            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                           MARCH 1998 SESSION
                                                            FILED
                                                        September 14, 1998
STATE OF TENNESSEE,          *      C.C.A. # 02C01-9708-CC-00304
                                                         Cecil Crowson, Jr.
             Appellee,       *      OBION COUNTY         Appellate C ourt Clerk


VS.                          *      Honorable W illiam B. Acree, Jr., Judge

CORY LAMONT GENTRY,          *      (Reckless Endangerment; Possession
                                     of a Weapon)
             Appellant.      *




For Appellant:                      For Appellee:

C. Michael Robbins                  John Knox Walkup
3074 East Street                    Attorney General & Reporter
Memphis, TN 38128
(on appeal only)                    Marvin E. Clements, Jr.
                                    Assistant Attorney General
Joseph P. Atnip                     425 Fifth Avenue North
District Public Offender            Cordell Hull Building, 2nd Floor
P.O. Box 734                        Nashville, TN 37243-0493
Dresden, TN 38225
                                    Allen Strawbridge
                                    Assistant District Attorney General
                                    P.O. Box 218
                                    Union City, TN 38261



OPINION FILED: _____________________




AFFIRMED AS MODIFIED




GARY R. WADE, JUDGE
                                       OPINION

              The defendant, Cory Lamont Gentry, was convicted of Class E felony

reckless endangerment and unlawful possession of a weapon. The trial judge

imposed concurrent Range II, four-year sentences for each conviction, to be served

consecutively to prior unserved sentences.



              In this appeal of right, the defendant presents the following issues for

review:

              (I) whether the trial court erred by refusing to allow the
              defendant to offer his alibi proof;

              (II) whether the trial court erred by denying the
              defendant a new trial on the basis of newly discovered
              evidence; and

              (III) whether the trial court erred by imposing an
              excessive sentence.

We modify the defendant's sentences for each offense to Range I, two-year terms,

which are to be served concurrently with each other but consecutively to his prior

unserved sentences. Otherwise, the judgment of the trial court is affirmed.



              On August 1, 1996, at approximately 1:40 P.M., Teresa Matheny, a

pest-control technician, was sitting in her work truck at the intersection of

Greenwood and College Street in Union City. She then saw the defendant, who

was wearing a red, white and blue shirt, draw a gun and fire a shot down

Greenwood toward Main Street. The defendant fired a second shot toward the

pavement and then looked straight at Ms. Matheny as he handed a friend the

weapon. Ms. Matheny went into a nearby school, telephoned the police, and

reported the incident.



              Near the time of the shooting, Officer Stephanie Marshall, who lived


                                            2
nearby, was traveling through the Greenwood and College intersection on her way

to work when she saw the defendant, who was wearing a red, white and blue shirt,

and Carale Shields standing near the street. Officer Marshall knew that the

defendant lived in close proximity to the intersection. Seconds after her arrival at

the police station, she received the report that shots had been fired at the

intersection by an individual wearing a red, white and blue shirt.



              Jermaine Fuller was a witness for the defense. He claimed that he

was at the intersection with Carale Shields and Mike Shields near the time of the

shooting. After talking with the two men for approximately ten minutes, Fuller left on

his bicycle to get a soda. The others soon dispersed. Upon his return, Fuller saw

someone fire a gun and then leave the area. Although he could not identify the

shooter, Fuller testified it was not the defendant.



              The defendant, who testified in his own behalf, admitted that he was in

the area when the shooting occurred. He claimed that he had been visiting the

residence of his son, who lives on that corner, when he heard gunshots. The

defendant, who acknowledged two prior convictions for sale of a controlled

substance, contended that he merely went outside to investigate and had nothing to

do with the gunfire.



                                           (I)

              Initially, the defendant claims that the trial court erred by refusing to

allow his alibi witnesses to testify. Rule 12.1, Tenn. R. Crim. P., provides, in

pertinent part, as follows:

              Notice of Alibi.--(a) Notice by Defendant.--Upon written
              demand of the district attorney general stating the time,
              date, and place at which the alleged offense was
              committed, the defendant shall serve within ten days, or

                                            3
              at such different time as the court may direct, upon the
              district attorney general a written notice of an intention to
              offer a defense of alibi. Such notice by the defendant
              shall state the specific place or places at which the
              defendant claims to have been at the time of the alleged
              offense and the names and addresses of the witnesses
              upon whom the defendant intends to rely to establish
              such alibi.

