### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Novem ber 5, 2002

Session
STATE OF TENN ESSEE v. JASON R. GARNER Direct Appeal from the Criminal Court for Shelby County No. 96-10364, 65 Carolyn Wade Blackett, Judge

No. W1999-01679-CCA-R3-CD - Filed Mar ch 14, 2003

The Appellan

t, Jason R. Ga

rner, a ppeals his conviction by a Shelby County jury

of second degree murder and es pe ci al ly a ggr av at ed ro bb er y. The convictions arose from Garner’s involvement in the robbery and shooting of Charles Bledsoe. Garne r received consec utive se ntences of twenty years fo r second degree murder a

nd twenty y

ears for especially

aggravated robbe

ry. On appe al , Garne r ar gue s that: (1) the evidence was insufficient to sustain his convictions; (2) the convictions are “irrec oncila

ble;” (3) the trial court erred by allowing the State to file untimely notice of sentence enhanc ements; (4) the trial court erred by failing to submit an instruction with regard to accomplice testimonyto the jury ; and (5) his sente nces we re exces sive and t

he imp ositio n of consecutive sentences was error. After review, we find these issues without merit. Accordingly , the judgment of the trial court is affirmed.

Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

Affirme d.
D AV ID G. H AYES , J., delivered the opinion of the co urt, in which J OE G. R ILEY and R OBER T W. W EDEMEYER , JJ., joined. Michael E. Scholl, Memphis, Tennessee, for the Appellant, Jason R. Garner.
Paul G. Summers, Attorney Gene ral and Reporter; Mich ael Mo ore, Solic itor Gene ral; P. Robin Dixon, Jr., Assistant Attorney General; William L . Gibbons, District Attorn ey Gene ra l; and Paul Goodman, Assistant District Attorney Ge neral, for the Appellee, State of Tennessee

.

OPINION
Factua l Background
At approximately 11 a.m. on Septembe

r 12, 1995 , the Appe

llant shot a

nd killed th

e victim, Charles Bledsoe, and

took an undetermined amount of money from the victim’s person. The proof established that both men had been stay ing at a residence occupied by the Appe llant’s g irlfriend,-2-

Denise Thacker, and her family . Ms. Thacker was pregnant at the time with the Appellant’s child. The testimony established that the victim had introduced Ms. Thacker to a man who could get her a job as a topless dancer, had supplied her with marijuana while she was pregnant, and ha d attempted to involve he

r in a plot t

o rob the “ white man ” she wa s prostitut ing her self

to. The Appellant and Ms. Thacke

r both tes tified tha

t the Appe

llant wasaware

of these facts a nd was ups et with th e victim’s in

volvemen t in these a

ctivities

. Both men left t

he resid ence se parately that morning, with the Appellant going to a friend’ s house for breakfast. L ater, the Appellant visited a neighbor’s house and f ound a group present

on the po rch, inc luding the victim and a man named Joe. The victim was attempting to purchase a n expensive he rr in gb on e n ec kl ac e f ro m J oe fo r $ 10 0. Jo e r ef us ed an d w al ke d a wa y. The Appellant told the victim that he knew Joe and he would try to barg ain with him for the necklace.
At that point, the victim handed his .22 caliber pistol to the Appellant and instructed him to rob Joe of the necklace. According to the Appe llant, he “snapped” because of all the “stuff this man was doing” with his g irlfrie nd, and he

turned a nd shot th e victim in

the chest with the gun. The victim then ran around the house and jumped a fence , with the Appel lan t following him and continuing to fire the pistol. A t some po int, the victim collap sed to the ground from the g

unshot. In his state ment t o the p olice , the A ppell ant st ated t hat th e vict im, after fal ling, asked if the Appellant wantedhis money and then threw the money f

rom his pockets onto the ground. The Appellant shot th e v ic ti m t wi ce mo re , p ic ke d u p t he mo ne y, a nd wa lk ed aw ay. The Appellan

