       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE           FILED
                         FEBRUARY SESS ION, 1997     October 28, 1997

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

STATE OF TENNESSEE,                )   C.C.A. NO. 03C01-9606-CC-00222
                                   )
           Appellee,               )   SULLIVAN COUNTY
                                   )
                                   )
V.                                 )
                                   )   HON. R. JERRY BECK, JUDGE
ERNEST LEON POWERS, JR.            )
                                   )   (ESPECIALLY AGGRAVATED
           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 Street
P.O. Box 189                            KENNETH W. RUCKER
Bristol, TN 37621                       Assistant Attorney General
                                        425 Fifth Avenue North
                                        2nd Floor, Cordell Hull Building
                                        Nashville, TN 37243

                                        H. GREELEY WELLS, JR.
                                        District Attorney General

                                        PHYLLIS H. MILLER
                                        Assistant District Attorney General

                                        BARRY P. STAUBUS
                                        Assistant District Attorney General
                                        P.O. Box 526
                                        Blountville, TN 37617-0526


OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION

       The Defendant, Ernest Leon Powers, Jr., was convicted of felony murder,

in the perpetration of robbery, and especially aggravated robbery following a jury

trial in the Sullivan County Criminal Court. Defendant was sentenced to life

imprisonment on the felony murder conviction, and the trial court sentenced him

to twenty (20) years for the conviction of especially aggravated robbery. The

sentences were ordered to be served consecutively. In this appeal as of right

pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, Defendant

presen ts five issues: (1) The trial court erred by denying his motion to suppress

statem ents taken from D efendant by law enforcem ent officers in violatio n of his

protection against self-incrimination and his right to counsel; (2) the evidence was

insufficient to sustain the convictions of felony murder and especially aggravated

robbery; (3) the trial court erred by overruling his objection to the admissibility of

a photograph of the victim which the Defendant argues the probative value was

far outweighed by the prejudicial effect; (4) the trial co urt erre d in de nying h is

motion for new trial b ased u pon an alternate juror falsely s wearin g durin g voir

dire; and (5) the trial court erred by ordering the sentences to be served

consecu tively. Finding the evidence to be sufficient and no reversible error, we

affirm the ju dgme nt of the trial co urt.




                    I. MOTION TO SUPPRESS STATEMENT



                                             -2-
      The Defendan 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 September 22, 1994 .            Both s tatem ents w ere tak en wh ile

Defendant was in custody. On each occasion, Defendant was a dvised 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 prior to giving the written and

signed statem ents. Recently, in State v. Odom, 928 S.W.2d 18 (Tenn. 1996), the

supreme court held as follows:


      The party prevailing in the trial court is entitled to the strongest
      legitimate view of the evidence adduced at the suppression hearing
      as well as all reasonable and legitimate inferences that may be
      drawn from that evidence. So long as the greater weight of the
      evidence supports the trial court’s findings, those findings shall be
      upheld. In other words, a trial court’s findings of fact in a
      suppression hearin g will be uphe ld unle ss the evidence
      prepon derates otherwis e.


Odom, 928 S.W.2d at 23.



      Detective Boyd and Detective Hodges testified at the suppression hearing.

Each stated that the Defendant understood everything. 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 he reques ted an attorney during the second

interview when the officers described all of the evidence they had gathered

subsequent to the first interro gation. H e claime d to have asked the officers three

different times for an attorney. He also claimed that the officers told him the



                                         -3-
punishment for first de gree m urder was th e dea th pen alty. He claimed that

Detective Hodges made promises to him regarding 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 that the

statem ents we re freely, volun tarily, and kn owingly g iven by the Defen dant.



       Our review of the record indicates that 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. SUFFICIENCY OF THE EVIDENCE



       On the night of September 16, 1994, the victim, J immy L ee Cu llop, Sr.,

was found d ead on the bed room flo or of his trailer lo cated in Su llivan Coun ty,

Tennessee. The v ictim lived alone. He was found by one of his daughters and

a friend, Eddie McElyea. The body was in an advanced state of decomposition.

On the preceding day, Mr. McElyea had gone by the house to see the victim but

noted his vehicle was gone and assumed that the victim was not at home.

