### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ugus t 4, 200 9 S es sio n

STA TE OF TEN NES SEE v. CO REY ESHM ON

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 05-02948 Jame s M. Lamme y, Jr., Judge

No. W2008-00109-C CA-R 3-CD - Filed September 23, 2009

The de fenda nt, Corey Eshmon, was convicted by a Shelby County jury of one count of a ggravated robbery, a Class B f

elony; two counts of aggr avate d assault, a Class C felony; and one count of thef t of prope rty under $500, a

Class A misdemeanor. The trial c ourt sentenc ed him as a Range I off ender
to e igh t ye ars fo r the a gg ra vate d r ob be ry c on vic tio n, thr e e ye ars fo r e a c h o f the a gg ra vate d a ssa ult convictions, and e leven months, twenty-nine days for the theft convic tion. Fi nding the defe ndant to be a da ngerous of

fende r, the c ourt order ed that the robbery se ntence run conse cutively to one of the assault sente nces, f

or an e ffe ctive sente nce of eleve n year s in the Department of Correction. In

a timely a ppeal to this court, the defe ndant raises the following issues: ( 1) whether th e t ri al court

err ed in denying his motion to sup p re s s wi t n ess identifica tions; (2) whether the evidenc e wa s sufficie nt to sustain the convictions; and (3) whe ther t h e trial court err ed in orde ring consec utive
sentenc ing. Foll owing our re view, we aff irm the judgments of the trial court.

Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Cr iminal Cou rt A ffirm ed

A LA N E. G LE NN , J., delivere d the opi nion of the c ourt, in which J OHN E VERET T W I L L I AMS a ndJ. C. M C L IN , JJ., joined.

Ma rt y B. Mc Af

e e a ndVi c ki M . Ca

rrike r ( on app e a l) ; a ndEd wa rdBr on sto n ( a t tria l) , M e mph is, Tenne ssee, f

or the a ppellant, Corey Eshmon.

Rob e rt E. Coo pe r, Jr
., At torne y G e ne ra l a ndRe po rt e r; Ra c he l E . W ill is, As sis ta nt A tto rn e y G e ne ra l; William L. Gibbons, D istrict A ttorney Gene ral; and Gre g Gilbert and David Zak, Assistant District Attorneys Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

FA CT S

During the ve ry ea

rly morning hours of J an u ar y 2

, 2005, Edwar d Castor, Andre a Butler, Melanie Butler, a nd Jennifer Wiles we re stopped in Castor’ s Chevrolet pickup truck at a re d light at a Me mphis int erse ction when a man wea ring a hooded sweatshirt jumped out of the pa ssenger sideBecaus e t hes e t w o vi ct i m s s hare t he s am e l as t nam e, w e w i l l

, f or s i m pl i ci t y’s s ake, per i od i cal l y re f er t o t hem 1

in th is o p in io n b y th e ir firs t n a m e s o n ly . W e in te n d n o d isre sp e c t i n d o in g so

.
-2- of a Mitsubishi sedan, placed a gun to driver Andrea Butler’s head, and demanded the truck. As the victims we re exiting the truck, the man struck Wiles in the hea d with his pist ol, appar ently anger ed beca us e s h e w a s n o t mo v in g f a s t e n o u g h

. H e th e n f

le d in th e tr

u c k

, in th e p r o c e s s taking Andre a Butler’s purse c ontaining $150 in cash and Castor’s ce ll phone. A fe w hours later , Castor identified the handc uffe d defe ndant s itting in the backseat of a squad c ar a s the man who ha d place d the gun to Andrea Butler’s hea d and stolen Castor’s truc k. Later that same da y, Castor, Wiles, and sister s Andre a and Me lanie Butler eac h identified the de fenda nt from a photogra phic ar ray the y wer e 1
separ ately shown by the police

.

The defe ndant and a codef endant, Pre ntice Pleas, we re indicte d together f or the a ggravated robberies of Andr ea Butler and Edwar d Cas t o r an d t he def endant wa s indicted alone f or the
aggra vated a ssaults of Melanie Butler a nd Jennifer Wiles. At the conclusion of t heir joi nt trial, the de fe nd a nt w a s c on vic te d o f the a gg ra va te d r ob be ry of Ca sto r an d the a gg ra vate d ass a ult s of M e la nie Butler and Wiles. For count one of the indictment, which cha rged him with the aggr avate d robbery of An dr e a But le r, the jury co nv ic te d the de fe nd a nt of the le sse r- inc lud e d o ff

e ns e of the ft of pr op e rt y under $500. Plea s was convic ted of thef t of property unde r $500 and the ft of prope rty over $10,000.

Suppr e ssi on H e ar ing

Prior to trial, the defe ndant moved to suppr ess the witness identifications, arguing that the sh ow up pr oc e du rewa s impe rm iss ibl y sug ge sti ve a ndtaint e d th e la te r p ho tog ra ph ic ide nti fi c a tio ns

. He f urther a rgued that the photographic ide ntif ic ations were in themse lves impermissibly suggestive beca use Castor desc ribed t h e ro b b er as h aving gold teeth and he was the only one of the six men pictured w ith his m outh open.

At the hea ring on the m otion to suppress, S helby C ounty Sheriff’s D eputy Matthew K eaton testified that at ap p ro x imately 4:00 a.m. on January 2, 2005, he and his pa rtner, O ffice r Michae l Hoar d, initiated a traf

fic stop of a

blue C hevrole t pickup t ruck with expire d tags that was tra veling southbound on Highway 51 in Millingt on. They a ctiv at ed their blue lights as they passe d Navy Road, but the driver , whom he later identified as the defe ndant, did not immediately stop. Instead, he moved into t he right lane, then into the l eft turn lane, then back into the right lane bef ore pulling into the parking lot of the Days Inn l ocate d at Highway 51 and B abe Howar d, wher e he jumped from the vehicle and began running northbound on Highway 51.

Offic er Keaton testified that he exited his squad c ar a nd pursued the de fenda nt on foot to the

are a of Na vy Roa d, wh e re the de fe nd a nt f ina lly sto pp e d r

un nin g a ndwa s ta

ke n into c us tod y. He sa id he later learned that a se cond individual had fle d from the pa ssenger side of the pickup tr

uck at the
same t im e a s th e d e f

e n d a n t. A f

te r O f f ic e r K e a to n d e te r mi n e d th a t th e d e f e n d a n t w a s n o t the register ed owne r of the tr uck, another officer contacte d the owner and lea rned tha t the vehicle ha d been stolen. O ffice r Ke aton stated that the handcuffe d defe ndant was sitti ng in the back of hi s squad-3-

car while he wa s completing his paper work when the registered owner arrived at the sce ne to identify the truck.

On cr oss-exa mination, Office r Ke aton t es t i fi ed that he re mained with the def endant at the ho te l pa rking lot fo r app ro xim a te ly a n ho ur a nd a ha lf to t wo ho ur s b e fo re tr a ns po rt ing him to j a il. He a cknowledge d that the def endant wa s the only handcuf fed individual at the sc ene d uring that time.

