         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    May 15, 2001 Session

              STATE OF TENNESSEE v. MICHAEL BLACKBURN

                  Direct Appeal from the Circuit Court for Franklin County
                           No. 11,223-B    J. Curtis Smith, Judge



                   No. M2000-01202-CCA-R3-CD - Filed October 19, 2001

The defendant appeals his convictions for first degree premeditated murder, first degree felony
murder, and aggravated robbery. He contends that (1) insufficient evidence exists to support his
convictions; (2) the trial court erred by not allowing into evidence the guilty plea of co-defendant
Dickerson; (3) the trial court erred by not allowing into evidence statements made by co-defendant
Dickerson; and (4) the trial court erred in ordering consecutive sentences. After review, we affirm
the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE , JJ., joined.

Robert S. Peters, Winchester, Tennessee, for the appellant, Michael Blackburn.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

        The defendant, Michael Blackburn, was indicted by the Franklin County Grand Jury on one
count of first degree premeditated murder, one count of first degree felony murder, and on one count
of aggravated robbery. After a jury trial, the defendant was found guilty on all three counts. The
trial court merged the two murder convictions and sentenced the defendant to life imprisonment.
On February 9, 1999, the trial court conducted a sentencing hearing for the aggravated robbery
conviction. At the conclusion of the hearing, the trial court sentenced the defendant to twenty years
in the Department of Correction consecutive to the life sentence for first degree murder.

       The defendant now appeals and contends that (1) insufficient evidence exists to support his
convictions; (2) the trial court erred by not allowing into evidence the guilty plea of co-defendant
Dickerson; (3) the trial court erred by not allowing into evidence statements made by co-defendant
Dickerson; and (4) the trial court erred in ordering consecutive sentences. After review, we affirm
the judgment of the trial court.

                                               Facts

        At trial, the State called Coffee County Sheriff’s Deputy Brian Allen. On August 14, 1996,
Deputy Allen was working the midnight shift when the defendant came in around 12:15 a.m. to
report a drowning at the Turkey Creek boat ramp. The defendant reported to him that he, co-
defendant Tommy Dickerson, and victim David Singer were at the boat ramp that evening.
According to the defendant, co-defendant Dickerson and the victim started arguing and co-defendant
Dickerson hit the victim in the face, which knocked the victim into the water. He told Deputy Allen
that he tried to help the victim, but that co-defendant Dickerson ordered him back into the truck,
threatening him that he would be next if he did not comply. He said that the victim never resurfaced.
He told Deputy Allen that they then took the victim’s truck to Tullahoma. Because the Turkey Creek
boat ramp is in Franklin County, Deputy Allen notified the authorities there.

       The State called Deputy Earl Morse of the Franklin County Sheriff’s Department, who was
dispatched to meet the defendant at the boat ramp, to testify. Deputy Morse observed an article of
clothing in the water. He testified that the defendant told him that he, Dickerson, and the victim
were hanging out around the boat dock when the victim went down on the dock. The defendant
claimed that he told Dickerson that he needed to go home because he had to be up early for work.
According to the defendant, Dickerson then went onto the dock and began “messing” with the
victim. The two began arguing and the defendant said he saw “a motion come around,” heard a
“smack,” and something then hit the water. The defendant said he then turned on the truck
headlights.

        The defendant further told Deputy Morse that Dickerson said, “He ain’t come up yet,” and
then, “Let’s go, he’s dead. Get in the truck.” The defendant said that when he tried to go in after
the victim, Dickerson told him to get in the truck or he would be next. The two then got into the
truck and went to Tullahoma. According to the defendant, he jumped out of the truck at a red light
and Dickerson tried to run over him. He said that once he got to his father’s house, he told him what
had happened and his father told him to go to the police.

        At the crime scene, the defendant identified a pair of shoes found in the parking lot as
belonging to the victim. He also said that Dickerson was his cousin, but he had only met the victim
a few days earlier. He further informed the deputy that Dickerson and the victim had run away from
a rehab center in Shelbyville. A search of the boat dock revealed a shirt about four feet from the
dock, a pair of blue jeans about ten feet from the end of the dock, and the victim’s body 15’7” from
the end of the dock. The victim’s feet were tied with a blanket and his jeans had been pulled down
over the blanket. The victim had scratches and abrasions on his face and head.




