         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs December 7, 2004

                STATE OF TENNESSEE v. THOMAS D. STANTON

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 2003-A-654    Seth Norman, Judge



                     No. M2003-03049-CCA-R3-CD - Filed March 17, 2005


The Defendant, Thomas D. Stanton, was convicted by a jury of one count of aggravated robbery, one
count of carjacking, one count of aggravated burglary, one count of theft, one count of Class D
felony evading arrest, and one count of misdemeanor evading arrest. The trial court sentenced him
to life imprisonment for the robbery offense; twenty-five years for the carjacking, to run
consecutively; twelve years for the burglary offense, to run consecutively; five years for the theft,
to run concurrently; ten years for the felony evading arrest, to run concurrently; and eleven months,
twenty-nine days for the misdemeanor evading arrest, to run concurrently; for an effective sentence
of life plus thirty-seven years. In this direct appeal, the Defendant contends that the evidence does
not support his aggravated robbery conviction; that the trial court committed reversible error in
failing to charge the jury on certain lesser-included offenses; that the trial court erred in permitting
the State to impeach him on the basis of a prior conviction; and that his sentences are excessive. The
State also filed a direct appeal, arguing that the Defendant’s sentence of life imprisonment for the
aggravated robbery conviction is illegal and should be modified to a sentence of life imprisonment
without the possibility of parole. We reverse and remand for a new trial the Defendant’s conviction
of Class D felony evading arrest. We modify the Defendant’s sentence for his aggravated robbery
conviction to life imprisonment without the possibility of parole. We remand for a correction of the
judgment reflecting the Defendant’s carjacking conviction. In all other respects, we affirm the
judgments of the trial court.


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

DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL, J.,
concurred in results only and ROBERT W. WEDEMEYER , J., joined.

Emma Tennent, Nashville, Tennessee, for the appellant, Thomas D. Stanton.
Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Victor S. Johnson, District Attorney General; and Renee Erb, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

                                              FACTS
        The victim, Steve Springer, testified that he moved to Nashville in March 2002 in order to
seek employment in the music industry. He arrived in his van and brought with him a keyboard, two
guitars, and some recording equipment. He checked into a motel on Dickerson Road and was living
there at the time he met the Defendant and Tamika Frierson. Mr. Springer testified that the
Defendant and Ms. Frierson were loitering about the motel grounds and they struck up a
conversation. The Defendant introduced himself and Ms. Frierson and asked Mr. Springer to drive
them to the Defendant’s mother’s house so that they could get something to eat. Mr. Springer
complied. At the residence, Mr. Springer and Ms. Frierson remained in the car while the Defendant
entered the house. The Defendant returned with a plate of food for Ms. Frierson and a small rock
of crack cocaine. Mr. Springer and Ms. Frierson smoked this cocaine together; the Defendant did
not partake of the drug.

       The threesome then left the residence and headed back to the motel. On the way, they
stopped at a liquor store where the Defendant purchased some alcohol. Upon their return to the
motel, the Defendant and Mr. Springer drank vodka and bourbon, with Mr. Springer becoming
intoxicated. They discussed obtaining some more cocaine for Mr. Springer to consume. Mr.
Springer offered his coffee maker as an item to trade for the drug. All three then left in the van,
ostensibly to go get more cocaine.

      Mr. Springer testified that he was too drunk to drive, so he gave the van keys to the
Defendant and let him drive; Mr. Springer sat in the back of the van. Mr. Springer explained what
happened next:

       And next thing I know we stopped somewhere and I got jumped inside the van and
       they kept asking me for my hotel key and I tried to put them off, you know. What are
       you doing? And I basically got the crap beat out of me and I seriously thought I was
       going to die that evening.
       ...
               [The Defendant] clobbered me first and knocked me silly, and then I was
       dragged out of the van and beat repeatedly. And then I was stripped, both my eyes
       were pretty much swollen shut at this point, I couldn’t see a whole lot. I could hear
       them talking and he was directing Tamika to take off my clothes, I guess to impair
       me or, I seriously thought the guy was going to kill me. He was beating me in the
       face, in the legs, dragging me through the mud and in the forest, in the woods here.
       Beating me on my back with, kicking me or with a stick or something, just non-stop.



                                               -2-
                And I must have lost consciousness a couple of times. And next thing I know
        I’m naked except for my underwear and it’s cold, it’s wet and I walked away from
        the somewhat forest area that I was in, but I could barely see. And came across a
        couple of homes and started pounding on doors and asking for help. And shortly
        thereafter the police came and took me to the hospital.

        The victim testified further about his injuries. He stated that he still has a scar under his left
eye, and it was a week and a half following the assault before he could use that eye. He had “a sharp
pain” in his back for two months. He described this pain as “excruciating.” His knees became so
scabbed during the healing process that it was very painful for him to bend his knees, because the
scabs would break open and bleeding would occur. Mr. Springer described his injuries as “very,
very painful” and explained that, during his recovery, he had to walk very slowly, was unable to
carry anything, and the “[b]est [he] could do for several weeks was to lay in one position.”

       Mr. Springer emphasized that he did not give the Defendant permission to take his room key,
his money, his van or any of his musical equipment.

        Officer Jason Moyer testified that he was the first officer on the scene of the assault. Officer
Moyer stated that, when he arrived, the victim “was running around hysterical in his underwear. He
had obviously been beaten up. His eyes were starting to swell shut . . . [h]e was bleeding from his
nose, his mouth, he had multiple abrasions and scrapes all over his body.” Officer Moyer described
the lacerations to the victim’s face as “severe,” and stated that the victim had been “severely beaten.”
The victim told Officer Moyer that “they” had “taken his van and . . . all his possessions and stripped
him naked and had left him in the road for dead.” The victim described his van and also told the
officer that his assailants had the key to his motel room. According to Officer Moyer, the crime
scene and the motel were only about four to five minutes apart. Relying on the victim’s description,
Officer Moyer put out a “BOLO” on the van.

