### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE STATE OF TEN

NESSEE v. KE

NNETH R. GR

IFFIN Direct Appeal from the Criminal Court for Washington County

No. 21926 Arden L. Hill, Judge

No. E1998-00037-CCA-R3-CD - Decided

The defendant, who w as convi cted of first degree murder and especially aggravated robbery, challenges the sufficiency of the evidence

for his first degree mur

der conviction an

d also challenges both of his sentences. The convictions and sentences are affirmed. Tenn. R. App. P. 3; Judgm ent of the Trial Cou

rt Affirmed.
W ADE , P.J., delivered the opinion of the court, in which WELLES and H AYES , JJ., joined.
Clifford K. McGown, Jr. (on appeal), Wave rly, Tennessee,

James T. Bowman (a

t trial) and Scott Pratt (at trial), Johnson City, Tennessee, and Collins Landstreet (at trial), Elizabethton, Tennessee, for the appellant, Kenneth R. Griffin.
Paul G. Summers, Attorney General and Reporter, Eric W. Dabb, Assistant Attorney General, and Joe C rumley an d Michael Lagura dia, Assistant Distr

ict Attorneys Gen

eral, for the ap

pellee, State of Tennessee.

OPINION

The defendant, Kenneth R. Gr iffin, was convicted of first degree murder and especially aggravated robbery. The state had filed a notice of intent to seek the death penalty or life withoutparole. Following t he jury trial, the d

efendant waive

d his right for a

jury determination of his sentence and, by agreement with the state, accepted a sentence of life without the possibility of parole for the first degree murder. The trial court sentenced the defendant to a term of 23 years for especially aggravated robbery, to be served consecutively to the first degree murder se ntence.
In addition to his challenge to the sufficiency of the evidenc e to support the first degree murder conviction, the defendant presents the following issues for appellate review:

(1) whether

the trial court erred by the imposition of a 23-ye ar sentence for the especially aggravated robbery conviction and whether t he trial court erred by ordering consecutive-2- sentences; and (2) whether

the trial court pr

operly sentence

d the defendant t o life without the possibility of parole as part of a negotiated plea agreement

in exchange for the state's withdrawal of its request for the death penalty; We find no error and affirm the judgment of the trial court.
On August 4, 1995, the victim, K. D. Norris, failed to open his barber shop, which was located at his re si dence in the Boone 's Creek area of

Washington County. C

oncerned family members contacted the sheriff's department and Sergeant Daniel Rhudy wa s called to the scene. Officers searched the barber shop and connecting residence but foun d nothing. A member of the victim's family suggested a search of the ga

rage which th

e defendant h

ad been employed

to construct. Sergeant Rhudy and Lieutenant Edward Graybeal found the body. The victi

m was lying face down, hands tied be hind his back, in a p

ool of blood. Dr. Wi

lliam Mc Cormick, a forensic pathologist, investigated the scene and later performed an autopsy. He determined that a stab wound to the neck, which severed the jugular vein, wasthe cause of death. Dr. McCormick also found "a good bit of blunt force damage, a number of stab wounds, a missing tooth, broken ribs, and a broken collar bone." He concluded that the victim had been "strung up" or

"hung" by what appe

ared to be a cloth curtain

and that, in consequence, the bones in his neck had been crushed. Dr. McCormick estimated that the

injuries had been

inflicted over a

period of one to tw

o hours and that the

victim died sometime between 6:00 P.M. on August 3 and 8:00 A.M. on August 4.

Larry Mullins, the victim's first cousin, had last seen the victim on Sunday, July 30. Mullin s confirmed that at that time the v ictim had displayed

a large amount of

cash in his wallet, including an inch or two of one hundred dollar bills. The victim also had a three-inch sta

ck of bills of unknown denominat

ions in his front pan

ts pock et. Mullins was aware that the victim had complained about poor workmanship by the defendant and intended to employ another contractor to correct his work

. The victim had als

o indicated to Mullins that he planned to employ an attorney in regard to the construction problems.

Estel le McKinney, a close friend of the victim, confirmed that the victim often carrie d large sums of cash and that the victim had been displeased with the quality of construction on the garage. She had last talked with t he victim between 8:00 and 9:00 P.M. on A ugust 3. Ms. McKinney recalled that a t the time, the defe

ndant was working

on the garage an

d the victim, in contrast to his earlier remarks, expressed satisfaction with the construction.