                                                -2-
       The autopsy revealed multiple superficial lacerations on the victim’s forehead, linear
abrasions on his right shoulder, a bruise on his right wrist, and scrapes on his knees and right
forearm. The victim had a blood alcohol level of .19%. The medical examiner determined drowning
was the cause of the victim’s death.

        The State also called Franklin County Sheriff’s Deputy Danny Warren, who took a statement
from the defendant in the early morning hours of August 14, 1996, to testify. The defendant said that
Dickerson and the victim had run away from a rehab center on August 12th and had been drinking
all day. The defendant met up with Dickerson and the victim around 9:00 p.m. the next evening,
August 13, to go to a party at the Traveler’s Inn in Manchester. He said that Dickerson and the
victim had again been drinking.

        The defendant said that when they left, they went to Turkey Creek. Upon arrival, around
9:45 p.m., the victim got out of the truck and went onto the boat dock. The defendant said that he
told Dickerson that he needed to get home because he had to be up early for work. He said that
Dickerson then got something out of the back of the truck and went onto the dock and told the victim
to get up. He said that the two began arguing and then he heard a “smack” and something hit the
water. He then turned on the truck headlights and asked Dickerson what was going on. Dickerson
replied that the victim was messing around and jumped into the water. He told Deputy Warren that
he did not think much of it until Dickerson said that the victim was not coming up. The defendant
said that when he offered to jump in after the victim, Dickerson threatened to kill him if he did. He
claimed that he was afraid of Dickerson because Dickerson was bigger than him.

        According to the defendant, they left Turkey Creek in the victim’s truck. He then reiterated
his story about stopping at a red light, Dickerson trying to run over him, and getting to his father’s
house. When questioned about the victim’s legs being tied, the defendant claimed he did not know
how that happened. He told Deputy Warren that Dickerson and the victim had been arguing earlier
because the victim wanted to go home to his family, but Dickerson did not want him to go.

       Shortly thereafter, the defendant gave a second statement to Deputy Warren. He told the
deputy that Dickerson threatened him if he did not help. So, he tied a blanket around the victim’s
feet. He said that the victim was conscious, but did not resist them. The defendant claimed that he
then blacked out.

        Approximately an hour later, the defendant again summoned Deputy Warren with additional
facts about the victim’s death. He said that when the three were on their way to the boat dock,
Dickerson told the defendant that he was going to rob the victim and kill him. The defendant said
that when he objected, Dickerson threatened to kill him. He said that when they arrived, Dickerson
ordered him to get a blanket and a pair of pants out of the trunk. The defendant then tied the victim’s
hands together with the pants and tied his feet together with the blanket. According to the defendant,
Dickerson tied the blanket tighter, took $15.00 out of the victim’s pocket, and then picked the victim
up and threw him off the dock. When again questioned about the victim’s pants being around his
ankles, the defendant persisted that he did not know.


                                                 -3-
       A couple of days later, on August 16, the defendant gave another statement to Deputy
Warren. He said that after they arrived at Turkey Creek, the victim got out of the truck and leaned
up against it. Dickerson got out, smiled real big, and hit the victim. After the victim hit the ground,
Dickerson got on top of him and started beating him saying, “You want to fight? You want to
fight?” Although the victim never said a word, he was awake. At one point though, the victim did
ask Dickerson why he was doing this. Dickerson just beat him more.

        The defendant claimed that Dickerson got a blanket and a pair of pants out of the truck, and
made the victim walk down the boat dock. Again, the defendant insisted that he did not want to
participate, but that Dickerson threatened him with death if he did not. Per Dickerson’s orders, the
defendant tied the victim’s hands and feet. Then Dickerson smiled big again and pushed the victim
off the end of the dock. The defendant told Deputy Warren that the victim came up a couple of
times, but that Dickerson would not let him go in to help the victim.

         The two returned to Tullahoma and drove to the Traveler’s Inn in Manchester. There the
defendant met up with his girlfriend Charity Austin and told her that Dickerson killed the victim.
She and the defendant left Manchester, drove to his father’s house, and then went to the sheriff. The
defendant also told Deputy Warren that Dickerson said the victim was rich and that Dickerson told
his sister Rhonda that he was about to rob someone, get some money, and leave town.

