IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 20, 2002

STATE OF TENNESSEE v. ALLEN PRENTICE BLYE

 Appeal from the Circuit Court for Sullivan County

Nos. S41,733, S41,774 R. Jerry Beck, Judge

No. E2001-01375-CCA-R3-CD

November 1, 2002

The defendant, Allen Prentice Blye, was charged under two separate indictments with a total of

fourteen offenses. The indictments were consolidated for trial and the defendant was convicted of

all five counts contained in indictment number S41,733 and four counts contained in indictment

number S41,774. The defendant was found not guilty on the remaining five charges contained in

indictment number S41,774. The trial court imposed the following sentences:

Indictment S41,733 

Count 1 Theft over $10,000.00 (S. Loflin) 15 years at 45%

Count 2 Felony evading arrest 6 years at 60% (consecutive)

Count 3 Reckless endangerment 6 years at 60% (consecutive)

Count 4 Driving on a revoked license 6 months (concurrent)

Count 5 Leaving the scene of an accident 30 days (concurrent)

Indictment S41,774

Count 2 Theft over $500.00 (Gafford) 6 years at 60% (consecutive)

Count 4 Theft under $500.00 (S. Loflin) 11 months, 29 days (concurrent)

Count 6 Theft over $500.00 (Carroll) 6 years at 60% (consecutive)

Count 9 Theft over $1,000.00 (Mann) 12 years at 60% (consecutive)

The effective sentence under indictment S41,733 is 27 years and the effective sentence under

indictment S41,774 is 24 years. The trial court ordered the sentences under each indictment to be

served consecutively, for a total effective sentence of 51 years. In this appeal, the defendant presents

the following issues: (1) whether the trial court erred by refusing to sever certain of the offenses; (2)

whether the evidence was sufficient to support the conviction for theft over $1,000; and (3) whether

the sentence was excessive. Because the defendant was entitled to separate trials on some of the

counts contained in indictment S41,774, and the error cannot be classified as harmless, the four

convictions under that indictment must be reversed and remanded. The convictions and

accompanying sentences under indictment S41,733 are affirmed.

Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed in Part and Reversed and

Remanded in Part
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GARY R. WADE, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and

ROBERT W. WEDEMEYER, JJ., joined.

Mark H. Toohey, Kingsport, Tennessee (at trial), and Julie A. Rice, Knoxville, Tennessee (on

appeal), for the appellant, Allen Prentice Blye.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; and

Joseph Eugene Perrin, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On the morning of July 31, 1998, Alfred Mann of the Colonial Heights area in Sullivan

County discovered that his silver1987 Volkswagen Scirocco sports car, valued at between $5,000

and $6,000, had been taken from his front lawn. He had left his keys in the vehicle.

On August 8, 1998, Samuel Loflin, whose company, Freeman Glass, owned a 1997 GMC

Yukon and a 1994 Ford F-250 pickup truck, discovered that the Yukon had been taken from his

driveway in the Preston Forest Subdivision in Kingsport. The Yukon had a value of over $10,000.

Two drills and a suction cup for holding glass, having a cumulative value of over $500, were missing

from the Ford truck.

That same morning, Samuel Loflin's son, Tom, who lived next door to his father, discovered

that someone had broken into his Pontiac Grand Prix. The passenger door had been left open and

the contents of the glove compartment and the center console had been removed and left on the seats.

Debra Lynn Clasin, who lived directly across the street, found that the trunk of her daughter's Mazda

automobile had been left open. The console and glove compartment of the vehicle were also open

and the contents were scattered throughout the interior of the car.

Also that same morning, Brian Carroll, who lived in the same subdivision as the Loflins,

discovered that the door to his Chevrolet S10 pickup truck, which was parked in his carport, had

been opened and the contents of the truck were in disarray. An amplifier, a subwoofer box, and

compact discs were missing. The property had a cumulative value of approximately $1,500.

