# FILED
September 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 02C01-9708-CC-00304

Appellee, * OBION COUN TY VS. * Honorable W illiam B. Acree, J r., Judge CORY LAMONT GENTRY, * (Reckless Endangerment; Possession of a Weapon) Appellant. *

For Appellant: For Appellee: C. Michael Robbins John Knox Walkup 3074 East Street Attorney General & Repor ter Memphis, TN 38128 (on appe al only) Marvin E. Clements, Jr. Assistant Attorney Gener al Joseph P. Atnip 425 Fifth Avenue North District Public Offender Cordell Hull Buildi ng, 2nd Floor P.O. Box 734 Nashville, TN 37243-0493 Dresden, TN 38225 Allen Strawbridge Assistant District A

ttorney General P.O. Box 218 Union City, TN 38261

OPINION FILED: _____________________

AFFIRMED AS MODIFIED

GARY R. WADE, JUDGE2 OPINION The defendant, Cory Lamont Gentry,was convicted of Clas s E felony reckless endan germent and un lawful possessio n of a weapon. T he trial judge imposed concurrent Range II , four-year sentences for each conviction, to be serv

ed consecutively to pr

ior unserved sentences.
In this appeal of right, the de fendant presents the following issues for review: (I) whether the tri al court erred by refusi ng to allow the

defendant

to offer h is alib i proof; (II) whether the tri al court erred by deny ing the defendant a new trial on the basi s of newly discove red evidence; and (III) whether the tr

ial court erred by i mposing an excessive sentence. We modify the def endant's sentences for each off ense to Range I, two-year terms, which are to be serv

ed concurrently wi

th each other but consecutiv ely to his prior unserved sentences. Other wise, the judgment of the tr ial court is affirmed.
On August 1, 1996, at approx imately 1:40 P.M., Teresa M atheny, a pest-control technician, was sitting in her work truck at the i ntersection of Greenwood and College St reet in Union City. She then saw the defendant, who was wearing a red, white and blue shirt, dra w a gun and f ire a shot down Greenwood toward Mai n Street. The defendant fired a second shot toward the pavement and then looked straig ht at Ms. Matheny as he hand ed a friend the weapon. Ms. Matheny w ent into a nearby school, t elephoned the police, and reported the incident.

Near the time of the shooting, O fficer Stephanie Marshall, w ho lived3 nearby, was trav

eling through the Greenw ood and College intersection on her way to work when she saw

the defendant, who was w earing a red, white and blue shirt, and Carale Shields standing near the street. Officer Mar shall knew that the defendant lived in close prox imity to the intersecti on. Seconds after her arriv al at the police station, she rec eived the report that shots had been fired at the intersection by an indi

vidual wearing a red, white and blue shi rt.

Jermaine Fuller was a witness for the defense. He c laimed that he was at the intersection

with Carale Shields

and Mike Shields near the time of the shooting. After talking

with the two men for appr oximately ten minutes, F uller left on his bicycle to get a soda. The others soon disperse d. Upon his return, Full er saw someone fire a gun and then leave the area. Although he could not identify the shooter, Fuller testified i t was not the defendant.

The defendant, who testified in his own behalf , admitted that he was in the area when the shooting occurred. He claimed that he had been visiting the residence of his son, who l ives on that corner, w hen he heard gunshots. The defendant, who acknowledged two prior convic tions for sale of a controlled substance, contended that he merely went outside to inves

tigate and had nothing to do with the gunfire.
(I)

Initially, the defendant cla ims that the trial court er red by refusing to allow his alibi witnesses to testify. Rule 12.1, Tenn. R. Crim. P., provides, in pertinent part, as follows:

Notice of Alibi.--(a)

Notice by Defendant.--U pon written demand of the district attorney general stating the ti me, date, and place at which the alleged offense was committed, the defendant shall serve w ithin ten days, or4 at such different time as the court may direct, upon the district attorney g eneral a written notic e of an intention to offer a defense of alibi . Such notice by the defendant shall state the specific pla ce or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi

.

