### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT JACKSON Ass ig ne d o n B rie fs Octo be r 7, 2 00 8

STATE OF TENNESS EE v . JO SEPH W AYNE GRAVES

Direc t Appeal from the Circ uit Court for Dec atur County No. 05-CR

219 C. Cre ed McG inley, Jud ge

No. W2007-02552-C CA-R 3-CD - F iled October 13, 2009

Following a jury

trial, Def endant, Joseph Way

ne Gr aves, w as found g uilty of ag g rava

ted assault,
ag g rava ted robbe ry , ag g rava

ted kidnapping , and thef

t of proper

ty valued a t more than $500 but less than $1000. The tria l court imposed an e ffe ctive sente nce of six ty -three y ear s. On appe al, Def endant a lleg es: (1) the trial court e rre d when it denied his motion to suppress evidenc e; (2) the evidenc e pre sented doe s not support his convictions; and (3) the trial c ourt err ed whe n it
sentenc ed him. After

a ca ref ul reviewof the re cord a

nd the applica

ble law, we aff

irm Grave s’ convictions; howeve r, we conclude that double jeopar dy protec tions require tha t the convictions for a g g rava ted robbe ry , ag g ravated assault, and the ft be mer g ed. Ac cording ly , we r emand to the trial court f

or purpose s of merg er a

nd for e ntry

of cor rec ted judg ments of conviction.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

T H O M A S T. W O O D A L L , J ., delivere d the opinion of the cour t, in which D A V I D H. W E L L E S and J .C. M C L I N , J J ., joined.

Guy T. Wil kinson, Camden, Tenne ssee, f or the De fenda

nt, J oseph Way

ne Gr aves.
Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter ; Michael E. Moore , Solicitor Genera l; Sophia S. L ee, A ssistant Attorney Gene ral; Ha

nsel McCada ms, District Attorney Gene ral; Jerry W. W allace and Jennifer A. H edg e, Assistant District Attorney s Gene ral, for the Appellee , State of Tenne ssee.

OP INION I. Background

A. Sup pression Hearing

The trial court held a preliminary suppression hear ing to deter mine whether to suppress the following evidenc e: a roll of money , a bloody knife, a bandana
, and a towel. At the hear ing, Offic er Mike Har ralston o f t he Dec atur County Sheriff’ s Depa rtment testified that he was dispatched toinvestiga te an “incident” on Aug ust 14, 2005. Offic er Har ralston said he went to Debr a Phoenix ’s house to arr est Def

endant. Whil e there
, he talked with Phoenix
, who “indicate [d] ” that she resided there
, and s h e co nsented to a sear ch of the premises. Offic er Har ralston said Phoenix verba lly

co n s ented to a search that morning
, and she later signed a writt en consent form. Whil e searching the house, the poli ce found money , a bandana
, and a bloody knife. A pink towel was found in Def endant’ s pick-up truck, which was parke d in the driveway of the house. After seeing the pi nk towel in the truck, the p o l ice took possession of the vehicle, and they later obtained a war rant to

sear ch the truck. Offic er Har ralston descr ibed the scene by say ing, “Upon walking to the truck y ou could

. . . see a pink towe l la y ing in the seat that rese mbled – highly rese mbled to me the towel or

a piece of the towel that rese mbled the bindings that wer e used to restra in

. . . the victim.” He said the police took custody

of the towe l with Phoenix ’s conse nt.

On cross-e x amination, Offic er Har ralston testified that Phoenix signe d the written conse nt form to sear ch her house at the Dec atur County Sheriff’ s Depa rtment, as opposed to the Hende rson County Sheriff’ s Depa

rtment, even though her house was in Hende rson County

. Offic er Har ralston said that while at Phoenix ’s house betwee n 5 and 7 A

. M ., he asked Def endant, who was not y et under

arr est, to consent to a sear ch. Def endant “would not say a word,” and instead, “[h] e sat in the back [of the police cruiser ] and smiled.” Offic er Har ralston said he then asked Phoenix if she consente d
to a sear ch, and she said, “‘N o problem.’” He said the police went into a room in the house that was in “seve re disarra

y .” I n that room, “[t] here was a

. . . blue and white bandana

. There was a box on the headboa

rd full of knives. And under the mattress of [Defenda nt] and Debr a Phoenix
, on the side that [] Phoenix state[d] that [Defenda nt] sle[pt] o n, approximately three inches under the mattress

was a roll of money .” Phoenix told Offic er Har ralston that she “ha[d] a lifetime dowry to that home and she live[d] t here .”

Concerning the truck, the police knew it was reg istered to the Def endant, but they sear ched it because “[Phoenix ] gave consent to sea rch he r home a

nd ever y thing on he r proper

ty .” Throug h

one of the truck’s windows, an office r saw the pink towel along with a blue towel, a bag of pretzels, and a box of shotgun she lls. P hoenix s ubsequently consente d to a sea

rch of the truck.

Def endant testified that he had just taken a shower and was g etting dresse d when the police

came into his bedroom at 4:30 A

. M

. Phoenix was still in her bedroom, and her fourtee n-y ear -old son let the police into the house. Def endant stated that the police h an d cu ff ed h i m and put him immediately into th e cr u i s er , wher e he was partially admonished of his Miranda rig hts and then driven to the Dec atur County jail. Def endant maintained t h at h e and Phoenix had separ ate bedrooms. He also stated that a woman named Be tty Peterson owned the house, even though he had lived there for f

ive y ear s.

After hear ing the evidenc e, the trial court denied the motion to suppress, and it allowed the evidenc e to be a dmitted at trial.

B. Trial

2Doris Tharp testified t h at around midnight on Aug ust 13, 2005, she was attacke d while

closing her restaur ant, the Oak Hill Café, for the night. Tharp said that, afte r locking the doors, she and her co-w orker walked to the restaur ant’s parking lot. Her co-w orker waited to leave the parking lot until afte r T h ar p s tarted her truck. Tharp said that, when she g ot to the main highw ay , she real i z ed she had a flat tire. Consequently
, she returne d to the restaur ant’s parking lot and made phone calls for help. She was unable to rea ch any one, and she decide d that she would exit her truck
to use the restaur ant’s bathr oom. Tharp said she took he r persona l gun with he r and walked to the door. She was beg inning to unlock the door to the restaur ant when, suddenly
, “ther e was a shotgun in [her] fac e.” Tharp rec ounted, “[A]s the shotgun g ot in my fac e [t he man holding the g un] pumped it

. . . He ejec ted .