                                            ***

              (d) Failure to Comply.--Upon the failure of either party to
              comply with the requirements of this rule, the court may
              exclude the testimony of any undisclosed witness offered
              by such party as to the defendant's absence from or
              presence at, the scene of the alleged offense. This rule
              shall not limit the right of the defendant to testify in his or
              her own behalf.

              (e) Exceptions.--For good cause shown, the court may
              grant an exception to any of the requirements of this rule.

Tenn. R. Crim. P. 12.1 (emphasis added).



              The state filed a demand for notice of alibi on December 9, 1996. The

defendant never filed a written response. On December 31, only two days prior to

trial, defense counsel faxed a document to the state indicating that he intended to

call Emma Treadwell as an alibi witness. The document contained only the witness'

name and phone number. On January 2, 1997, the day of the trial, the defendant

gave the state the name of another potential alibi witness, Tracy Boucher.



              Claiming that it had not received the opportunity to verify or investigate

the alibi, the state asked the trial court to exclude the witnesses. While the

defendant conceded that he had violated Rule 12.1, he asked for relief under

subsection(e), which provides that sanctions need not be imposed if the defendant

has "good cause" for not complying.



              Defense counsel explained that he had learned about the witnesses


                                             4
only two days before trial. When the trial judge asked why the defendant had not

told his counsel about the possible alibi sooner, defense counsel responded that his

client "didn't have a way to Dresden," the location of his law office. The expected

testimony of the two alibi witnesses was summarized by defense counsel as follows:

              Miss Treadwell, is going to testify that Cory Gentry was in
              [her] house when she heard the gunfire. The other
              witness is going to say that she did not hear the gunfire,
              but she does know that Mr. Gentry was in the house.



              The trial court ruled the witnesses could not testify:

              The defendant has failed to show good cause for failure
              to comply. He has offered no satisfactory reason for
              failing to inform his attorney of the names of these
              witnesses. The Court further notes that the defendant
              has been in court at least on two previous occasions with
              his attorney, that being October 14, 1996 and October
              28, 1996 for arraignment and also for setting the case for
              trial, and there was certainly ample opportunity at that
              time to inform his attorney of the names of these
              witnesses, and he did not do so. The reasons given for
              later failing to inform his attorney of these witnesses are
              not accepted by the State. The Court does not believe
              those statements made by the defendant. ...The
              witnesses ... will not be permitted to testify in this case.

The defendant asserts that the ruling effectively denied him the basic right to

present a defense.



              "For good cause shown, the court may grant an exception to any of the

requirements of this rule." Tenn. R. Crim. P. 12.1(e) (emphasis added). This court

reviews the trial judge's ruling under an abuse of discretion standard. See, e.g.,

State v. Andrew W. Keeley, No. 01C01-9403-CR-00095, slip op. at 12 (Tenn. Crim.

App., at Nashville, Aug. 25, 1995); State v. Terry Lewis Barr, No. 89-267-III, slip op.

at 8 (Tenn. Crim. App., at Nashville, June 8, 1990). When there is technical

violation of the rule, the trial judge may exclude the evidence without abusing his

discretion. Id.


                                           5
              In State v. Shannon Blaylock, No. 03C01-9412-CR-00435 (Tenn.

Crim. App., at Knoxville, Dec. 13, 1995), however, two of the three panelists, one

concurring and the other dissenting, observed that when disallowance of an alibi

witness does in fact strip the accused of his defense, the trial court's discretion

should be subjected to careful scrutiny. Judge Hayes, in the separate concurrence

to the lead opinion upholding the conviction, wrote that the "trial court should weigh

the 'due process' rights of the defendant to present witnesses ... against the interest

of the State in avoiding surprise or 'trial by ambush.'" Special Judge Turnbull,

writing in dissent, argued that the Tennessee courts should adopt the guidelines

used in federal courts when applying Rule 12.1, Tenn. R. Crim. P.; it was his view

that the "harsh" exclusion of the testimony for failure to provide timely notice

"denuded the defense of its most important witness" and violated due process.



