### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON June 3, 200 8 S es sio n

STATE OF TENNESS EE v . LARRY CAR NELL PI TTMAN

Appeal from t he Circuit Court for M adison County No. 06-161 Roge r A. Page , Judge

No. W2007-00589-C CA-R 3-CD - Filed April 7, 2009

In Februa ry 2006, the M adison County Gra nd Jury indicted the de fenda nt, Larry Carnell Pittman, on one count of

espec ially aggra vated kidnapping, a Class A felony

, o n e count of aggravated

ro bb e ry , a

Cla ss B fe lon y, a ndon e c ou nt o f c on sp ir a c y to c omm it a gg ra vate d r ob be ry , a Cla ss C felony. Following a jury trial, the defe ndant was c onvicted of a ll three c ounts of the indictment. The
tr ia l co urt sen tence d th e de fe nd a nt t o th irty- e igh t ye ars a s a Ra ng e II , v iol e nt o ff

e nd e r f or his
espec ially aggra vated kidnapping conviction, ni netee n year s as a Range II, multiple offe nder f or the
aggra vated r obbery c onviction, and nine years as a Range I I, multiple offende r for the conspira cy to c ommit aggr avate d robbery conviction. The trial court order ed that all sentenc es b e s er v ed

c on se c uti ve ly. On app e a l, the de fe nd a nt a rg ue s th a t: ( 1) the tr ia l c ou rt e rr e d b y f

a ili ng to g ra nt h is motion to s uppress e vidence ; (2) the tria l court er red by f ailing to grant his motion for a continuanc e; (3) the e vidence produce d at t rial was insufficient to support his convictions; and (4) the trial court imposed exce ssive sentenc es. Afte r re viewing the re cord, w e disce rn no er ror and affirm the jud gme nts of

the tr ia l c ou rt

.

Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Circ uit Court Aff irme d

D. K EL LY T HOMAS , J R ., J., delivere d the opinion of the court, in which J OS EP H M. T I P TO N , P.J., and A LA N E. G LE NN , J., joined.

R y an B

. F ee ney, Selmer, Te nnessee (on appe al); and Benja min C. Mayo, Jackson, Tenne ssee ( at trial), for the appe llant, Larry Carnell Pittman.

Rob e rt E. Coo pe r, Jr
., At torne y G e ne ra l a ndRe po rt e r; La c y W ilb e r, As si st ant Att orne y G e ne ra l; James G. W oodall, District Attorney Genera l; and James W. Thompson, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION-2-

At trial, Off

icer Richard Newbill with the Jackson Police De partment testified that at around 11 :30 p. m. o n N ov e mbe r 2 7, 20 05 , h e wa s disp a tc he d to a rob be ry c a ll at a Lon e Sta r S te akh ou se in Jackson. Of

fice r Ne wbill said tha t he was the first police of fice r to arrive at the r estaurant. Upon

arriving at the restaur ant, the off icer interviewe d the re staurant mana ger, Micki Rhodes, who ha d been pr esent when the restaurant was robbed. Acc ording to Office r Ne wbill, the victim’s demeanor was “ shaken up” and “scare d,” but she was still able to relate that a fter the restaur ant had c losed, a man dre ssed in black a nd car rying a knife “gra

bbed her by the nec k are a and took h er

. . . to the office or whe reve r they keep t he money” and had he r re move the money f rom the saf

e. The assailant then place d the victim in the restaurant’s walk-in cooler, wher e she rema ined for some time befor e calling 911. Acc ording to O ffice r Newbill, the victim sa id that the robber was wea ring “[a ] blac k ski mask, black like lar ge-type black jac ket, [a nd] blac k pants.” Of fice r Ne wb i l l t est ified that he observe d bruises on the victim’s nec k; the vi ct i m told the office r that she r ece ived those bruises wh e n th e ro bb e r g ra

bb e d h e r b y the ne c k. Th e vic tim a lso sa id that th e ro bb e r t oo k a pp ro xim a te ly $5200 from the r estaura nt’s safe

.

On cr oss-exa mination, Office r Ne wbill said that in his pol ice r ep o rt, he indica ted that the robbery occur

red betwee n 11:10 and 11:20 that evening. He said that in his report, he desc ribed the black mask the robber

wore over his f

ace as a ski mask, whic h was the de scription provided by the victim. He i ndicated that he did not rec all whether the victim describe d the robbe r’s blac k jacke t as

a “ bo mbe r ja c ke t,” a nd he a lso a dmi tte d that in his re po rt he de sc ri be d the ja c ke t a s a “ bla c k ja c ke t”

rathe r tha n a

“ bo mbe r ja c ke t” or a “ larg e bla c k jac ke t.” Of fi c e r Ne wb ill ini tia lly sa id that th e vic tim related that she ha d been loc ked in t he cooler, st aying t here for ten to f ifteen minutes, although the office r later

said that the victim was not in the cooler when he arrived on the sce ne.

Offic er Steve n Story with the Jackson Police De partment testi fi ed that he a rrived at the
restaur ant with Offic er N ewbill. Upon arriving, Of fice r Story searc hed the r estaurant while Offic er Ne wb ill be ga n in te rv ie wi ng the vic tim . A ft e r O ff ic e r S tory c omp le te d h is s e arc h, he a lso sp ok e wi th the victim. He aske d her if she rec ognized the robbe r. The vic tim said she did not. Officer Story the n a sk e d i f a n y b o d y h a d b e e n f i r e d f r o m t h e r e s t a u r a n t r e c e n t l y ; w h e n a s k e d w h y h e p o s e d th is question, Offic er Story re plied, “in my experience sometimes that’s the way it happens. I’ve w orked other robbe ry ca ses wher e that wa s the ca se.” The victim replied that the de fenda nt had bee n fired “about a wee k or so” be fore the robbe ry for drinking on the job. She stated that although the robbe r

wore a mask ove r his fac e, pre venting her f rom seeing the r obber’ s fac e, the de fenda nt “did match close to the de scription of this guy [wh o ] h ad g ra b b ed her.” The victim related that the robbe r

car ried “ a long knife” ; Office r Story sear ched the restaur ant, but none of the knives in the restaurant matched this desc ription.

Offic er Story said that the vic tim informed him that the robber “ had on a bla ck jack et, a bla c k- typ e a lmo st like a ba se ba ll ca p, so me typ e of

ma sk ov e r h is f a c e lik e a sk i ma sk ,” bla c k p a nts , and blac k gloves. Off

icer Story said that he did not ask the victim whether the robbe r re sembled the defe ndant, but that the victim suggested the re semblance on her ow n.-3-

On cr oss-exa mination, Office r Story said that the vi ctim said that the color of the robbe r’s mask “c ould have be en a da rk blue to a b l ac k

. ” He also said that there w as no indication that the victim suffe red any injuries other than the bruisi ng to her neck. The office r testified that he assumed that th e ro bb e r t oo k th e kn if e us e d du ri ng the ro bb e ry wi th h im w he n h e le ft the re staur a nt. He a lso said that befor e he asked the victim about any employees who had been fired, the victim said that she wa s unable to re cognize the robbe r.
Micki Moody, who was known by he r maiden na me of Micki Rhodes at the time of the incident, testified that she w as the mana ger on duty a t the Lone Star Steakhouse the night of November

27, 2005. She said that afte r the re sta u ra nt closed that night, she counted the day’s

rec eipts in the office . While she did that, the l ast two kitchen employees informed he r that they we re done working and wer e leaving the store. She walked into the restaur ant’s dining r oom, and af ter seeing the two e mployees leav e, s h e re t u rned to the of fice to finish her closing duties. She then
returne d to the dining r oom, w here a man with a knife grabbe d her and started pushing her toward the offic e. Moody said that the kni fe had a black handle and a blade that was e ight to nine inches long. Sh e te s ti f

ie d th a t s h e s c r e a me d a n d “ f o u g h t a li tt le ” w ith th e a s s a il a n t u n ti l h e wre stled her
onto t h e g ro u n d . The a ssailant then gra bbed Moody by the ne ck and de manded the r estaura nt’s money. The a ssailant then held her by the nec k an d t u rn ed her towa rd the re staurant’ s safe . She opened the safe , and the a ssailant took all the money from the sa fe

. Af t er t ak i n g the money, the assailant gra

bbed Moody by the ne ck and le d her f rom the off

ice. The two t h en we n t into the kitchen, whe re the assailant opene d the door to a w alk-in cooler and pushed Moody inside. Moody testified that she rema ined in the cooler for five to ten minutes bef ore e xiting the cooler a nd calling 911 from the of

fice phone.

Moody testified that when the assailant confronted her, she had already c ounted the money the re staurant ha d taken in that day a nd prepa red it f or deposit. She said that this money, as well as the pr e vio us da y’ s d e po sit a ndthe mon e y th e re staur a nt g e ne ra lly ke pt on h a ndto m ake c ha ng e in the normal c ourse of

business was stolen fr om the safe . Moody said that th e re s t au rant’s ba nk

acc ount was with First Tennessee Bank; she noted that “if [the re staurant] get[s] a ny change made from the ba nk . . . like a hundre d dollars worth of one s or something[,] they w rap [ the money] in a band that would say Fi rst Tenne ssee.” She testified t hat some of the mone y taken f rom the saf

e wa s bundled in this manner. Moody said that she a nd the restaur ant’s gener al manage r, who ar rived a t the re staurant after the police arrived, concluded that the assailant took approximate ly $5100 from the safe

. Moody said that she looked a t the robber “somewhat” during the incident. She described the man’s clothing as “ completely blac k. At the fi rs t g l an ce I know it was blac k pants, [and] a blac k jacke t . . . [with] big poc kets on the side and big buttons.” She also noted that the assailant wor e “a black mask of

some kind,” a bla ck hat, blac k gloves, and b l ac k t en n i s shoes which ha d “no descriptive marks.” She sa id that some time a ft er the robbery, she met with Jackson Police Depa rtment Investigator Tyree ce Miller, who showed her photographs of certain article s of clothing and bundles of mone y. These photographs were int roduce d into evidence at trial. Moody identified the bla c k ja c ke t, b la c k p a nts , b la c k s ho e s, a ndbla c k g lov e s d e pic te d in th e ph oto gr aph s a s th e sa me ones that the a ssailant wore the ni ght of the robbe ry. She said that the blac k hat and mask de picted in the ph oto gr aph s we re “ c on sis te nt” wi th the typ e of c lothin g w orn b y th e a ssaila nt, bu t sh e c ou ld-4-

not say for c erta in that these items wer e the one s worn by the a ssailant.