. . a shell.” The man y elled at her to “throw [ her] g un down” and threa tened to “blow [her] head off.” Tharp rea liz ed that the man had a sawe d-off shotgun, and she place d her g un

on the g round. Tharp said the man wore a blue and white bandana over his fac e and a black cap over his head. She could only see his ey es. The man order ed Tharp to walk and led her to her truck. At that point, they both g ot in her truck, and he directed h er t o d ri ve towards L exington, Tenne ssee. The man told her that he had two gu n s “o n h er

. ” Eventually
, they stopped driving
, and the man made Tharp g et out of the truck and lie on the g round on her stomach. Tharp rela ted, “[H]e tied me up, y ou know, made me put my hands behind me.” She adde d
, “[ A] t first he just tied my hands toge ther and he put a knife up to my throat, y ou know. He shoved my head down in the g round, told

me not to – not to look up.

. . .” Tharp said she could fee l the knife and she “wa s scar ed to death he

was g oing to kill [her ]

. ” T h e man took her watch and money from her pockets. He also pilfere d throug h the truck. Tharp said whene ver she l i ft ed h er h ead he “shoved [her] head back into the
g round.”

At one point, the man then sat on Tharp’ s buttocks and rea ched around her body and place d his hands inside her clothing. She said he touched her on the front of her body in betwee n her leg s, and he “ squeez[ed] [her] but t, touch[ed] [her] but t, and patt[ed] [ her] on the butt.” He a lso pulled her “up toward[s] him” while t ouching her. Tharp s t at ed that, afte r t his, her pants and underwea r

wer e torn. Be fore the man left, he tied her fee t, and then he bound her hands and fee t toge ther with

a belt. Tharp rec ounted, “[T] he last thing that he did, he came back over to me, y ou know, afte r he’d tied me up and stuff

, and he put the . . . knif

e back upon my throat.” He told he r that, if she raised her he ad “w ithin the nex t fifteen minutes,” he would “c ut [ her] throat fr om ear to ear .”

Tharp stated that, afte r she lay there for awhile, she eventua lly beg an try ing to fre e herse lf. She said she did not know if fiftee n minutes had passed, and she could not see him, but she decide d to roll herself dow n the hill. Once down the hill, she cra wled throug h the wee ds until she came to someone’s h o u s e. T h ar p said the woman who l ived i n the first house would not help her, but the couple who lived in the se cond house le t her inside to see k help.

After Tharp hear d De fe n d an t was the lead suspect for her case , she and her son went to Phoenix ’s h o u se to see if she could find her key s in his truck. Whil e there
, Tharp’ s son found

wea pons in the bus hes. Tharp said, “The shotgun and my g un w[e re ] found right at the right side of [P hoenix’s] house and under the bushes

. . . .” On cross-e x amination, Tharp said the police
returne d around $900 to her. Tharp stated that she boug ht her gu n from a man in L exington,

3Tenne ssee. When she tried to reg ister it, the S h er i ff would not help her beca use she had a beer license, but he did tell her t o keep it near her when at the restaurant. Tharp said she did not know who attac ked her

beca use she only

saw his “de ep set da

rk ey es.”

Offic er Har

ralston testified that at around 2 A

. M

. on Aug ust 14, 2005, he was dispatched to Eddie Weatherf

ord’s residenc e. There
, he saw the victim with “strips of a towel, a bath towel, tied around her wrists and one of her ankles. Her pants wer e torn. There was a belt in her lap.” Offic er Har ralston said the towel was “lig ht pink polka-dotted” with “some red threa ds on the border .” He descr ibed the belt as braide d. Offic er Har ralston stated, “[ T h ar p ] h ad o n a – like a lime g ree n Tshirt. I t had sever al seeds stuck to it. The crotc h o f h er blue jeans was ripped, exposi ng her underw ear .” He said it “looked like she’d been rolling around in the wee ds.” Additionally
, Tharp’ s shirt had blood on it. Offic er Har ralston said he went to Oak Hill Café, and he found a “spent twelve- g aug e shotgun hull in the front parking lot.” When he inspected Tharp’ s truck, he discovere d that it had a “shre dded front tire, like it had slits all in the sidewall.” Tharp’ s purse and a black bag

wer e both still i n the truck.

Offic er Har

ralston said he went to Phoenix ’s house, wher e Def endant was sta y i n g, and Phoenix consente d to a sear ch of her house. I n the house, the police found a blue bandana
, a black ball cap, a bl oody knife, and a roll of m oney containing $999.00 under the Def endant’ s mattress. Some of the bills in the roll of money had blood on them. Additionally
, the poli ce fo und a pink towel, l ike the one use d to bind the vi ctim, in Def endant’ s truck. As for the g uns used, t he poli ce found a sawe d-off shotgun whose shells matched those of the one found at Oak Hill Café, and they found a .38 colt revolve r in the bushes near Def endant’ s house. There was a box of shotgun shells in Def endant’ s truck of the same brand, siz e, and color as those within the shotgun and on the g round at Oak Hill Café. Office r Ha rra lston said, when he trie d questioning Defe ndant, Defenda nt asked for a lawy er.

On cross-e x amination, Offic er Har ralston said the shotgun was untrac eable
, and the revolve r

was not reg istered. He did not send either the g uns or the knife for further analy sis. He also admitted that h e d i d not know for sure if the s pots he saw on the m oney found under the m attress

wer e blood. Off

icer Har ralston stated that he found $229 in a de posit bag in the victim’s truck.

