     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT   KNOXVILLE

                        DECEMBER 1994 SESSION

                                                   FILED
                                                     June 26, 1997

                                 D                Cecil Crowson, Jr.
                                 5                 Appellate C ourt Clerk
STATE OF TENNESSEE,              5   No. 03C01-9402-CR-00069
            Appellee             5
                                 5   JEFFERSON COUNTY
      vs.                        K
                                 5   Hon. Rex Henry Ogle, Judge
                                 5
J.Y. SEPULVEDA,                  5   (First Degree Murder, Esp.
            Appellant            5    Agg. Burglary & Theft)
                                 E




FOR THE APPELLANT:                       FOR THE APPELLEE:

David B. Hill                            Charles W. Burson
Attorney at Law                          Attorney General & Reporter
301 E. Broadway
Newport, TN 37821                        Sharon S. Selby
                                         Assistant Attorney General
R.J. Tucker                              Criminal Justice Division
Attorney at Law                          450 James Robertson Parkway
317 East Main St.                        Nashville, TN 37243-0493
Newport, TN 37821
                                         Alfred C. Schmutzer, Jr.
                                         District Attorney General

                                         James Gass
                                         Asst Dist. Attorney General
                                         Sevier County Courthouse
                                         Sevierville, TN 37801




OPINION FILED: _______________________



AFFIRMED IN PART; MODIFIED IN PART
Robert E. Burch
Special Judge
                                OPINION

             Following a jury trial, Appellant was found guilty of

Felony Murder, Especially Aggravated Burglary and Theft of less

than five hundred ($500)Dollars.      The jury sentenced Appellant to

life for the murder and the trial court sentenced him to ten

years for the burglary and eleven months twenty-nine days for the

theft.    The trial court ruled that the burglary sentence be

served consecutively to the murder sentence, while the theft

sentence be served concurrently therewith.     He appeals of right

to this Court assigning four issues for review:

             1). Whether the trial court erred in failing to

suppress the statement made by Appellant on the day of his arrest

because said statement was obtained in violation of the

appellant’s Fifth and Sixth Amendment rights under the

Constitution of the United States.

             2). Whether Appellant’s subsequent statements should

have been suppressed because he did not receive effective

assistance of counsel in connection therewith.

             3). Whether the evidence in the record in this case was

sufficient to convict the appellant of murder in that it was not

established beyond a reasonable doubt that the death of the

deceased was a consequence of the beating inflicted upon her by

Appellant.

             4). Whether the trial court erred in sentencing the

appellant to consecutive sentences in light of the facts of this

case.

        We find that none of these issues constitute error and

affirm the felony murder and theft convictions.     The conviction

for especially aggravated burglary must be modified to aggravated

burglary and the sentence is modified for that offense.



                                 FACTS

                                  2
     On August 6,1991, friends of ninety-five year old Mrs. Cora

Nicholson noticed a broken window at her residence and stopped to

investigate.   They noticed Appellant, his wife and his mother

standing in the driveway of the house next door where Appellant

and his wife lived.   When Mrs. Nicholson did not answer their

knock on the door, the police were called.    When the police

arrived, Mrs. Nicholson was found lying injured on the floor of

her home, apparently the victim of a beating.    At the time she

was found, the victim was conscious and asked to speak to her

friends who were standing on the porch.    The victim was

transported to a local hospital.

     As the police investigated, they noticed blood on the broken

window and inside the house.   They also noticed that Appellant

had an apparently fresh cut on his hand.    Upon inquiry, Appellant

stated that he had cut his hand trying unsuccessfully to get into

the house to aid the victim.   Appellant was advised of his rights

at the scene and was requested to come to the police station for

questioning.   He was given the option of having his wife drive

him to the police station or accompanying the officers.

Appellant chose to accompany the officers in the patrol car.     As

they prepared to leave, Officer McCarter and Chief Deputy Shaw

overheard Appellant tell a family member to call Richard Talley,

a Dandridge attorney.

