### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Bri efs December 12, 2001
STATE OF TENNESSEE v. MARK WALK ER Direct Appeal from the Criminal Court for Davidson County

No. 99-D-2673 Carol Soloman, Judge

No. M2001-00341-CCA-R3-CD - F iled July 16, 2002

The defendant was convicted of one count of thef t of property, one

c ount of agg

ravate d assault , two counts of

criminal sim u lation, one count of evading arrest, and one count of possession of drug paraphernalia. The criminal simulation convictions were mer ged by the trial court, and the defendant was sentenced as follows: four y ears for theft of propert

y, four y ea rs for criminal simulation, ten year s for aggrav ated ass ault, and elev en months a nd twenty

nine day s for both evad ing arrest and possession of drug paraphe rnalia. On appeal, the defendant cha llenges the sufficiency

of the evidence t

o support h

is convic tions for t

heft, cr iminal si mula tion, and evading arrest. He also alleges that the trial court failed to exclude f rom e vidence hearsay

testimony and statemen ts to law enf

orcement in violation of his Fifth Amendment rights. Further, the defendant asserts t hat the tr ial cour t erred by f ailing to instruct t

he jury on the les s er- included offense of attempted criminal simulation. Finally, the de fendant ch alleng es the length and
mann er of service of his sentences. After a r eview of the record, we reve rse and dismiss the defendant’s conviction of criminal simulation. The remaining judgmen t s of the trial court are affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part, Reversed and Dismissed in Part

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in w hic h J OE G. R ILEY and J AMES C URWOOD W ITT , J R ., JJ., joined.

Ross E. Alder

man, Distr

ict Public Defend

er, and C arol Dawn Deane r, Assista

nt Public Defender, for the appellant, Mark Walker

. Paul G. Summers , Attorne y General and Repor

ter; John H. Bledsoe , Assi sta nt Attorne y General ; Victor S. (Torry) Johnson I

II , District Attorney Gene ral; and Roger D. Moore, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.-2- OPINION

The defenda

nt, Ma rk Walk er, was indicted for the following offense s: Count One, theft of property with a va

lue of over $500.00; Count Two, evading arrest; Count Four, ag gravated assault by u se or disp lay

of a dea

dly weapon; Count Five , crim inal si mulat

ion; C ount S ix, criminal simulation; and Count Seven, possession of drug paraphernalia. Afte r a jury trial, the defendant was conv icted on all counts. Upon a motion by the def endant, the trial court merged the conv ictions for Counts Fiv e and Six, cr iminal simul ation. The

defenda nt was sen

tenced a s a Range II Multiple O ffende

r as follo ws: four y

ears (4) for

Co unt One, theft of property with a value of over $500.00; eleve n months and twenty-nine day s for Count Two, evading arrest; ten (10) years f

or Count Four, aggrava

ted assault by us e o r d is pl ay of a deadly weapon; four (4) yearsfor Count F

ive/Six, criminal simula tion; and e

leven mon

ths and twe nty-nine day s for CountSeven, possession of drug paraphernalia. The trial court ordered all the sentences to be
serv ed c onsecutively for a n effective sentence of ninetee n years, e leven months and twenty-e ight day s.
The defendant filed a timely motion for new trial, which was denied by the trial court withthe exception of the motion to merge the criminal simulation counts. The d efenda nt filed a tim ely appeal raising the following issues: (1) whether ther e was sufficient evidence to support the defenda

nt’s convictions of

theft of p roperty with a va lue of over $500.00, evading arre st, and criminal simulation (Counts One, Two, an d Five/Six); (2) whether the trial court erred by admitting the defendant’s pre-Miranda statements to law e nforcement, which were n ot disclo sed to the defe

ndant pri or to tria

l; (3) whe

ther the inventor y lis t of stolen

mercha ndise wa s inadmissib le hearsay ; (4) whether the trialco urt erred by refusing to instruct the jury on the lesser-included

offense of attempte d criminal

simulation ; and (5) whether the trial court pr operly sentenced the defendant to t

he maximum in the applicable range for each count to be se rved
co ns ec ut iv el y.
FACTS

Detective Ron Bright, of the Goodlettsville Police Depa rtme nt, testified that he works part-tim e as a sec urity

guard for the D illard’sdepartm ent store located in the Rive

rgate Mall in Goodl ettsvil le. While working at Dillard’s, he observed the defenda nt and another man, Tony Lark, in the men ’s clothing secti on. The tw o men wer e not standing tog ether, but D etectiv e Bright observed them “come together” a nd converse a s i f t he y were together. Detective Bright testified that he was suspicious of the defendant because of the way he

was dres sed. His clothes appeared dirty and g enerally unke pt. He noticed that the defendant was car rying two bags; one
was a plas tic Di llard ’s bag and the other an opaque garment bag similar to those used by dry cleaning businesses. Detective B right observed the defendant take a jacket from one of the clothing racks and conceal it beneath the garment ba g. He radioed the other secur ity officer on duty, Keith Bea

n, for assistance. Shortly after Officer Bea

n arrived, Mr. Lar

k app roa ched Detective Bright and sa id, “I know yo u.” Therea

fter, Mr . Lar

k was ar rested, and Serg eant Be an escor ted him to th

e secur ity office. De te ct iv e B ri gh t t he n a sk ed th e d ef en da nt , w ho wa s a bo ut tw en ty feet a way , to come-3-

ov er and talk with him. The defenda nt complie d, and De

tective B right id

entified him self as a police office

r and sec

urity for Dilla

rd’s. He

asked if th e defendant had receipts for the mercha ndise in his possession. The defendant said that he did and put his hands in his pockets as if he were searching f

or a receipt. Detective Brig ht became uncomfortable when the defe ndant puthis hands in his pockets and instructedthe defenda nt to remov e his hand s from his p ockets. When the defe

ndant did not c omply with the detective’s request, Detective Br ight took a step back and began to reach for hi s serv ice wea pon. H e test ified that t he defe ndant had a s trange expressi on on his face. He told the defenda nt, “I know wha

t you’re up t

o,” and “it isn’t wor

th it.” He advised the defenda nt to take

his hands out of his pockets and go with him to the security office. The defend ant then took his hands out of his pockets and picked up the two bags, w hich h e had p revio usly set down b eside him. He thr ew the bags to wards Detect ive Bri gh t and starting running towards the exit of the store. Detective Bright yelled for the defendant to stop and began to run after him. The defendant did not stop . As he ch ased the defenda nt, Detective Bri ght used his poli ce r adio to callthe Goodlettsville Police for assistance. He gave a description of the defendant over the radioand information on the di rec tion the defendant was running. Outside the mall, Detective Br ight lost sight of the defendant for a few moments but continued to run in the same genera l direction as he had

last seen the defe ndant. Up on running

a li ttle furthe r, he saw the defendant, a police of fi ce r, an d a no th er ma n s ta nd in g t og et he r. Th ey a ppearedto be in a physical strug gle. Detective Bright then observed the defenda nt break loose and the other two men ch ase aft er him. By the time Detective Bright go t to the area, however, the defenda nt had been apprehended by the police officer.

