        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs October 9, 2012

              STATE OF TENNESSEE v. RAY NEIL THOMPSON

                   Appeal from the Criminal Court for Davidson County
                          No. 2008-D-3845 Steve Dozier, Judge



                  No. M2011-01613-CCA-R3-CD - Filed January 3, 2013


Appellant, Ray Neil Thompson, was convicted by a Davidson County jury of one count of
aggravated robbery. He was sentenced to twenty-seven years in incarceration as a Range III,
persistent offender. After the denial of a motion for new trial, Appellant initiated an appeal.
On appeal, he argues: (1) that the trial judge improperly refused to recuse himself; (2) that
the trial court improperly denied a motion to suppress Appellant’s statement; and (3) that the
trial court improperly sentenced Appellant. After a review of the evidence and authorities,
we conclude that the trial court did not abuse its discretion in denying the request for recusal
or the motion to suppress and that the trial court properly sentenced Appellant. As a result,
the judgment of the trial court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS,
J., joined, and N ORMA M CG EE O GLE, J., concurred in result.

Jeffrey A. DeVasher, Assistant Public Defender, (on appeal), C. Dawn Deaner, Public
Defender, and Jonathan F. Wing, Assistant Public Defender, (at trial), for appellant, Ray Neil
Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

        Appellant was indicted by the Davidson County Grand Jury in October of 2008 for
three counts of aggravated robbery and one count of evading arrest for events that took place
at the following businesses located in Nashville: Baskin Robbins, Smoothie King, and
Twenty-One and Up Video. Appellant was arrested after witnesses to the robberies provided
a partial license plate number to authorities and it was discovered that the vehicle with the
license plate was registered to Appellant. Appellant was eventually arrested. Once indicted,
Appellant filed a motion to sever the offenses. The trial court granted the motion.

       Prior to trial, Appellant sought to suppress his statement on the ground that it was not
voluntary and was obtained in violation of his constitutional rights.

                           Testimony at the Suppression Hearing

       Detective Robert Peterson of the Metropolitan Nashville Police Department was the
lead investigator for the robberies that took place between September 12, 2008, and
September 16, 2008, at Smoothie King, Baskin Robbins, and Twenty-One and Up Video,
three businesses that were located in close proximity to one another. The perpetrator at all
three robberies displayed an item wrapped in a red handkerchief that victims believed to be
a gun. The witnesses were able to provide police with a description of the robber. All of the
descriptions were similar. One of the victims was also able to provide a partial license plate
number. The partial license plate number combined with the description of the perpetrator
led police to believe that Appellant was responsible for the crimes. As a result of the
investigation a “BOLO” (“Be On The Lookout”) was issued for Appellant.

        Appellant’s vehicle was located by Officer Sung Jun Park at 920 Chickasaw.
Appellant was spotted standing in front of his vehicle. Once he saw the police car, Appellant
started to back away. Appellant was told to stay put, but he ran from the police. A canine
unit apprehended Appellant two houses away, hiding under some bushes. Officer Park
secured the vehicle and took a female passenger into custody. When Officer Park secured
the vehicle, he discovered an orange and yellow water gun wrapped in a red bandana in the
vehicle.

      Appellant was bitten by the canine unit during his arrest and taken to Metro General
Hospital for treatment. Detective Peterson went to the hospital to interview Appellant.
Appellant was read his Miranda rights after the detective determined that Appellant was
awake and coherent. Appellant signed the waiver and agreed to speak to the officer.

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According to Detective Peterson, Appellant did not appear intoxicated or impaired at the time
of the interview.

        Prior to the interview, Appellant stated that he did not want to sign the waiver or
answer any questions, but he changed his mind. During the interview, Appellant informed
the officer that he was addicted to crack cocaine. Appellant was given pain medication about
forty minutes into the interview.

        At the hearing, Appellant testified that he had used drugs all day on the day of his
arrest. In fact, Appellant claimed that he was on a three-day “drug bender” during which he
had been using cocaine, beer, and marijuana. On the day of the arrest he had used a quarter
ounce of crack, a case of beer, and a quarter ounce of marijuana. Appellant claimed that he
had not slept in three days.

       Appellant insisted that the medication he received at the hospital made him feel
“distracted” and that he was not able to think clearly because of the pain that he was
experiencing at the time of the police interview. Appellant did not remember signing the
Miranda warning. Appellant stated that he was not treated at the hospital for any issues
related to his intoxication. Additionally, Appellant admitted that he had twelve prior
convictions for forgery, a conviction for aggravated robbery, two theft convictions, a
burglary conviction, and two convictions for receiving stolen property.