Howeve r, Mr. McElyea had noticed flies in the bedroom window and through a

partially opened curtain, observed the victim’s television in his bedroom was

turned o n.

       The last time tha t any friend or family mem ber had se en the victim alive

was M onday n ight, Sep tembe r 12, 199 4.




                                              -4-
       At the time of his death, the victim own ed a van , a Malibu vehicle, a C hevy

Blazer truck, and a Buick Electra automobile. It was well known that 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, including a silver-colored .22 caliber nine-

shot revolver. A nine-shot .22 caliber pistol with its serial numbers having been

ground off was identifie d by fam ily members and friends as either definitely being,

or very similar to, the same type of gun owned by the victim at th e time of his

death. This pistol was found in the p osse ssion of the D efend ant at th e time of his

arrest on Septem ber 21, 1 994.



       Testimony of witnesses and photographs introduced into evidence

indicated that various items of personal property located on dressers,

nightstands, and a filing cab inet in the victim’s hom e were arranged and located

on the furniture in a normal fashion and had not been knocked over or otherwise

disturbed. The State’s theory was that this indicated that there had been no

struggle b etween the victim a nd the D efenda nt prior to the homic ide.



       According to witnesses, the Buick Electra automobile was missing from the

victim’s home as early as Tuesday, September 13, 1994. One witness, a n

acquaintance of the Defendant, stated that a vehicle meeting the description of

the Buick Electra was parked at a motel in Nashville, Tennessee where the

Defendant was staying following the homicide . Three glasses and two plates

which had been used by the victim, his daughter, and her child, on the night of

September 12, 1994, were found on the kitc hen counter on the night that the

victim’s bo dy was d iscovere d.




                                          -5-
       Various witnesses who observed the Defendant on the days following the

homicide did not see any cuts, bruises, or abrasions on the Defendant, 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 pathologist who performe d the a utops y testified that the victim

had six “sharp force” wounds on the front of his body and one on the back.

Death was du e to excess ive blood lo ss into the right side of his chest caused by

one of the stab sounds. There were no defensive wounds on the victim ’s body.

The patholog ist also testified that a knife which was introduced into evidence and

had been taken from th e Def enda nt’s pe rsona l effects followin g a se arch o f his

motel room, could have caused the wounds to the victim.



       One of the victim’s daugh ters testified that he had between $130.00 and

$140.00 cash in his possession on Saturday, September 10, 1997, which he kept

in his wa llet. Neith er the v ictim’s wallet nor the m issing Buick Electra autom obile

were ever recovered by law enforcement officers.              Also, the Defendan t’s

compound bow was missing following the discovery of the body, and was never

recovere d.



       Also recovered during a search of the Defendant’s personal effects was a

pair of tennis s hoes. W hen one of the s hoes was c omp ared b y a fore nsic

scientist from the T.B.I. Lab with blood stains from a portion of the floor of the

victim’s mobile home, this shoe’s tread was found to be consistent with respect

to size, sha pe, and design to a foot print in th e blood stains.




                                          -6-
        The victim’s driver’s license was found in the bathroom trash can at the

victim’s home. A woman from Nashville, Tennessee with whom Defendant had

resided in motel rooms for a short period of time prior to the homicide testified

that the Defend ant left for a few days and came back, indicating that he had been

to Bristol, Tennessee. When he returned, the witness observed Defendant with

a gun identified as the one belonging to the victim.



        An acquaintance of the Defendant, William Greg Beavers, who had seen

a car fitting the description of the Buick Electra at the motel, also testified that

following the homicide, he told the Defendant that he had heard what the

Defendant had done. Defendant responded that he was sorry for what he had

done.     The witness testified that he and Defendant both understood the

conversation concerned the victim’s death.



        After his arrest, the Defendant called Mr. Beavers 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 in the bag. He also reques ted the w itness to

tell anyone who asked, that Mr. Beavers had gone to Bristol and picked up the

Defen dant. Mr. Be avers told the Defe ndan t that he would not get involved and

subs eque ntly gave a statement to police. Mr. Beavers testified that he did have

two prior felony c onvictions for robbe ry and bu rglary, and 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

that he was in Nashville the week of September 12, 1994, until he left on Friday

night to go to Bristol, arriving between 4:00 and 5:00 a.m. Saturday morning,

                                         -7-
September 17. He gave a brief su mm ary of h is activitie s while in Bristol over the

weekend, none of which incriminated him regarding the homicide of Mr. Cullop.