*** (d) Failure to Comply .--Upon the failure of either pa rty to comply with the req uirements of this rule, the court may exclude the testimony of any undisclosed witness o ffered by such party as to the defendant's absence from or presence at, the scene of the alleged off ense. This rule shall not limit the rig ht of the defendant to testify in his or her own behalf. (e) Exceptions.--F

or good cause shown, the court may grant an exception to any of the requirements of this rul e. Tenn. R. Crim. P. 12.1 (emphasis added).

The state filed a demand for notice of alibi on December 9, 1996. The defendant never filed a writ ten response. On December 31, onl y two days prio r to trial, defense counsel faxed a doc ument to the state indicating that he intended to call Emma Treadwell as an alibi witness. The document contained on ly the witness' name and phone number. On January 2, 1997, the day of the trial, the d efendant gave the state the name of another p otential alibi witnes

s, Tracy Boucher.
Claiming that it had not r eceived the opportunity to verify or inv

estigate the alibi, the state asked the trial court to excl ude the witnesses. While the defendant conceded that he had violated Rule 12.1, he asked for relief under subsection(e), which

provides that sanctions need not be imposed if the defendant has "good cause " for not comp lying.

Defense counsel explained that he had learned about the witnes ses5 only two days before trial. When the trial judge asked w hy the defendant had not told his counsel about the possible alibi sooner, defen se counsel responded that his client "didn't have a w

ay to Dresden," the locati on of his law office. The expected testimony of the two alibi witnesses was summarized by defense counsel as follows:

Miss Treadwell, is going to testify that Cory Gentry was in [her] house when she heard the gunfire. The other witness is going

to say that she did not hear the gunfire, but she does know that Mr.Gentry was in the ho use.

The tria l court rul ed the witn esses cou ld not tes tify: The defendant has failed to sho w good cause for failure to comply. He has offered no sati sfactory reason for failing to inform his attorney of the names of th ese witnesses. The Court furth er notes that the defendant has been in court at least on t wo previous occasi ons with his attorney, that being October 14, 1996 and October 28, 1996 for arraignment and also for setting the case for trial, and there was c

ertainly ample opportunit y at that time to inform his attorney of the names of these witnesses, and he did not do so. The reasons given for later failing to inform his attorney of these witnesses are not acce pted by th e State. The Court does not believe those statements made by the defendant. .. .The witnesses ... wi ll not be permitted to testify in this case. The defendant asserts that the ruling effectively denied him the bas ic right to present a defense.

"For good cause shown, the court may grant an exception to any of the requirements of this rule." Tenn. R. Crim. P. 12.1(e) (emphasis add ed). This court reviews the tria l judge's ruling u nder an abuse of discretion standar d. See , e.g. , State v. Andrew W. Keeley , No. 01C01-9403-CR-00 095, slip op . at 12 (Tenn. Crim. App., at Nashville, Aug . 25, 1995); State v. Terry Lewis Barr , No. 89-267-III, slip op. at 8 (Tenn. Crim. App., at Nash ville, June 8, 1990). When there is tec hnical violation of the rule, the trial judge may exclude the evidence without abusing his discretion. Id.6 In State v. Shannon Blaylock , No. 03C01-9412-CR-00435 ( Tenn. Crim. App., at Knoxvi lle, Dec. 13, 1995), how ever, two of the three panel ists, one concurring and the other di ssenting, observed that when disallowance o

f an alibi witness does in fact str ip the accused of his defense, the tri al court's discretion should be subjected to careful scrutiny. Judge Hayes, in the separate concurrence to the lead opin ion upholding th e conviction, wrote that the "trial c ourt should weigh the 'due process' rights of the defendant to presen t witnesses ... against the interest of the State in avoiding surprise or 'trial by ambush.'" Special Judge Turnbull, writing in diss

ent, argued that the Tennessee cour ts should adopt the guidelin es used in federal courts when applying Rule 12.1, Tenn. R . Crim. P.; it was hi s view that the "harsh" exclusion of the testimony for fa ilure to provide timely notice "denuded the defense of its most important w itness" and violated due pr ocess.
This court has acknowledged that the Tennessee Rule on disclosure of an alibi de

