                                                                                         10/24/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs May 7, 2019 at Jackson

            STATE OF TENNESSEE v. TODD SAMUEL ADCOCK

                Appeal from the Circuit Court for Cheatham County
                        No. 17993 David D. Wolfe, Judge



                            No. M2018-01623-CCA-R3-CD



The Defendant, Todd Samuel Adcock, pled guilty to one count of sale of heroin, a class
B felony. After entering his guilty plea, the trial court found the Defendant to be a Range
III, persistent offender and sentenced him to twenty-five years’ incarceration. The trial
court determined that the twenty-five-year sentence was to run consecutively to the
Defendant’s previous eight-year sentence from Davidson County. On appeal, the
Defendant contends that the trial court erred (1) by not merging his previous convictions
and, thereby, sentencing the Defendant as a Range III, persistent offender and (2) by
ordering the Defendant’s sentence to run consecutively to his Davidson County sentence.
Following our review, we conclude that the trial court did not err and affirm the
sentencing decision.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., J., joined. THOMAS T. WOODALL, J., not participating.

William B. Lockert III, District Public Defender; and Matthew T. Mitchell, Assistant
District Public Defender, for the Appellant, Todd Samuel Adcock.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker,
Assistant Attorney General; Wendell Ray Crouch, Jr., District Attorney General; and
Margaret F. Sagi, Assistant District Attorney General, for the Appellee, State of
Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND
       The Defendant in this case was indicted on three counts of sale of a Schedule I
controlled substance, heroin. See Tenn. Code Ann. § 39-17-417. On January 22, 2018,
the Defendant pled guilty to one count and the State dismissed the remaining two counts,
with sentencing to be decided at a later sentencing hearing. On July 23, 2018, a
sentencing hearing was held to determine the length of the sentence and the manner of
service.

       The sentencing hearing proceeded as follows. The State called Officer John
McGranahan, of the Tennessee Department of Correction’s Probation and Parole
Division, to testify. Officer McGranahan completed the Defendant’s presentence report
prior to the hearing. During the presentence investigation, he discovered that the
Defendant had felony convictions in both Robertson County and Davidson County.
Officer McGranahan reviewed the Defendant’s criminal convictions and offered certified
copies of his convictions as exhibits. The convictions spanned a period of about fifteen
years. The Defendant gave a written and an oral statement during his interview with
Officer McGranahan, admitting that he had sold heroin, used drugs, and violated his
probation. Officer McGranahan reviewed the entire record of the Defendant’s
convictions, but we will list only those convictions that are pertinent to this case: three
Class D felonies for theft of property, a Class C felony for aggravated burglary, and a
Class C felony for attempted aggravated robbery. In total, Officer McGranahan testified
that the Defendant had fifteen felony convictions and had violated his probation and
community supervision multiple times.

       The State then called Officer Ronnie Moran to the stand. Officer Moran testified
that on March 31, 2016, and April 7, 2016, he used a confidential informant to perform a
video-recorded drug transaction with the Defendant. Officer Moran relayed that he had
records of the Defendant’s performing three drug transactions of the sale of heroin,
including an additional date of April 4, 2016, and that these transactions were the basis
for the Defendant’s charges. On direct, Officer Moran was asked if he would have
charged the Defendant differently if he believed the Defendant to be an addict, as
opposed to a dealer. Officer Moran answered in the affirmative, but based on his
knowledge and experience, the Defendant was classified as a dealer.

        The State’s witness, Dan Schaeffer, testified that he was an EMS Director for
Cheatham County and a “legal death investigator.” Mr. Schaeffer oversaw the
ambulance service and all the associated parts, including employees. Mr. Schaeffer
stated that his division tracked the use of Narcan on those individuals in Cheatham
County who overdosed. Mr. Schaeffer agreed with the State that there had been an
increase of Narcan use in the county from 2015 to the present. Mr. Schaeffer answered in
the affirmative that a portion of this increase could be attributed to heroin use.
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       Upon cross-examination, Mr. Schaeffer testified that he did not have data prior to
2015 because his division was not tracking Narcan use during that time. Mr. Schaeffer
asserted that the number of patient encounters with Narcan had continued to increase
with each subsequent year since 2015, and with “a path for an increase for 2018 as well.”
Mr. Schaeffer was unaware that the Defendant had been incarcerated since June 2016.