He explained possession of the gun by saying that a friend of his in Bristol named

“Jim Cullop” with whom he had worked at Georgia-Pacific, had given him the gun

sometime before. He claimed the serial numbers were filed off 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 evening, the Defendant claimed that

he was in Sullivan County on September 13, 1994 and went to the victim’s house

at approximately 10:00 p.m. to ask the victim to loan him a car. He claimed that

the victim invited him inside and offered the Defendant a beer. They talked for

appro ximate ly two hou rs. When the Defendant asked the victim why Defendant

had been laid off from work, he stated the victim immediately changed his attitude

and acted like h e wante d to fight. De fendan t claimed that the victim started

pushing him and w hen the D efendant be gan to walk tow ard the front doo r, the

victim went 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 wrestling over it with the

victim. After wrestling into the bedroom, Defendant observed a long knife lying

on the dresser. Defendant stated that he picked up the kn ife with h is right hand

and started “sticking him,” referring to the victim. When the victim fell, the gun

dropped from his hand. Defendant picked up the gun, found the sheath for the

knife and placed th e knife insid e it. Claiming that the victim’s billfold 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 taking the knife, the gun, and $110.00 cash

with him wh en he left th e victim’s h ome. D efenda nt stated that he went to his

                                          -8-
sister’s house and then hitch hiked to the outskirts of Nashville where he walked

back to a friend’s ho use.



       None of the family members or friends of the victim who were asked, had

ever seen a knife in the possession of the victim which resembled the knife found

in posse ssion of th e Defe ndant.



       There was pro of of blood splatters on the ceiling and furniture in the

victim’s bedroom, along with a large quantity of blood upon the bed an d floor.

Only one w itness was c alled 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 mailbox at

appro ximate ly 9:20 a.m. on the morning of September 13, 1994. She stated the

victim was wearing clothing which was not the same type of clothing he was

wearing at the time of discove ry of his bod y.



       There was also testimony which showed that Defendant was in possession

of the knife prior to the h omicide .



       When an accused challenges the sufficiency of the convicting evidence,

the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble

to the prosecution, any rational trier of fact could have found the essential

eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virgin ia, 443 U.S.

307, 319 (1979). Questions concerning the credibility of the witnesses, the

weight and valu e to be given the evidence, as well as all factual issues raised by

the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754

S.W.2d 620, 623 (T enn. C rim. App .), perm. to appeal denied, id. (Tenn. 198 7).

                                           -9-
Nor may this court reweigh or reevalu ate the ev idence . State v. Cabbage, 571

S.W .2d 832 , 835 (T enn. 19 78).



      A jury verdict approved by the trial judge accredits the State’s witnesses

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 entitled to the stron gest legitim ate

view of the evide nce an d all inferen ces there from. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 1982); Grace, 493

S.W.2d at 476.



      At the time of the com miss ion of th is offense, “robbery” was defined as the

intentional or know ing theft of p roperty from a person by violence or putting that

person in fear. Tenn. Code Ann. § 39-13-401. “Felony murder” was defined as

“a reckless killing 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 proof at trial, the jury cou ld easily find th at the De fendan t left

Nashville, armed with a dea dly weap on, being a knife, an d went to the victim ’s

mob ile home late at night. There was no physical evidence of a struggle, no

defensive wounds upon the body of the victim, and there were various items of

personal property m issing from the victim’s h ome. This evidence, in addition to

proof of the Defendant’s flight back to Nash ville, along w ith no apparent injuries

to the Defe ndant, a nd his co nflicting statements, cou ld easily be found b y a

                                         -10-
rational trier of fact to prove beyond a reasonable doubt the offense of felony

murde r in the perp etration of a robbery.



       “Esp ecially aggravated robbery” is robbery accomplished with a dea dly

weapon where the victim suffers serious bodily injury.             Again, there was

overwhelming proof of the use of a deadly weapon and obvious proof of serious

bodily injury to the victim.



