# FILED
September 16, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE JA NUARY 1997 SESSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9608- CR-00319

) ) Polk County v. ) ) Honorable May

o L. Mashburn, Judge ) BOBBY JOE R USSELL, ) (Reckless homicide and possession o f firearm ) where alcoholic beverages are served) Appellant. ) For the Appell ant : For the Appell ee : G. Scott Kanavos Charles W. Burson 166 North Ocoee Street Attorney Gen eral of Tennessee P.O. Box 42 and Cleveland, TN 37364-0042 Michael J. Fahey, II Assistant Att orney Gener al of Tennessee 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Jerry N . Estes Distric t Attorney General 203 E. Madison A

ve. P.O. Box 647 Athens, TN 37303-0647 Joe Rehyansky Assistant D istrict A

ttorney Gener

al P.O. Box 1351 Cleveland, TN 37364-1351

OPINION FILE D:____________________ CONVICTIONS AFFIRMED; SENTENCES MODIFIED TO CONCURRENT SENTENCES Joseph M. Tipton Judge2 O P I N I O N

The defen dant, Bobby Joe Russell, appeals as of right from his convictions by a jury in the Polk County Criminal Court for reckless homicide, a Class D felony, and possession of a firearm where alcoholic beverages are served, a Class A misdemeanor. For the reckless hom icide, the defend ant received a four-year sentence as a Range I, standard offender to be s erved in t he custody of the Department of Correction and was fined fiv e thousand dollar

s. For the po ssession of a firearm, he received a consecutive sentence of eleven months and tw enty-nine d ays to be se rved in the county

jail and was fined two t housand five hundred dollars. The defendant pres ents the f ollo wing iss ues f or revi ew:

( 1) whet her the evidence was sufficient to sup port his convictions; (2) whet her the trial court imposed excessive sentences. We h o l d t h a t t h e r e i s s u ff i c i e n t e v i d e n c e t o s u p p o rt t h e d e fe n d a n t ’ s c o n v i c t i o n s . We affirm the length of the sentence and the denial of alternative sentencin g but reverse the consecutive sentencing.

This case inv

olves the s hooting death of Bi lly Redd en outside an establishment known as Jake’s Place. At th e trial, Teresa Delk, a waitress at Jake’s Place, testified that th e victim and his friends, Scott Gilbert and Billy Simms, were present at Jake ’s Place on t he evening of September 30, 1994, dr inking beer and shooting pool . Ms. Del k said that sh e saw the defendant, his wi fe, and Tim Sherra that same evening. Ms. Delk testified that several custome rs went outside to arm wrestle and that she went outside to retrieve t he customers to prevent any of them from violatin g the law

by takingbeer off the premises. Ms. Delk stated that she s aw the defendant and the vi ctim prepari ng to arm w restle. She s aid that the v ictim punched the defendant, breakingthe defendant’s gl asses and cutti ng his face, and that the defendant and the vi ctim began shov ing each other . Ms. Del k said that the defendant3

pulled a gun fr

om his pocket and shot the vi ctim. She als o testified that non e of the victim’ s friends made any effort to get inv

olved in t he altercatio n.

Mr. Sims testified that he was outside the bar when the al tercation occurred. H e stated that the v ictim and the defendant prepared to arm wrestlebut they never could get a good hold on each other. He state d that the victim said “F--- it,” in response to thi s problem and that the defendant replie d by pushingthe victi m. The victim then punched the def endant, opening a cut un der the defenda nt’s left eye. He said that the defe ndant then said “F--- this,” and shot the victim. According to Mr. Sims, the defendant did not hesi tate when he s hot the vic tim. Mr. Si ms also testi fied that the victim nev

er attempted to punc h the defendant a second t ime. Mr. Si ms recalled t hat after the s hoot ing , thedefen dant shou ted, “Le t’sgo, let ’s g o,”and t hen l eft w ith hiswi fe and Mr. Sherr

a.