              This court has acknowledged that the Tennessee Rule on disclosure

of an alibi defense "conforms to the federal rule" and, accordingly, is given the same

interpretation. State v. Sammie Lee Taylor, No 02C01-9501-CR-00029, slip op. at

18, n.17 (Tenn. Crim. App., at Jackson, Oct. 10, 1996) (internal quotations omitted).

The federal courts have found the following factors relevant:

              (1) the prejudice that resulted to the government from
              the failure to disclose;

              (2) the prejudice suffered by the defendant if the
              sanction of exclusion is employed;

              (3) the reasons for nondisclosure;

              (4) the extent that harm from nondisclosure is mitigated
              by subsequent events;

              (5) the weight of evidence supporting the defendant's
              guilt; and

              (6) any other factors arising out of the circumstances of
              the case.



                                            6
United States v. Wood, 780 F.2d 555, 560-61 (6th Cir. 1986); United States v.

White, 583 F.2d 899, 901-02 (6th Cir. 1978); United States v. Baron, 575 F.2d 752,

757 (9th Cir. 1978).



              While we believe that the rule of witness exclusion should be utilized

only in more extreme circumstances, we cannot conclude, by the use of the factors,

that the trial court erred on this occasion. By learning about the alibi witnesses on

the eve of trial, the state was unable to investigate the alibi. Unlike the facts in

Blaylock, where the witness was "not unknown to the state," the state in this

instance was familiar with neither of the excluded witnesses. Blaylock, Sp. J.

Turnbull, dissenting opinion, slip op. at 2. Considering the ease with which an alibi

can be fabricated, the State has both an 'obvious and legitimate interest in

protecting itself against an eleventh hour defense.'" Taylor, slip op. at 18 (quoting

Williams v. Florida, 399 U.S. 78, 81 (1970)).



              The second factor, prejudice suffered by the defendant, also weighs

favorably for the state. The defendant has failed to demonstrate any prejudice.

Although both witnesses were present, neither was called to make a record of what

their testimony would have been. See Tenn. R. Evid. 103(2). "In order for an

appellate court to review a record of excluded evidence, it is fundamental that such

be placed in the record in some manner." State v. Goad, 707 S.W.2d 846, 854

(Tenn. 1986). Statements of counsel are not evidence. Trotter v. State, 508

S.W.2d 808, 809 (Tenn. Crim. App. 1974). Without the witness's testimony, we

cannot conclude the defendant was prejudiced.



              There are other factors favorable to the state. Defense counsel

submitted that the defendant was unable to "get to Dresden" to inform him of the


                                            7
alibi witnesses. Union City and Dresden are not all that far apart, especially when

liberty interests are at stake. A telephone message would have been enough. That

the defendant had made two court appearances without any hint of possible alibi

witnesses reflects upon his credibility. The flimsiness of the excuse provided

renders suspect the legitimacy of the witnesses. The most obvious question is why

the defendant, despite several prior opportunities, waited several months before

telling his counsel about the witnesses. The record provides no answer. Implicit in

the observations made by the trial judge is a lack of confidence in the truthfulness of

the defendant. While matters of credibility are generally best left to the jury, the

record supports the skepticism of the trial court about the motives of the defendant.



              The remaining factors are neutral, neither helpful to the state nor the

defense. Obviously, each case must be resolved on its own particular

circumstances. Exclusion is a harsh rule. The ultimate test is one of fundamental

fairness. Here the record does not warrant a conclusion that the trial judge abused

his discretion or that the defendant was denied his fundamental right to a fair trial.



                                           (II)

              The defendant next argues the trial court erred by denying his motion

for a new trial on the basis of newly discovered evidence, i.e., that someone else

confessed to the crime. At the hearing on the motion for new trial, seventeen-year-

old Carale Shields testified that on the afternoon of August 1, 1996, he and "Shack"

were at the intersection "playing with ... a pellet gun." Shields admitted shooting the

gun in the air and claimed he was wearing a blue, red, and white striped shirt at the

time. On cross-examination, Shields explained his absence at the trial by asserting

that he was in Dyersburg, "twenty miles down the road," when the trial took place.

Shields acknowledged, however, that "anybody that wanted to find [him] could


                                            8
have." Cory Bardwell, who was on work release from jail at the time of the offense,

attempted to corroborate Shields' testimony. He claimed to have seen Shields fire

the gun in the air. The trial court denied the motion for new trial, stating "I do not

believe a word they said."



