i d e, the men sea rche d the home, taking Cooper’s c ash, jewe lry , vehicle, a nd other va luables.

The de fenda

nt and four c odefen d ants wer e subseque ntly indicted in connec tion with the crimes, with the defe ndant and three of his c odefe ndants char g ed with the espe ci al l y aggravated kid na pp ingof Wilk ins and

the a g g ra

vated robbe ri e s o f Wi lki ns and Coo pe r a

nd the fo ur th codef endant charg ed with the facilitation of t he crimes. On Aug ust 14, 2006, the case proce eded to trial ag ainst the defe ndant and two of his codefen d ants, Montrea l L y ons and Kha lfani Mar ion. Wil kins testified that on the evening of May 14, 2002, she was napping in the home of her boy friend, Chris W inford, whom she ha d since marrie d. Awake ned by a knock at the back door , she looked 1 out the kitchen window a

nd saw a man she did not rec og nize who asked her if Chris w as home. She

answe red that he was not a nd beg an wa lking ba ck to the den. Hea ring a sec ond knock, she r eturne d to the door to find that the first man was now acc ompanied by a sec ond, taller man w ho was a rmed with a g un. Next, seven or eig ht men broke in the residence demanding to know where the mone y was ke pt. Accor ding to Wilkins, at l east half of t hese men wer e armed wit h g uns. She stated that she told them she di d not live there and did not know any thing a bout any money . Howeve r, the men kept telling he r that she shou l d re v ea l t h e money ’s location bec ause the y wer e g oing to kill her
any way

.

T h e me ns e ar c h e d

th e h o me , ta

k in g Wi lk in s ’ w a ll e t, id e n ti f ic a ti o n , an d

th e k e y s to h e r

I s u zu Rodeo. The ba ck door wa s open and L y ons instructed one of

the men to watc h her. A t about the same time, Ly ons told her that she wa s g oin g t o d ie bec ause she had see n his face . She was then fo rc e d ou tsi de and int o the ba c ks e a t of he r ve hic le wh ile fo ur of the me n, inc lud ingthe de fe nd a nt, g ot into the vehicle with her . At that point
, she noticed that a burgundy van wa s pulled in behind her ve hicle. Wilkins testified that the men he ld her at gunpoint while they drove he r to the home of L aTony a Cooper, w hom she had met through Winford. At a later point in her testimony , she explained that Wi nford and Cooper’ s husband wer e co- owner s of a ba r and g rill. She said that when she re alized where the men wer e taking her, she beg an pleading with the m f or the sake of Cooper’ s children:

And when I

discovere d that we wa s g oing to La[ T ] o [ ny ]a Cooper’s house, . . . I started be g g ing a

nd pleading with them telling them that she had two little girls. And Itold them that they might kill me and her but just don’t hurt the babie s. And then-3-

that’s when the y

was telli ng us that they didn’t car e about nothing, . . . the babies or

n o t h i n g.

Wil kins testified that L y ons held a gun to the back of her he ad as he forc ed her to knock on the do or and ide nti fy he rs e lf to C oo pe r. A s e c on d ma n s too d b e sid e he r a

t the do or wh ile the re st of the men hid themselve s. Cooper unlocke d the door, a nd the men pushed Wilkins inside as they

and the ir c omp anio ns ru sh e d in

be hin d h e r. Th e same se ve n o r e ig ht m e n w ho ha d b e e n in Winford’s home ca

me into Cooper’s home.

I nside the home, the me n initially separ ated the women, placing Wil kins in the bathroom and Cooper in a be droom. As they sear ched the home, the men r epeatedly asked the women whe re the
money was kept and threatene d to kill t hem. Cooper de nied knowledg e of a ny money , and Ly ons said to the o t h er m en, “[Y]ou go in ther e and g et one of them kids. Ibetcha

they ’ll talk.” At one
po int the te le ph on e ra

ngand the me n f

or c e d Coope r t o a

ns we r i t, at th e same tim e thr e a te nin g to shoot her if she sa id the wrongthing. At another point
, the def endant he ld the women at gunpoint toge ther in one be droom. Fina l l y , befor e leaving, the men forc ed the wome n to lie fac e down toge ther on the living room floor. Cooper’s husband ca me home soon there afte r, and Wilkins st ay ed in the home until Winford arr ived to take her back to his house, whe re the y telephoned the police.