Special Ag ent Donald Carmen with the Tenne ssee Bur eau of I nvestig ation (“TB I ”) testified that he specia liz ed in microscopic examinations of firea rms. He said the shotgun was manufa cture d by Stevens, and it was a

pump-ac tion g un. He said the safe ty fea ture on the g un did not function. He also matched the shotgun shells from the g un to the shell found in the Oak Hill Café parking lot. Finally , he stated tha t the g un’s leng th made it a prohibited we apon under Tenne ssee law

.

TBI fiber analy st L inda L ittlejohn testified that she matched one of the towels on the victim to the towel in Def

endant’ s truck. She said another piece of the towel she found on the victim did
not conclusively match the towel fou n d i n t he truck. On cross-e x amination, Ag ent L ittlejohn explained that she could not piece t h e towel back toge ther beca use of “the condition of the
separ ations.” She also said she did not test the towe l for blood.

4TBI ag ent Br adley Evere tt, a serolog y DNA expert, testified that the blood found on Tharp’ s

tee- shirt ma tched Def

endant’ s blood. On cross-e x amination, Ag ent Evere tt sa id he did not test all the blood spots.

Hea ther West, Tharp’ s g randda ug hter, testified t h at she saw Def endant at Oak Hill Café around 11:30 P

. M

. on Aug ust 13, 2005. She said he was “dre ssed in dark clothes, a s h i rt , [and] pants.” He also wore “a bandana like a do- ra g on his head with a cap over it.” She descr ibed t he bandana as being dark blue. West said Def endant was at the restaur ant for only five to ten minutes.

Floy d Edwar d Weatherf

ord testified that ear ly Aug ust 14, 2005, he hear d dog s barking and

a kno ck at his door. He saw Tharp there
, and she had “some things tied around her arms and her ankles and stuff, and she had g rass and differ ent things on her.

. . .” He said he called the police for her.

Offic er J ere my

I nman with the Dec atur County Sheriff’ s Depa

rtment said he fing erpr inted Def endant, who ha d a cut on his rig ht thumb, at the jail.

Mark Tolley
, an officer with the Henderson C ounty Sheriff’ s Depa

rtment, testified that he
went with anothe r o ff

i ce r t o fi nd Def

endant at Phoenix ’s house. He said he did not take any evidenc e himself, but he did see the money under the left side of Def endant’ s mattress and the g uns propped ag ainst a tree outside. Tolley stated that Def endant normally dresse d in boots, blue jeans, and a bandana on his head. On cross-e x amination, Tolley explained tha t he was involved with the

case beca use Phoenix lived in Hender son County

.

Debr a J ean Phoenix testified that Def endant lived with her at the proper ty her mother owned. She said that she usually went to bed around 10 P

. M ., and she did not know where Defenda nt was most of the time. She said Def endant owned sever al leather belts. Phoenix said the g uns found wer e “on the other proper

ty next door,” as opposed to on her proper ty

. She stated that the g uns rema ined on her pr operty

until the police took possession of them.

On cross-e x amination, Phoenix said the Def endant was still awake when she went to bed on Aug ust 13, 2005. She testified that she was unawa re any thing had happene d until the police came to her door ear ly the next morning

. Phoenix ackno wl ed ged that Def endant was marrie d and that sometimes his wife would come and g et him from the house; she did not know whether Def endant’ s wife c ame that nig ht.

For the defe nse, Be tty J ordan testified that she employ ed Def endant and a man named Arvie Wheat on Aug ust 14, 2005, to remove the roof and shingle s from her house. She said Def endant cut his hand and kept a rag wra pped around his hand. J ordan reca lled that the m en reported for work
at her house, but they left midday

. Def endant and Wheat returne d to t h e h o u se around 10:30 or 11:30 A

. M ., and they beg an drinking

. Consequently
, J ordan made them leave her house. On crossexamination, J ordan sa id the men neve r finished the job.

5Arvie Wheat testified that he and Def endant arr ived at J ordan’ s house around 8 A

. M

. to help with the roof. Def

endant cut his thumb around 10:30 A

. M ., and J ordan soon instructed them to leave beca use they wer e no longe r working

. Wheat said he and Def endant went to Oak Hill Café for a few beer s, and they went in and out of t he restaura nt about four or five times. He d es cr i b ed how t hey spent the day
, “Ye ah, [we would] g o in and drink a beer
, shoot a g ame of pool a nd then leave for a while and ride around, talk about a job.” Wheat said that, while Def endant car

ried him home around 10 P

. M ., Def

endant talke d about planning to “pick up his wife a nd g o camping out at the river .”

On cross-e x amination, Wheat said the men took a six -pac k of beer with them to work in the morning

. He said they went to Oak Hill Café as soon as it opened. On redire ct examination, Wheat testified that Def

endant e ncounter ed Tha

rp at Oa k Hill Café.

Sheila Camper Graves, Def endant’ s wife, testified that she had been marrie d to Def endant for twenty -one y ear s but “[h] ardly ever” l i v ed with him. She acknow ledg ed that he lived with Phoenix for a y ear -and- a-ha lf or two y ear s. Gra ves said she saw Def endant afte r 8 P

. M

. on the night in question in Parsons, Tenne ssee; she asked Def endant about Phoenix
, at which point he laug hed. Gr av es s aid Def

endant was with Wheat, and the pair had been drinking all day

. She said s h e “hounded” Def

endant to tak e her fishing, which he ag ree d to do, and she picked him up afte r midnight at a location near Phoenix ’s house. Gra ves said they stopped at a place to g et worms, and then they fished. Whil e fishing, they talked about their re lationship. S he said she took De fenda nt back to Phoenix ’s house around 4:40 A

. M

. Gra ves said Def

endant told her that he had been working
at J ordan’ s house, but Gra ves said she was not sure if that was true. Def endant also told her that he and Wheat we nt to Oak Hill Café thre e to four times.

On cross-e x amination, Graves said she does not know what Defen d an t d id about ninety
perc ent of the time. She a lso said she did not know what he did the nig ht of Aug ust 13, 2005.

J ames Dix on testified that he saw Gra ves and Def endant around midnight on Aug ust 14, 2005, when they

obtained some fish ba it from him.