Detective Bright took charge of the defendant, who was already handcu ffe d. He did a search of the defendant’s person, incident to the ar rest, during w

hich he f ound a dr iver’s li cense andso cial security ca

rd bearing the name Way man Cochran. The driver’s license picture wa s the defend ant’s . Dete ctive Brigh t testi fied that he immediately noticed that the identifications d id n ot look right and took his own driver’s license out to compare them. He c oncluded that the identifications were n ot real a nd asked the defendant his name. The defenda nt responded, “You have my identification.” The de tective asked his name again, a nd t he defendant responded, “You have it there, wh at does it s ay ?” The dete ctive sa id , “I know wha

t i t says, I want to know if this is you.” The

defenda nt r efused to ans wer, and the detective told him that he

needed to know if he was Wayman Cochr an, because if he was n ot, then he was guilty of criminal impersonation. T he defendant responded, “That’s me,”and Detective Bright booked him under the name Wayman Cochra n bu t later learned that the defendant’s name was Mark Walker. Detective Brigh

t read the defendant his Mir anda rig hts after placing him ina police car a few minutes later.

Detective Bright also foun d a gl ass item in the defendant’s pocket, which he opined to be
a crack pipe. Although the pipe was not te sted for

drug re sidue, De

tective B right te stified th at, basedupon his experience, it appeared to have been used to smoke c rack cocaine. I

n a dd ition, Detective Bright found cigare tte rolling papers in the def endant’s pocket. Detective Brig ht eventua lly transported the defendant, along with Mr. L ark, back to th e Dillar

d’s store and then t

o the polic e depar

tment.-4-

With regard to the merchandise in the de fendant’s possession when De te ctive Bright approached

him, Dete ctive Br

ight tes ti fi ed that he prepared a list of the items he found in the two bags the defendant was carry ing. He also recorded the pr ice of each item

from t he pri ce tag. During his testimo ny, Detecti ve Brig ht read t he list of items, along with the ir correspo nding price, t o the jury. There

were two men’s shirts, three pair of men’s pants, and two me n’s leather jackets

. The total pri ce for these items was $630.00. According to Detective B right, none of the items had been purchased, and the defe ndant did not have p ermis sion to hav e the item s concealed in his possession. Sergeant Keith Bean, of the Sumner County Sheriff’s Department, testified tha t he also works as a s ec ur it y off

icer for Dillard’s department store. He testified tha t Detective Bright radioedfor assistance in o bser ving two shoplifting suspects in the men’s department of the store. Sergeant Bean went to the men ’s department where h e observ ed prima

rily Mr. L ark. Shor

tly thereafter, he observed Mr. Lar k conceal an item of

m erchandise. He approached Mr . Lark and askedhim about the merchandise in his possession. At the same time, Detective Brig ht was standing nearby que stioni ng th e defendant. Mr. La rk was cooperative and accompanied Sergeant Bean to the security

office located within the store. Sergea nt Bean testified that he became concerned when Detective B right and the defe ndant did n ot come to the security of fice after a few minutes. However, he later learned what had happened when he called the Goodletts villePolice Department to inquire abou t Detective Bright’s wherea bouts. Sergeant Bean did not observe the defendant conc eal any me rchandise or run from the store.

The vict im of the ag grava ted assa ult, William Sa

unders, t estified that he wa s traveling to O’Charley’ s restaurant, near the Riverga te Mall, with his wife and two c hild ren when he saw the defendant run pa st th eir van and in front of the vehic le ahea d of th em. Hi s wife was dr ivin g an d
came to a stop when the vehicle in front of them stopped for the defendant. The victim did not
see Officer Bright chasing the defendant or know why the defendant was run ning, bu t the victim got out of his van and began to watch the defe ndant. The def

endant ran behind some bus hes. The victim wa s standing in the roa

dway when a po lice ca

r approa ched with

its blue lig

hts activa ted. The victim did not know if the police officer was looking for the de fendant ; however , he waved to the police car and pointed towards the def endant in t he bushes. The police officer pulled his car over and stopped. Then, the defenda nt ran o ut of the b ushes and punched the victim i n the fac e. The vi ctim gra bbed the d

efenda nt by the shirt a

nd tried to

hold him u ntil th e police officer could get to them. The police off icer got out of the car and approache d the two
men. The defendant broke free f rom the victim and ran . The police off icer and the victim ran after the defendan t. The poli ce officer spray ed the defendant with “freeze” as he ran, and the vi ctim eventually tac

kled the defendant. The police officer the n handcuffed the defendant and placed him under arrest.

The victim noti ced that

there wa s blood on h

is shirt and discove

red that his face hadbeen cut. Although he did not see any thing in the defenda

nt’s h and at the time, the defendant appare ntly cut the victim’s face when he hit him. Testimony by the police officer reve aled that th e defendant used a box cutter to cut the victim. The victim did not feel that he had been cu t but requi red around a hund

red stitches to his le

ft chee k as a re sult of the

cut.-5-

Officer Brian Harris, of the Goodlettsville Police Depa rtment, tes tified that he was on patrol in his police car near the mall where Det ective Bright was working when he heard Detective Bright on his radio. Although Detective B right’s radio transmission was not clear, Officer Harris could tell that he was running and assumed tha t he was chasing someone near the mall. Officer Harris testified that he a cti vated his lights and siren and drove to the exact location givenby D etective

Brig ht over the radi o. As he pu lled into th

e area near O’ Charley ’s resta

urant, he saw the victim standing in the roadway pointing towards some shrubs.

Officer Harris pulled his car to a stop and saw the def endant run out of the shrubs towards the victim. The victim put his hands out and pushed the defendant to a stop. Office r Harris then saw the defendant strike the victim in the face. He noticed that the d ef

endant did not punch the victim

“straig ht with [his] f

is t” but, instead, punched in “a slashing-ty pe motion.” However, he did not see anything in the defendant’s hand. Off ice r Harris ran to the defendant
a nd sprayed him with peppe r spray to subdue him. The de fendant immediately dr

opp e d something that Officer Harris at the time believed to be a cigarette lighter. The de fendant ran
aw ay, and Officer Harris chased a fter him spraying

him severa l tim es with pepper spray . Officer Harris also shout

ed for the defendant to g et on the g round. Th

e defendant wasu na ffected by the pepper spray at fir st but eventually came to a stop. Officer Har

ris reho ls tered his pepper spray
so that he could handcuff the defendant, but befor e he could, the victim tackled the defendant andknocked

him to the g

round. Of

ficer H arris jum

ped on the

defenda nt’s back and p laced handcuf fs on him.