fense "conforms

to the federal

rule" and, ac

cordingly, is giv

en the same interpretation. State v. Sammie Lee Taylor , No 02C01-9501-CR-00029, s lip op. at 18, n.17 (Tenn. Crim. App., at Jac kson, Oct. 10, 1996) (inter nal quotations omitted). The federal courts have found the follow ing factors relevant: (1) the prejudice that r esulted to the government from the failure to disclose; (2) the prejudice suffered by the defendant if the sanction of exclusion is employed; (3) the reasons for nondiscl osure; (4) the extent that harm from n ondisclosure is mitig ated by subsequent events; (5) the weight of evidence supporting the defendant's guilt; and (6) any other factors ar ising out of the circumstanc es of the case.7 United States v. Wood , 780 F.2d 555, 560-61 (6th Cir. 1986); United St ates v. White , 583 F.2d 899, 901-02 (6th Cir. 1978); United States v. Baron , 575 F.2d 752, 757 (9th Cir. 1978).

While we believe that the rule of w itness exclusion shoul d be utilized only in more extreme circumstances, we cannot c onclude, by the use of the factors, that the trial court err

ed on this occasion. By learning about the alibi witnesses on the eve of trial, the state was unable to investigate the alibi. Unlike the facts in Blaylock , where the witness was "not unknown to the state," the state in this instance was familiar w ith neither of the excluded w itnesses. Blaylock , Sp. J. Turnbull, dissenting opini on, slip op. at 2. Consider ing the ease with w

hich an alibi can be fabricated, the State has both an 'ob vious and legitimate interest in protecting itself again st an eleventh hour defense.'" Taylor , slip op. at 18 (quoting Williams v. Florida , 399 U.S. 78, 81 (1970)).

The second factor, prejudice suffered by the defendant, also weighs favorably for the state. The defendant has failed to demonstrate any pr ejudice. Although both witnesses were present, neither was called to make a rec ord of what their testimony woul d have been. See Tenn. R. Evid. 103(2). "I n order for an appellate court to review a record of excluded evidence, it is fundamental that such be placed in the record in s ome manner." State v. Goad , 707 S.W.2d 846, 854 (Tenn. 1986). Statements of counsel ar e not evidence. Trotter v. State , 508 S.W. 2d 808, 8 09 (Tenn . Crim. Ap p. 1974) . With out the wit ness's te stimony, we cannot conclude the defendant was pr ejudiced.

There are other factors favorabl e to the state. Defense counsel submitted that the defendant was unabl e to "get to Dresden" to inform hi m of the8 alibi witnesses. U nion City and Dresden ar e not all that far apart, especi ally when liberty interests ar

e at stake. A telephone message would have been enough. That the defendant had made two court appearan ces without any hint of possible alibi witnesses reflects upon hi s credibility. The fli msiness of the excuse prov ided renders suspect the legitimacy of the witnesses.The most obvious question is why the defendant, despite several prior opportunities, waited several mont hs before telling his counsel about the witnesses. The record provides no answer. Implicit in the observations made by the trial judge is a l ack of confidence in the truthfulness of the defendant. While matters of credibility ar e generally best left to the jury, the record supports the skepti cism of the trial court about the motives of the defendant.

The remaining factors are neutr al, neither helpful to the state nor the defense. Obviously, each case must be resolved on its own particular circumstances. Exclu sion is a harsh rule. The ul timate test is one of fundamental fairness. Here the record does not warrant a concl usion that the trial judg e abused his discretion or that the defendant was denied his fundamental r ight to a fair trial.
(II) The defendant next argues the tri al court erred by deny ing his motion for a new trial on the basis of newly discovered evidence, i.e., that someone else confessed to the crime. At the hearing on the motion f or new trial, seventeen-yearold Carale Shields testified that on the afternoo n of August 1, 1996, he and "Shack" were at the intersecti on "playing with . .. a pellet gun." Shields admitted shooting the gun in the air and claimed h e was wearing a b lue, red, and white str iped shirt at the time. On cross-examination, Shields explained hi s absence at the trial by asserting that he was in Dyer

sburg, "twenty mil es down the road," when th e trial took place. Shields acknowledged, however, that "anybody that wanted to find [him] could9 have." Cory Bardw

ell, who was on w

ork release from jail at the time of the offense, attempted to corroborate Shields' testimony. He claimed to have seen Shields fire the gun in the air. The tri al court denied the motion for new trial, stating "I do not believe a word they

said."