t returned to the Tha

cker re sidence , where

he hid the

gun in a n upstair s closet. He then pai d someone to take him to Whitehaven, where he went to the apartment of Shirley Washington. Present

at the apartment

were Ms. Washington’s three children: Yolanda, Ale thia, and Samuel. According to Yolanda’s testimony, the Appellant told her that he had pulled a “s tang” o r robbery and had shot the victim. Yolanda testified that the Appellant told her he shot the victim after instructing the victim to “drop off” the money. After

taking the victim’s money , “[the Appellan t] said he had shot [the victim] again.” He also gave ea ch of the three children pa r t of the stolen mo ne y. They

all proceeded to Southland Mall, where they made seve

ral purchases. After returning to Ms. Washington’s apartment, the Appellant went upstairs to lay down, and

Yolanda visited Sus ie Williams’ apartment, which was two doors away . Ms. Williams was the victim’s aunt and, when Yolanda told her that the Appellant was res ponsi ble fo r the s hoot ing, Ms. Williams c alled 911 . Ms. Williams related that, while calling the police, the Appellant appeared

outside her front door and she heard the App e llant state, “Charles Bledsoe better know who he’s f ucking with. I shot him like a rabbit. I saw smoke from his body and it gave

me hype and I

kept popping that mother fucker.” The police later

arrived at

Ms Washington’s apartment and instructed the Appellant to come down. He surrendered

to them without incident, and was placed under arrest. The post-mortem examination established that the victim’s cause of death resulted from gunshot wounds to the neck and che st . In addition, the victim sustained a gunshot wound to his left thigh.-3-

Whil e in jail, the Appellant wasalso ques tioned ab out a sepa rate mur der involving his Gangster Disciples acquaintances. The Appellant made a statement regarding his street knowl edge of that crime. During thi s s tatement, the investigator asked if he had any knowledge of other murders

. The Appellant responded with information about the current crime. He said that he had heard on the street th

e victim ha

d been or dered by a highe r Gang ster Disc iple to kill the Appellant. The Appe llant then made the statemen t that this w as the re al reas on he had killed the victim. On Septem

ber 24, 1 996, a Shelby

County Grand Jury

indicted the Appellant for

first degree felony murder a nd espec ially

aggravated robbe

ry. On May

7, 1999, a jury re

turned convictions for second d egree murder a nd espec ially

aggravated robbe

ry. A sentenc ing hearingwas subsequently held on November 23, 1999, and the trial court applied three enhanceme nt factors and, after

finding tha tthe Appellant was a dangerous offe nder, sentenced the Appellant to consecutive sentenc es of twenty ye ars for second d egree murder a nd espec ially

aggravated robbe

ry. The Appellant’s motion for new trial was subsequently denied, with this appeal following.

Analysis I. Sufficiency of the Evidence
When an accused challenges the suff iciency of the

convicting evidence, we must review the evidence in the light most favorable to theprosecution in determining whether “any rational trier of fact could havefound the essentia l element s of the c

rimebeyond a re asonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). T his rule a pplies to f indings o f guilt

based upon direct

evidence, circumstantial evidence, or a c ombination of both. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990). This court does n ot rew eigh or re-evaluate the evidence, a nd we are required to afford the State the strongest leg itimate view of

the proof contained in the record, as well as all reasonable and legitimate infere nces which may

be drawntherefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the value to be given to the evidenc e, as well as factual issues raised by the evidence, are solved by

the trier of fact, not this court. Id . A guilty verdict rendered by

the jury and appr

oved by the trial judg e accr edits the t esti mony of the witnesses for

the State and resolves all conflicts in favor of the theory of the State. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A conviction removes the presumption of innocence with which a def endant is initially cloaked and r eplaces it with one of guilt, so that on appeal a c onvicte d defendant bears the burden of demonstrating that the evidence is insufficient as a matter of law to support his conviction. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). A. Second Degree Murder
The Appellan

t argue s that the e

vidence present ed at tria l is insuffic ient to sup

port his conviction for seco nd de gree murder, as the evidenc e at best supports no greater offe nse than-4-