Moody said that the money shown in the phot ographs wa s the money that wa s stolen from the safe the night of the robbe ry. She noted that the photographs depicted money bundled in paper ba nd s ma rk e d “ Fir st Te nn e sse e ,” wh ic h w a s th e ba nk Lo ne Sta r u se d f or its de po sit s. She a lso sa id that so me of

the mon e y in the ph oto gr aph s w a s b un dle d w ith pa pe r c lip s, wh ic h wa s c on sis te nt w ith Lone Star’ s business prac tice of bundling $25 in one-dollar bills wit h paper

clips.

Moody testified that the def endant ha d been e mployed with Lone Star as a grill cook for approximate ly one yea

r bef o re b ei n g fired. She sa id that the defe ndant would have been f amiliar with the layout of the re staurant, including the of fice , kitchen, and c ooler. She said that the a ssailant did not hesitate in leading her fro m the office to the cooler . Moody said that the assailant did not lock the coole r door whe n he plac ed her there

, so she was a ble to esca

pe on her own. She said she

rema ined in the cooler

for some time be cause she wa s unsure when t h e as s ailant would leave the

re staur a nt.

Moody said she described the assailant’s build to the pol ice. She described t he assa ilant as “tall, kind of broa d shoulders. I don’ t know if I would stay stocky but, you know , not thin.” She

sa id that the ro bb e r’ s buil d wa s con sis te nt with the de fe nd a nt’ s buil d. She a lso sa id that sh e wa s a ble
t o h ea r t h e robbe r’s voice , and base d on the voice, she presumed that the robber was blac k and sounded as if he wer e in his forties or f ifties. Moody testified that Story asked he r if the de fenda nt fit this description, a nd she replied that he did. Howe ver, she reiter ated that he r desc ription of the robber ’s clothing and build, as we ll as h er as s u m p t i o n s rega rding the robbe r’s ra ce and age, w ere formed be fore the police a sked her about anyone being fire d from the r estaurant.

Moody testified that the l ast two employees to leave the restaurant the night of the robbe ry

wer e a dishwa sher, Josh Ir vin, and a c ook, Lineal Gr een. She s ai d t h at the kitchen wor kers we re responsible for locking the restaur ant’s back door once they finished taking out the gar b ag e. She sai d t hat Irvin, who she believed w as eightee n year s old, had worke d at the re staurant f or a f ew months before the robbe ry. She said that Ir vin knew the de fenda nt becau s e the two men w orked together at the restaur ant. She said that Irvin lef t the restaur ant appr oximately five minutes bef ore the robbe ry and tha t Irvin was making a ca ll on his cellular telephone as he le ft the re staurant.

On cr oss-exa mination, Moody admitt ed that she initially tol d Offic er Story that she did not

rec ognize the a ssailant. She also said that af ter Of fice r S t o ry asked her a

bout anyone be ing fired fr om the re staur a nt, the of fi c e r a sk e d if

the de fe nd a nt f

it h e r d e sc ri pti on of the a ssaila nt. Mo od y s a id that during the yea

r the de fenda nt worked at t h e re s t au ra nt as a grill cook, she spoke with him on

sever al occ asions. She admitted that although she would have had “ample opportunity to be fa miliar with his voice,” she w as unable to tell the police that she rec ognized the a ssailant’s voice a s the defe ndant’s.

Moody said that Irvin “c locked out” of the re staurant at 11:11 p.m. that evening, while the other pe rson working in the kitchen that night, Line al Gre en, clocke d out at 11:03 p.m. She admitted that Irvin wa s “basica lly tall, broad-shouldere d, [and] not stock y , ” and that this description was consistent with the physical description of the assailant that Moody gave to police. She admitted that-5-

when she dialed 911 to r eport the incident, she told the dispatcher that she believed the assailant wa s black, de spite the fac t that she did not see the a ssailant’s fa ce.
Regarding the a ssailant’s clothing, Moody s ai d t hat although in the 911 ca ll and her prelim i n ar y hearing testimony she identified the robber ’s mask as a ski mask, she was unsure whether the mask wa s actua lly a ski ma sk. Moody described a ski mask as “ a cloth mask that ha s the eye s and only the mouth cut out of it.” She also said that although she de scribed the assailant’s jacke t as a bomber

jacke t to police, she admitted that she “ [did not] know exa ctly what a bombe r jacke t [ was].” She also admitted that at the time of the incident, she was unabl e t o p ro v i d e a ny identifying features re garding the assailant’s shoe s. She also noted that worke rs at Lone Star wea r blue jeans a nd a blac k t-shirt with the restaurant’s logo on it and that worke rs in the kitchen a lso had the op tio n o f w e a

ri ng bla c k p a nts

.

On re direc t examination, Moody said that at the time of the robbery, she was unc erta in of the assailant’s identity, b u t af t er becoming “privy to other evidenc e in this case,” she believe d

“ un e qu ivo c a lly , b e yo nda re a so na ble do ub t” that the de fe nd a nt c omm itt e d the se of fe ns e s. She sa id that she saw the assailant approximate ly twenty s econds during the i ncident. She insisted that the jacke t depicted in the photogra ph she wa s shown by police the da y afte r the incide nt was the one the assailant wor e during the robbery. She also reiter ated that the a ssailant’s voice sounde d like that of

a n “ old e r” Af

ri c a n A me ri c a n man, wh ic h w a s c on sis te nt wi th the de fe nd a nt andno t c on sis te nt w ith Irvin. On r ecr oss-exa mination, Moody said that she could identify a blac k man by his voice.

Sergea nt Robert Henson w ith the Jackson Police De partment testified that the evening of the robbery, he re sponded to a ra dio dispatch conc erning the r obbery at the Lone Star r estaurant. He first went to the re staurant, whe re he became awa re of the details of the of

fense , including the

su sp e c t’ s p hy sic a l de sc ri pti on , w hic h Se rg e a nt H e ns on de sc ri be d a s “ a bla c k ma le dr ess ed a ll i n black, we aring a black ball cap with a black jacke t w ith lar ge pockets with sna ps on them.” After Investi g a to r

M il le r arr iv e d

, Se r g e a n t H e n s o n le f t th e r e s ta u r a n t t o c o n ti n u e h is p a tr o l s h if t, w h ic h

wa s sc he du le d to e nda t 1: 15 a .m.

Sergea nt Henson testified that a round the time his shift w as to e nd, he wa s driving west on Ridgecre st Road near

the intersec tion of Highland Avenue when he observe d a man pushing a bicycle up a

hill. S erge ant Henson te stified that the man “matched the de scription” of the suspect i n t h e robbe ry. Specific ally, Sergea nt Henson desc ribed the c lothing as “a blac k ball cap, da rk colore d pants, and a black coat. What drew my attention wa s the pocke ts with the snaps on them.” Af te r p a ssi ng the su sp e c t, S e rg e a nt H e ns on pu t ou t a ra dio c a ll “ to se e if [the re ] we re a ny un its c los e

so we c ould stop the subject and check him.” Offic ers Mc Mullen and Cole re sponded that they we re in the are a . Se rg e a nt H e ns on turne d b a c k to wa rdthe ind ivi du a l, w ho by thi s time wa s r idi ng his bicycle e astbound on Ridgecre st. Sergeant He nson and t he two off icer s then “pulled ove r and
sto pp e d” the ind ivi du a l, w ho m Se rg e a nt H e ns on ide nti fi e d in c ou rt a s th e de fe nd a nt.

Sergea nt Henson testified that when he and the other off icer s approa ched the defe ndant, he asked the defe ndant wher e he was coming from. Serge ant Henson notice d that the def endant wa s

sweating

, ap p ea re d n ervous, a nd kept placing his hands in his pocke ts. The offic ers told the def e n d a n t to r e f

r a in f r o m p u tt in g h is h a n d s in h is p o c k e ts b e c a u s e th e y w e r e c o n c e r ned over the-6-

defe ndant possibly having wea pons in his pockets. After a while, Offic er Cole approach ed t he defe ndant from be hind and patted him down for wea pons. During t he search, Sergea nt Henson saw the defendant’s coat open up, at which point he obser ved “a large bulge in the front of his shirt that was kind of squa

red looking and I told Of

fice r Cole about it.” Offic er Cole place d his ha nd on the bulge and “ asked him wha t it was,” to which t h e d ef en d an t replied that it was “his money.” The office rs discover ed a bla ck plastic ba g containing some money, an d Officer Cole took possession of the ba g. Sergea nt Henson testified that the polic e als o found blac k gloves in one of the de fe nd a nt’ s p oc ke ts.

On cr oss-exa mination Sergeant He ns o n s aid that while he w as at the r estaurant, he had overhe ard Moody de scribing the jac ket as a black jac ket with pockets that snappe d. He sa id he had no idea why this desc ription was not rec orded in the 911 c all or in any other police re port.

Offic er Edw ard Mc Mullen with the Jackson Police Depa rtment testified that he wa s one of the two offic ers who r esponded to Serge ant Henson’ s call to assist with stoppi ng the suspect

. He said that he a nd Offic er Cole, driving separ ate car s, arrived at the location where Sergea nt Henson had observed th e s u s p e c t. O f f ic e r M c M u ll e n r e c a ll e d th a t h e w a s th e la s t o f f ic e r to arr iv e o n the

scene , and by time he arrived, the other two office rs wer e alre ady speaking to the suspec t, who was

we ari ng a bla c k le a the r ja c ke t, bla c k pa nts , a nd bla c k s ne ake rs . O ff ic e r M c Mu lle n s a w O ff

ic e r C ole pat down the suspect for wea pons. He then sa w Off

icer Cole grab a

“lar ge bulge” in the suspect’s jacket o r shirt, a bulge w hich turned out to be a bag conta ining “a lar ge sum of money.” Offic er Mc Mu lle n s a id tha t so me of the mon e y wa s wr app e d in “ ba nk ba nd s. ” He te sti fi e d th a t th e su sp e c t, whom he identified in c ourt as the de fenda nt, was transported to the local jail, whe re his clothing was collecte d as evide nce. T he clothing, which wa s admitted in t o ev i d en ce at t rial, included a black leather coat, two blac k “winter

gloves,” a black leather cap, a navy “long john” shirt, bla ck jogging pants, a pa ir of navy blue p o l y es ter pa nts, black tennis shoes, a bla ck t-shirt, blac k socks, a blac k belt, and two “stocking-type skullcaps.” Offic er McMullen said that the skullcaps to him looked like “a portion of . . . dark- colore d pantihose.” O ffice r McMullen said that the police also retrie ved two wal l et s fr o m the defe ndant, one of which wa s his, and the other c ontaining “half of a drive r’s license” belonging to a white male.