Mr. Gilber

t testified that t he defendant and the vi ctim were preparing to arm wrest le when the defendant called the v ictim a bad name and pushed the vi ctim. He said that t he victi m punched the defendant, knoc king the defendant a few steps back. He stat ed that the defendant pull ed a gun out of his pocket, stated “F--- t his,” shot the vi ctim, and then tol d his wi fe to get him out of ther e. Mr. Gi lbert testi fied that the victi m did not try

to hit the defendant a second time and that the defendant did not hesitate before shoot ing. He al so stated that he and Mr. Sims did not try to get involved. Mr. Gi lbert testi fied that the vi ctim never carried a weapon and did not possess a weapon on the night of the altercati on. He acknow ledged that he a nd the victim were dr inking on the night of the killing.

Dennis Waters, the chief of polic e of the Benton Polic e Department, testified that he l ived acro ss the street from Jake’s Pl ace and that he came t o the bar after hearing a gunshot. Mr. W aters also testified that he could not find the victim’s4

pulse upon discovering the victim, and did not believe the victim was breathing upon h is arriva l. He s aid t hat t here were no weapo ns ar oun d the victim ’s bo dy.

Dennis Dav is, lieutenant with the Bradley C ounty Sheri ff’s Department, testified that he locat ed the defend ant in his truck in the parking lot of a motorcycle shop. He testi fied that the defendant’s face was bleedi ng and that he was holding a rag to his face to sto p the bleeding . Mr. Dav is also test ified that two firearms were in the defendant’s truck, a .44 caliber handgun and a smal l single -action, Ameri can Arms .22 derringer

. Andy Shelfer, a member of the Polk C ounty Sheri ff’s Department, test ified that he examined the derringer and f ound that one round had been fired. He also testified that the weapon smell ed like it h ad been recently fired. Mr. Shelfer stated that a derringe r must be cocked before it can be fir ed.

Dr. Charles Harlan testified that the cau se of the victim’s death was a gunshot wound resultingfrom a .22 caliber hollow- point bullet fir

ed three to six

inches from the victim, entering the uppe r left side of the victim’s chest and striking the victim’s heart. In Dr . Harlan’s

opinion, the v ictim was either leani ng forwar

d when he was shot or the defendan t was holding the gun above the victim shooting down at him. He also testified that the blood alcohol l evel of the v ictim was .13.

Leeann Russell , the defendant’s w ife, testified that the defendant and the victim br oke apart before they

arm wrestled, because the defendant refused to bet on the arm wrestling matc h. Mrs. R ussell sai d that the vi ctim punched the defendant twice. She explained that the defendant’s v ision in hi s left eye i s much weaker than the vi sion in his ri ght eye and that the rig ht eye had sw ollen shut after the second punch. She also said that

Mr. Gil bert follow ed the defendant and the v ictim as they moved along the5

parking l ot. Mrs. R ussell testi fied that she bent dow n to pick up thedefendant’s glas ses when she heard a shot fired, bu t she did not see who fired the gun. On crossexamination, she testifie d that she did not see a weapon in the victim’s hand. She also admitted that she t old an officer that s he did not see the victim punc h the defendant a second time becaus e she was r etrievi ng the defendant’s g lasses, but s he did see the victim cock his arm ba ck as if prepar ing to punch t he defendant. Mrs. Russell furth er testified that shedoes not drink

.