Edwar d Castor testified t hat on Janua ry 2, 2005, he, his girlfriend, Andre a Butler, Andr ea’ s sister, Melanie, and a friend, Jennife r Wiles, we re stopped in his 1999 blu e, t h re e- d o o r Chevrole t Silverado pickup truc k at the re d light at Macon and N ational when the d ef en d an t t ook the truck from them by holding a gun to A ndrea ’s fac e. Castor made a positive c ourtroom identifica tion of the def endant a s the man who ha d taken his truck and said that Andre a was driving at the time, he was in the fr ont passenger seat, a nd Melanie and Wiles were in the back passenge r seats. He state d that just before the robb er y , An drea had turne d to him and commented that the individuals in the next vehicle wer e looking at his truck. By the time she t urned ba ck ar ound, the def endant ha d place d a gun to her

fac e through the open driver’ s window. The de fenda nt was we aring a hooded swe atshirt bu t ma de no a tte mpt

to c on c e a l hi s f

a c e , a ndCa sto r was able t o s e e that he ha d a go ld “ gr ill ”

covering at least six of his top teeth.

Castor testified that the defe ndant cocke d his gun, threa tened to shoot And re a i f C ast or moved, and kept his gun trained on her as she exited the vehicle and went ar ound to the passenge r side. Acc ording to Castor, he sat a nd watche d the def endant f or appr oximately three minutes before he rea lized that he had to ge t out and open his door to let Melanie and Wiles out of the backse at. He said that the defendant ordere d the gi rls to “get the f uck out” be fore he shot someone, a ccuse d them of taking too long, and hit Wiles in the head with his pistol as she was e xiting. The defe ndant then took off in the truc k, driving in the same dire ction as the ve hicle in wh i ch he had be en riding, a Mitsubis hi sedan, whic h departed the sce ne just befor e him.

Castor testified that t he poli ce a rrived to take a re port at appr oximately 2:30 a.m. and that he spent the next hour and a ha l f “l o o k i n g fo r [his] truc k.” The next time he saw it was at

app ro xim a te ly 5 :00 a .m. wh e n h e , h is bro th er, and his fathe r, the re gis te re d o wn e r, we nt t o Milli ngton to identify it where it had be en re cover ed. While the re, a n officer as k ed him if the individual in the backseat of a squad c ar w as t h e m an who had pointed the gun at his girlfriend’s head. Ca stor said that it was almost daylight at the time and t h at h e i m m ed iately re cognize d the defe ndant by hi s fac e. He explained that he remembere d him clea rly beca use onl y a couple of hours

earlier he ha d watche d him hold a pistol to his girlfriend’ s head. He did not know i f t he def endant

wa s h a nd c uf

fe d at th e tim e he ide nti fi e d him

. No ne of the girls a c c omp a nie d h im t o M ill ing ton to identify the truck.

The ne xt day Castor, Melanie

, An d re a, and W iles drove togethe r to the robbe ry bure au, wh e re the y g a ve the ir

state me nts to p oli c e

. Th e y we re in a larg e , lo ng ro om c on ta ini ng ma ny de sk s,

we re se pa rate d a nd int e rv ie we d ind ivi du a lly

, a nd we re un able to he ar e a c h other ’s c on ve rs a tio ns

. The girls we re a cross the r oom from him when he ide ntified the def endant f ro m t h e si x-per son photographic a

rray, and he ne ver ta lked to them about which photogra ph he had c hosen.-4-

On c ro ss- e xa min a tio n, Ca sto r e sti ma te d th a t th e ro bb e ry oc c ur re d a t app ro xim a te ly 1 :30 a .m. He said that Andre a was driving because she wa s pregna nt and had not had anything to drink. Wiles had not had a nything to drink either, but both he and Melanie had had some gin and juice about two hours ea rlier. He identified the de fenda nt in the squad car by his face , not his teeth, as he did not see any gold teeth an d did not think t he def endant e ven had his mouth open at the time. He

a c kn ow le dg e d th a t th e de fe nd a nt wa s the on ly one of the six ind ivi du a ls p ic tur e d in the ph oto gr aph ic

arr ay whose teeth we re visible but said he “ just picked who [he ] re membere d.”

Upon questioning by the trial court, Castor testified that he ha d been pr ese n t ea rl i er i n the hallway outside the courtroom with A ndrea

, Melanie, a nd Wiles whe n the def endant c alled Andr ea a “ho” and a “ bitch” and a sked if any of them wo rk ed at B u rlington Coat Factory. He state d that Me la nie a sk e d th e de fe nd a nt i f h e we re a sta lke r, a nd the de fe nd a nt re pli e d that he ha d h is s ou rc e s.
Melanie Butler positively identified the de fenda nt as the m an who place d a gun to her sister’ s head during the robbery, which she e stimated occur red be tween 2:00 a nd 2:15 a.m. S he said that she had had le ss than a pint of gin and tonic a nd that Castor had ha d a couple of drinks, but neither he r sister, who wa s eight and a ha lf months pregnant, nor W iles, who wa s only seventee n, had bee n drinking

. Th e de fe nd a nt wa s dr e sse d in a bla c k h oo de d s we a tsh irt, h a d g oldte e th, a ndwo re his ha ir

“ a ll t wi ste d u p[ .] ” Th e y we re wa iti ng a t a re d lig ht wh e n An dr e a tol d the m that a ma n in the ve hic le beside them ha d been looking at the tr uck’s rims and had ju s t re ache d under the seat. W hen the witness looked over , the defendant was getting out of the vehicle and wa s “right at the window be fore [she] could eve n blink [her] eyes.”

The witness testified that she neve r t ook her eyes off the def endant during the entire e pisode, which s h e es timated lasted appr oximately three minutes. She expresse d her c onfidenc e in her ide nti fi c a tio n, te sti fy ing that sh e wo uldne ve r f or ge t hi s f

a c e :

I could see him the whole time, but when the door open ed

, t h e light came on in the truck, a nd I got a plain look at his fac e, and I’ll never forget his fac e as long a s I live beca use I thought he wa s going to shoot m y sister. He he ld the gun this fa r from her head, and she turned her fac e so that way he wouldn’t shoot her in the fa ce in c ase he was to like pull the gun. And . . . as soon a s he put the gun to her he ad, whe n she wa s trying to get out of the tuck bec ause he was like, “Ge t out of the truck, get out of the truck,” and whe n she wa s trying to get out, . . . she tried to put the truck up in par k, and the truc k jumped a littl e bit like it wa s going to take off, and

. . . he looked right

a t a ll o f u s in the truc k, a ndhe sa id, “ If yo u mo ve th is tr uck ” -- an d I do n’ t w a nt t o cuss, but he said, you know, “ I’m gonna f uckin’ kill you.”