       The trial court denied the motion to suppress, finding that there was “nothing
constitutionally infirm about the discussion [Appellant] had with Detective Peterson” where
Appellant agreed to speak with him and Appellant signed the waiver of rights form.

       On the day that trial was set to begin, Appellant had a dispute with his attorney. Trial
counsel for Appellant informed the trial court that Appellant was being uncooperative and
had even spit in the attorney’s eye. The trial court brought Appellant into the courtroom to
find out what was going on between Appellant and trial counsel. The trial court told
Appellant to “shut [his] mouth.” Appellant told the trial court, “You’re not my father.” At
that point, the trial court held Appellant in contempt of court and sentenced him to ten days
in incarceration to run consecutively to any other sentence he was already serving. The trial
court asked Appellant why he had to “act an ass” in the courtroom and congratulated
Appellant by asking everyone to “give a round of applause” to Appellant for getting what he
wanted, a continuance. Appellant left the courtroom. The trial court asked if a transfer to
another court would “help the situation.” Trial counsel declined.

        After this episode, Appellant filed a motion to recuse the trial court, insisting that the
trial court was not impartial and had expressed clear disdain for Appellant. Additionally,

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Appellant argued that, had he been in the courtroom, he would have accepted the trial court’s
offer to transfer to a different courtroom.

       Upon review, the trial court denied the motion to recuse, finding that it could preside
impartially over the matter.


                                       Trial Testimony

        At trial, the testimony about the particulars of the robbery came from seventeen-year-
old Clelie Cottle, an employee of Smoothie King in Belle Meade. Ms. Cottle was preparing
to close that store on the night of September 12, 2008, at around 9:00 p.m. Ms. Cottle was
alone in the store after her two co-workers left to take out the trash. Appellant entered the
store. Ms. Cottle asked Appellant if he needed any help. Appellant replied that he was trying
to decide what type of smoothie he wanted to order. Appellant walked around to the cash
register at that point and pulled an object out of his pocket that was wrapped in a bandana.
Ms. Cottle stated that it appeared to be a gun. Appellant pointed the object at Ms. Cottle and
instructed her to take the money out of the register. Appellant took the money out of the tip
jar as Ms. Cottle emptied the register. Appellant asked for a bag. Ms. Cottle told Appellant
she did not have a bag. Appellant told Ms. Cottle to get down on the ground. As Ms. Cottle
got down on the ground, she was able to pull the silent alarm to alert authorities.

        Four days after the incident, Ms. Cottle identified Appellant in a photographic lineup.
She was about 80 percent sure that the person in the photograph was the perpetrator. Ms.
Cottle later identified Appellant in person and at trial. She was confident that she positively
identified Appellant because during the robbery she was able to observe Appellant from a
distance of approximately three feet and had an unobstructed view of his face.

        Similar to the testimony at the hearing on the motion to suppress, Officer Park
testified at trial that he located Appellant’s vehicle after hearing a BOLO from dispatch. The
officer saw Appellant on foot and watched as Appellant ran away from the police vehicle.
Officer Steven Coleman and his police canine, Zac, were able to track Appellant to an
overgrown area several houses away from the vehicle. The police canine was able to
apprehend Appellant. Appellant was taken to the hospital for treatment for a dog bite he
received during his apprehension. While at the hospital, Appellant admitted that he was the
person involved in the robbery.

      During a search of Appellant’s vehicle, police found an orange and yellow water gun
wrapped in a red bandana.



                                              -4-
        At the conclusion of the proof, the jury found Appellant guilty of aggravated robbery.
The trial court held a separate sentencing hearing. At the hearing, the trial court determined
that Appellant must serve 100 percent of his sentence pursuant to Tennessee Code Annotated
section 40-35-501(k)(2) and sentenced Appellant to twenty-seven years in incarceration. The
trial court determined that Appellant had a previous history of criminal convictions, a history
of failed attempts at conditions of a sentence that involved release in the community, and that
Appellant committed the offense while on parole.

       On appeal, Appellant challenges: (1) the denial of the motion to suppress; (2) the
denial of the motion to recuse; and (3) his sentence.