The defendant acknowl edged havi ng some beers on the night i n question. As for the confrontati on, he testified that the vict im released hi s hand after they set to arm wrestle because the defe ndant refused to bet on the contest. The defendant said that the victim then punched him for no reason. He said that h e believes the victim used a weapon be cause of the force of the bl ow. He te stified that he tol d the vict im not to hit him ag ain, but the v ictim punched hi m a second time. The d efendant testified that his left eye had swoll en shut as a res ult of the punches, l eaving hi m only w ith visi on from his weaker right

eye. He t estified that both M r. Gilbert and Mr. Sims

were mov ing toward hi m. The defendant further stat ed that because he feared for his safety and because the vi ctim was getting r eady to throw

another punch, he drew his gun, cocked it, and fired w ithout aiming at any part icular per son.
On cross-examination, the def endant stated tha t he did not see the victim obtain a weapo n before the punches were throw n. He also te stified that he di d not believe he could escape from the victim because of the injury to his eye and fa ce. He stated that w hen he left the scene to get medical attention, he was unaware that the victim had been wounded. The de fendant also test ified that his fear f or the safety of his wife contri buted to his act ions. However, he admi tted that no one made any threatening mov

ements towar

d his wi fe.6 Ray Stephens, the victi m’s uncle, testified as a rebut tal witn ess for the state. He sai d that the wou nds on the vi ctim’s knuck les resulte d from worki ng on a truck belong ing to Mr . Stephens’ son.

SUFFICIENCY OF THE EVIDENCE The defen dant challenges his convictions on grounds that th e evidence is insufficient to est ablish his g uilt beyond a reasonable doubt. He argues that the proof showed th at he ac ted in se lf-def ense or in defen se of a nothe r. W e disagre e. Altho ugh the defendant claimed that he was defendi ng himself and hi s wife from the at tack of the victim, t he jury obv iously di d not accredit his ver sion of the event s.

Our standard of review when the suffici ency of the ev idence is q uestioned on appeal is “whether, after view ing the ev idence in the l ight most favorable to the prosecution, any

rational tr ier of fact could hav e found the essential elements of the crime beyond a reasonable dou bt.” Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979). We do not reweigh the ev idence, but pres ume that the jury has resolved all conflicts

in the testimony

and drawn al l rational inferences from the evidence i n favor of the stat e. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Ca bbage , 571 S.W .2d 832, 835 (Tenn . 1978).

When viewed in this l ight, the pr oof showed that th e defendant pushed the victim, who responded by punching the defen dant. The def endant then shot th e victim and left the scene. The evidence sh ows that thevictim d id not produce a weapon and did not lead the d efendant to believe that he possess ed a weapon. A nd the vict im and the victi m’s friends at no time made any thr eatening movements towar ds Mrs. R ussell. Under these facts , we concl ude that the jury was justified in finding beyond a reasonable doubt tha t the defenda nt committed a reckless hom icide and did not act in self-defense or in defense of another.7 The evidence was also sufficient to convic

t the defendant of possessi on of a firearm whe re alcoholi c beverag es are sold. The defendant admitted enter ing the bar with the g un on his perso n. The defendant’s conv ictions arebased upon sufficient evidence.

SENTENCING

The defen dant’s next contention is that his sent ences were excessive. He cont ests the l engt h of his se nten ces, the d enia l of p roba tion , and the c onse cuti ve nature of the sentences

.

At the sentencinghearing, t he defendant’s wi fe testified that she was four and one-half mo nths pregnant with a high risk pregnancy. She testified that she would have to leave work on medical leave two to thr ee months before the bir th of the baby and remain on medica l leave eight weeks after the birth. She further state d that she did not believe that the family could live on her medical leave pay . She also testified that the defenda nt spent a great deal of time caring for his grandmother and her men tally retarded niece

.

The de fend ant tes tified that he attend ed Alcoh olics Ano nymous m eetings several t imes a week

for the past four and o ne-half years , and that he had not had alcohol for a year previ ous to the nig ht of the altercati on. He also s aid that he had abstained ever

since that ni ght. The defendant admitt ed that he had prev iously us ed marijuana, but he had not used it i n the past four years. The defendant further stated that his gr

andmother and her ni ece relied upon him for transpor tation and many household chores . He stated that he began car rying guns for his protection w hen he owned and operated a logg ing busines s because he car ried larg e sums of money.8 The presentence rep ort shows that the defendant complet ed the ninth grade and has his G.E.D. It states that the defendant ha s had an alcohol abuse problem since the age of f ifteen and that he occasionally used marijuana. The report reflects that thedefendant completed an al cohol treatment pr ogram at the Gr

eenleaf Center in Georgia. It also shows that the defen dant has no prior convictions.