Br enda Kay

Walker testified that she knew Defe ndant and Phoenix

. She said she went by their house around 10:30 or 11:30 P

. M

. on Aug ust 13, 2005, and she spoke with Def endant for about fiftee n minutes.

After hear ing the testimony
, the jury convicted Def endant of ag g ravated assault, ag g ravated robber y , ag g ravated kidnapping
, and theft of proper ty valued at more than $500 but less than $1000. I t is from these judg ments that Defe ndant now appe als.

C. Sentencing Hearing

At the sentenc ing hear ing, the State enter ed a presen t en ce repor t and the victim’s impact
statement. Def

endant testified on his own behalf

. He said that he had liver canc er, and he explained that he was under the influence of drug s when he committed the crimes. Def endant apolog ized for

6his acti o n s

. On cross-e x amination, Def endant acknow ledg ed that he has made “bad choice s for
many y ear s.” The trial court sentenc ed Def endant as a Rang e I I I
, persistent offe nder to thirteen y ear s

on count one, twenty -five y ear s on count two, and six y ear s on count five. On co u n t t hree
, Def endant was sentenc ed to twenty -five y ear s at one-hundr ed perc ent as a repe at violent offe nder. Counts one throug h three wer e orde red to be serve d consec utively to eac h other a

nd concur rent to count five f

or an e ffe ctive sente nce of six ty -three y ear s.

II. Analysi s

Def endant r aises three i ssues on appea l: (1) the trial court erre d when it denied his motion to suppr ess evidenc e; (2) the evidenc e prese nted does not suppor t his convictions; and (3) the trial
court e rre d when it sentenc ed him.

A. Mot ion to Su ppress

Def end an t arg

ues t hat t he trial court erre d when it denied his motion to suppress evidence
g ather ed at Debr a Phoenix ’s house. Specifica lly
, Defendant arg ues that he did not consent to a

sear ch of his bedroom or his truck and that Phoenix lacke d authority to consent to sear ches of those

are as. The State arg ues that Phoenix had authority to consent to the sear ch of the bedroom and that the police saw the towel in plain view in the t ru ck
, wh i ch then g ave the police probable cause to

sear ch the truc k.

When the t rial court makes finding s of fact at the conclusion of a suppression hearing
, the fac ts are acc orded the weig ht of a jury verdic t. State v. Adams
, 859 S.W .2d 359, 362 (Tenn. Crim. App.1992). The trial court’s finding s are binding upon this court unless the evidenc e in the rec ord preponde rate s ag ainst them. State v. Odom
, 928 S.W .2d 18, 23 (Tenn. 1996). Questions of

cre dibilit y of witnesses, the weig ht and value of the evidenc e, and resolution of conflicts in evidenc e

are matters entrusted to the t rial j udg e as the t rier of fac t. The party preva iling in the trial c ourt is entitled to the strong est leg itimate view of the evidenc e adduce d at the suppression hear ing as well

as all rea sonable and leg itimate infere nces that may be draw n from the evidenc e. Odom
, 928 S.W .2d
at 23. The application of the law to the fac ts, howeve r, require s de novo revie w. State v. Daniel
, 12 S.W .3d 420, 423-24 (Tenn. 2000). L ikewise, if the evidenc e does not involve a cre dibilit y assessment, the revie wing court must examine the rec ord de novo without a presumption of

corr ectne ss. State v. Y

eargan , 958 S.W .2d 626, 629 (Tenn. 1 997). Review is not limit ed to the

rec ord o f t he suppression hear ing; rathe r, it extends to the entire rec ord of proce eding s. State v. Henning , 975 S.W .2d 290, 299 (Tenn. 1998)

.

Under both the Four

th Amendment to the United States Constit ution and article I
, section 7 of the Tenne ssee Constit ution, a war rantless sear ch is presumed unrea sonable. State v. Bartram
, 925 S.W .2d 227, 229-30 (Tenn. 1996) (citing Coolidge v. New Hampshire
, 4 0 3 U. S

. 443, 454-55 (1971))

. The United States Supreme Court has car ved out sever al exceptions t o t h e wa rr ant require ment based on the intrusiveness of the sear ch, the individual’s expectation of privac y , and the circ umstances of the sear ch. State v. Jai me Lee Pittman
, No. 03C01-9701-CR-00013, 1998 WL

7128801, at *3 (Tenn. Crim. App., at Knoxvi lle, Mar. 24, 1998) (citing State v. Nathaniel W hite
, No. 03C01-9408-CR-00277, 1995 WL 336977 (Tenn. Crim. App., at Knoxvi lle, J un. 7, 1995), no Tenn. R. App. P. 11 application filed ), no Tenn. R. App. P. 11 application filed

. I f the State fails to satisfy its burden that a sear ch was conducte d pursuant to a rec og nized exception, the exclusionary rule may opera te to bar the admissibili ty of any ev idence obtained direc tly or deriva tively from the unconstitutional sear ch. W ong Sun v. United States
, 371 U.S. 471, 485 (1963); State v. Clark
, 844 S.W .2d 597, 600 (Tenn. 1992)

.

One such exception to the sear c h war rant require ment is if the sear ch was conducte d pursuant to consent. Bartram
, 925 S.W .2d at 230 (citing Schnec kloth v. Bustamonte
, 412 U.S.218 (1973))

. To quote State v. Jack

son , “The sufficie ncy of consent depends larg ely u p o n t h e fa ct s and circ umstances in a particula r case .” 889 S.W .2d 219, 221 (Tenn. Crim. App. 1993). The State has

an initial burden of proving that the consent was fre ely and voluntarily g iven. See State v. McM ahan
, 650 S.W .2d 383, 386 (Tenn. Crim. App. 1983). More specific to the issue raised by Def endant in this case , a third party ’s consent to sear ch is valid wher e the third party had “common authority over [t he] premises or eff

ects

. . . ag ainst the absent, non-conse nting person with whom that authority is share d.” Bartram
, 925 S.W .2d at 230-31 (citing U.S. v. Ma t l o ck
, 415 U.S. 164, 171 (1974))

. Common authority

is

the “mutual use of the property by persons ge nera lly having joint acc ess or control for most purpose s, so that it is rea sonable to rec og nize that any of the coinhabitants h as t he rig ht to permit the inspection in his own rig ht and that the other s h av e assumed the ri s k t h at one of their number might permit the common are a to be

sear ched.”