Wil kins estimated t hat the men we re at Wi nford’ s house for ha lf an hour to a n hour and at Cooper’s house for

about the same amount of time. She said the houses we re w ell-lit and she wa s within three fe et of the me n at both locations. On May 16, 2002, a p o l i ce o ff

i cer showed he r a photogr aphic spre adshee t from which she positively identified the defe ndant, Mario Morris, as one of the pe rpetra

tors. On J une 8, 2002, she rec og nized one of the codef endants, Khalfa

ni Marion, at the Gre y hound bus station a

nd immediately contac ted a secur ity office r, who called the police. On Se pte mbe r 1 3, 20 02 , s he po sit ive ly ide nti fi e d a

no the r c od e fe ndant, Mo ntr e a l Ly on s, fr om a ph oto g ra ph ic sp re a ds he e t sh e wa s sh ow n b y th e po lice . Wil kin s te sti fi e d th a t sh e pa rt ic ula rl y

reme mbere d a scar on L y ons’ nec k, which wa s not depicted in the photog raph. She ma de positive courtroom identifications of each of the t hree defe ndants and said that she ha d also identified ea ch

on e a t e arl ie r p re lim ina

ry he ari ng s.

On cr oss-examination, W ilkins t estified that some of the men wer e we aring masks but that the three defe ndants on trial wer e not. She acknow ledg ed that both she and Cooper wer e upset a

nd fr ig hte ne d a

nd that th ing s w e re c ha oti c in t he ho me du ri ng the i nc ide nt. She state d o n r e dir e c t, howeve r, that she wa s cer tain of her

identification of a ll three de fenda nts.

L aTony a Cooper te stified that she wa s in bed watc hing te levision and her f ive-a nd-six -y ear

old daug hters we re a sleep in their be droom when the doorbell ra ng shortly afte r 10:30 p.m. on May 14, 2002. She went to the door and a sked who wa s there. When Wilkins i dentified he rself, Cooper
tur ne d th e a larm

of f a nd op e ne d th e do or to fi nd no t on ly Wilk ins bu t “ a

wh ole bunc h o f guy s w ith
g uns” at he r doorstep. Cooper later e stimated that there w ere five or six men prese nt a nd testified that she re called se eing three g uns. She said she st epped backwa rds and raised her

hand as the men

came into the house and locke d the door behind t hem. S he stated that she asked the men not to wake-4-

her daug hters, and Marion ins tructed her to close their bedroom door. When she returned, the me n

wer e moving around the house and a sking f or money and jewe lry

. Cooper testified that she g ave the money in he r purse to Ma rion, who acc ompanied her to her bedroom to re trieve it. She said that Ly ons, who thoug ht s h e s hould have more money , kept threatening to kill her, her da ug hters, and Wilkins and sugg ested that she could produce more money if he bro u gh t h er daug hters out of their be droom. I n response , she told him that she would not

e nd ang e r h e r c hil dr e n’ s li ve s by wi thh old ing any mon e y fr om h im. Mari on the n to ok he r b a c k in to the bedr oom while he rummag ed th ro u gh h er dresse r. Cooper te stified that Wil kins was later broug ht into the bedroom with her. She state d that the telephone rangat one point and Ly ons made her a nswer it, at the same time instruc ting the defe ndant to shoot her if she said any thing wr ong . At another point, someone knocke d on the door a nd Marion instructed he r to answe r it, telling the defe ndant t o “ s p r ay

h e r a s s ” if s h e tr ie d to r u n

. Wh e ns h e o p e n e d

th e d o o r to f in d n o o n e there
, Marion told her to c lose the door.