O n t he day the body was found, TBI Agent Shannon Morton questioned the defendant. Thedefendant contended that he had worked on the victim's garage f

rom 5:00 P.M. to between8:00 and 9:00 P.M. He claimed that he had been wearing shorts, a black shirt, and"flipflops" while working on the garage. The defendant asserted that he had been repairing themotion sensor light. He stated that he returned to his home at 10:00 P.M.-3- Agent Morton had determined that the sensor light was not operable when he investigated the crime scene . Thus, two days af ter th e init ial interview, Agent Morton conducted a second interrogation. During questioni ng, he r ecovered $624. 00 in cash from the defendant, including a blood-stained fifty-dollar bill. Agent Morton discovered a cut on one of the defendant's hands which had been

bandaged. A witness stated that the defendant did not have this injury the day before the murder.

Officer Dennis Higgins, who conduc ted a search of the defendant's vehicle, recovered $13,800.00 in one hundred dollar bills. The bills

were wrapped by a large red rubber band similar in nature to those contained in a bag of rubber bands recovered at the crime scene. Officer Higgins also found a pair of te

nnis shoes belonging to Ferrell Routh. It was established that at 10:00 P.M. on August 3, the defendant, who was wearing pants and boots rather than shorts and "flip-flops," as he had earlier alleged, paid his rent in cash.

TBI Special Agent Same

ra Zavaro dete

rmined that the sta

in on th e fi fty-dollar bill was human blood. A DNA a nalysis was impossib

le due to the small size of the sample. A blood stain was also found on one of the boots recov ered from the de

fendant. TBI

forensic scientist and shoe print expert Linda

Littlejohn comparedthe sole of the boot with bloody shoe pri

nts at the crime scene. Agent Littlejohn concluded that the sole of thedefendant's boot was the same size, shape, and treaddesign as the bloody prints. Agent Littlejohn, who had examined thousands of shoes, testified at trial that the defendant's boot, size 15, was the largest she had ever analyzed.

Agent Morton determine

d that the defenda

nt m ade a numb er of small purchases within a few da ys after the murder, including payment of a late cable television invoice, payment for an upgrade of cable service, and gifts for himself and his girl

friend, Rhonda Mor

ton (apparently no relation to Agent Morton), with whom the def endant resided at the time of the murder. The estimated amount of

his total payments and purchases was $1,175.00. Ms. Morton testified that she had never known the defendant to have large sums of cash in his possession. Furthermore, it was established that on August 3, the day of the murder, the de fen dant had pawned a Makita Sawsall saw. On the next da

y, the defendant

paid off the loan, including 30 days of interest, and retrieved the saw.
Donald

Harry Urich, Jr

., who shared a c

ell with the defen

dant during the period betweenhis arrest and the trial, testified for the state. Urich maintained that the defendant confessed to having conspired with Ferrell Routh, a former employee, to

kill the victim. According to Urich, the defendant related several details of the murder. He contended that the defendant acknowledged his involvement but asserted that Routh actually committed the crime.

James D avid Strickler, wh o had several pr

ior drug and theft

-related offe

nses, testifie

d that he worked for the defendant on the victim's garage for five days. He claimed that he saw the defendant's vehicle at the victim's residence at 3:30 P.M. on August 3 and again at 4:30 P.M.

Bea Bennett testified for the defense. She claimed that between 5:00 and 5:30 P.M. on August 3, she saw Str ickler's vehicle parked at the victim's barber shop. She stated that she-4-

reported what she had seen to a representative of the sheriff's department who said they had "chose the other guy." Ms. Bennett testified that she told the officer that she "didn't believe the guy was the only one. . . ." She stated that she did not see the defendant at the time she saw Strickler.

Lori Stevens, Strickler's former girlfriend, also testified for the defense. She recalled that Strickler had told her shortly after the murder that he was "pretty upset" about the murder and "was nervous because he was getting drug in it." Ms. Stevens contended that Strickler said he was "afraid that he was going to get in trouble . . . because of Ferr

ell Routh." She recalled that Strickler admitted having $3,500.00 in his possession that had "come out of the garage." Ms. Stevens, who was serving time on a

burglary conviction and other small offenses, conceded on cross-examination that Strickler sai

d that he had left t

he garage "bef

ore it got too bad."
Routh was also called as a defense witness. He denied having been at the v ictim' s residenceon the date of the murder and stated that he saw Strickler

at his apartment in

Johnson City between6:00 and 7:00 P.M. Routh denied killing the victim. Routh recalled that the defendant, sometime before the murder, had mentioned that the victim kept a briefcase containing a large sum of money. Telephone records indicated that Routh received long-distance calls at 7:40 P.M. and 10:26 P.M. at his apartment in Bluff City on the night of the murder.