As he was handcuffing the defe ndant, he noticed blood on the victim’s shi rt. Wh en he looked at the victim’s face, he saw that it had been cut and had a “gaping wound” on the left cheek. He immediately beg an to administer first aid to the victim. Remem bering that he had
seen the defendant drop something, Officer Harris returned to the area where th e defendant firs t struckt he victim to look for a weapon. He found a gr een box cutter lying on the grou nd. It wa s the same color and shape as the object he pre viously thought was a cigarette lighter.
ANALYSIS

I. Sufficiency of

Evidence

The defendant contests the sufficiency of t he evidence to support his convictions for theft of property with a va

lue of over $500.00, evading arre st, and criminal simulation. When an accused challenges the

sufficie ncy of the evidence, an appellate cou rt’s st andard of

review i s whethe r, after considering the evidence in the light most favorable to the prosecution, an y rational trier of

fact could have f

ound the e ssential e

lements of

the crime

bey ond a rea sonable doubt. Jackson v. Virg inia , 443 U.S. 3 07, 324, 61 L. Ed . 2d 560, 99S. Ct. 2781 ( 1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1 985); Tenn. R . App. P. 13 (e). Th is rul e appl ies to findi ngs of guilt based upon direct evidence, circumstantial e vidence, or a combination of both dire ct an d circumstantial evidence.-6-

I n determ inin g the su ffici ency of the evide nce, t his C ourt s houl d not re-wei gh o r re-eva luate the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. C rim. App. 1990). Nor may this Court s ubstitute its infere nces for those dra

wn by the trier of fact f rom th e evidence. Stat e v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999); Liak as v. Sta te , 1 99 Tenn. 298, 286 S .W .2d 856, 859 (Tenn. 1956) . Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all fa ctual issues raised by the

evidence are res olved by the trier of fact. Liakas , 286 S.W.2d at 859. This Court must afford the prevailing party the stronge st legitima te view of

the evide

nce con tained in the rec ord, as w ell as all re aso nable infer ences whi ch may be dr awn from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Likewise, should the reviewing court find particular conflicts in the trial testimony , the court must resolve them in favor of the jury verdict or trial court

judgment. Stat e v. Tug gle , 639 6S.W.2d 913, 914 (Tenn. 1982). Becaus e a ve rdict of guilt against a defenda nt removes the presu mpt ion of innocence and raises a presumption of g uilt, the convicted criminal defendant bears the burden of showin g th at the evidence w as lega lly insuffic ient to sust

ain a gu ilty verdict

. Id.

A. Theft

of Proper

ty
The de fendant alleges there is insufficient evide nce to establish that he exercised con tro l
over Dillard’ s mercha

ndise without the ow ner’s effectiv e consen t becaus e he nev er attem

pted to leave the store with the merchandise. We disagr ee.
The State wasrequire d to prove that th e defendant, “with intent to deprive the owner of pr op er ty, . . . knowingly obtain[ed] or exercise[d] contro l over the property without the owner’s effectiveconsent.” Tenn. Code Ann. § 39-14-103. Theft of property is a Clas s E felony if the propert y is valued over $500 .0 0, but less than $1,000.00. Tenn. Code Ann. § 39-14-105. The proof at trial revealed that Detective Br ight observed the defendan t take a jacket from the rack and conc eal it under a plastic bag similar to those used by dry clea

ning establishment s

. Ad di ti on al ly, the defen dant was carry ing another opaque plastic bag w hich appeared to have mercha ndise inside of i t. When Detective Bright confronted the de fendant, the defendant threw the b ags on the floor and ran out of the store. A se arch of the two bags revea led stor e merchandise worth $630.00, which had not been purcha sed. According to the defendant, his control ov er the merc handise while inside the store was withthe owner’s consent. He argue s that by opening its doors for bus iness, “D ill ard’s effec tively

consents to the public exercising some control over the mercha ndise.” Moreover, “should a patron inappropriately handle the merchandise,” consent must be expressly revoked. In addition, the defendant points out that he could have b een, b ut was not, indicted under Tennessee Code Annotated se ction 39- 14-146(a ), which providesthat “a p erson co mmit s theft o f propert y if such pers o n, with the intent to deprive a merchant of the stated price . . . conc eals the mercha ndise . . . .” Based upon our review of the record, howev er, we conclude that ther e is sufficient evidence that the defendant committed theft of pr operty as indicted. Viewing the evidence in the light most favorable to the State, the defe ndant’s inte nt to deprive the owne

r, Dillar d’s, of the merch andise w as estab lished by evidenc e that t

he defendan t-7-

conce aled mer chandise, which he had not purchased, in plastic shopping ba gs and claimed that he h ad a receipt for the merchandise w hen confronted by

security per sonnel. Such evidence w a s also sufficient to establish that the defendant exerc i sed control over the merchandise without the owner’s consent. Furthermore, the d efendant’s flight from Detective Bright is additional evidence of his guilt. Were we to accept the defenda nt’s argum ent , a patron could conceal mercha ndise under his or her own clothing and wa lk around in side the store with the owner’s consent. Common sens e dictate s t hat a re tail store ’s effective co nsent to ha ndle mer chandise does not extend to concealing merchandise for the purpose of stealing it. The defendant committed theft of property the moment he exercised con trol over t he merchandise by concealing it in the two plast ic bags with the in tent to de prive the owner of

it. This issu e is without me

rit.

B. Evad ing Arr est
The defenda

nt contends that the

re is insuf

ficient e vidence to est ab lish that he evaded arrest fro m De tective Bright because, at the time the de fendant fled, Detective Brig ht did not have probable

cause to arrest h im, and he did

not know th at Detective Bri ght wasattempting to arrest him. We disagree. Tennessee Code Annotated section 39-16-60 3(a)(1 ) states t hat “it is unlawful for any pe

r son to intentionally flee by any means of

locomotion from anyone the person knows to be a l aw enfo rceme nt officer if the person: (A) Knows the office r is attempting to arrest the person; or (B) Has been arrested.” However, it is a def ense that the attempted

arres t was unlawful. Tenn. Code An n. § 39-16 -603(a)(2). Officer B right testified at trial that he observed the defendant take merchandise from the r ack and conceal it in a bag that he wa s carrying. Detective Bright approac hed the defendant and informed hi m that he was a police officer. When Detective Bright asked the def endant if he had a rece ipt for th e merchandise he
was carry ing, the defendant indi ca ted that he did and put his hands in his pockets. Detective Bright asked the

defenda nt to remov e his hand s from his pockets and to accompany Detective Bright to the security off

ice. The defendant responded by grabbing the mercha

ndise, th rowing it towards Detective Bright, and then running out of t he store. As he ran from the store, Detective Bright ordered the def

endant tost op and then ran after him. However, the de fendant continued to run fr om Detective Bri ght until apprehe nded for cibly by O fficer

Harris a nd Mr. Saunders. Contrary to the defendant’s assertion, Detective Br ight had probable cause to arre st the defendant before he fled bec a use Detective Bright had direct evidence that the defendant was concealing merch andise which he had not purchased. Detective B right observed the defendant take mercha ndise off

th e rack and conceal it. When questioned by Detective Bright, the defendant indicated that he had a receipt for the mer chandise. H owever, Detective Brig ht’s testimonyrevealed that he observed the defe ndant continuo u sly from the time the defe ndant concealed the merchandise u

ntil Dete ctive Br

ight con fronte d him about it. Therefore, Detective Bright knew tha t the def endant di d not have

a rece ipt for the mercha ndise whic

h he observe d the defendant conceal. In fa

ct, Detective Bright testified that he knew “what was going on” and that he “had probable cause to detain and que stion [the defendant] about the merchandise.”