     After arriving at the police station, Appellant waited in

the lobby of the jail for his attorney.    He was later joined

there by his wife.    Appellant waited for over an hour and a half

in the lobby, but his attorney never appeared.    It does not

appear in the record that Mr. Talley was ever contacted.

Although Appellant testified that Officer McCarter came out

several times and angrily inquired whether Appellant would talk

to him, all of the other witnesses who testified stated that no

one approached Appellant nor did anyone ask him anything during

his wait in the lobby.   After nearly two hours, Appellant

                                 3
approached Officer Denton’s duty station and asked to speak with

Officer McCarter.    After signing a waiver of having his attorney

present, Appellant was advised of his rights, signed a waiver of

these rights and gave a statement to Officer McCarter.     In this

statement, Appellant admitted breaking into the house with one

David Johnson, Appellant’s brother-in-law, but insisted that

Johnson had inflicted the wounds to the victim and that Appellant

had only acted to prevent further injury to her.     Appellant was

then arrested for the burglary.

     Appellant remained in jail and, in subsequent weeks, gave

two additional statements to the police which were essentially

the same as the first statement.

     Subsequent to these statements, the police arrested David

Johnson.    Due to conflict in the statements of the two suspects,

the police requested each to take a polygraph test.     Appellant

agreed.    While the T.B.I. agent was preparing to give the

polygraph test to Appellant, he explained the operation of the

machine to Appellant and asked Appellant several preparatory

questions.    While answering these questions, Appellant suddenly

confessed that it was he who had beaten the victim.

     In the ensuing weeks after her injury, the victim’s

condition continued to deteriorate.     She was subsequently

transferred from the hospital to a nursing home.     After nearly

twelve weeks and the day before Appellant’s third statement, Mrs.

Nicholson died due to medical conditions brought on by her

injuries.



                     STATEMENTS OF THE APPELLANT

                      (FIRST AND SECOND ISSUES)

     Appellant gave a total of four statements to the police

prior to the trial of this case.      The first statement was given

on the date of the arrest of Appellant (issue #1) and the other

three were given on subsequent days after counsel had been

                                  4
appointed for Appellant (issue #2).    He insists that the trial

court was in error in refusing to suppress all of these

statements.   Since the standard of review is essentially the same

in both of these issues, we shall initially treat them together

then analyze them separately.

                        Standard of review

     A determination by the trial court that a confession has

been given voluntarily and without coercion is binding upon the

appellate court in the absence of a showing that the evidence

preponderates against the ruling.     Lowe v. State 584 S.W.2d 239

(Tenn. Crim. App. 1979).    On appeal, the appellant has the burden

of showing that the evidence preponderates against the findings

of the trial court.   Braziel v. State 529 S.W.2d 501(Tenn. Crim.

App. 1975).   A trial court's determination at a suppression

hearing is presumptively correct on appeal. This presumption of

correctness may only be overcome on appeal if the evidence in the

record preponderates against the trial court's findings. State v.

Kelly 603 S.W.2d 726, 729    (Tenn. 1980).   The appellate courts of

this state are bound to accept that determination by the trial

court that a confession was freely and voluntarily given unless

the evidence in the record preponderates against that finding.

State v. Adams 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992).

Findings of fact made by the trial judge after an evidentiary

hearing of a motion to suppress are afforded the weight of a jury

verdict, and an appellate court will not set aside the trial

court's judgment unless the evidence contained in the record

preponderates against the findings of the trial court.     State v.

Odom 928 S.W.2d 18 (Tenn. 1996).

     The determination of whether a confession has been obtained

improperly, by coercive or improper inducement, can only be made

by examining all the surrounding circumstances involving the

interrogation leading to the confession. Monts v State 400 S.W.2d



                                 5
722(Tenn. 1966).   The question in each case is whether the

conduct of the law enforcement officers was such to undermine the

accused's free will and critically impair his capacity for

self-determination so as to bring about an involuntary

confession. Columbe v. Connecticut 367 U.S. 568, 602, 81 S. Ct.

1860, 1879, 6 L Ed. 2d 1037, 1057-58 (1961); State v. Kelly 603

S.W.2d 726, 728(Tenn. 1980).