To warrant a new tri al on grounds of newly discovered evidence,the defendant must have exercised reasonable diligence in searching fo r the evidence prior to trial; the evidence must be material; and the evidence, if produced a t trial, would have likely

changed the results of the tr ial if accepted by the jur y. State v. Goswick , 656 S.W.2d 355, 358-59 (Tenn. 1983); State v. Burns , 777 S.W.2d 355 (Tenn. Crim. App. 1989). When the newly discovered evidence only tends to contradict or impeach the trial evidence, however, a new trial is not usually warranted. State v. Lequire , 634 S.W.2d 608, 615 (Tenn. Crim. App. 1981). When the trial court overr

ules a motion for a new tri al based on newly dis covered evidence, that ruling

will not be rever

sed on appeal absent a clear abuse of discretion. State v. O'Guin , 641 S.W.2d 894, 89 8 (Tenn. Crim. App. 1982). It is proper for a trial court t o deny a motion for a new tr ial based upon newly di scovered evidence when the defendant fails to show that he exercised reasonab le diligence in the procurement of a witness at the original trial. Hawkins v. State , 417 S.W.2d 774 (Tenn. 1967).
There is no proof that the defendan t exercised reasonable diligence in locating these witnes

ses. During direct examination at trial, the defendant unexpectedly claimed that he had "heard" that Carale Shiel ds had committed the crime. While the trial court granted the state's m otion to strike the testimony, it is apparent from his statement that the defendant k new about Shields before the tr ial. Jermaine Fuller, a defense w itness, testified at trial

that he, the defendant and10 Shields were together

at the intersection for approx imately ten minutes before the incident, implying that the defendant is at least acquai nted with Shields. Officer Marshall also testified at trial that she saw the

defendant and Shields together at the intersection. The record establishes that the defe ndant knew about Shields in advance of trial.

In his motion for new trial , the defendant filed an affidavit claimi ng that, after making bail, he tried and failed to locate Shields. The affidav it fails to include what, if any, specific efforts the defendant made. The grant of a new tr ial solely on the basis of an affidavit by the defense would deny the stat e the opportunity to test the accuracy or truthfulnes s of the information contained in the affidav it. Hicks v. State , 571 S.W.2d 849, 852 (Tenn. 1978). Testimony should ha ve been offered at the hearing on the motion for new trial. Id. Because there is no competent pr oof that the defendant exercised reasonable diligence in searchin g for the evidence prior to trial, the tr

ial court did not abuse its discretion by denyi ng the motion.
(III) The defendant complains that his sentence is excessive. H e raises the following specific c hallenges to his sentence: (a) the trial court erred by finding him to be a multiple offender; (b) the trial court er

red by using the enhancement factor that the defendant has shown an unwillingness to comply with the terms of an alternative sentence; and (c) the trial court erred by ordering the sentences to be served consecutively to his prior unserved sentences. Convicted

of two Clas

s E felonies, the defendant r eceived Ra nge II, four- year terms for each offense. A Range II sentence for a Class E felony is tw o to four years. For reasons explained below , we must modify both sentences to Range I, two-y

ear11 terms, the maximum availabl e for a Range I Class E felony . The terms must be served consecutively to his prior sentences.

The presente nce report shows th at the defen dant, who has a hi gh school diploma and a limited work history, has prior convictions for disorderly conduct , crimina l trespas sing, and the sale o f cocain e. He was on probatio n for two drug convictions w

hen the weapons and endangerment offenses occurred.
When there is a challenge to the length, range, or manner of servi ce of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "conditioned upon the a ffirmative showing in the record that the tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commissi on Comments provide that the burd en is on the defendant to show the i mpropriety of the sentence.