The witness testified that she di d not go to the s cene of the de fenda nt’s arr est. The ne xt day, howeve r, she, Andr ea, W iles and Castor we nt downtown together to give their stateme nts to poli ce. She said they we re se parated and taken to diffe rent a rea s of a lar ge room with appr oximately twentyfive de sks divided by cubicles, so that she w as unable to s ee o r h ea r t he other s as she ga ve her statement. She wa s then taken into a small off ice, whe re she was shown sever al photographic arr ays from which she positively identified the defe ndant as the gunman who had stolen Castor’s t ruck. She identified her

signature a nd writing on the phot ographic arr ay, which showed that her identification-5-

of the de fenda nt occur

red at 1:10 p.m. on January 2, 2005. She said that she and the others we re ke pt separ ate during the proce dure a nd instructed not to talk to eac h other about which photogra phs they had chose n.

Th e wi tne ss d e sc ri be d h e r e arl ie r e nc ou nte r w ith the defe nd ant out sid e the c ou rt ro om, testifying that her sister ha d “ca sually leane d over” and said to the group, “There he is[,]” ref erring to the defe ndant. She stated that the de fend an t o v er h ea rd and jumped up, sa ying, “That a in’t me. That ain’t me. Y ou all trying to pull stuff. That ain’t me.” The defenda nt then called them “eve ry dirty name that he could think of” be fore saying, “W ell, one of you all works at Burlington. I’ve got my sources - - I’ ve got my source s.” The w itness explained that she was upset beca use Wiles used to work at Burlington Coat Factory, so she scr eame d at the def endant, “ What a

re you, some kind of stalker[ ?]”

On cr oss-exa mination, she testified that there wer e st ree t lights on eac h of t he four corne rs of the intersec tion of Macon a nd National and that she could see the def endant’ s fac e “pla in as day.” The de fenda nt was we aring a hooded swe atshirt, but it was not pulled all the way ove r his head a nd she could see that he had his “ hair up in like little twists .” He also had a gold, pop-out grill covering his fr on t te e th. She sa id sh e de sc ri be d the de fe nd a nt in he r state me nt a s app ro xim a te ly 5' 9" or 5' 10 ", but she was not very good at est imating heights. S he testified that she did not get out of the truck until a minute or two after her sister exited beca

use Castor initially re fused to budge, w hich blocked her w ay out. Whe n asked if she was c erta in of her ide ntification of the defe ndant, she replied: “ I’ m not certain; I’m positive -- a hundred pe rce nt positi ve. I’ ll never f orget his fac e as long as I live. I stared right into i t with a pistol i n his hand. I know. I’m never going to forget it.” Finally, she testified that could not see anyone’s teeth in the phot ographic arr ay she was shown and that none of the men picture d wore his hair in twists.

At the conclusion of t he hearing, t he trial c ourt conc luded that the photogra phic sprea dsheet

wa s n ot u nd uly su gg e sti ve , n oti ng , a mon g o the r thin gs , th a t th e six me n p ic tur ed were si mi lar in
appea ranc e and that it wa s impossibl e to te ll whe ther the de fenda nt had gold teeth in the photogra ph. The c ourt furthe r conc luded t hat t he showup identification was admissible and did not taint the later photographic ide ntifications, noting that it took place within “a rea sonably short period of time” afte r the robbe ry, wa s made by an individual who had “spent sever al minutes staring down the ba rre l of the gu n, ” a ndoc c ur

re d und e r ci rc ums ta nc e s in whic h it wa s re a so na ble fo r the po lic e , w ho we re sti ll in the ini tia l inve sti gatory pha se of the ro bb e ry , to se e k to e lim inate po ssi ble su sp e c ts. Th e tr ia l c ou rt , there fore , overr

uled the def

endant’ s motion t o suppress the identific ations.

Trial

The State’s f

irst witness at t rial was Melanie Butl er, who essentially re peate d her suppr ession hearing testimony, albeit in greater detail. She said that a gold-c olored, four -door Mitsubishi pull ed up to the l eft of their t ruck and that all four of its occupants began staring at them. She identified the defe ndant in the courtroom as t he man who s tole the truck by e merging fr om the front passe nger se at of the Mitsubishi, placing a gun t o her sist er’ s head, and forcing all of t hem t o get out of the truc k. She stated that she was delaye d in e xiting because the front pa ssenger door had to be opened be fore the thi rd

, “ su ic ide do or ” c ou ld op e n, a nd Ca sto r, wh o did no t wa nt to giv e the truc k u p, in it ial ly-6-

ref used to move. She testified that the de fenda nt took off in the truck w ithout closing t he passe nger doors and that the oc cupants in the Mitsubishi took off after him.

She further testified that she and her companions called 9-1-1 from a payp h o n e a n d gave statements to the police of fice rs who re sponded. She desc ribed the f ormal statement she later ga ve to a ro bb e ry de te c tiv e a nd her iden tif ic a tio n o f the de fe nd a nt f ro m th e ph oto gr aph ic sp re a ds he e t, testifying that during that time Andrea was in a separ ate room behind a c losed door while she , Castor,

a n d W il e s w e r e to g e th e r in o n e la r g e r o o m b u t s e p ar a te d f

r o m e a c h o th e r in d if

f e r e nt are as. She
state d th a t th e de fe nd a nt’ s hoo d w a s w orn s o lo os e ly o n h is h e a d d uring the ro bb e ry that sh e c ou ld see “ everything . . . his whole face , his ea rs -- everything -- like eve ry bit of him -- his hair.” The defe ndant was dr essed in a black hooded swea tshirt and jeans, wore his hair in little twists , and had da rk e ye s, big lip s, a nd te e th that we re go ld “a c ro ss the top .” On c ro ss- e xa min a tio n, sh e re pe a te dly emphasize d that she wa s one hundre d perc ent ce rtain of h er i d en t i fi cation of the defe ndant as the gunman. Whe n presse d, she testified that she chose him f rom the photographic arr ay, despite the fac t that he ha d no twis ts in h is h a ir in the pic tur e a nd

sh e c ou ld n ot r e a lly se e his te e th, “ [b ]e c a us e of his fac e. Bec ause of

his chee k structure and bec ause of his head[,] ” expla ining that “[h]ehad a huge head and fat chee ks.”

An dr e a Butler ’s acco un t of

the ro bb e ry wa s c on sis te nt w ith tho se of Ca sto r andMe la nie But le r. She te sti fi e d tha t she no tic e d a c ar f oll ow ing the ir

truc k s ho rt ly b e fo re the y r e a c he d th e tr a ff ic light, saw a man i n the car reach under his seat when they s topped at the light, turned to tell Castor, and then turne d back to f

ind the man holding a gun to her he ad through the ope n driver’ s window. She stated that there wer e st ree t lights in the are a and that the gunman’s fa ce w as within two inches of he rs

. She de sc ri be d him a s dr e sse d in a bla c k h oo de d s we a tsh irt, a pp ro xim a te ly 5 '1 0" i n h e igh t, dark- s k i n ned, and w ith a wide-se t fac e and gold tee th. She then made a positive courtroom identification of the de fenda nt as the gunman.