     With respect to the statement made on the day of his arrest,

Appellant, in addition to his allegations of involuntariness and

non-waiver of his Miranda rights, submits that his request for

counsel was not honored and that he was subsequently coerced into

giving an uncounselled statement.

     Appellant insists that, as to the remaining three

statements, his appointed counsel was ineffective in allowing the

police to speak with him in the absence of counsel.

     Findings of fact made by a trial court on issues surrounding

the giving of a custodial statement are binding upon appellate

review if there is any evidence to support them. State v. O'Guinn

709 S.W.2d 561, 566 (Tenn. 1986); State v. Chandler 547 S.W.2d

918, 923 (Tenn. 1977).   This includes the waiver of the right to

counsel. State v. Van Tran 864 S.W.2d 465, 473 (Tenn. 1993).

     Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.

2d 694(1966), renders inadmissible as evidence-in-chief

incriminating statements obtained as the result of custodial

interrogation prior to the accused being advised that he has the

right to remain silent and the right to counsel. The Court in

Miranda found custodial interrogation to be inherently coercive

and declared the right to counsel to be a necessary procedural

safeguard to protect the privilege against self-incrimination. An

accused's asserted "right to cut off questioning" must be

scrupulously honored," but may be waived. Michigan v. Mosley, 423

U.S. 96, 104, 96 S.Ct. 321, 326 (1975). When an accused invokes



                                6
his right to counsel, all "interrogation must cease until an

attorney is present." Miranda, 384 U.S. at 474.         Repeating the

Miranda warning and obtaining a waiver is not compliance. Edwards

v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981). However, the

right to counsel must be claimed. See State v. Claybrook, 736

S.W.2d 95 (Tenn. 1987). A confession made after a request for

counsel is admissible only if the accused initiates further

discussion with the police and knowingly and voluntarily waives

his Miranda rights. Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct.

2830 (1983); State v. Claybrook, supra.      Whether the appellant

did or did not make an equivocal or unequivocal request for an

attorney is a question of fact.       State v. Farmer    927 S.W.2d 582

(Tenn. Crim. App. 1996).

         Analysis - Statement on day of Crime (Issue #1)

     Appellant’s account of the facts surrounding the first

statement (August 8, 1991) differs dramatically from those

testified to by the police officers.       The trial court accredited

the version given by the police officers.       We agree.

     Appellant testified at the hearing of the motion to suppress

that he told Officer McCarter of his desire to speak to a lawyer;

that while Appellant sat in the lobby of the jail waiting for his

lawyer, Officer McCarter came out into the lobby three times

asking if Appellant would talk to him and seemed angry when

Appellant stated that he desired to wait for his lawyer; that the

female officers came out “once or twice” and asked if Appellant

would talk to Officer McCarter; that Appellant was never advised

of his rights prior to giving the statement; that he signed the

waivers at the same time that he signed the statement itself;

that Officers McCarter and Shaw threatened him and promised that

Appellant would not be prosecuted for breaking into his uncle’s

garage if he would “cooperate”, causing him to give the

statement.



                                  7
     On the other hand, the officers testified that Appellant

never told them that he desired to talk to a lawyer but that

Officers Shaw and McCarter overheard Appellant tell a family

member to call Richard Talley, a Dandridge attorney.       Because

they had heard that communication, the officers told Appellant to

sit in the lobby of the jail to await his lawyer.       No officer

spoke to Appellant during his one to two hour wait.       Finally,

Appellant himself contacted Officer Denton and requested to talk

to Officer McCarter, stating, “... I’m ready to talk without a

lawyer.   I’m tired of waiting.”       Even then Officer McCarter

refused to talk to Appellant until he had executed a written

waiver of counsel.   Appellant dictated a simple waiver to Officer

Denton and signed the same in her presence.       Once again,

Appellant was advised of his rights.       He then signed a waiver and

gave police the statement complained of.       At no time was

Appellant threatened nor was he made any promises.