                To warrant a new trial on grounds of newly discovered evidence, the

defendant must have exercised reasonable diligence in searching for the evidence

prior to trial; the evidence must be material; and the evidence, if produced at trial,

would have likely changed the results of the trial if accepted by the jury. State v.

Goswick, 656 S.W.2d 355, 358-59 (Tenn. 1983); State v. Burns, 777 S.W.2d 355

(Tenn. Crim. App. 1989). When the newly discovered evidence only tends to

contradict or impeach the trial evidence, however, a new trial is not usually

warranted. State v. Lequire, 634 S.W.2d 608, 615 (Tenn. Crim. App. 1981). When

the trial court overrules a motion for a new trial based on newly discovered

evidence, that ruling will not be reversed on appeal absent a clear abuse of

discretion. State v. O'Guin, 641 S.W.2d 894, 898 (Tenn. Crim. App. 1982). It is

proper for a trial court to deny a motion for a new trial based upon newly discovered

evidence when the defendant fails to show that he exercised reasonable diligence in

the procurement of a witness at the original trial. Hawkins v. State, 417 S.W.2d 774

(Tenn. 1967).



                There is no proof that the defendant exercised reasonable diligence in

locating these witnesses. During direct examination at trial, the defendant

unexpectedly claimed that he had "heard" that Carale Shields had committed the

crime. While the trial court granted the state's motion to strike the testimony, it is

apparent from his statement that the defendant knew about Shields before the trial.

Jermaine Fuller, a defense witness, testified at trial that he, the defendant and


                                            9
Shields were together at the intersection for approximately ten minutes before the

incident, implying that the defendant is at least acquainted with Shields. Officer

Marshall also testified at trial that she saw the defendant and Shields together at the

intersection. The record establishes that the defendant knew about Shields in

advance of trial.



              In his motion for new trial, the defendant filed an affidavit claiming that,

after making bail, he tried and failed to locate Shields. The affidavit fails to include

what, if any, specific efforts the defendant made. The grant of a new trial solely on

the basis of an affidavit by the defense would deny the state the opportunity to test

the accuracy or truthfulness of the information contained in the affidavit. Hicks v.

State, 571 S.W.2d 849, 852 (Tenn. 1978). Testimony should have been offered at

the hearing on the motion for new trial. Id. Because there is no competent proof

that the defendant exercised reasonable diligence in searching for the evidence

prior to trial, the trial court did not abuse its discretion by denying the motion.



                                            (III)

              The defendant complains that his sentence is excessive. He raises

the following specific challenges to his sentence:

              (a) the trial court erred by finding him to be a multiple
              offender;

              (b) the trial court erred by using the enhancement factor
              that the defendant has shown an unwillingness to comply
              with the terms of an alternative sentence; and

              (c) the trial court erred by ordering the sentences to be
              served consecutively to his prior unserved sentences.

Convicted of two Class E felonies, the defendant received Range II, four-year terms

for each offense. A Range II sentence for a Class E felony is two to four years. For

reasons explained below, we must modify both sentences to Range I, two-year


                                            10
terms, the maximum available for a Range I Class E felony. The terms must be

served consecutively to his prior sentences.



              The presentence report shows that the defendant, who has a high

school diploma and a limited work history, has prior convictions for disorderly

conduct, criminal trespassing, and the sale of cocaine. He was on probation for two

drug convictions when the weapons and endangerment offenses occurred.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -

210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              At the time of these offenses, the presumptive sentence was the


                                           11
minimum in the range. Tenn. Code Ann. § 40-35-210(c) (amended effective July 1,

1995, to make the presumptive sentence for a Class A felony the midpoint in the

range). Should the trial court find mitigating and enhancement factors, it must start

at the presumptive minimum in the range and enhance the sentence based upon

any applicable enhancement factors, then reduce the sentence based upon any

appropriate mitigating factors. Tenn. Code Ann. § 40-35-210(e). The weight given

to each factor is within the trial court's discretion provided that the record supports

its findings and it complies with the Sentencing Act. See Ashby, 823 S.W.2d at

169. The trial court, however, should make specific findings on the record which

indicate its application of the sentencing principles. Tenn. Code Ann. §§ 40-35-209

and -210.



