                                                                                         09/14/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 7, 2018

                 STATE OF TENNESSEE v. MAURICE GRAY

                 Appeal from the Criminal Court for Shelby County
                      No. 15-00752       Chris Craft, Judge
                     ___________________________________

                           No. W2017-01897-CCA-R3-CD
                       ___________________________________


A Shelby County jury convicted Defendant, Maurice Gray, of aggravated robbery,
aggravated burglary, employing a firearm during the commission of a dangerous felony,
convicted felon in possession of a firearm, convicted felon in possession of a handgun,
and evading arrest. Defendant received a total effective sentence of twenty-nine years.
On appeal, Defendant argues the following: (1) the evidence was insufficient for a
rational juror to have found Defendant guilty on all charges beyond a reasonable doubt;
(2) the trial court erred in ordering partially consecutive sentence alignment; and (3) the
trial court erred in failing to merge counts three, four, and five. After a thorough review
of the facts and applicable case law, we affirm Defendant’s judgments of conviction but
remand for merger of counts four and five.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                                  and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.

Stephen Bush, District Public Defender; Barry W. Kuhn (on appeal) and William
Johnson (at trial), Assistant District Public Defenders, for the appellant, Maurice Gray.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Muriel Malone,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                       OPINION

                        I. Factual and Procedural Background

       On February 12, 2015, the Shelby County Grand Jury indicted Defendant on
charges of aggravated robbery, aggravated burglary, employing a firearm during the
commission of a dangerous felony, convicted felon in possession of a firearm, convicted
felon in possession of a handgun, and evading arrest.

                                        Jury trial

       Marcus Merriweather, the victim, testified that he had been previously convicted
of possession of marijuana with intent to sell in 2011 and was currently on federal
probation for possession of a handgun. On August 18, 2014, Mr. Merriweather was
staying at a residence on Lowell Avenue. After a job interview that morning, he picked
up food from Waffle House and returned home. Mr. Merriweather testified that the first
assailant, Defendant, “came from the side of the house when [he] opened the door and
forced [him] in the house.” Defendant pointed a black gun with a long clip at Mr.
Merriweather and asked where the marijuana was located. When Mr. Merriweather
explained that he did not have any marijuana, Defendant hit Mr. Merriweather in the head
with the gun. Mr. Merriweather lay on the ground, and Defendant called someone on the
phone. A second armed assailant, co-defendant Ricky Faulkner, then entered the house,
and Defendant took money out of Mr. Merriweather’s pocket. Defendant then searched
Mr. Merriweather’s house while Mr. Faulkner guarded Mr. Merriweather. Defendant and
Mr. Faulkner then ran out of the house and left in a burgundy Toyota Corolla. Mr.
Merriweather stated that another individual was driving the vehicle.

       When police arrived at Mr. Merriweather’s residence, he informed the police that
he had been robbed at gunpoint of $300 from his pocket, his phone, and his earrings.
Later, Mr. Merriweather realized that Defendant and Mr. Faulkner had also stolen a
Michael Kors watch and $900 from a drawer in the bedroom. Mr. Merriweather stated
that he originally paid $300 for the earrings, $285 for the watch, and $600 for the phone.
Mr. Merriweather later identified Defendant in a photographic lineup. Mr. Merriweather
explained that, during the offense, he was “terrified[,]” “scared[,]” and believed that
Defendant was going to kill him.

      On cross-examination, Mr. Merriweather explained that the offenses occurred
between 11:00 and 11:30 a.m. Mr. Merriweather stated that his encounter with
Defendant lasted between ten and fifteen minutes. He agreed that he wrote on the
photographic lineup that Defendant stole between $400 and $450 from his pocket. Mr.

                                          -2-
Merriweather stated that he did not receive medical treatment for the injuries he received
during the offenses.