The next day, Joe Aaron Gafford, a Church of Christ minister, returned from vacation and

discovered that his residence, which was located adjacent to Preston Forest subdivision, had been

burglarized and ransacked. A light was left on in the residence, which had been locked during

Gafford's absence. The carport door had been pried open and left ajar. Drawers and cabinets were

open throughout the house. A baby ring, two VCRs, two cameras, a portable television, a

microwave, $200 in cash, and several drawers from a jewelry armoire had been taken. Gafford

estimated that the cumulative value of the stolen property was in excess of $1,000. All of the

property taken was later recovered.
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Mary Elizabeth Snapp, who had been dating the defendant, met him at an office complex

where he was doing interior cleaning on August 8, 1998. Sometime after dark, each left in separate

cars. According to Ms. Snapp, she followed the defendant, who was driving a two-door silver sports

car, to a Winn-Dixie parking lot, where he opened the trunk of his car and gave Ms. Snapp a VCR

and a baby ring. She took the items to her apartment. At approximately 3:00 A.M. the next

morning, the defendant drove to Ms. Snapp's apartment in the silver sports car. The defendant then

drove Ms. Snapp to a friend's house where she waited 30 minutes to an hour. When the defendant

returned, he was driving a green GMC Yukon, which was later identified as that stolen from Sam

Loflin. Ms. Snapp joined the defendant in the Yukon. Shortly after their departure, the defendant

picked up a man whose car was out of gasoline and drove him to a convenience market. When a

police officer arrived, the defendant drove away, leaving the man at the pump. Afterward, another

police vehicle followed the Yukon until the defendant drove down a dead-end road, where he and

Ms. Snapp waited for several minutes. A short while later, another officer saw the Yukon and began

to follow. According to Ms. Snapp, the defendant sped away, drove through a roadblock, and

eventually missed a curve and crashed into a house. The defendant fled on foot, leaving Ms. Snapp

in the car. When questioned by police, Ms. Snapp initially denied any knowledge of the defendant.

When told she might not see her children anymore, however, she cooperated by making a statement

and showing officers the location of the VCR and baby ring. A search of Ms. Snapp's apartment

yielded the VCR and baby ring belonging to Gafford.

Sergeant Dan Brookshire of the Kingsport Police Department was looking for the stolen

Yukon when he saw a vehicle fitting that description at the gas pumps at a convenience market.

After calling for assistance from other officers, Sergeant Brookshire observed the defendant

hurriedly drive away, leaving a passenger standing at the gas pump. Sergeant Brookshire followed

closely behind but lost sight of the vehicle.

Shortly after receiving the call from Sergeant Brookshire, Officer Timothy Horne saw the

Yukon being driven by the defendant and followed. Before Officer Horne could initiate a traffic

stop, however, the defendant accelerated, jumped the curb in a church parking lot, and sped away.

The defendant did not stop when Officer Horne activated his lights, but continued to accelerate and

eventually ran a stop sign. At another intersection, the defendant drove through a flashing red light

and sped up to 70 miles per hour while straddling the double yellow centerline and driving into

oncoming traffic.

Officer Kevin Hite, who had also learned of the high speed chase, was forced to evade the

defendant as they approached each other in opposite directions. The Yukon driven by the defendant

went "slightly airborne" and struck the spotlight on the side of Officer Hite's cruiser. Officer Horne

continued his pursuit and saw the defendant drive through a stop sign and a red light before crashing

the Yukon into the side of a residence. The defendant fled on foot but was arrested by police, who

returned him to the scene of the accident.

Detective Frank Light found compact discs belonging to Carroll in the Yukon. The

Volkswagen Scirocco which had been taken from Mann was discovered in an apartment complex
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near Gafford's residence. Three of the four drawers taken from Gafford's jewelry armoire were

inside the Scirocco, as were his VCR and microwave. The two drills belonging to Sam Loflin, all

of Carroll's stereo equipment and some of his compact discs were also in the Scirocco. At trial, the

defendant stipulated that his driver's license had been suspended or revoked at the time of the arrest.