Cooper testified that it see med to her as if the men wer e in her home “f oreve r.” She sa id that befor e they

left, they broug ht her a

nd Wil kins out of t he bedroom and ordered them to lie face down

on t h e l i v i ng room floor. B eca use she be lieved that she a nd Wil kins were about to be killed, she pleade d for the me n to take them outs ide wher e her children w ould be unable to se e or he ar the murders. Ly ons responde d that she could either lie down or he w ould shoot her down. Af ter she ha d complied, the men instructe d her a nd Wil kins to start counting and then lef t throug h the bac k door. A m inute or so later, she and W ilkins g ot up and she te lephoned he r husband, who c ame home a nd telephoned the police. Ac cordingto Cooper, the men took her DV D p l ay er, mone y , laptop computer, je welry , and vehic le.

Coo pe r t e sti fi e d th a t so me of the me n wo re ma sk s, bu t th e thr e e de fe nd ants on tr ia l di d n ot. The lig hts were on in the house and the men wer e as c lose as two fe et at times. She s aid s he identified t he defenda

nt, Marion, and L y ons from photogra phic s prea dsheets she w as shown on May 16 , 2 00 2, June 8, 20 02 , a nd Se pte mbe r 21, 20 02 , r e sp e c tiv e ly . Sh e state d th a t sh e wa s n ot w ith Wilk ins wh e n Wil kin s r e c og nize d M ari on a t th e bu s st a tio n. She a g re e d th a t sh e po sit ive ly identified the de fenda

nt a nd Marion at a Jul y

3, 2002, preliminary

hear ing a nd said that she informe d
po lic e the nig ht o f t

he inc ide nt a

bo ut L y on s’ larg e scar on

his ne c k, wh ic h w a s n ot v isi ble in h is photogr aph. Cooper ma de positive courtr oom identifications of all three defe ndants.

On cr oss-examination, Cooper acknow ledg ed that things wer e chaotic dur ing the time of the robber y . She r e it e r a te d th a t it s e e me d li k e th e me n w e r e in h e r h o me f o r a lo n g ti me an d

did not respond whe n asked if she would be surpr ised to learn that Wi lkins and Wi nford ha d telephoned the police fr om Wi nford’ s home at 11:14 p.m.

She lby County Sheriff’ s Dep uty

Jaso n L on g , w ho wa s d isp a tc he d to Coo pe r’ s h ome e a rl y on the morning of May 15, 2002, testified that he took a n initial re port about the incide nt and noted that the ho us e wa s in dis arr ay

. Me mph is Pol ic e Of fi c e r John Che va lie r, wh o wa s dis patc hed to Winford’s home befor e midnight on May 14, 2002, and L ieutenant Da niel Parris, the c rime sce ne-5-

un it o ff ic e r w ho re sp on de d to the same a dd re ss, e a c h tes tif

ie d tha t the ba c k doo r to Win fo rd ’s ho me had bee n kicked in and that the house appe are d to have be en ra nsacke d.

L ieutenant L arry Skag g s of the Memphis Police Depa rtment testified that he w as working do wn tow n o n th e nig ht of June 8, 20 02 , w he n a ne rv ou s, fr ig hte ne d w oma n a pp ro a c he d h im a

nd sa id she had just re cog nized a man at the bus stati o n as someone w ho had broke n into her home a nd robbed he r. Afte r obtaining a descr iption of the suspect, he w ent to the bus station, where he ar rested Khalfa ni Marion. L ieutenant Connie Mane ss of the Memphis Police D epar tment testified that she showed W i l k i n s a photog raph of Marion later

that same nig ht and aske d whether she wa s sure he was the m an who had c ommitt ed the home inva sion. She said that Wi lkins answere d in the aff irmative.