On c ro ss- e xa min a tio n, Of fi c e r M c Mu lle n s a id that a t nig ht, he wo uldha ve be e n u na ble to see whether the defe ndant’s jacket pockets had snaps on them. He also said that he would not have described the def

endant’ s jacke t as a bomber jacke t. Office r McMull en s ai d t h at there was no writing on the hat the de fenda nt was we aring at his arre st. He explained that the mask rec overe d from the de fenda nt did not have cutouts for a person’ s eyes a nd mouth, as would a ski mask.

Offic er Royal Cole with the Jacks o n P o l i ce D epartment testified that he assisted Serge ant Henson a nd Offic er Mc M u llen in appre hending the suspec t the morning after the robbe ry. The

su bs ta nc e of his te sti mon y la rg e ly m ir ro re d th a t of

the oth e r t wo of

fi c e rs . Re ga

rd ing the bu lge in the def endant’ s shirt, Office r Cole testified that as he stood behind the defe ndant, patting him down fo r w e apo ns , h e no tic e d a “ larg e bu nd le ,” wh ic h he tho ug ht ma y ha ve be e n a bo mb. Of

fi c e r C ole discovere d that the object was a bag of money, which he turned ove r to Investigator Miller onc e he

arrived on the sce ne. He rec alled that some of the money was wra pped in bank bands and some was bundled with paper

clips.-7-

On cr oss-exa mination, Office r Cole testified that bef ore he rec eived the call from Ser geant Henson re garding the suspe ct, he r ece ived a gener al “be on the l ookout (BOLO)” call re garding the robbery at the re staurant. He said that the desc ription of the suspect in the initial call wa s that of a man dre ssed in black. Of fice r Cole said h e wa s u n ce rt ain whether the de fenda nt was ner vous or agitated be cause the police we re “ hassling” him. Office r Cole desc ribed the bundle he fe lt in the defe ndan t’s clothing was “me dium,” neither ha rd nor soft. The office r said that the bulge did not fee l like a gun or a

knife, a nd he also a dmitted that he did not know what a bomb fe lt like, or what it ought to feel like.

Investigator Tyree ce Miller with the Jackson Police De partment testified that while he wa s at the restaura nt interviewing Moody, he rece ived a call from Sergea nt Henson stating that he had detained the defe ndant, who was carrying a large amount of money. After c oncluding his interview with the victim, Investigator Miller went to the scene wher e the thre e Jac kson police off icer s were detaining the def

endant in the ba ck of a police ca

r, a site whi ch the investigator sa id was approximate ly 2.3 miles from the restaurant. Offic er Cole ha nded Inve stigator Miller a blac k bag

c on ta ini ng a

larg e a mou nt o f m on e y, so me of wh ic h w a s b un dle d in Fir st T e nne sse e ba nk wr aps

. He then told the of

fice rs to transport the defe ndant to the police station, which they did. Inve stigator Miller said that “in the ear ly morning hours” of N ovember 28, 2005, he photogra

phed the money that had bee n taken fro m the def endant. He noted that in addition to being wrappe d in paper bands labeled w ith the First Tennessee na me, some of the money w as bundled with pape r clips, a pr actice which Moody had de scribed. Investigator Mil ler said that he re cover ed $4768 fr om the bag found on the def endant at his arre st.

Investigator Miller testified that in the defe ndant’s wa llet, the police located a piec e of pa per with a phone number

and the na me “Josh” written on it. In the course of his inve stigation, a fter the police made Irvin a suspe ct, Inves tigator Miller bec ame a war e of c ellular phone calls that the defe ndant and I rvin had made betwee n one anothe r.

On cr oss-exa mination, Investigator Miller said that he w rote down Moody’ s statement. In the statement, Inve stigator Miller wrote that the assailant wor e a bomber jacke t with sil ver buttons

a ndbig po c ke ts. Ho we ve r, he a dmi tte d th a t th e ja c ke t w orn b y th e de fe nd a nt at th e tim e of his arr e st did not have silver buttons on it. He also said that he did not consider the mask recove red f rom the de fe nd a nt t o b e a

sk i ma sk

, and he di d n ot c on sid e r the de fe nd a nt’ s ja c ke t to be a bo mbe r j a c ke t, although Moody described the mask a nd jacke t as such. He also said that the def endant’ s hat had no writing on it, despite the victim’s statement that th e as s ai lant’s hat could ha ve “possibly” ha d yellow writing on it. Regarding the discr epanc y betwee n the amount of money the restaur ant manage r said wa s taken from the store and the amount found on the defe ndant, Investigator Miller sai d he wa s unsure a s to why the discre pancy e xisted. He surmised that e ither the mana ger w as mistaken about the amount of money taken or the defe ndant could have hidden or lost some of the
money.
Investigator Miller sa id that the police develope d Irvin as a suspect af ter the police rec eived

a ca ll in which a complainant stated t hat “Irvin had made a comment to one of his employees that he knew that Lone Star wa s going to get robbed befor e it was robbe d.” Inve stigator Miller said that Irvin wa s indicted in this case but pled guilty to les s er ch arges. Investigator Miller sa id that heIn v e stig a to r M ill e r t e stifie d th a t G re e n w a s su b p o e n a e d to tes tify a t t ria l. H o w e v e r, In v e stig a to r M ill e r sa id 1

t h at h e w as u n su re w h eth er G ree n h ad b ee n serv ed w i t h t h e su b p o en a a n d d i d n o t k n o w G ree n ’s cu rren t w h ere ab o u t s.

-8- interviewe d Irvin thre e ti mes and that Irvin provided “a litt le bi t of t he truth” during eac h interview.

On re dir e c t e xa min a tio n, In ve sti gator Mil le r sa id that he be lie ve d tha t Ir vin tol d h im the truth
rega rdi n g t h e def

endant’ s involvement in the robbery. He a lso said that the differ ence s betwee n Moody’s d escription of the assailant’s c lothing and the clothing the defe ndant was w earing at the tim e o f h i s arr e s t d i d n o t l e a d h i m t o d o u b t M o o d y ’ s c r e d i b i l i t y o r e x c l u d e t h e d e fe nd a nt a s a suspect. On r ecr oss-exa mination, Investigat o r M i l l er s aid that Moody initially t old him that the assailant wa s wea

ring a blac k jacke t. Investigator Miller a sked Moody for mor e information, at which point she said that the de fenda nt was we aring a bomber-style jac ket with big pockets and silver buttons. He also said that Irvin was not identified as a suspect the night of the inc ident, and that Irvin later

admitted his involvement in the Lone Star robbe ry.

Josh Irvin testified that in November 2005, he wa s employed as a dishwasher

at the Lone Star Steakhouse in Jac kson. In add ition to washing dishes, he would take tra sh to the restaur ant dumpster. Irvin sa id that when he took trash to the dum pster, he would prop the re staurant’ s back door open so he would not be locked out of the re staurant. Irvin said that the def endant, who ha d

wo rk e d at th e re staur a nt a s a gr ill c oo k b e fo re be ing fi re d, wa s f a mil iar w ith thi s p ro c e du re a ndwi th the la yo ut o f the re staur a nt.

Irvin testified that on the e vening of November 27, 2005, while at work, he rec eived a phone call f ro m t h e defenda nt. In that ca ll, the defe ndant informed I rvin that he wa s going to rob the
restaur ant and a sked for

Irvin’s a ssistance. I rv i n s ai d that although the def endant’ s plan was “ on [his] mind,” he did not tell anyone at the re staurant a bout the defe ndant’s plans. Irvin testified that he a ndthe de fe nd a nt p la c e d “ se ve ra l c all s bac k a ndfo rth. ” In on e of the c a lls , th e de fe nd a nt t old Irvin that he (the de fe nd a nt) wa s o n h is w a y to the re staur a nt o n a bik e . I n a no the r c a ll, wh ic h I rv in said took place afte r Moody clocked hi m out, the defendant asked Irvin how m any people rema ined in the restaur ant. Irvin responded that he, Green, and Moody wer e the only thre e people rema ining in the restaur ant. He f

urther told the defe ndant that he and G ree n wer e lea ving the restaur ant at that 1 point.

Irvin te sti fi ed th at he ple d g uil ty t o f a c ili ta tio n o f a gg ra vate d r ob be ry a ndc on sp ir a c y to commit aggravated robbery

. He sa id that he re ceive d an ef fec tive ten-ye ar judicia l diversion
sentenc e, which included a n eighteen- month sentence at the Madison County Penal Farm and the rest of the sentenc e on probation. Irvin confirme d that his c riminal rec ord could be e xpunged if he did“ e xa c tly wh a t [ he wa s] su pp os e d to” do a s pa rt of his se nte nc e , w hic h in c lud e d te sti fy ing a ga ins t the def endant.

Irvin testified that whe n he took out the trash that e vening, he lef t the back door

propped open. He also said that afte r he and Gre en left the restaur ant, he left his hat w edged inside the front door so that the door would not lock. He a nd Gre en wa ited five to ten minutes for I rvin’s stepfather, wh o a gr e e d to giv e Gr e e n a ri de ho me be fo re takin g I rv in hom e . A ft e r I rv in’ s st e pf a the r a gr e e d to-9-

give Gre en a ride hom e, Ir v i n went to the fr ont door to retrie ve his hat. At that time, he looked inside the restaurant, where he saw a man wea ring a da rk jac ket and a

mask over his fa ce sta nding

a ga ins t a w all and lo ok ing “ int o th e of fi c e do or .” Irvin sa id that he did no t te ll a ny on e abo ut this
pe rs on ’s pr e se nc e in the re staur a nt.