        The State’s final witness was Rhonda Smith, the defendant’s first cousin and Dickerson’s
sister. She testified that on August 12th, the defendant, Dickerson, and Charity Austin came to her
house around 11:00 p.m. According to Smith, Dickerson had been drinking, but the defendant had
not. The defendant told her that he needed money. When she said she did not have any, he told her
he was going to get some money one way or another, even if he had to kill someone. In her
presence, the defendant asked Dickerson how much money the victim had, and Dickerson told him
that he was about to receive $400. The defendant said he would kill the victim for that money. He
claimed it would be easy to tie some blocks around his feet and throw him off into the water. While
at the Smith’s house, the defendant also approached Robert Smith about borrowing a shotgun. He
told Smith that he needed to make some money. However, Smith told him that he did not loan out
his guns. This concluded the State’s proof.

       The first witness on behalf of the defendant was James Parker, a.k.a. Poncho. He stated that
in August 1996, he lived with the defendant’s father, Alfred Blackburn. On August 13th, the
defendant, Dickerson and the victim were at Parker’s house. Evidently, the victim had spent the
night at his house, and was going to turn himself in that morning. However, the victim gave
Dickerson $40 and they proceeded to drink all day long.

       Around 5:00 p.m., Parker kicked everyone out of his house because they were drinking and
he did not want to get in trouble with his landlord. Later, around 9:00 p.m., the defendant and
Dickerson returned to Parker’s house, but the victim was not with them. They talked with the
defendant’s father and then they left. When Dickerson and the defendant later returned, Janice



                                                 -4-
Brown and Charity Austin were with them. The defendant told his father and Parker what had
happened, and the defendant and his father then left to go to the police.

        The defense also called Janice Brown to testify. She testified that when the defendant arrived
at the Traveler’s Inn, he seemed scared. He told her that the victim was at the lake. He said he
hoped that the victim was just passed out. However, he also told her that he jumped in the water to
help the victim and that Dickerson performed CPR, but then pushed the victim back in. After that,
she, Charity and the defendant drove out to the landing, called for the victim, and then returned to
Parker’s to talk with the defendant’s father.

         Alfred Blackburn, the defendant’s father, also testified on behalf of the defendant. He
testified that Dickerson and the victim had been drinking all day on August 13th. Dickerson and the
victim had argued several times and Dickerson swung a 2x4 piece of lumber at Blackburn when he
would not take them to Georgia. Around 11:15 p.m., the defendant came to the house and told him
that Dickerson had killed the victim. They then went to the police.

        Finally, the defendant testified on his own behalf. At trial, he stated that he did not initially
tell police the true story of what happened at the dock because he was afraid his parole would be
revoked. He testified that when he, Dickerson and the victim left Poncho’s on August 13th, he was
driving the victim’s truck. They stopped at a market, and Dickerson wanted to drive. Though
Dickerson was drunk, and the defendant did not want him to, Dickerson ended up driving anyway.
Dickerson indicated that he wanted to go for a swim, so they headed to Turkey Creek. On the way
there, Dickerson told him that he was going to kill the victim. Although the victim was sitting in
between Dickerson and the defendant, he had no reaction to this statement.

         When they arrived at the dock, Dickerson and the victim got out of the truck and leaned up
against it. According to the defendant, Dickerson told the defendant to get out or he would do to him
what he was going to do to the victim. The defendant noticed a boat in the water and yelled out to
it, hoping to dissuade Dickerson, even though he really did not believe Dickerson was serious. But,
the boat drove off. Then Dickerson smiled real big, and hit the victim. After the victim hit the
ground, Dickerson got on top of him and started beating him saying, “You want to fight? You want
to fight?”

        Dickerson got the blanket and pants out of the truck. He took the victim down to the dock,
told him to lie on his stomach and then ordered the defendant to tie the victim’s hands and feet.
Again, the defendant maintained that he tried to resist, but Dickerson threatened him with death if
he did not help him. The victim asked Dickerson what he was doing, and Dickerson told him he was
about to die. Dickerson then pushed the victim off the end of the dock. The defendant testified that
he started to go in after the victim, but that Dickerson again threatened him with death if he did.