        In response to the BOLO, Officer William Bishop stationed himself at the motel where the
victim had been staying. When the victim’s van pulled past him, he followed it down Dickerson
Road. When he turned on his lights and siren, the van “took off.” Officer Bishop testified that a
“very dangerous” pursuit ensued. Eventually, the van hit a curb, lost a tire and ran into a ditch. At
that point, the Defendant got out of the van and began running away. With assistance, Officer
Bishop was able to subdue the Defendant and take him into custody. He subsequently took the
Defendant to the hospital because the Defendant’s right hand and wrist were “all swelled up.” While
at the hospital, the Defendant was put in the same room with the victim. Officer Bishop stated that
the victim was “showing signs of extreme physical pain,” was “yelling and screaming,” and could
walk only with assistance.

        Officer Jamie Underwood assisted in the pursuit of the van and secured it after the Defendant
ran off. She took custody of Tamika Frierson, who was also in the van, and found a credit card
belonging to the victim in Ms. Frierson’s pocket.



                                                   -3-
        Detective Mike Chastain interviewed the victim in the hospital. Det. Chastain stated that the
victim appeared to be in a “considerable amount of pain.” The victim told him specifically that the
Defendant and Ms. Frierson had assaulted him and taken his van, debit and credit cards, motel key
and a small amount of money. The victim subsequently identified the Defendant and Ms. Frierson
from photographic line-ups. A couple of days after the attack, Det. Chastain took the victim to the
Metro impound lot to identify his van, which he did. Inside the van were the victim’s bicycle, two
guitars, a keyboard and various other items. Not recovered were the victim’s money clip or his motel
key card.

        Tamika Frierson testified, explaining that she had pled guilty to aggravated burglary and theft
as a result of the attack on Mr. Springer. She stated that she and the Defendant had spent the night
together at the motel the night before the attack. As they were checking out, it was raining. They
had no car and noticed the victim because he had a vehicle. They began a conversation with the
victim and asked him to drive them to the Defendant’s mother’s house. The victim agreed and while
they were there, she and the victim smoked some crack cocaine in the van. They all then returned
to the motel and all went into the victim’s motel room. There, she saw the victim’s musical
equipment. She stated that the three of them sat around in the victim’s room, ate, and drank alcohol.
The victim played his musical instruments.

        Later, she testified, the victim decided he wanted more cocaine. The three of them left in the
victim’s van and returned to the Defendant’s mother’s house, where they tried unsuccessfully to sell
the victim’s coffee maker to the Defendant’s mother. They then drove to another location where
they parked and, according to Ms. Frierson, the Defendant “got out of the car and went on [the
victim’s] side . . . and pulled him out of the car and began beating him.” Ms. Frierson stated that the
Defendant beat the victim with his fist. The Defendant was asking the victim for the key to his room
and when the victim told the Defendant that he did not have it, the Defendant “just kept beating
him.”

        During the beating, the Defendant told Ms. Frierson to strip the victim, which Ms. Frierson
did. She also placed her foot on the victim’s neck. Afterward, she found the victim’s motel key card
on the ground. She also took the victim’s money clip and a “card.” She and the Defendant then got
back in the victim’s van and returned to the motel. There, they “went and got all the equipment out
of the room and loaded it up in the van.” The police chase ensued.

       Ms. Frierson testified that she and the Defendant determined to take the victim’s belongings
while they were visiting with the victim in his room after their initial return from the Defendant’s
mother’s house. She stated, however, that she did not know the victim was going to be beaten.

       The Defendant also testified. He explained that he and Ms. Frierson had been staying in
motels along Dickerson Road “on and off” for two to three weeks. As they were checking out of a
motel on March 17, 2002, he saw the victim. He approached the victim and struck up a
conversation. He introduced himself and Ms. Frierson, even showing the victim his identification
card. He asked the victim for a ride but the victim initially declined. Their conversation continued


                                                 -4-
and the Defendant repeated his request for a ride, this time offering the victim some food and
alcohol. The victim asked if the Defendant could get him some crack. When the Defendant replied
in the affirmative, the victim agreed to give him and Ms. Frierson a ride.

       The victim drove them to the Defendant’s mother’s house. There, the Defendant went in,
got some food, and also got some crack cocaine from his nephew. He gave the crack to the victim.
The Defendant then ran into someone that owed him money, but the Defendant took payment in
cocaine, instead. The Defendant, the victim and Ms. Frierson then left in the van. According to the
Defendant, the victim was trying to drive and smoke the crack at the same time. The Defendant
volunteered to drive and the victim acquiesced. On their way back to the motel, they stopped at a
“bootleg house” where the Defendant bought some alcohol. The threesome then returned to the
victim’s room.

        There, they all began drinking. The Defendant asked the victim if he wanted more crack and
the victim said yes. They began negotiating a price. The Defendant told the victim that he wanted
the victim’s guitar and keyboard. The victim refused this trade. The Defendant then offered to
double the amount of cocaine in exchange for these items, and the victim then agreed. The
Defendant then gave to the victim the cocaine that he had earlier taken in payment for the debt owed
him, which was about one-half the amount of cocaine that the victim agreed to trade for his musical
equipment. The victim smoked this amount and then wanted the rest. The Defendant testified that,
after smoking this second amount of cocaine, the victim was hallucinating and “acting weird.” The
Defendant also stated that all three of them were drunk.

        In order to get the victim the rest of his cocaine, they left again in the van, with the Defendant
driving. The Defendant scored the rest of the victim’s cocaine and gave it to him. They all then
returned to the victim’s room. The victim was “acting crazy” and opened the door to his motel room,
stating that he was hot. While the door was open, the Defendant saw three men walk by, one of
whom appeared to be armed. The Defendant told the victim to shut the door, which the victim did.
The victim then began showing the Defendant how to use the keyboard.

         According to the Defendant, the victim wanted still more crack and offered to trade his
bicycle and coffee maker for it. The Defendant told the victim that they could take the coffee maker
to his mother’s house, and they agreed to do so. Again, the Defendant drove. On their way back,
as the Defendant was maneuvering the van through a tight turn and going very slowly, the victim
opened the sliding door of the van and got out. The Defendant testified that the victim then “got
jumped.” The Defendant did not know who jumped the victim or how many persons were involved.
He stated that he “seen a couple of . . . figures” beating the victim. The Defendant got out of the van
to see if he could help. When he heard a gunshot, he got back in the van and left.