                                           (a)

              The defendant's first complaint is that the trial court erred by

classifying him as a Range II, multiple offender. He argues that he does not have

the requisite number of prior convictions. A multiple offender is defined as follows:

              (a) A "multiple offender" is a defendant who has
              received:

              (1) A minimum of two (2) but not more than four (4) prior
              felony convictions within the conviction class, a higher
              class, or within the next two (2) lower felony classes,
              where applicable[.]

                                           ***

              (b) In determining the number of prior convictions a
              defendant has received:

                                           ***

              (4) Convictions for multiple felonies committed as part of
              a single course of conduct within twenty-four (24) hours,
              constitute one (1) conviction for the purpose of
              determining prior convictions; however, acts resulting in
              bodily injury or threatened bodily injury to the victim or
              victims shall not be construed to be a single course of
              conduct.

                                           12
Tenn. Code Ann. § 40-35-106 (emphasis added).



              The state filed a notice of sentencing as a multiple offender, listing two

prior convictions for sale of a controlled substance, one of which occurred on

December 1, 1993, and one of which occurred on November 30, 1993. At the

sentencing hearing, the defendant testified that the sales occurred within twenty-four

hours of each other and described the offenses as follows: "I sold to undercover

back-to-back ... 'cause they sent 'em like that night and then sent 'em that morning.

So, it was like I sold twice to undercover back-to-back, and they ran the charge

concurrent." The defendant contends that because his two felonies were part of a

single course of conduct occurring within twenty-four hours, they should count as

only one prior conviction.



              The state did not cross-examine the defendant on this testimony. In

closing argument, the state conceded the offenses occurred within twenty-four hours

of each other; it argued, however, they were not part of a single course of conduct

and thus should not merge together for range determination purposes. The

prosecutor claimed, "These were two separate sales to two separate individuals at

two separate locations." Defense counsel objected to the state's assertion that the

sales were made to two separate individuals at two separate locations, pointing out

the state had offered no evidence of those facts. The trial court nonetheless

classified the defendant as a Range II, multiple offender.



              On appeal, the defendant complains that the trial judge made the

decision "without benefit of any competent proof" of whether the two offenses were

part of a single course of conduct. We agree that the state failed to meet its burden

of proof.


                                           13
              Under the statute, the defendant must be found "beyond a reasonable

doubt to be a multiple offender" before he receives sentencing within Range II.

Tenn. Code Ann. § 40-35-106(d); see State v. Horton, 880 S.W.2d 732, 734 (Tenn.

Crim. App. 1994). In this case, there is no proof that the offenses were not part of a

single course of conduct. The defendant's testimony would support an inference

that they were, in fact, part of a single course of conduct. The state chose not to

challenge the testimony. Argument by the state that the sales were made to

separate people at separate locations does not qualify as proof. Trotter v. State,

508 S.W.2d 808, 809 (Tenn. Crim. App. 1974). Because there is insufficient

evidence that the defendant was a Range II offender, we must modify his range

classification to that of Range I.



                                          (b)

              Having determined offender classification, we now review the length of

each sentence. The trial judge applied the following factors: prior criminal record;

prior history of unwillingness to comply with the conditions of a sentence involving

release into the community; and that the defendant was on probation when he

committed the present offense. See Tenn. Code Ann. § 40-35-114 (1), (8) and (13).

The defendant complains the court should not have applied factor (8) in addition to

factor (13), as it amounts to "double enhancement arising out of only one

circumstance."



              It is permissible to use both factors as long as each is supported by

the evidence. See generally State v. Hayes, 899 S.W.2d 175, 186 (Tenn. Crim.

App. 1995). The presentence report shows the defendant has a prior probation

revocation in addition to that which occurred as a result of commission of the

offenses. Accordingly, the trial court did not err by applying this enhancement


                                          14
factor.



             The trial judge imposed the four-year sentences based upon the

defendant's being a multiple offender. Because the defendant is Range I, not

Range II, four-year terms may not be imposed. In our view, two-year sentences, the

maximum available for each offense, are warranted based on the presence of the

three enhancement factors.



                                         (c)

             Finally, the defendant argues that consecutive sentencing is

unnecessary. The sentences for reckless endangerment and possession of a

weapon were ordered concurrent with each other but consecutive to his prior

unserved sentences. The defendant had received two concurrent eight-year

sentences for prior convictions of sale of cocaine and was on probation for the drug

offenses when the present offenses were committed. The trial court ordered the

sentences in this case to be served consecutively to the sentences in the drug

cases. The trial judge relied on Tenn. Code Ann. § 40-35-115 and found the

defendant was a professional criminal and that he was on probation when he

committed the present offenses.