voluntary manslaughter. In thi s rega rd, we no te that in State v. Williams , 38 S.W.3d 532, 538 (Tenn. 2001), our supreme court observed that in compa ring the “second degree murde r and voluntary manslaughter

statutes, the essential element that now distinguishes these two offenses (which are both‘knowing’ k

illings) is whether the killing was committed ‘in a state of passion produced by adequate provocation sufficient to lead a re asonable person to act in an irrational manner.’”
In the present case, the Appellant testified that he shot Charles Bledsoe because he went into a rage and “snapped.” He argue s that the State failed to refute the proof he offer ed to show that the killing of Charles Bledsoe was accomplished while in a state of passion a

roused by

adequa te provocation. The Appellant asserts t hat he “s napped”because of Bledsoe’s actions of introducing his girlfr iend to a t

opless da ncing c onnectio n, providing her with marij uana whi le p regna nt, attempting to involve her in a robbery of the man she was actively prostituting herself to, and giving the Appellant

a weapon in order to rob his friend. He argues this combined to form the necessa ry adequa te provocation. However, the jury was not obligated to accept the Appellant’s testimony for the mo t ive of the killing, even if unrefuted. Whether the killing of one person by anothe

r occurs under circumstances which justify a verdict of second degree murder or voluntar y ma nslaugh ter is a question of fact to be determined by the jury under pr

oper instructions and from

a consideration of all the evidence. By convict in g him of second degree mur der, the jury obviously

rejected the Appellant’s assertion that the victim was killed while the Appellant was in a state of passion produced by adequa te provocation. Such decisions are within the exclusive province of the jury and will not be disturbed by this court on a ppeal, a s we are

require d to presu

me that the

jury has drawn all reasona ble inferences from the evidence in fa vor of the State. Moreover, a rational trier of

fact could have reasona

bly concluded that the Appellantdid not kill in a state of passion. One of the Appellant’s own statements to the police indicate d that he s hot th e victim because he heard the victim had bee n ordered to kill

him by a Gang ster Disciple governor. In addition, Yolanda Bar nes testified that the Appellan t told her he had pulled a “stang.” Thus, we find this issue is without merit. B. Especially Aggravated Robbery
The Appellant contends that the e vidence was also insuffic ient to support his conviction for especia lly aggravated robbe

ry. I n order to convict

a defendant of

especially a

ggravated robber

y, the Statemust prove that: (1) t he defen dant intentionally or knowingly took the property of a

nother person by v

iolence or putt ing the victim in fear; (2) the defendant acted with the intent to deprive the owner of

the prope

rty ; (3) the r

obbery was acc omplish ed with a d eadly we apon; and (4) the victim suffer ed serious bodily

injury . Tenn. Co de Ann. §§ 39-13-40 1(a), - 403(a). The Appe lla n t argues that the evidence presented supports only the crime of theft because the State f ailed to introduce any evidenc e that the Appellant formed the intent to rob the victim until afte r the vic tim was shot.-5-

We note initially that this court has held that “the intent to s teal need not exist prior to or concurr ently with the shooting

in a case in which the defendant is charged with especially ag gravated robbery.” State v. Wade P. Tucker , No. M2 001- 02298-CCA-R3-CD (Tenn. Crim. App. at Nashville, July 17, 2002), perm. to

appeal denied , M2001-02298-SC-R11-CD (Dec. 23 , 2 00 2) . A cc or di ng ly, the State need not prove that the defendant assaulted the victim for the purpose of theft.
Even assuming

that the Sta

te was required to

prove that the intent

existed before the attack on a victim, w e would

find the Appellant’s argument without merit. The law is well-settle d that a jury may infer a

defendant’s intent from the surrounding facts and circumstances. State v. Lowery , 667 S.W.2d 52, 57 (Tenn. 1 984). I n most cas es, circ