There is also sufficient evidenceto establish that the defendant knew that Detective Bright was attempting to arrest him. Detective Brig ht informed the defend ant that he was a-8-

police officer and asked the defenda nt to remov e his h ands from his pockets and accompany Detective Bright to the security office. T he defe ndant immediately fled, ignored Detective Bright’s instructi ons to stop, and continued to ru n from De

te ctive Bright until he was apprehe nded by another office r. This iss ue is without merit.

C. Criminal Simulation

The defend an t alleges that there is insufficient evidence to support his conviction for criminal simu lati on. Speci fically , the def endant a sserts tha

t the offe nse of cr iminal simul ation is notintended to prohibit ind ividua ls from disguising his or her identity but rather is a quasi-theft offens e intended to “prohibit individuals from reaping undue financial g ain through the use o f counter feit objects. ” T he defendant argues, ther efore, that his conduct did not establish the essential elements of criminal simulation. Here, we agr ee.
The indictments for cri min al simulat ion alleg ed that the defendant inte ntionally possessed a driver ’s licens e and soc ial secu rity card, “ which ha

d been ma

de oraltered

so as to appe ar to have va

lue and a uthentic ity b ased on so

urce tha t it does no t have, w ith the inte nt t o sell, pa ss, o r utter the object and thereby defraud or harm the State of Tennessee and the government

of Davidson County.” T he defendant was convicted of two separ ate offenses: one for possession of the dri ver’s license and one for possession of the social sec urity card. U

pon motion by

the defe ndant, the trial cou rt merg ed the two

convicti ons. The criminal simulation statute provides, in relevant part, (a) A pe rson comm

its an off ense of c riminal sim

ulation who: (1) With int

ent to def raud or h arm anot

her: (A) Makes or

alt ers an ob

ject, in w hole or in part, so t hat it appears to have value because o f age, an ti qu it y, r ar it y, source, or author ship that it does not ha

ve; (B) Possesses an object so m ade or altered, with intent to sell, pass, or otherwise utter it; or (C) Authenticates or certifi es an object so made or altered as g enui ne or

as dif fere nt fr om wha t it is[ .] Tenn. Code Ann. § 39-14 -115. In a ddition, su

bpart (c ) of the s tatute pr

ovides tha

t the offe nse “is punishabl e a s theft pursuant to § 39-14- 105, but in no event sh all crimin al simulat ion be les s than a Class E felony.”Tenn. Code Ann. § 39-14-115(c).

The ev idence presented in support of the criminal simulation charges consisted of testimonyby D etective

Brigh t and admi ssion of the driver ’s l i cense and social security card. Detective Bright testified that he conducted a sea rch of the de fendant ’s perso n inciden t to his arrest and found what appeared to be a Tenne ssee driver’s license and a social sec urity card in the de fendant’s billfold. Both documents bore the name Way man Cochran, and the driver’ s lic ense picture was the d

efenda nt. Detective Bri ght test ified tha t he quick

ly d iscerned th at th e doc uments wer e not authentic. When Detective Bright asked the defendant his name, the defendant said, “You have it.” Detective Brig ht then told the defendant, “If y ou’re lying

to me,-9-

tell me if this is you or this isn’ t you. That’s criminal impersona tion.” According to Detective Bright, the defendant replied, “That’s me.”

A ccording to the def

endant, h is conduc t clearl

y su pports a c onviction

for crim

in a l impersonation, a Class B misdemeanor, but does not support a conviction f or criminal simulation, a minimum Cla ss E fel ony . We first note that th e crimina l simulation

statute is codified as an “offe nse ag ainst pro perty .” I n contra st, the cr

iminal impe

rsonatio n statute i s codifiedas an “offense aga inst administration of government” and provides: “(a) A pe rson commi ts criminal impersonation who, with the intent to injure or defraud another person: (1)
assumes a false identity[.]” Tenn. Code Ann. § 39-16- 301. S i milarly, Tennessee Code Annotatedsection 39-16-303 prohibits using a fal se identification “for the purpose of obtaining goods, service s, or privilegesto which [a] pers on is not o therw ise en titl ed or el igibl e[.] ” Usin g a false identification is a Class C misdemeanor.

The offense of criminalsim ulation is not applicable to the facts of this case because the false iden tif ications possessed by the def endant do not have the ty pe of value contemplated by the statute. See State v. Odom , 64 S.W .3d 370 ( Tenn. Crim. App. 2001) (criminal simulation conviction based u pon po ssession of a check which had been altered to appear to have a value of $250,000.00); St at e v . G ri gs by, No. E2000-00924- C CA- R3 -CD ,20 01 T enn . C rim . Ap p. LE XIS 579 (T enn. Crim. App. at Knoxville, January 25, 2001) (criminal simulation conviction based on defendant’s possessio n of coun terfeit sunglas ses, bag s, and he at transf er logo s); S ta te v. McConnell , NO. 03C01-9604-CC-00148, 1998 Tenn. Crim. App. L EXIS 238 (Tenn. Crim. App. at K noxville, February 24, 1998) ( criminal simulation conviction based on defendant ’ s possession of $630.00 in counter feit money). While we acknowl edge th at the defendant clearly intendedto defraud D e tective B right by indicating that the identif ications w ere aut

hentic, t his conduct is specifically addr

essed in the criminal impersonation statute. Tenn. Cod e Ann. § 39- 16-301; See State v. Brooks , 909 S.W.2d 854, 859 (Tenn. Crim. App. 19 95) (hold in g that defendant’s intentiona

l mis represen tation of h is identity

to police

office rs is suff

icient to estab lis h criminal

imperson ation). “The most ba sic princ iple of sta tutory construction is to ascert ainand giv e effe ct to the legislativ e intent without unduly r est ri cting o r exp andin g a statute’s coverage bey

ond its intended scope.” Owens v. State , 908 S. W.2d 923, 926 (Tenn. 1995). We conclu de that to construe the criminal simula

tion statut

e to inclu de condu ct, which is expressly codifie d elsewhere in ou r crimina l code, w ould unduly

expand its c overag e beyond its intendedscope, w

hich is to p

rohibit the

ft by fraudul ently

passing counter feit objects . The defendant’s conviction for criminal simulation is reversed and dismissed.