                                          Analysis
                                 Denial of Motion to Recuse

        Appellant argues that the trial judge should have recused himself from Appellant’s
case after an incident that occurred on September 20, 2010. Specifically, Appellant insists
that the trial judge made comments that established the trial judge’s impartiality and a recusal
was necessary to avoid the appearance of impropriety. Further, Appellant argues that the trial
judge engaged in an improper analysis of the law prior to the denial of the recusal. The State
disagrees.

       When deciding whether to grant a motion for recusal, a trial judge exercises his or her
discretion. Caruthers v. State, 814 S.W.2d 64, 67 (Tenn. Crim. App. 1991). This Court may
reverse the trial judge’s decision only when the judge has clearly abused that discretionary
authority. State v. Cash, 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993). The judge should
recuse himself or herself whenever the judge’s “impartiality [could] reasonably be
questioned.” Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994) (quoting Code
of Judicial Conduct, Canon 3(c) (now part of Tenn. Sup. Ct. R. 10, Canon 3(E)(1)).
Furthermore, recusal is appropriate “when a person of ordinary prudence in the judge’s
position . . . would find a reasonable basis for questioning the judge’s impartiality.” Id.
(footnote omitted). The trial judge must determine whether he or she has a subjective bias
against the defendant and whether the trial judge’s impartiality could reasonably be
questioned under an objective standard. State v. Connors, 995 S.W.2d 146, 148 (Tenn. Crim.
App. 1998).

       “A judge should grant a motion to recuse when the judge has any doubt as to his or
her ability to preside impartially in the case or when a person of ordinary prudence in the
judge’s position, knowing all of the facts known to the judge, would find a reasonable basis
for questioning the judge’s impartiality.” Smith v. State, 357 S.W.3d 322, 341 (Tenn. 2011)
(internal quotation omitted). A judge’s duty to recuse springs from a constitutional source;

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Article VI, section 11 of the Tennessee Constitution provides that “[n]o Judge of the
Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he
may be interested . . . .” Our state supreme court has explained that “[t]he purpose of Article
6, § 11 of our Constitution is to insure every litigant the cold neutrality of an impartial court.”
Leighton v. Henderson, 414 S.W.2d 419, 421 (Tenn. 1967). Furthermore, Tennessee
Supreme Court Rule 10, Canon 3(E)(1), states: “A judge shall disqualify himself or herself
in a proceeding in which the judge’s impartiality might reasonably be questioned, including
but not limited to instances where: (a) the judge has a personal bias or prejudice concerning
a party or a party’s lawyer . . . .”

        However, it is well established that not every appearance of bias, partiality, or
prejudice merits recusal. “To disqualify, prejudice must be of a personal character, directed
at the litigant, must stem from an extrajudicial source and result in an opinion on the merits
on some basis other than what the judge learned from . . . participation in the case.” Alley
v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994) (internal quotation omitted).
Moreover, “[a]dverse rulings by a trial court are not usually sufficient grounds to establish
bias” and “[r]ulings of a trial judge, even if erroneous, numerous and continuous, do not,
without more, justify disqualification.” Id.

        In the order denying the motion for recusal, the trial court commented that there was
no “doubt as [to] its ability to preside impartially.” In other words, that the trial court had no
subjective bias. Next, the trial court determined that the facts known by the court would not
“raise a reasonable basis for questioning the court’s impartiality.” After conducting this
analysis, the trial court concluded that recusal was not warranted. We agree. Our review of
the record reveals that Appellant displayed an utter lack of respect for both his appointed
counsel and the trial court and, after being instructed to “shut” his mouth, Appellant
continued his disruptive behavior by telling the judge that he was not his father. At that
point, the trial judge held Appellant in contempt and sentenced him to ten days in
incarceration. Rather than accepting the trial court’s admonition and changing his behavior,
Appellant continued his contumacious behavior. At that point, the trial court called
Appellant an “ass.” While we caution trial courts that name calling is not advisiable when
dealing with a disruptive and disrespectful defendant, we acknowledge that the judge’s
comments in this case do not demonstrate any sort of bias or lack of impartiality in the ability
to fairly adjudicate the case, but rather evince the trial court’s frustration with Appellant’s
behavior in the court’s attempt to maintain control in the courtroom. We conclude that the
trial judge did not abuse his discretion in denying Appellant’s motion for recusal.




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                                     Motion to Suppress

       Next, Appellant argues that the trial court improperly denied his motion to suppress.
Specifically, he insists that he was impaired when the statement was made so it was not the
“product of a free mind and rational intellect.” The State responds by arguing that Appellant
knowingly, voluntarily, and intelligently waived his right against self-incrimination before
making a statement to police.