Serg eant Timothy

Gre en of the Memphis Poli ce D epar tment, who was a ssigne d to the Robbery Division in 2002, t estified that he w as the lea d office r assig ned to the ca se. On May 16, 20 02 , h e sh owe d bo th v ic tim s a six- pe rs on

ph oto g ra ph ic sp re a ds he e t f

ro m w hic h e a c h v ic tim positively identified t he defenda

nt, Mario Morris. He said that he conducted the identifications at
separ ate times and nei t h er v i ct i m knew whic h photogr aph the other had chose n. He state d that Wil kins chose the de fenda nt’s pho t o gra p h wi thin five or six seconds of being shown the photogr aphic a

rra y

. He could not r eca ll how longCooper took but said that she also identified the defe ndant, circ ling his photog raph and writing that he had not be en we aringa mask. He testified that he showe d Cooper anothe r six -per son photogr aphic spre adshee t on J un e 8
, 2 002, from which she

“ pr e tty qu ic kly ,” ide nti fi e d Kha lf ani Mari on by c ir c lin g his ph oto g ra ph . A t se pa

ra te tim e s, he a lso showed e ach vic tim a six -per s o n photogr aphic spre adshee t from which e ach ide ntified Montrea l L y o n s

. H e s a id th a t th e v ic ti ms w e r e c e rta in in th e ir id e n ti f ic a ti o n s an d e a c h a ls o me n tioned the larg e sca r on L y ons’ nec k, which wa s not visibl e in the photog raph.

Se rg e ant G re e n te sti fi e d th a t he de te rm ine d thr ou g h the c ours e of his inv e sti g a tio n th a t a ll three defe ndants curr ently on trial wer e living in the sa me apa rt m ent complex at the time of the

ro bb e ri e s. He a c kn ow le dg e d th a t f ive of the su sp e c ts i n th e c a se ha d p ro vid e d Ly on s’ name a s a person involved in the crimes. He said that another codef endant, not curr ently

on trial, was a

rre sted the same da

y as t he crimes and provided a narrative to him about t he events that had transpire d. On

cross-e x amination, he ac knowledg ed that no fing erpr ints had been obtained in connec tion with the

case

.

Eac h of the three defe ndants elec ted not to testify and re sted their ca ses without presenting
any proof. The only

witness at the September 14, 2006, sentenc ing he aringwas L aTony a Cooper, wh o te sti fi e d th a t sh e ha d liv e d in a state of c on sta nt f e ar s inc e the or de a l. S he sa id s he ha d tr ou ble sleeping , was c onstantly

worrie d about the saf

ety of her children, a

nd had neve r ag ain lived in her home af ter the c rimes. Over

the objection of de fense counsel, Cooper testified t hat on the nig ht of the cr imes Wi lkins tol d her that one of the me n had put a gun in her mouth whil e she w as standing on Cooper’s por ch, fr ighte ning he r so much that she ha d urinated.-6-

The tr i al co u rt found one e nhance ment fac tor applica ble to all of the c rimes: that the defe ndant was a

lea d er i n the commission of the offe nses. See Te nn. Code Ann. § 40-35- 114(2) (2 00 6) . T he tr ia l c ourt

found the e nh anc e me nt f a c tor tha t th e de fe nd ant t

re a te d a vic timwi th exceptional crue lty

applicable to the ag g ravated robbe ry conviction i n v o lving Cooper , and the

e nh anc e me nt f

a c tor that th e de fe nd ant h a d n o h e sit a tio n in c omm itt inga

c rime whe n th e ri sk

to human life wa s high a

pplicable to both robbe ry

convictions. See id. § 40-35-114( 5), (10). The trial

co u rt fo u n d

n o ap p l i cab l e mi t i gat i n g fa ct o rs

. T h e tr i al co u rt t h en s en t en ce d t h e d ef en d an tas a R an ge I , standard of

fende r t o ten y ear s for each of the ag g ravated robbe ry convictions and to twenty y ear s as a violent offe nder f

or the e specia lly

ag g ravated kidnapping conviction. B ased on its finding that the def endant was a dange rous offe nder, the trial court or dere d that eac h of his sentenc es be se rved

consec utively , for a

n eff ective f orty -y ear sentenc e in the De partment of Corr ection.