She further

testified that when the defe ndant drove off in the truc k, he took with him severa l valuables that she had lef

t inside, including her purse and wallet conta ining $150 in cash and Castor’ s cell phone. She e stimated that the police a rrived thirty minutes af

ter she and her c ompanions called 9-1-1 and that they rema ined at the sce ne almost two hours while they c ompleted their re ports. She described going downtown the next day to give a stateme nt and to vie w photographic a rra ys and her identification of the defe ndant’s photogra ph. When a sked whe ther he had any pa rticular f eatur es that stood out to her, she mentioned his wide-set fa ce and distinctive eyes and sa id that she would neve r forge t his face

.

On cr oss-exa mination, the witness testified that she described the defe ndant t o the pol ice the

same way she desc ribed him in the courtr oom. When shown he r statement to police

, howeve r, she

a c kn ow le dg e d th a t sh e ha d sa id no thi ng in it abo ut his wi de -s e t fa c e a nd ha d re po rt e d a sh orte r h e igh t, describing him as about eighteen year s old, 5'8", 155 pounds, dark to medium complexion, medium twists in hi s hair, gold teeth, a nd wea ring a blac k hooded jac ket and da rk-c olored pa nts.

Much of Edw ard Castor’ s trial testimony mirrore d his earlier suppression hea

ring testimony. He ma de a po sit ive c ou rt

ro om ide nti fi c a tio n of the de fe nd a nt an d ex plaine d that he wa s c on fi de nt i n his ide nti fi c a tio n be c a us e he ha d sa t in his truc k a ndloo ke d a t hi m f or app ro xim a te ly thr e e min ute s.-7-

He said he im mediately recognize d him in the s quad car in Milli ngton and had, in fact, c ommented to h is b ro the r u po n th e ir

arriva l, andbe fo re a ny on e ha d ask e d him if he c ou ld i de nti fy the de fe nd a nt, “I believe that’s the one that car jacke d me right there .” The de fenda nt was dre ssed in a white t-shirt instead of the “ black hoodie” he had w orn during the r obbery, but Castor kne w him by his face

. Castor also desc ribed his identifica tion of the defe ndant from the photogr aphic a rra y. He testified that although the def

endant wor e his hood up during the robbe ry, he did not have it drawn tightly around his face

.

On c ro ss- e xa min a tio n, Ca sto r a c kn ow le dg e d th a t th e of fi c e r in Mil lin gto n w ho a sk e d h im i f he could identify the defe n d ant informed him that the de fenda nt had bee n found in the truck. H e further acknow ledged that he had desc ribed the de fenda nt in his statement t o police as “ a male bla ck

abo ut n ine te e n to tw e nty -t wo ye ars old ,” 5' 10 ", 165 po un ds , with a me diu m c omp le xio n, se ve ra l go ld teeth on the top, and w earing a gra y hooded swe ater

.

Jennifer Wiles provided an acc ount of the robbery that was consistent with those provided by her f riends. She said she got a good look at t h e m an who plac ed the gun to Andr ea’ s head a nd des c r ib e d h im

a s a n in e te e n to tw e n ty

- y e ar

- o ldb la c k ma le w ith “ d ark

, b u t n o t r e a l d ark ” s k in tone

we ari ng a da

rk -c olo re d “ ho od ie ” or lon g- sle e ve d, sw e a te r- lik e ga rm e nt. She state d th a t sh e wa s la st out of the truck and that the gunman hit her in the hea d with an object a s she was ge tting out, s aying, “Ge t the fuck out, bitch.” She did not see the objec t but assumed it was his gun.

Wiles testified that she provided an acc ount of the crime to the police off icer s who responde d to the scene . Later

that day, she, Castor, A ndrea , and Mela nie went downtown to the robbery bur eau, wh e re the y w e re se pa

rate d to giv e the ir state me nts a nd to loo k at p ho tog ra ph s o f s us pe c ts. She sa id she wa s able t o i d enti fy both the gunman a nd the driver of the Mitsubishi. S he identified the
respe ctive spre adshee ts from wh i ch s h e had ma de those identifications and also made positive

c ou rt ro om i de nti fi c a tio ns of the de fe nd a nt as the gu nman an d Pl e a s a s th e drive r o f the Mit su bis hi. On cross-examination, she said she described the def endant in her

statement as a

dark- skinned black male with gold teeth and a dark hoodie over his hea d.

Deputy Matthew Keaton essentially repe ated his suppre ssion hearing testim ony as he described the tra ffic stop that led to the defendant’s arre st. He said that a DUI technicia n was c alled to the scene beca

use the de fenda nt’s breath smelled of alcohol and that he arrived a fter the register ed

owner of the truc k had alr eady de parte d fr o m t h e area . On cr oss-exa mination, he testified that the defe ndant was w earing blue jeans a nd a white hoode d shirt at the time of his arr est.

Deputy La

rry Eme ry of the Shelby County Sheriff’ s Depa rtment testi fi ed that he and othe r office rs, including “a dog c ar,” conducte d an unsuccessful search for the second suspect in the woods wher e he had fled. They then returne d to the hotel parking lot, lea rned that a h o t el k ey h ad been found in the stolen vehicle , went to that room, knocke d, and we re a dmitted by a y oung black man dresse d in his underwea

r, later identified as c odefe ndant Prentice Pleas. T wo n ak ed

, intoxicated women, identified a s Jessica W illiams and Donna Banks, were lying in the bed in the room. P leas inf orme d th e of

fi c e rs that he ha d be e n in the ro om a ll n igh t. D e pu ty E me ry , h ow e ve r, ob se rv e d a pil e of we t muddy clothing on the floor and lea rned f rom Ms. Williams that Plea s had just returned to the room. In addition, he a nd his fellow office rs found in the hotel parking lot a gold ca r matching the-8-

description of the vehicle involved in the r obbery a nd, inside the ca r, a pur se conta ining the identification of one of the robbe ry victims.

Sergea nt Stephen Wilkerson of the M emphis Police Depa rtment, the l ead detective a ssigned to the case , described the photographic identification proc edure employed with the victims, testifying that he used a

computer pr ogram to gene rate photographs of individuals similar in appea ranc e to the defe ndant and then c hose five to inc lude in the photographic spr eadshe et that he a nd Sergea nt Terry Lyons sho wed to the victims one at a time. He expla ined that their photogra phic identifica tion
proce d u re i n cluded having eac h witness rea d and sign an “ advice of rights” form stating that the wi tne ss w a s n ot t o a ssu me that the pe rs on re sp on sib le fo r the c ri me wa s in the gr ou p of p ho tog ra ph s,

n o t to place any importance on the orde r in which the photogra phs appea

red, a nd not to make an identification unless the witness wa s positive that the person wa s responsible for the crime. He state d that the victims were kept sepa rate and not allowed to c ommunicate with eac h other during the
proce ss.

Sergea nt Wilkerson further testified that the defendant tol d him that he had obtained the truck from a f riend na med Jimmy, whom he had known since grade school, and that his girlfriend ow ned

a gold Mitsubishi G alant. The de fenda nt was, howe ver, una ble to provide a ny contac t information for “ Jimmy” and soon there afte r re fused to answ er a ny more que stions.