        This Court will uphold a trial court’s findings of fact in a suppression hearing unless
the evidence preponderates otherwise.” State v. Hayes, 188 S.W.3d 505, 510 (Tenn. 2006)
(citing State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)). On appeal, “[t]he prevailing party
in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable
and legitimate inferences that may be drawn from that evidence.’” State v. Carter, 16
S.W.3d 762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)).
“Questions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” Odom, 928 S.W.2d at 23. Our review of a trial court’s application of law to the facts
is de novo, with no presumption of correctness. State v. Walton, 41 S .W.3d 75, 81 (Tenn.
2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958
S.W.2d 626, 629 (Tenn. 1997)). When the trial court’s findings of fact are based entirely on
evidence that does not involve issues of witness credibility, however, appellate courts are as
capable as trial courts of reviewing the evidence and drawing conclusions, and the trial
court’s findings of fact are subject to de novo review. State v. Binette, 33 S.W.3d 215, 217
(Tenn. 2000). Further, we note that “in evaluating the correctness of a trial court’s ruling on
a pretrial motion to suppress, appellate courts may consider the proof adduced both at the
suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

        The Fifth Amendment to the United States Constitution provides in pertinent part that
“no person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. Similarly, Article I, Section 9 of the Tennessee Constitution states that “in
all criminal prosecutions, the accused shall not be compelled to give evidence against
himself.” Tenn. Const. art. I, § 9. However, an accused may waive this right against
self-incrimination. Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the United States
Supreme Court held that a suspect “must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used against him in a court of law, that he
has the right to the presence of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so desires.” Id. at 479. The Supreme
Court held that a suspect may knowingly and intelligently waive the right against
self-incrimination only after being apprised of these rights. Id. Accordingly, for a waiver

                                              -7-
of the right against self-incrimination to be constitutionally valid, the accused must make an
intelligent, knowing, and voluntary waiver of the rights afforded by Miranda. Id. at 444. In
considering the totality of the circumstances a court should consider:

       [T]he age of the accused; his lack of education or his intelligence level; the
       extent of his previous experience with the police; the repeated and prolonged
       nature of the questioning; the length of the detention of the accused before he
       gave the statement in question; the lack of any advice to the accused of his
       constitutional rights; whether there was an unnecessary delay in bringing him
       before a magistrate before he gave the confession; whether the accused was
       injured intoxicated or drugged, or in ill health when he gave the statement;
       whether the accused was deprived of food, sleep or medical attention; whether
       the accused was physically abused; and whether the suspect was threatened
       with abuse.

State v. Huddleston, 924 S.W.2d 666, 671 (Tenn. 1996) (citing State v. Readus, 764 S.W.2d
770, 774 (Tenn. Crim. App. 1988)). However, no single factor is necessarily determinative.
State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (citing Fairchild v. Lockhart, 744
F.Supp. 1429, 1453 (E.D. Ark. 1989)). Further, “[a] trial court’s determination that a
confession was given knowingly and voluntarily is binding on the appellate courts unless the
defendant can show that the evidence preponderates against the trial court’s ruling.” State
v. Keen, 926 S.W.2d 727, 741 (Tenn. 1994).

        A court may conclude that a defendant voluntarily waived his rights if, under the
totality of the circumstances, the court determines that the waiver was uncoerced and that the
defendant understood the consequences of waiver. State v. Stephenson, 878 S.W.2d 530, 545
(Tenn. 1994). In order to be considered voluntary, the statement “must not be extracted by
any sort of threats or violence, nor obtained by any direct or implied promises, however
slight, nor by the exertion of any improper influence.” Bram v. United States, 168 U.S. 532,
542-43 (1897); see also State v. Kelly, 603 S.W.2d 726, 727 (Tenn. 1980). However, “[a]
defendant’s subjective perception alone is not sufficient to justify a conclusion of
involuntariness in the constitutional sense.” State v. Smith, 933 S.W.2d 450, 455 (Tenn.
1996). Instead, “‘coercive police activity is a necessary predicate to finding that a confession
is not voluntary . . . .’” Id. (quoting State v. Brimmer, 876 S.W.2d 75, 79 (Tenn. 1994)).