After Irvin’s stepf

ather picked up I rvin and Gr een a round 11:15 p.m., they went to a Wa lmart loc a te d b e hin d th e Lo ne S tar res tau rant. Gr e e n a ndIrvin staye d n e ar the fr on t of the sto re wh ile Irvin’s stepfathe r went shopping in the store. After a while, Irvin hear d sirens an d s aw p olice office rs ar

rive. He and Green spoke to a poli ce office r, who informed them that the Lone Star had just been robbe d. This information prompted Ir vin to call the def endant, who told Irvin that “he w as l o n g g o n e fr o m L one Star a nd that he wa s near the country c lub,” which I rvin said was ne ar the int e rs e c tio n o f H igh la ndAv e nu e a ndVan n Dri ve in Ja c ks on . I rv in t e sti fi e d th a t a ft e r h e a ndhis stepfathe r ar

rived a t their home shortly a fter midnight, he called the defe ndant aga in on his cellular phone. The defe ndant s aid t hat he neede d a ride, which Irvin said he was unable to provide, given that he had a lrea dy returne d home.

On c ro ss- e xa min a tio n, Ir vin a dmi tte d that in June 20 05 , h e wa s f ir e d f ro m hi s jo b at a Cor ky ’s re staur a nt bec a us e the ma na ge r h a d s us pe c te d I rv in o f t akin g mo ne y f ro m th e re staur a nt. Irvin said that he was unsure whether he listed this employment on h i s L one Star a pplication, but he wa s certain that he did not mention his Corky’s termination on the application.

Irvin re counted the ei g h t p h o ne ca lls between him and the defe ndant the eve ning of November

27 and the e arly morning of N ov em b er 2 8. Irvin admitted that although he w as “conc erne d” over

the def endant’ s initi al phone call to him around 4:30 p.m., in which the def endant

ou tli ne d h is p la ns to r ob the re staur a nt, Ir vin tol d n ob od y a bo ut the de fe nd a nt’ s p la ns . H e a lso sa id that he did not reme mber what he and the de fenda nt talked about whe n he ca lled the de fe n d ant at 5:37 p.m. Irvin said that when the defe ndant ca lled him at 9:34 p.m., the defenda nt said that he wa s on his way to the re staurant on a bicycle. I rvin said that the def endant c alled him at 10: 30 p.m., but Irvin did not rec all the substanceof that co n v er s ati on. Irvin said that a fter this ca ll, he called the defe ndant four times. At 10:59 p.m., he called the defe ndant but rec eived no a nswer. A t 11:08 p.m., the def endant a sked Ir vin how many people rema ined in the restaur ant. Irvin c alled the de fenda nt twice more afte r the robbe ry, at 11:26 p.m. and 12:05 a.m. Irvin said that he wa s unsure why he made these last four phone calls, though he said that perha ps he was “ curious.” I rvin also said that he made three phone ca lls to hi s house betwe en 10:56 p.m. and 11:49 p.m., and that his mother called his cellular phone once during that period. Ir vin also noted that at 11:38 p.m., he ca lled an unknown number. H e initially said that he was unsure to whom the phone number be longed, but on redire ct exa mination, he said that while he w as wa iting fo r h i s stepfathe r to finish shopping at Walmart, he ca lled a girl he kne w.

On re direc t, Irvin a l s o said that he ha d occa sionally given the defe ndant a ride home fr om Lone S t ar wh i l e the two wer e employed the re, a nd during the rides home , the two talked a bout grilling because Irvin eve ntually wanted to bec ome a c ook

. Irvin said that he and the de fenda nt became frie ndl y , and base d upon his “allegianc e” to the de fenda nt, his friend, he did not wa rn Moody abou t the defe ndant’s robbe ry plans. Ir vin said that he re ceive d no money from the defe ndant as pa

rt of the r obbery, nor

was he promised any money. Irvin reiter ated that although he-10-

c a lle d th e de fe nd a nt a s h e wa s le a vin g th e re staur a nt, the de fe nd a nt a sk e d I rv in a bo ut the pe op le

rema ining in the restaur an t

. He als o admitted that in his earlier statements to police, he w as not

e nti re ly truth fu l. On re c ro ss- e xa min a tio n, Ir vin a dmi tte d that in a De c e mbe r 5, 20 05 state me nt t o police, he ha d said that he ha d clocke d o u t h i m s elf, whic h was not true. H e also said that he
pr ov ide d p oli c e wi th i nc or re c t ti me s f

or the ph on e c a lls be tw e e n him a nd the de fe nd a nt, a ndhe a lso lied to police about who initiated some of the calls.

Elvis Love, Irvin’s stepf

ather , testified that he picked up Irvin and Gre en from the restaur ant the nig ht o f the ro bb e ry . H e sa id tha t he , G re e n, a ndIrvin we nt t o W a lma rt , w he re he sh op pe d w hil e Gre en and I rvin waited ne ar the front of the store . After Love finished his shopping, he droppe d off Gr ee n at h i s house and the n returne d home. On cr oss-exa mination, Love said that he wa s unsure what time he picked up Irvin and Gre en from the restaurant, and he wa s also unsure how long he was

a t W a lma rt

.

The de fenda nt testified that he was employed at Lone S tar for about one year as a grill cook. He sa id that he knew I rvin “for a fe w months,” and that they had given eac h other ride s home from the re staurant se vera l times. The defe n d an t offer ed his own ac count of the e ight telephone

conver sations betwee n him a nd Irvin that occur red the night of the robbery. He said that he plac ed the first call to I rvin at 4:29 p.m. The defe ndant said that Irvin had c alled him sever al days be fore the ro bb e ry a sk ing abo ut w hy he wa s te rm inate d, a ndthat th e de fe nd a nt wa s re turnin g I rv in’ s c a ll. He sa id that I rvin called him late r that evening asking for a ride home. The de fenda nt said that he called I rvin twice, at 9:34 and 10:30 p.m. The defe ndant said t h at bot h times, he was r eturning Irvin ’s c a ll. He no te d th a t I rv in c a lle d the de fe nd a nt fo ur tim e s bet we e n 10:5 9 p.m. a nd12 :05 a .m. beca use Irvin “nee ded a ride rea l[ly] bad[ly].” The defe ndant insisted that he did not offer Irvin a ride home at any time that evening.

The de fenda nt said that when he was stopped while riding his bi cycleon Ridgecre st Road, he w a s “ e x e r c is in g

. ” H e s a id th a t h e w a s w e ar in g a b la c k le a th e r c ap , a b la c k le a th e r coat, blac k jo g g i n g p ants, and blac k tennis shoes. The de fenda nt said that he wa s approa ched by “ about five police ca rs,” a nd that the office rs “bum rushed” and tac kled him. The def endant sa id that the police took h is c lo th in g a n d th a t th e c lo th in g in tr o d u c e d in to e v id e n c e a t tria l w a s th e c lo th ing he was

wea ring at h i s arr est. He insisted that his black jac ket was not a bomber jac ket and that it did not ha ve sil ve r b utt on s o r s na ps on its po c ke ts. He sa id that hi s b la c k le a the r hat ha d n o w ri tin g o n it

, and he sa id that the police did not rec over a skullcap, which he described as a stocking ca p to keep his hair in place . Rather, he described the ca p rec overe d by police as a stocking cap.

Th e de fe nd a nt t e sti fi e d th a t th e mon e y th e po lic e too k f ro m hi m w as a

c omb inatio n o f h is own money and some money that he had f ound in a used c ar lot. He said that the money he found in the bag wa s not bundle d with pa per clips or bank wra

ps. The defe ndant said that he told the police that he won th e money gambling, but he admitted that this statement was a lie. The de fenda nt

acc used Inve stigator Miller of threatening his life when the police interviewe d him. He insisted that he did not rob the Lone Star restaurant or attack Moody, and he also stated that he did not know who Gre en wa s.

On cr oss-exa mination, the defe ndant said that he started his bicycle ride a few minutes af ter-11-

11:00 p.m. He said that the police took $2200 of the defendant’s money from his pockets a nd place d this money in the bag with the money he had found in the used ca r lot. The def

endant insisted that he kept his money in his possession because he did not kee p his mone y in a bank a nd he did not want
to ri sk los ing his mon e y in a ho us e fi re . Re ga rd ing the “ fo un d mo ne y, ” the de fe nd a nt s a id that w hil e riding his bicycle, he obse rved a car make a U-turn, during which time a pa ssenger in the car threw a dar k plastic bag out the c ar window. Upon ar riving at the discar ded bag, he observe d a wa llet next to the bag, which le d the def endant to look inside the bag a nd discover that the bag conta ined money. Th e de fe nd a nt i ns ist e d th a t th e mon e y w a s n ot b un dle d in a ny way. Th e de fe nd a nt s a id that he tol d the po lic e that he ha d wo n th e mon e y g a mbl ing be c a us e he su rm ise d th a t if the po lic e be lie ve d th is story, the police would not seiz e his money.

The de fe n dant said that he w as in possession of two stocking ca ps at the time the police confr onted him. He wore one on his head and kept anothe r in his pocket. The defe ndant explaine d that he wa s “a bla ck man. Black people wea r stocking caps all the time. .

. . I was raised up wea ring
one to try to keep my hair looking neat.” The defe ndant said that the police did not tell him to keep his hands out of his jacket poc kets. Rather, the defe ndant insisted that upon seeing him, the police
ta c kled h im. Th e de fe nd a nt s a id that he origi na lly tol d p oli c e that he wo n th e mon e y in his
po sse ssi on ga mbl i n g , b u t

i na s ub se qu e nt s ta te me nt that w a s tr a ns c ri be d b y p oli c e , th e de fe nd a nt s a id that he found the money. He a lso insis ted that while the written statement noted that the de fenda nt

wa s w a lki ng his bic yc le up a hil l w he n th e po lic e sto pp e d h im, he tol d p oli c e that he wa s r idi ng his bike when the police st opped him

. The defenda nt admitted that he signed the w ritten statement, but he also said that perha

ps he “misread” the statement before signing i t. He also a ccuse d the police of ke e pin g h im i n ja il f

or thr e e da ys be fo re takin g h is s ta te me nt.