        The Defendant returned to the motel, took the card key that was in the console of the van,
and went into the victim’s room. He retrieved the keyboard and guitar that the victim had agreed
to trade for the cocaine. He put these items in the van. Ms. Frierson then convinced the Defendant
that they needed to return to where they had left the victim. On their way, the police began following
them. The Defendant became “scared” and fled.

                                                   -5-
        The Defendant claimed that his hand and wrist became swollen because he was handcuffed
too tightly during his arrest. The Defendant maintained that he was not trying to steal anything from
the victim.

       Following the presentation of this proof, the jury convicted the Defendant of aggravated
robbery, carjacking, aggravated burglary, theft, Class D felony evading arrest and misdemeanor
evading arrest.

                                             ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE
        In his first issue, the Defendant contends that the proof is not sufficient to support his
conviction of aggravated robbery. Aggravated robbery is defined as the intentional or knowing theft
of property from the person of another by violence or putting the person in fear, whereby the victim
suffers serious bodily injury. See Tenn. Code Ann. § 39-13-402(a)(2). “Serious bodily injury” is,
in turn, defined as bodily injury which involves a substantial risk of death; protracted
unconsciousness; extreme physical pain; protracted or obvious disfigurement; or the protracted loss
or substantial impairment of a function of a bodily member, organ or mental faculty. See id. § 39-
11-106(a)(34). The Defendant argues that the proof did not establish beyond a reasonable doubt that
the victim suffered serious bodily injury.

        Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant
who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption
of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

         On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

                                                  -6-
        In making his argument, the Defendant relies upon this Court’s opinion in State v. Sims, 909
S.W.2d 46 (Tenn. Crim. App. 1995). In that case, the defendant was convicted of especially
aggravated robbery on the basis that he robbed the victim using a deadly weapon and caused the
victim to suffer serious bodily injury. See Tenn. Code Ann. § 39-13-403(a). The proof
demonstrated that, during the course of the robbery, the defendant struck the victim once in the face
with a pistol. From this blow, she suffered a broken and lacerated nose and a bruised cheekbone.
She spent about two hours in the hospital receiving immediate treatment for these wounds. She was
not prescribed any pain medication. On appeal, the defendant contended that the victim had not
suffered the “serious bodily injury” required to support a conviction of especially aggravated
robbery. This Court agreed. Using the canon of statutory construction known as ejusdem generis,
this Court held that “the pain commonly associated with a broken nose is [not] extreme enough to
be in the same class as an injury which involves a substantial risk of death, protracted
unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use of a
bodily member, organ or mental faculty.” Sims, 909 S.W.2d at 49. Accordingly, the Court modified
the defendant’s conviction to aggravated robbery. See Tenn. Code Ann. § 39-13-402(a)(1).

       The Defendant now argues that, like the victim in Sims, Mr. Springer did not suffer from the
type of “extreme physical pain” necessary to support a finding of “serious bodily injury.” We
disagree.

        The proof at trial established that the Defendant beat the victim severely. Photographs of the
victim depicting his injuries were introduced at trial and are included in the record on appeal. The
victim suffered numerous blows to his face, back and legs. He was dragged in such a way as to
cause large abrasions on both knees. The victim testified that the pain in his back from the beating
was “excruciating,” and that his injuries were “very, very painful.” The victim’s medical records
from his admission into the emergency room indicate that the victim’s “lower back pain is a 9 on
scale of 1-10.” The victim was administered an injection of Toradol for his pain.1

        In addition to the pain that he suffered, Mr. Springer testified that he could not use his left
eye for a week and a half after the assault. We have no difficulty concluding that the loss of vision
from one eye for over a week constitutes a “protracted loss or substantial impairment of a function
of a bodily . . . organ.” Moreover, the victim also testified that his mobility was seriously limited
during the several weeks following the assault. This, too, constitutes “the protracted loss or
substantial impairment of a function of a bodily member,” that is, the victim’s legs and back.
Finally, the victim testified that he suffered permanent scarring below his left eye, and the jury had
the opportunity to view the victim’s face. A scar on the face is an “obvious disfigurement.” See
State v. Anthony D. Forster, No. M2002-00008-CCA-R3-CD, 2003 WL 1715922, at *10 (Tenn.
Crim. App., Nashville, April 1, 2003).




        1
            According to the Medical Dictionary Online, Toradol is a non-steroidal anti-inflammatory drug used to treat
pain.

                                                          -7-
        This Court has previously recognized that “[t]he distinction between bodily injury and serious
bodily injury is generally a question of fact for the jury to determine.” Id.; see also State v. Barnes,
954 S.W.2d 760, 765-66 (Tenn. Crim. App. 1997). Here, we are satisfied that the proof of the
victim’s bodily injuries is sufficient to satisfy the definition of “serious” in more than one respect.
Accordingly, we hold that the evidence is sufficient to support the Defendant’s conviction of
aggravated robbery as charged, and this issue is therefore without merit.

II. LESSER-INCLUDED OFFENSES
        In his next issue, the Defendant contends that the trial court erred by failing to charge the jury
on certain lesser-included offenses. Specifically, he states that the trial court erroneously failed to
charge the jury on the crime of criminal trespass as a lesser-included offense of aggravated burglary,
and on the crime of Class E felony evading arrest as a lesser-included offense of Class D felony
evading arrest. The State concedes that both of these offenses are “lesser-includeds,” but argues that
the Defendant is not entitled to relief on the trial court’s failure to charge them to the jury.

       The question of whether a given offense should be submitted to the jury as a lesser-included
offense is a mixed question of law and fact. See State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001).
Our standard of review for mixed questions of law and fact is de novo with no presumption of
correctness. See id.