I

The defendant first contends that the trial court abused its discretion by failing to sever the

offenses. The state insists that the trial court properly concluded that the multiple offenses were part

of the same criminal transaction because most of the offenses were committed in the same

neighborhood on the same night. The trial court concluded that severance was not proper because

the offenses were part of a common scheme or plan. The trial court additionally determined that the

evidence of each offense was admissible in a trial of the others under Rule 404(b) as evidence of the

defendant's identity as the perpetrator. The trial court did not engage in a balancing test to determine

whether the probative value outweighed the danger of unfair prejudice.

"[D]ecisions to consolidate or sever offenses pursuant to Rules 8(b) and 14(b)(1) are to be

reviewed for an abuse of discretion." State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).

Additionally, "a trial court’s refusal to sever offenses will be reversed only when the 'court applied

an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an

injustice to the party complaining.'" Id. (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

"[W]hen a defendant objects to a pre-trial consolidation motion by the state, the trial court must

consider the motion by the severance provisions of Rule 14(b)(1), not the ‘same or similar character’

standard of Rule 8(b)." Spicer v. State, 12 S.W.3d 438, 443 (Tenn. 2000).

Rule 14 (b)(1) provides as follows:

If two or more offenses have been joined or consolidated for trial pursuant to

Rule 8(b), the defendant shall have a right to a severance of the offenses unless the

offenses are part of a common scheme or plan and the evidence of one would be

admissible upon the trial of the others.

Tenn. R. Crim. P. 14(b)(1). The "primary inquiry into whether a severance should have been granted

under Rule 14 is whether the evidence of one crime would be admissible in the trial of the other if

the two counts of indictment had been severed." State v. Burchfield, 664 S.W.2d 284, 286 (Tenn.

1984). Tennessee Rule of Evidence 404(b) prohibits the admission of "other crimes, wrongs, or

acts" of the defendant when admitted only to show the defendant’s propensity to commit the crime

charged. See Tenn. R. Evid. 404(b). Rule 404(b) does not, however, bar the admission of acts

alleged to be part of a common scheme or plan when relevant to a material issue at trial. See Bunch

v. State, 605 S.W.2d 227, 229 (Tenn. 1980). Before a trial court may deny a severance request, it

must hold a hearing on the motion and conclude from the evidence and argument presented at the

hearing that (1) the multiple offenses constitute parts of a common scheme or plan; (2) evidence of

each offense is relevant to some material issue in the trial of all the other offenses; and (3) the
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probative value of the evidence of other offenses is not outweighed by the prejudicial effect that

admission of the evidence would have on the defendant. Spicer, 12 S.W.3d at 445; see also Tenn.

R. Evid. 404(b)(3).

"[A] common scheme or plan for severance purposes is the same as a common scheme or

plan for evidentiary purposes." State v. Moore, 6 S.W.3d 235, 239 n.7 (Tenn. 1999). In order to

meet the first prong of common scheme or plan, the evidence must fall under one of the following

categories: (1) offenses that reveal a distinctive design or are so similar as to constitute "signature"

crimes; (2) offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that are

all part of the same criminal transaction. This court determined in State v. Hallock that:

[T]he mere existence of a common scheme or plan is not a proper justification for

admitting evidence of other crimes. Rather, admission of evidence of other crimes

which tends to show a common scheme or plan is proper to show identity, guilty

knowledge, intent, motive, to rebut a defense of mistake or accident, or to establish

some other relevant issue.

875 S.W.2d 285, 292 (Tenn. Crim. App. 1994).

It is our view that the defendant would not be entitled to a severance of the offenses charged

in indictment S41,733 because those offenses represent parts of the same criminal transaction. The

defendant, who had a revoked or suspended license, drove Loflin's stolen Yukon, fled from officers,

and placed another in danger as he did so. The defendant then left the scene after crashing the

Yukon into the side of a residence. Each offense, including the original theft of the Yukon, is so

closely related to the others that, under the guidelines set out in the latter portions of this opinion,

a joint trial was warranted. Morever, even if the Yukon theft, which occurred several hours before

the remaining offenses described in the first indictment, was too far removed in time to be claimed

as in "the same criminal transaction," the defendant was caught "red-handed" by police and the error

would have been harmless, having no effect on the result. See Tenn. R. App. P. 52(a).