AN AL YSI S

I. Su ff iciency of the Evid ence

As his first is s u e, the defenda nt challeng es the suff

iciency of the c onvicting e vidence

. Specifica lly , he conte nds that there w as insufficie nt evidence to establish his identity , arguing that the State’s only

evidenc e linking him to the cr imes was the “tea rful testimony ” of the victims, which was so inconsistent and full of g aps as to “ war rant a finding by

this court that eac h and eve ry element of e a c h an d e v e r

y c h ar g e w a s n o t p r o v e n b e y o n d a r e a s o n a b le d o u b t. ” T h e St a te ar g ues that the victims’ ey ewitness identifications of the defe ndant wer e suff icient to establish his identity as one of the pa rticipants in the cr imes. We ag ree with the State.

Whe n th e su ff

ic ie nc y of the c on vic tin g e vid e nc e is c ha lle ng e d o n a pp e a l, t his court mus t consider “whe ther, afte r viewing the evidenc e in the light most fa vorable t o t h e p ro s ecution, any rational trier

of fa ct could have found t he esse ntial elements of the of fense char g ed beyond a

re a so na ble do ub t.” Jac ks on

v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S. Ct

. 27 81 , 278 9 ( 19 79 ); se e a lso Te nn . R. App . P. 13 (e ) (“ F ind ing s of g uil t in c ri min a l a c tio ns wh e the r b y the tr ia l c ourt

or jur y sh a ll be set a side if the evidenc e is insuff icient to suppor

t the finding s by

the trier of

fac t of g uilt bey ond

a re asonable doubt.”); S tate v. Evans, 838 S.W .2d 185, 190-92 (Te nn. 1992); State v. Ander son, 835 S.W. 2d 60 0, 60 4 ( Te nn . Cr im. Ap p. 19 92 ). Th e same sta nd ard a pp lie s wh e the r the fi nd ingof g uil t is predicated upon direc t evidence , circ umstantial evidence , or a c o m b i n at i on of direc t and circ umstantial evidence . State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Cri m

. Ap p

. 1990). On
appea l, the State is entitled to the stronge st leg itimate view of the ev i d ence and all infe renc es there from. State v. Cabba g e, 571 S.W.2d 832, 835 (Tenn. 1978). A j u ry co n viction removes the presumption of innoce nce w ith which a def endant is initially

cloake d and repla ces it with one of
g uil t, so that on app e a l, a co nv ic te d de fe nd ant ha s the burd e n of de mon str a tin g that th e e vid e nc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982) ; State v. Grac e, 493 S.W.2d 474, 476 (Tenn. 1973)

. All questions involving the c redibility of witnesses, the w eig ht and value to be g iven the evidenc e, and a ll factua l issues are r esolved not by this c ourt, but by

the trier of

fac t. See State v.-7-

Pa pp a s, 75 4 S. W.2 d 6 20 , 6 23 (T e nn . Cr im. Ap p. 19 87 ). Th is co ur t may no t re we ig h o r r e e va luate the evidenc e. Cabba g e, 571 S.W.2d at 855. Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound f oundation. The trial judg e and the jury see the witnesses fa ce to f

ace , hear their testimony

and obser

ve their de meanor

on the
sta nd . T hu s th e tr ia l ju dg e and jur y are the pr ima

ry ins tr ume nta lity

of jus tic e to deter mine the weight and cre dibilit y to be given to the testimony of witnesses. In the trial forum a lone is the re human atmosphere and the totality of the e vidence cannot be re produce d with a written re cord in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) ( citing Ca rroll v. State, 212 Tenn. 464, 370 S.W .2d 523 (1963)) . “A guilty verdic t by

the jury , approve d by

the trial judg e, ac cre dits the testimony of the witnesse s for the State and resolves all conflicts in favor of the theor

y of the State.” Gra ce, 493 S.W.2d at 476.

