        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 5, 2012

           STATE OF TENNESSEE v. NATHANIEL SHELBOURNE

                    Appeal from the Circuit Court for Lake County
                     No. 09-CR-9299     R. Lee Moore, Jr., Judge




              No. W2011-02372-CCA-R3-CD - Filed December 26, 2012


T HOMAS T. W OODALL, J., concurring.

       I concur with the majority opinion except as to the issues of consecutive sentencing
and lesser included offenses. The trial court ordered consecutive sentencing based upon the
finding that Defendant was a dangerous offender pursuant to Tennessee Code Annotated
section 40-35-115(b)(4)(2010 Repl.). The State candidly admits in its brief that the trial
court, at most, only “implicitly” found the additional “Wilkerson” requirements for a
dangerous offender: that the resulting consecutive sentence is reasonably related to the
offense and necessary to protect the public. See State v. Wilkerson, 905 S.W.2d 933, 939
(Tenn. 1995) (held that the imposition of consecutive sentences based upon “dangerous
offender” category requires additional findings by the trial court that an extended sentence
is necessary to protect the public against further criminal conduct by the defendant, and
consecutive sentences are reasonably related to the severity of the offenses.).

       The importance of making this mandatory finding of fact when a trial court orders
consecutive sentencing based upon a defendant being a “dangerous offender” causes me to
be hesitant in this case to find that the trial court “implicitly” made the findings which have
long been mandated by our supreme court. Normally, I would hold that the order of
consecutive sentencing must be reversed. However, as mentioned in the State’s brief,
Defendant also, at least marginally, qualified for consecutive sentencing under the “extensive
criminal history” category pursuant to Tennessee Code Annotated section 40-35-
115(b)(2)(2010 Repl.). Defendant committed the offense which is the subject of this appeal
when he was 30 years old and incarcerated in the Tennessee Department of Correction for
prior felony convictions. Defendant had prior convictions for the following offenses,
committed at the noted age: assault, age 19; Class E felony theft, age 20; two convictions for
separate acts of especially aggravated robbery at age 22; and assault at age 22, with the
record indicating this last offense also occurred while Defendant was incarcerated.
Defendant reported to the presentence report investigating officer that he began using
marijuana at age 11 and that he was “happy [until] the age of 16. Moved out of Dad[’]s
house started using drugs.” I would therefore affirm the consecutive sentencing based upon
Defendant’s extensive criminal history. Furthermore, I note that the General Assembly of
this state has authorized the trial courts to order consecutive sentencing “for any offense
committed while on probation.” Tenn. Code Ann. § 40-35-115(b)(6). It is puzzling as to
why the legislature has declined to provide the same authority to trial courts for an offense
committed while incarcerated in a state penitentiary, county jail, workhouse, or other such
place of confinement.

        Finally, I take this occasion and the circumstances of this case to clarify what I believe
is the only logical conclusion on the issue of a trial court’s failure to charge an appropriate
lesser included offense. Based upon the clear and specific holding of our supreme court in
State v. Davis, 266 S.W.3d 896, 910 (Tenn. 2008), the reasons for the holding stated therein,
Id. at 903-907, and upon the well settled law that juries are presumed to follow the
instructions of the trial court, see State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001), it can
never be reversible error when a trial court fails to charge a lesser included offense.

       In Davis the supreme court’s holding is,

         We hold that, where a criminal defendant is entitled to jury instructions on
         lesser-included offenses, the trial court shall instruct the jury to consider the
         offenses in order from greatest to least within each count of the
         indictment and that it [the jury] shall not proceed to consider any lesser-
         included offense until it has made a unanimous determination that the
         Defendant is not guilty of the immediately-preceding greater offense.

         Id. at 910 (emphasis added).

       In this case, even if misdemeanor reckless endangerment had been charged as a lesser
included offense, the jury was prohibited from considering it because the jury convicted
Defendant of the charged offense of Class C felony aggravated assault, never acquitted
Defendant of that charged offense, and thus could never consider the lesser included offense
of misdemeanor reckless endangerment even if it had been charged.


                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




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