umst antial evidenc e is the only evidence availab le for disc erning

a defendant’s mens rea
. Hall v. Sta te , 490 S.W.2d 495, 496 (Tenn. 1973). W hen an act of assault precedes the act of theft, a jury may reasonably

infer from a defendant’s actions immediately after the assault that the defendant intende d to commit the theft prior to, or concurrently

with, the assault. State v. Buggs , 995 S.W.2d 102, 108 (Tenn. 1999). From our review of the evidence, it is clea r that the State had overwhelming proof that the Appellant shot and killed the victim with a deadly wea pon. The proof further established that the Appellant took Char

les Bled soe’s money , thus depr iving him of his property. I

t was established that the Appellant

went on a spending spree with the money a very shor

ttime after the incident ending Bledsoe’s life. In addition, there wasthe statement made by the Appellant to Yolanda Barnes that he had pulled a “stang” or robbery and that he shot the victim after instructing him to “ drop-of f” his mo ne y. We find this evidence more than sufficient for the jury to conclude that

the Appellant had the intent to rob the victim. Thus, the evidence is sufficient to support the conviction.
II. Convictions Irreconcilable
The Appellan t ne xt contends that the jury verdicts were impermissibly inconsistent and, therefore,“a

legal impossibility.” The Appe llant was indicted for felony murder under thetheory that the murder was committed during the perpetration of a robbery. The

jury acquitted the Appe

llant of felony murder , instead finding him guilty of the lesser offense of second

degree murder and the separa te charge of especially

aggravated robbe

ry. Specifica

lly, the Appellant

argues that

the jury’s apparent inability to find the underly ing felony

necessar y for a felony murde

r conviction preponderates agains ta

finding of guilt as to especially aggravated robbe

ry. We conclude othe

rwise.
The rule in Te

nnessee is that con sistency

of verdi cts on multi

ple-cou nt indictme

nts is no t required. Wiggins v. State , 498 S.W.2d 92, 93-94 (Tenn. 1 973). Ea

ch count i s treate d as a sep arate indictmen t. Id

. This is the

case ev en when t

he jury ’s finding s on one c ount nece ssarily negates the state’s proof as to another count. Id . at 93. Thus, the verdicts will stand as returned provided that the proof of

guilt on e ach count, consid ered se parately, is suffic ient to sustain a conviction. Id . at 94.-6-

Having previously determined tha t the evidence was sufficient with rega rd to ea c h conviction, we find that the alleged inconsistencies in the jury ’s verdicts are of no import. This issue is, there fore, w ithout mer

it.
III. Fili ng Notice

of Sentence

Enhancement
The Appellant argues that he should be granted a new sentencing hearing because the State’s notice to seek enhanced punishment was not receive d until the s e cond day of voir dire . The Appellant contends that this does not comply with the notice requirements of Tennessee Code Annotated§ 40-35-2 02(a) a nd Rule 12.3 of the Tennessee Rules of Criminal Procedure. According to the Appellant’s in

terpre tation of t hese rul es, the State was required to give notice of enhancement factors at least ten day s before trial. We find this argument misplaced.
Under section 4 0-35-202 (a), “[i]f the distri ct attorney

gener al believes tha t a defendant should be sentenced as a multiple, persistent or caree r offen der, the

district a ttorney gener al should filea stateme

nt there of with

the court and defense counsel not less than ten (10) days befor e trial.” Tenn. Code Ann. § 40-35-20 2(a) (1 997). By its very terms, thi s statute o nly

applies in

situationsin which the State seeks to have the court sentence a de fendant in a gre ater ra

nge, no t situation s in which the State seeks to have the court enhance a sentence within a range. State v. V ickie R. Herron and WandaL. Griffin , No. 02C01-9702-CR-00067 (Tenn. Crim. App. at Jackson, Dec. 31, 1998). In fact, section 4 0-3 5-202(b) states that “[i]n all cases following a finding of g uilt, the court may require that . . . the district attorney g eneral file a statem ent with the court setting forth any enhancement

or mitigating factors the district attorney g eneral believes should be considered by the court.” Tenn. Cod