       The Defendant’s statement clearly proved that Defendant had killed the

victim. 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 physical evidence, and

the con flicting statem ents given by the De fendan t. The pro of in this cas e, both

direct and circumstantial, is sufficient to show that the killing was in the

pursuance of the felony 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. ADMISSIBILITY OF PHOTOGRAPH



       Defendant objected at trial to the ad missibility of a photograph which

depicted the victim’s bedroom as it appeared when his body was disc overed. In

the photograph, the victim’s body is lying face-up on the floor to the left of, and

parallel to the head of the bed. The photograph is taken by someone standing

at the foot of the bed. The picture also includes the chest of drawers, nightstand,

                                          -11-
and portions of other furniture upon which various items of personal property had

been placed and were apparently undisturbed. There is blood depicted on the

bed, on the floor, the chest of drawers and on portions of the victim’s body. The

upper portion of the victim’s body is somewhat obscured by shadows in the

photog raph.



       After a hearing out of the presence of the jury, the trial court overruled

Defe ndan t’s objection and ruled that the probative value of the picture was not

outweig hed by a ny prejud icial effect.



       At trial and on appeal, Defendant argues that the prejudicial effect of the

photograph far outweighed its probative value.



       In State v. Banks, 564 S.W.2d 947 (Tenn. 1978), the supreme court held:


       The matters to be taken into consideration include the value of
       photographs as evidence , that is, their accuracy and clarity, and
       whether they were taken before the corpse was moved, if the
       position and location of the body when found is material; the
       inadequacy of testimonial evidence in relating the facts to the jury;
       and the need for the evidence to establish a prima facie case of guilt
       or to rebut the defend ant’s con tentions. If the inflammato ry nature
       of the photograph is thus outweighed, it is admissible.


Banks, 564 S.W .2d at 951 .



       The photograph not only shows that items of personal property were not

disturbed in the victim’s bedroom, but that the bedroom was apparently small as

the items of furnitu re wer e close togeth er, ther efore r einforc ing the State’s theory

that no struggle had occurred. This proof was relevant to rebut the De fenda nt’s


                                           -12-
self de fense claim s asse rted in h is statem ent to law e nforcem ent officers . The

photograph does show some bloating of the body as a result of decomposition,

but it is a distant photographic shot which is not particularly gruesome. The trial

court noted that the bloated nature of the victim’s body was relevant to establish

a time fram e for the de ath.



       Following the hearing out of the presence of the jury, the trial court made

findings of fact that any prejudicial effect did n ot outweigh the probative value of

the photograph. The record reflects that the trial court properly cons idered all

factors and there was no error in admission of the photograph into evidence.

This issu e is withou t merit.



        IV. ALTERNATE JUROR’S RESPONSES DURING VOIR DIRE



       Two alternate jurors were initially picked at the b eginn ing of th e trial. One

of the alternates had to be dismissed due to health problems. During the jury

selection process, the other alternate juror responded to the Assistant District

Attorney’s questioning as follows:


       [Assistan t District Attorn ey]:   Ms
                                          .
                                          [alt
                                          e r
                                          nat
                                          e
                                          jur
                                          or]
                                          ,
                                          ha
                                          v e
                                          y o
                                          u
                                          o r

                                          -13-
                                          a
                                          clo
                                          s e
                                          frie
                                          nd
                                          o r
                                          rel
                                          ati
                                          v e
                                          e v
                                          e r
                                          be
                                          en
                                          c h
                                          a r
                                          ge
                                          d
                                          wit
                                          ha
                                          cri
                                          me
                                          oth
                                          e r
                                          tha
                                          na
                                          s p
                                          ee
                                          din
                                          g
                                          tic
                                          ket
                                          ,
                                          o r
                                          a
                                          pa
                                          rki
                                          ng
                                          tic
                                          ket
                                          ?

       [Alternate Juror]:                 No
                                          .



       After the trial had co nclude d, it came to the attention of the Defendant 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 convicted of a serious felony in another

                                          -14-
state, and that she was aware of this situation at the time she answered the

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 him at his place of incarceration prior to her selection for

jury service.    He further stated that he had never spoken with 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 evidence, and the trial court admitted, without

objection from the Defendant, affidavits of the twelve jurors who served,

deliberated, and rendered the verdicts. In each of these affidavits, each juror

stated that he or she followed the trial court’s admonitions and did not discuss or

begin deliberatio ns in the D efenda nt’s trial until after receiving jury instructions

from the trial cour t. Furthe rmor e, eac h juror s tated in the affid avit that he or she

had no conversations with the 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 undisputed that the alternate juror was dismissed prior to the

beginning of deliberations and took no part in the deliberation s. The a lternate

juror was sequestered in the multi-day trial along with the other jurors.