II

. Motion to Sup

press
After Detecti ve Brig

ht testified, the defe

ndant mad

e a motion

to suppre ss his state

ments to De te ct iv e B ri gh t c on ce rn in g h is id en ti ty, all eging that the statements violated his Miranda rig hts. We first note that the defendant’s motion was untimely pursuant to Rule 12(b)(3) of the Tennessee Rules of Cr

iminal Proc edure, w

hich req uires th at a “moti o n to suppress evidence” be raisedprior to trial. State v. Davidson , 606 S.W.2d 293, 295 ( Tenn. Crim. App. 198 0). “Prio r to trial” means sometime earlier than the day of the trial. State v. Hamilton , 628 S.W.2d 742, 7 4 4 (Tenn. Crim. App. 1981); Tenn. R. Crim. P. 12, n.3. The failure to pursue a motionto supp ress-10-

“prior to trial”constitute s waiv er unless good cause is shown for the failure to move for suppression in a timely manner. Te nn. R. Crim. P . 12(f); Hamilton , 628 S.W.2d at 744; Davidson , 606 S.W.2d at 295.

The defendant alleges that his motion should not be treated as waived be cause his failure to fil e the motion in a t

imely fashion w as due to t

he State’ s failure

to disclose

the state ment to the defense , despite

his discov ery

request . We agr

ee. The defenda nt filed a discover y r equest seeking “t he su bs ta nc e o f a ny oral st atements made by the defendant and intended to be used as evidence in [the State’s] case-in-chief . . . .” The State’s written response to the request was “no ne know n at this time.” Rule 12(d) expressly require s the State to, when requested by the defenda nt, give notice of its intention to use evidenc e at tria l in order to “aff ord [the de

fendant ]
an opportuni

ty to move to sup

press evidence u

nder subd

ivision (b) (3) of th

is rule.” T enn. R. Crim. P . 12(d)(1). Because the State fa iled to disclose its intention to use the defendant’s stat ementas substantive evidence of the criminal simulation charge , the defendant was prevented from filing a motion tosuppress the statement prior to trial. Accordingly , Rule 12(d) does not bar our consideration of this issue.

The defenda

nt alle ges t

hat his sta

tements to

Detecti ve Brig

ht conce rning hi s identity should be suppressed because they were elicited during custodial interrog ation prior to the defendant being a dvise d of h is Miranda rights. Detective Brig ht’s testimony revealed that after t he defendant was handcuffed and a rrested by O fficer Harris, Detective B right searc hed th e defendant’s person and found a driv er’s license and social security card bearing the name of Wayman Co ch ra n. De te ct iv e B ri gh t q ui ck ly r ealized t hat the identifications were false and askedthe defendant hi s name. The defendant would not answer directly, despite Detective Bri ght’s rep eated r

equests f

or his nam

e. I nstead, t he defe ndant sai d “y ou have my identifica tion,” and “you ha ve it,” and “y ou tell me.” Detective Bright then told the defe nda nt , “If you’re lying to me, tell me if this is y ou or this isn’t you. That’s criminal impersonation.” A t that point, the defendant finally rep lied, “That’s me.” Detective Brig ht admitted that the defendant was not advised of his Miranda rights prior to the c onversation about his identity.

The Fifth Amend ment p rotect ion aga inst self- incri minat ion “p rivil ege s a person not to
answer officia l question s put to him in any procee ding, c ivil or cr

iminal, where the answers might incrimina

te him i n futu re criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed. 2d 409 (1984). I n fact, the statements of an accused made during the course of custodial interrogation are inadmissible as evidence un less the Sta te establishes that the accus ed wa s advised of certain constitutional rights, commonly referred to as Miranda rights, and waived those rights. State v. Anderson , 937 S.W.2d 851, 853 (Tenn. 1996).

The instant defendant was unquestionably in cus tody at

the time the challenged statemen ts were made to Detective Brig ht. H e had been ha

ndcuffed and sea

rched incident to

his arrest by O fficer

Harris. Theref

ore, we must deter

mine whet

her the d efenda nt was sub

jected to interrogation

while he w as in custody . The United Stated Supreme Court has recognized a routine booking exception to the Miranda requirement, “which exempts from Miranda’ s coverag e questions to secure the ‘biographical data necessary to complete booking or pretrial services.’” Pennsy

lvania v. Muniz , 496 U.S. 5 82, 601, 11 0 S. Ct. 2638, 2650, 110 L. Ed. 2d 528,-11-

552 (1990 ) (cit ing th e brief for th e Unit ed St ates as Amicu s Curi ae, qu otin g U.S. v. Horton , 873 F.2d180, 181 n.2 (8th Cir. 1989)). However, the exception only applies where the questions were not designed to elicit incriminating information. Muniz , 496 U.S. at 602 n14.

We note th at there was no contemporaneous objection to Detective B right’s testimony during d irect exa

mi nation. We

further note that the challenged

testimony

came in r

esponse t o defense counsel’s question during cross-examination, and, again, there was no objection. The objecti on was not ra

ised until a

fter the completio n of the of

ficer’ s testimony , after

his excusa

l a s a witness, and after a reces s. See State v. Leach , 684 S.W.2d 655, 658 (Tenn. Crim. App. 1984) (requiring a contem

poraneo us object ion to cha

llenge d testimony ; objectio n comi ng after the witness’s testimony deemed too late)

. On these merits, the a dmissibility of this evidence presents a ver y close question. Regar dless, even if the issue is not waived and even if the trial court erred in allowing admission of the evidence, the error would have no e ffect in this appeal. We have already co nc luded the defendant was erroneously

convicted of criminal simulation. Accor dingly, def endant has secured appropriate relief.

II I. Admissibility o f Merch andise L ist

The defendant asserts that Detect ive Bright was erroneously permitted to read the list he prepared containing a description of the merchandise in the defenda nt’s possession and the price of each ite m. Specif

ically , the def

endant a sserts tha

t th e c ontents o f the list are hearsay and do not fall under any

of the recognized hearsay exceptions.

We are unable to determine from the r ecord t hat the testimony of Detective Bright includedhearsay

evidence. In our vie

w, the information in the list, including the prices stated on the price tags, would not have been hea rsay had the

witness merely testified t o this information from his perso nal rec ollection of handling the me

rchand ise conta

ined in the

defenda nt’s bag s. As such, he

would hav e been te stify ing to inf

ormatio n he personally per ceived. Thus, we conclude th at th e information imparted during D etective