Id

. at 231 (quoting Matlock
, 415 U.S. at 171, n.7). This Court h as s ai d t h at “a joint user has authority to consent to a sear ch.” McG ee v. State
, 451 S.W .2d 709, 712 (Tenn. Crim. App. 1969). Additionally
, common authority may be established by showing that the fac ts available to the police office rs would have g iven “‘a man of rea sonable caution

. . . the belief that the consenting party had authority over the premises.’” State v. Ellis
, 89 S.W .3d 584, 593 (Tenn. Crim. App. 2000) (quoting Illinois v. Rodriguez , 497 U.S. 177, 188-89 (1990))

.

We conclude that Debr a Phoenix had authority to consent to the sear ch of the bedroom in the house. To beg in with, Phoenix and Officer Har ral s t o n t es tified that Phoenix rea dily consente d to the police sear ching the house and premises that she occupie d with D efe ndant. Phoenix descr ibed her owner ship inter est in the house as a “lifetime dowry .” The trial court acc redited the testimony of Off icer Har ralston, who said that Phoenix and Defenda nt share d a bedroom. I t was withi n that bedroom that the police found the roll of money , the blue bandana
, and the bloody knife. Phoenix demonstrated that she had mutual use of the proper ty and, specific ally
, the bedr o o m

. Moreove r, Def endant had assumed the risk that Phoenix might permit the are as of joint acc ess to be sear ched. B a r t r a m , 925 S.W .2d at 31. I n addition, the pol ice had rec eived facts, namely that Phoenix lived there perma

nently
, that would have led a rea sonable person to believe that Phoenix had au t h o ri ty

8over the premises. Thus, we conclude that Phoe n i x had authority to consent to the sear ch of the

house and that the trial court proper ly allowed the fruits of that sear ch to be admitted into evidenc e.

We next addre ss the Def

endant’ s claim that the police violated his Four th Amendment rig ht when they sear ched his truck without a war rant. The plain view doctrine is another exception to the

sear ch war

rant require ment. See Harris v. United States
, 390 U.S. 234, 236 (1968); Armour v. Totty
, 486 S.W .2d 537, 540 (Tenn. 1972). The “ plain view” doc trine re quires proof that: (1) the objec ts

s ei z ed wer e in plain view; (2) the viewer had a rig ht to be in position for the view; an d (3 ) t h e incriminating nature of the object was immediately appar ent. Horton v. Californi a , 496 U.S. 128, 136-41 (1990), overr

uling in part, Coolidge v. New Hampshire
, 403 U.S. at 443; see also Minnesota v. Dick erson , 508 U.S. at 375.

We conclude that the circ umstances surrounding the challeng ed sear ch satisfy the plain view exception to the war

rant require ment. Def

endant challeng es the admissibil i t y o f the pink towel found in his truck. The testimony off er ed s h o ws t h at a police office r was walking past the truck when he looked in the truck window and saw the pink towel. The pink towel was simil ar in nature to the pink towel found tied around the victim’s ankles and wrists. We conclude that the pink towel was seiz ed withi n the pl ain vi ew ex ception to the s ear ch warra nt require ment. See Pittman , 1998 WL 128801, at *4 (holding that police seeing barr el of a wea pon sticking out from under a car seat afte r looking throug h window had probable cause to sear ch car ). The evidenc e prese nted in the

rec ord does not preponde rate ag ainst the trial court’s finding s, and Def endant is not entitled to relief on this iss ue.

B. Su ff iciency of the Evid ence

Def endant arg ues that the evidenc e prese nted is not sufficie nt to support his convictions for
ag g rava ted assault, ag g ravated robbe ry , ag g ravated kidnapping , and thef t. The State disag ree s.

I n revie wing Def

endant’ s challeng e to the sufficie ncy of the c onvicting e vidence , we must revie w the evidenc e in the light most favor able to the prosec ution in deter mining whether a rational trier of fac t could have found all t h e es s en t i al elements of the crime bey ond a rea sonable doubt. Jack son v. Virginia
, 443 U.S. 307, 319 (1979). Once a jury finds a defe ndant g uilty
, his or her presumption of innocenc e is remove d and repla ced on appea l w ith a presumption of g uilt. State v. Black
, 815 S.W .2d 166, 175 (Tenn. 1991). Def endant has the burden of overc oming this presumption, and the State is entitled to the strong est leg itimate view of the evidenc e along with all

rea sonable infere nces which may be draw n from that evidenc e. Id .; State v. Tuggle
, 639 S.W .2d 913, 914 (Tenn. 1982). The jury is pre s u m ed to have resolved all conflicts and draw n any rea sonable infere nces in favor of t he S tate. State v. Sheffield , 676 S.W .2d 542, 547 (Tenn. 1984)

. Questions

conce rning the cre dibilit y of witnesses, the weig ht and value to be g iven the evidenc e, and all fac tual issues raised by the evidenc e are resolved by the trier of fac t and not this court. State v. Bland
, 958 S.W .2d 651, 659 (Tenn. 1997). These rules are applicable to finding s of g uilt predic ated upon direc t evidenc e, circ umstantial evidenc e, or a combination of both direc t and circ umstantial evidenc e. State v. Matthews , 805 S.W .2d 776, 779 (Tenn. Crim. App. 1990)

.