Testifying as a r ebuttal witness for the State, In v es t i g ator Mil ler said that he rea d the de fe nd a nt h i s Mi ra nd a

ri gh ts b e fo re the int e rv ie w w hic h p ro du c e d th e de fe nd a nt’ s w ri tte n s ta te me nt, in w hic h th e de fe nd a nt sa id that he wa s wa lki ng his bik e a t the tim e the po lic e sto pp e d him

. He a lso said that the defe ndant indicated he under stood those rights and waived the m. Investigator Miller said that the def

endant wa s not kept in jail thre e days be fore being interview ed by police. Ra ther, the interview took place a round 5:50 the eve ning of Novembe r 28, the d ay afte r the robbe ry. On

cross-e xamination, Investigator Miller sa id that he wrote out the s tatement, but he had the defe ndant revie w the stateme nt for inac cura cies. Inve stigator Miller said t h at t h e d efe ndant made a few revisions befor e signing the statement at 6:30 p .m. on November 28. On re direc t examination, Investigator Miller said that he was unawa re that the defe ndant had e ver c laimed that $2200 of the money found in the de fenda nt’s possession was the de fenda nt’s own money.

The jury convicted the defe ndant of one count of a ggravated robbe ry, one c ount of conspi rac y to commit aggravated robbe ry, and one count of e specia lly aggravated kidnapping, as

c ha rg e d in the ind ic tme nt. Th e de fe nd a nt s ub se qu e ntl y f ile d a tim e ly n oti c e of

app e a l.

ANALY SIS

I. Mo tio n to Sup pr e ss

Th e de fe nd a nt f

ir st c on te nd s th a t th e tr ia l c ou rt e rr e d by no t gr a nti ng his mot ion to s up pr e ss-12-

evidenc e, including his clothing and money re cover ed fr om his person, whi ch re sulted from wha t the de fe nd a nt c la ims wa s a n un la wf ul se arc h a nd se iz ur e

. Th e c ru x of the de fe nd a nt’ s arg ume nt i s that the police ha d no probable cause to detain the d ef en d an t at the time he wa s stopped and ultimately se arc hed. The State contends that beca use the sea

rch a nd seizure wer e permissibl e, the trial court pr operly de nied the def endant’ s motion t o suppress. We agre e with the State.

Suppression Hearing Testimony

At t h e suppression hearing, both Serge ant Henson a nd Offic er Cole testified, w ith the substance of

eac h office r’s testimony large ly mirr oring that of the testimony e ach ma n would give at trial. Howeve r, i n addition to stating that the defendant matched the physica l description of the suspect as pr ovided by Moody, both off i ce rs testified that the def endant pr ovided his name to the
po lic e be fo re the y b e ga n sea rc hin g him. W he n ask e d o n c ro ss- e xa min a tio n, “ wh a t di d y ou sa y to [the de fe nd a nt] wh e n y ou fi rs t e xit e d the patr ol c ar, ” Se rg e a nt He ns on sa id that he “ sta rt e d o ut j us t by a s k i n g f

o r h i s n a m e

. ” O f

f i c e r C o l e , w h o w a s c a l l e d a s a d e f e n s e w i t n e s s e s , s a i d t h a t “ a t so me point in the very beginning” of their interac tion with the def endant, the police asked the defe ndant his na me , w hic h h e pr ov ide d. Both o ff ic e rs te sti fi e d th a t th e de fe nd a nt h a d b e e n id e nti fi e d a s a person who ha d been f

ired from the restaurant where the robbery occur red. Both offic ers testified that they wer e aw are that the vi ctim had reported the assailant usi ng a knife, so when the de fenda nt kept placing his hands in pockets after being told to stop, the police dec ided to sear ch the de fenda nt for we apons.

At the c on c lus ion of the he ari ng , the tr ia l c ou rt de nie d th e de fe nd a nt’ s mo tio n to su pp re ss. The trial c ourt found that the initial police stop of the de fenda nt w as proper in that the description of the su sp e c t

g i v e nb y M oo dy “ su ff

ic ie ntl y matc he d th is [ d] e fe nd a nt s uc h th a t th e re we re art ic ula ble fac ts such that rea sonable suspicion wa s here , so that [the] stop wa s justified under the Te rry c ase.” Th e tr ia l c ou rt

fu rthe r h e ld that the of

fi c e rs ’ se arc h of the de fe nd a nt w a s ju sti fi e d g ive n th e of fi c e rs ’

“ c re dib le ” te sti mon y th a t “ Mr. Pittm a n [ wa s] a git a te d a ndc on sta ntl y p utt ing his ha nd s in his pockets. . . . [A ]ny reasonable office r i s going to be concerned in a situation like this because they knew that this person w ho robbed the Lone Star wa s armed w ith a knife

. . . . ” T h e t ri al court conclude d its findings by st ating that “once that was done and the money w as found matc hing the description that had been given to the officers concerning what was taken from the re staurant a long wi th a ll the oth e r p art s o f the de sc ri pti on of the su sp e c t th a t matc he d u p, I be lie ve the arr e st w a s a lso
proper .”

Standard of Review

“[A ] trial court’s findings of fac t in a suppression hearing will be upheld unless the evidenc e preponde rate s otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996) . Questions about the “cr edibility of the witnesses, the weight and value of the evidenc e, and resolution of conflicts in the evidenc e ar e matter s entrusted to the trial judge a s the trier of fac t.” Id. Both proof

prese nted at the suppression hea

ring and proof prese nted at trial may be considered by an appellate court in dec iding the proprie ty of the trial court’s ruling on a motion to suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998) ; State v. Perry, 13 S.W.3d 724, 737 (T en n

. C ri m. App. 1999). Howe ver, the
preva iling party “is entitled t o t h e s trongest legitimate view of the evidenc e adduc ed at the-13-

suppression hearing as well as all rea sonable a nd legitimate infere nces that may be dra wn from that evidenc e.” Odom, 928 S.W.2d at 23. Furthermore

, an appellate court’s revie w of the trial court’s application of la w to the fac ts is conducte d under a de novo standard of revie w. State v. Wa lton, 41 S.W.3d 75, 81 (Tenn. 2001) (citations omitted).

Both the feder al and s t at e constit utions offer pr otection from unr easona ble sea rche s and

se iz ur e s. Se e U. S. Con st. a me nd

. IV ; Te nn

. Con st. art

. I, § 7. “ [T ]h e mos t ba sic c on sti tut ion a l rule in this area is that ‘searc hes conducted out side the j udicial process, without prior approval by judge or magistrate , are per se unrea sonable u n d er the Fourth Amendment—subject only to a fe w sp e c if ic a lly e sta

bli sh e d a ndwe ll d e lin e a te d e xc ept io ns .’” Coo lid ge v. Ne w H a mps hir e , 4 03 U. S. 44 3, 45 4- 55 , 9 1 S. Ct. 20 22 , 2 03 2 ( 19 71 ) ( qu oti ng Katz v. Un ite d St a te s, 38 9 U. S. 34 7, 35 7, 88 S. Ct. 50 7, 51 4 (1 96 7) ); se e a lso Sta te v. Be rrios , 2 35 S.W .3 d 9 9, 10 4 ( Te nn . 2 00 7) . “ Ex c e pti on s to the war rant re quirement include sear ches inc ident to arre st, plain vie w, h o t pursuit, exigent

c ir c ums ta nc e s, a ndoth e rs , s uc h a s the c on se nt t o s e arc h. ” Be rrios , 2 35 S.W .3 d a t 10 4 ( c iti ng Sta te v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005)). Fourth Amendment c oncerns attach to “ all seizure s of the per son, including seizure s that involve only a brief detention short of tra ditional arre st.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct . 2574, 2 5 7 8 (1 9 7 5 ) (citation omit ted); see Terry v. Ohio, 392 U.S. 1, 16-19, 88 S. Ct. 1868, 1877-79 (1968)).

Additionally, our supreme c ourt has held that “a police office r may make an investigatory
sto p w he n th e of

fi c e r h a s a re a so na

ble su sp ic ion , sup po rt e d b y s pe c if ic a ndart ic ula

ble fa c ts, that a criminal off

ense ha s been or

is about to be co m m i t t ed

. ” S tate v. Bridges, 963 S.W.2d 487, 492 (Tenn. 1997) (citations omitted); see a lso Terry, 392 U.S. at 21. Our supreme court has also noted,

In dete rmining whether a police off

icer ’s re asonable suspicion i s supported by
sp e c if ic a ndart ic ula

ble fa c ts, a

c ou rt mus t c on sid e r the tot a lit y o f the c ir c ums ta nc e s. United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed.2d 621, 629 (1981). This includes, bu t i s n o t limit ed to, objective obse rvations, information ob ta ine d f ro m othe r p oli c e of

fi c e rs or a ge nc ie s, inf

orma tio n o btaine d f

ro m c iti z e ns , and the pattern of ope ration of c erta in offende rs. Id., 449 U.S. at 418, 101 S. Ct . at 695, 66 L. Ed. 2d at 62 9

. A court must also consider the ra tional infere nces a nd deductions that a trained police office r may draw from the fac ts and circ umstances known to him. Terry, 392 U .S. at 21, 88 S. C t. at 1880, 20 L. Ed. 2d at 906.

State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992) . “Likew ise, a frisk is warra nted under Terry if the police of

fice r has a rea sonable suspicion based on spec ific and a rticulable f

acts that the suspe ct is armed.” Bridges, 963 S.W.2d at 492 (c iting Terry, 392 U.S. at 27).

