         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs January 16, 2002

            STATE OF TENNESSEE v. JOHN CHARLES JOHNSON

                Direct Appeal from the Criminal Court for Davidson County
                        No. 98-D-2519 J. Randall Wyatt, Jr., Judge



                     No. M2001-01567-CCA-R3-CD - Filed April 10, 2002


Defendant, John Charles Johnson, was convicted by a Davidson County jury of second degree
murder, especially aggravated robbery, and facilitation of aggravated kidnapping. The trial court
sentenced him to consecutive sentences of twenty-five years for second degree murder and five years
for facilitation of aggravated kidnapping, to be served concurrently with a twenty year sentence for
especially aggravated robbery. On appeal, our Court affirmed the conviction and the lengths of each
sentence, but reversed the order of consecutive sentencing and remanded to the trial court for a new
hearing solely on the issue of consecutive or concurrent sentencing. See State v. John Charles
Johnson, No. M2000-00529-CCA-R3-CD, 2000 WL 208512, Davidson County (Tenn. Crim. App.,
Nashville, March 1, 2001) perm to appeal denied (Tenn. 2001). On remand, the trial court
resentenced Defendant to consecutive sentences of twenty five years for second degree murder and
five years for facilitation of aggravated kidnapping. In this appeal, Defendant argues that the trial
court erred by again ordering the sentences to be served consecutively. After a thorough review of
the record, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH, JJ., joined.

Wendy Tucker, Nashville, Tennessee, for the appellant, John Charles Johnson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

                                         BACKGROUND

        The trial court originally sentenced Defendant to consecutive sentences of twenty five years
for second degree murder and five years for facilitation of aggravated kidnapping upon a finding that
he was a dangerous offender “whose behavior indicated little or no regard for human life, and no
hesitation about committing a crime in which the risk to human life was high.” Tenn. Code. Ann.
§ 40-35-115(b)(4) (1997). On direct appeal, our court remanded to the trial court for a new
sentencing hearing solely on the issue of consecutive or concurrent sentencing because the trial court
failed to make further specific findings of fact regarding whether consecutive sentencing was
appropriate under State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). See Johnson, C.C.A. No.
M2000-00529-CCA-R3-CD, *21.

       The relevant facts taken from the trial court’s written order denying Defendant relief in the
resentencing hearing are as follows:

       The testimony by the defendant’s co-defendant, Jeremiah Hailey, was that the
       defendant, along with Hailey, drove the victim to Old Hickory lake in Davidson
       County with the plan to kill him. Hailey shot the victim twice as he attempted to run
       away and the victim then jumped into the lake. The defendant, Johnson, then
       proceeded to hold the victim’s head under water for a minute or two. Johnson and
       Hailey thought about what to do next while the victim was still face down in the
       water. They decided to move the victim to the other side of the lake hoping the
       current from the river would carry the body away. They then grabbed the victim’s
       body and dragged him from the water and put him the trunk of the car. They then
       took the victim to the other side of the lake and put him in the water again. They
       then gave the victim’s body a shove, thinking he was dead, but not sure. The
       Medical Examiner’s autopsy revealed multiple causes of death; numerous blunt force
       injuries to the head, gunshot wounds, and drowning. The examination also revealed
       multiple lacerations to the victim’s head. Hailey’s testimony at trial was contradicted
       by the defendant’s testimony, but apparently accepted by the jury, who returned a
       verdict of guilt on second degree murder, rather than first degree murder.

        At the re-sentencing hearing the State and defense counsel only presented arguments based
on the proof established at trial. Subsequently, the trial court entered a written order resentencing
Defendant to twenty five years for second degree murder to run consecutive to his five year sentence
for facilitation of aggravated kidnapping. These sentences were to be served concurrent to
Defendant’s twenty year sentence for especially aggravated robbery, for an effective term of thirty
years.




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                                              ANALYSIS

        Defendant challenges the trial court’s imposition of consecutive sentences. He argues that
the trial court erred by imposing consecutive sentences upon a finding that he is a dangerous
offender. See Tenn. Code Ann. § 40-35-115(b)(4). Defendant contends that he does not qualify as
a dangerous offender. He further asserts that the evidence fails to satisfy the additional standards
in Wilkerson, 905 S.W.2d at 939. We disagree.

        When the defendant challenges the length, range, or manner of a sentence this Court conducts
a de novo review of the record with a presumption that the determinations made by the sentencing
court were correct. See Tenn. Code Ann. §§ 40-35-401(d). "However, the presumption of
correctness which accompanies the trial court's action 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). The burden of showing that
a sentence was improper is on the appealing party. See Tenn. Code Ann. § 40-35-401(d), Sentencing
Commission Comments. Because the record in this case indicates that the trial court properly
considered the sentencing principles and all relevant facts and circumstances, our review is de novo
with a presumption of correctness.

         The record supports the trial court’s conclusion that 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.” Tenn. Code Ann. § 40-35-115(b)(4). The record
reveals that Defendant helped lure the victim to a secluded spot and watched as the victim was shot
twice. Then, Defendant and the co-defendant drug the victim from the water, placed the body in the
trunk of the car, and drove to the opposite side of the lake. Defendant then helped co-defendant
dispose of the body by throwing the body into the water, although he was unsure if the victim was
dead. Certainly, this conduct shows that Defendant has little or no regard for human life and no
hesitation to commit a crime with a high risk to human life.

        The trial court also found that consecutive sentencing was appropriate under Wilkerson.
When a trial court uses the “dangerous offender” factor, it must also conclude that consecutive
sentences (1) reasonably relate to the severity of the offenses committed; (2) serve to protect the
public from further serious criminal conduct by the offender; and (3) are congruent with general
sentencing principles. See Wilkerson, 905 S.W.2d at 939. In applying Wilkerson, the trial court
found that [based on the facts set forth in the written order on resentencing] “consecutive sentences
as to two (2) of these offenses is appropriate in this case . . . [and] (1) are reasonably related in this
case to the severity of the offenses committed, (2) serve to protect the public from future criminal
conduct of the offender, and (3) are congruent with the general principles of sentencing.” Wilkerson,
905 S.W.2d at 939. Specifically, the trial court found that the “cruel and brutal nature of the offenses
committed and the fact that the victim was treated in such an extremely unmerciful manner, as
evidenced by the severity of the injuries inflicted and the circumstances of this case,” relate to the
severity of the offenses and show that consecutive sentences are necessary to protect the public from
future criminal conduct by Defendant. Our review of the record reveals that consecutive sentences

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are also congruent with general sentencing principles. Thus, consecutive sentences were appropriate
under Tennessee Code Annotated section 40-35-115(b)(4) and Wilkerson. Defendant is not entitled
to relief on this issue.

                                        CONCLUSION

       We affirm the judgment of the trial court.


                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




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