       They left in the victim’s truck and drove back to Parker’s, where his father was still located.
He did not say anything to his father then about what happened because he was scared of Dickerson.
He and Dickerson then drove to Manchester and met up with Charity and Janice. After he told


                                                  -5-
Charity what had happened, he, Charity and Janice went back out to the boat dock to look for the
victim. When he did not answer their calls, they drove back to his father’s house. He then went to
the police with his story.

        After hearing all the evidence and closing arguments, the jury returned guilty verdicts for
first degree premeditated murder, first degree felony murder committed in the perpetration of
aggravated robbery, and aggravated robbery. The trial court merged the two first degree murder
convictions into one single conviction and ordered that the defendant serve a life sentence for that
conviction. Additionally, the trial court sentenced the defendant to twenty years in the Department
of Correction to be served consecutive to the life sentence for first degree murder.

                                               Analysis

        We review challenges to sufficiency of the evidence according to well-settled principles. A
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259
(Tenn. 1994). Although an accused is originally cloaked with a presumption of innocence, a jury
verdict removes this presumption and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the
insufficiency of the convicting evidence. Tuggle, 639 S.W.2d at 914. On appeal, “the [S]tate is
entitled to the strongest legitimate view of the evidence as well as all reasonable and legitimate
inferences that may be drawn therefrom.” Id. Where sufficiency of the evidence is contested on
appeal, the relevant question for the reviewing court is whether any rational trier of fact could have
found the accused guilty of every element of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). This court may not
substitute its own inferences “for those drawn by the trier of fact from circumstantial evidence.”
State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). In concluding our evaluation of
the convicting evidence, this court is precluded from reweighing or reconsidering the evidence. State
v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). We also will not reweigh a jury’s
rejection of a particular defense asserted by a defendant to excuse his conduct. See, e.g., State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).

        The jury convicted the defendant of first degree premeditated murder, first degree felony
murder committed during the perpetration of a robbery, and aggravated robbery. In Tennessee, first
degree premeditated murder is defined as a “premeditated and intentional killing of another.” Tenn.
Code Ann. § 39-13-202(a)(1). Intentional is defined as the “conscious objective or desire to engage
in the conduct or cause the result.” Tenn. Code Ann. § 39-11-106(a)(18). Premeditation is defined
as “an act done after the exercise of reflection and judgment.” Tenn. Code Ann. § 39-13-202(d).
A showing of premeditation also requires that the intent to kill be formed prior to the act of killing.
Id. However, there is no requirement that a purpose to kill pre-exist in the mind of an accused for
any definite period of time. Id.




                                                  -6-
         The elements of premeditation and intent may be established by proof of the circumstances
surrounding the killing. See State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997). Several factors that
tend to support the existence of these elements include: an unarmed victim; the particular cruelty of
the killing; and calmness immediately after the killing. See State v. Pike, 978 S.W.2d 904, 914
(Tenn. 1998); Bland, 958 S.W.2d at 660; State v. Brown, 836 S.W.2d 530, 541-42 (Tenn. 1992);
State v. West, 844 S.W.2d 144, 148 (Tenn. 1992). Existence of these elements are questions to be
resolved by the trier of fact. See Bland, 958 S.W.2d at 660.

         In this case, the jury was also allowed to use the theory of criminal responsibility. A person
is criminally responsible for the conduct of another when, “[a]cting with intent to promote or assist
the commission of the offense, or to benefit in the proceeds or results of the offense, the person
solicits, directs, aids, or attempts to aid another person to commit the offense.” Tenn. Code Ann.
§ 39-11-402(2).

       The evidence, viewed in a light most favorable to the State, showed that the defendant had
previously discussed taking the victim’s life in order to get some money from the victim. Rhonda
Smith testified that the day before the victim’s death, the defendant told her that he needed some
money and was going to get some even if he had to kill someone. Furthermore, the defendant
unsuccessfully tried to procure a weapon from Rhonda Smith’s husband.