        Both the United States and Tennessee Constitutions require that one accused of a crime be
given fair and reasonable notice of the charges to be defended. See U. S. Const. amend. VI; Tenn.
Const. art. I, § 9; Rush, 50 S.W.3d at 427. Concomitant with this right, a criminal defendant may
be convicted only of a crime which is raised by the indictment or which is a lesser-included offense
thereof. See Rush, 50 S.W.3d at 427; see also Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct.
417, 419, 76 L.Ed. 861 (1932). In order to determine what is a lesser-included offense of any given
indicted offense, we utilize the formula set forth by our supreme court in State v. Burns:

        An offense is a lesser-included offense if:

                (a) all of its statutory elements are included within the statutory
                elements of the offense charged; or
                (b) it fails to meet the definition in part (a) only in the respect that it
                contains a statutory element or elements establishing
                         (1) a different mental state indicating a lesser kind of
                         culpability; and/or
                         (2) a less serious harm or risk of harm to the same
                         person, property or public interest; or
                (c) it consists of
                         (1) facilitation of the offense charged or of an offense
                         that otherwise meets the definition of lesser-included
                         offense in part (a) or (b); or



                                                   -8-
                            (2) an attempt to commit the offense charged or an
                            offense that otherwise meets the definition of lesser-
                            included offense in part (a) or (b); or
                            (3) solicitation to commit the offense charged or an
                            offense that otherwise meets the definition of lesser-
                            included offense in part (a) or (b).

6 S.W.3d 453, 466-67 (Tenn. 1999).

        The determination that an offense is a “lesser-included” one under this paradigm does not
automatically entitle the defendant to an instruction, however. See id. at 468 (“[t]he mere existence
of a lesser offense to a charged offense is not sufficient alone to warrant a charge on that offense.”)
Rather, the trial court must continue its inquiry with two more questions:

         First, the trial court must determine whether any evidence exists that reasonable
         minds could accept as to the lesser-included offense. In making this determination,
         the trial court must view the evidence liberally in the light most favorable to the
         existence of the lesser-included offense without making any judgments on the
         credibility of such evidence. Second, the trial court must determine if the evidence,
         viewed in this light, is legally sufficient to support a conviction for the lesser-
         included offense.

Id. at 469. “If the trial court finds that the offense is lesser-included and the evidence would support
a conviction for that offense, then it has a duty to instruct the jury regarding the lesser-included
offense.” Rush, 50 S.W.3d at 429.

        Criminal trespass is a lesser-included offense of aggravated burglary. See State v. Terry, 118
S.W.3d 355, 359 (Tenn. 2003); State v. George Redd, No. W2000-01620-CCA-R3-CD, 2001 WL
912718, at *4 (Tenn. Crim. App., Jackson, Aug. 9, 2001). The Defendant filed a written request that
the jury be charged on this offense. See Tenn. Code Ann. § 40-18-110(a). Nevertheless, the trial
court declined to instruct the jury on this crime. The Defendant now argues that the trial court
committed reversible error in this regard.

        Our criminal code provides that “[a] person commits criminal trespass who, knowing the
person does not have the owner’s effective consent to do so, enters or remains on property, or a
portion thereof.” Tenn. Code Ann. § 39-14-405(a). Certainly, the proof adduced in this case
supported a jury instruction on this offense. Thus, we have no difficulty in concluding that the trial
court erred in refusing to include this jury instruction in its charge.2


         2
          The State argues that the trial court did not err in failing to instruct the jury on criminal trespass because, at
the time of the Defendant’s trial, it was not yet clear that criminal trespass was a lesser-included offense of aggravated
burglary. The State bases its argument on our supreme court’s analysis of plain error in Terry. Here, because the
Defendant both requested the instruction at trial and raised the issue in his motion for new trial, a plain error analysis is
inapposite.
                                                            -9-
         We review a trial court’s erroneous failure to provide a lesser-included offense instruction
under the constitutional harmless error standard: that is, in order to avoid reversal, we must
determine that the error was harmless beyond a reasonable doubt. See State v. Ely, 48 S.W.3d 710,
727 (Tenn. 2001). See also State v. Bowles, 52 S.W.3d 69, 77 (Tenn. 2001) (“because a failure to
give lesser-included offense instructions is of constitutional dimensions, it ‘is “presumed” reversible;
it will result in reversal unless the State convinces the reviewing court beyond a reasonable doubt
that the error did not affect the outcome of the trial.’”) In conducting this inquiry, “the reviewing
court must determine whether a reasonable jury would have convicted the defendant of the lesser-
included offense instead of the charged offense.” State v. Richmond, 90 S.W.3d 648, 662 (Tenn.
2002). That is, “the reviewing court must determine whether it appears beyond a reasonable doubt
that the trial court’s failure to instruct on the lesser-included offense did not affect the outcome of
the trial.” Id. “In making this determination, a reviewing court should conduct a thorough
examination of the record, including the evidence presented at trial, the defendant’s theory of
defense, and the verdict returned by the jury.” State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002).

        The Defendant was charged in this case with aggravated burglary on the basis that he entered
the victim’s habitation with the intent to commit a theft. See Tenn. Code Ann. § 39-14-403(a). The
Defendant argues that the jury could have convicted him of criminal trespass instead of aggravated
burglary on a finding “that the State failed to establish beyond a reasonable doubt that [he] entered
the victim’s motel room intending to steal the victim’s property.” However, the jury convicted the
Defendant not only of aggravated burglary, but also of theft. Given that the jury convicted the
Defendant of theft, we conclude beyond a reasonable doubt that it would not have convicted the
Defendant of criminal trespass rather than aggravated burglary had it been given the opportunity to
do so. In other words, we have determined beyond a reasonable doubt that the trial court’s failure
to instruct the jury on the lesser-included offense of criminal trespass did not affect the outcome of
the Defendant’s trial. The Defendant is therefore entitled to no relief on this issue.