e Ann. § 40 -35-202(

b)(1) ( 1997). Th

us, se ctio n 40-35-202 clearly allows the filing of enhancement factors “a fter a finding of guilt.”
Under Rule 12.3, “written statements of the district attorney g

iving notice that

the defendant should be sente nced to a n enhanc ed punishm

ent, for an especially aggr

avated o ffense , and/or a s a persistent offender shall be filed not less than ten (10) day s prior to trial.” Tenn. R. Crim. P. 12.3(a). This rule app lies to noti ce unde r section 40-35-20 2(a), not to notice of enhan

cement f actors. Ad visory Commission Co mments, Te nn. R. Crim. P. 12.3; State v. Lo we , 811 S.W.2d 52 6, 52 7 (Tenn. 1991) (stating that Rule 12.3 applies to notice under section 40-35-202( a)).
The Appellant was sentenced as a Range I standard offende

r. In filing

notice of enhancement factor s, the State sought only to have the court increase the Appellant’s sentence within that range. Accord ingly , we find

this issue i s without me

rit. IV. Accomplice Instruction
The Appellant contends that the trial court erred

by not submitting an acc omplice instruction to the jury with regard to the witness, Yolanda Bar nes, because of her participation in the crime. The Appellant argues that

she was a

n acces sory

after th e fact to the crime and, thus, an accomplice. As-7-

such, he contends that any testimony she

gave about the Appellant’s involvement should have been corrobo rated in order f or the jur y to use it as e

vidence to convic t the Appe

llant. First, we observe that there was an abunda nce of evidence, independent of that pre sented by the witness Barnes , which w ould have supported the jury ’s verdict. Second, we find that the Appell ant’s argume

nt that Ba

rnes wa s an acc omplice ismisplace d. An acc omplice iso ne wh o kn ow in gl y, voluntar

ily , and with common intent unites with the principal offender in the commission of a crime. Clapp v. State , 30 S.W. 214, 216 (Tenn. 1894); Conner v. State , 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975). We note that the te st gene

rally applied i n determ

ining wh ether a witness is an accomplice is whether the allege d accomplice could be indicted for the same offe nse charged agains tthe defendant. Monts v. S tate , 379 S.W.2d 3 4, 43 (Te nn. 1964) ; State v. Green , 915 S.W.2d 827, 831 (Ten

n. Crim. Ap

p. 1995); State v. Lawson , 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). In this state, if the offense in question was not committed by the person’s own conduct, the person ma y, nonetheless, be criminally r esponsible as a principal to the offense if the per son “ solicits, directs, aids, or attempts to aid another person to commit the offense.” Tenn. Code Ann. § 39- 11- 402(2). The proof in t

his case fails toestablish that Barnes solicited, directed, aided, or attempted to aid the Appellant in committing murder and especial ly ag gra vated ro bbery . Her actions in allowing the Appellant into h er home a

fter th e crimes were committed, going shopping with the sto len money and receiving part of the proceeds for herself, do not make her a principal to t h e offense of murde r or robb ery

of the victim. Thus, the Appellant’s argument that it was error f or the trial court not

to subm it an accomplice instruction to the jury is without merit, as the facts do not demonstrate that Barnes was an ac complice.
V. Sentenc

ing
The Appellan t argues that the trial court excess ively sentence d him by misapply ing enhancing factor s, failing to apply r elevant mitigating factors, and ordering that his sentence s be served co ns ec ut iv el y. When an accused challenges the length, range, or manner

of sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40- 35-401(d ) (1997) ; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing pr inc iples and all relevant facts and circumstance s.” Ashby , 823 S.W.2d at 169. Whe n cond uctin g a de novo review o f a sente nce, thiscourt mus t consider: (a) the evidence, if any , received at trial and the sentencing hearing ; (b) the pre-sentence report; (c) the principle s of sente ncing a nd arguments as to sentencing al ternativ es; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating

or enhanc ement fa

ctors; (f) any statement that the Appe llant made on his own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210 (1997 ); Ashb y , 823 S.W.2d at 168. Furthermore, we emphasize that facts relevant to sentencing must be established by a preponderance of the evidenc e and not beyond a reasonable doubt. State v. W infield, 23 S.W.3d 279, 283 (Tenn. 2000).1 We note that because of recent renumbering of the enhan cement s f actor s unde r Tenn. Code Ann. § 40-35- 114, the co rrect en hanc eme nt num bers a re no w (2), ( 6), an d (1 1). -8- If our revi ew refl ects tha

t the tr ia l court, following the statutory sentencing procedure, imposed a lawful sentence after having g iven due consideration and proper weig ht to the factors and principles set out under the sentencing law and made f indings of fact that are adequately

supported by the rec ord, then

we may not mo dify

the se ntence, even if we would have pref erred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, where the trial court fails to comply with the statutory provi sion s of se ntenc ing, appella te review is de novo without a presumption of correctness.
For standard offenders, the appr opriate sentenc e rang e for a c lass A felony is fiftee n to twenty-five

years. Te

nn. Code Ann. § 40-35-112(a)(1) (1997). The pre sumpt ive sentence is the midpoint within the range, if there are no e nhancement or

mitigating factors. Tenn. Code Ann. § 40- 35-210(c) (1997). The presumptive sentence is then increased for applicable enha ncing factors and decreased for applicable mitigating factors. The Appellant was sentenced as a standard Rang e I offender to serve twenty- year te

rms for both the second degree murde r andthe especially a

ggravated robbery c onvictions, both class A felonies.
A. Enhancement Factors The Appel lant asserts that the trial court’s application of enhancement f actors (1), t

h e defen dant had a previous history of criminal convicti o ns or criminal behavior; (5), the defendant treated or allowed a victim to b e treated with exceptional cruelty ; and (10), the defendant had no hesitation about committing a crime when the risk to human life was high, was error. 1 Tenn. Code Ann. § 40-35-113 (1997).
The re cord established that the Appellant, only twenty-two when the se crimes wer e committed, already

had a previous criminal history . The Ap pellant’s juvenile record shows an adjudication for

shoplifting in 1988, followed by a delinquency

adjudication for aggrava

ted robbery two years la

ter for which he was committed to the

Tenness ee Depa

rtment of Youth Dev elopment

. In addition, the Appellant’s adult record contained additional convictions for theft and for a weapons offense. Accordingly , we find application of enhancing fac tor (1) was proper. Moreover, following de novo review, we find factor (20) applicable based upon the Appellant’s adjudication of delinquency for

aggravated robbe

ry as a juve

nile.
The Appellant

also argues that enhancement fa ctor (5), the victim was treated with unusual cr ue lt y, should not have been applied. Our supreme cour t has held that before this enhancement factor may be applie d, the fa

cts must sup

port a “f inding of cruelty under the statute ‘over and above’ what is requi red to sustain a conviction for [the] offense.” State v. A rnett , 49 S.W.3d 250, 258 (Tenn. 2001). “[S]uch evidence must ‘denote[] the infliction of pain or suffering inflicted for its own sake or from the gratification derived there from, and n ot me rely

pain or suffering

inflicte d as a means of accomplishing the crime charg ed.’” Id

. (quoting State v. Kelly Haynes , No.W1999-01485--9-

CCA-R3-CD

(Tenn. Crim. App. at Jackson, Mar. 14. 2000)). Application of this factor ha s been upheld based on extensive physical or ps ycholog ical ab use or torture. Id . The tria l court sh ould “state what actions of the defenda nt, apar t from the elementsof the offense, constituted ‘exceptional cruelty.’” State v. P

oole , 945 S .W.2 d 93, 9 8 (Ten n. 199 7) (qu otin g State v. G oodwin , 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995)).
The tria l court ba sed its ap

plication of this enhancer

on the fact that the Appellant “chased the victim and then shot him several more times after the initial encounter.” We disag ree tha t this is sufficie nt to enhance the Appellant’s sentence. No e vidence of phy sical or