With regard to the offenses charged in indictment S41,774, a material issue existed as to the

identity of the defendant as the perpetrator of the crimes. From our review of the record, it does

appear that the offenses charged in each of the two indictments are related in some way, tending to

establish the defendant as the perpetrator. The defendant was arrested after crashing the Yukon

stolen from Sam Loflin and Ms. Snapp was in the car at that time. Compact discs taken from

Carroll's truck were also in the Yukon. Items stolen from the Gafford residence were discovered in

the Scirocco, which Ms. Snapp reported to authorities as having been in the defendant's possession.

All of the offenses occurred within a short distance of each other, three in the same subdivision and

one on an adjacent street. In those cases where identity is the basis for 404(b) admissibility, it is

generally not proof of the other crime itself which provides evidence of identity but evidence found

at the other crime scene that tends to connect the defendant to other crimes in the scheme. See e.g.,

State v. Hall, 976 S.W.2d 121, 146 (Tenn. 1998) (appendix) (discussing that evidence found at some

of the crime scenes linked the defendants to other crimes in the spree); State v. Joe N. Anderson, Jr.,
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(Tenn. Crim. App., at Knoxville, Dec. 9, 1999), app. denied (Tenn., Sept. 11, 2000) (noting that the

evidence of the other crime was relevant to identity because proof that the defendant fired the gun

at the victim in the first crime tended to establish that he was the shooter in the second crime). In

our view, the offenses charged do not fit neatly into one of the three common scheme or plan

categories: (1) signature crimes, (2) a larger, continuing plan or conspiracy, or (3) the same criminal

transaction.

For the offenses to qualify under the signature crimes category, the "modus operandi

employed must be so unique and distinctive as to be like a signature." Moore, 6 S.W.3d at 240

(quoting State v. Carter, 714 S.W.2d 241, 245 (Tenn. Crim. App. 1986)). Although the offenses do

not have to be identical in every way, a common scheme or plan is not found merely because there

was evidence that the defendant committed the multiple offenses or because the similarities of the

offenses outweigh the differences. Moore, 6 S.W.3d at 240-41. "Rather, the trial court must find

that a distinct design or unique method was used in committing the offenses." Id. at 241. The

method of perpetrating the crimes must employ "'such unusual particularities'" that a reasonable

person could believe it unlikely that different people were using this method. Id. at 240 (quoting

Harris v. State, 189 Tenn. 635, 644, 227 S.W.2d 8, 11 (1950)). In this case, as the state concedes,

nothing about the offenses charged in either indictment would establish a "distinct design or unique

method" so that the offenses could be joined as signature crimes.

"The larger, continuing plan category encompasses groups or sequences of crimes committed

in order to achieve a common ultimate goal or purpose." Hallock, 875 S.W.2d at 290; Neil P.

Cohen, et al., Tennessee Law of Evidence § 404[12][c], pp. 4-93 (4th ed. 2000) ("The unifying

concept of crimes admitted under this theory is not their high degree of similarity but the common

goal or purpose toward which each crime is directed."). The category requires proof of "a working

plan, operating towards the future with such force as to make probable the crime for which the

defendant is on trial." State v. Hoyt, 928 S.W.2d 935, 943 (Tenn Crim. App. 1995); see also State

v. Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App 1992). In Hallock, this court rejected the

contention that sex crimes against different victims in the same household can be consolidated based

upon a common goal of achieving sexual gratification. 875 S.W.2d at 290. Hallock provides an

example to illustrate a common problem when attempting to classify multiple crimes as a larger,

continuing plan: "X is on trial for three counts of burglary, each involving a different building, a

different form of entry, and a different day. His overall purpose, however, was to acquire money for

college. Clearly, without more, X is entitled to severance under Rule 14(b)(1)." Id.; see alsoAdams,