        Officer Dedrick Jones testified that he had worked as a uniform patrol for the
Memphis Police Department (“MPD”) since 2009. On August 18, 2014, Officer Jones
received a “be on the lookout” (“BOLO”) alert for a vehicle and individuals involved in a
home invasion robbery on Lowell Avenue. The BOLO described a red Toyota Corolla
and one suspect wearing a red t-shirt and leather pants. He located the vehicle in the
“general area” of Mr. Merriweather’s residence and initiated a traffic stop. When the
vehicle came to a stop in a driveway, Officer Jones observed three individuals in the
vehicle. Officer Jones approached Defendant, who was driving the vehicle, and asked for
identification. Defendant gave Officer Jones another individual’s identification. As
Officer Jones turned and checked the identification of the rear passenger, Defendant
“exited the driver front door and proceeded to run towards the back of the house.”
Officer Jones pursued Defendant into the backyard, and Defendant reached into his
“waistband” and threw an automatic handgun with an extended clip over the fence in the
backyard. Officer Jones then took Defendant into custody. Officer Jones patted
Defendant down to ensure that Defendant did not have any other weapons and discovered
“a watch in his possession, a large amount of cash, and some earrings.” Officer Jones
stated that the money that he obtained from the search of Defendant’s person “appeared
to be well over $1,000.” After Defendant was transported to an MPD precinct, Officer
Jones had “a general conversation” with Defendant in the kitchen area. Defendant
informed Officer Jones that his job was to “rob people.”

      On cross-examination, Officer Jones explained that, when he initiated a stop on
the Toyota Corolla, he “turned on [his] lights and sirens and let that individual know who
was driving that vehicle that [he] was trying to stop them.” Officer Jones asserted that
Defendant stayed in his sight throughout the chase to the backyard fence.

       Officer Charles Wren testified that he worked for the MPD. On August 18, 2014,
Officer Wren was a member of the Airways Station Task Force and was alerted about “a
home invasion in which a victim was robbed by two male blacks driving a Toyota
[Corolla].” By the time Officer Wren arrived at the scene, Officer Jones had already
located the vehicle. He saw Officer Jones running after a suspect and followed to assist
in the foot chase. As the two officers were placing Defendant in custody, Officer Wren
observed Mr. Faulkner “come out the rear window” of a house. As Officer Wren
approached the house, Mr. Faulkner went back inside the house. Officers Wren and
Jones arrested Defendant and Mr. Faulkner. On cross-examination, Officer Wren
explained that, as he approached the residence with the Toyota Corolla in the driveway,
he did not see any individuals in the vehicle.

                                          -3-
       Defendant testified that he had been previously convicted of facilitation of
aggravated robbery in April 2010. Defendant stated that he met Mr. Merriweather at a
dice game two weeks before the offenses. Defendant agreed that he went to Mr.
Merriweather’s house on August 18, 2014, to purchase some marijuana. Defendant
entered Mr. Merriweather’s house through the front door. Defendant and Mr.
Merriweather discussed marijuana and the money that Defendant won two days before
from gambling. Defendant gave Mr. Merriweather $100 for some marijuana. Mr.
Merriweather had two pounds of marijuana in a bag, and he wanted $900 for one pound
and $800 for the other. Mr. Merriweather gave one pound to Defendant to examine and
measured out seven grams of the marijuana, which Defendant gave to Mr. Faulkner.
Defendant gave the pound of marijuana back to Mr. Merriweather because it was poor
quality. Defendant and Mr. Merriweather began arguing about the marijuana, and
eventually Defendant agreed to purchase both pounds of marijuana. However, Defendant
took the two pounds of marijuana without paying and left Mr. Merriweather’s residence
instead. Defendant also took a watch on Mr. Merriweather’s table and a scale.

        Approximately forty minutes later, Defendant was stopped by law enforcement.
Defendant admitted that he gave a false license to the officer who asked him for
identification. Defendant explained that he gave the false license because he had 0.25
ounces of marijuana in his pocket. Defendant also admitted that, when the officer walked
away, he got out of his car and attempted to flee the scene. Defendant asserted that he
had $1,100 in his pocket and that he did not throw anything over the fence before Officer
Jones caught up with him. Defendant noted that he was not charged with possession of
the 0.25 ounces of marijuana. Defendant stated that, when he was taken to the front of
the residence, the two pounds of marijuana was no longer in his vehicle. Defendant
asserted that he did not tell Officer Jones that he robbed people.