The de fenda nt electe d not to testify, but called as a witness in his defense his sister, Me kesha Bake r, wh o te sti fi e d th a t sh e ha d n e ve r s e e n h im w ith br a ids , twis ts, c ornr ow s, or dr e a dlo c ks in h is hair. On c ross-examination, Baker testified that the def endant’ s girlfriend, Je ssica Williams, owned

a go ld, fo ur -d oo r c ar andthat the de fe nd a nt ha d a go ld “ po p- ou t” grill that he wo re ov e r s ome of his top teeth.-9- Se nt e nc ing He ar ing

At the No ve mbe r 1 4, 20 07 , s e nte nc ing he ari ng , H e nry T ur le y, a Me mph is re a l e state develope r, testified that the de fenda nt and his father had bee n an integra l p ar t o f h i s properties department for the pa st three a nd a half year s and that he trusted both of the m impli citly, gave them

un re stric te d a c c e ss t o h is p ro pe rt ie s, a ndho pe d to c on tin ue his bu sin e ss r e la tio ns hip wi th the m.

The de fenda nt’s mother, Cora Eshmon, off ere d a letter she had written about the defenda nt to the tri a l c o u r t. I n b o th th e le tt e r a n d h e r te s ti mo n y , s h e d e s c r ib e d h im a s a s e n s it iv e c h ild who regula rly praye d and “c ried until he wa s 12 year s old on the crucifixion of Jesus.” She sa id that the defe ndant had ne ver be en in any trouble

, had no juvenile or criminal record, and had be en wor king two jobs since the age of fiftee n. She expre ssed her belief that alcohol and pe er pr essure had playe d

a maj or rol e in h is i nv olv e me nt i n th e of fe ns e s a nda sk e d th e tr ia l c ou rt to t ake tho se thi ng s in to consideration when imposing the sentence . When questioned about the de fenda nt’s juvenile re cord, which included c harge s for a ssault and disorder ly conduct, she said she did not believe he r son had committed those offe nses.

At the conc lusion of the hearing, the trial court e xpresse d its be lief that “someone who robs

someone at gunpoint and pistol whips someone else is a dange rous offe nder,” but the court c ould not classify the de fenda nt as such bec ause a ll thre e of the re quired c riteria ha d not been met in the c ase. Specifica lly, the court stated that a lthough it found the c ircumstance s surrounding the commission of the offenses to be aggravated and the a ggregate length of a consec utive sentenc e re asonably re lated
to the of fe ns e s, it c ou ld n ot f

indthat c on fi ne me nt f

or a n e xte nd ed peri od of time w a s n e c e ssa ry to protec t society from the de fenda nt’s unwillingness to lea d a productive life and the defe ndant’s re sort to criminal ac tivity i n further ance of an a nti-societal lifestyle. How ever , when the pr osecutor qu e sti on e d th e us e of

tho se c ri te ri a , th e tr ia l c ou rt a gr e e d to de la y it s ruli ng :
If you can show me t hat I’m wrong before I rule -- and I haven’t ruled ye t, but I don’t see how under

those three criteria –

. . . .

. . . I’ m goin g to hold thi s o ve r u nti l to mor ro w f or fu rthe r - - I ha ve to l oo k in to it because the way I rea d the law, I can’ t apply that even though I may want to. I think tha t it’s a tr o c i o u s t h a ts o m e o n e c a n p i s t o l w h i p s o m e o n e , r o b s o m e o n e

. I f r a n kly don’t u n d er stand how the jury c ame ba ck with theft of pr operty unde r $500 whe n

someone wa s forc ed at gunpoint out of a vehicle and things we re taken from her. But that’ s my pe rs on a l vi e w a ndI’ m lo ok ing a t w hat th e la w s a ys . A ndthe way I re a d it

a ndthi s is on ly b e c a us e of the c a se la w that I se e he re that says yo u mu st f indtho se three things.

At the Novembe r 28, 2007, continuation of the hear i ng, the trial court stated that it had

c on c lud e d a ft e r r e se arc hin g th e la w tha t th e “ sta nd ard [se nt encin g] fo rm ” the tr ia l c ou rt s u se d in
sentenc ing was wrong, in that a finding that confineme n t fo r an exte nded period of time was

nece ssary to protec t society from the de fenda nt’s u n wi l l i n g n es s to lead a pr oductive life a nd the-10-

defe ndant’s resort to criminal activity in further ance of an a nti-societal lifestyle wa s not require d for the impositi on of conse cutive sente ncing under the dangerous offender criterion of the statute. The trial court, ther efor e, orde red that th e defe ndant serve his three- year sentenc e for

the aggr avate d

a s s a u lt o f J e n n if

e r W il e s c o n s e c u ti v e ly to h is e ig h t- y e ar s e n te n c e f o r a g g r a v a te d r o b b ery, f

or an

e ff e c tiv e e le ve n- ye ar s e nte nc e in the De pa rt me nt o f C or

re c tio n:

In Count IV of this indictment, he was found guilty as char ged of a ggravated assault of Jennif

er W iles causing bodily injury. He went a bove and be yond that which

was ne cessa

ry to ac complish the aggra vated robbery by striking someone with a pistol wh e n th e y w e re do ing wh a t the y we re tol d. No w, I thin k it wo uldbe un c on sc ion able to run . . . that count conc urre nt with the eight year s. It’s basically a fre e crime.

AN AL YSI S

I. De nia l of

M ot ion to Suppr e ss I de nt if ic at ion s

The de fenda nt first contends that the t rial court err ed in denying hi s motion to suppress the witness identifications. On appea l, a trial court’s findings of fac t rega rding a motion to suppress are conclusive unle ss the evidenc e pre ponderates aga inst them. S tate v. Reid, 213 S

. W.3d 792, 825 (Tenn. 2006) (citing State v. Ross, 49 S.W

. 3 d 8 3 3, 839 (Tenn. 2001) ). Any que stion about the “cr edibility of witnesses, the weight and va lue of the e vidence, an d a re solution of conflicts in the evidenc e ar e matter s entrusted to the t rial j udge as the trier of fac t.” State v. Odom, 928 S.W.2d 18, 23 (T e nn . 1 99 6) . T he pa

rt y p re va ili ng a t th e su pp re ssi onhe ari ng is a ff or de d th e “ str on ge st l e git imate view of the evidenc e and a ll reasona b l e an d l eg i timate infere nces tha t may be dra wn from that evidenc e.” State v. K eith, 978 S.W.2d 861, 864 (Tenn. 1998). Thus, unless the def endant de mon str a te s that “ the e vid e nc e pr e po nd e rate s a ga ins t the jud gme nt of the tr ia l c ou rt , th is c ou rt mus t defe r to the ruling of the tria l court.” Reid, 213 S.W.3d at 825 (c iting S tate v. Cribbs, 967 S.W.2d 77 3, 79 5 ( Te nn . 1 99 8) ). Ho we ve r, the app lic a tio n o f the la w t o th e fa c ts fo un d by th e tr ia l c ou rt is a question of law and is revie wed de novo . See State v. Ye arga n, 958 S.W.2d 626, 629 (Tenn. 1997)

.

