# FILED October 28, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1997
STATE OF TENNESSEE, ) C.C.A.NO. 03C01-9606-CC-00222 ) Appellee, ) SULLIVAN COUNTY ) ) V. ) ) HON.R. JE RRY BECK, JUDGE ERNEST LEON POWERS,JR. ) ) (ESPECIA LLY AGGRAVAT ED Appe llant. ) ROBB ERY; F ELON Y MU RDER )

FOR THE APPELLANT : FOR THE APPELLEE : LYNN DOUGHERTY JOHN KNOX WALKUP HUDSON & DOUGHERTY Attorney General& Reporter 131 Eighth Str

eet P.O. Box 189 KENNETH W. RUCKER Bristol , TN 37621 Assistant Attorney General 425 Fifth Avenue North 2nd Floor, Cordel l Hull Bui lding Nashvill e, TN 37243 H. GREELEY WELLS, JR. Distri ct Attorney General PHYLLIS H. MILLER Assistant Distri ct Attorney General BARRY P. STAUBUS Assistant Distri ct Attorney General P.O. Box 526 Blountvi lle, TN 37617-0 526 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Ernest Leon Powers, Jr ., was convi cted offelony murder, in the perpetr

ation of r

obbery, and especiall y aggravated robbery fol lowing a jury trialin the Sull ivan County Cri minal Court. Defendant was sentenced to life imprisonmenton the fel ony murder convi ction, a nd the trialcourt sentenced him to twenty (20) years for the convi ction of especiall y aggravated robbery. The sentences were ordered to be served consecut ively . In thi s appeal as of right pursuantto Rule 3 of t he Tennessee Rules of Appell ate Procedure, Defendant presen ts five i ssues: (1) The trialcourt err ed by denying his motion to suppress statem ents taken from D efendant by law enforcem ent officers in violatio n of his prot ection against sel f-incriminati on and his ri ght to counsel ; (2) t he evidence was insuffi cientto sustai n the convic tions of felony

murder and especiall y aggravated robbery; (3) the t rial cour t erred by

overrul ing his obj ection to the admissibil ity of a photograph of the vi ctim which t he Defendant argues t he probative value was faroutweighed by the prejudicial effect; (4) th e trial co urt erre d in de nying h is motion for new trial b ased u pon an alte rnate juro r falsely s wearin g durin g voir dire; and (5) the t rial cour t erred by

ordering t he sentences to be s erved consecu tively. Finding t he evidence to be suffi cient and no rever sibleerror , we affirm the ju dgme nt of the trial co urt.

I. M OTION TO SUPPRESSSTATEMENT-3- The Def endan t gave two statements to Detectives Dale Boyd and Rick Hodges of the Sullivan C ounty Sheriff ’s Department, one on September 21, 1994 and another on Septem ber 22 , 1994 . Both s tatem ents w ere tak en wh ile Defendant was in custody . On each occasion, Defendant was a dvis ed of h is rights according to Miranda v. Arizona , 384 U.S. 43 6 (1966), and the Defendant signed a waiver of

those rights on each occasion pri or to giv ing the wri tten and signed statem ents. Recently, in State v. Odom , 928 S.W.2d 18 (Tenn. 1996), the supreme court held as follows: T he party p revailing i n the trial court is entit led to the strongest legitimate view of t he evidence adduced at the suppressi on hearing as w ell as al l reasonabl e and legit imate inferences that may be dra wn from that ev idence. So l ong as the greater weight of the evidence supports t he trialcourt’s find ings , those fi ndings shallbe upheld. In other wor ds, a t rial cour

t’s fi ndings of fact in a suppression hearin g will be uphe ld unle s s the evidence prepon derates otherwis e. Odom , 928 S.W.2d at 23.
Detective Boyd and Detecti ve Hodges testi fied at t he suppression hearing. Each stated th at the Defendan t understood ever ything. He was coherent and understood his rights. The D efenda nt did not re quest a n attorne y. Both officers confirm ed that the re was n o coerc ion of the D efenda nt.
Defendant testified that h e r eques te d an attorney during the s econd interv iew when the offi cers descri bed all of the evidence they ha d gathered subsequent to the first interro gation. H e claime d to have asked theofficer s three differ ent times for an attorney . He also cl aimed that t he officers told hi m the-4-

punishment for first de gree m urder was th e dea th pen alt y. He c laimed that Detective Hodges made promises to him regar ding the charges and punishment if he would just “com e clean.”