     The import of Appellant’s original statement was that David

Johnson (Appellant’s brother-in-law) was the one who actually

beat the victim and that Appellant was present and pulled Johnson

away from the victim.

     The exhibits establish that Appellant signed his statement

that he would talk to Officer McCarter without Richard Talley

being present at 12:45 p.m. and that he signed a waiver of his

rights at the same time before Officers Denton and Feisko.          An

additional waiver was signed by Appellant at 1:12 p.m.

Appellant’s statement was signed by him at 1:57 p.m.

     Appellant’s recitation of the facts surrounding his first

statement paint a picture of unprofessionalism, ineptness,

malevolence and outright stupidity on the part of the police. If

Appellant was telling the truth, the police violated his

constitutional rights in every conceivable manner.

     The trial judge accredited the facts given by the police

officers.   Appellant often contradicted himself within a few

                                   8
sentences and told a story which was simply too farfetched to

believe.   The various officers’ testimony supported each other

and was supported by the exhibits, which Appellant himself

signed.    Thus, the facts testified to by the officers are the

facts by which the statement is tested.

     The State insists, perhaps correctly, that none of the

rights which Appellant complains were violated had attached

because the interrogation was not a custodial one.   We will

assume ab arguendo, however, that the interrogation was custodial

in order to reach Appellant’s complaints.

     Appellate complains that he was questioned in spite of the

fact that he had requested counsel.   When a suspect invokes the

right to counsel, further questioning by the police in the

absence of an attorney is constitutionally prohibited.    Edwards

v. Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 1885 (1981).      In

this case, under the facts found by the trial judge, although the

Appellant did not tell a police officer that he wanted to have

counsel present, the police overheard him request that a family

member call an attorney.   As a result, the police declined to

question the Appellant until counsel was present, a restraint

that was appropriate under the circumstances.    See United States

v. Porter, 764 F.2d 1, 6-7, cert. denied 481 U.S. 1048 (1987)

(Attempt to contact counsel by telephone in the presence of the

police constituted an exercise of right to counsel, even though

there was no express statement to the police that the defendant

wanted an attorney present.)

     However, subsequent facts establish that the Appellant

waived his right to have counsel present when he reinitiated

contact with Officer McCarter.   An accused having expressed his

desire to deal with police only through counsel is not subject to

further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates

further communication, exchanges, or conversations with the

                                 9
police.    Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885; see

State v. Goforth, 678 S.W.2d 477 (Tenn. Crim. App. 1984).

Appellant did just that.    He went to the window of the counter

where Officer Denton was working and “pecked” on the glass to

attract her attention.    Officer Denton then relayed Appellant’s

request to talk to Officer McCarter who refused to speak with him

until Appellant had signed a written waiver of the presence of

counsel.    Appellant dictated a simple statement of his desire to

talk to Officer McCarter without the presence of his lawyer to

Officer Denton and signed the same before her.    It is readily

apparent that Appellant initiated the contact with the police and

that the police scrupulously honored his indirect request for

counsel to be present until Appellant himself initiated further

contact.    As the trial judge found, Officer McCarter did

everything except run away from the appellant.

     Appellant was twice advised of his rights and twice waived

them in writing before being questioned by Officer McCarter.      The

questioning was proper and nothing was done to render the

statement involuntary.    On the contrary, in this matter and

throughout the entire investigation, these officers acted with a

high degree of integrity and professionalism.

     Appellant’s allegations that he had been drinking and taking

pills that night are not supported by the testimony at the motion

to suppress.    From our examination of the record, we find no

indication that Appellant was impaired in any manner.

     In addition to the above Fifth Amendment rights, Appellant

insists that he was deprived of his Sixth Amendment right to

counsel.    Appellant was not arrested until after he had given the

statement to the police.    Prior to that time, he sat unguarded in

the lobby of the jail for nearly two hours.    The Sixth Amendment

right to counsel attaches only when adversarial judicial

proceedings have been initiated by a formal charge. United States

v. Gouveia 467 U.S. 180, 104 S.Ct. 2292 (1984).    Appellant’s

                                 10
right to counsel under the Sixth Amendment had not yet attached.