       On cross-examination, Defendant asserted that he stole the two pounds of
marijuana from Mr. Merriweather because he argued with Mr. Merriweather. Defendant
claimed that he “fronted” the two pounds of marijuana to other individuals, “One-O” and
“Greg.” Defendant agreed that he fronted the marijuana to One-O and Greg so that they
could sell the marijuana. Defendant testified that he was not armed with a gun when he
stole the marijuana from Mr. Merriweather. Defendant stated that he stole Mr.
Merriweather’s watch because “[i]t [was] just right there by the weed” and because Mr.
Merriweather made Defendant mad.

      The jury found Defendant guilty as charged in counts one, two, three, and six.
The State and Defendant stipulated that Defendant had previously been convicted of two
counts of aggravated assault, felon in possession of a handgun, and facilitation of
aggravated robbery. The jury found Defendant guilty as charged in counts four and five.

                                          -4-
                                   Sentencing Hearing

        The trial court noted that Defendant stipulated at trial that he had previously been
convicted of two counts of aggravated assault, felon in possession of a handgun, and
facilitation of aggravated robbery. Regarding count one, aggravated robbery, the trial
court found that Defendant was a Range II offender. The trial court noted that Defendant
had been convicted of prior misdemeanors and admitted to using marijuana. The trial
court found that Defendant had a previous history of criminal convictions or criminal
behavior, in addition to that needed to establish Defendant’s range, see Tenn. Code Ann.
§ 40-35-114(1), and that “he was a leader in the commission of offense involving two or
more criminal actors[,]” see Tenn. Code Ann. § 40-35-114(2). The trial court noted that
Defendant “was the first person into the house, pointed the gun at the victim, Mr.
Merriweather, took money from him, his cell phone, his watch, [and] his earrings” and
determined that Defendant “was definitely a leader in this home invasion.” The trial
court found that no mitigating factors applied to Defendant’s case.

       The trial court ordered the following sentences: fifteen years as a Range II
multiple offender on count one, aggravated robbery; eight years as a Range II multiple
offender on count two, aggravated burglary; six years as a Range II standard offender
with release eligibility after service of 100% of the sentence on count three, employing a
firearm during the commission of a dangerous felony; eight years as a Range II multiple
offender on count four, convicted felon in possession of a firearm; three years as a Range
II multiple offender on count five, convicted felon in possession of a handgun; and eleven
months and twenty-nine days on count six, evading arrest.

        Regarding sentence alignment, the trial court found that Defendant had committed
“violent crimes as a juvenile,” had no employment history, and had “committed crimes
all [of] his life.” The trial court found that Defendant had an extensive history of
criminal activity. The trial court also found that Defendant was “a dangerous offender
whose behavior indicate[ed] little or no regard for human life because of the pistol
whipping and his other crimes, [and] no hesitation about committing a crime in which the
risk to human life is high.” The trial court also “found the circumstances surrounding the
commission of this offense [we]re aggravated in that [Defendant] [went] in with this
home invasion, pistol whip[ped] this man, [and] call[ed] another person to come in with a
gun” and that “confinement for an extended period of time [wa]s necessary to protect
society from his unwillingness to lead to productive life, and his resort to criminal
activity in furtherance of an anti[-]societal lifestyle[.]” Thus, the trial court ordered
Defendant’s sentence in count one, aggravated robbery, to be served consecutively to the
sentence in count two, aggravated burglary and in count three, employing a firearm
during the commission of a felony, for a total effective sentence of twenty-nine years.

                                           -5-
The trial court determined that Defendant was not eligible for probation and ordered
Defendant to serve his sentence in the Department of Correction.

      Defendant filed a timely motion for new trial, which the trial court denied.
Defendant now timely appeals his convictions and sentences.

                                        II. Analysis

                                Sufficiency of the evidence

        Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

                                    Aggravated robbery

       Defendant asserts that Mr. Merriweather did not identify Defendant as the
individual who entered his residence and pointed a gun at him.

       “Robbery is the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a)
(2014). Robbery is aggravated when the robbery is “[a]ccomplished with a deadly
weapon or by display of any article used or fashioned to lead the victim to reasonably
believe it to be a deadly weapon[.]” Tenn. Code Ann. § 39-13-402(a)(1) (2014). Deadly
weapon includes “[a] firearm or anything manifestly designed, made or adapted for the

                                            -6-
purpose of inflicting death or serious bodily injury[.]”       Tenn. Code Ann. § 39-11-
106(a)(5)(A) (2014).