        The Defendant also contends that the trial court committed reversible error by failing to
charge the jury properly with respect to his charge of Class D felony evading arrest. Our criminal
code provides that “[i]t is unlawful for any person, while operating a motor vehicle on any street,
road, alley or highway in this state, to intentionally flee or attempt to elude any law enforcement
officer, after having received any signal from such officer to bring the vehicle to a stop.” Id. § 39-
16-603(b)(1). Where the flight or attempt to elude creates a risk of death or injury to innocent
bystanders or other third parties, the offense of evading arrest is a Class D felony. See id. § 39-16-
603(b)(3). If the flight or attempt to elude does not create such a risk of death or injury, the offense
of evading arrest is a Class E felony. See id. The Defendant was charged with Class D evading
arrest.
        As recognized by the State, Class E evading arrest is a lesser-included offense of Class D
evading arrest. See State v. Kerry L. Dowell, No. M2002-00630-CCA-R3-CD, 2003 WL 21486978,
at *16 (Tenn. Crim. App., Nashville, June 27, 2003); State v. Gregory Dunnorm, No. E2001-00566-
CCA-R3-CD, 2002 WL 1298770, at *10 (Tenn. Crim. App., Knoxville, June 12, 2002). The
evidence in this case was such that reasonable minds could find that the Defendant committed Class
E evading arrest, and that evidence is legally sufficient to support a conviction of same.
Accordingly, the trial court erred in failing to instruct the jury on Class E evading arrest.

                                                 -10-
        The State argues that, notwithstanding the trial court’s error, the Defendant is not entitled to
relief because he failed to raise this issue in his motion for new trial. See Tenn. R. App. P. 3(e) (“in
all cases tried by a jury, no issue presented for review shall be predicated upon error in the . . . jury
instructions granted or refused . . . unless the same was specifically stated in a motion for a new trial;
otherwise such issues will be treated as waived.”) The Defendant responds that we should review
the trial court’s error under the doctrine of “plain error.” See Tenn. R. Crim. P. 52(b) (“An error
which has affected the substantial rights of an accused may be noticed at any time, even though not
raised in the motion for a new trial or assigned as error on appeal, in the discretion of the appellate
court where necessary to do substantial justice.”)

        In order to find plain error, we must consider five factors:
        (a) the record must clearly establish what occurred in the trial court; (b) a clear and
        unequivocal rule of law must have been breached; c) a substantial right of the
        accused must have been adversely affected; (d) the accused [must not have waived]
        the issue for tactical reasons; and (e) consideration of the error [must be] “necessary
        to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). Taking these factors in
sequence, the record, which contains a transcription of the trial court’s charge to the jury, clearly
establishes that the trial court did not charge the jury on the lesser-included offense of Class E felony
evading arrest. Second, the failure to charge a jury with all lesser-included offenses required under
the evidence breaches a clear and unequivocal rule of law. Third, a criminally accused’s right to
have the jury charged on all lesser-included offenses embraced by the evidence is a constitutionally
protected right, and is adversely affected when the jury is not given the opportunity to convict on a
lesser rather than on a greater offense. Fourth, the record is devoid of any evidence that the
Defendant waived his right to a complete jury instruction for tactical reasons. Fifth, we consider the
trial court’s infringement on the Defendant’s right to a complete jury charge to be sufficiently serious
as to require our review in order to do substantial justice. Accordingly, we will review the trial
court’s error in this regard in spite of the Defendant’s failure to raise it in his motion for new trial.

       We have already concluded that the trial court erred in failing to instruct the jury on Class
E felony evading arrest. We must now determine whether that error was harmless beyond a
reasonable doubt. We conclude that it was not.

       Officer Bishop testified that, after he turned on his blue lights while following the Defendant,
the Defendant turned onto a city street and “accelerated away,” reaching speeds of “up to maybe 60
miles an hour.” Officer Bishop stated that the Defendant “ran through at least one four-way stop,”
and that he considered terminating the pursuit because “it had been raining heavily and the roads
were extremely wet and it was very dangerous to be chasing him and he wasn’t, had no regard for
the public at large at all.” Officer Bishop continued his description of the chase:

                We got to Gallatin Pike, he went right through a red light across Gallatin
        Pike, didn’t slow down. Nearly hit a car driving up Gallatin. We crossed Gallatin,

                                                  -11-
        he hit a curb on the far side and when he hit the curb, the right front rear, the tire
        completely came off the vehicle. He went down on three wheels, kept on driving on
        three wheels. We chased him for approximately another mile. He went through
        another four-way stop there . . . .

Officer Bishop stated later that, in conjunction with his running the red light across Gallatin Pike,
the Defendant “nearly killed” someone.

       This testimony certainly offered sufficient proof for the jury to convict the Defendant of Class
D felony evading arrest. Moreover, this proof was uncontroverted. However, our supreme court has
made clear that

        [t]he trial court must provide an instruction on a lesser-included offense supported
        by the evidence even if such instruction is not consistent with the theory of the State
        or of the defense. The evidence, not the theories of the parties, controls whether an
        instruction is required.

Allen, 69 S.W.3d at 187-88. The Court continued:

        The jury is not required to believe any evidence offered by the State. . . . We
        therefore cannot agree that the decision to convict on a lesser-included offense may
        be taken away from the jury whenever proof supporting the element distinguishing
        the greater offense from the lesser offense is uncontroverted. As we stated in Burns,
        “the jury, not the judge, performs the function of fact-finder.”

Id. at 189.

        The jury in this case was given no opportunity to determine that the Defendant evaded arrest
in a manner that did not create a risk of death or injury to third parties. Although three
witnesses—Officer Bishop, Ms. Frierson and the Defendant himself—testified that the Defendant
fled from the police, only one witness testified as to the alleged dangers the Defendant thereby
created. Yet, the jury was given no opportunity to believe the testimony about the chase while
rejecting the testimony about the alleged dangers. Further, unlike the Defendant’s conviction of
aggravated burglary which is supported by the independent conviction of theft, the jury’s verdict
contains no separate indication that it accepted Officer Bishop’s testimony about the risks created
by the Defendant’s flight. To the contrary, the jury’s verdict contains a clear indication that it found
Officer Bishop less than one hundred percent credible. The Defendant was charged in this case with
resisting arrest. Officer Bishop testified that, after he and his assisting officer caught the Defendant,
they “still had to fight him to the ground. Fight him in the handcuffs and he resisted being led back
to [the] patrol car.” The only other testimony on this issue was the Defendant’s. The Defendant
denied that he fought or wrestled with Officer Bishop. The jury acquitted the Defendant of resisting
arrest, apparently accrediting the Defendant’s testimony on this matter over Officer Bishop’s.
Therefore, we are unable to conclude beyond a reasonable doubt that the trial court’s failure to
instruct on the offense of Class E felony evading arrest did not affect the outcome of the Defendant’s

                                                  -12-
trial. Accordingly, we must reverse the Defendant’s conviction of Class D felony evading arrest and
remand this charge for a new trial.