I nth is c ase, Ser geant He nson learne d through his interac tion with the victim t hat the assa ilant who robbe d the Lone Star Steakhouse car ried a knife a nd was dre ssed entire ly in black, wea ring a jacke t with large poc kets. He a lso learne d that the vi ctim identified the de fenda nt as a pe rson who had bee n fired from t he restaura nt rec ently. While on patr ol after leaving the r estaurant, he observe d a man dr essed e n t i re l y in black we aring a jacke t with large poc kets. Whe n Sergea nt Henson and Offic ers Cole a nd McMullen stopped the man, they asked for hi s name. Upon hearing the def endant ide nti fy him se lf, th e po lic e c on tin ue d q ue sti on ing him . W he n th e de fe nd a nt c on tin ue d p la c ing his-14-

hands in his pockets, eve n afte r t h e p o l i ce r equeste d that he stop doing so, the police, base d on informa ti o n th a t th e a s s a il a n t h a d u s e d a k n if e d u r in g th e r o b b e r y , c o n d u c te d a “ p a t- d o w n ” f

or

wea pons. When the office rs fe lt a bulge in the def endant’ s clothing, the police aske d the def endant about the bulge. The defe ndant re plied that the bulge was “his money,” a statement which ga ve the police proba

ble cause to conduc t a full sear ch and ta ke the money f

rom the def

endant. I n light of the totality of the circ umstances, we conclude that the police ha d rea sonable suspicion to detain the de fe nd a nt, a ndthat th e ir

se arc h o f the de fe nd a nt w a s p e rm iss ible un de r T e rry a ndre la te d c a se s. Con c lud ing that th e tr ia l c ou rt didno t a bu se its dis c re tio n in den yi ng the de fe nd a nt’ s mo tio n to suppress, we deny the de fenda nt relief on this issue.

II. De nial of De fenda nt’s Motion for Continuance

The de fenda nt nex t argue s that the trial court erre d by failing to grant his motion for continuance

, which he filed the day the trial began. The State argue s that the defe ndant has wa ived thi s is su e on app e a l f

or fa ili ng to i nc lud e it i n h is m oti on fo r n e w t ri a l. If no t wai ved, th e Sta te argue s that the trial court did not abuse its discretion by ref using to grant the continuanc e.

Th e Sta te c or

re c tly no te s th a t th e de fe nd a nt did no t ra ise thi s issu e in h is m oti on fo r n e w t ri a l. As such, the issue is w aived on appea l and the def endant is limited to plain error r eview. See Tenn. R. App. P. 3( e); Tenn. R. Crim. P. 52( b). In dete rmining whether pla in error revie w is appropriate, the following fac tors must be established:

(a ) [ T] he re c or d .

. . c le arl y e sta bli sh [e s] wh a t oc c ur

re d in the tr ia l c ou rt ; (b) a clea r and une quivocal rule of law [ has] be en bre ache d; (c) a substantial right of the a ccuse d [has] been a dverse ly affe cted; (d) the a ccuse d did not waive the issue f or tac tical re asons; and (e) consideration of the err or is “nec essary to do substantial just ice.”

State v. Smit h, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641- 42 (Tenn. Crim. App. 1994)). On appea l, the defe ndant has the bur den of e stablishing that these five fac tors are met. State v. Gomez, 239 S.W.3d 733, 737 ( Tenn. 2007) ( “Gomez II” ) (c iting S tate v. Bledsoe, 225 S.W.3d 349, 355 (Te nn. 2007)). The appellate court need not c onsider all five fac tors if any single fa ctor indica tes that relief is not warra nted. Smith, 24 S

. W.3d at 283. Our revie w of the plain er

ror f actor s leads us to conc lude that plain er ror r elief is not war

rante d in this case.

The re cord doe s acc urate ly refle ct what occurr ed in the trial court rega rding this issue. On October 4, 2005, th e morning t he trial wa s scheduled to be gin, the defe ndant filed a motion for continuance based upon two le tters Moody rec eived at the Lone Star r estaurant on O ctober 3. The letters we re se nt in the s am e en v el o pe, which bor e the r eturn a ddress of the Federa l Bureau of Investigation’s (FBI) Me mphis office a nd was purportedly sent by “Mr. Philip W. Thomas, Special Agent in Charge .” The envelope was a ddressed t o Micki Rhodes (Moody’s maiden na me) a t the

“ Lo ne Sta tr

[s ic ] S te akh ou se .” On e of the le tte rs , wh ic h wa s un sig ne d a nd a dd re sse d “ To wh om i t may conc ern,” was purportedly sent by Sergeant Henson on what the defe nd an t cl aimed to be Jackson Pol ic e D e p ar tm e n t s tati o n e r y

. I n th e le tt e r , th e a u th o r a d mi tt e d to f

a ls if y in g e v id e n ce

a ga inst th e defe nd a nt. In the oth e r l e tte r, pu rp orte dly se nt b y Sp e c ia l A ge nt T ho ma s o n FBI-15-

stationery, the author claimed that the FBI was conducting an inve stigation related to the police investigation in thi s ca s e. The letter also wa rned “ anyone te stifying in court” aga inst commit ting perjury, w hich the author described as “not onl y a material crime, [but also] a[ n] immoral ac t that can le ad to t he dis ruption and mi scar riage of justice.” T his court’s re view of the letters re veals that bo th l e tte rs c on ta in s pe lli ng a ndgr a mmatic a l e rr or s.

At the hea

ring on the continuanc e motion, Investigator Miller testified that the letter purportedly f

rom Sergea nt Henson wa s printed on letterhe ad that was not consistent with the actua l letterhe ad used by the Jackson Police De partment. Spec ifi cally, Inve stigator Miller said that the letterhe ad on which the letter to Moody was written lacke d the name of the Jac kson mayor and police chie f, and he also noted that the Jackson Police Depa rtment letterhe ad did not have the images of the Jac kson city seal and a Jackson police badge, a s seen on the letter se nt to Moody. S erge ant He ns on te sti fi e d th a t he didno t w ri te the le tte r o r se nd it to Mo od y. Re ga rd ing the le tte r p ur

po rt e dly fr om t he F BI
, S pec ia l A ge nt T od d M c Ca ll t e sti fi e d th a t th e le tte rh e a d u se d in the le tte r s e nt t o Mo od y w a s “ no t e ve n c los e ” to tha t whic h the FBI us e s. A le tte r se nt by S pe c ia l A ge nt M c Ca ll t o Ja c ks on Pol ic e Chi e f R ic ha rdS. St aple s a nd wri tt en on o ff ic ia l FBI le tte rh e a d w a s a dmi tte d in to evidenc e. The officia l FBI letterhe ad contains the FBI shield and the phrase “U.S. Depa rtment of Justice,” ne ither of which is pr esent on the letter sent to Moody. Specia l Agent McCall also testified that the “e nvelope that this [letter ] allege dly was conta ined in . .

. i s not of the format used by the Depa rtment of Justice or

the Feder al Bureau of Inve stigation.” He noted that Special Age nt Thomas had not bee n employed by the FBI since July 2003. At the end of the hearing, the trial court de nied the def endant’ s motion for a continuanc e, ruling that the letter s were “a f abric ation, based on the evidenc e I’ ve hea

rd.” The court a lso ruled that the letter s could not be re fer ence d at trial.

Howeve r, the de fenda nt cannot esta blish that a clea

r and unequivoca l r

ule of law has bee n brea ched in this ca se. The T ennesse e Supreme Court h as h el d t h at “[t]he trial court’ s denial of a continuance will b e reverse d only if it appear s that the trial court abused its discretion to the prejudice of the de fenda nt.” State v. Odom, 137 S.W.3d 572, 589 (Te nn. 200 4 ) (c i t i ng State v. Hines, 919 S.W.2d 573, 579 (Te nn. 1995)). “ An abus e o f d i scre tion is demonstrated by showing that th e fa ilu re to gr a nt a c on tin ua nc e de nie d [the ] de fe nd a nt a fair tr ia l or that it c ou ld b e re a so na

bly conclude d that a differe nt result would have f ollowed had the c ontinuance be en gra nted.” Hine s, 919 S.W.2d at 579 (c iting S tate v. Woode n, 658 S.W.2d 553, 558 (Tenn. Crim. App. 1983)). In this case

, the def endant ha s not shown proof of e ither criterion for e stablishing an abuse of disc retion re garding

a conti nuance . The de fenda nt argue s that the testimony at the hearing on the continuance motion was “ one-sided” given that the only witnesses we re la w enf orce ment officia ls, but the defenda nt has offe red no pr oof re garding potential witnesse s whom he could have called and the testimony they could have offe red. Furthermore, a t trial t he def endant e xtensively cross- examined the testifying Jack s o n p o l ice of

fice rs re garding the e vidence the police c ollected f rom the def

endant a nd the

manner in which the evide nce w as collec ted—i.e., the substance of the letters. As such, the defe n d a n t h a s n o t e s ta

b li s h e d th a t h e w a s p r e

ju d ic e db y th e tria l c o u r t’ s d e n y in g th e c o n ti n u a nce. The de fenda nt is therefor e denie d relief on this iss ue.

III . Sufficienc y of Evidenc e

Th e de fe nd a nt n e xt a

rg ue s that the e vid e nc e pr od uc e d a t tr ia l wa s ins uf fi c ie nt to s up po rt

his-16-

c on vic tio ns . I n h is b ri e f, the de fe nd a nt d oe s n ot a dd re ss t he e vid e nc e a s it

re lates to the e le me nts of the of fe ns e s f or wh ic h h e wa s c on vic te d. Ra the r, th e def e nd a nt’ s so le arg ume nt r e ga rd ing thi s iss ue is that th e e vid e nc e wa s in su ff icien t to est abli sh be yo nda re a so na ble do ub t th a t he a c tua lly committed these off

enses. W e disagre e.

An appe llate cour

t’s standard of

revie w when the defe ndant questions the sufficie ncy of the evidenc e on appe al is “whe ther, a ft er v i ew i n g the evidenc e in the lig ht most favorable to the
prosec ution, any

rational trier

of fa ct could have found the esse ntial elements of the c rime beyond

a re a so na ble do ub t.” Jac ks on

v. Vi rg ini a

, 44 3 U .S. 30 7, 31 9, 99 S. Ct. 2 78 1, 27 89 (1 97 9) (e mph a sis in orig inal). The a

ppellate c ourt does not rew eig h the evidence; rather, it presumes that the jury has resolved a ll conflicts in the testimony and dra wn all re asonable infere nces f rom the evide nce in f

avor of the State. See State v. Sheff ield, 6 76 S.W .2d 542, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W .2d 832, 835 (Tenn. 1978)

. Questions reg ardingwitness cre dibilit y , conflicts in testimony , and the weig ht and value to be g iven to evidenc e we re r esolved by the jury . State v. Bla

nd, 958 S.W .2d 65 1, 65 9 ( Te nn . 1 99 7)

. A g uil ty ve rd ic t re mov e s the pr e sumpt ion of inn oc e nc e and re pla c e s it w ith
a pre sumption of guilt, and on appe al the def endant has the burden of

illust ratingwhy

the evidenc e is insufficient to support the j ury ’s ver dict. I d.; State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982). This standard a

pplies to findings of guilt based upon direc t evidence , circ umstantial evidence , or a combination of both dir ect and circ umstantial e vidence

. State v. Penderg rass, 13 S.W .3d 389, 392- 93 (Tenn. Crim. App. 1999)

.