In its findin gs of fa ct, the tria l court s tated th at it had c onsid ered a ll of the proof, an d the de mean or of the w itnesses , and cam e to the conclusion t hat the statem ents we re freely, volun tarily, and kn owingly g iven by the Defen dant.
Our review of

the record i ndicatesthat the evid ence d oes no t prepon derate agains t the finding of the trial cou rt. Therefo re, this issue is without m erit.

II. SUFFICI ENCY OF THE EVI DENCE
On the night

of September 16, 1994, t he victim, J immy L ee Cu llop, Sr., was found d ead on the bed room flo or of his trailer lo cate d in Su lli van Coun ty, Tennessee. The v ictim lived al one. He was found by oneof his daughters and a friend, Eddie McElyea. The body was in an advanced state of decomposit ion. On the precedi ng day, Mr. McEl yea had gone by the house to see the vict im but not ed his vehic le was gone and assumed that the vict im was not at h ome . Howeve r, Mr. McElyea had notice d flies in the bedro om window and through a p artially opened curtai n, observed t he victi m’s televi sion in hi s bedroom was turned o n. The last time tha t any fr iend o r family mem ber had se en the victim alive was M onday n ight, Sep tembe r 12, 199 4.-5- At the time of his death, the victim own ed a van , a Malibu vehicle, a C hevy Blazertruck, anda Buick Elect ra automobile. It waswell known t hat the victim would not loa n to an yone h is Buic k Elec tra, wh ich wa s yellow in color with a dark vinyl top. He owned two handguns , incl uding a silver-col ored .22 cal iber nineshot revolver . A nine-shot .22 cali ber pistolwith it s serial numbers having been ground off was identifie d by fam ily members and friends aseither def initely being, or very si milar to, the same type of gun owned by the v ictim at th e time of his death. This pistolwas found in the p osse ssion of the D efend ant at th e time of his arrest on Septem ber 21, 1 994. Testimonyof witnes ses and photographs introduced into evi dence indicated that various i tems of personal property l ocated on dressers, nightstands, and a filing cab inet in the victim’s hom e were arranged and located on the furni ture in a normal fashion and had not been knocked over or otherwise disturbed. The State’s t heory was that this i ndicat ed that ther e had been no struggle b etween the victim a nd the D efenda nt prior to the homic ide. According to witnes ses, the Bui ck Electra a utomobile was miss ing f rom t he v ictim’s home as earl y as Tuesday , September 13, 1994. One wi tness, a n acquaintance of

the Defendant, stated th at a vehiclemeeting the description of the Bui ck Elect ra was parked at a motel in Nashvi lle, Tennessee where the Defendant was staying followi ng the h omicide
. Three glasses and t wo plates which h ad been used by the v ictim, his daughter, and her chil d, on the ni ght o f September 12, 1994, were f ound on the kitc hen counter on t he night t hat the victim’s bo dy was d iscovere d.-6- Various witnesseswho observed theDefendant on the day s foll owing the homicide did n ot se e any cuts , br uise s, or abra sion s on t he De fendan t, and he did not me ntion the e xistence o f any su ch inju ries at th e time he ga ve his statem ents to law enforce ment o fficers.
The forensic

patholog ist who perf orme d the a utops y testified that the victim had six “sharp force” wounds on the front of his body

and one o n the back. Death was du e to excess ive blood lo ss into the right side of hi s chest caused by one of the stab sounds. There were no d efensive wounds on the victim ’s body. The patholog ist also testified that a knife whi ch was intr oduced into evi dence and had been taken from th e Def enda nt’s pe rsona l effects followin g a se arch o f his mote l room, cou ld h avecau sed thewoun ds to th e vi cti m.
One of the victim’s daugh ters te stifi ed that he had bet ween $130.00 and $140.00 cash in his possession on Satur day, September