The trial cour

t sentenced the defendant as a Range I, standard offender to f our ye ars in carce ratio n fo r the reckl ess h omic ide a nd to eleve n mo nths and t wentynine days for the possession of a firearm wher e alcoholic beverages

are served. The trial cour t applied the foll owing en hancement factors in T.C.A. § 40-35- 114: (9) The de fe ndant po ssess ed or e mployed a firearm, explosiv e de vice or other deadly weapon duri ng the commission of an offense; and (10) The def endan t had no hesitat ion abo ut comm itting a crime when the risk t o human life was high. It stated that theevidence s upported a second d egree murder . It found that the defendant ’s use of a weapon hazarded man y people. It also found no m itigating factors to exist.
In denying probation, the court ruled that it was particular ly concer ned that the defendant alway

s carried a concealed weapon and that the defendant went to the bar and consumed al cohol. It noted the great dang er posed by mixing alcohol and
weapons. It

concluded that confinement was needed to avoid depr eciating t he seriousness of the offense and was par ticularly suited to prov ide an effective det errent to others li kely to commit similar offenses. See T.C.A. § 40-35- 103(1)(B). As for consecutive sentences, the t rial court found that the defendant’s be havior on t he night in question indicated no regard for human l ife and that the defendant had n o hesitation in committing an offense when the r isk to human li fe was hig h. See T.C.A. § 40-35- 115(b)(4).9 Appellate review of sentencing is de novo on the record with a presumption that t he trial cour t’s determinat ions are cor rect. T.C.A. §§ 40-35-401(d) and -402(d). As the SentencingCommission C omments to these sec tions note, the burden is now on the appealing party to show that the sente ncing is improper; therefore, if the tr ial court foll owed the stat utory sente ncing proc edure, made finding s of fact that are adeq uately suppor ted in the reco rd, and gave due considerat ion and proper wei ght to the factor s and princi ples that are r elevant to s entencing under the 1989 Sentencing Act, we may not disturb the se ntence even if a diff erent result were preferred. State v. Fl etcher , 805 S.W .2d 785, 789 (Tenn . Crim. App. 1991).

Howeve r, "the presumpti on of correctness which ac companies the tr ial court's acti on is conditi oned upon the affirmative showing in the recor d that the tria l court conside red the sentenci ng princi ples and all r elevant facts and circumstances." State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). In t his respect, for the purpose of
mea ningf ul ap pell ate r eview,

the trial court must place on the record its reasons for arriv ing at th e fi nal sentencingdecision, i dentify the miti gating and enhancementfactors found, state t he specific facts supporting each enhanceme nt factor found, and articulate how th e mitigatingand enhancemen t factors have been evaluated and balanced in deter mining the se ntence. T.C .A. §40- 35-2 10(f ) (1990). State v. Jone s , 883 S.W .2d 597, 599 (Tenn . 1994).

Also, in conduc

ting a de novo review , we must consider (1) the evidenc e, if any, recei ved at the tr ial and sentenci ng hearing , (2) the presentence report , (3) the principles of sentencing and argum ents as to sentencing alternatives, (4) the natu re and characteri stics of the cr iminal conduct, (5) any mitigatingor statutory enhancement factors, (6) any statement t hat the defendant made on his own behalf, and ( 7) the1 For Class A f eloni es comm it ted on or aft er Jul y 1, 1995, t he presumpti ve sent ence is the m idpo int of the rang e. See T.C.A. § 40-35 -210 (Sup p. 1996). 10 potential for re habilitation or treatment. T.C .A. §§ 40-35-102, -103 and -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986).