Charles Richardson, an inmate in the Washington County Jail, also testified for the defense. He testif

ied that some eight m

onths after the mu

rder, Routh admitte

d killing the victim. When interviewed by police, Richardson stated that he didn't know whether Routh was joking about the murder or not. Rich

ardson did

not learn any details about the murder, including whether anyone elsemight have been involved. At the time of the conversation, Richardson was smoking marijuana and was drinking with Routh. At the time of his testimony, Richardson was serving sentences for burglary, evading arrest, and traffic violations. He had a prior conviction fo r aggrav ated assault. Initially, the defendant c

laims th at the evidence wa s insufficient to su

pport a first degree murder conviction. He argues that there was reasonable doubt due to the absence of any forensic evidence linking him with the crime scene.

On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 836 (Tenn. 1978). This court m ust neither re-weigh nor re-evaluate the evidence, id. at 836, and may not substitute its inferences for those drawn by the trier of fact, Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956).
When the sufficiency of the evidence is challenged, the relevant question is whether, when the evidence is vi

ewed in the light mos

t favorable to

the state, any rational trier of fact could have found the essentia

l elements of the c

rime beyond a rea

sonable doubt. Tenn. R. App. P. 13(e); State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983).

The credibility of the witnesses, the weight to be gi ven their testimony, and the reconciliation of any conflicts i n the evidenceare matters entrusted exclusively to the jury as the trier-5-

of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). A guilty verdict, approved by the trial court, a

ccredits the testimony of the witnesses for the state, and resolves all evidentiary conflicts in favor of the state's theory. State v. Hatchett , 560 S.W.2d 627, 630 (Tenn. 1978).
A criminal offense

may be establishe

d exclusively by c

ircumstantial e

viden ce. Marable v. State , 203 Tenn. 440, 313 S.W.2d 451 (1958). On appeal, the standard established by Ru l e 13(e) of the Ten

nessee Rules of Ap

pellate Procedur

e is equally applic

able to both verdic

ts basedon direct evidence and verdicts based up on c ircumstantial evidence. State v. Brown , 551 S.W.2d 329, 331 (Tenn. 1977).

The evidence, in our view, was suff icient t o support the defendant's first degree murder conviction. Without reciting the trial testimony in its entirety, we note that the sta te established a motive for the crime as well as opportunity. Evidence suggested that

the defendant was untruthful in his original state ment to police, both

as to the actual time he spent at the defendant's residenceon the date of the murder and as to his address.

The defendant was also untruthful to the police regarding the clothing that he was wearing on the day of the murder. The proof showed that the defendant rare

ly had large sums of

cash but, immediately after the murder, either spent or had in his possession appr

oximately $15,000.00 in cash. Therewas a human blood stain on a fifty dollar bill found in his possession. The defendant had a cut on his hand which was not present just before the time of the murder. The most critical evidence, however, w as provided by the TBI shoe print expert, who established a match between the bloody shoe prints at the crime scene and the sole of the defendant's boot

s. The unusually large size of the defendant's shoe discounted the likelihood of coincidence. There was other circumstantial evidence which tended to support the position of the state. Finally, the jury ch ose to accredit t

he te s timony of Donald Urich who testified that the defendant confessed

that he had been involved in planning and committing the murde

r with Ferrell Routh. Thus, the defendant's sufficiency of the evidence claim is not a basis for relief.

Next, the defendant contends that the 23-year sentence for especially aggravated robbery was excessive and should not have been ordered to b e served con secutively to the f irst degree murder sentence. He asserts that the punishment for robbery was already enhanced by the facts and that the term of 23 years was unnecessary. He submits that because the first degree murder sentence was life without parole, there was no need for the robbery sentence to be c onsecutive.
When there is a challenge to the length, range

, or manner of ser

vice of a sentenc

e, it is the dut y of this court to conduct a de novo review with a pre sumption that the de

termi nation s mad e by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pres umption i s "conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circu

mstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). "If the tri al court applies in appropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." Statev. She lt on , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence.