10, 1997, which he kept in his wa llet. Neith er the v ictim’s wallet no rthe m issing Buick Electra autom obile were ever recover

ed by law enfor

cement offi cers. Also, the Def e ndan t’s compound bow was missing fol lowing the discovery of the body, and was never recovere d.
Also recovered dur ing a search of the Defendant’ s personal effects was a pair of tennis s hoes. W h e n one of the s hoes was c omp ared b y a fore nsic scientist from the T.B.I . Lab w ith blood st ains from a por tion of t he floor of

the victim’s mobile home, thi s shoe’s tr ead was found to beconsistent with r espect to size, sha pe, and design to a foot print in th e blood stains.-7- The victi m’s driver’s li cense was found i n the bathroom tr ash can at the victim’s home. A woman from Nashvill e, Tennessee with whom Defendant had resided in motel rooms f or a s hort peri od of time pri or to the homi cide test ified thatthe Defend ant left for a few days and came back, indicat ing that h e had been to Bristol , Tennessee. When he returned, the wi tness observed Defendant wit h a gun ide nti fi ed as

theone bel ongi ng t o th e vi cti m.
An acquaintance of

the Defendant, William Greg Beavers, who had seen a car fitt ing the descripti on of the Buick Electra at the motel, alsotestif ied that followi ng the homicide, he told t he Defen dant tha t he had heard what the Defendant had done. Defend ant responded t hat he was sorry for what he had done. The witness testifi ed th at he and Defendant bot h understood th e conversati on concerned the v ictim’ s death.
After his arrest, the Defendant cal led Mr. Beaver s from the jail and asked him to go to h is mo tel room , recov er a red bag a nd dis pose of ever ything in it
. The Defendant stated a knife was i n the bag. He also reques ted the w itness to tell anyone who asked, t ha t Mr. Be avers had gone to Bristol and picked up the Defen dant. Mr. Be avers told the Defe ndan t that he would not get i nvolved and subs eque ntly gave a statement to police. Mr. Beavers testifi ed thathe did have two prior felony c onvictions for robbe ry and bu rglary, a nd he had pending charge s in anoth er coun ty from an incident w hich occ urred in Ja nuary 19 95.

In his first

statement to police on September 21, 1994, Defendant indicated thathe was in Nashvil le the week of September 12, 1994, until he left on Friday nightto go to Br istol, arrivi ng between 4:00 and 5: 00 a.m. Saturday morning,-8-

September 17. He gave a brief su mm ary of h is activitie s while in Bristolover the weekend, none of which i ncriminated him regarding the homicide of Mr. Cullop. He explained pos session of t he gun by saying t hat a fri end of his i n Bristolnamed “Jim Cullop” wi th whom he had worked at Georgia-Pacif ic, had gi ven him the gun some ti me before. He claimed the ser ial numbers were filed of f when the gun was given to him. The Defendant claimed to be a friend and “drinking budd y” with the victim.

In his second statement on the next eveni ng, the Defendant claimed that he was in Sull ivan County on September 13, 1994 and went to thevictim’s house at approximatel y 10:00 p.m. to ask the vi ctim to l oan him a car. He claimed that the victi m invited hi m inside and offered the Defendant a beer. They talked for appro ximate ly two hou rs. When the Defendant asked the vict im why Defendant had been laid off fr