Du e pr oc e ss is v iol a te d if a n id e nti fi c a tio n p ro c e du re is: (1 ) u nn e c e ssa ri ly o r i mpe rm iss ibl y suggestive and ( 2) gives rise to a “very substantial likeliho o d o f i rre para ble misidentification.” Simm on s v . U nit e d St a te s, 39 0 U .S. 37 7, 38 4, 88 S. Ct . 9 67 , 9 71 (1 96 8) . I n N e il v

. Big ge rs , 40 9 U .S. 18 8, 19 9, 93 S. Ct . 3 75 , 3 82 (1 97 2) , the Un ite d St a te s Su pr e me Cou rt e sta bli sh e d a tw o- pa rt te st t o determine when a

defe ndan t ’s d u e p rocess rights have be en violated by a pretria l identification. Under this test, the co u rt first consider s whether the identifica tion procedur e itself wa s unduly or

unnece ssarily suggestive. Id. I f the identification procedur e is found to have been s u g g est ive, the

c ou rt ne xt c on sid e rs “ wh e the r un de r the tot a lit y of the c ir c ums ta nc e s th e ide nti fi c a tio n w a s r e lia ble

e ve n th ou gh the c on fr on ta tio n p ro c e du re wa s su gg e sti ve .” Id . ( int e ri or qu otatio ns omi tte d) ; se e a lso Stovall v. Denno, 388 U.S. 293, 302, 87 S. C t. 1967, 1972 (1967) (stating that “a claimed violation of due pr ocess of

law in the conduct of a confr ontation depends on the t otality of the c ircumstance s surrounding it”).

The fa ctors to be c onsidered in e valuating the re liability of an identification obt ained a s part of a sugge stive identi fi ca t i o n p ro cedur e include: ( 1) the opportunity of the w itness to view the-11-

criminal at the time of the crime; (2 ) t h e witness’s degr ee of attention; (3) the a ccur acy of the witness’s prior de scription of the c riminal; (4) the leve l of certainty demonst rate d by the witness at the c on fr on ta tio n; and(5 ) the le ng th o f t ime be tw e e n th e c ri me a ndthe c on fr on ta tio n. Se e Big ge rs , 409 U.S. at 199- 200, 93 S. Ct. at 382. The c orrupting ef fec t of the suggestive proc edure is weighed against these f

actor s. See Manson v. Bra thwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977).

There is, howeve r, no need for the court to apply t he tot ality of t he circumstance s test outlined in Biggers if it first determines that t h e i d entifica tion procedur e itself wa s neither unne cessa rily or impermissibly suggesti ve nor likely to cre ate a substantial likelihood of irrepa rable misidentification. See State v. Biggs, 211 S.W.3d 744, 749 (Tenn. Crim. App. 2006) ( citations omitt ed).

Showup identification proce dures ha ve long bee n considere d to be “inher ently suggestive and

un fai r t o t h e a c c u s e d

. ” S t a t e v

. T h o m a s , 7 8 0 S

. W

. 2 d 3 7 9

, 3 8 1 ( T e n n

. C r i m

. A p p

. 1 98 9) . Fo r t his

rea son, Tennesse e courts ha ve repe atedly condemne d the use of showups as a mea ns of establishing the identity of an individual suspecte d of committing a crime, unless “ (a) there are imperative circ umstances whic h nece ssitate a showup, or (b) the showup occ urs as a n on-the-sc ene inve stigatory
proce dure shortly after the commission of the crime.” Id. (c itations omi tted).

The trial c ourt found that the show u p identification wa s rea sonable a nd reliable under the

c ir c ums ta nc e s, ha vin g b e e n c on du c te d w ith in a fe w h ou rs of

the ro bb e ry wh ile the po lic e we re sti ll in the initial investi gatory stage s and made by an individual who had view ed the de fenda nt fac e-tofa c e wh ile sta

ri ng do wn the ba

rr e l of a gu n. Th e re c or d d oe s n ot p re po nd e rate a ga ins t th e se fi nd ing s. The re cord establishes that the robbery occur red sometime betwee n 1:30 and 2:15 a.m., the def endant was stopped at approximately 4:00 a.m., and Castor identified him sometime around 5:00 a.m. a fter his arriva l in Mil lin gto n to re c la im his t ru c k. Th us , th e ide nti fi c a tio n w a s ma de wi thi n a re la tiv e ly short period of the robbery and very soon after the offic ers who a rre sted the def

endant ha d discovere d that he wa s driving a stolen truck.

Furthermor e, an ana lys is o f the Big ge rs fa c tor s su pp orts the tr ia l c ou rt ’s c on c lus ion that a substantial risk of misidentification did not e xist in this c ase. As for the first fac tor, the def endant wa s

ve ry c los e to the vic tim s a ndma de no a tte mpt s to con c e a l his fa c e . I n a dd iti on , th e are a wa s w e ll- lit by both street lights and the truck’ s interior lights. With respe ct t o the sec ond fac tor, Castor indicated that he paid c lose attention during the robbery, testi fying that he sat a nd stared at the defe ndant’s fa ce for a full three minutes a nd knew him immediately when he saw him in the squad car beca use he ha d watche d him hold a gun to his girlfriend’ s head only a couple of hours earlier. The third fa ctor, the

acc urac y of the witness’s prior description of the criminal, is no t cl ea rl y met, as Castor testified at trial that he c ould not reca ll if he provided the police who re sponded to the s cene with a desc ription of the robbe r. As for

the fourth f

actor , Castor positively and unequivocally identified the de fenda nt

a s th e gu nman, re pe a te dly te sti fy ing a t the su pp re ssi on he ari ng a nd a t tria l tha t he wa s con fi de nt i n his identification. Finally, the identification occur red a pproximat ely three hours af ter the r obbery, while the conf

rontation was still fresh in Castor’s mind. Thus, four of the five Bigger s fac tors support the re liability and accur acy of the identifica tion. Under such circ umstances, we conclude that the trial court did not err

in overruling the de fenda nt’s moti o n t o suppress the r esults of the showup identification.-12-

The de fenda nt also argue s that the trial court e rre d in denying his moti on to suppress the photographic ide ntifications. “Photographs conta ined in a photographic arr ay do not ha ve to mirror the ac cused. I nstead, the la w simply requires that the police refra in from ‘suggestive ide ntification
proce dures.’ ” State v. Ha ll, 976 S.W.2d 121, 153 (Tenn. 1998) (quoting Biggers, 409 U.S. at 196, 93 S. Ct . at 380 (1972)) . Acc ordingly, “a photogra phic identifica tion is admiss ible unless, based upon the totality of the circ umstances, ‘ the conf rontation conducte d . . . was so unnec essarily suggestive and conduc ive to irrepa

rable mistaken identi fi cation that [the acc used] wa s denied due proce ss of law.’” Id. (quoting Stovall, 388 U.S. at 301-02, 87 S. Ct . at 1972). The risk of irre para ble mistaken identification is heightened if one of the photographs in the photogra phic lineup “is in some way emphasize d,” or if “ the police indicate to the witness that they have other e vidence that one of the persons picture d committed the crime.” Simm ons, 390 U.S. at 383, 88 S. Ct . at 971.