I n the light most favor able to the State, the e vidence was suff i ci en t t o establish bey ond a

rea sonable doubt that the de fenda nt was one of t h e p erp et rators of the cr imes. The identity of an

acc used may

be esta blished by either direct evidence, circumstantial evidence, or a combination of the tw o. Sta

te v. Th omp so n, 51 9 S. W.2 d 7 89 , 7 93 (T e nn . 1 97 5) . T he de te rm inatio n of i de nti ty is a question of f

act f or the jury

to determine a fter c onsideration of a ll the evidence . State v. Strickland, 885 S.W .2d 85, 87 (Tenn. Crim. App. 1993). Reg ardingthe identity of an a ccuse d, “the
te sti mony of a vic tim , b y

its e lf , is su ff ic ie nt t o s up po rt

a c on vic tio n. ” I d. (c itatio n o mit te d)

. B oth vic tim s te sti fi e d th a t th e y viewed th e men, inc lud ingthe de fe nd ant, a t c los e pr oximi ty in w e ll- lit

are as. The de fenda

nt’s fac e wa s not masked, and e ach vic tim was theref ore able to g et a g ood look

a t his fe a tu r e s

. B o t h v i c t i m s c h o s e t h e d e f e n d an t ’ s p h o t o g r a

p h o u to f a s i x- p e r s o np h o t o g r a

p h ic
sprea dsheet, a

nd both ide ntified him at the preliminary hear ing. Finally
, both vic tims positively and

un e qu ivo c a lly ide nti fi e d the de fe nd ant at tr ia l as one of the pa rt ic ipa nts in the c ri me s. “ Th e c re dib le testimony of one ide ntification witness is sufficient to support a c onviction if the witness viewed the

acc used under

such circ umstances a s would permit a positive identification to be made .” State v. Radley , 29 S.W .3d 532, 537 (Tenn. Crim. App. 1999)

. Although the victims’ acc ounts varied in some instance s, p ar t i cularly with respec t to the

numbe r o f m e n invo lve d, the y we re re mark a bly sim ila r in oth e r d e ta ils . M or e ov e r, the c re dib ili ty of witnesses, the w eig ht to be aff orded the ir testimony , and the r econc iliation of conflicts in the evidenc e ar e matter s entrusted to the jury as the trier

of fa ct. State v. Ander son, 880 S.W .2d 720, 726 (Tenn. Crim. App. 1994) (citing By rg e v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). I t w as well within the province of the jury to a ccr edit the testimony of Wil kins a n d C o o per identifying the defe ndant as a perpe trator of

the cr imes. I n sum, we conc lude t hat t he evidence w as sufficie nt to sustain the defenda nt’s convictions.-8- II. Co nse c ut ive Se nt e nc ing

T h e d ef en d an tal s o co n t en d s t h at t h e t ri al co u rt erre d b y i mp o s i n g co n s ec u t i v e s en t en ci n g. W hen an a c c us e d c ha lle ng e s th e le ng th a nd mann e r o f s e rv ic e of

a se nte nc e , it

is the du ty

of thi s court to conduc t a de novo revie w on the re cord w ith a presumption that “the de terminations made by the c ourt fr om w hic h th e a

pp e a l is take n a

re c or re c t.” Tenn. Co de Ann

. § 40- 35 -4 01 (d ). Th is
p re s u m p t i o n is “conditioned upon the a ffirmative showing in the rec ord that the trial c ourt considere d the sentenc ing pr inciples and a ll releva nt f acts and circ umstances.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991) . The pa rty challeng ing the sentenc e imposed by the trial court ha s the burde n of establishing that the sentenc e is err oneous. Tenn. Code Ann. § 40-35-401, Sente ncing Com mis sio n Cm ts. ; A sh

by , 8 23 S.W. 2d

a t 16 9. Th e burd e n, th erefo re , f a lls on the de fe nd a nt t o sh owthat th e c on se c uti ve se nte nc ingimp os e d b y the tr ia l c ourt

is e rr on e ou s.