III. IMPEACHMENT BY PRIOR CONVICTION
        In his third issue, the Defendant asserts that the trial court erred by permitting the State to
impeach him with proof of a 1996 conviction for attempted especially aggravated robbery. Rule 609
of our Rules of Evidence governs the admissibility of prior convictions for impeachment purposes.
In pertinent part, the Rule provides that, prior to the accused taking the witness stand, the trial court
“upon request must determine that the conviction’s probative value on credibility outweighs its
unfair prejudicial effect on the substantive issues.” Tenn. R. Evid. 609(a)(3). With respect to this
provision, our supreme court instructs us that,

                 [i]n determining whether the probative value of a conviction on the issue of
        credibility outweighs its unfair prejudicial effect upon the substantive issues, two
        criteria are especially relevant. A trial court should first analyze the relevance the
        impeaching conviction has to the issue of credibility. Trial courts should explain on
        the record how the impeaching conviction is relevant to the defendant’s credibility.
        If the conviction is probative of the defendant’s credibility, the trial court should
        secondly “assess the similarity between the crime on trial and the crime underlying
        the impeaching conviction.” When an impeaching conviction is substantially similar
        to the crime for which the defendant is being tried, there is a danger that jurors will
        erroneously utilize the impeaching conviction as propensity evidence of guilt and
        conclude that since the defendant committed a similar offense, he or she is probably
        guilty of the offense charged. Accordingly, the unfairly prejudicial effect of an
        impeaching conviction on the substantive issues greatly increases if the impeaching
        conviction is substantially similar to the crime for which the defendant is being tried.
        Therefore, trial courts should carefully balance the probative value of the impeaching
        conviction on credibility against its unfairly prejudicial effect on substantive issues.

State v. Mixon, 983 S.W.2d 661, 674 (Tenn. 1999) (citations omitted). Our supreme court has also
recognized that robbery is a crime involving dishonesty that may be used for impeachment purposes.
See State v. Galmore, 994 S.W.2d 120, 122 (Tenn. 1999). Moreover, “the fact that a prior
conviction involves a similar crime for which the defendant is being tried does not automatically
require its exclusion.” State v. Blevins, 968 S.W.2d 888, 893 (Tenn. Crim. App. 1997).

       In this case, the trial court first determined that credibility was a key issue because the
Defendant claimed during opening statement that other persons had beat the victim. The court then
determined that “the probative value of the [prior] conviction with regard to credibility . . . would
outweigh the prejudicial effect.” Accordingly, the trial court ruled that the State would be allowed
to impeach the Defendant with proof of his 1996 conviction for attempted especially aggravated
robbery. We review this decision by the trial court under an abuse of discretion standard. See State
v. Waller, 118 S.W.3d 368, 371 (Tenn. 2003).



                                                  -13-
        The trial court’s ruling contains an implied finding that the Defendant’s prior conviction of
attempted especially aggravated robbery was highly relevant as to his credibility. We agree with the
trial court in this regard. As set forth above, robbery offenses involve dishonesty and are therefore
probative of the perpetrator’s credibility. See State v. Stout, 46 S.W.3d 689 app. at 716 (Tenn. 2001)
(noting that the trial court, in making a Rule 609 ruling, “correctly determined that especially
aggravated robbery is a crime of dishonesty, and is therefore probative of the defendant’s
credibility.”) As pointed out by the Defendant, the trial judge then simply concluded that the
probative value of the prior conviction outweighed its prejudicial effect, without explicitly assessing
the similarity between the prior conviction and the crime for which the Defendant was being tried,
and without setting forth on the record the balancing process he utilized or the reasons underpinning
his conclusion.

         There is, obviously, a high degree of similarity between the crimes of attempted especially
aggravated robbery and aggravated robbery, the crime for which the Defendant was being tried.
Thus, the risk of the jurors using the prior conviction as propensity evidence was higher than if the
Defendant had been previously convicted of, for instance, fraud. Nevertheless, we decline to hold
that the trial court abused its discretion by allowing the Defendant to be impeached with his prior
conviction. This Court has previously found no abuse of discretion where the trial court admitted
evidence of prior convictions for similar crimes where the accused made his credibility an important
issue by denying any wrongdoing and asserting legitimate conduct. See Blevins, 968 S.W.2d at 893.
In this case, the Defendant claimed both that he did not beat the victim, and that he had the victim’s
property under a claim of right. The Defendant put his credibility squarely on the line by denying
that he had committed the crimes with which he was charged, and his prior conviction was highly
indicative of his willingness to engage in dishonest behavior. Accordingly, while the trial court
should have set forth the reasons for its ruling with more care and explicitness, we hold that the trial
court did not abuse its discretion in allowing the State to impeach the Defendant with proof of his
1996 conviction for attempted especially aggravated robbery. This issue is without merit.

       The Defendant also complains that the trial court did not instruct the jury that proof of the
Defendant’s prior conviction was to be considered only for its impact on the Defendant’s credibility.
However, the Defendant made no complaint about this omission at trial. This issue is, accordingly,
waived. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.”)

IV. SENTENCING
        Following a sentencing hearing, the trial court sentenced the Defendant to twenty-five years
for the carjacking offense; “life” for the aggravated robbery; twelve years for the aggravated
burglary; five years for the theft; ten years for the Class D felony evading arrest; and eleven months,
twenty-nine days for the Class A misdemeanor evading arrest. The sentences for the first three of
these crimes were ordered to be served consecutively, for an effective sentence of “life” plus thirty-
seven years. Both the State and the Defendant have appealed aspects of the Defendant’s sentence.