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40- 35-102, -103, and - 210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

At the time of these offenses, the presumptiv e sentence was the12 minimum in the range. Tenn. Code An n. § 40-35-210(c) (amended effectiv e July 1, 1995, to make the presumptive sentence for a Class A felony the midpoint in the range). Should the trial court find mitigating and enhancement f actors, it must start at the presumptive minimum in the range and enhance the sentence bas ed upon any applicable enhancement factors , then reduce the sentence based upon a ny appropriate mitigating

factors. Tenn. Code Ann. § 40-35-210( e). The weight giv

en to each factor is within the trial court's discretion provided that the r ecord supports its findings and it compli es with the Sentencing Act. See Ashby , 823 S.W.2d at 169. The trial court, however, should make specific findings on the record which indicate its application of the sentencing principles . Tenn. Code Ann. §§ 40-35-209 and -210.
(a)

The defendant's first complaint is tha t the trial court erred by classifyi ng him as a Range II, multiple offend er. He argu es that h e does no t have the requisite number of prior convictions. A multiple offend er is defined as follows:

(a) A "multiple offender" is a defendant w ho has received: (1) A minimum of two (2) but not more than four (4) prior felony convictions w

ithin the conviction class, a higher class, or within the next two (2) lower felony classes, where applicable[.]

*** (b) In determining the number of prior convictions a defendant has received:

*** (4) Convictions for multipl e felonies committed as part of a single course of conduct within twenty-four (24) hours, constitute one (1) convi ction for the purpose of determining prior conv

ictions ; however, acts resulting in bodily injury or

threatened bodily injur y to the victim or victims shall not be c

onstrued to be a single cour se of conduct.13 Tenn. Code Ann. § 40-35-106 (emphasis add ed).

The stat e filed a notice of sentenc ing as a mu ltiple of fender , listing two prior convictions for

sale of a controlled substance,one of which occurred on December 1, 1993, and one of which occurred on November 30, 199 3. At the sentencing hearing, the d efendant testified that the sales occur red within twenty

-four hours of each other and described the offenses as follows: "I sold to undercover back-to-back ... 'cause they sent 'em like that nig ht and then sent 'em that morning. So, it was like I sold twic e to undercover ba ck-to-back, and they ran the charge
concurr ent." The

defendant

contend s that because hi s two fe lonies were pa rt of a single course of conduct occ urring within tw

enty-four hours, they s hould count as only one prior convi ction.

The state did not cross-ex amine the defendant on this testimony.In closing argument, the state conceded the offe nses occurred within twenty-four hours of each other; it argued, however, they were not part of a single course of conduct and thus should not merge toge ther for range determination pu rposes. The prosecutor claimed, "These w ere two separate sales t o two separate indivi duals at two separate locations." Defense counsel objected to the st ate's assertion that the sales were made to two separate individuals a

t two separate locations , pointing out the state had offered no evidence of those facts. The trial court nonetheless classified the defendant as a Range II, multiple of fender.

On appeal, the defendant complains that the trial judge made the decision "without benefit of any competent proof " of whether the two offenses were part of a single course of conduc t. We agree that the state failed to meet its bur den of proof.14 Under the statute, the defendant mu st be found "beyond a reasonable doubt to be a multiple offender" before he rece ives sentencing w ithin Range II. Tenn. Code Ann. § 40-35-106(d); see State v. Horton , 880 S.W.2d 732, 734 (Tenn. Crim. A pp. 1994) . In thi s case, there i s no proo f that the offenses were no

t part of a single course of conduct. The defendant 's testimony would support an inference that they were, in fact, part of a single course of conduc t. The state chose not to challenge the testimony. Argument by the state that the sales were made to separate people at separate loca tions does not qualify as proof. Trotter v. State , 508 S.W.2d 808, 809 (Tenn. Crim. App. 1974). Because there is insufficient evidence that th e defendan t was a Range II off ender, we must mo dify his range classification to that of Rang e I.
(b)

Having determined offender cl assification, we now review the length of each sentence. The trial judg e applied the following fact ors: prior criminal record; prior history of unw

illingness to comply

with the conditions of a se ntence involving release into the community; and that the defendant was on probati on when he committed the present offense. See Tenn. Code Ann. § 40-35-114 (1), (8) and (13). The defendant complains the court should not have applied factor (8) in addition to factor (13), as it amounts to "doub le enhancement arising out of onl y one circumstance."