       The identity of the perpetrator is “an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Identity may be established with circumstantial
evidence alone, and the “jury decides the weight to be given to circumstantial evidence,
and [t]he inferences to be drawn from such evidence . . . .” Id. (internal quotation marks
omitted). The question of identity is a question of fact left to the trier of fact to resolve.
State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982).

        Here, Mr. Merriweather testified that Defendant “came from the side of the house
when [he] opened the door and forced [him] in the house.” Defendant pointed a black
gun with a long clip at Mr. Merriweather and asked where the marijuana was located.
When Mr. Merriweather explained that he did not have any marijuana, Defendant hit Mr.
Merriweather in the head with the gun. Defendant stole $300 from Mr. Merriweather’s
pocket, his phone, his earrings, a Michael Kors watch and $900 from a drawer in the
bedroom. Mr. Merriweather identified Defendant as the individual who threatened him
with a gun and robbed him both in a photographic lineup and at trial. Mr. Merriweather
stated that, during the offense, he was “terrified[,]” “scared[,]” and believed that
Defendant was going to kill him. This evidence is sufficient for a rational juror to have
found beyond a reasonable doubt that Defendant intentionally or knowingly stole
property from Mr. Merriweather with a deadly weapon, a gun, and put Mr. Merriweather
in fear. Defendant is not entitled to relief on this ground.

                                    Aggravated burglary

       Defendant argues again that Mr. Merriweather did not sufficiently identify
Defendant as the individual who committed the offense. Defendant also contends that
Mr. Merriweather’s testimony did not sufficiently establish that the offense occurred in a
habitation because Mr. Merriweather stated that he was “staying” in the residence but did
not establish that he stayed at the residence overnight.

       Aggravated burglary is burglary of a habitation as defined in §§ 39-14-401 and 39-
14-402.” Tenn. Code Ann. § 39-14-403(a) (2014). As charged in this case, burglary
occurs when a defendant “[e]nters a building and commits or attempts to commit a
felony, theft or assault” “without the effective consent of the property owner[.]” Tenn.
Code Ann. § 39-14-402(a)(3) (2014). “Habitation” is defined as “any structure, including
buildings, module units, mobile homes, trailers, and tents, which is designed or adapted
for the overnight accommodation of persons[.]” Tenn. Code Ann. § 39-14-401(1)(A)
(2014).

                                            -7-
        We conclude that Mr. Merriweather’s testimony was sufficient to establish that
Defendant entered a habitation and committed a theft. Mr. Merriweather stated that he
was staying at a residence on Lowell Avenue when the offenses occurred. Mr.
Merriweather referred to the residence as “the house” and described the layout of the
residence while testifying about the offenses. It was within the purview of the jury to
infer that the structure that Defendant entered was a building that was “designed or
adapted for the overnight accommodation of persons[.]” See Tenn. Code Ann. § 39-14-
401(1)(A) (2014). As we noted above, Mr. Merriweather identified Defendant as the
individual who threatened him with a gun and robbed him both in a photographic lineup
and at trial. Based on its verdict of guilty, the jury clearly credited Mr. Merriweather’s
identification of Defendant as the individual who entered his home, threatened him with a
gun, and stole his personal property, as was its prerogative. Mr. Merriweather’s
identification of Defendant was sufficient evidence for a rational juror to find that
Defendant was the perpetrator of the aggravated robbery. Defendant is not entitled to
relief on this ground.

                                   Firearm convictions

      Defendant argues that “[b]ecause the victim was unable to properly identify . . .
[D]efendant, the [S]tate failed to prove the guilt of . . . [D]efendant beyond a reasonable
doubt” on counts three, four, and five.