Our review requires an analysis of (1) the evidence, if any, received at the trial and1 The first four criteria are found in Gray . A f

ifth category in Gray , based on a speci fic number of pri or felony co nvictions, may enhance the sentence range but is no longer a listed
-6- sentencing hearing; ( 2) the pre sentence repor t; (3) the principl

es of sentencing a

nd the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own beha lf; a nd (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 8 59, 863 (T enn. Crim. App. 1987 ). The record in

this case demonstrates that the trial court made adequate findings of fact.

In calculating the sentence for a Class A felony conviction, the presumptive sentence is the midpoint within the range if there a re no enhanceme

nt or mitigating fac

tors. Tenn. Code Ann. § 40-35-210(c). If there

are enhancement factors but no mitigating factors, the trial court shall set the sentence at or above the midpoint. Tenn. Code Ann. § 40-35-2 10(d). If the re are mitigating factors but no enhancement factors, the trial court shall set the sentence at or bel ow the midpoint. Id. A sentence involving both enhancement and mitigating factors requires an assignment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35- 210(e). The sentence mus t then be reduce

d within the range

by any weight assig

ned to th e mitigating factors present. Id.

If the trial court's f

indings of fact ar

e adequately

supported by the r

ecord, this

court may not modify the sente

nce even if it wou

ld have preferr

ed a different r

esult. State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. App. 1991). The presumption of correctness is, howev er, "conditioned upon the affirmative showing in the record that the trial court considered sentencing principles and relevant facts an d circumstances ." Ashby , 823 S.W.2d at 169. The trial court must place on the record the reasons for the sentence. Jones , 883 S.W.2d at 599.

Prior to the enactment of the Criminal Sentencing Reform Act of 1989, the limited classifications for the imposition of consecutive sentences were set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court ruled that aggravating circumstances must be present before placement in any one of the classifications. Later, in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an additional category for those defendants convicted of two or more statutory off

enses involving sex

ual abuse of minors. There were, however, additional words of caution: [C]onsecutive sentences should not routinely be imposed . . . and . .

. the aggregate maximum o f consecutive te

rms must be reason

ably related to the severity of the offenses involved. Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adop ted the c autionary language. Tenn. Code Ann. § 40-35-115. The1989 Act is, in essence, the codification of the holdings in Gray and Taylor ; consecutive sen tences may be imposed in the disc re tion of the trial court only upon a de

termination that on

e or more of the f

ollowing criteria 1 exist:criterion. See Tenn. Code Ann. § 40 -35-115, Sentenc

ing Commission Comments

. -7- (1) The defendant is

a pro fessional criminal who has knowingly

devoted [himself] to criminal acts as a major source of livelihood; (2) The defendant is

a n o ffender whose record of criminal activity is extensive; (3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigation prior

to sentencing that

th e defen dant's criminal condu ct has been characterized by a pattern of repetitive or compulsive behav

ior with heedless i

ndifference to

consequences; (4) The defendant is

a dan gerous offender whose behavior indicates litt le o r no regard for human life, and no hesitation about committing a crime i

n which the risk to h

uman life is high; (5) The defendant is convicted of two (2) or more s tatutory offenses involving sexual abuse of a minor with consideration of the aggravating circumstances arising from the relationship between the defendant and victim or vi ct ims, the time span of defendant's undetected

sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims; (6) The defendant is s entenced for an offense committed while on probation; or (7) The defenda

nt is sentenced fo

r criminal contem

pt. Tenn. Code Ann. § 40-35-115(b).

The length of the sentence, when consecutive in nature, must be "justly deserve

d in relation to the serious ness of the offense," Tenn. Code Ann. § 40-35-102(1), and "no greater than that deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); State v. Lane , 3 S.W.3d 456 (Tenn. 1999).