       Upon the conclusion of proof, the State argued that the Defendant met the
threshold for a Range III, persistent offender based upon his two December 2000 felony
theft convictions from Robertson County, his October 2002 felony theft conviction from
Davidson County, and his November 2014 aggravated burglary and attempted aggravated
robbery convictions from Davidson County. Additionally, the State argued that the
Defendant had fifteen total felony charges and some misdemeanor charges; that the
Defendant had failed his community corrections, failed to attend Narcotic Anonymous
meetings after being given opportunities to do so, and that the Defendant incurred these
charges while on probation for his aggravated burglary and attempted aggravated robbery
convictions from Davidson County. The State submitted that all of these facts should be
used as enhancement factors for sentencing purposes. The State also asked the trial court
to consider, for purposes of sentencing, that the Defendant was a danger to the
community by his distribution of heroin, the deterrent effect to others, the appropriate
punishment for the crime committed, and as a means to protect the Defendant himself.

       The Defendant argued that the November 2014 Davidson County convictions of
attempted aggravated robbery and aggravated burglary should be merged under
Tennessee Code Annotated section 40-35-107(b)(4) because “there must be multiple
aggravated burglaries” to qualify as two separate convictions. Additionally, in regards to
the two felony theft charges on December 17 and 19, 2000, the Defendant contended that
those two convictions should merge pursuant to the same statute, thus constituting only
one conviction. The Defendant argued that although the judgment forms stated that one
offense occurred on December 17, 2000, and the other offense occurred on December 19,
2000, the State had a duty to prove that the offenses happened on those days and not
within twenty-four hours. The Defendant argued that he should have been sentenced as a
Range II, multiple offender, not a Range III, persistent offender, because the total amount
of his Class A, B, C, and D felony convictions, after merger, did not meet the requisite
number of five convictions under Tennessee Code Annotated section 40-35-107(b)(4).

      The Defendant opted to use his right to allocution at the conclusion of arguments.
The Defendant admitted that he had suffered from a drug problem for more than twenty
years. The Defendant asked that the trial court provide him with treatment. The
Defendant apologized to the trial court for his behavior.

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        The trial court found that the Defendant’s December 2000 theft convictions did
not merge because they were committed on two different days, not within twenty-four
hours, and were not eligible for merger pursuant to Tennessee Code Annotated section
40-35-107(b)(4). Additionally, the trial court found that the November 2014 convictions
of aggravated burglary and attempted aggravated robbery did not merge because the
attempt “is the commission of robbery with a deadly weapon or the display of an item
fashioned to lead the victim to believe it to be a deadly weapon, or where the victim
suffers serious bodily injury” and, thus, qualified as a merger exception under the same
statute. As such, the court treated these as two separate convictions for purposes of
sentencing. The trial court found the Defendant to be a Range III, persistent offender
with a range of twenty to thirty years.

        The court continued and found that the Defendant had a long history of criminal
conduct, including fifteen felony convictions and multiple misdemeanor convictions.
The court found that confinement “[was] necessary to protect society from someone who
sells drugs, even if it’s to feed his own addiction.” The court maintained that not
ordering confinement “would necessarily depreciate the seriousness of selling heroin to
other individuals[.]” The court noted that measures less restrictive had been applied and
failed.

       The court applied several enhancement factors, including the Defendant’s previous
history of criminal convictions, the Defendant’s failure to comply with conditions of
release into the community as he was on probation at the time of the charges in this case,
and the Defendant had no hesitation of committing a crime when risk to human life was
high based upon the testimony of Mr. Schaeffer about the rise in overdoses from heroin.
See Tenn. Code Ann. § 40-35-114. When applying mitigating factors, the court did not
find that the Defendant assisted the authorities in uncovering offenses committed by
others. However, the court did find that the Defendant committed the crime to feed his
own addiction and applied the mitigating factor consistent with the purpose of the
sentencing chapter. See Tenn. Code Ann. § 40-35-113(13).