     Issue number one is found to be without merit.

            Analysis - Subsequent Statements (Issue #2)

     In an innovative and novel use of the Sixth Amendment right

to counsel, counsel for Appellant insists that his later

statements should have been suppressed in that he was denied his

right to the effective assistance of counsel before the trial

because Appellant’s counsel at that time allowed the police to

interview Appellant without counsel attending.   From the first

two of these post-arrest interviews came statements of the

Appellant which were not much, if any, more incriminating than

Appellant’s first statement.   In the final interview, Appellant

confessed for the first time that it was he who inflicted the

fatal blows upon the deceased.   Present counsel for Appellant

insist that his counsel at the time should never have allowed

such questioning.

     First, we have examined the circumstances of the three

statements and agree with the trial judge that Appellant’s rights

were properly protected by the police and that the statements

were voluntary.   It is apparent from the record that the police

conducted these three subsequent interviews in the same manner in

which they conducted the initial interview.

     We are left with Appellant’s claim of ineffective assistance

of counsel prior to the trial.   Questions of this nature almost

always arise during the hearing of a post conviction relief

petition.   Although the claim may be novel at this stage of the

proceedings, it may form the basis of relief in a proper case.

      To prevail on an ineffective assistance of counsel claim,

the defendant must ultimately show that the adversarial process

failed to produce a reliable result. Cooper v. State, 849 S.W.2d

744, 747 (Tenn. 1993) [citing Strickland v. Washington, 466 U.S.

668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)]; Butler v. State,

789 S.W.2d 898, 899 (Tenn. 1990) [also citing Strickland v.

                                 11
Washington, supra].

     Proving failure of the adversarial process because of

ineffective assistance of counsel requires the defendant to

satisfy, by a preponderance of the evidence, both prongs of a

two-pronged test. See Butler, supra at 899. First, the defendant

must prove that counsel's performance was deficient in that it

failed to meet the threshold of competence demanded of attorneys

in criminal cases. Butler, supra at 899. Second, the defendant

must prove actual prejudice resulting from the deficient

performance. Cooper, supra 747 (citing Strickland, supra at 687).

Actual prejudice is established by demonstrating that, but for

his counsel's deficient performance, the results of his trial

would have been different and, thus, the adversarial process

failed to produce a reliable result.   Best v. State, 708 S.W.2d

421, 422 (Tenn. Crim. App. 1985).

     While the trial court found all statements were knowingly

and voluntarily made, it expressed concern with aspects of the

performance of defense counsel:



          In all candor, the Court must say that he
          wished that [trial counsel] had inquired
          further of the facts and circumstances
          surrounding the investigation by the
          officers. He obviously has the right to rely
          upon what his client tells him. All of us
          who have represented people have that right,
          assuming it is reasonable.

               This court does believe that the
          defendant's statements to [trial counsel]
          were consistent with that he had told on the
          August 6th statement. I have no reason to
          find otherwise. I must say, however, and it
          pains this Court to have to say this, that an
          attorney should not send their client off
          unattended time after time, especially to a
          critical proceeding like a polygraph exam.
          I've represent[ed] cooperating defendants;
          all of us have. But I don't think that it
          rises to the level expected of us under the
          sixth amendment to send our clients off
          unattended for polygraph examinations. ... I
          don't think that's proper.


          A number of problems, however, often arise when a claim

                                  12
of the denial of effective counsel is considered in a direct

appeal:



                 Raising issues pertaining to the
            ineffective assistance of counsel for the
            first time in the appellate court is a
            practice fraught with peril. The appellant
            runs the risk of having the issue denied due
            to a procedural default, or, in the
            alternative, having a panel of this Court
            consider the issue on the merits. The better
            practice is to not raise the issue on direct
            appeal .... The issue can be subsequently
            raised in a post-conviction proceeding if the
            appellant's direct appeal, as here, is not
            successful.


State v. Sluder, No. 1236, slip op. at 16 (Tenn. Crim. App., at

Knoxville, March 14, 1990).