psy cholog ical abu se or torture was established. The evidence showed that the Appellant shot the victim, who then ran, and the Appellant

pursued h

im in order

to comple

te his crime. T

hus, we c onclude t

hat these facts, without more, do not permit application of factor (5). The Appellant also contends that the trial court erred in apply

ing enhancement factor

(10), the Appellant had no hesitation about committing a crime when the risk to human life was high. This court has concluded that “[a]lthough factor (10) is inherent in every homicide case re lative to the victim, the trial court may conside r this factor when the defendant endang ers the lives of people other than the victim.” State v. Kelley , 34 S.W.3d 47 1, 480 (Te nn. Crim. App. 2000). Although the trial court is not clear on its reasoning supporting applica tion of this factor, we conclude from the record that this enhancer is applicable. The Appellant, by his own testimony , while in a rage, was racing through a r eside ntial neig hbor, in a nd out of va

rious y ards, fi

ring a g un at a fl eeing t

arget

. Testimony

establish ed that p eop le were

exposed to t

he gun f ire during the sho oting spr ee. The se include Margaret L ambert, who was standing in front o f her window; Albe rt Thack er, who o nly

reentered his residence after he heard gunfire; and other unnamed individuals standing on the porch withthe Appellant and the victim when the shooting commenced. Any of the stray bullets fired by the Appellan

t could ha ve wounded these

or other individuals in the area. We find thissufficie nt to establish application of enhancing factor ( 10).
We thus find that the sentence should have been based on the applica tion of three enhancement factors: (1), (10), and ( 20). B. Mitigating Factors
The Appellan

t further argue s that the t

rial cou rt’s sent encing decision was impro

per bec ause the court fa

il ed to a pply applicable mitiga ting factors. The Appellant asserts application of the following factor s: (2) the Appella nt acted un der stro ng prov ocation; (3) subst antial g rounds exis t tending to excuse o

r justify the Appellant’s c

riminal c onduct, though f ailing to establish a defense; (11) the Appellant, alt

hough g uilty of the cr

ime, committed the o ffense under su ch unusu al circumstances that it

is unlikely that a sustained intent to violate the law motivated his conduct; and (12) that the Appellant acted under duress or under the domination of anoth er pers on, ev en tho ugh the duress or

the domina

tion of an other pe

rson is not

sufficie nt to const

itutea defense to the crime. Tenn. Code Ann. § 40-35-113 (2), -(3), -(11), -(12) . T he t rial cou rt denie d applica

tion of the se factors “primarily bec ause of the facts that were adduced in the case tha t you followe d this victim-10-

and shot him

and continued to sho ot him.” We a gree with the trial court that these factors were not es tablished. Th e Appellant shot the victim with his own gun, proceeded to chase him throug h a residential neighb orhood wh ile shooting at him, and then f atally shot him a s he lay di sabled. We find, as did the trial court, that the Appellan t’s condu ct manife sted a sus tained in tent to co mmit these crimes and that appl ica tion of the requested mitigators was precluded by the circumstances of the crime itself. The Appellant also asserts application of factor (8), that the defendant was suffering from a mental or physical

condition that significantly r educed his culpability for

the offenses. Tenn. Code Ann. § 40- 35-113(8 ). With res pect to th is assert ion, the c ourt note d:
T he court did take into consideration the mental evaluation, and found one of the reasons why they

were not as cr

edible a s they

possibly could have been is because of the conflict and also this court did not find, based upon all the other facts, that your mental capacity

or state influenced this particular crime.
We find no er

ror in the trial cou rt’s asse ssment of t

his facto r. Two expe

rts te stified at the Ap pellant’s sentencing hearing, but their testimony was conflicting as to the actual state of the Appellant’s menta l stat us. Th ough bot h agre ed that the Appella nt might b e border