       The Defendant argues that the false swearing by the alternate juror raised

a presum ption of bia s and p artiality on the part of the alternate, and th at he is




                                           -15-
thus entitled to a new trial. He also argues that the State failed to rebut the

presum ption of bias and partiality.



       An affidavit of the alternate juror was also admitted into evidence at the

hearing on the motio n for ne w trial and in part the affidavit states that the

alternate juror did not discuss the merits of the Defendant’s case while

seque stered w ith the othe r jurors.



       W e agree that a defendant is entitled to a fair and impartial trial under our

state cons titution a nd the United States Cons titution, a nd tha t this right includes

that a jury be free from a ny reasona ble suspicion o f bias or prejudice. 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 vehicular homicide by intoxication following a jury trial. During

the jury selection process, a potential juror who ultimately served on the jury

which reached the verdict failed to disclose information that she had been a

probation officer, a DUI p robatio n counselor and had worked 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 court in that case found actual prejudice to the

defendant and reversed the conviction and rem ande d the c ase fo r a new trial.

In doing so, the court recognized that when a juror wilfully conce als or fails to

disclose any information on voir dire which would reflect on the juror’s lack of

impartiality, a presu mption of prejudic e arises.      Akins, 867 S.W.2d at 355.




                                          -16-
Howeve r, our court also recognized that a presumption of bias in some cases can

be dispe lled by the a bsenc e of actua l partiality. Akins, 867 S.W .2d at 357 .



       Upon our review of the record, we agree with the trial court’s conclusions

that the State was able to overcome any presumption of bias or partiality beyond

a reasonable doubt. The overwhelming proof was that the alternate juror did not

discuss the Defendant’s case with any of the jurors who reached a decision

during the time s he was seque stered with the other jurors.                She did not

participate in the deliberations, and even if the Defendant was able to conclude

conc lusively that the alte rnate ju ror wo uld have been partial or biased in reaching

a decision, there is no proof that this affected the jury’s ve rdict in th is case . Wh ile

our conclusions might be different if the alternate juror had participated in the

deliberations and rendering of the verdict, in the situation before us, we find no

reversible error.



       This issu e is withou t merit.



                                  V. SENTENCING



       The Defendant does not challenge the length of his se ntenc e for es pecia lly

aggravated robbery, but does argue that the trial court erred by orderin g this

sentence to be served consecutively to the life imprisonment sentence for felony

murder.    Wh en an a ccused challeng es the len gth, rang e, or the mann er of

service of a sentence, this court has a duty to conduct a de novo review of the

sentence with a presumption that the determination s made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned

                                           -17-
upon the affirmative showing in the record that the trial 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 novo review of a sentence, this court must consider: (a)

the eviden ce, if an y, rece ived at th e trial and the sentencing hearing; (b) the

presentence report; (c) the princip les of sen tencing a nd argu ments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for 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 review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and p rincipa ls set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify the sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



      The trial court found three factors that support the decision that the

Defe ndan t’s twenty year sente nce fo r espe cially aggravated robbery should run

cons ecutive ly to his life sentence for first degree felony murder. The three factors

are: (1) The D efendant ha s an extensive re cord of criminal activity, Tenn. Code

Ann. § 40-35-11 5(b)(2); (2) the D efend ant is a dangerous offender, Tenn. Code




                                         -18-
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 ).



      W e are ab le to affirm the trial c ourt’s decision ordering consecutive

sentencing based upon the uncontradicted proof that Defendant was on

probation for a felony conviction at the time he committed the present offenses.

Because only one ground is required to justify consecutive sentencing, as long

as that ground is proven by a preponderance of the evidence, we are 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 the public against further criminal conduct by the

Defen dant, and the consecutive sentencing reasonably relates to the severity 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 conviction and that no

reversible error occ urred, we affirm the ju dgme nts of the tria l court.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge




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CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JERRY L. SMITH, Judge




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