         In his statements to police and during his testimony at trial, the defendant admitted that after
Dickerson beat up on the unarmed and intoxicated victim, he and Dickerson bound the victim’s arms
and legs and threw him into the lake. He also said that he watched the victim come up twice for air,
flailing his arms. The defendant then fled the scene in the victim’s truck. The defendant and
Dickerson then drove to the defendant’s father’s house, where they told no one about what had
happened. The two then drove to a party, where the defendant finally told his girlfriend what
happened. Finally, the defendant drove back to his father’s house before going to the authorities.
This clearly showed existence of calmness after this killing. When viewed in a light most favorable
to the State, this evidence was clearly sufficient for a rational trier of fact to find the defendant guilty
of first degree premeditated murder either directly or through the use of criminal responsibility.
Although the defendant maintains that he was not guilty because he was forced to participate in these
crimes because of co-defendant Dickerson’s threats on the defendant’s life, the defendant gave
several inconsistent versions of the events that led to the victim’s death. Given the defendant’s
inconsistencies, the jury discredited his testimony and rejected his claim that he was threatened with
death if he did not participate in the crimes. Rejection of such a claim is a question of fact for the
jury that this court will not reweigh. See, e.g., State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).

       The evidence was also sufficient for a rational trier of fact to find the defendant guilty beyond
a reasonable doubt of aggravated robbery. The statutory definition of aggravated robbery is set out
in Tennessee Code Annotated section 39-13-402 as follows:
       (a) Aggravated robbery is robbery as defined in § 39-13-401:
       ...
       (2) Where the victim suffers serious bodily injury.


                                                    -7-
Robbery as defined in section 39-13-401 is “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.”

         When viewed in a light most favorable to the State, the evidence at trial showed that the
defendant previously spoke of his need for money and that he believed the victim had some money.
The defendant also told someone that he would do anything to get some money. The defendant
testified at trial that after the victim was beaten, co-defendant Dickerson took money from the
victim’s pocket. Also, the defendant and co-defendant Dickerson then fled the scene in the victim’s
truck. During the process of this robbery, the defendant and co-defendant beat the victim and
inflicted the most serious bodily injury upon him – death. This evidence was clearly sufficient for
a jury to find the defendant guilty beyond a reasonable doubt of aggravated robbery either directly
or by way of criminal responsibility for the acts of his co-defendant.

        The jury also convicted the defendant of first degree felony murder committed in the
perpetration of a robbery. Although the trial court merged this conviction with the defendant’s
conviction for first degree premeditated murder, we conclude that the jury also had sufficient
evidence to convict the defendant of first degree felony murder. Under Tennessee law, felony
murder is “[a] killing of another committed in the perpetration of or attempt to perpetrate any . . .
robbery.” Tenn. Code Ann. § 39-13-202(a)(2). As previously discussed, the evidence was clearly
sufficient to find that the defendant killed, or was criminally responsible for killing the victim in the
perpetration of a robbery.

        Next, the defendant contends that the trial court erred by not allowing into evidence the fact
that co-defendant Dickerson pled guilty to second degree murder. The defendant attempted to
introduce the co-defendant’s judgment of conviction. The defendant’s contention is based upon
the argument that by the jury not knowing about the co-defendant’s guilty plea, they were left to infer
that the co-defendant was found guilty of first degree murder, and, thus, the defendant here should
also be found guilty. We disagree.

        When reviewing a claim involving the trial court’s exclusion of evidence, we will not disturb
the decision of the trial court absent an abuse of discretion. See State v. Banks, 564 S.W.2d 947, 949
(Tenn. 1978). Under Rule 403 of the Tennessee Rules of Evidence, a trial court may exclude
evidence “if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.”

       Evidence of a co-defendant’s guilty plea, no matter the form, must be relevant and pass the
Tennessee Rules of Evidence 403 balancing test. In the instant case, we find that the evidence is not
relevant and also, Rule 403 of the Tennessee Rules of Evidence requires its exclusion.

      A panel of this court was confronted with a similar issue in State v. Eric Chambers, No.
W1998-00618-CCA-R3-CD, 2000 WL 279645 (Tenn. Crim. App., filed March 6, 2000, at Jackson).
In Chambers, the defendant, relying upon State v. Spurlock, 874 S.W.2d 602 (Tenn. Crim. App.