            This rationale applies to the circumstances in this

case.    A claim of ineffective assistance of counsel at this time

is, in our view, premature.    The record is simply not adequately

developed for a final disposition.     Thus, we decline to consider

the second claim as it relates to the ineffective assistance of

counsel.



                      SUFFICIENCY OF THE EVIDENCE

        In his third issue, Appellant challenges the sufficiency of

the evidence in the record of his trial to sustain a conviction

of murder in that the proof does not establish beyond a

reasonable doubt that the death of the deceased was the

consequence of the beating inflicted upon her by Appellant.

                          Standard of Review

             On appeal, the State is entitled to the strongest

legitimate view of the evidence and all reasonable or legitimate

inferences which may be drawn therefrom.       State v. Cabbage 571

S.W.2d 832 (Tenn. 1978).    A verdict of guilt, approved by the

trial judge, accredits the testimony of the State's witnesses and



                                  13
resolves all conflicts in testimony in favor of the State.       State

v. Townsend 525 S.W.2d 842 (Tenn. 1975).    The presumption of

innocence is thereby removed and a presumption on guilt exists on

appeal. Anglin v. State 553 S.W.2d 616 (Tenn. Crim. App. 1977).

The defendant has the burden of overcoming this presumption.

State v. Brown 551 S.W.2d 329 (Tenn. 1977).

     When the sufficiency of the evidence is challenged on

appeal, the test is whether, after reviewing the evidence in a

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt. State v. Duncan 698 S.W.2d 63 (Tenn. 1985);

Rule 13(e), T.R.A.P.

                             Analysis

     The victim in this case was a 95 year old lady who lived

alone and was capable of caring for herself.    The proof in the

case did not establish that she had any serious medical condition

prior to the beating of August 6, 1991.    On said date, the facts

found by the jury and accredited by the trial judge establish

that Appellant entered the house of the victim, knocked her to

the floor, choked her and kicked her in the head.    She was found

lying on the floor by friends.   The victim was taken to a

hospital, thence to a nursing home.     Her medical course was one

of steady decline until her death on October 27, 1991.

     The expert forensic pathologist called by the state

testified that he performed an autopsy on the body of the

deceased.   He determined that the cause of her death was

extensive subdural hemorrhage which was consistent with multiple

blunt trauma such as being hit in the head by fists or kicked in

the head.   The final cause of Decedent’s death, he opined, was

the accumulation of fluid in her lungs while she was in a

weakened state due to the injuries mentioned above.    There was no

evidence that the deceased had suffered a stroke.



                                 14
     Appellant’s own medical witness was the physician who cared

for the deceased from her injury until her death.    He testified

that, to his knowledge, the deceased had received no trauma to

her head except that inflicted by the appellant.

     The fact that nearly twelve weeks elapsed between injury and

death does not prevent Appellant’s actions from being the cause

of Decedent’s death.   The proof establishes a direct connection

between Appellant’s actions and the death of the deceased.      The

fact that the deceased may have actually expired due to secondary

causes brought on by the injuries inflicted by Appellant does not

allow him to escape responsibility for this homicide. Evans v.

State 557 S.W.2d 927(Tenn. Crim. App. 1977).    The issue is

without merit as to the felony murder.

     However, we note that a conviction for especially aggravated

burglary was inappropriate in this case.    The especially

aggravated burglary statute provides as follows: “Acts which

constitute an offense under this section may be prosecuted under

this section or any other applicable section, but not both.”

Tenn. Code Ann.   § 39-14-404(d).    Courts have interpreted this

statute to mean that if the serious bodily injury element used to

establish the especially aggravated burglary offense is the same

injury that is an element of an accompanying offense, the

defendant may not be convicted of both the especially aggravated

burglary and the accompanying offense.     See State v. Oller, 851

S.W.2d 841, 843 (Tenn. Crim. App. 1992); State v. Holland, 860

S.W. 2d 53, 60 (Tenn. Crim. App. 1993).