The de fenda nt argue s that his photographic array was unduly suggesti ve bec ause he was the only one “that wa s shown with his gold ‘grill’ showing prominently on the photographs.” We a gree with the trial court, however, that it is not clear from the photogra

ph whether

any gold is visible on the de fe nd a nt’ s te e th. W hil e it i s tr ue that th e defend a nt i s th e on ly m a n p ic tur e d w ith his mou th slightl y open, re vealing the lo wer portion of his two upper fr ont teeth, all six men have simil ar features, skin tone, and hair styles. Moreover , the victims were separ ated f or their r espec tive identifications and inst ructe d not to identify anyone unless c erta in of the identification. In sum, we conclude that the trial court did not er r in admitting the results of the victims’ pretrial identifications of the de fe nd a nt.

II. Su fficie ncy of the Evidence

The de fenda nt next challenge s the sufficie ncy of the convicting evidenc e, ar guing that the vic t i m s ’ i n

- c o u r t i d e n t i f

i c a t i o n s o f h i m a s t h e p e rp e tr a t o r w e r e n o t c r e d i b l e g i v e n t he “ un du ly suggestive” photogra

phic lineup and “inher ently unfair” showup that prec eded it. He further argue s that even if

the pre trial identificat i o n s wer e prope r, the victims’ in-court identifications wer e nonethele s s u n re l i ab l e in l ight of the ea rly hour at whic h the robbe ry occ urre d, the fa ct that the victims had been drinking, the “matter of minutes” that ela psed during the e ntire episode, and the fa ct that th e de fe nd a nt w a s d re sse d in a wh ite ho od e d s we a tsh irt a t the tim e of his arr e st w hil e the vic tim s de sc ri be d th e ro bb e r a s h a vin g w orn a da rk “ ho od ie ” ov e r h is h e a d. In a dd iti on , the de fe nd a nt a sse rt s that “it was improper

and unfa irly prejudicial” for the trial court to allow the S t at e t o question the Butler sisters about their ve rbal a ltercation with the de fenda nt outside the courtroom, a s “testimony from the witness to indicate that she was threa tened by the [d]e fenda nt w as only e licited befor e the jury to poison their consideration of the evidenc e.”

When t h es u f f ic iency of the convicting evide nce is c hallenged on a ppeal, the r eleva nt question for the r eviewing c ourt is “whethe r, af ter view ing the evidenc e in the light mos t fa v o rable to the
prosec ution, any rational trier of fac t c ould ha ve found the essential ele ments of the crime beyond a

re a so na ble do ub t.” Ja c ks on v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 81 , 2 789 ( 19 79 ); se e a lso Te nn . R. Ap p. P. 1 3( e ) ( “ Fin din gs of gu ilt in c ri min a l a c tio ns wh e the r b y th e tr ia l c ou rt or jury s ha ll be set a side if the evidence is insufficient to support the findings by the trier of fa ct of guilt beyond

a rea sonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 ( Tenn. 1992); State v. Ande rson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992)

.-13-

All questions involvi ng the cr edibi l i t y of witnesses, the w eight and value to be given the evidenc e, and a ll f

actua l issues are resolved by the trier of fac t. See State v. Pappas, 754 S.W.2d 620, 62 3 ( Te nn . Crim. Ap p. 19 87 ). “ A g uil ty verd ic t by the jury, app ro ve d b y th e tr ia l ju dg e , a c c re dit s the testimony of the wit n esses for the State and r esolves all conf licts in favor of the theory of the Sta te .” Sta te v. Gr a c e , 493 S.W .2 d 474 , 476 (T e nn . 197 3) . O ur su pr e me c ou rt

state d th e ratio na le for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to fac e, hear their testimony and observe the ir demea nor on the
sta nd . T hu s th e tr ia l ju dg e a ndjury a re theprima

ry ins trume nta lit y o f j us tic e to determine the weight and c redibility to be given to the testimony of wit nesses. In the trial forum a lone is there huma n atmo s p h ere and the totality of the e vidence cannot be re pr od uc e d w ith a

writt e n r e c or d in thi s Co urt.

Bolin v. S tate, 219 Te nn. 4, 11, 405 S.W.2d 768, 771 (1966) ( citing Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963))

. A jury co nv ic tio n re mov e s the pr e su mpt ion of inn oc e nc e wi th wh ic h a def e nd a nt i s in iti a lly cloake d and re place s it with one of guilt, so that on appea l, a convicted defendant has the burden of demonstrating that the evide nce is insuffic ient. See State v. Tuggle, 639 S.W.2d 913

, 9 1 4 (Tenn. 1982).

W e c on c lud e that the e vid e nc e wa s mo re than s uf fi c ie nt t o e sta

bli sh the de fe nd a nt’ s id e nti ty in this case. The d ef

en d ant was discove red driving the stolen truck appr oximately two hours af ter the robbe ry occ urre d, did not initially pul l over whe n the sherif f’s de puties initi ated the tr aff ic stop, and fle d on foot down t he highway before he wa s capture d. At the same time, his passenge r esc aped on foot into the near

by woods. A short time later, office rs found a hotel room key in the stolen truc k that led them t o the room wher e they discovere d the underwea r-c lad codefenda nt with a pil e of w et and muddy clothing on the floor a nd two women, one of whom was the de fenda nt’s girlfriend, in the bed. In the parking lot of that same hotel, office rs locate d a ca r matching t h e d es cr i ption of the vehicle involved in the r obbery, w ith victim Andrea Butler’s pur se inside the vehic le. Finally, Castor identified the de fenda nt as the gunman during the i nformal showup proce dure held within a fe w hours of the robbe ry; all four vic tims pi cked his ph o t o g ra p h from the photographic ar rays they w ere

se pa rate ly s ho wn by po lic e la te r that sa me da y; anda ll fou r vic tim s p os iti ve ly andc on fi de ntl y identified him in th e co u rt ro o m as t he gunman. The proof at trial was that only two of the f our victims had been drinking, and there was no e vidence that the amount of a lcohol that those two had consumed pre vented them f rom being able to notice, re late, and identify details about the c rime and the de fe nd a nt’ s app e aranc e

. A vic tim ’s ide nti fi c a tio n of a de fe nd a nt as the pe rp e tr a tor of a n o ff e ns e is, alone, suffic ient to e stablish identity. See State v. Hill, 987 S.W.2d 867, 870 (Tenn. Crim. App. 1998); State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993) . We c onclude, ther efor e, that the e vid e nc e wa s su ff

ic ie nt t o s us ta in the de fe nd a nt’ s c on vic tio ns

.