9I n the indictment, the State char g ed that Def endant’ s use of a sawe d-off shotgun ag ainst the victim constitut ed ag g ravated assault. The Tenne ssee Code Annotated defines agg ravated assault

as the intentional or knowing commission of an assault acc ompanied by the use or display of a deadly wea

p o n

. T.C.A. § 39-13-102( a)( 1)(B ) (2006). An assault is define d as when a person “[i] ntentionally
, knowing ly [,] or rec klessly cause s bodily injury to another ; [] [i ] n t entionally or knowing ly cause s another to rea sonably fea r i m m i n en t b odily injury ; or [] [i ]nt entionally or knowing ly cause s phy sical contact with another a nd a re asonable person would r eg ard the contac t

as extremely offe nsive or provocative.” T.C.A. § 39-13-101( a) (2006). I n this case , Def endant held the vi ctim at gunpoint with his sawed- off shotg un. He pumped the shotgun while it was aimed at the victim, and he told her t h at h e wa s go ing to “blow [her] head off.” This evidenc e supports a finding that Def

endant intentionally cause d another person to rea sonably fe a r im mine nt bodily injury and that he used a deadly wea pon when eliciting such fea r. We conclude there is sufficie nt evidenc e for De fenda

nt’s conviction of a g g ravated assault.

Acc ording to the indictment, Def endant’ s use of a sawe d-off shotgun while he took money from the victim c onstitut ed ag g ravated robber y

. Ag g rava

ted robber

y is define d as the “intentional or knowing theft of property from the person of another by violence or putting the person in fear” while the perpe trator uses a “dea dly wea pon or [] display [s] [such an] article used or fashioned to lead the victim to rea sonably believe it to be a deadly wea pon.” T.C.A. § 39-13-401, -402 (2006). I n this

case , Def endant took money from the victim’s pockets afte r he tied her hands and fee t and made her lay on the g round. I n addition, he used his sa wed- off shotgun to thr eate n her by telling her that he had two g uns “on her” and that he would “blow [her] brains out.” These fac ts show that Def endant intentionally took proper

ty from another person by using a deadly wea pon to put that person in fea r. There is sufficient evide nce to support De fenda nt’s conviction for a g g ravated robbe ry

.

The indictment for ag g ravated kidnapping char g es that Def endant kidnapped the victim by

u s i n g his sawe d-off shotgun. Ag g ravated kidnapping is statutorily define d as the commis s i o n o f false imprisonment while “the defe ndant is in possession of a deadly wea pon or threa tens the use of

a deadly wea

pon.” T.C. A. § 3 9 -13-304(a)( 5) (2006). Fa lse imprisonment is when a person “knowing ly remove s or confine s another unlawfully so as to interfe re substantially with the other’s liberty .” T.C.A. § 39-13-302( a) (2006). Specific to this case , Def endant, using his s aw ed -o ff shotgun, order ed the victim to walk from her restaur ant to her tr u ck and then to drive towards L exington, Tenne ssee. While driving , he re minded her tha t he had two g uns “on her .” Af ter they stopped driving , Def

endant or dere d the vi ctim out of the truc k and onto the g round, whe re he tied her hands and fee t. These fac ts show that Def endant used a deadly wea pon while he knowing ly

remove d the victim in such a manner that substantially interfe red with her liberty

. We conclude that this is s ufficie nt to support his conviction of ag g ravated kidnapping

.

For the Def

endant’ s fourth conviction, theft of proper ty , Def endant was indicted for unlawfully t ak i n g m ore than $1000 but less than $10,000 from the victim. The jury convicted De fe n d ant of the lesser- included offe nse of taking more than $500 but less than $1000 from th e victim. Theft is statutorily define d as when a person, “with intent to deprive the owner of proper ty

. . . knowing ly obtains or exercises control over the proper ty without the owner ’s eff ective consent.”

10T.C.A. § 39-14-103 (2006). The victim testified that the Def endant took an unknown amount of
money direc tly from her pocket. She also said that he threa tened to shoot her if she looked up while he pilfere d throug h her truck for money

. The next day
, the police found a ro l l of $999 under the Def endant’ s mattress. This evidenc e shows that Def endant knowing ly o btained proper ty without the owner ’s consent and that the value of the proper ty was more than $500 but less than $1000. The evidenc e is sufficie nt to support Def endant’ s conviction of t h ef t of proper

ty

. Def endant is not entitled to relief on this issue.

Although not raised by either party , we are constraine d to note that separ ate convictions for
ag g rava ted robber

y , ag g ravated assault, and theft are barr ed by double jeopar dy principles. Multipl e convictions for the same o ffense violate constitutional prohibitions ag ainst double jeopar dy

. See U.S. Const. Amend. V; Tenn. Const. Art. 1, § 10; see also State v. Denton
, 938 S.W .2d 373, 378-83 (Tenn. 1996) . Under

both the fede ral a

nd state double jeopa

rdy provisions, a defe ndant cannot be

co nvicted of two offe nses if one offe nse is a lesser of the other, and the same fac t s ar e u s ed t o establish the offe nses. See State v. Haye s , 7 S.W .3d 52, 56 (Tenn. Crim. App. 1999); State v. Gree n , 947 S.W .2d 186, 189 (Tenn. Crim. App. 1997). This Court has held that both ag g ravated assault and theft are lesser- included offe nses of ag g ravated robber y

. Haye s, supra; State v. Franklin
, 130 S.W .3d 789, 798 (Tenn. Crim. App. 2003). I n the present case , the t h re e charg es clearly rela te t o the fac t that Def

endant used a sawe d-off shotgun in committing the offe nses. There fore
, the finding s of g uilty on the ag g ravated assault and theft counts should be merg ed into the judgme nt of conviction for ag g rava ted robber

y

. State v. Addison
, 973 S.W .2d 260, 267 (Tenn. Crim. App. 1997). “Mer g er avoids a double jeopar dy problem while protec ting the j u ry ’s finding s.” State v. Reagan
, No. M2002-01472-CCA-R3-CD, 2004 WL 1114588, at *20 (Tenn. Crim. App., at Nashville, May 19, 2004).

We there fore set aside the convictions for ag g rava ted assault and theft and rema nd this case to the t rial court for entr

y of cor rec ted judg ments to refle ct the mer g er of Def endant’ s convictions for a g g rava ted assault and the ft into his conviction for ag g ravated robbe ry

.
C. Sentencing

Def endant arg ues that the trial court err ed when it sentenc ed him. Specifica lly
, he claims that the trial court wrong ly applied an enhanc ement fac tor that addre ssed his previous criminal convictions, that the trial court did not g ive proper weig ht to his remorse and that he committed these crimes while on drug s, and that the trial court err oneously order ed his sentenc ed to be serve d

consec utively

afte r finding him to be a dang erous of fende r.