The trial court ba sed its imposi tion of consec utive sentenc ing on a finding that the def

endant

was a dang erous offende r. Tenne ssee Code Annotated sec tion 40-35-115 provides that a trial court
may in its di scre tion impos e conse cutive sente ncing when it finds any one of a number of diffe rent fac tors by a pre p o n d er an ce of the e vidence , including that the defe ndant is a dang erous of fende r wh os e be havio r e xhibi ts l itt le or no re g ard fo r human lif e and no he sit a tio n a

bo ut c omm itt inga

c ri me in which the risk to human life is hig h. Tenn. Code Ann. § 4 0 -3 5 -1 1 5 (b)(4). When a trial c ourt ba se s c on se c uti ve se nte nc ingup on its c la ssi fi c a tio n o f t

he de fe nd ant a s a da

ng e ro us of

fe nd e r, it i s

re qu ir e d to make fu

rt he r fi nd ing s tha t th e a g g re g a te le ng th o f t he de fe nd ant’ s se nte nc e re a so na bly relates to the sever ity

of his offe nses and is nec essar y to protect the pu b l i c fr o m further criminal conduct of the def

endant. State v. L ane, 3 S.W.3d 456, 460-61 (Te nn. 1999); State v. Wil kerson, 905 S.W .2d 933, 937-38 (Te nn. 1995).

The de fenda

nt argues t hat t he trial court erre d by failing to make the additional Wil kerson fi nd ing s, by

fi nd ingtha

t he “ re fu se d to liv e a pr od uc tiv e lif e ” and “ re so rt e d to c ri min a l a c tiv ity to fu rt he r h is a nti -s oc ie ta l st a te ” and

by re lying on Coo pe r’ s hea

rs ay a c c ount o f w hat ha d h a pp e ne d to Wil kins while she was standingon the porc h of Co o p er ’s h ome. The State a rg ues, amongother things, that the tria l court made the appr opriate f indings unde r Wilkerson and prope rly admitted the

c ha lle ng e d por

tio n of Coo pe r’ s tes tim on y un de r the e xcit e d utte ra nc e e xce pti on to the ru le a g a ins t hear say . We ag ree with the State.

The re cord r evea ls that the trial court re cited the applicable statutes and ca se law, inc luding the re qu ir e d Wil ke rs on

fa c tor s, pr ior

to m a kin g the fo llo wi ngfi nd ing s:

The Court has a lrea dy

found and w ill reiterate the fa ct that the Court finds that the circ umstances surr ounding the commission of these offe nses w a s a g gr a v a ted. Th e Court a lso fi nd s that the a g g re g a te le ng th o f t he se nte nc e s r e a so na

bly re la te [s] to the offe nse for

which the de fenda

nts stand convicted and also the Court f inds that confine ment for a

n extended period of time is nec essar y to protect socie ty

from the de fe nd ant’ s unw ill ing ne ss t o le a d a pr od uc tiv e lif e and the de fe nd ant’ s r e so rt

to criminal ac tivity

in further ance of an a

nti-societal lifestyle.-9- Th is C ourt fi nd s tha t the re is ab so lut e ly no thi ngto i nd ic a te that any of the se three defe ndants has done a ny thing that indicates any

thing other than a

n anti-societa l lifesty le[;] . . . that they

have . . . resor

ted to this criminal activity in further ance of their lifestyle[;] that this is an ag g ravated cr ime, a ser ies of cr imes is very ag g ravated

a s p re vio us ly

ou tli ne d b y

thi s Co ur t and that the le ng th o f s e nte nc e imp os e d d oe s in fac t relate to the serious nature of this offense

.

The Court fe els that ea ch of the s e three individuals is a very dang erous offe nder to our soc iety
, a dang erous offe nder within our community

. The very nature of these c rimes, the ver

y manner in which they

wer e ca rried out wr eake d terror

and h a v o c w i t h i no u r

c o m m u n i t y.