       As charged in count three, “[i]t is an offense to employ a firearm during the . . .
[c]ommission of a dangerous felony[,]” such as aggravated burglary. Tenn. Code Ann. §
39-17-1324(b)(1),(i)(1)(H) (2014). As charged in count four, “[a] person commits an
offense who unlawfully possesses a firearm . . . and . . . [h]as been convicted of a felony
involving the use or attempted use of force, violence, or a deadly weapon[,]” such as
aggravated assault. Tenn. Code Ann. § 39-17-1307(b)(1)(A) (2014); see Tenn. Code
Ann. § 39-13-102 (2014) (assault is aggravated when it results in serious bodily injury to
another, results in the death of another, or involved the use or display of a deadly
weapon). A firearm is “any weapon designed, made or adapted to expel a projectile by
the action of an explosive or any device readily convertible to that use[.]” Tenn. Code
Ann. § 39-11-106(a)(11) (2014). As charged in count five, “[a] person commits an
offense who possesses a handgun and has been convicted of a felony[.]” Tenn. Code
Ann. § 39-17-1307(c)(1) (2014). A handgun is “any firearm with a barrel length of less
than twelve inches (12”) that is designed, made or adapted to be fired with one (1)
hand[.]” Tenn. Code Ann. § 39-11-106(a)(16) (2014).

      As we have previously stated, Mr. Merriweather identified Defendant both in a
photographic lineup and at trial as the individual who threatened him with a gun and
robbed him. Regarding count three, employing a firearm during the commission of a
                                           -8-
dangerous felony, Mr. Merriweather testified that Defendant entered his residence with a
gun and employed the gun during the burglary and robbery. Regarding counts four and
five, the State and Defendant stipulated that Defendant had been convicted previously of
two counts of aggravated assault and convicted felon in possession of a handgun in case
number 10-02887, and facilitation of aggravated robbery in case number 09-03338. The
evidence was sufficient for a rational juror to credit Mr. Merriweather’s testimony and
find Defendant guilty in counts three, four, and five beyond a reasonable doubt.
Defendant is not entitled to relief on this ground.

                                     Evading arrest

        Defendant argues that the evidence was insufficient to establish the elements of
this offense because Officer Jones “d[id] not testify that he was driving a police vehicle,
or that he turned on lights or siren, or did anything else that would identify him as a
police officer[,]” that Officer Jones was not in uniform, and that “[t]here [wa]s no
evidence regarding . . . [D]efendant’s state of mind that would indicate that he knew that
Officer Jones was a police officer who was attempting to arrest him.”

       “[I]t is unlawful for any person to intentionally flee by any means of locomotion
from anyone the person knows to be a law enforcement officer if the person . . . [k]nows
the officer is attempting to arrest the person[.]” Tenn. Code Ann. § 39-16-603(a)(1)(A)
(2014).

       Officer Jones received a BOLO alert for a vehicle and individuals involved in a
home invasion robbery on Lowell Avenue. He located the vehicle, initiated a traffic stop,
and “turned on [his] lights and sirens and let that individual know who was driving that
vehicle that [he] was trying to stop them.” Defendant stopped the vehicle in a residence’s
driveway and gave Officer Jones a false identification but then exited the driver’s door
and ran towards the back of the residence. Defendant attempted to jump over a fence in
the backyard and threw his firearm over the fence when Officer Jones apprehended him.
Thus, contrary to Defendant’s assertion, Officer Jones clearly testified that he activated
the lights and sirens on his patrol vehicle. The jury credited Officer Jones’s testimony
that Defendant had notice that Officer Jones signaled him to stop, as was its prerogative.
See State v. Kerry D. Garfinkle, No. 01C01-9611-CC-00484, 1997 WL 709477, at *3
(Tenn. Crim. App. Nov. 7, 1997) (“Although defendant claims that he never saw the
officers’ repeated signals to stop, this was a question of credibility for the jury.”). The
evidence was sufficient to establish that Defendant knew that Officer Jones was
attempting to apprehend him and Defendant exited his vehicle and fled behind the
residence. Defendant is not entitled to relief on this ground.



                                           -9-
                                 Consecutive sentencing

       Defendant argues that the trial court failed to make the required findings under
State v. Wilkerson, 905 S.W.2d 933, 936 (Tenn. 1995) to warrant consecutive sentencing.

       When the record clearly establishes that the trial court imposed a sentence within
the appropriate range after a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). The party challenging the sentence on appeal bears the burden of
establishing that the sentence was improper. Tenn. Code Ann. § 40-35-401 (2017),
Sentencing Comm’n Cmts. To facilitate meaningful appellate review, the trial court must
state on the record the factors it considered and the reasons for imposing the sentence
chosen. Tenn. Code Ann. § 40-35-210(e) (2017); Bise, 380 S.W.3d at 706.