859 S.W.2d at 362 (holding that a shared motivation for two otherwise unrelated crimes is

insufficient to prove a common scheme or plan even when the offenses share some similarities). The

fact that a defendant has a common goal in committing crimes or that most of the crimes were

committed in the same neighborhood does not mean that proof of the individual, disparate crimes

will reveal a larger, continuing plan. In a recent case, this court concluded that a common motive

to terrorize the victim, the defendant's estranged wife, was insufficient to show a common scheme

or plan when the assaults were otherwise unrelated in time, location, and character. State v. Ronald

Prentice, No. M2000-02937-CCA-R3 (Tenn. Crim. App., at Nashville, Dec. 28, 2001), for

publication.
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Since the rulings in Hallock and Adams, the larger, continuing plan category has typically

been restricted to cases involving crime sprees, where the defendant commits several crimes quite

closely in time to one another. See e.g., State v. Hall, 976 S.W.2d 121, 146 (Tenn. 1998) (appendix)

(holding the burglaries, larcenies, and murders committed by the defendants during the week

following their escape from a Kentucky prison were part of a larger plan to flee the country and the

Kentucky authorities). The offenses charged in indictment S41,774 cannot, in our opinion, be

classified as parts of a larger, continuing plan because the state has failed to show the existence of

"a working plan, operating towards the future with such force as to make [the other offenses

probable]." See Hoyt, 928 S.W.2d at 943; Adams, 859 S.W.2d at 362.

The same criminal transaction category can be described as the allowance of other criminal

acts evidence to provide the "full story" of the offense for which the defendant is on trial. Cohen,

et al., Tennessee Law of Evidence, § 404(13), at pp. 4-94, 95. For example, a bank robber steals a

car while fleeing from the bank; the car theft is admissible in the trial of the robbery to describe the

whole event. Id. According to that particular authority, however, "crimes admitted as part of the

'same transaction' should be limited to those so inextricably connected in time, place, or manner that

the jury would be unable to comprehend the essential nature of the charged crime without hearing

the evidence of the 'other' crime." Id. (citing Claiborne v. State, 555 S.W.2d 414 (Tenn. Crim. App.

1977)). It is only when "exclusion of the evidence would create a chronological conceptual void"

that would likely result in confusion on the material issues and "sacrifice the jury's understanding"

that same criminal transaction evidence is admissible. State v. Gilleland, 22 S.W.3d 26, 272 (Tenn.

2000). In this case, none of the offenses for which convictions resulted in indictment S41,774 could

be described as so essential to the others or to those offenses charged in indictment S41,733 that,

without them, the jury would be unable to comprehend the essential nature of the charged crime.

Moreover, exclusion of the evidence of some of the offenses in a trial of the others would not create

a confusing conceptual void. Thus, although it might be cumbersome, the charges in indictment

S41,774 should be tried separately from the charges in S41,733 and from each other.

Our next inquiry is what, if any, prejudice the defendant suffered as a result of the improper

joinder. Tennessee Rule of Criminal Procedure 52 states that “[n]o judgment of conviction shall be

reversed on appeal except for errors which affirmatively appear to have affected the result of the trial

on the merits.” Tenn. R. Crim. P. 52(a). “In most severance cases, ‘the line between harmless and

prejudicial error is in direct proportion to the degree . . . by which proof exceeds the standard

required to convict. . . .’” Spicer, 12 S.W.3d at 447-48 (quoting Delk v. State, 590 S.W.2d 435, 442

(Tenn. 1979)). Our supreme court has held that the error is harmful when, because the evidence of

guilt was not overwhelming, the failure to sever offenses invited the jury to infer guilt from the

propensity of the accused to commit crime. Shirley, 6 S.W.3d at 250-51. In Spicer, our high court

concluded that, because the evidence of guilt was sufficient but not overwhelming, the failure to

sever offenses required reversal. 12 S.W.3d at 447. This court, in State v. Michelle Ferguson, No.