As s t at ed above, the def

endant’ s sole contention re garding the suf ficienc y of the e vidence is tha t t h e evidence w as insufficie nt to establish the defe ndant as the pe rpetrator. “[T] he ide nti fi c a tio n o f a

de fe nd ant a s th e pe rs on

wh o c omm itt e d th e of

fe ns e fo r whic h h e is o n tr ia l is a qu e sti on of fa c t f or the de te rm inatio n o f t

he jur y up on c on sid e ra

tio n o f a ll c omp e te nt p ro of .” State

v

. Str ic k la

n d
, 8 8 5 S. W. 2 d 8 5
, 8 7 ( T e n n

. Cr im

. Ap p

. 1 9 9 3 ) ( c it in g St a te v

. Cr aw f o r d
, 6 3 5 S.W .2d 70 4, 70 5 ( Te nn . Cr im. Ap p. 19 82 ))

. Th is c ourt ha s c on sis te ntl y he ld that “ the te sti mony of a vic tim
, by itself, is sufficie nt to support a convic tion.” I d. (citing State v. Wil liams, 623 S.W .2d 118, 120 (Tenn. Crim. App. 1981) ); see a lso St ate v. Hill, 987 S.W.2d 867, 8 7 0 (T en n

. Crim. App. 1998); State v. McMaha

n, 614 S.W .2d 83, 85 (Tenn. Crim. App. 1981)

.

I n this case, Moody , the re staurant mana g er, testified that a man dresse d in black robbe d her,

and wh ile sh e did no t se e the man’ s fa c e , sh e te sti fi e d th a t th e de fe nd ant’ s b uil d w a s c on sis te nt w ith the assailant’ s. The victim identifie d most of the clothing rec overe d from the de fenda nt following his arre st as clothing w orn by the assailant, a

n d she said that other

clothing r ecove red f

rom the de fe nd ant was “ consistent” with the assailant’ s clothing. She also testified that money kept at the Lone Star r estaura nt was often w rappe d in bank slips bearing the na me o f F i rst Tenne ssee Bank, wher e the r estaura nt mai n t ai ned its acc ount, or bundled with pape r clips. Some of the money

rec overe d from the de fenda nt at the time of his arr est was bundled w ith Fi rst Tenne ssee b ands or
paper clips.

The a bove evide nce w as sup ported by the te stimony of Josh Irvin, who assisted the def endant in committi ng these offe nses. Irvin testified that throughout the evening of the robbery, he and the defe ndant made se veral ce l l u l ar phone calls betwe en ea ch other . In the fir st call, the def endant-17-

informed I rvin that he intended to r ob the restaur ant. In later calls, the defe ndant informed Irvin that he was approa ching t he restaura nt on a bicycle and asked Irvin how m any people rema ined i n the
restaur ant. Irvin testified that as he wa s leaving th e re s t au ra n t , he saw in the restaur ant a man dresse d in black. At the t i m e he w as stopped by police, the defe ndant was dr essed in blac k and either pushing or riding a bicycle.

Th e de fe nd a nt a

rg ue s th a t I rv in’ s te sti mon y is un re lia ble giv e n h is i nc on sis te nt s ta te me nts to police, his termination from a previous restaur ant job, and the fa ct that his testimony was offe red pursuant to a plea agre ement, and the defe ndant also argue s that Irvin’s physica l description matche s that of the a ssailant. Despite these fac ts, the jury still chos e t o ac cr ed i t Irvin’s testimony, as wa s within its province as t rier of fac t. The defenda nt also argue s that the clothing rec overe d from the defe ndant was only “ in the most genera l sense . . . similar to that of the robbe r,” but a fter listening to the testimony, which included exte nsive cr o s s-examination of police witnesses r egar ding the particula r types of clothing r ecove red from the defe ndant, the jury chose to discredit this argument through its guilt y verdic t. The e v i d en ce p roduced at trial wa s sufficient f or the jury to conc lude be yo nda re a so na ble do ub t that the de fe nd a nt wa s the pe rs on wh o r ob be d th e Lo ne Sta r S te akh ou se the night in question. Accordingly, the de fenda nt is denied relief on this iss ue.

IV. Sentenc ing

On app e a l, the de fe nd a nt a rg ue s th a t th e tr ia l c ou rt

imp os e d e xc e ssi ve se nt e nc e s f or his individual sentence s, and that the trial c ou rt er red by imposi ng consec utive sentenc es . After revie wi n g t h e record, we conclude that the trial cour t committed no error

in sentencingthe de fe nd ant.

An appe llate cour

t’s revie w of sentencing is de novo on the record with a pr esumption that th e tr ia l c o u rt’ s d e te r

mi n a ti o n s ar e c o r

r e c t. T e n n

. Co d e A n n

. § 4 0

- 3 5

- 4 0 1 ( d) (2006)

. As the SentencingCommi ssion Com ments to this s ection n o t e, o n appea l the burden is on the de fenda nt to show that the sentenc e is improper. This mea ns that if the trial cour

t fo llowed the statutory
sentenc in g p r o c e d

u r e , ma d e f

in d in g s o f

f a c t t h a t a r e a d e qu a te ly

s u p p o rte d in th e r e c o r d
, an d

g ave due conside ration an d proper weig ht to the fac tors and princ iples that are rele vant to sentenc ing under the 1989 SentencingAct, the c ourt may not disturb the se ntence even if a diffe rent re sult were pref err ed. State v. F letcher , 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

.

In c o n d u c t i n g i t s d e n o v o r e v i e w , t h e a p p e l l a t e c o u rt m u s t c o n s i d e r ( 1 ) t h e e v i d e n c e , i f an y,

rec eived at the trial and sente ncing hear i n g, (2 ) t h e prese ntence repor t, (3) the pr inciples of
sentenc ing a

nd arguments as to sentenc ing a lterna t i v es , (4) the nature a nd char acte ristics of the criminal conduc t, (5) any mitigating or statutory

enhanc ement fa ctors, (6 ) any statement that the defe ndant made on his own behalf, a nd (7) the pote ntial for re habilitation or treatment. Te nn. Code Ann. §§ 40 -3 5- 10 2, -1 03 , - 21 0 ( 20 06 ); se e State v. As hb y , 8 23 S.W. 2d 16 6, 16 8 ( Te nn . 1 99 1) ; State v. Moss, 727 S.W .2d 229, 236-37 (Te nn. 1986).

Length of Sentence-18-

The de fenda

nt committed his offe nses i n November 2005; thus, he was se ntence d under the revised se ntencingact a s enac ted by the Tenne ssee Ge nera l Assem b l y i n J u l y 2005. The a ct pr ov ide s:

(c) The court shall impose a sentence within the rang e of punishment, deter mined by whether the def endant is a mitig ated, standa rd, per sistent, car eer , or re peat violent offe nder. I n imposing a specific sentenc e within the rang e of punishment, the court sh a ll c on sid e r, but is no t bo un d b y , th e fo llo wi nga dv iso ry se nte nc ingg uid e lin e s:

(1) The minimum sentenc e within the ra ng e of p u n i s h ment is the
sentenc e that should be im posed, bec ause the g ener al assembly set the minimum leng th of sentenc e for eac h felony cl as s to refle ct the relativ e seriousness of e ach c riminal offe nse in the fe lony classifications; and (2) The sentenc e len gt h wi thin the rang e should be a djusted, as
appropr iate, by

t h e presence or abse nce of mitigatingand enhanc ement fa ctors set out in §§ 40-35-113 a nd 40-35-114.

Tenn. Code Ann. § 40- 35-210(c )(1) -(2) (2006).

The we ight to be a ffor ded an e nhance ment or mitigating f actor is left to the trial cou rt’s discretion so long as its use complies with the purposes a nd principles of the 1989 SentencingAct and the c ourt’s finding s are adequately supported by t h e re co rd

. I d. § (d)- (f) ; State v. Carter, 254 S.W .3d 335, 343 (Tenn. 2008). “An appellate court is there fore bound by a trial c ourt’s dec ision as to the leng th of the sentenc e imposed so long as it is impos ed in a manne r consistent with the
p u r p o s e s an d p r i n c i p l e s s e to u t i n

. . . t h e S e n t e n c i n g A c t

. ” C art e r , 2 5 4 S

. W

. 3 d a t3 4 6

. A c c o r d i n g l y, on appea l we may

only revie w whethe r the e nhance ment and mitigating fac tors wer e supported by the re cord a

nd their application was not otherwise ba rre d by statute. See id.

I n imposing a se ntence , the t ri al cour t may only consider e nhance ment fac tors that are “appr opriate f

or the off ense” and “not a lrea dy

. . . essential ele ment[s] of the off ense.” Tenn. Code Ann. § 40-35-114 (2006). These limi tations exclude enhanc ement factors “based on f acts whic h are used to prove the offe nse” or “fa cts which e stablish the elements of the of fense char g ed.” State v. Jone s, 88 3 S. W.2 d 5 97
, 60 1. Our su pr e me c ourt

ha s st a te d th a t “ [t]he purp os e of the lim itatio ns is
to a void e nhancingthe leng th of sentenc es base d on fac tors the leg islature took into consideration when e stablishing the r ang e of punishment for the offe nse.” State v

. P o o l e, 9 4 5 S.W .2d 93, 98 (Tenn. 1997) ; J ones, 883 S.W.2d at 601.