        In State v. Pollard, the Tennessee Supreme Court expanded its holding in Bise to
trial courts’ decisions regarding consecutive sentencing. State v. Pollard, 432 S.W.3d
851, 859 (Tenn. 2013). Any one ground set out in the above statute is “a sufficient basis
for the imposition of consecutive sentences.” Id. at 862 (citing State v. Dickson, 413
S.W.3d 735, 748 (Tenn. 2013)). “So long as a trial court properly articulates reasons for
ordering consecutive sentences, thereby providing a basis for meaningful appellate
review, the sentences will be presumed reasonable and, absent an abuse of discretion,
upheld on appeal.” Id. (citing Tenn. R. Crim. P. 32(c)(1)).

        Tennessee Code Annotated section 40-35-115 sets forth seven different situations
in which a trial court may impose consecutive sentencing, including when “[t]he
defendant is a dangerous offender whose behavior indicates little or no regard for human
life and no hesitation about committing a crime in which the risk to human life is high[.]”
Tenn. Code Ann. § 40-35-115(b)(4) (2017); see Wilkerson, 905 S.W.2d at 936. Before a
trial court may impose consecutive sentences on the basis that a defendant is a dangerous
offender, the trial court must also find “that an extended sentence is necessary to protect
the public against further criminal conduct by the defendant and that the consecutive
sentences . . . reasonably relate to the severity of the offenses committed.” Wilkerson,
905 S.W.2d at 939. In order to limit the use of the “dangerous offender” category to
cases where it is warranted, our supreme court has stated that the trial court must make
specific findings about “particular facts” which show that the Wilkerson factors apply to
the defendant. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

       Additionally, a trial court “may order sentences to run consecutively if the court
finds by a preponderance of the evidence that . . . [t]he defendant is an offender whose
record of criminal activity is extensive[.]” Tenn. Code Ann. § 40-35-115(b)(2) (2017).
                                          - 10 -
This factor has been interpreted “to apply to offenders who have an extensive history of
criminal convictions and activities, not just to a consideration of the offenses before the
sentencing court.” State v. Palmer, 10 S.W.3d 638, 647-49 (Tenn. Crim. App. 1999).

        Here, the trial court ordered partially consecutive sentences based on its findings
that Defendant had an extensive history of criminal activity and that Defendant was “a
dangerous offender whose behavior indicates little or no regard for human life because of
the pistol whipping and his other crimes, no hesitation about committing a crime in which
the risk to human life is high.” The trial court also “found the circumstances surrounding
the commission of this offense [we]re aggravated in that [Defendant] [went] in with this
home invasion, pistol whip[ped] this man, [and] call[ed] another person to come in with a
gun” and that “confinement for an extended period of time [wa]s necessary to protect
society from his unwillingness to lead to productive life, and his resort to criminal
activity in furtherance of an anti[-]societal lifestyle[.]” Thus, the trial court clearly set out
multiple grounds on which to base its order of consecutive sentencing. While the trial
court did not explicitly find that “the consecutive sentences [were] reasonably relate[d] to
the severity of the offenses committed[,]” see Wilkerson, 905 S.W.2d at 939, the trial
court’s finding that Defendant had an extensive history of criminal activity is supported
by the record and alone is sufficient to support the order of consecutive sentences. See
Pollard, 432 S.W.3d at 862. The trial court found that Defendant had committed “violent
crimes as a juvenile,” that Defendant had no employment history, and that he had
“committed crimes all [of] his life.” Defendant had previously been convicted of two
counts of aggravated assault, convicted felon in possession of a handgun, facilitation of
aggravated robbery, and prior misdemeanors, and Defendant admitted to using marijuana.
Additionally, Defendant stipulated at trial that he had previously been convicted of two
counts of aggravated assault, convicted felon in possession of a handgun, and facilitation
of aggravated robbery. Thus, the trial court did not abuse its discretion by ordering
Defendant to serve his sentence in count one, aggravated robbery, consecutively to count
two, aggravated burglary, and to count three, employing a firearm during the commission
of a dangerous felony, for a total effective sentence of twenty-nine years. Defendant is
not entitled to relief on this ground.