A Range I sentence

for especially aggravated robbery has a minimum of 15 years and a maximum of 25 years. Tenn. Code Ann. §§ 40-35-111; 40-35-210(c). The trial court concluded that there were three enhancement factors applicable: (1) that the defe ndant had a prior history of criminal behavior; (2) that the defenda nt had a history of u

nwillingness to

comply with conditions-8-

of his sentence invol

ving release

in the community; and

(3) that the felon

y was committed whil

e the defendant was on a release status from a prior felony conviction, i.e., bail. Tenn. Code Ann. § 45- 35-114(1), (8), (13). The defendant does no t a rgue about the applicability of any one of the three enhancement

factors. Moreover, he does not argue that there were any applicable mi

tigating factors. In our view, the rec ord fully supports the application of the enhancement factors and the 23-year sentence. The trial court also concluded that there were two gro unds for a consecutive sentence: (1) that the defenda

nt is a professional criminal who has knowingly de voted his life to cr

iminal acts as a major

source of livelihood; and (2) that the defendant is an offender whose record of criminal activity is extensive. See

Tenn. Code Ann. § 40-35-115(b)(1), (2). The latter conclusion was based upon the trial judge's determination that the defendant, age 33 at the time of trial, hadcommitted 22 prior felonies (6 Class D felonies and 16 Class E felonies) and a number of Class A misdemea

nors. Includedamong the offenses were several counts of automobile burglary, several counts of theft of tools, appliances, equipment, and the like, and several counts of issuing worthless and fra udul ent checks. The crimes were committed at residences, at businesses, and in automobiles. The defendant claimedto have been self-employed since 1992. Most of his property crimes were committed after that date. It would

be difficult not to

classify the defendant as a professional criminal. See Tenn. Code Ann. § 40-35-115(b)(1). Additionally, consecutive sen tencing isjustified by the defendant's "record of criminal activ

ity [which] is exte

nsive." See Tenn. Code Ann. § 40-35-115(b)(2). Finally, a trial court may order sentences to be served consecutively to a sentence of life without parole. See, e.g. , State v. Bivens , 967 S.W.2d 821, 825 (Tenn. Crim. App. 1996).

The defendant's fina

l argument is that he

should have been s

entenced to

a term of life rather than to a term of life without the possibility of parole. At the conclusion of the guilt phase of the trial, the defendant, having been convicted of both first

degree murder and especially aggravated robbery, chose to waive his right to a jury in the sentencing phase of the trial and acquiesced to the state's recommendation t

hat he receive a

sentence of life

imprisonment withou

t the possib ility of parole. The state insists that the defendant may not challenge on appeal a negotiated sentence and that, therefore, the issue was waived.

Th e trial court found two aggravating circumstances under Tenn. Code Ann. § 39-13- 204: (5) The murder was e specially heinous , atrocious, or cruel in that it involved torture or serious ph ysic al abuse beyond that necessary to produce death; [and] (7) The murder was knowingly committed, s olicited, d irected, or aidedby the defendant , while the defen

dant had a substan

tial role in committing or attempting to commit, or was fleeing after having a substantial role in the committing or attempting to com mit, any first degree murder, arson, rap e, r obbery, burglary, theft, kidnaping, aircraft piracy, or unlawful throwing, placing or discharging of a-9- destructive device or bomb. Tenn. Code Ann. § 39-13-204(i)(5), (7).

In recognition of the substantial discretion afforded the finder of fa

ct indetermining which sentence to impose , the statute gover

ning appellate re

view declares t

hat "[a ] sentence of imprisonmentfor life without the possibility of parol

e shall be conside

red appropriate

if the St a te provedbeyond a reasonable doubt at least one (1) statutory aggrav ating circumstanc

e contained in § 39-13-204(i), and the sentence was not otherwise imposed arbitrarily, so as to constitute agross abuse of . . . discretion." Tenn. Code Ann. § 39-13 -207(g). A misapplication of an aggravating circumstancein a life without parole case is not a constitutional violation because there is no death sentence. State v. Harris , 989 S.W.2d 307, 317 (Tenn. 1999).

The proof, of course

, was th at the v ictim had been "tortured" for one to two hours before his death and that, during that time, several injuries were inflicted by blunt force or by a knife. The victim was "strung up" and, according to expert testimony, would have died as the result of that had his jugular vein

not also been severed. The victim's hands w ere tied behind hi

s back. In short, our view is that the evidence supported the application of Tenn. Code Ann. § 39-13-204(i)(5).

There is also evidence that the defendant participated in the plan to rob and murder the victim. He was found in possession of more than $13,000.00 in cash and had spent over $1,000.00 more within just a few days after the murder. This

evidence supports the application of Tenn. Code Ann. § 39-13-204(i)(7). Accordingly, a se ntence of life wi

thout parole

was appropriate. The judgment is affirmed.