                                                 -14-
A. Repeat violent offender status.
         We will first address that portion of the Defendant’s sentence which has been appealed by
both parties: the trial court’s imposition of a “life” sentence for the aggravated robbery conviction.
The Defendant contends that he should not be sentenced to any form of a “life” sentence. The State
asserts that this sentence is void and illegal because it directly contravenes a statutory requirement
that the Defendant be sentenced to “life without the possibility of parole” for his aggravated robbery
conviction. The State relies on Tennessee Code Annotated section 40-35-120, which deals with
repeat violent offenders. According to that provision of our criminal code, a “repeat violent
offender” includes a defendant who has been convicted of aggravated robbery, and who has at least
two prior convictions that are classified as violent offenses. See Tenn. Code Ann. § 40-35-120(a),
(b)(1)(I). At the Defendant’s sentencing hearing, the State introduced certified copies of a 1986
judgment of conviction against the Defendant for rape; a second 1986 judgment of conviction against
the Defendant for rape; and a 1996 judgment of conviction against the Defendant for attempted
especially aggravated robbery. Rape and attempted especially aggravated robbery are both classified
as violent offenses for the purposes of determining repeat violent offender status. See id. § 40-35-
120(b)(1)(D), (J). Accordingly, the State argues, the Defendant satisfies the definition of “repeat
violent offender.” As such, the State contends, the trial court was statutorily required to sentence
the Defendant for his aggravated robbery conviction “to imprisonment for life without possibility
of parole.” Id. § 40-35-120(g).

       Following the trial court’s imposition of a “life” sentence for the Defendant’s aggravated
robbery conviction, the State filed a motion “to correct void and illegal sentence” based upon the
above reasoning. The trial court denied the State’s motion, finding it

        has never found that the defendant is a repeat violent offender by [sic] a reasonable
        doubt as required under T.C.A. 40-35-120(g), and thus is not required to sentence
        him to life without the possibility of parole. Furthermore, the defendant is faced with
        an effective sentence of life plus 37 years. He is almost 37 years old at the present
        time, thus making the difference between a life sentence and a sentence of life
        without the possibility of parole inconsequential.

In this Court, the State contends that, in so ruling the trial court abused its discretion. The Defendant
responds that, because the trial court failed to find him to be a repeat violent offender, he is not
subject to any sort of “life” sentence, but must be sentenced within his appropriate range, which he
asserts is Range II, multiple offender. This status would subject the Defendant to a sentence of
between twelve and twenty years for the Class B felony of aggravated robbery. See Tenn. Code Ann.
§ 40-35-112(b)(2).

        Initially, we note that the disputed section of our criminal code provides that a trial court’s
finding of whether a defendant is or is not a repeat violent offender is appealable by either party. See
id. § 40-35-120(h). Clearly, then, this Court has the authority to determine the Defendant’s status
notwithstanding the trial court’s previous failure to find beyond a reasonable doubt that the
Defendant is a repeat violent offender.


                                                  -15-
        The State introduced certified copies of the Defendant’s prior violent felonies at the
sentencing hearing. The Defendant did not object to this proof; moreover, defense counsel stated
on two occasions that the defense would not be putting on any rebuttal proof. As a result, the State’s
evidence of the Defendant’s repeat violent offender status was uncontroverted and more than
sufficient to support a finding beyond a reasonable doubt that the Defendant is a repeat violent
offender as defined in the relevant statutory provision. As such, the trial court was required to
impose a sentence of life imprisonment without the possibility of parole as to the Defendant’s
aggravated robbery conviction. The trial court erred in failing to do so, and we therefore modify the
Defendant’s sentence for his aggravated robbery conviction to life imprisonment without the
possibility of parole.

B. Length of sentences
         The Defendant also complains that his remaining sentences are too long as a result of the trial
court’s misapplication of enhancement factors. Before a trial court imposes a sentence upon a
convicted criminal defendant, it must consider (a) the evidence adduced at the trial and the
sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
evidence and information offered by the parties on the enhancement and mitigating factors set forth
in Tennessee Code Annotated sections 40-35-113 and 40-35-114; and (f) any statement the
defendant wishes to make in the defendant’s own behalf about sentencing. See Tenn. Code Ann. §
40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). To facilitate appellate review, the
trial court is 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 State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001).

         Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. See
Tenn. Code Ann. § 40-35-401(d). However, 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). If our review reflects that
the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under
the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,
then the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported
by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that
a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401 Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.



                                                 -16-
        While not relied upon by the Defendant, we are compelled to address this issue in light of
the United States Supreme Court’s recent opinion in Blakely v. Washington, 542 U.S. , 124 S.Ct.
2531 (2004). In Blakely, the high court struck down a provision of the Washington state sentencing
guidelines, quite similar to the one in Tennessee, that permitted the trial judge to impose an
“exceptional sentence” after the court made a post-trial determination that certain statutory
enhancement factors existed. The Supreme Court determined that, other than upon the basis of a
defendant’s prior convictions, the protections in the Sixth Amendment to the federal constitution
allow a defendant’s sentence to be increased by the trial court only where the enhancement factors
are based on facts reflected in the jury verdict or admitted by the defendant. See id., 124 S.Ct. at
2537. The Court concluded that “every defendant has the right to insist that the prosecutor prove
to a jury all facts legally essential to the punishment.” Id., at 2543. The Blakely decision calls into
question the validity of Tennessee’s sentencing statutes, insofar as they permit trial courts to increase
a defendant’s presumptive sentence based upon enhancement factors found by a trial judge as
opposed to findings made by a jury.