line menta

lly retarded, without more this does not establish that his culpability is automatica lly lessened.
The Appellant next asserts that mi tigating factor (10), that the def endant assisted the authorities in locating or re cover ing property involved in the crime, is applicable. The Appellant argues that because he surrendered without incident, gave a full confession, and aided in recovering the murder weapon, this factor should have been a pplied. The trial court

found that these acts were “not signifi cant,” an d we agree. The Appe llant’s confession to the police followed admitted p articipation in these crimes to various individuals in the community. Moreove r, with respect

t o aiding the poli ce in lo cating the murder weapon, the proof indicates that the weapon would have been recovered without the Appellant’s ai d, as Alb ert Thacker knew he placed some thing in the closet. Indeed, it was Albert Thacker who told police that the g un had be en moved a

nd led the m to “Cyd’s” house to recover the weapon.
The Appellant’s final argument is that non-enumerated factor (13) should have been applied because he has shown he can be rehabilitated, h e can help o thers, and he has a positive effect on people in the community. Testimony was introduced at the sentencing hear ing that the Appellant had a positive effect onfellow inmates through his ministering to them in the jail and aiding them in escaping gang life . We find that, bec ause of t he abund ance of

credibl e evidenc e prese

nted, this factor was applicable. C. Appropriateness of Sentence
The presumpt ive sent ence for the Appellant’s convictions was twenty-year s, absent any enhancement

or miti gatin g factors. Having found three enhancement factors and one mitiga ting-11-

factor applicable, we find upon d e nov o review that the sentences of twenty years f or each of the Appellant’s class A convictions is justified.
D. Consecutive Sentences
Las tl y, the Appellant asserts that the trial court er red in ordering that his sentences be served co ns ec ut iv el y. Specifically, the Appe llant asserts that there is no evidence to support the trial court’s finding that he is a

dange rous off ender a nd, even if shown, there is nothing to support a finding that consecutive sen ten ces are nec ess ary t o pr ot ect th e pu bl ic a gai nst fur th er c rim in al c ond uct . In imposing consecutive sentences, the trial court found: [T]here is no question that there was more than en ough ac tivity by y ou to indic ate that this criminal act was not only done when the risk to human life washigh but a lso it shows and demonstrates that you w ere a dangerous offende r becau se not only

did you kill this person but you robbed the person a nd then you went on to do other things a nd also we

nt to a hous e and hid o

ut.
A trial court may

impose consecutive sentencing upon a determination that one or more of the criteri a set for

th in Tenne sse e Co de Annotated § 40-35-115(b) (1997) exists. This section permits the trial court to impose consecutive sentences if the court finds, among other criteria, that “[t]he defenda

nt is a dange rous off ender w hose beh avior ind

icates little or no regard for human life, and no hesita

tion about

comm itting a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4). However, before sentencing the Appellant to serve consecutive sentences on the basis that he is a dang erous off ender, t he trial c ourt must f

ind that the

resulting sentenc e is reasona bly related to the sev erity of the c rimes and necessary

to protect the public against further criminal conduct. State v. Imfeld , 70 S.W.3d 69 8, 708 (Te

nn. 2002) ; State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995).

We agree with the trial co urt’s decision order in g t ha t t he se se nt en ce s b e s er ve d c on se cu ti ve ly. The record amply

supports a finding that the Appe ll ant was a dange rous off ender. A s previou sly noted, the Appellant’s callus and calculated killing of his victim clearly re flects that he had little or no regard for human life and no he sitation abouttaking the life of a human being. The Appellant’s boasting of the fact that

he “shot [the victim] like a rabbit” provides further evidence of his dang er.
The record also supports a finding that the Appellant’s consecutive sentences were necessary to protect the public against further conduct. Finally, we c onclude that the effec tive sente nce of f orty yearsis also wa

rrante d by

the seve rity of the of

fenses. As such, we f

ind that the Appellant’s sentencing issues are without merit.-12- Conclusion

Based on the for

egoin g , we affirm the decision of the trial court reg arding the Appellant’s convicti ons and se

ntences

.

__________________________________________ DAVID G. HAYES, JUDGE