The sentence to be imposed by the trial court for a felo ny is presumptively the minimum in the r

ange unless t here are enhancement factors present. T.C.A. § 40- 35-210(c). 1 Procedu rally, the t rial court is to incre ase the senten ce within th e range based upon the ex istence of enhancement fact ors and, then, reduce the sentence a s appropriate for a ny mitig ating factors . T.C.A. § 40-35 -210(d) and ( e). The wei ght to be afforded an existi ng factor is left to the trial court's di scretion so long as it complies w ith the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record. T.C.A. § 40 -35-210, Sentencing Comm ission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

A. Regardingthe length of the sentences, the defendant contends that the trial cour t improperly

applied enhancement and mitigati ng factors. The state asserts that the factors were properly applied.

The t ria l co urt

pro perl y ap pli ed en hanc ement fact or ( 9), the u se of

a firearm, expl osive dev ice or other deadly weapon during t he commission of an offense, for reckless

homicide. “R eckless homic ide is the reckless ki lling of another .” T.C.A. § 39-13-215(a) (Supp. 1996 ). The use of a firearm is not an essential element of this crime. Therefore, the trial court appropri ately cons idered the use of a fir earm during the homicide in enhanc ing the defendant’s sentence for the reckless homic ide convic tion.

The trial cour

t was als o correct i n enhancing the defendant’s sentence for reckl ess hom icidebecaus e “thedefendan t had nohesit ation a bout co mmitti ng a c rime11

when the risk to human life was high.” T.C.A. § 40-35-11 4 (10). Though factor (10) is inherent in ev

ery homici de case relati ve to the v ictim, it may be considered when the defendant endangers t he lives of people other than th e victim. See State v. John son , 909 S.W.2d 461, 464 n.1 (Tenn. Crim. A pp. 1995). In thi s case, the defendant c reated a high ri sk to at least

five other peo ple who were present w hen the defendant shot the victim. Thus, the trial court correctly relied upon factor (10).

Regardingmitigation , the defendant argue s that he wa s entitled to mitigation of his sentences because he acted under strong pr

ovocation. See T.C.A. § 40-35-113(2). Though the defendant cont ends that he acted u nder strongprovocati on, the record shows that the victim punc hed the defendant in res ponse to being pushed by the defendant. The defendant admitted that he never saw the v ictim wi th a weapon. The record further

shows that

immediately

after being punc hed, the defendant pulled out a gun and shot the victim. The jury foun d the defenda nt guilty of only a reckless homicide. We see little in the record to support further mitigation because of strong provocati on. The trial court’s rej ection of this factor was justified.

The defendant also asser ts that the tri al court shoul d have consi dered a second mitig ating factor i n that he “committ ed the offense under such u nusual circumstances that it is unlikely that a sustained int ent to violate the law motivated his conduct.” See T.C.A. § 40-35- 114(11). In response, the statecontends that the defendant’s habit of il legally carryi ng a gun, th is time into a bar where he consumed alcohol, reflects a sustaine d intent to violate the law. It also argues that the def endant’s assertion of a l ack of sustained i ntent to shoot a per son is irr elevant. It

cites no authority in support of thi s argument.

First, we conclude that t he defendant’s habit of ca rryinga concealed weapo n ref lect s tha t a su stai ned inte nt to violat e the law mo tivat ed hi s con duct relat ive12

to the weapons

offense. However, we do n ot agree that his conduct and motivation relative to the reckl ess homicide, for which he is being s entenced, is i rrelevan t. Instead, we believe that the central point for sente ncing consideration under this fa ctor is whether a “sustained intent to violate the law motivated his cond uct” that culminated in the homicide. See , e.g. , State v. Shel ton , 854 S.W.2d 116, 123 (Tenn. Crim. App

. 1992). In this

respect, the r

ecord shows that the homici de arose from a rapi dly ari sing set of circumsta nces that does not lend itself to a conclusion t hat a sustained i ntent existed relative to

the homicide. U nder the circumstances in t his case, we believe t hat mitigating factor (11) applies.