E1999-01302-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Aug. 3, 2000), held that the trial

court’s failure to sever was reversible error because “[a]lthough the evidence . . . was legally

sufficient to support all three of [d]efendant’s convictions, the evidence was far from

overwhelming.” Cf. State v. Michael Anderson Peek, No. E1998-00038-CCA-R3-CD (Tenn. Crim.
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App. May 3, 2000) (finding that the failure to sever was harmless where the evidence of the

defendant’s guilt was overwhelming).

The jury acquitted the defendant on five of the nine counts submitted under indictment

S41,774. On three of the other four counts, the jury returned verdicts of guilt on lesser included

offenses rather than the offenses charged. During her testimony, Ms. Snapp acknowledged questions

about her own credibility. Her testimony about the defendant's possession of the Scirocco was

critical for the state as it was the only evidence connecting the defendant to the theft of the Scirocco

and the evidence of the other crimes discovered in the Scirocco. In summary, the evidence was not

overwhelming on any of the counts in indictment S41,774. The error of trying each of the charges

which resulted in convictions (the Gafford theft, the S. Loflin theft, the Carroll theft, and the Mann

theft) in the same trial cannot be classified as harmless.

Although it was inappropriate for the counts in indictment S41,774 to be tried with those in

indictment S41,733, the evidence was overwhelming for the Loflin vehicle theft, the evading arrest,

the reckless endangerment, and the driving on a suspended or revoked license convictions under

indictment S41,733. In consequence, the error was harmless as to the convictions under indictment

S41,733.

II

The defendant next asserts that the evidence is insufficient to support his conviction for theft

of the Scirocco. 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, 835

(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the

reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.

State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing the evidence in the light most favorable

to the state, any rational trier of fact could have found the essential elements of the crime beyond a

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

Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well

as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn.

298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt against a defendant removes the

presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears

the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v.

Evans, 838 S.W.2d 185, 191 (Tenn. 1992). In a criminal action, a conviction will be set aside only

where the reviewing court finds that the "evidence is insufficient to support the finding by the trier

of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). In a jury trial, a guilty verdict,

approved by the trial judge, accredits the testimony of the state's witnesses and resolves all conflicts

in testimony in favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).

"A person commits theft of property if, with intent to deprive the owner of property, the

person knowingly obtains or exercises control over the property without the owner's effective
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consent." Tenn. Code Ann. § 39-14-103. The defendant submits that the only testimony connecting

him to the theft of the Scirocco was Ms. Snapp's assertion that he had been in a white, black, or

silver sports car sometime near August 8 or 9. The defendant further argues that Ms. Snapp admitted

that her reputation for truthfulness was poor and that she feared losing custody of her children when

first questioned by the police.

During his testimony, Mann identified a photograph officers had taken of his vehicle. He

inspected the vehicle after it was located by police on August 10, 1998, and recognized it as the one

stolen some eleven days earlier. Ms. Snapp testified that the car appearing in the photograph of

Mann's vehicle was the same one she saw in the possession of the defendant shortly before his arrest.

It is, of course, the function of the jury to assess the credibility of the witnesses. In this

instance, the jury accredited the testimony of Ms. Snapp. Because Ms. Snapp was with the defendant

at the time he fled from police and crashed his vehicle, her testimony that he had driven the Scirocco

before picking her up in the Yukon was particularly probative. The evidence of the defendant's guilt

satisfies the standard prescribed in Tenn. R. App. P. 13(e) and Jackson v. Virginia, 443 U.S. 307

(1979). Due to the trial court's failure to grant a severance, however, the defendant is entitled to a

new trial on this charge.

III

Finally, the defendant argues that the trial court erred in the imposition of sentence. The

defendant generally complains about the consolidated sentencinghearing in which the defendant was

sentenced for these crimes as well as unrelated aggravated rape and aggravated burglary convictions.

Most of the trial judge's findings of fact deal with the unrelated crimes. As to the "cases unrelated

to the aggravated rape and aggravated burglary," the trial court applied the following enhancement

factors:

(1) The defendant has a prior history of criminal convictions; 

(2) The defendant treated the victim with exceptional cruelty; 

(3) The offense was committed to gratify the defendant's desire for pleasure or

excitement;

(4) The defendant has exhibited an unwillingness to comply with the conditions

of release into the community; and 

(5) The felony offenses were committed while the defendant was on parole.