Brigh t’s testimo ny w as not inna tely hearsay

. We note that the list itself was not admitted into evidence, and we are unable to discern fr om th e r ec or d t ha t h e s im pl y re ad fr om th e l is t d ur in g h is te st im on y.
Ac co rd in gl y, we must de termine w

hether t h e witn ess’s re

ferenc e to the lis t, as oppos ed to testifying from his memory of a f irst-hand perception, created a he ar say problem. Ha d he injectedthe list into

the trial throu gh his testimony, we would likely find that it was hearsay

- a “stateme nt, other than one m ade by the decl arant wh

ile testif ying at the

trial . . . , offered in evidence to prove the t

ruth of the matter asserted.” See Tenn. R. Evid. 801(c) (definition of hearsay ); Id. 802 (declaring hearsay inadmissible except as provided in the rules of evidence); Id. 803(5) (

providing an except

ion to the r

ule of ina

dmissibility

of he ar sa y e vidence when the evidence is “a memorandum or record concer ning a matter about which a witness once had knowl edge but now has insufficient recollection to enable the witness to testify fully and
ac cu ra te ly, shown to have been mad e or adopted b y the witness when the ma tter was fresh in the witne ss’s me mo ry a nd to reflect that knowledge correctly”). Howe ver, from our review of the1 W e assume from the tenor of the defen dant’s obje ction that he raised a R ule 612 issue and that, becau se

the li st was a pparent

ly never read n or in trodu ced i nto e viden ce, t he t ria l cou rt pr oceeded u nder Rul e 612.
-12- record, we conclude that the lis t was not itself evidence. The witness was asked to describe the items taken from the defendant, and the witness appar ently complied. We see n o indication that he was reading the list into ev id ence, and neither party offered the list as an exhibit to the witness’s te stimony. See id. 803(5) (memorandum must be offered by the adverse party

to be recei ved as an exhibit). Thus, we conclude that the list was not “offered in evidence ” and, th er efor e, wa s n ot he ar sa y.
Co ns eq ue nt ly, we discern that the issue presented b y the defend ant is not a hearsay issue butmerely

a witness ’s use of

“a writing while

testifying to re f

resh memory f

or the purpose of testifying.” Id. 612. A Rule 612 use of a writing does not raise hears ay concerns. State v. Stanley Law so n , No. 0 1C01-9607-CR-00320, 1997 Tenn. Crim. App. LEXI S 1068, at *20 (Tenn. Cri m. App., N ashville, Oct. 24, 1997). The advisory commission comments to Rule 612 state, “Only if a witness’ s memory require s refreshing should a writing be used b y the witness.” See Tenn. R. Evi d. 612, ad vi so ry c om m’ n c om me nt s. “T he di re ct ex am in er sh ou ld la y a foundation for necessity , show the witness the writing, take ba ck the wr iting, a nd ask the

witness to testify from ref

reshed memory .” Id. Rule 612. does not presc

ribe who must autho

r the writing or t

he sourc e of the w

riting. Rule 612 applies to any writing used to refresh a witness’s memory , irrespective of who prepared the writing, when it was pre pared, or whether the witness has ever
seen the writing until the moment of testimony. The w r iting used to refr

esh memory need not be admissible and the best evidence rule, R ule 10 02, is inapplicable. Statev. Price , 46 S.W.3d 785, 813-14 (Tenn. Crim. App. 2 000) (quoting Ne il P. Cohen, et al, Tennessee Law

of Evidence § 612.2 at 402 (3d ed. 1995)).

In the present case, the trial court err ed in a pplying Rule 612. 1 The State failed to establish the witness’s need to refresh his memory , a nd the pro secutor did not “take back” the list before allowing the witness to testify with refreshed memory

. See Price , 46 S.W.3d at 814; State v. Dishman , 915 S.W.2d 458, 461 (Tenn. Crim. App. 1995).

Neverth eless, we conclude that the erro r was harmless. See Tenn. R. Crim. P. 52(a); Price , 46 S.W.3d a t 814; St ate v. Ron ald Mitche ll , No.0201-9702-CC-00070, slip op. at 10 (Tenn. Crim. App. Jackson, Se pt. 1997); Dishman , 915 S.W.2d at 4 61. The information on the list, especi ally the price inf ormation, was detailed enough that a need to re fresh the witness’s recollectionwas pr obable, yet, the list was short, and a brief reference to the list could have easily prompted the witness to testify withou t further reference to the list. Moreover , had the trial court sustai ned aRule 612 ob jection, the State

could hav e elect

ed to admit the list int

o evidence pursuant to the hea rsay excep tion set fo

rth in Evid

ence Rul e 803(5) . We believe it could have ea sily

met t he admiss ion requirement; the proof shows that the list was prepared by the witness when “the matter was fresh in the witness’s memory .” Thus, even though the price-13-

information may have been instrumental in establishing the value of the stolen items, we do not believe that the tr

ial cour t’s erro r affe cted the

result of the trial

. IV. Sentence A. Length of Sentenc e
The defenda

nt was sen

te nced as a R ange II

multiple offender to the maximum sentence in the range for each of

his convictions, ordered to be s erved co nsecutively. He a sserts that the trial court misapplied o ne or more enh an ce me nt fa ct or s f or ea ch co nv ic ti on an d f ai le d t o a pp ly a
m itigating factor. However, the defenda nt concedes that at least two enhancement factors wer e proper lyapp lied to each conviction. Notwithstanding, he argue s that his sentences were excessive. We disagree.

When there is a challenge to the leng th or manner of service of a sentence, thi s Court conductsa de novo

review with a pre sumpti on that th e determinations made by the trial court are
correct. Tenn. Cod

e Ann. § 40 -35-401( d). This pr esumption

is “co nditioned upon the affirmative showing in the record that the trial court considered the sentencing pr inciples a nd all relevant facts and circumstances.” St ate v. A shby , 823 S.W.2d 1 66, 169 (Tenn. 1991 ); see State
v. Jones , 883 S.W.2d 597 (Tenn. 1994). “If the trial court applies inappropriate factors or otherwis e fails to follow the 1989 Se ntencing Act, the presumption of correctne ss falls.” State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In conducting a de novo review of a se ntence, this Court must cons ider (1) the e vidence, if any, recei ved at the tr ial an d sent encin g hearin g; (2) the p rese ntence report; (3) the principles of sentencing and the argume nts of counsel relative to sente ncing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhan cing fact ors; (6) any state ments made by the defendant in his own be h alf; and (7) the defendant’s potential for re habilitation or treatme nt. Tenn. Code Ann . §§ 40-35 -102, -10 3, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

Based upon our review of the record, we c onclude that the trial court improperly applied enhancement

factors bas ed upon finding s not suppor ted by the evide

nce. The refore , we will conduct a de novo review of each se ntence with no presumption of correctness.

1. Theft of Property Sentence

The defenda

nt was sen

tenced t o four y ears asa Range

II mu lti ple offender for the theft of propert y conviction. Theft of property with a value over five-hundred $500.00, but less th an $1,000.00, is a Cl as s E felony . The pre sumptive se ntence f or a ClassE felony

is the minimu

m in the applicabl e range, which is two y ears for a Range I

I offender. Te

nn. Code Ann. § 40 -35-210(c ). If enhance ment or mitigating factors exist, a trial court should start at the presumptive sentence, enhance the sentence within the range for enhanceme nt fa ctors, and then reduce the se nt ence within the range for the mitiga ting factors. Tenn. Code Ann. § 40-35-210(e).-14-