At the se nte nc inghe ari ng , th e State pr op os e d th e fo llo wi nge nh anc e me nt f a c tor s:

(1) The defe ndant has a

previous h is to r

y of cr iminal convictions or criminal beha vior, in addition to thos e nec essar y to establish the appropr iate ra ng e; (2) The defe ndant was a

leade r in the commission of an offe nse involving two (2) or-19-

mor e c ri min a l a c tor s; (8) The defe ndant, bef

ore tria l or sentenc ing, f

ailed to comply

with the conditions of
a sente nce involvingrele ase into the c ommunity ; and (13) At the time the f

elony was committed, one (1) of the following classifications

wa s a pp lic a ble to t he de fe nd ant: (B ) R e le a se d o n p aro le

.
Tenn. Code Ann. § 40- 35-114(1)-(2), ( 8), (13) (B) (2006) . Regarding mitigating fac tors, the defe ndant proposed two: “ The defenda nt’s criminal conduct neither caused nor threa tened se rious bodily injury,” see id. § 40-35- 113(1), a nd a provision in the especi al ly aggra vated kidnapping statute wher eby “[ i]f the of fende r voluntarily re lease s the vi ct i m alive . . . such a ctions shall be considere d by the court as a mitigating factor at the time of sente ncing,” se e id. § 39-13-305( b)(2)

. The trial c ourt found that all of the State’s proposed e nhance ment fac tor s ap p l i ed and gave great weight to enhanc ement fa ctor (13) (B). The trial court found that the mitigating factor e stablished in the espec ially aggra vated kidnapping statute applied but that the “ne ither causing nor threa tening serious bodily injury” fa ctor did not apply. The trial court senten ce d t he def endant a s a Range I I offe nder to nineteen years for his aggra vated robbery conviction, nine year s for his conviction for conspirac y t o co m m i t aggra vated r obbery, a nd thirty-eight year s for his espe cially aggr avate d kidnapping conviction.

Initially, w e n o te th a t th e d e f e n d a n t a r g u e s th a t th e tria l c o u r t’ s ap p li c a ti o n o f s e n te n ce enha n cement fac tors (2), ( 8), and ( 13)(B) violated his Sixth Amendment right to a jury trial. The Un ite d St a te s Su pr e me Cou rt ha s r e pe a te dly he ld that “‘[o]t her tha n the fa ct of a

prior convic tion,

any fa c t th a t in c re a se s th e pe na lty fo r a c ri me be y on d the statut or y ma ximummus t be su

bmi tte d to a jury , and prove d bey ond a re asonable doubt.’” Blakely v. Washington, 542 U.S. 296, 301 , 124 S. Ct . 2531, 2536 (2004) ( quoting Appr endi v. New J erse y , 530 U.S. 466, 490, 120 S. C t. 2348, 2362-63 (2000) ). F urthermor e, the Te nnessee Supreme Court has held that our for mer sente ncing act, one establis h i n g presumptive minimum sentences that r equire d the trial cour t to enhance
sentenc es base d on fac ts not found by t h e j u ry , v i olated the Six th Amendment as interpr eted by Blakely and its prog eny

. Gomez I I, 239 S.W .3d at 740-41 (c iting Cunning ham v. California, 549 U.S. 270, 275, 127 S. Ct. 856, 860 (2007)) . Howeve r, Tenne ssee’ s revised se ntencing ac t, which appli es to the defe ndant’s sente nces in this case , is one in which “[ i]mposition of a ‘pre sumptive
sentenc e’ in the a

bsence of enhanc ing and mitigating factors is no longer ma ndatory.” Gomez I I, 239 S.W.3d at 740 n.8 (c iting Tenn. Code Ann. § 40-35-210( c)) . The Supreme Court has held that systems suc h as Tenne ssee’ s “permit judges genuinely ‘to exer cise broa d discretion . . . within a statutory range ’” a nd “enc ounter[] no Sixth Amendment shoal.” Cunningham, 1594 U.S. at 294 (citing United States v. Bo o k er, 543 U .S. 220, 233, 125 S. C t. 738, 750 (2005)). A s such, the de fe nd a nt’ s Six th A me nd me nt- ba se d a rg ume nt r e ga

rd ing his se nte nc e s is wi tho ut m e ri t.

In this c ase, the sentenc es imposed by the trial court were within the statutorily-prescribed
range . See Te nn. Code Ann. § 40-35-112( b)(1) -(3) (2006) (for defe ndant convicted as a Range II offe nder, se ntence range for Class A felony is twe nty-five to f orty yea rs; for Class B felony, twe lve
to twe nty ye ars; for Class C felony, six to ten year s). Regarding the enhanc ement fac tor s , t he
pr e se nte nc e report de ta ils that th e de fe nd a nt h a d a n e xte ns ive his tory o f p re vio us c on vic tio ns ,-20-

including a 1984 armed robbe ry convic tion for which he was o n parole at the time of the instant offe nses, a 1972 a

rmed robbe ry convic tion, and numerous misdemea nor convic tions for offe nses including assault, disorderly conduct, vandalism, and theft. The re cord a lso supports application of the “lea der in the commissi on of a felony involving two or more ac tors,” as the defe ndant enlisted Jo sh Irvin ’s a ssi sta nc e in r ob bin g th e Lo ne Sta r r e staur a nt. Th e re c or d re fl e c ts that th e tr ia l c ou rt , as re quired by statute, c onsidered both mitigating fac tors proposed by the defe ndant. The trial court applied only one of

the mitigators, as was within its discretion. B eca use the re cord supports the trial court’s a pplication of enha nceme nt fac tors, and bec ause the defe ndant’s sente nces w ere within the

app ro pria te rang e s, we c on c lud e that th e se nte nc e s impo se d b y th e tr ia l c o urt r e fl e c te d a n a pp ro pr ia te

exer cise of the trial court’ s discretion, and w e will not disturb the s entenc es on appea l. See Carte r, 254 S.W.3d at 346. The de fenda nt is denied relief on this iss ue.

Consecutive Se ntencing

The tria l c o u r t o r d e r e d th a t th e d e f e n d a n t’ s th r e e s e n te n c e s in th is c a s e b e s e r v ed

c on se c uti ve ly t o e ach ot her, re su lti ng in a tot a l se nte nc e of

six ty- six ye ars . T he tr ia l c ou rt a lso order ed that these sentenc es be se rved c onsecutively to his life sentenc e for a pre vious armed

ro bb e ry c on vic tio n, a se nte nc e fo r wh ic h he wa s on pa ro le a t th e tim e he c omm itt e d th e se of fe ns e s. See Te nn. R. Cri m

. P

. 32(c) (3)( A). Rega rding the pre vious conviction, the prese ntence report indicates that in 1984, t he defenda nt was c onvicted of a rmed robbe ry and se ntence d to life in prison. This court af

firmed the de fenda nt’s conviction on appe al. See State v. La rry Pittman, C.C.A. No. 20, 1986 WL 4841 (T enn. Crim. App. at Jac kson, Apr. 23, 1986). The pre sentenc e re port indicates that in March 2002 the defe ndant was gr anted pa role, whic h was re voked in January 2006 following his arre st in this case

. No order granting or revoking the def endant’ s parole a

ppear s in the rec ord; ho we ve r, de sp ite thi s d efi c ie nc y, the de fe nd a nt d oe s n ot atta c k th e tr ia l c ou rt ’s or de r tha t hi s

se nte nc e s in thi s ca se be se rv e d c on se c uti ve ly t o h is s e nte nc e fo r a rm e d r ob be ry . A s su c h, we wi ll

on ly a dd re ss the de fe nd a nt’ s c on te nti on that th e tr ia l c ou rt e rr e d in or de ri ng that his se nte nc e s in this

case be ser ved conse cutively to eac h other.

Th e tr ia l c ou rt

or de re d th a t th e de fe nd a nt’ s se nte nc e s in th is c a se be se rv e d c on se c uti ve ly t o

eac h other ba sed on the de fenda nt’s extensive c riminal history and his status as a dange rous offe nder. See Te nn. Code Ann. § 40-35- 115(b)( 2), (4) (2006). Simi larly, the defe ndant argue s that the trial

c ou rt ’s imp os iti onof

c on secutive se nte nc e s v iol a te d h is righ ts u nd e r the Six th A me nd me nt. Howeve r, t he Tennessee Supreme Court has he ld that our statutory scheme , in which the trial c ourt

ma y impo se c on se c uti ve se nte nc e s if it d e te rm ine s th a t certa in statut ory f a c tor s a re e sta bli sh e d in the re cord by a

preponde ranc e of the e vidence , does not offe nd a def endant’ s right to a jury trial under t h e Sixth and Fourteenth Amendme nts. See State v. Allen, 259 S.W.3d 671, 688-90 ( Tenn. 2008). Th e re c or d r e fl e c ts tha t the tr ia l cou rt e xp la ine d in gr e a t de ta il h ow the re c or d s up po rt e d it s findings that the defe ndant’s exte nsive criminal re cord, detailed above, justified the i mpositi on of

consec utive sentenc es. Thus, the trial court’s imposition of consec utive sentenc es base d upon the defe ndant’s criminal his t o ry was prope r. Regarding the trial court’s imposition of consec utive
sentenc es base d upon the defe ndant’s status a s a danger ous offe nder, our supreme court ha s held that

w hen the tria l court imposes consec u t i v e s entenc es base d on the def endant’ s dang erous of

fende r status, the trial court must, “in additi on to the application of gene ral principles of sentenc ing,” find-21-

“that an e x tended se ntence is ne cessa ry to pr otect the public ag ainst further criminal conduc t by

the defe ndant and that the c onsecutive se ntence s must rea sonably relate t o the s ever ity of the off enses committed.” State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 1995). The re cord r efle cts that the tri a l c o u r t d idn o t m ak e th e r e q u ir e d W il k e r s o n f in d in g s o n th e r e c o r d

. H o w e v e r , o n ly o n e f a c tor is neede d for the trial court to ac t within it s discretion to impose consec utive sentenc es. See Te nn. Code Ann. § 40-35-115, Sentenc ing Comm ’n Cmts. Ac c or din gly , th e de fe nd a nt i s n ot e nti tle d to relief on this iss ue.

CONCLUSION

In consider ation of the for egoing and the r ecor d as a whole, the judgments of the trial court

are aff irmed.

___________ _ _ _ _ _ _ _ _ _ ___________ D. KELLY THOMAS, JR., JUDGE