om work, he stated the vi ctim immediately changed his at titude and acted like h e wante d to fight. De fendan t claimed th at the vict im started push ing him and w hen the D efendant be gan to walk tow ard the front doo r, th e victim we nt into his bedro om a nd retr ieved a .22 ca liber “nic kel pla ted” pis tol. Defendant claimed that he grabbed the gun and began wrestli ng over it with the victi m. After wrestling i nto the bedroom, Defendant observed a long knife l ying on the dresser. Defendant stated that he pi cked up the kn ife with h is right hand and started “sticki ng h i m,” referring to thevicti m. When the victim fel l, the gun dropped from his hand. Defendant pi cked up the gun, f ound the sheath for the knife and placed th e knife insid e it. Claiming that the vict im’s bil lfold was lying on the dress er, De fenda nt state d that h e took $110 .00 from the billfo ld and threw it back onto the bed. He admitted to taki ng the knife, t he gun, and $110.00 cash with him wh en he left th e victim’s h ome. D efenda nt sta ted that he went to his-9-

sister’s house and then hitch hiked to the outski rts of Nashv ille where he walked back to a friend’s ho use.
None of the fami ly members or friends of the vict im who were asked, had everseen a knife i n the possession of the vi ctim which r esembled the knif

e found in posse ssion of th e Defe ndant.
There was pro of o f bloo d splatters on the cei ling and f urnitur e in the victim’s bedroom, along wi th a large qu antity of bl ood upon t he bed an d floor. Only one w itness was c all ed on behalf of the d efense, a ne ighbor’s daug hter, who testified that sh e obs erved the victim stand ing at h is mai lbox at appro ximate ly 9:20 a.m. on the morning of September 13, 1994. She stated the victim was wearing cl othing whic h was not the same type of clot hing he wa s wearing at the time of discove ry of his bod y.
There was also test imony which showed t ha t D efendant was i n possession of the knife prior to the h omicide
.
When an accused chall enges the suff iciency of the convi cting evi dence, the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble to the p rosecution, any rati onal tri er of fact could have found the essenti al eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virgin ia , 443 U.S. 307, 319 (1979). Quest ions concerni ng the credi bilit y ofthe w itnesses, the weightand valu e to be given the evidence, as well as al l factua l issues r aised by the evidence, ar

e resolved by

the tri er of fact , notthis court. State v. Pappas , 754 S.W.2d 620, 623 (T enn. C rim. App .), perm . to appeal denied , id . (Tenn. 198 7).-10-

Nor may this cour

t reweigh or reevalu ate the ev idence
. State v. Cabbage , 571 S.W .2d 832 , 835 (T enn. 19 78).

A jury verdi ct app roved by th e tri al j udge acc redi ts t he St a te’s wit nesses and resolves all conflicts in fa vor of the S tate. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is e ntitl ed to the stron gest legitim ate viewof the evide nce an d all inferen ces there from. Cabbage , 571 S.W.2d at 835. Because a verdict

of guil t removes the pr esumption of innocence andreplaces it with a presu mption of gui lt, t he accused has the bur den i n this cour

t of illustrati ng why the evi dence is insuf ficien t to support the verdict returned by

the trier of fact. State v. Tug gle , 639 S.W .2d 913 , 914 (T enn. 1 982); Grace , 493 S.W.2d at 476.

At the time of

the com miss ion of th is offense, “robbery” was defined as t he intenti onal or know ing theft of p roperty from a person by v iolence or putting t hat person in fear. Tenn. Code Ann. § 39-13-401. “ Felony murder” was defined as “a reck less k illing of anoth er com mitted in th e perpe tration of, or a ttempt to perpetra te any . . . robb ery . . . .” Tenn . Code Ann. § 3 9-13-20 2.
From the proo f at trial, the jury cou ld easily find th at the De fendan t left Nashvill e, armed with a dea dly weap on, being a knife, an d went to t he victim ’s mob ile home late at ni ght. There wasno physical evidence of a struggle, no defensive wounds upon the body of the victi m, and there were v arious items of personal property m issing from the victim’s h ome. This evidence, in addition to proofof the Defendant’s fl ight backto Nash ville, along w ith no apparent i njuries to the Defe ndant, a nd his co nflicting sta te ments, cou ld easily be found b y a-11-

rationaltrier

of fact to prove beyo nd a reasonable doubt the offens e of fel ony murde r in the perp etration of a robbery. “Esp ecially aggravated robbery” is r obbery acco mplish ed with a dea dly weapon wher