Howeve r, we bel ieve that th e weight of this mitig ating factor i s offset by the defendant’s hist ory of ill egally carryi ng a weapon, a history that justifies enhancement under T.C.A . § 40-35-114(1 ). Obvi ously, i f the defendant had not acted in this caseconsistentl y wi th his histor y, the kil ling would not have occurred. U nder the foregoing anal ysis, we conclude that a four-year s entence was warranted for the reckless ho micide conv iction.

Unlik e fe lony s ente ncin g, the law do es no t pro vide a pres ump tive minimum sentence for mi sdemeanor conv ictions. State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). The defendant d oes not specify what he v iews to be wrong w ith his misde meanor sentence. M isdemeanor sentenc es are to be cons istent with the pur poses and princ iples of the 1989 Sent encing Act. T.C.A. § 40-35- 302(b). In our revi ew, werecogniz e the potential da nger to all persons pres ent that arises from the combination of firear ms and alcohol, a nd we also acknowledg e the particul arly g reat harm that actuall y result ed from the defendant’s cond uct in this case. We conclude that the sentence of eleven months and tw enty-nine d ays wa s proper as i mposed by the tr ial court.13 B. Next, the defendant contends that the trial court erred in de nying him probation becausethe evidenc e does not over come the statutory

presumption in favor of alternative sentencing. The state asserts that alternative sentencin g was properly denied, relying principally upon the fact that the defendant carried a weapo n while consuming int oxicants a nd used deadly force with out hesitation.

The def end ant wa s pre sume d to b e a f avora ble c and idat e fo r alte rnat ive sent enci ng i n theabse nce of ev iden ce t o thecont rar y be caus e he w

as c onv ict ed of a Class D felony

and sentenced as a Range I, sta ndard offender. See T.C.A. § 40-35- 102(6). In this respect, the “evidence to the contrary” may relate to the defendan t’s rehabilitati ve capabil ities being outweig hed by any of the followin g factors: ( 1) confinement is neces sary to pr otect society

by restr aining a defendant w ho has a long history of criminal cond uct, (2) con finement is necessa ry to av oid depreciati ng the serio usne ss of the o ff ense or con fin eme nt is p artic ular ly suit ed to provid e an e ff ecti ve dete rren ce to othe rs like ly to co mmi t sim ilar o ff ense s, or ( 3) me asur es le ss res trict ive than confinement havebeen frequently applied unsucc essfully to the defendant. See T.C.A. § 40-35-1 03(1); Ashby , 823 S.W.2d at 169; Fletcher , 805 S.W.2d at 787-88. Also, althoug h “probation must be automaticall y consider ed as a sentenci ng option for eligibledefendants, the defendant is not automaticall y entitled to probation as a matter of law.” T.C .A. § 40-35-303( b), Sentencing Commission C omments; see Fletcher , 805 S.W.2d at 787.

The defendant relies hea vily on Rodman Montgomer y v. St ate , No. 03C01-9410-CR-00380, Se vier County (Tenn Crim. App. Aug. 18, 1995), to supp ort alternative sentencing. In Montgomery , the defenda nt and the victim were romantically involved and had been living together for some time. The defenda nt was forty years old and had completed substantial coll ege wor k. The defendant was paralyz ed from the14

neck do wn from a n accide nt that occurred while working co nstruct ion durin g high school. The defendant i nadvertentl y remove d his catheter from his abdomen. The defendant believed that he needed to dri ve to a stor age bin to g et a replacement catheter. The victim did not want the def endant to leave because he had been heavily drinking. The defendant fell out of his wheelchai r looking for a catheter i n a duffle bag. The victim pus hed the defendant’s w heelchair onto the front porch to prevent the defendant from leaving. There was a .32 caliber pistol on the f loor under the bed where the d efe nda nt la y. The def end ant b egan playin g with t he pi stol as if it were a toy, cocking and uncocking i t. The gun dis charged and struck the v ictim in the forehead. The defendant immediately dragged hi mself to a telephone to call for medical assistance, bu t the vict im never regained consc iousness.