             Rule 32(c), Tenn. R. Crim. P., addresses sentencing when the

defendant has prior unserved sentences:

             (c) Concurrent or Consecutive Sentences.

                                          ***

             (2) Sentence When Defendant Has Prior Sentence Not
             Fully Served. If the defendant has additional sentences
             not yet fully served ... the court shall recite this in the
             judgment setting sentence, and the sentence imposed
             shall be deemed to be concurrent with the prior sentence
             or sentences, unless it affirmatively appears that the new

                                          15
             sentence being imposed is to be served consecutively
             with the prior sentence or sentences. The judgment to
             make the sentences consecutive or concurrent shall
             explicitly recite the judge’s reasons therefore, and is
             reviewable on appeal.

                                         ***

             (3) Mandatory Consecutive Sentences. Where a
             defendant is convicted of multiple offenses from one trial
             or where the defendant has additional sentences not yet
             fully served as the result of the convictions in the same or
             other court and the law requires consecutive sentences,
             the sentence shall be consecutive whether the judgment
             explicitly so orders or not. This rule shall apply:

                    (A) to a sentence for a felony committed while on
             parole for a felony;

                  (B) to a sentence for escape or for a felony
             committed while on escape;

                    (C) to a sentence for a felony where the defendant
             was released on bail and the defendant is convicted of
             both offenses; and

                    (D) any other ground provided by law.

Tenn. R. Crim. P. 32(c)(2)-(3) (emphasis added).



             An additional statutory basis for consecutive sentencing is Tenn. Code

Ann. § 40-35-310, which provides as follows:

             [I]n any case of revocation of suspension [of probation]
             on account of conduct by the defendant which has
             resulted in a judgment of conviction against him during
             his period of probation, the trial judge may order that the
             term of imprisonment imposed by the original judgment
             be served consecutively to any sentence which was
             imposed upon such conviction.

The section gives the trial judge discretion to order consecutive sentences when the

defendant is convicted of a crime while on probation for a previous crime.



             Finally, Tenn. Code Ann. § 40-35-115, which was specifically

mentioned by the trial court, governs consecutive sentences. Prior to the enactment


                                         16
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 routinely be imposed . . . and . . . the

aggregate maximum of consecutive terms must be reasonably related to the

severity of the offenses involved." Taylor, 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 sentences may be imposed in the discretion of the trial court

only upon a determination that one or 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


        1
           The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.

                                                     17
              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.



              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." Wilkerson, 905 S.W.2d at 938. The record must show that the sentencing

principles and all relevant facts and circumstances were considered before the

presumption of correctness applies.

                                          18
                 The trial judge relied on Tenn. Code Ann. § 40-35-115 and imposed

consecutive sentences based on the defendant's being a professional criminal and

being on probation when the offenses were committed. The defendant complains

that there was no proof in the record that he was a professional criminal.



                 A professional criminal is an individual whose criminal activities are a

"major source of his livelihood." State v. Desirey, 909 S.W.2d 20, 30 (Tenn. Crim.

App. 1995). We agree that there was no proof in this record that the defendant

qualified as a professional criminal. Nonetheless, consecutive sentences are

appropriate based on Tenn. Code Ann. § 40-35-115(b)(6), that the defendant was

on probation when he committed the present offenses. We also find that the

consecutive terms are reasonably related to the severity of the offenses. The trial

court did not abuse its discretion by ordering the terms to be served consecutively.

State v. Moore, 942 S.W.2d 570 (Tenn. Crim. App. 1996).



                 Accordingly, the judgment of the trial court is affirmed as modified.



                                                   __________________________________
                                                   Gary R. Wade, Judge

CONCUR:



_______________________________
Joe B. Jones, Presiding Judge 2


_______________________________
Jerry L. Smith, Judge


        2
        The H onorab le Joe B. J ones d ied May 1 , 1998, an d did not pa rticipate in this o pinion. W e
acknowledge his faithful service to the Tennessee Court of Criminal Appeals, both as our colleague
and as our Presiding Judge.

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