                                                  -8-
1993), contended that the trial court abused its discretion by not allowing the defendant to present
proof of the co-defendant’s guilty plea as evidence supporting his defense. He contended that the
evidence should have been admissible to show another’s motive to commit the offense, or that
another committed the offense. Chambers, 2000 WL 279645, at *4. However, the trial court ruled
that such evidence was inadmissible because it was “irrelevant” and “misleading.” Id. at *5. In
addition, the trial court noted that the defendant had every opportunity to present witnesses to
support his theory of the case and could have called the co-defendant to testify. Id. Like the
defendant in Chambers, the defendant here was not denied the right to present evidence essential to
a defense and could also have called the co-defendant to testify.

          Next, the defendant contends that the trial court abused its discretion by refusing to admit
evidence of co-defendant Dickerson’s statement to James “Poncho” Parker. At trial, the defendant
sought to admit Parker’s testimony that co-defendant Dickerson told Parker: “Poncho, I killed him.
. . . I killed him, Poncho. I killed him.” He argued that this statement was admissible under Rule
803(3) of the Tennessee Rules of Evidence. Rule 803(3) allows admission of “[a] statement of the
declarant’s then existing state of mind, emotion, sensation, or physical condition.” The trial court
disagreed with the defendant and excluded the statement.

        On appeal, however, the defendant now contends that the statement should have been
admitted under the excited utterance exception to the hearsay rule. See Tenn. R. Evid. 803(2). A
party may not take one position regarding an issue in the trial court and then advocate a different
position on appeal to this court. See State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App.
1988); State v. Brock, 678 S.W.2d 486, 489-90 (Tenn. Crim. App.1984); State v. Galloway, 696
S.W.2d 364, 368 (Tenn. Crim. App.1985); see also Tenn. R. App. P. 36(a). Thus, the different
ground for admitting the evidence is waived.

       Nevertheless, we will address the defendant’s contention on appeal, that Dickerson’s
statement to “Poncho” Parker was an excited utterance, on its merits. Rule 803(2) provides an
exception to the hearsay rule for statements “relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.” Tenn. R. Evid.
803(2). In the jury-out hearing on the admissibility of the statement, Parker’s testimony went as
follows:
       Q: What did Tommy Dickerson tell you?
       A: . . . I said, “Where’s David at Tommy?”
           He said, “We left him at the game room shooting pool.”
           And I said, “As drunk as he is?”
           And he said, “Yeah.” . . . And then Tommy, I was sitting back in the lounge
           chair, and he said, “Poncho, I know you don’t like to be hugged on and
           everything,” but he said, “You might not ever see me again.” But Tommy said
           shit like that all the time. When he whispered it in my ear, he reached down and
           hugged my neck [and] said, “Poncho” –
       Q: Well, by the way, when he reached down, hugged your neck, was he emotional?



                                                 -9-
       A: No, . . . he whispered and he told me, he said, “Poncho, I killed him.” He said,
          “I killed him, Poncho. I killed him.”

         Dickerson made this statement to Parker after Dickerson and the defendant drove the victim’s
truck back to town several miles from the location of the killing. As evidenced by Parker’s
testimony, Dickerson was not in an excited state and even whispered the statements to Parker.
Parker testified that Dickerson did not seem emotional, and there is nothing indicating that Dickerson
made the statement under the stress of excitement caused by the killing. Thus, Dickerson’s
statement does not qualify as an excited utterance. See Tenn. R. Evid. 803(2). Furthermore, nothing
in the statement related to the declarant’s then existing state of mind, emotion, sensation, or physical
condition. See Tenn. R. Evid. 803(3). Therefore, the trial court properly denied Parker’s testimony
relating to Dickerson’s statements.

         Finally, the defendant contends that the trial court erred in ordering his twenty year sentence
for aggravated robbery to be served consecutive to his life sentence for first degree murder.
Specifically, he contends that the State failed to show that consecutive sentencing was needed to
protect the public against further criminal activity by the defendant. This court’s review of the
sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann.
§ 40-35-401(d). This presumption is conditioned upon an affirmative showing in the record that the
trial judge considered the sentencing principles and all relevant facts and circumstances. State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). However, if the trial court fails to comply with the
statutory directives, there is no presumption of correctness. State v. Poole, 945 S.W.2d 93, 96 (Tenn.
1997). In reviewing the record before us, the trial court in this case clearly followed the appropriate
sentencing procedure; therefore, we will review the defendant’s sentence with a presumption of
correctness.