       In the case herein, we determine that Appellant has failed to establish that the
evidence preponderates against the trial court’s determination that the statement was freely
and voluntarily given. Officer Peterson testified that Appellant executed a waiver of his
rights prior to making a statement to authorities. Officer Peterson testified that Appellant
was attentive, appeared to understand his rights, and did not appear intoxicated. The trial

                                              -8-
court listened to the audio recording of Appellant’s statement and refused to accredit
Appellant’s testimony that he was too intoxicated to understand his actions. After hearing
the evidence, the trial court determined that Officer Peterson was a credible witness; that he
advised Appellant of his rights; that there was no evidence that Appellant was coerced,
threatened, intimidated, or impaired; or that the police in any other way violated Appellant’s
constitutional rights against self-incrimination. Moreover, Appellant admitted that the
hospital staff did not administer pain medication until approximately forty-two minutes into
the interview that lasted nearly one hour and fifteen minutes.

       In the case herein, the evidence does not preponderate against the judgment of the trial
court. Under these circumstances the decision to deny the motion to suppress must be
upheld.
                                          Sentencing

        Lastly, Appellant makes several challenges to his sentence. First, Appellant insists
that the trial court improperly ordered him to serve 100 percent of his sentence because the
evidence does not demonstrate that he used an actual firearm during the commission of the
offense. Additionally, Appellant insists that his sentence is excessive because his sentence
is not the least severe measure necessary to achieve the purposes of the sentence imposed.
The State contends that the sentence is appropriate and that Appellant must serve 100 percent
of his sentence because he was convicted of aggravated robbery.

       Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” See State v. Susan Renee
Bise, No. E2011-00005-SC-R11-CD, ___S.W.3d ___, 2012 WL 4380564, at *17 (Tenn.
Sept. 26, 2012).


        In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (1) the
evidence, if any, received at the trial and the 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; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).


                                              -9-
       The trial court is still required to place on the record its reasons for imposing the
specific sentence, including the identification of the mitigating and enhancement factors
found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See Susan Renee Bise, 2012 WL 4380564, at *16 n.41; State v. Samuels, 44
S.W.3d 489, 492 (Tenn. 2001). Thus, under Susan Renee Bise, a “sentence should be upheld
so long as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.” Susan Renee
Bise, 2012 WL 4380564, at *20.


        We first address Appellant’s argument that he cannot be ordered to serve 100 percent
of his sentence under Tennessee Code Annotated section 40-35-501(k)(2) because he did not
use a firearm in the commission of the aggravated robbery, he used a water gun. We
disagree. Tennessee Code Annotated section 40-35-501(k)(2) provides the following:


       There shall be no release eligibility for a person committing aggravated
       robbery, as defined in § 39-13-402, on or after January 1, 2008, if the person
       has at least one (1) prior conviction for aggravated robbery, as defined in § 39-
       13-402, or especially aggravated robbery, as defined in § 39-13-403. The
       person shall serve one hundred percent (100 percent) of the sentence imposed
       by the court less sentence credits earned and retained; however, no sentence
       reduction credits authorized by § 41-21-236 or any other provision of law shall
       operate to reduce the sentence imposed by the court by more than fifteen
       percent (15%).


        The plain language of the statute makes no mention of the requirement that the offense
be committed with a firearm. It merely involves an increase in release eligibility when a
defendant has a prior aggravated robbery conviction. In the present case, Appellant’s prior
conviction for aggravated robbery rendered him a repeat aggravated robbery offender as a
matter of law, and the trial court could not deviate from the release eligibility requirement
set forth by the legislature in Tennessee Code Annotated section 40-35-501.


       As to the length of Appellant’s sentence, after a review of the transcript from the
sentencing hearing, it is clear that the trial court considered the nature and characteristics of
the criminal conduct involved, Appellant’s history and background, the mitigating and
enhancement factors, and the principles of sentencing. The trial court applied several
mitigating factors, recognizing that Appellant had an abusive childhood and suffered from


                                              -10-
drug addiction but gave those factors little weight. The trial court also applied several
enhancement factors: that Appellant had “prior criminal convictions in addition to those
necessary to establish the appropriate range”; that Appellant had “failed to comply with the
conditions of a sentence involving release into the community”; and that Appellant “was
released on parole” at the time of the offense. T.C.A. § 40-35-114(1), (8), (13). After
application of the mitigating and enhancement factors, the trial court sentenced Appellant to
twenty-seven years. The trial court placed the reasons for imposing the specific sentence on
the record. Further, Appellant’s sentence is in the range of punishment provided for his
offenses and the sentence appears to be consistent with applicable sentencing principles and
guidelines. Therefore, this Court must affirm the sentence.


                                        Conclusion


       For the foregoing reasons, the judgment of the trial court is affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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