In sentenc ing the instant defendant to four y ears, th e maximum in th

e appli cable ran ge, the t rial court applied four enhancement factors and no mitigating factors. The defendant do e s notchallenge the t

rial cou rt’s app lic ation of enhancement factor (1), the de fendant has a previous history of criminal con victio ns and be havior; ( 9), the de

fendant possesse d or emplo ye d a dead ly weapon; and (13), the defendant committed a f el on y w hile on probation. Tenn. Code Ann. §§ 40-35-114(1), (9), (13). However, the defenda nt does challenge the application of enhanc ement factor (2), the defenda

nt was a leade r i n a n o ff

en se in vo lv in g m or e t ha n o ne ac to r. Sp ec if ic al ly, the defendant contends that there was no evidenc e that he was a l eader in the offense. We agr ee.
The trial cour t found tha t “it is obvi ous from [th

e defendant’s] actions that h e . . . wasa leader, and he was not going to obey the authority

of the security g

uards to come forward, and he
on his own chose to run during the commission of the offense.” I n the instant case, we fail to see how the defendant’s failure to obey au th or it y and flight from the store is pertinent to the determination of whether he wa s a leader. Although Detective Br ight testified that he believed the defenda

nt and Mr. Lar

k were to gether

based on his observa

tions, the rec ord does not contain any evidence about the defendant’s actionsin the preparation for or during the commission of the offense

that demo nstratest hat he w as a leader in any way. I n fact, there is insufficient evidence to establi sh that the defendant and Mr. La rk were acting in concer t to commit one crime. Theref

ore, the trial cou

rt erre d when it a

pplied en hanceme nt f actor (2 ). However, because the trial court’s application of the three remaining enhancement factors are supported by the record and should be given gr eat weight, we affirm the imposition of the maximum sentence of fo ur yea rs fo r t he th ef

t o f p ro pe rt y.
2. Aggravated Assault Sentence

The defe nda nt was sentenced to ten years as a Range I I multiple offender for the aggra vated as sault conviction. Aggravated assa ult is a Class C felony and carr ies a sentence range of six to ten years for a Range II offender. Tenn. Code Ann. §§ 40-35-118; -112(b)(3)

. The p resu mptive sentence for a Class C felony is the minimum in the applicable range. Tenn. Code Ann. § 40-35-210(c). The trial court enhanced the defendant’s sentence to ten y ears by apply ing four enhanc ement fa

ctors and no mitig ating f

actors.
The defenda

nt does not

challenge the t

rial cou rt’s app lication o f enhanc ement fa ctor (1), the defendan t h as a previous history of criminal convictions and behavior; and (13) the felony
was committed while the defendant was on probation. Tenn. Code Ann. §§ 40 -35-114( 1); (13). However, he argues that the trial court err ed by apply

ing factor ( 6 ), the personal injuries inflicted upon the victim were particularly great; and (10), the defenda nt had no hesitation about committing a crime when the risk to human life was high. Tenn. Code Ann. §§ 40- 35-114( 6) ; (10).

With res pect to factor (6), the defendant asse rts that there is insufficient evidence t o establish that the victim’s injuries were “particularly great.” We agree. The trial court f ound that the victim was “permanently scarred,” required

“possibl y 142 stitches,” suffe red “nerve damage in his chee

k and [is] u na ble to smile like he did prior to the injury.” Our r eview of the record reveal s th at the vic tim was the only witness to testify about the extent of his injury. The-15-

victim testified that he had a large lace ration on his left cheek and had a few small lace rat i ons on his chest. H e indica

ted that he did

n ot feel th

e cut whe n it was ma

de or suf fer any pain fro m it, butdid require around one hundred stitches altoge the r. He a lso testif

ied that a lthough h e has to shave to see it, t

here is a scar on h

is cheek w hich does not cause him any residual pain. The record is de vo id of

an y e vi dence that the victim has any type of ner

ve damage as a result of the injury.

Based

on t he vi ctim’s te stimony , we conc lude that factor (6) was e

rroneou sly

applied t o enhan ce the defen dant’s conviction. Proof of serious bodily injury will always constitute proof of particularly

great in jury

. State v. Jones , 883 S.W.2d 5 97, 602 (Tenn. 1994 ). “Seri ous bodily in ju ry” means bodily injury which involves a substantial risk of death ; protracted
unconsc iousness; extreme physical pain; protra cted or obvious disfigurement; or protract ed lo ss or substantial impairment of a function of a bodily member, organ, or mental faculty

. Id. Alth ough the vic tim did t estify that he has a scar on his cheek as a result of the injury inflicted by the defendant, there is no evidence of “ protracted or obvious disfigurement.” See State v. Barnes , 95 4 S.W.2 d 760, 763 (Tenn. Crim. App. 1997) (holding that evidence of the existence of
a scar while establishing disfigurement does not establish ob vio us or protracted disfigurement). In fact, it ap pear s from his testimony that he wear s a beard on the area where the scar is located and would have to shave his face in order for the scar to be visible.

The defenda

nt also as serts tha

t the tria l court e rred by apply ing enh anceme

nt facto r(10), because it is an element of aggravated assault. We agree. The defenda nt was indicted and convictedof aggravated

assaul t by use of a de adly wea pon. This Court has previously held that whenever an offense is committed with a deadly weapon, it is inherent within the offense that there was a high risk to human life. State v. H

ill , 885 S.W.2d 357, 363 (Tenn. Crim. App. 1994); Tenn. Code Ann. § 40-35-114(10). Thus, enhancement factor (10) is inapplicable to the pr esent offense. State v. Cl aybrooks , 910 S.W.2d 8 68, 872-7 3 (Tenn. Crim. App. 1994); Hill , 885 S.W.2d at 36 3; State v. Hicks , 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993).

In sum, the trial court properly applied enhancement

fac tors (1) and (13) but misapplied factors (6) and ( 10) to the aggr avated a ssa

u lt convic tion. Howe

ver, we do not conclude tha

t a reduction in the defendant’s sentence is required, bec ause we place grea tweig ht on the defendant’s lengthy histor y of criminal c onduct and the fact that he w as on prob ation at th e time the offense was committed.

3. Misdemeanor Sentences

The defenda

nt was sen

tenced t o eleven mo nths and twenty-nine da ys at seventy

-five percent for the evading arrest and possession of drug paraphernalia c onvictions, both of which
are misdemea nor s. In itially, we note that the trial cour t has more flexibility in misdemeanor
sen te ncing than in felony sentencing. State v. Troutman , 979 S.W.2d 271, 273 (Tenn. 1998). For example, unlike the proc edure f or felony sente

ncing, a misdemeanant is not entitled to a presumption of the minimum sentence. State v. Crea sy , 88 5 S.W.2d 829, 832 (Tenn. Crim. App. 1994). Further

more, al though th e trial c ourt must a

pply the enha ncing a nd mitiga ting fa ctors in calculating the pe rcenta ge of th e sent ence to be serv ed in c onfin ement , it n eed no t plac e find ings-16-

of fac t on the record. Rather, the court must only avoid arbitrarily imposing incarceration. Tenn. Code Ann. § 40-35-3 02; Troutman, 979 S.W.2d at 273-74.