Contrary to the defe ndant’s sug g estion, altho u gh t he trial c ourt ref err ed to the thre e defe ndants’ anti-soc ietal lifestyle, it neither e x plicitly nor implicitly

found that t h e def

endant qualified a s a prof

essional cr iminal under the consecutive sentencing statute. To the contra ry , the trial co u rt s p e c if

ic a ll y n o te d in it s a p p li c a ti o no f

e n h an c e me n t f

a c to r s th a t t

h e d e f e n d an t’ s prior criminal history

consisted of a

single conviction for dr iving with a r evoked lice nse. I nstead, the tria l
court focuse d on the ag g ravated nature and cir cumstance s of the cr imes in finding that the de fenda nt

was a dang erous offe nder. Ba sed on our revie w of the re cord, w e ca nnot conclude that the evidenc e prep o n d er ates ag ainst this finding. The de fenda nt and his codef

endants ter

rorized Cooper a

nd Wil kins by

invading their res p ec t i v e homes, holding the m at g unpoint, kidnapping Wilkins, and threatening to kill not only the women but also Cooper ’s two y oung children.

We also find no err or in the trial court’s allowanc e of Cooper’s c halleng ed testimony . The
prosec utor explained to the trial court that she had contacted W ilkins, who had informed her that she

was in the proce ss of attempting to g et to the hear ing from her job in Mississippi. The prosecutor said, howeve r, that she did not believe that Wil kins would rea ch the he aringon time and ar g ued that the statement wa s admi ssible as an e x cited uttera nce. T he trial c ourt allowed the proposed testimony
, sta ti n g th a t i t w o u ld n o t c o n s id e r

it if it f o u n d th a t i t c o n s is te d

o f s o me th in g th a t w as inappropriate. I t is well-settled in Tennesse e that a tr ial court ha s the authority to admit trustworthy and probative evidenc e, including hear say , for sentenc ing pur poses. See State v. F ly

nn, 675 S.W .2d 494, 498 (Tenn. Crim. App. 1984); Tenn. Code Ann. § 40-35-209( b). We conclude, the ref ore, that the trial cour

t properly admitted the statement a s an excited utteranc e.

We note that the trial cour t appar ently

sentenc ed the de fenda

nt, who committed the crimes in 2002, under the 2005 a mendments to the 1989 SentencingAct. A de fenda nt who is sentenc ed afte r June 7, 2005, for a c rime committed on or af ter J une 1, 1982, may

elec t to be sentenc ed under the 20 05 a me ndme nts by e xec uti ng a wa ive r o f h is e xpo st f ac to protec tions. See Tenn. Code Ann. § 40-35-210( c), Compiler’s N otes. The r ecor d i n t his case, how ever , contains no wa iver of the de fe nd ant’ s e

xpo st f ac to p ro t ec t i o n s

. W e mu s t , t h er ef o re , re m an d t o t h e tr i al co u rt fo r r es en t en ci n g. On re mand, the trial c ourt should either a ppropriate ly

rese ntence the def

endant under t he old law or

e ns ur e that the de fe nd ant e xec ute s a wa ive r o f h is e

xpo st f ac to protec tions in order to be sente nced

un de r t he 20 05 a me nd

me nts to t he Se nte nc ingAc t.-10- CO NC LU SION

We conclude that the evidenc e wa s sufficient to sustain the defe ndant’s convictions and that the trial cour

t did not err in its imposi tion of consec utive sentenc ing. A ccor dingly , we a ffirm the judgme nts of conviction and the imposi t i o n o f consecutive sente ncing . Howeve r, bec ause the defe ndant was imprope rly sentenc ed under

the 2005 amendme nts to the Sentencing Act, we rema nd to the trial court f

or appr opriate r esente ncing in acc ordanc e with this opinion.

___________________________________ AL AN E. GL ENN, JUDGE