Tenn. Code Ann. § 40-35-114(1), (5), (7), (8), (13)(b).

The state concedes that neither enhancement factor (5), that the victim was treated with

exceptionally cruelty, nor (7), that the crime was committed to satisfy the defendant's desire for

pleasure or excitement, would be applicable to the offenses at issue and submits that appellate review

must be de novo without a presumption of correctness.
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When there is a challenge to the length, range, or manner of service 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 presumption is "conditioned upon

the affirmative showing in the record that the trial court considered the sentencing principles and all

relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see State v.

Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate factors or

otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v.

Shelton, 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. Tenn. Code

Ann. § 40-35-401, Sentencing Commission Comments.

Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing

hearing; (2) the presentence report; (3) the principles of sentencing and 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 behalf; and (7) the

defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). 

In calculating the sentence for a Class B, C, D, or E felony conviction, the presumptive

sentence is the minimum in the range if there are no enhancement or mitigating factors. Tenn. Code

Ann. § 40-35-210(c). If there are enhancement but no mitigating factors, the trial court may set the

sentence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). 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 must then be reduced within the range by any weight assigned to the mitigating

factors present. Id.

In misdemeanor sentencing, the court is required to provide the defendant with a reasonable

opportunity to be heard as to the length and manner of the sentence. The sentence must be specific

and consistent with the purposes of the Act. Tenn. Code Ann. § 40-35-302(a), (b). Not greater than

75 percent of the sentence should be fixed for service by a misdemeanor offender; however, a DUI

offender may be required to serve the full one hundred percent of his sentence. Tenn. Code Ann.

§ 40-35-302(d); Palmer v. State, 902 S.W.2d 391, 393-94 (Tenn. 1995). In determining the

percentage of the sentence, the court must consider enhancement and mitigating factors as well as

the legislative purposes and principles related to sentencing. Tenn. Code Ann. § 40-35-302(d). The

misdemeanant, unlike the felon, is not entitled to the presumption of a minimum sentence. State v.

Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). Appellate review of misdemeanor

sentencing is de novo with a presumption of correctness. See State v. Troutman, 979 S.W.2d 271

(Tenn. 1998).

Notably, the findings of fact and conclusions of law filed by the trial court dealt primarily

with sentences for aggravated rape and aggravated burglary, both of which occurred on June 20,

1998 and were wholly unrelated to the convictions at issue here. The convictions under indictment
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S41,733 were not individually addressed. Further, certain of the enhancement factors relied upon

by the trial court, as the state concedes, are inapplicable. Under those circumstances, our review

must be de novo without a presumption of correctness. Because a new trial has been ordered on each

of the convictions under indictment S41,774, this court need only address the five convictions under

indictment S41,733: 15 years for theft over $10,000 (Class C felony); six years for felony evading

arrest (Class E felony); six years for reckless endangerment (Class E felony); six months for driving

on a revoked or suspended license (Class B misdemeanor); and 30 days for leaving the scene of an

accident (Class C misdemeanor). Each of the first three sentences are to be served consecutively.

The misdemeanor sentences are to be served concurrently with the felony sentences.

Initially, the defendant does not take issue with either of the two misdemeanor sentences.

Because the terms imposed are to be served concurrently with each other and with the felonies, they

have no bearing on the effective sentence. For the theft conviction, a Class C felony, the defendant

was classified as a range III, persistent offender. Thus, the appropriate range would be 10 to 15

years, with eligibility for release after serving 45%. As to the evading arrest and reckless

endangerment convictions, both Class E felonies, the defendant was classified as a career offender,

making the appropriate range 4 to 6 years, with eligibility for release after service of 60%. The

defendant does not challenge his status as either a persistent or a career offender, see Tenn. Code

Ann. § 40-35-107, -108, but complains about the trial court's application of the enhancement and

mitigating factors. He also contends the trial court should not have classified him as a professional

criminal for consecutive sentencing purposes. See Tenn. Code Ann. § 40-35-115(b)(1).