The record reflect s that th e trial c ourt appl ied enha ncement factor s (1), (9 ), and (1 3) to bothof the misdemeanor convictions. Although we ag ree with the defendant

that factor (13) is inapplic able

to misdemeanor convictions beca use t he plain l angua

ge of th e statute refer s only

to
a felony committed while on pr obation, we conclude that the remaining enhance ment factors are sufficient to justify the sentenc e.
In sum, we hold that the trial court cor rectly applied enhancement factors (1), (9), a nd (13), but misapplied enhancement factor (2) to the theft conviction. The trial cou rt corre ctly appli edenhan cement factor s (1) an d (13) , but misap plied factor s (6) an d (10) to th e agg ravate d assault conviction. The trial court correctly applied enhancement fa ctors (1) an d (9) to the defendant’s convictions for evadi ng arr est and possession of drug paraphernalia, but misapplied factor (13). In addit ion, the de fendan t argues that f or all of the convi ction s exc ept agg r avated assault, th e trial cour t erred by refusing to consider in mitigation that the defendant’s c onduct neither caused nor

threat ened serious bodily injury

. See Tenn. Code Ann. § 40-35-113(1). Based upon our de novo review, we conclude t ha t mitigating factor (1), that the defenda nt neither caused nor threatened serious bodily injury, applies to almost ev e ry crime tha t is not classifiedas an offense against persons. T herefore, if applic able, thi s factor would be e

ntitled to little wei ght.

In af fi rm in g t he se nt en ce s i mp os ed by t he trial court, we recognize that the mere number of enhancement and

mitigati ng factors is not r elevant . Ins tead, “t

he importa

nt conside

ration [is] the w eight t o be given each factor in lig ht of its relevance to the defendant’s persona l circumstances and background and the c ircumstances surrounding his criminal conduct.” State
v. Ha yes , 899 S .W.2d 175, 186 (Tenn. Crim. App. 1995). In the instant case, we conclude that the applica

ble enha ncement f actors so “firmly embedded the sentence[s] in the ceiling” that the sentences imp osed wer e approp riate no twithstanding the presenc e of any

mitigating factors. Statev. Braden , No. 01C01-9610-CC-0 0457, 199 8 Ten n. Crim. App . LE

XI S 213, 1998 W

L 85285, at *7 (Tenn. Crim. App. Feb. 18, 1998).

B. Consecutive Sentences

The defenda

nt asser ts that the

trial cou rt erre d by

ordering his sen

te nces to be served
co ns ec ut iv el y. We disagree. The same standard of r ev iew app lies w hethe r ther e is a ch allen ge to the length of a sentence or to the manner of service of a sentence. Tenn. Code Ann. § 40-3 5-401(d). The trial court imposed consecutive sentences based on a finding that the defendant is “a persistent and dangerous offe nder who has little or no regard for human life

. . . and that he committed the offense while on probation.”

Tennessee Code A nnotated section 4 0-35-115 states tha t the tria l court ma

y imp ose consecutive sentences upon a defendant conv icted of mu lt ip le cr im in al of

fe ns es if it fi nd s b y a p reponderan ce of the evidence that the defendant falls into one of se ven categories. A trial court
ma y imposeconsecutive sentences if the “defenda nt is sentenced for an offense while on-17-

probation.” Tenn. Code Ann. § 40-35-115(b)(6). A court may also impose consecutive sentences if the defendant “is a danger ous offender whose behavior indicates little or no reg ard for human life a nd no h esita tion about commi ttin g a c rime in wh

ich the r isk to huma

n life is high.” Tenn. Code Ann. § 40-35-115(b)(4). However, be fo re a defendan t may

be sente nced as a “dangero us” offende

r, the tri al court

must find th at the “te

rms impose d are re asonably related to the severity of the of

fenses committed a nd are necessary in order to protect the public from further c riminal acts by the off

ender.” State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995). Furth ermore, the leng

th of the s entence , when co nsecutiv e in natur e, must alw ay s be “just

ly deser ved in relation to the seriousness of the offense,” Tenn. Code Ann. § 40-35- 102(1), and “no greater than that deserved” under the circumstance s, Tenn. Code Ann. § 4 0-35-103(2). State v. Lane , 3 S.W.3d 456 (Tenn. 1999). Althoug h the trial court did not make the required findings for c onsecutive sentencing basedon the dangerous offender s tatus, w e conclu de that c onsecuti ve sente ncing w as appro

priate basedsolely

on the def

endant’ s probati on status. Only one of the

factor s enumer

ated in Tennessee Code Annotated section 40-35-115( b) need be proven to support a consecutive sentence. Becau se there

is amp le eviden ce to establish that the defendant was on probation at the time the in stant off

ense s we re committed, consecutive sentencing was a ppropriate. Tenn. Code Ann. § 40-35-115(b)(6).
CONCLUSION

Basedu pon our review of the record, we c onclude that there is sufficient evidence t o support the defe ndant’ s convi ctions of theft of property and evading arrest. Howeve r, we conclude that the d

efenda nt was er roneousl y indicted f

or crimin al si mu la ti on , a Cl as s E fe lo ny, rather than criminal impersonation, a Class B misdemeanor. Beca use there is insufficient eviden ce t o establish all of the essential elements, we reverse and dismiss the defe ndant’s conviction of crimin al simu la tion. As a r esult, we need not d

etermine the defe ndant’s c laim regarding the trial court’sfailure

to instruct t he jury on the offe nse of attempted criminal simulation or the al lege d error in admitting the defendant’s pre- Miranda statements to Detective Bright about his i dentity . We concl ude that D etect ive Bright’s inventory list of stolen mercha ndise was improperly use d under Tennessee Rule of Evidence 612 bec a use t he proper found ation had n ot been laid but that the error was nevertheless har mless. Based upon our de
novo review of the defendant ’s sente nces, we conclude that the trial court corre ctly applied enhancement

factors (1), (9), and (13), but misapplied enhanc ement factor (2) to the theft
con viction. The tria

l court c orrect

ly a pplied en hanceme nt facto rs (1) a nd (13), but misappli e d factors (6) and ( 10) to the aggr avated a ssa

ult convic ti on. The trial court also correctly applied enhancement

factors (1) and (9) to the defenda nt’s convictions for evading arrest and possession of drug pa rapher nalia, bu t misa pplied f actor (13). Notwithstanding the misapplication of enhancement

factors, we conclude that the length of the sentences imposed by the tri al court
were not excessive given the great weig ht of the applicable enhan cement f actors. Furthermore, th e t ri al co ur t d id no t e rr by o rd er in g t ha t t he de fe nd an t’ s s en te nc es be se rv ed co ns ec ut iv el y.
Ac co rd in gl y, we aff

irm the convictions for theft of property over $500.00 in value, aggravated

assaul t, eva ding arrest, and possession of drug par aphernalia. We further affirm the-18-

sentences of four y ears for theft, ten yea rs for aggrava

ted assault, eleven months and twenty -nine da ys for eva

ding ar rest, and ele ven month s and twenty-nine da ys for possession of drug paraphernalia, all to run consecutively, f or a total effective sentence of f ifteen ye ars, eleven months and

twenty -eight

day s.

_________________________________ JOHN EVERETT WILL

IAMS, JUDGE