e th e vi cti m s u ffers serious bodil y injur y. Again, there was overwhelming proof of t he use of a deadly weapon and obvious proof of serious bodily injury to the victim.
The Defendant’s st

atement clearly proved that Defendant had kill ed the vi cti m. The ju ry was entitled to rejec t the D efend ant’s c laims of self d efens e in his statemen t to law enforcem ent officers in light of the physi cal evidence, and the con flicting statem ents given by the De fendan t. The pro of in this cas e, both directan d circumstant ial, i s suffi cient to show that t he kill ing was in t he pursuance of the f elony of ro bbery rath er than c ollateral to it. Farm er v. State , 201 Tenn. 107, 296 S.W.2d 879 (1956); State v. Severs , 759 S.W.2d 935, 938 (Tenn. C rim. App. 198 8).
Accord ingly, this issu e is withou t merit.

III . ADMISSI BILITY

OF PHOTOGRAPH
Defendant objected at trial to the ad missibility of a photo graph wh ich depicted the vict im’s bedroom as it appeared when his body was disc overed. In the photograph, t he victi m’s body is l ying face- up on the fl oor to the l eft of, and parallelto the head of the bed. The photograph i s taken by someone standi ng at the foot of t he bed. The pict ure also i ncludes the chest of drawers, ni ghtstand,-12-

and portions of other furniture upon which vari ous items of per sonal propert

y had been placed and w ere app arently undisturbed. There is blood depicted on t he bed, on the floor, the chest of drawers and on portions of the vi ctim’s body . The upper portion of the vi ct im’s body is somewhat obscur ed by shadows in t he photog raph.
After a hearing out

of the prese nce of the j ury, th e trialcour t ove rruled Defe ndan t’s objecti on and ruled t hat the probat ive val ue of the pi ctu re was not outweig hed by a ny prejud icial effect.

At trialand on appeal, Defe ndant argues th at the prej udicialeffect of the photograph far

outweighed i ts probative value.

In State v. Banks , 56 4 S. W.2d 9 47 (Tenn . 19 78) , t he s upreme court held : The matters to betaken into considerat ion incl ud e th e value of photographs as evidence , that is, their accura cy and clarit y, and whetherthey were taken before t he corpse was moved, if the pos itio n and locati on of the body when found is mater ial; t he inadequacy of testimonial evidence in relat ing the facts to the jury; and the need for t he evidence to establi sh a pri ma facie case ofguilt or to rebut the defend ant’s con tentions. If the inflammato ry nature of the photogr

aph is thus out

weighed, it

is admissibl e. Banks , 564 S.W .2d at 951
.
The photograph not o nly shows that items of

per sonal propert

y were not disturbed in the vi ctim’s bedr oom, but that the be droom was apparently small as the items of furnitu re wer e close togeth er, ther efore r einforc ing the State’s theory thatno struggl e had occurred. This proof was r elevant to rebut the De fenda nt’s-13-

self de fense claim s asse rted in h is statem ent to law e nforcem ent officers
. The photograph doesshow some bloating of the body as a result of decomposition, but it is a distant

photographic

shot which is not

particul arly gru esome. The trial court noted that the bloated nature of t he victi m’s body was rel evant to establish a time fram e for the de ath. Following the hearing out of the p resence of t he jury, the trialcourt made findings of fact thatany prejudicial effect did n ot outweigh the probative value of the photograph. The record reflects that the tri al co urt pr operly cons idered all factors and there was no er ror in admiss ion of thephotograph int o evidence. This issu e is withou t merit.