It is permissible to use both factors as long as each i s supported by the evidence. See generally State v. Hayes , 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995). The presentence repor t shows the defendant has a prior probation revocation in addition t

o that which occurred as a result of commission of the offenses. Accordingly, the trial court did not err by applying this

enhancement15 factor.
The trial judge imposed the four- year sentences based upon the defendant's being a multiple offender. Because the defendant is Range I, not Range II, four-year ter

ms may not be imposed. In our v iew, two-year

sentences, the maximum available for each offense, ar e warranted based on the pres ence of the three enhancement factors.
(c)

Finally, the defendant argues that consecutive sentencing is
unneces sary. The sent

ences for

reckle ss endan germent

and possession o

f a weapon were ordered c oncurrent with each other but consecutive to his pr ior unserved sentences. The defendant had r eceived two concurr

ent eight-year sentences for prior convi ctions of sale of cocaine and wa s on probation for the drug offenses when the present offenses wer e committed. The trial court or dered the sentences in this case to be s erved consecutively

to the sentences in the drug cases. The trial judge r elied on Tenn. Code Ann. § 40-35-115 a nd found the defendant was a professional cri minal and that he was on probation when he committed the present offenses.

Rule 32(c), Tenn. R. Cri m. P., addresses sentencing when the defendant has prior unserved sentences:

(c) Concurrent or Consecutive Senten ces.

*** (2) Sentence When Defendant Has Prior Sentence N ot Fully Served. If the defendant has additional sentences not yet fully serv

ed ... the court shall reci te this in the judgment setting sentence, and the sentence imposed shall be deemed to be concurrent with the prior sentence or sentences, unless it affirmati vely appears that the new16 sentence being imposed is to be served consecutively with the prior sentenc

e or sentences. The judgment to make the sentences consecutive or concurrent shall explicitly recite the judge’s reasons therefore, and is reviewable on appeal

.

*** (3) Mandatory Consecutive Sentences. Where a defendant is convicted of multipl e offenses from one trial or where the defendant has additi onal sentences not yet fully served as the r

esult of the convictions i n the same or other court and the law requires consecutive sentences, the sentence shall be consecuti ve whether the judgment explicitly s o orders o r not. Thi s rule sha ll apply: (A) to a sentence for a felony c ommitted while on parole f or a felo ny; (B) to a sentence for escape or for a felony committed while on escape; (C) to a sentence for a felony where the defendant was released on bail and the defendant is convicted of both offenses; and (D) any oth er ground provided b y law. Tenn. R. Crim. P. 32(c)(2)-(3) (emphasis added).

An additional statutory ba sis for consecutive sente ncing is Tenn. Code Ann. § 40-35-310, which provides as follows:

[I]n any case of revocati on of suspension [of probation] on account of conduct by the defendant w hich has resulted in a judgment of conv iction against him duri ng his period of probation, the tr ial judge may order that the term of imprisonment imposed by th e original judgment be served consecutive ly to any sentence w hich was imposed upon such convictio n. The section gives the tr ial judge discretion to order consecutive sentences when the defendant is convicted of a cri me while on probation for a pr evious crime.
Finally, Tenn. Code Ann. § 40-35-115, which was specifically mentioned by the trial cour t, governs consecutiv

e sentences. Prior to the enac tment1 The first f our crit eria are f

ound in Gray . A fif

th category

in Gray , based on a speci fic number of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion

. See Tenn. Code Ann. § 40-35-1 15, Sentenci ng Comm ission Comments. 17 of the Criminal Sentencing R eform Act of 1989, the limited classi fications for the imposition of consecutive s entences were set out in Gray v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court ruled that ag gravating circumstances must be present before placement in any one of the cla ssifications. Later, in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an additional category for those defendants convicted of tw o or more statutory offenses involving sex

ual abuse of minors. There wer e, however, additional

words of caution: "[C]onsecutive sentences s hould not routinely be impos ed . . . and . . . the aggregate maximum of consec utive terms must be reasonabl y related to the severity of the offenses inv olved." Taylor , 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cauti onary language. Tenn. C ode Ann. § 40- 35-115. The 1989 Act is, in esse nce, the codification of the holdings in Gray and Taylor ; consecutive sentences may be imposed in the discretion of the trial cou rt only upon a determination that one or more of the following criteria 1 exist:

(1) The defendant is a professional criminal who has knowingly dev

oted himself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose r ecord of criminal activity

is extensive; (3) The defendant is a dangerous ment ally abnormal person so declared by a c ompetent psychiatrist w ho concludes as a result of an inv estigation prior to sentencing that the defendant's cr iminal conduct has been characterized by a pattern of repetitive or compulsive behavior w ith heedless indifference to consequences; (4) The defendant is a dangerous offe nder whose behavior indicates little or no regard for human l ife, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more18 statutory offenses involv ing sexual abuse of a minor with consideration of the aggrav ating circumstances ari sing from the relationship between the defend ant and victim or victims, the time sp

an of defendant's undetected sexual activity , the nature and scope of the sexual acts and the extent of the residual, p hysical and mental damage to the victim or victims; (6) The defendant is sentenced for an of fense committed while on probatio n; (7) The defendant is sentenced for cr iminal contempt. Tenn. Code Ann. § 40-35-115(b).

In Gray , our supreme court ruled tha t before consecutive sentenci ng could be imposed upon the dangerous offender, as now defined by subsec tion (b)(4) in the statute, oth er conditions must be present:(a) that the crimes inv olved aggravating ci rcumstances; (b) that consec utive sentences are a neces sary means to protect the public from the defendant; and (c) that the term reasonabl y relates to the severity of the offenses.

In State v. Wilkerson , 905 S.W .2d 933, 938 (T enn. 1995), ou r high court reaffirmed those principl es, holding that consecuti ve sentences cannot be required of the dangerous offender "unl ess the terms reasonably relate[] to the severity of the offenses committed and are nece ssary in order to protect the public (society) from further cr iminal acts by those per sons who resort to ag gravated criminal conduct." The Wilkerson decision, which modified somewhat the strict factual guidelines for consecutive sentencing adopted i n State v. Woods , 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process that neither can nor should be reduced to a set of fixe d and mechanical rules." Wilkerson , 905 S.W.2d at 938. The record must show that the sentencing principles and all rel evant facts and circumstances were considered before the presumption of correctness appli es.2 The H onorab le Joe B. J ones d ied May 1 , 1998, an d did not pa rticipate in this o pinion. W e acknowledge his f

aithful service t

o the Tennessee Court of Criminal Appeal s, both as our colleague and as our Presidi ng Judge. 19

The trial judge relied on Tenn. Code Ann. § 40-35-115 and imposed consecutive sentences based on the defendant's being a professional criminal and being on probation when the offenses were committed. The defendant complai ns that there was no proof in the record that he was a profess ional criminal.

A professional criminal is an individual whose

criminal activiti es are a "major source of his liv elihood." State v. Desirey , 909 S.W.2d 20, 30 ( Tenn. Crim. App. 1995). We agree that there was no pr oof in this record that the defendant qualified as a professional criminal. Nonetheless, consecutive sente nces are appropriate based on Tenn. Code Ann. § 40-35-115(b)(6), that the de fendant was on probation when he committed th e present offenses. We also find that the consecutive terms are r easonably related to the sev erity of the offenses. The trial court did not abuse its dis cretion by ordering

the terms to be served cons ecutively. State v. Moore , 942 S.W.2d 570 (Te nn. Crim. App. 1996).

Accordingly, the j udgment of the trial court is affirmed as modified.

__________________________________ Gary R. Wad e, Judge CONCUR:

_______________________________ Joe B. Jones, Pre siding Judge 2

_______________________________ Jerry L. Smith, Jud ge