                                    Merger of convictions

       Defendant lastly argues that this court should address the issue of merger of count
three, employing a firearm during a dangerous felony, count four, convicted felon in
possession of a firearm, and count five, convicted felon in possession of a handgun, under
plain error review because the convictions violate principles of double jeopardy.
Defendant asserts that “[a] single, wrongful act forms the basis for all three of these
convictions.” The State concedes that counts four and five must be merged.

                                             - 11 -
       Defendant did not raise this issue in his motion for new trial and addresses this
issue under plain error analysis. However, “the remedy for a double jeopardy violation is
not a new trial but a dismissal of a charge or merger of convictions.” State v. Nicholas
Keith Phillips, No. M2013-02705-CCA-R3-CD, 2015 WL 333084, at *8 (Tenn. Crim.
App. Jan. 27, 2015) (citing State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App.
1997)), no perm. app. filed. Therefore, we will conduct a plenary review of this issue on
the merits.

       The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth Amendment, states,
“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. Similarly, the Tennessee Constitution guarantees “[t]hat
no person shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn.
Const. art. I, § 10. Both clauses provide three distinct protections: “(1) protection against
a second prosecution for the same offense after acquittal; (2) protection against a second
prosecution for the same offense after conviction; and (3) protection against multiple
punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).

       With respect to the third category, the double jeopardy prohibition operates to
prevent prosecutors and courts from imposing punishment that exceeds that authorized by
the legislature. Id. at 542. Such single prosecution, multiple punishment claims
ordinarily fall into one of two categories: (1) “unit-of-prosecution” or (2) “multiple
description” claims. Id. at 543. Multiple description claims arise in cases where the
defendant had been convicted of multiple criminal offenses under different statutes but
alleges that the statutes punish the same offense. Id. at 544. Unit-of-prosecution claims
arise when the defendant has been convicted of multiple violations of the same statute
and asserts that the multiple convictions are for the same offense. Id.

       When reviewing multiple description cases, courts must determine whether the
defendant committed two offenses or only one. Id. at 544. To do so, courts apply the test
articulated in Blockburger v. United States, 284 U.S. 299 (1932). Blockburger, 284 U.S.
at 304; Watkins, 362 S.W.3d at 544. The reviewing court should first determine whether
the Tennessee General Assembly expressed an intent to permit or preclude multiple
punishments. Watkins, 362 S.W.3d at 556. “Where the General Assembly’s intent is not
clearly expressed, the Blockburger test should be applied to determine whether multiple
convictions under different statutes punish the ‘same offense.’” Id. To make this
determination, appellate courts must “examin[e] statutory elements of the offenses in the
abstract, rather than the particular facts of the case.” State v. Cross, 362 S.W.3d 512
(Tenn. 2012). A Blockburger analysis requires two steps: (1) determine whether the
statutory violations arose “from the same act or transaction” and (2) if they did arise from
the same act or transaction, determine whether the offenses for which the defendant was
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convicted constitute the same offense by comparing the elements of the offenses for
which the defendant was convicted. Id. at 545. If each offense contains an element that
the other does not, the statutes are treated as distinct, and courts presume that the
legislature intended that the offenses be punished separately. Id. at 545-46. Whether
multiple convictions violate the principles of double jeopardy is a mixed question of law
and fact that appellate courts review de novo with no presumption of correctness. State v.
Smith, 436 S.W.3d 751, 766 (Tenn. 2014).

       In State v. Martin Boyce, No. W2012-00887-CCA-R3-CD, 2013 WL 4027244, at
*14-15 (Tenn. Crim. App. Aug. 6, 2013), no perm. app. filed, this court examined
whether dual convictions of employing a firearm during the commission of a dangerous
felony and being a convicted felon in possession of a handgun violated double jeopardy
principles. This court applied the Blockburger test and concluded that the convictions
arose from the same criminal conduct. Id. at *15. Next, this court examined the statutory
elements of the two offenses and stated the following:

      Proof of a “prior qualifying conviction” for the offense of employing a
      firearm is not an element of the offense. Rather, the statute provides that a
      jury’s determination of a prior qualifying conviction is for purposes of
      sentencing. Tenn. Code Ann. § 39-17-1324(f), g(2), h(2). Employing a
      firearm during the commission of a dangerous felony is a Class C felony.
      Tenn. Code Ann. § 39-17-1324(h)(1), (h)(2). If the defendant has no prior
      felony convictions, the offense is punishable by a mandatory minimum six-
      year sentence; however, if the defendant has a prior felony conviction, the
      sentence is a mandatory minimum ten-year sentence. Id. Subsection (f) of
      the statute requires that a jury determination as to a defendant’s prior felony
      conviction be made in a bifurcated hearing where the State is seeking an
      enhanced sentence under subsection (h)(2).              Id. § 39-17-1324(f).
      Therefore, we conclude that the offense of possession of a handgun by a
      convicted felon requires proof of an element that employing a firearm
      during the commission of a dangerous felony does not.