Our review of the record indicates that at least three enhancement factors are applicable: (1)

the defendant has a previous history of criminal convictions or criminal behavior in addition to those

necessaryto establish the appropriate range; (8) the defendant has a previous history of unwillingness

to comply with the conditions of a sentence involving release in the community; and, as to the three

felonies, (13) the felony was committed while he was on parole. See Tenn. Code Ann. § 40-35-114

(1), (8), (13)(b).

The presentence report reflects that the defendant had a prior criminal record, including some

thirty-five adult convictions and eight juvenile convictions, dating back to 1966. He received prison

sentences for each adult conviction, which included convictions for a variety of theft related

offenses, burglary, and escape from both prison and jail. The state reported convictions in 2001 for

aggravated burglary and aggravated rape. After his arrest, the defendant was returned to the

Department of Correction for a violation of his parole. While awaiting trial on the instant offenses,

the defendant received two disciplinary reprimands.

The defendant, 46 at the time of sentencing, dropped out of high school in the tenth grade and

has not been employed since 1988. While the defendant argues that his conduct neither caused nor

threatened serious bodily injury, it is our view that even if every mitigating factor argued by the

defendant is applicable to each of his crimes, his criminal record is so extensive as to warrant

enhancement of the sentences to the maximum terms.
1

The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony

convictions, may enhance the sentence range but is no longer a listed criterion. See Tenn. Code Ann. § 40-35-115,

Sentencing Commission Comments.

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Our next inquiry is whether the trial court erred by ordering the sentences to be served

consecutively. The state contendsthat consecutive sentencing was appropriate because the defendant

had an extensive record of criminal activity and qualified as a professional criminal. The state has

submitted argument and provided citations of legal authority in support of its claim that the

defendant has an extensive criminal record. It does not provide any supporting argument to its claim

that the defendant qualifies as a professional criminal. See generally State v. Desirey, 909 S.W.2d

20 (Tenn. Crim. App. 1995).

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 offenses involving sexual abuse of minors. There were, however, additional words

of caution:

[C]onsecutive sentences should not routinely be imposed . . . and . . . the aggregate

maximum of consecutive terms must be reasonably related to the severity of the

offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted this cautionary

language. Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments. The 1989 Act is, in

essence, the codification of the holdings in Gray and Taylor; consecutive sentences may be imposed

in the discretion of the trial court only upon a determination that one or more of the following

criteria

1

 exist:

(1) The defendant is a professional criminal who has knowingly devoted himself to

criminal acts as a major source of livelihood;

(2) The defendant is an offender 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 the defendant's criminal conduct has been characterized by a pattern

of repetitive or compulsive behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates little or no

regard for human life, and no hesitation about committing a crime in which the risk

to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses involving sexual

abuse of a minor with consideration of the aggravating circumstances arising from

the relationship between the defendant and victim or victims, the time span of
-13-

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 sentenced for an offense committed while on probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

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

to the seriousness 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).

Because the defendant is an offender whose record of criminal activity is so extensive, he

qualifies for the consecutive sentencingimposed forfelonyevading arrest and reckless endangerment

offenses, regardless of whether the state met its burden of showing he is a "professional criminal."

See Tenn. Code Ann. § 40-35-115(b)(2). Moreover, the defendant's sparse employment history

coupled with the sheer number of his prior convictions supports a determination that he is indeed

a professional criminal. Id. § 40-35-115(b)(1); see Desirey, 909 S.W.2d 20. In our view, the

aggregate term of 27 years imposed for convictions under indictment S41,733 is warranted.

CONCLUSION

The judgments under indictment S41,733 are affirmed, as are the sentences. Because the trial

court should have severed each of the offenses under indictment S41,774, and the error cannot be

classified as harmless, those judgments of conviction must be reversed and the defendant must be

granted a new trial.

___________________________________ 

GARY R. WADE, PRESIDING JUDGE