This case is unlike Montgomery . The defendant entered the establishment i n possession of a de adly weapon and started dr inking. R elative to the altercation, the def endant pushed th e victim and called him a name. Th e victim responded to the defendant’ s initial aggress ion by punchi ng the defendant in t he face. The defendant then pulled a g un from his pocket and killed thevictim, firing the weapon only three to six i nches from the v ictim’s che st. In fact, the r ecord supports

the trial court’s deter mination that a g reater degree of culpabilit y than reck lessness was proven at trial.

A cour

t may deny p robati on sol ely fr om the c ircum stance s of the crime itself , if the crime as co mmitte d was “espe cially violen t, horrif ying, shock ing, reprehensible, off ensive, or otherwise of an excessive or exaggerated degree.” Stat e v. Travis , 622 S.W.2d 529, 534 (Tenn. 1981); State v. Ha rtley , 818 S.W.2d 370, 374 (Tenn. Crim. Ap p. 1991). Moreover, the v oluntary combining of intox ication w ith dangerous instrumentalities has been recog nized by our supreme cour

t as a matter of serious publi c concern w hich may ju stify a denial of probation. See State v. Cl eavor ,15

691 S.W.2d 541, 543 (Tenn. 1985). Under all of the circumstances, we conclude that the evidence in the recor d adequately

supports the t rial court ’s decisio n to deny probation.

C.

Fina lly, th e def end ant c onte nds t hat t he tr ial co urt sh ould not h ave ordered consec utive senten cing. The st ate asserts t hat the trial court proper ly imposed
c o n s e c u t i v e s e n t e n c i n g g i v e n t h e d e fe n d a n t ’ s c o n d u c t o n t h e n i g h t i n q u e s t i o n . We disagree.
At the sentencing hearing, the trial court ordered the defendan t’s sentences to be s erved conse cutively because it found that

the defendant’s behav ior that night met the definition of a dang erous offender under T.C .A. § 40-35-115( b)(4). However, thi s findi ng alone will not just ify conse cutive sen tencin g:

[T]he imposition of con s ecutive se ntences on an offender found to be a dangerous off ender requir es, in addition to the application of general pr inciples of sent encing, the find ing that an extended se ntence is necessary to protect the public against further crimi nal conduct by the defendant and that the cons ecut ive sentences must reasonably relate to the severity of the offenses committed. State v. Wilkerson , 905 S.W .2d 933, 939 (Tenn . 1995).

W e con clud e tha t the trial cour t sho uld n ot ha ve ord ered cons ecut ive sentencing. It made no finding s regardi ng the need to pr otect the public

against the defendant ’s future criminal conduct or the f act that consecutive sentencing would reasonably relate to the s everity of the offenses committed. Al so, our rev iew of the record finds l ittle to suppor t such finding s. Although the defendant admitted to carrying a weapon reg ularly, there is no ot her incident of violence s hown. Fur ther, there i s no indication from t he defendant’s past hi story that would show

him to be not amenabl e to rehabilitati on. Likew ise, there i s no indicati on from the circu mstances surr ounding the16

offenses that he is a continuing dang er to society . Therefore, w e conclude that t he sent ence s sho uld b e ser ved co ncur rent ly.

In considerati on of the foregoing , the defendant’s judg ments of convic tion are affirmed, but the s entences are modifie d to be served concurrentl y to each othe r.

_______________________________ Joseph M. Tipto n, Judge CONCUR:

___________________________ Gary R. Wade, Judge

___________________________ William M. Barker, Judg e