     In a recent case similar to the present one, when the

defendant was convicted of both especially aggravated burglary

and first degree murder, this court stated that the especially

aggravated burglary conviction must be reduced to an aggravated

burglary conviction because the “act of killing the victim

constituted the ‘serious bodily injury’ that was used to enhance

the burglary offense to especially aggravated burglary.”       State

                                15
v. Jehiel Fields, No. 03C01-9607-CC-00261, Bradley County, slip

op. at 12 (Tenn. Crim. App. Mar. 18, 1997).    Thus, in order to do

substantial justice in this case, we believe that the conviction

for especially aggravated burglary constitutes plain error and we

modify the conviction to aggravated burglary.    See Holland, 860

S.W.2d at 60.   Furthermore, for the same reasons provided by the

trial court in sentencing the defendant to ten years for the

especially aggravated burglary, a Class B felony, we conclude

that a sentence of five years shall be imposed for the offense of

aggravated burglary, a Class C felony.



                      CONSECUTIVE SENTENCING

     Lastly, Appellant contends that the trial court erred in

ordering his sentence for Especially Aggravated Burglary to run

consecutively to his life sentence for Felony Murder. We will

consider his claim as it relates to the five-year sentence we

have imposed for aggravated burglary.

                        Standard of Review

     The standard of review in sentencing in criminal cases is a

de novo review with a presumption that the sentence set by the

trial court is correct if the record shows that the trial court

followed the principles of the Sentencing Act of 1989, considered

the relevant factors and made proper findings of fact in the

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

1991).   If this is done, then we must affirm even if we would

have preferred a different result. Id.   The burden of showing

that the sentence is improper is upon the Appellant. Id.

     A portion of the Sentencing Reform Act of 1989, codified at

T.C.A. § 40-35-210, established a number of specific procedures

to be followed in sentencing. This section mandates the court's

consideration of the following:

           (1) The evidence, if any, received at the trial and the



                                  16
               sentencing hearing;

          (2) the presentence report;

          (3) the principles of sentencing and arguments as to

               sentencing alternatives;

          (4) the nature and characteristics of the criminal

               conduct involved;

          (5) evidence and information offered by the parties on

               the enhancement and mitigating factors in §§

               40-35-113 and 40-35-114; and

          (6) any statement the defendant wishes to make in his

               own behalf about sentencing.

     The record before us indicates that the trial judge

considered all of the above factors which applied to this case.

We, therefore, must presume that the ruling of the trial court

was correct.

     Prior to the enactment of the Criminal Sentencing Reform Act

of 1989 the limited classifications for the imposition of

consecutive sentences were set out in Gray v. State, 538 S.W.2d

391, 393 (Tenn. 1976).   In that case, our supreme court ruled

that aggravating circumstances must be present before placement

in any one of the classifications.      Later, in State v. Taylor,

739 S.W.2d 227 (Tenn. 1987), the court established an additional

category for those defendants convicted of two or more statutory

offenses involving sexual abuse of minors.     There were, however,

additional words of caution:

          [C]onsecutive sentences should not be
          routinely imposed ... and ... the aggregate
          maximum of consecutive terms must be
          reasonably related to the severity of the
          offenses involved.

739 S.W.2d at 230.   The Sentencing Commission Comments adopted

the cautionary language.   Tenn. Code Ann. § 40-35-115.    The 1989

act is, in essence, the codification of the holdings in Gray and

Taylor; consecutive sentenced may be imposed in the discretion of

the trial court only upon a determination that one or more of the

                                   17
more of the following criteria1 exist:

                                (1) The defendant is a professional criminal
                                who has knowingly devoted himself to criminal
                                acts as a major source of livelihood;

                                (2) The defendant is an offender whose
                                record of criminal activity is extensive;

                                (3) The 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) The 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) The 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) The defendant is sentenced for an
                                offense committed while on probation;

                                (7) The defendant is sentenced for criminal
                                contempt.

Tenn. Code Ann. § 40-35-115(b).