IV. ALTERNATE JUROR’ S RESPONSES DURI NG VOIR DI RE
Two alternate jurors wer e initi ally pi cked at the b eginn ing of th e trial. One of th e alternates had to be dismi ssed due to healt h problems. Duri ng t he jury selecti on proce ss, the other alternate juror responded to t he Assistant Distri ct Attorney’s questi oning as follows: [Assistan t District Attorn ey]: M s

. [al t e r nat e j u r o r ]

, h a v e y o u o r-14- a cl o s e frie n d o r r e l a t i v e e v e r b e e n c h a r g e d w i t h a c r i me oth e r tha n a s p e e di n g t i c ke t

, o r a p a r k i n g t i c ke t ? [Alternate Juror]: N o

.
After the trial had co nclude d, it came to the attent ion of theDefendant that the alternate juror, at the tim e she answ ered th e abo ve que stion d uring v oir dire, had an adopte d brother who had been convi cted of a serious felony in anot her-15-

state, and that she was aware of this situati on at the ti me she answered th e question
.
At the motion for n ew tria l, the alte rnate ju ror’s br other te stified th at his sister had visited with hi m at his place of incarcerat ion prior

to her sel ection for jury servi ce. He further stated that he had never spoken wit h his sister concerning the Defendant’ s case. Even thoug h he k new th e Def enda nt, he d id not me et him un til after the trial had conclud ed.
The State offered into e vidence, and t he trialcourt admit ted, wit hout objecti on from the Defendant, affidav its of the twelve jurors who s erved, deliberated, and rendered the v erdicts. In each of these affidav its, eac h juror stated that he or s he followed the tri al court’ s admonitions anddid not discuss o r begin deliberatio ns in the D efenda nt’s trial unti l afte r receiv ing jury instruct ions from the trial cour t. Furthe rmor e, eac h juror s tated in the affid avit that he or s he h ad no conversati ons with t he alternate juror concerning the merits of the Defe ndan t’s case or any c onversations w ith the alternate juror that wo uld have influence d or affecte d that juror’s deliberatio ns in the D efenda nt’s case
.
It was undisp uted t hat the al ternate j uror was dismi ssed prior t o the beginning of deli berations andtook no pa rt in t he d eliberation s. The a lternate juror was sequestered in the multi -day trialalong with the other j urors.
The Defendant argues t hat the fal se swearing by t he alternate juror r aised a presum ption of bia s and p artiality on the part of t he alternate, and th at he is-16-

thus entitl ed to a new tri al. He also ar gues that t he S tate fai led to rebut the presum ption of bias and partiality.

An affidav it of t he alternate juror was al so admitted i nto evi dence at the hearing on the motio n for ne w trial and in part the aff idavit states t hat the alternate juror di d not discuss the merits of the Defenda n t’s case while seque stered w ith the othe r jurors.
We agree that a d efendant is entitl ed to a fair and i mpartial t rial under our state cons titution a nd the United States Cons titution, a nd tha t this right i ncludes thata jury be free from a ny reasona ble suspicion o f bias or pre judice. Hyatt v. State , 221 Te nn. 644 , 430 S.W .2d 129 , 130 (19 67).

In State v. Akins , 867 S.W.2d 350 (Tenn. Crim. App. 1993 ), the defendant was convicted of vehicul ar homicide by intoxi cation following a jury trial . During the jury selecti on process, a potential j uror who ult imately ser ved on the jury which reached the ver dict fai led to di sclose inf ormation that

she had been a probation officer, a DUI p robatio n cou nselor and had wor ked in an adolescent alcohol and dru g rehab ilitation progra m. Th is silence w as des pite persis tent, straightforward question ing by bo th coun sel which should h ave cau sed he r to disclose the information. Our cour t in that case f ound actual pre judice to the defendantand reversed t he convicti on an d rem ande d the c ase fo r a new trial. In doing so, t he court recogni zed that when a juror wi lfully conce als or fails to disclose any information on voir dire which would refl ect on the jur or’s lac k of impartiality, a presu mption of prejudic e arises. Aki ns , 867 S.W.2d at 355.-17-