As for the defe ndant’s cla im that he was pre judiced by the Butler sisters’ testimony that he had thre atene d them outside the courtr oom, we note that ne ither sister provide d the full details of that
encounte r during their testimony be fore the jury. At trial, ea ch sister testified tha t she had identified-14-

the def endant outsi de the courtroom at the t ime of an earlier court hearing. Melanie Butler te stified that afte r her sister pointed out the defendant, the defe ndant replied, “You’ ve got the wrong pe rson, ‘ho -- it ain’t me, ‘ho.” Andre a Butler testified that she pointed out the defe ndant to Castor and that the def endant r eplied, “O h, you’ve got the w rong guy,” w hi ch led to an ar gument. She did not provide a ny details of t hat argument, and neither she nor her sister said a nything about the defe ndant’s ha vin g th re a te ne d th e m.

III . C ons e c ut ive Se nt e nc ing

Finally, the defenda nt c ontends that the trial court’s imposit ion of consec utive sentenc ing was

e rr or be c a us e it “ ma de tw o dis pa rate ru lin gs on the natur e of the [d ]e fe nd a nt a nd wh e the r h e wa s a ‘d a ng e ro us offe nd e r. ’” He fu rthe r a rg ue s th a t th e re c or d d oe s n ot s up po rt a fi nd ing that he wa s a danger ous offe nder.

Tenne ssee Code A nnotated se ct i o n 4 0 -35-115(b) provides that it is within the trial court’s discretion to impose consec utive sentenc ing if it finds by a pre pondera nce of the evidenc e that any

one of a nu mbe r o f c ri te ri a

app lie s, inc lud ing that “ [t ]h e de fe nd a nt i s a da ng e ro us of

fe nd e r w ho se be ha vio r i nd ic a te s li ttl e or no re ga rdfo r h uman li fe , a ndno he sit a tio n a bo ut c omm itt ing a

c ri me in which the risk to human life is high.” Tenn. Code Ann. § 40-35-115( b)(4) (2006). W hen a trial court ba se s c on se c uti ve se nte nc ing up on its c la ssi fi c a tio n o f the de fe nd a nt a s a da ng e rou s o ff

e nd e r, it i s

re qu ir e d to make fu rt

he r f ind ing s th a t th e a gg re gate le ng th o f the defe nd ant’ s se nte nc e re a so na bly relates to t h e s ev er ity of his offense s and is nece ssary to protec t the public from further c riminal conduct of the defe ndant. State v. Lane , 3 S.W.3d 456, 460-61 (Te nn. 1999); State v. Wilkerson, 905 S.W.2d 933, 937-38 (Te nn. 1995).

As an initial matter, we disagree wi t h the def endant’ s contention that the trial court issued two disparate rulings in the case . The trial c ourt made it clear that it was rese rving its ruling pending further rese arc h on the law rega

rding danger ous offe nder classification. W e further disagr ee w ith the defe ndant’s conte ntions that the tria l c ourt failed to make the re quisite findings of fac t in support of his dangerous of

fende r cla ssification or t hat t he record failed to support the trial court’s imposit ion of conse cutive sente ncing on that basis. At the continuation of the sentenc ing he aring, the trial court

corr ectly noted that the form from which it had bee n working er roneously included la nguage de rived from G r a y v

. St a te , 5 3 8 S. W

. 2 d 3 9 1

, 3 9 3 ( T e n n

. 1 9 7 6 )

– th a t th e tria l c o u r t mu s t f in d tha t the de fe nd a nt i s u nw ill ing to le a d a pr od uc tiv e lif e a nd re so rt s to c ri min a l a c tiv ity in f urthe ranc e of

his anti-societa l lifestyle – as a require ment for a trial court’s imposi tion of conse cutive sente ncing under the dange rous offe nder c riterion of the statute. In State v. Spence r Peterson, N o. W2005-01701- CCA-R3-CD, 2006 WL 1215138, at *3 (T enn. Crim. App. May 5, 2006), perm

. t o appea l denied (Tenn. O ct. 2, 2006), we made it clea r that such a finding is not require d for c onsecutive se ntencing

a s a da ng e ro us of

fe nd e r:

[T]he Appellant conte nds that the trial court erred i n fi n ding that consec utive
sentenc ing is necessa

ry to protec t the public from f urther c riminal activity. In support of this assertion, the Appellant submits that our supreme court in Gra y v. State, 538 S.W.2d 391, 393 (Tenn. 1976), “mandate[d] that this criteria include a finding that the de fe nd a nt i s u nw ill ing to l e a d a pr od uc tiv e lif

e a ndha s r e so rt e d to c ri min a l a c tiv ity-15-

in f urthe ranc e of h is a nti -s oc ie ta l li fe sty le .” Th is a sse rt ion is m isp la c e d. Th is la ng ua ge , a s G ray n ote s, app lie s on ly to the pe rs ist e nt o ff e nd e r, pr of

e ssi on a l c ri min a l, and the multiple offe nder, those being classifications whic h are based on a history of

re pe a te d c ri min a l c on du c t. T he plain l a ng ua ge of Gr a y c le arl y p ro vi des that a defe ndant may be c lassified as a dangerous off ender if the c rim e s fo r wh ic h h e is convic ted indicate that he has little or no rega rd for human life and no hesitation about committing a crime in w hich the risk to huma n life is high. Obviously, a tria l court may consider an appellant’s past criminal hi story, if such criminal history exists, but such re view is not mandated.

Id. (e mphasis in original) (footnote a nd citation omitted).

Her e, the tria l court made the re quired findings that the de fenda nt was a da ngerous of fende r whose be havior e vidence d littl e or no c oncern for human life and no hesitation about committing a crime w hen the risk to human life was high and that the aggregate length of his eleve n-yea r sentenc e

re a so na bly re la te d to the se ve ri ty o f h is o ff e ns es and was necess ary to p ro te c t th e pu bli c fr om h is further criminal conduc t. Moreove r, t he record amply supports the t rial court’s determinations. The defe ndant held a pistol aga inst the he ad of an eight-and- a-ha lf-month pregna nt w oman, coc ked the gun, threatened to kill her if she moved t he vehicle, t hreatened to kill her companions, and struck one of the victims in the h ea d wi t h t h e gun bec ause she did not move fast enough to satisfy him. In addition, the defe ndant threatened the vict i ms when he e ncounter ed them outside the c ourtroom at the suppression hea

ring. These actions, in our view, a re suf fi ci ent t o support the trial cour t’s classification of the defe ndant as a danger ous offe nder. We conclude, theref ore, that the trial court didno t e rr

in i mpo sin g c on se c uti ve se nte nc e s.-16- CO NC LU SION

Ba se d o n our re vie w, we c on c lud e that the tr ia l cou rt pr op e rl y d e nie d th e mot ion to s up pr e ss, that th e e vid e nc e wa s su ff ic ie nt to e sta

bli sh the de fe nd a nt’ s id e nti ty a s th e pe rp e tr a tor of the of fe ns e s, and t h at t h er e c o rd supports the trial c ourt’s imposition of consecutive se ntencing under the dange rous offe nder c riterion of the consec utive sentenc ing statute. Acc ordingly, we a ffirm the judgments of the
tr ia l c ou rt

.

___________________________________ ALAN E. G LENN, JUD GE