On appea l, the party challeng ing the sentenc e im posed by the t rial court has t he b u rd en o f establishing t h at the sentenc e is improper. See T.C.A. § 40-35-401 (2006), Sentencing Comm’n Cmts.; see also State v. Arnett
, 49 S.W .3d 250, 257 (Tenn. 2001). When a defe ndant challeng es the leng th, rang e, o r m an n er o f s er vice of a sentence, it is the dut y of t his Court to conduct a de novo revie w on the rec ord with a presumption that the deter minations made by the court from which the
appea l is taken are corr ect. T.C.A. § 40-35-401( d). This presumption of corr ectne ss, howeve r, “‘is

11conditioned upon the aff irmative showing in the rec ord that the trial court considere d the sentenc ing principles and all rele vant fac ts and circ umstances.’ ” State v. Carter
, 254 S.W .3d 3 3 5
, 3 4 4 -45 (Tenn. 2008) (quoting State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991)). “I f, however, the trial court applies inappropria te m itigating and/or enhance ment fac tors or ot herw ise fai ls to follow the Sentencing Act, the presumption of corr ectne ss fails,” and our revie w is de n o vo

. Ca r t er , 254 S.W .3d at 345 (citing Sta t e v. S h el t o n , 854 S.W .2d 116, 123 (Tenn. Crim. App. 2002); State v. Pierce , 138 S.W .3d 820, 827 (Tenn. 2004) ).

A t rial court i s m andated by the S entenc ing Act t o “impose a sentenc e withi n the rang e of punishment.” T.C.A. § 40-35-210( c) (2006). A trial court, howeve r, “is no longe r require d to beg in with a presumptive sentenc e subject to incre ase and decr ease on the basis of enhancem ent and mitigating fac tors.” Carter , 254 S.W .3d at 346. There fore
, an appellate court is “bound by a trial court’s decision as to the leng th of the sentenc e imposed so long as it is impo s ed i n a manner consistent with the purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id.

I n conducting a de novo revie w of a sentenc e, this C o u rt must consider (a) the evidenc e adduce d at the trial and the sentenc ing hear ing, (b) the prese ntence re p o rt , (c) the principles of
sentenc ing and arg uments as t o sentenc ing alternatives, (d) the nature and char acte ristics of the criminal conduct involved, (e) evidenc e and information offe red by the parties on the enhanc ement and mitigating fac tors set forth in Tenne ssee Code Annotated sections 40-35-113 and 40-35-114, (f)
any statistical information provided by the Administrative Offic e of the Courts as to T en n es s ee ’s
sentenc ing prac tices for simil ar offe nses, and (g ) any statement the defe ndant wishes to make in the defe ndant’s o wn b eh alf about sentenc ing. T.C.A. § 40-35-210( b) (2006); see also Carter
, 254 S.W .3d at 343; State v. Im field , 70 S.W .3d 698, 704 (Tenn. 2002) . Additionally , the principles of
sentenc ing ref

lect that the sentenc e should be no g rea ter than that deser

ved for the offe nse committed and should be the least sever e measure nece ssary to achie ve the purposes for which the sentenc e is imposed. T.C.A. § 40-35-103( 2), (4) (2006). The court should als o consider the defe ndant’s potential for reha

bilitation or trea tment in deter mining the approp r iate sentenc e. See T.C.A. § 40-35- 210 (2006); State v. Taylor , 63 S.W .3d 400, 411 (Tenn. Crim. App. 2001)

.

When the trial court sentenc ed Def endant, it found that he had more than five felonies within the same conviction class as the curr ent conviction or within any class above or within two classes below the c lass of the curre nt conviction. The trial court went throug h eac h count of De fenda nt’s convictions and deter

mined the number of Def en d an t ’s prior convictions that applied to set the
appropr iate offe nder status for that count. On all counts, the trial court foun d De fe n d an t t o be a persistent off

ender

.

The trial court then found the use of a deadly wea pon to apply only to the theft conviction. I t applied the enhanc ement fac tor of Def endant’ s prior convictions, excluding the convictions

nece ssary to classify Def

endant as a persistent offe nder. The court then enuncia ted its ruling for the first three counts:

12The applicable rang e for Ag g ravated Assault in Count 1 would be three (3)
to fiftee n (15) y ear s; as a Persi s t en t Of fe n d er it would be ten (10) to fiftee n (15)
y ear s. The Court finds that b y apply ing an enhanc ing fac tor in looking at it, the
appropr iate sentenc e would be thirteen (13) y ear s on that one. Also, bec ause it is a Persistent Offe nder tha

t would be forty -five pe rce nt (45%) a s a cla ssification.

Count 2, the Ag g ravated Robbery that he has been convicted of, the complete
rang e would be ei g ht (8) to thirty (30). The applicable rang e on this one would be twenty (20) to thir t y (30) at forty -five perc ent (45%). The one enhanc ing fac tor of criminal history

in that case would be twenty -five y ear s.

Count 3, Ag g ravated Kidnapping would be eig ht (8) to thirty (30). You’ ve g ot twenty

(20) to thirty

(30) a s a Persistent Off

ender

. The enhancing fac tor of the criminal history would be twenty -five (25) y ear s wou l d b e the Court’s sentenc e in that’s forty -five pe rce nt (45%) c lassification.

The trial court then order ed Def endant to serve six y ear s on the theft count: “Count 5, the Theft, like I say , y ou’ve g ot a dea dly wea pon on that, as we ll as the prior history . The c omplete ra ng e of one (1) to six (6), the viable rang e for him is four (4) t o six (6). I t is appropr iate for a six (6) y ear sentenc e.”