Id. This court held that the dual convictions of possession of a handgun by a convicted
felon and employing a firearm during the commission of a dangerous felony did not
violate double jeopardy principles. Id. We see no reason to depart from the precedent set
by this court in Martin Boyce. Therefore, counts four and five do not merge into count
three, employing a firearm during the commission of a dangerous felony.

       We will apply the multiple description test to determine whether counts four and
five should merge. See Smith, 436 S.W.3d at 766-68 (applying the multiple description
test to determine whether convictions under multiple subsections of the same statute
                                          - 13 -
violated double jeopardy). Regarding counts four and five, we initially conclude that the
Tennessee General Assembly did not express intent to either preclude or permit multiple
convictions under section 39-17-1307. Titled “Carrying or possession of weapons[,]”
section 39-17-1307 does not contain an express provision permitting or prohibiting
prosecution for the same criminal conduct under multiple subsections. Therefore, we
must apply the two-step test from Blockburger.

        Applying the Blockburger analysis to counts four and five, we conclude that the
statutory violations charged in counts four and five arise from the same criminal act. See
Watkins, 362 S.W.3d at 545. Defendant’s convictions in counts four and five are based
on Defendant’s possession of one handgun during a continuous transaction of criminal
activity. Having concluded that counts four and five arise from the same criminal act or
transaction, we must determine whether the offenses for which the Defendant was
convicted constitute the same offense based on an analysis of the elements. As charged
in count four, “[a] person commits an offense who unlawfully possesses a firearm . . .
and . . . [h]as been convicted of a felony crime of violence[,]” based on Defendant’s
aggravated assault conviction from 2010. Tenn. Code Ann. § 39-17-1307(b)(1)(A)
(2014) (emphasis added). As charged in count five, “[a] person commits an offense who
possesses a handgun and has been convicted of a felony[,]” Tenn. Code Ann. § 39-17-
1307(c)(1) (2014) (emphasis added), based on Defendant’s previous convictions for
convicted felon in possession of a handgun from 2012 and facilitation of aggravated
robbery from 2010.

       In the two subsections at issue, the mens rea is not specified,1 and the actus reus is
the act of possession. See id. Additionally, both statutes require the defendant to have
been previously convicted of a felony, another essential element. See id. Because
Watkins and its progeny apply the Blockburger test with an objective or abstract view, we
conclude that the differences between the two subsections, such as firearm and handgun,
and a prior felony conviction versus a prior felony conviction of violence, do not
constitute separate elements. Additionally, we note that the category of handgun is
subsumed within the category of firearm, and the category of a felony of violence is
subsumed within the category of a felony. Thus, we conclude that these two offenses do
not each have an element that the other does not have. Because these two statutes do not
have an element that the other statute does not, Defendant’s convictions in counts four
and five must merge. On remand, the trial court should merge the Class E felony
conviction for convicted felon in possession of a handgun into the Class B felony
conviction for convicted felon in possession of a firearm. See State v. Banes, 874 S.W.2d
73, 81 (Tenn. Crim. App. 1993).

        1
          Because section 39-17-1307 does not specify a mental state, “intent, knowledge or recklessness
suffices to establish the culpable mental state.” Tenn. Code Ann. §39-11-301.
                                                - 14 -
                                    III. Conclusion

        After a thorough review of the facts and applicable case law, we affirm
Defendant’s convictions in counts one, two, three, and six and affirm the imposition of
partially consecutive sentences. We remand this case for merger of count five, convicted
felon in possession of a handgun, into count four, convicted felon in possession of a
firearm, to ensure that Defendant is not subjected to double jeopardy.


                                            ____________________________________
                                             ROBERT L. HOLLOWAY, JR., JUDGE




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