                                In Gray, our supreme court ruled that before

consecutive sentencing could be imposed upon the dangerous

offender, as now defined by subsection (b)(4) in the statute,

other conditions must be present:                                                                    (a) that the crimes involved

aggravating circumstances; (b) that consecutive sentences are a

necessary means to protect the public from the defendant; and (c)

that the term reasonably relates to the severity of the offenses.



1
    T h    e        f i r s t f o   u r c r i t      e r i     a        a r e f o u n d i n G r a y .         A f i f t h c a t e g o r y i n G r a y ,
     b a       s e d o n a s          p e c i f i   c    n u        m b e r o f p r i o r f e l o n y       c o n v i c t i o n s , m a y e n h a n c e t h e
     s e       n t e n c e r a n      g e b u t        i s          n o l o n g e r a l i s t e d c r      i t e r i o n .      S e e T e n n . C o d e
     A n        n . § 4 0 - 3 5 -    1 1 5 , S      e n t e        n c i n g C o m m i s s i o n C o m m   e n t s .

                                                                                              18
          More recently, in State v. Wilkerson, 905 S.W.2d 933,

938 (Tenn. 1995), our high court reaffirmed those principles,

holding that consecutive sentences cannot be required of the

dangerous offender "unless the terms reasonably relate[] to the

severity of the offenses committed and are necessary in order to

protect the public (society) from further criminal acts by those

persons who resort to aggravated criminal conduct."   The

Wilkerson decision, which modified somewhat the strict factual

guidelines for consecutive sentencing adopted in State v. Woods,

814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing

as a "human process that neither can nor should be reduced to a

set of fixed and mechanical rules."    State v. Wilkerson, 905

S.W.2d at 938.



                            Analysis

     The trial court found that Appellant was a dangerous

offender in that his behavior indicated "little or no regard for

human life," and that he did not hesitate "about committing a

crime in which the risk to human life is high.   The circumstances

surrounding the commission of the offense were found by the trial

court to have been aggravated. The trial court was impressed, as

are we, that Appellant broke into the house of a ninety-five year

old lady knowing her to be home, stole her medicine from her and

beat her and kicked her far beyond the extent necessary to

accomplish the theft of the drug.   Appellant knew, or should have

known, that a person of this advanced age would be extremely

susceptible to injury and that even an injury which would not be

serious to a younger person could prove fatal to a person of

advanced age.

     The trial court expressly found that confinement for an

extended period of time is necessary to protect society from

Appellant's unwillingness to lead a productive life and his

resort to criminal activity in furtherance of his anti-societal

                               19
lifestyle.   Specifically, the trial court found that Appellant

have two juvenile burglary convictions in 1982 (just before he

turned eleven years old), a being under the influence of alcohol

juvenile conviction in 1989 and two months later a conviction for

driving under the influence of an intoxicant.   This offence was

committed in August of 1991 when Appellant was nineteen years

old.   The trial court recited it finding that, “...this

defendant, even at this young age, has already indicated his

unwillingness to lead a productive live, and has no hesitation

about resorting to criminal activity”.   In fact, the court found

Appellant to be “totally out of control”.

       Finally the trial court found that the aggregate length of

the sentences reasonably related to the offenses of which the

appellant was convicted.   The actions of the appellant were

brutal and vicious. We do not find that the appellant possesses

the characteristics necessary to rehabilitate himself while

serving his life sentence.   In fact, all of the facts which

appear in the record indicate that Appellant’s prospects for

rehabilitation are slight. Due to this fact, the seriousness of

the offenses involved, and the aggravated circumstances

surrounding those offenses, we conclude that the aggregate

sentence is consistent with the principles of sentencing.

       The first degree murder judgment is affirmed.   The

especially aggravated burglary conviction is modified to one for

aggravated burglary, a Class C felony, and a sentence of five

years in the Department of Correction is imposed, to be served

consecutively to the life sentence imposed for the first degree

murder.




                           _______________________________________
                           Robert E. Burch, Special Judge




                                 20
CONCUR:


_________________________
 Gary R. Wade, Judge


_________________________
 Joseph M. Tipton, Judge




                            21