        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors
in sentencing:
        (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
        presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
        alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
        [e]vidence and information offered by the parties on the enhancement and mitigating
        factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes
        to make in the defendant’s own behalf about sentencing.

        Tennessee Code Annotated section 40-35-115(b) provides that a court may order sentences
to run consecutively if the court finds by a preponderance of the evidence that
        (1) [t]he defendant is a professional criminal who has knowingly devoted such
            defendant’s life to criminal acts as a major source of livelihood;
        (2) [t]he defendant is an offender whose record of criminal activity is extensive;



                                                 -10-
         (3) [t]he defendant is a dangerous mentally abnormal person so declared by a
             competent psychiatrist who concludes as a result of an investigation prior to
             sentencing that the defendant's criminal conduct has been characterized by a
             pattern of repetitive or compulsive behavior with heedless indifference to
             consequences;
         (4) [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;
         (5) [t]he defendant is convicted of two (2) or more statutory offenses involving
             sexual abuse of a minor with consideration of the aggravating circumstances
             arising from the relationship between the defendant and victim or victims, the
             time span of defendant's undetected sexual activity, the nature and scope of the
             sexual acts and the extent of the residual, physical and mental damage to the
             victim or victims;
         (6) [t]he defendant is sentenced for an offense committed while on probation; or
         (7) [t]he defendant is sentenced for criminal contempt.
See also State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Furthermore, in the event
the trial court finds that the defendant is a “dangerous offender,” it must also determine whether the
consecutive sentences (1) are reasonably related to the severity of the offenses committed; (2) serve
to protect the public from further criminal conduct by the offender; and (3) are congruent with
general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

        In ordering the sentences to run consecutively, the trial court first found that this defendant
had an extensive record of criminal activity. As the record indicates, when the defendant was
eighteen years old he was convicted of assault, driving on a revoked license, aggravated burglary,
and criminal trespass. At age nineteen, he was convicted of driving on a suspended license, public
intoxication, and theft of property over $1,000. At age twenty-one, he was again convicted of theft
of property over $1,000. Furthermore, he has violated his parole numerous times. Now, at age
twenty-five, he has committed the instant offenses. The record clearly indicates that this defendant
has a record of extensive criminal activity. See Tenn. Code Ann. § 40-35-115(b)(2).

         The trial court also found that the defendant was a “dangerous offender” whose behavior
indicated little or no regard for human life and who had no hesitation about committing a crime when
the risk to human life was high. See Tenn. Code Ann. § 40-35-115(b)(4). In applying the factors
set out in Wilkerson, 905 S.W.2d at 939, the trial court found that a consecutive sentence was
reasonably related to the severity of the aggravated robbery. In so finding, the trial court stated,
“[W]e are talking about an aggravated robbery, in which someone lost their life, was murdered. I
think that does warrant an extended sentence, because it does reasonably relate to the severity of the
offenses committed.” The trial court further found that a consecutive sentence was necessary to
protect the public from further serious criminal conduct by the defendant. See id. In its findings,
the trial court stated, “I think given [the defendant’s extensive criminal history] and the facts of this
case, a consecutive sentence is necessary to protect the public from further serious criminal conduct
by this defendant.” See id.


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         Our review of the record also indicates that such a sentence is clearly congruent with the
principles of sentencing. See id. Considering the trial court’s findings, and given the circumstances
of this aggravated robbery and the defendant’s extensive prior criminal record, we agree with the trial
court’s conclusion that this defendant was also a “dangerous offender” who had little or no regard
for human life. Thus, because the defendant has an extensive prior criminal activity and qualifies
as a “dangerous offender,” the trial court did not err in ordering the defendant’s sentences to run
consecutively.

                                            Conclusion

        After thorough review, we hold that sufficient evidence exists to support the defendant’s
convictions for aggravated robbery and for first degree murder. Furthermore, we hold that the trial
court did not err in refusing to allow into evidence the guilty plea of co-defendant Dickerson and in
refusing to allow into evidence statements made by co-defendant Dickerson to “Poncho” Parker.
Finally, we hold that the trial court did not err in ordering the defendant’s sentences to run
consecutively. Accordingly, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                           JOHN EVERETT WILLIAMS, JUDGE




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