After it order ed the leng ths of Def endant’s i n d i v idual sentenc es, the trial court addre ssed whether to o rd er Def

endant to serve his sentenc es consec utively or concur rently

. The trial court found fac tor (2), that Def

endant has an extensive rec ord of criminal history
, applicable

. See T.C.A. § 4 0-35-115( 2) (2006). I t also found Def endant to be a dang erous offe nder, even after acknow ledg ing D efe ndant’s re morse. See T.C.A. § 40-35-115( 4) (2006). The trial court sa id, “I n this case , althoug h he’s expressed contrition here today and say s that drug s wer e what cause d it, there is no question that he is a dang erous offe nder under the laws of the St at e o f Tenne ssee.” Consequently
, the t rial court ran the sentenc es for counts 1, 2, and 3 consec utively ; and, it ran the
sentenc e for count 5 concur rent to counts 1, 2, and 3. The trial court said, “[t] he Court finds that the leng th of the sentenc e when y ou make these consec utive that they are rea sonably
, [si c] rela ted to the extensive and sever e natur e of the acts that oc curr ed her e.”

Be cause we have deter

mined that the trial court should have me rg ed Def endant’ s convictions for ag g rava ted assault and theft into his conviction for ag g ravated robber y , we need only addre ss the
sentenc es for the ag g ravated robber y and ag g ravated kidnapping

. On revie w, we conclude that the trial court proper ly sentenc ed D e fenda nt. As the trial court stated, Def endant is a persistent offe nder. After deter

mining Def

endant’ s rang e, the trial court order ed specific sentenc es for eac h count. The trial court corr ectly sentenc ed Def endant within the statutory sentenc ing rang e for eac h conviction. I t also corr ectly considere d Def endant’ s prior convictions beca use Def endant had more convictions than those nec essar

y to establish him as a persistent off ender

.

13We also conclude that the trial court did not err when it order ed the manner of Def endant’ s service of his sentenc es. The trial court order ed the sentenc es for ag g ravated robber y and ag g rava ted kidnapping to be serve d consec utively

. When the t rial court order ed the consec utive sentenc es, i t cited its finding by a preponde ranc e of the evidenc e that Def endant had an extensive criminal rec ord and that he was a dang erous of fende r whose be havior indica ted little or no reg ard f or human li fe. See T.C.A. §40-35-115( 2), (4) (2006).

Tenne ssee Code Annotated provides that a court may order a defe ndant’s multipl e sentenc es to run consec utively if the court finds by a preponde ranc e of the evidenc e that the defe ndant is “an offe nder whose rec ord of criminal activity is extensi v e. ” T

. C

. A. § 40-35-115( 2). I n this case , Def endant has a criminal rec ord that rea ches back to 1980. I n addition to the felonies listed previously
, Def

endant has also been convicted of numerous misdemeanors in c lu ding, but not limit ed to, traff ic offe nses, possessing narc otic equipment, v an d al ism, esca pe from jail, and criminal trespassing

. This rec ord shows a pattern of criminal behavior lasting for s ev er al d eca des. We conclude that Def

endant has an extensive rec ord of criminal activity and that the trial court corr ectly order ed conse cutive sente nces.

Whil e the trial court need only rely on one fac tor when order ing consec utive sentenc es, the trial court in this case also conclude d that Def endant is a dang erous offe nder. Under Tenne ssee Code Annotated section 40-35-115( b)(4)
, a court may impose consec utive s entenc es when: (1) the defe ndant is convicted of more than one offe nse; and (2) the trial court finds by a preponde ranc e of the evidenc e that “the defe ndant is a dang erous offe nder whose behavior indicates littl e or no reg ard for human life, and no hesitation about committing a crime in which the risk to human life is high.” “Proof that an offe nder' s behavior indicated littl e or no reg ard for human life and no hesitation about committing a crime in which the risk to human life was high, is proof that the o ff en d er i s a dang erous offe nder.” State v. W ilkerson
, 905 S.W .2d 933, 93 8 (Tenn. 1995). Once a court has deter mined that a defe ndant is a dang erous offe nder, it must also deter mine that an “e x t ended
sentenc e is nece ssary to protec t the public ag ainst further criminal conduct by the defe ndant and that the consec utive sentenc es must rea sonably rela te to the sever ity of the offe nses committed.” W ilkerson , 905 S.W .2d at 939.

Although the trial court did not mention the public protec tion aspec t of W ilkerson
, any err or in that reg ard is clea

rly harmless. We conclude
, as did the trial court, that Def endant is a dang erous offe nder and had no reg ard and no hesitation about committing a crime wher e the risk to human life

was high. Def

endant used a sawe d-off shotgun and a larg e hunting knife to frig hten the victim into compl ying with his demands. As Def endant kidnapped, assaulted, and robbed the victim
, h e continuously threa tened to kill her. I n addition, we conclude that an extended sentenc e is nece ssary to protec t ag ainst further criminal conduct by Def endant due to the particula rly predatory nature of Def endant’ s conduct. Finally
, we find that the consec utive nature of the sentenc es rela tes to the

sever ity of the particula

r offe nses committed by Def endant. I n addition to threa tening to kill the victim, De fenda

nt le ft her tied up in a hidden ar ea a nd g roped he r in a sexually assaultive manner

.

14Def endant arg ues that the trial court did not g ive sufficie nt we i gh t to his remorse when

c o n s id e r in g h is s e n te nces. Howeve r, the trial court did note Def endant’ s contrition when considerin g the issue of consec utive sentenc es. Def endant has not overc ome the presumption of corr ectne ss with
respe ct to the trial court’s application of the rele vant sentenc ing fac tors. See T.C.A. § 40-35-401( d);

see also Carter
, 254 S.W .3d at 344-345. We conclude that consec utive sentenc es wer e propr in this

case . Def endant is not entitled to relief on this iss ue.

CONCLUSION

After car efully revie wing the rec ord and the applicable law, we conclude that the trial court proper ly denied Def

endant’ s motion to suppress and that the evidenc e prese nted was sufficie nt f or Def endant’ s convictions. Howeve r, we conclud e th a t D e f e n d a n t’ s c o n v ic ti ons for ag g ravated assault and theft should be mer ged into his conviction for ag g rava ted robbery

. We there fore rema nd this

case to the trial court for en t ry of corr ecte d judgme nts to ref lect the merg er of convictions into a single judgme nt consistent with this opinion.

________________________________ THOMAS T. WOODAL L , J UDGE

15