       The court found that the Defendant was on probation at the time he committed the
instant offense and that the law required his sentence to be served consecutively to his
eight-year Davidson County sentence. Counsel for the Defendant questioned the court’s
ruling, to which the court responded: “Well, by my determination he will serve it
consecutively. . . . I think that is consistent with the laws of the State of Tennessee.”

       Ultimately, the trial court sentenced the Defendant to twenty-five years’
incarceration to be served consecutively with his Davidson County sentence.


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      The Defendant timely filed a notice of appeal. The case is now before us for
review.

                                     ANALYSIS

       On appeal, the Defendant contends that the trial court erred by holding that the
Defendant was a Range III, persistent offender because his charge for attempted
aggravated robbery was not an exception to the twenty-four-hour merger rule pursuant to
Tennessee Code Annotated section 40-35-107(b)(4) and that the trial court erred by
ruling that Tennessee Code Annotated section 40-35-115(b) required the Defendant’s
sentence to run consecutively with his previous eight-year sentence. The State responds
that the trial court properly considered the Defendant’s convictions for aggravated
burglary and attempted aggravated robbery as two separate convictions, as the
convictions were an exception under the twenty-four-hour merger rule, and that the
sentence was properly ordered to run consecutively with the Defendant’s previous
sentence. We agree with the State.

       When an accused challenges the length and manner of service of a sentence, this
court reviews the trial court’s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). Moreover, appellate courts may not disturb the sentence even if
we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.
2007).

       When determining if a defendant is a persistent offender pursuant to Tennessee
Code Annotated section 40-35-107(a)(1), a defendant who has received “[a]ny
combination of five (5) or more prior felony convictions within the conviction class or
higher or within the next two (2) lower felony classes, where applicable[,] shall be
considered a persistent offender for sentencing purposes.” In determining the number of
prior convictions a defendant has received,
       [e]xcept for convictions for which the statutory elements include serious
       bodily injury, bodily injury, threatened serious bodily injury or threatened
       bodily injury to the victim or victims or convictions for the offense of
       aggravated burglary under § 39-14-403, convictions for multiple felonies
       committed within the same twenty-four-hour period constitute one (1)
       conviction for the purpose of determining prior convictions[.]
Tenn. Code Ann. § 40-35-107(b)(4).

      For two or more convictions to qualify as exceptions to the twenty-four-hour
merger rule pursuant to Tennessee Code Annotated section 40-35-107, there must be

                                          -5-
“more than one previous act involving bodily injury or threatened bodily injury.” State v.
Horton, 880 S.W.2d 732, 736 (Tenn. Crim. App. 1994).

        Aggravated robbery is defined as “the intentional or knowing theft of property
from the person of another by violence or putting the person in fear” and is
“accomplished 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; or where the victim suffers
serious bodily injury.” See Tenn. Code Ann. §§ 39-13-401, -402. Additionally, “[t]his
court has previously held that robbery, and by extension aggravated robbery, contains an
element that the defendant cause or threaten to cause bodily injury.” State v. Willie Lee
Hughes, Jr., No. M2015-01688-CCA-R3-CD, No. M2015-01207-CCA-R3-CD, 2016 WL
6956804, at *4 (Tenn. Crim. App. Nov. 29, 2016) (concluding that two convictions for
facilitation of aggravated robbery, both occurring within twenty-four hours, did not count
as a single conviction pursuant to the twenty-four hours merger rule); State v. Jamie Lynn
Middlebrook, No. M200902276-CCA-R3-CD, 2011 WL 198689, at *3 (Tenn. Crim.
App. Jan. 11, 2011) (concluding “that the statutory elements of robbery include a threat
of bodily injury when the State is required to prove that the defendant committed the act
through violence or by putting the person in fear”); State v. Iwanda Anita Buchanan, No.
M2007-02870-CCA-R3-CD, 2008 WL 4467185, at *5 (Tenn. Crim. App. Oct. 6, 2008)
(“Both robbery and aggravated assault contain elements that the defendant cause or
threaten to cause bodily injury.”); State v. Robert Lee Bailey, Jr., No. 01C01-9507-CR-
00220, 1996 WL 234083, at *2 (Tenn. Crim. App. May 9, 1996) (concluding that
convictions of attempted aggravated robbery “threatened bodily injury to the victims” for
purposes of the twenty-four hour merger rule).