Howeve r, our court also recognized that a presu mption of bi as in some cases can be dispe lled by the a bsenc e of actua l partiality. Akins , 867 S.W .2d at 357
. Upon ourreview of

the record, we agree with t he trialcourt’s conclusions thatthe State was able to overcome any presumption of bias or partial ity beyond a reasonable doubt . The overwhelmi ng proof was that the alternate juror di d not discuss the Defendant’ s case with any of the j urors who reached a decision during the time s he was seque ste red with t he other jur ors. She did not participate in the deli berations, and even if t he Defendant was able to concl ude conc lusively thatthe alte rnate ju ror wo uld have been parti al or bias ed in reachi ng a decision, there is no proof that this af fected thejury’s ve rdict in th is case . Wh ile our conclusions might be dif ferent i f the alternate jur or had parti cipated i n the deliberat ions and renderi ng of the ver dict, in thesituation before us, we find no reversible error.
This issu e is withou t merit.
V. SENTENCI NG
The Defendant does not challengethe length of his se ntenc e for es pecia lly aggravated robbery, but does argue t hat the trial court erred b y o rderin g this sentence to be served consecutively to t he life imprisonment sentence for fel ony murder. Wh en an a ccused challeng es the len gth, rang e, or th e mann er of servi ce of a sentence, this cour t has a duty t

o conduct a de novo r eview of t he sentence with a presu mption that thedetermination s made by the trial court are c o rrect. Tenn. Code Ann. § 40-35-401(d). This pr esumption is " conditi oned-18-

upon the affi rmat iv e showing in t he record that the tri al court considered the sentencing principles and all rele vant facts a nd circum stance s." State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

In conducting a de nov o review of

a sentence, this court must consi der: (a) the eviden ce, if an y, rece ived at th e trial and the sentenci ng hearing; ( b) the presentence report; (c) the princip les of sen tencing a nd argu ments as to sentencing alternat ives; (d) the natur e and characteri stics of the criminal conduct involved; (e) any

statutor y mitigat ing or

enhancement factor

s; (f)any statement thatthe def enda nt ma de on his own behalf ; and (g) t he potentialor lack of potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedure, imposed a lawful sentence after having given due consider ation and properweight to the factors and p rincipa ls set out under the sentenci ng law, and thatthe trial court's findings of fact are adequately su pported by the recor d, then we may not modify t he sentence even i f we would have preferred a differ ent result. State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
The trialcourt foundthree factors that support the decision t hat the Defe ndan t’s twenty year sente nce fo r espe cially aggravated r obbery should run cons ecutive ly to his l ife sentence for fi rst degree felony murder. The three factors are: (1) The D efendant ha s an extensive re cord of crimi nal activi ty, Tenn. Code Ann. § 40-35-11 5(b)(2); (2) the D efend ant is a dangerous offender, Tenn. Code-19-

Ann. § 40-35-115(b) (4); and ( 3) the Defendant was on pro bation at the time of senten cing, Te nn. Co de Ann . § 40-35 -115(b)( 6).
Proof of the existence of the fac tors necessa ry to justify consecutive sentencing must only be e stablishe d by a pre ponde rance o f the eviden ce. Tenn. Code Ann. § 40-35-115 (b). Only o ne factor need b e proven to suppo rt a conse cutive sen tence. T enn. C ode An n. § 40-3 5-115(b ).
We are ab le to affirm the trial c ourt’s dec ision ord ering con secutive s entenci ng based upon the uncontr adicted proof

that Defendant

was on probation fora felony co nvicti on at the ti me he committed the present offenses. Because only one ground i s required t o justi fy consecutive sentencin g, as long as that ground i s proven by a pr eponderance of t he evidence, we a re able to affirm the trial c ourt’s order of conse cutive sen tencing. See Tenn . Code Ann. § 40-35-115. We also find tha t from the entire reco rd that consecu tive sentencing is necessary to protect t he public agai nst furt her criminalcon duct bythe Defen dant, and the consecutive sentencin g reasonably r elates to the severi ty of the offenses comm itted in this ca se. See State v. Wilkerson , 905 S.W.2d 933, 939 (T enn. 19 95). Finding that the eviden ce is su fficient to susta in the convic tion and that no reversible error occ urred, we affirm the ju dgme nts of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge-20-

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JERRY L. SMITH, Judge