A person commits criminal attempt when the person:

       intentionally engages in action or causes a result that would constitute an
       offense, if the circumstances surrounding the conduct were as the person
       believes them to be; acts with intent to cause a result that is an element of
       the offense, and believes the conduct will cause the result without further
       conduct on the person’s part; or acts with intent to complete a course of
       action or cause a result that would constitute the offense, under the
       circumstances surrounding the conduct as the person believes them to be,
       and the conduct constitutes a substantial step toward the commission of the
       offense.

See Tenn. Code Ann. § 39-12-101. Additionally, the Sentencing Commission Comments
to this section state that to be convicted of criminal attempt the offender must act “with
the kind of culpability otherwise required” for the object offense.

                                            -6-
       The Defendant first argues that the November 2014 convictions for aggravated
burglary and attempted aggravated robbery should be merged under Tennessee Code
Annotated section 40-35-107(b)(4) because the statute itself is “silent as to attempted
charges.” The Defendant contends that because the State did not offer proof or
information of the specific facts for the attempt conviction, it should merge with the
aggravated burglary conviction, resulting in only one conviction for sentencing purposes.
We disagree.


       The Defendant’s November 2014 conviction for aggravated burglary is
specifically exempted from the twenty-four-hour merger rule pursuant to Tennessee Code
Annotated section 40-35-107(b)(4). We now move on to the attempted aggravated
robbery conviction. Defendant’s attempted aggravated robbery charge necessarily
contains an element of bodily injury or threatened bodily injury. This court has
previously held that aggravated robbery contains an element of bodily harm or threatened
bodily harm and to be convicted of an attempt, the Defendant must have had the
culpability required to commit either bodily harm or threatened bodily harm. Because
this conviction contains bodily harm or threatened bodily harm, it is an exception to the
twenty-four-merger rule and will not merge with the aggravated burglary conviction.
Accordingly, the Defendant was properly sentenced as a Range III, persistent offender,
with a range of twenty to thirty years. The Defendant is not entitled to relief on this
basis.

       The Defendant argues secondly that the trial court erred by ruling that the law
required his sentence in this case to run consecutively with his eight-year sentence from
Davidson County that resulted from his convictions for aggravated burglary and
attempted aggravated robbery.

       When reviewing a trial court’s imposition of consecutive sentences, “the
presumption of reasonableness applies,” which gives “deference to the trial court’s
exercise of its discretionary authority to impose consecutive sentences if it has provided
reasons on the record establishing at least one of the seven grounds listed in Tennessee
Code Annotated section 40-35-115(b).” State v. Pollard, 432 S.W.3d 851, 861 (Tenn.
2013). “Any one of [the] grounds [listed in section 40-35-115(b)] is a sufficient basis for
the imposition of consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d
735 (Tenn. 2013)). Tennessee Code Annotated section 40-35-115(b) lists “an offender
whose record of criminal activity is extensive” and “the defendant is sentenced for an
offense committed while on probation” as two of the seven grounds a trial may use to
order consecutive sentencing.

                                            -7-
       Pursuant to Tennessee Code Annotated section 40-35-115, the trial court found
two factors that may be used to impose consecutive sentences, including the Defendant’s
extensive criminal activity and that the offense was committed while on probation. These
are supported by the record. Accordingly, the trial court did not abuse its discretion by
imposing consecutive sentences. The Defendant is not entitled to relief on this basis.

                                   CONCLUSION
      Based upon the foregoing, the judgment of the trial court is affirmed.




                                                 D. KELLY THOMAS, JR., JUDGE




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