        We turn now to the Defendant’s specific felony sentences.3 As to the Defendant’s carjacking
conviction, we first note that there is significant confusion in the record concerning the Defendant’s
sentence for this offense. The prosecuting attorney represented to the trial court that the Defendant
was a “multiple offender” as to this offense on the basis of his prior convictions. See Tenn. Code
Ann. § 40-35-106(a)(1). In this, the assistant district attorney was mistaken. Carjacking is a Class
B felony. See id. § 39-13-404(b). The Defendant has three prior Class B felony convictions: two
rapes and one attempted especially aggravated robbery. See id. §§ 40-35-118; 39-13-403(b); 39-12-
107(a). A criminal defendant being sentenced for a Class B felony who has three prior Class B
felony convictions is a “persistent offender.” See id. § 40-35-107(a)(2); State v. Blouvet, 965
S.W.2d 489, 494 (Tenn. Crim. App. 1997). A persistent offender “shall receive a sentence within
Range III.” See Tenn. Code Ann. § 40-35-107(c). The Range III sentence for a Class B felony is
twenty to thirty years, see id. § 40-35-112(c), and the presumptive sentence is the minimum in the
range. See id. § 40-35-210(c).

        During the sentencing hearing, the trial judge initially stated that he was sentencing the
Defendant as a persistent offender to twenty-five years for the carjacking offense. The prosecuting
attorney then told the court that the Defendant was a multiple, Range II offender, and the trial court
then revised the Defendant’s sentence to fifteen years at thirty-five percent: a Range II sentence.
See id. § 40-35-112(b)(2). Nevertheless, the written judgment entered against the Defendant on the
carjacking offense indicates that he was sentenced to twenty-five years at thirty-five percent as a
“multiple” offender.

       As set forth above, the Defendant is properly classified as a “persistent” offender as to his
carjacking conviction. He is therefore subject to a sentence of twenty years, enhanced as appropriate
up to the maximum of thirty years. See id. § 40-35-210(d). The trial court found that two
enhancement factors apply: the Defendant’s “previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range,” and his “previous history

        3
            The Defendant does not complain about his misdemeanor sentence and we therefore need not address it.
                                                       -17-
of unwillingness to comply with the conditions of a sentence involving release in the community.”
Id. § 40-35-114(2), (9). With respect to factor (2), the Defendant’s criminal convictions other than
those necessary to establish his range consist of the fraudulent use of a credit card, two counts of
unlawful possession of a weapon, and numerous misdemeanors. The Defendant also admitted at trial
that he had engaged in drug trafficking. The trial court made no findings with respect to the amount
of weight it accorded this enhancement factor.

        With respect to factor (9), the Defendant argues that the trial court misapplied this factor
under this Court’s opinion in State v. Hayes, 899 S.W.2d 175 (Tenn. Crim. App. 1995). We find
it unnecessary to address this contention because the record demonstrates beyond a reasonable doubt
that the Defendant committed the instant offenses while on parole from his sentence for his 1996
attempted especially aggravated robbery conviction.4 Accordingly, the trial court should have
applied this factor to enhance the Defendant’s sentence. See Tenn. Code Ann. § 40-35-114(14)(B).

        We recognize, of course, that the application of this factor might be cause for a finding of
error under Blakely, because it is based on facts neither found by the jury nor admitted by the
Defendant. However, this Court has previously held that Blakely violations are subject to a
constitutional harmless error analysis. See State v. Chester Wayne Walters, No. M2003-03019-
CCA-R3-CD, 2004 WL 2726034, at *24 (Tenn. Crim. App., Nashville, Nov. 30, 2004). That is, a
court’s application of an enhancement factor may stand, even when it is based on facts not found by
the jury or admitted by the defendant, where we are convinced beyond a reasonable doubt that a jury
would have found the existence of the enhancement factor, had it been presented with the proof of
same. Here, we have no difficulty in concluding beyond a reasonable doubt that the jury would have
concluded that the Defendant committed the instant offenses while on parole. The evidence of the
Defendant’s prior conviction and sentence was uncontroverted and proves beyond a reasonable doubt
that the Defendant was on parole at the time he committed the instant crimes. Application of this
factor therefore entitles the Defendant to no relief.

        Accordingly, the Defendant’s sentence for carjacking was properly enhanced on the basis of
two factors. The trial court found no mitigating factors, and the Defendant does not argue error in
this regard. We find that the Defendant’s midrange sentence for this offense is appropriate under
the circumstances. Accordingly, we affirm the Defendant’s twenty-five year sentence for his
carjacking conviction. We further remand this matter to the trial court to correct the judgment
reflecting the Defendant’s carjacking conviction so as to indicate that the Defendant is a persistent
offender with a release eligibility of forty-five percent.

        We turn now to the Defendant’s sentence for aggravated burglary. Aggravated burglary is
a Class C felony. See Tenn. Code Ann. § 39-14-403(b). Based on all of his prior felony convictions,
the Defendant is a “persistent offender” with respect to this offense, see id. § 40-35-107(a)(1), and
is therefore subject to a Range III sentence. See id. § 40-35-107(c). The Range III sentence for a

         4
          The certified copy of the judgment of this conviction provides that the Defendant was sentenced to eleven years
in the Department of Correction on February 2, 1996, and was accorded approximately six months of pretrial jail credit.
The instant offenses were committed in March 2002, long before the Defendant’s sentence expired.

                                                         -18-
Class C felony is ten to fifteen years. See id. § 40-35-112(c)(3). The trial court sentenced the
Defendant for this crime to a term of twelve years, using the same enhancement factors as it applied
to the carjacking offense. The presumptive sentence for a Class C felony is the minimum in the
range, see Tenn. Code Ann. § 40-35-210(c), in this case, ten years. The presumptive sentence may
be increased as appropriate upon a finding of applicable enhancement factors. See id. § 40-35-
201(d). Here, although all of the Defendant’s prior felony convictions5 are necessary to establish his
range status of persistent offender, see id. § 40-35-107(a)(1), further enhancement of his sentence
is appropriate on the basis of his numerous previous misdemeanors and his admitted drug trafficking.
Enhancement on the basis of his parole status at the time he committed the offense is also
appropriate. A two year increase over the minimum sentence is, we hold, a proper enhancement on
the basis of two enhancement factors and no mitigating factors. Accordingly, we affirm the
Defendant’s sentence for his aggravated burglary conviction.

         The Defendant was also convicted of theft over $500 and under $1000, a Class E felony. See
id. § 39-14-105(2). With respect to this conviction, the Defendant is also a persistent offender. See
id. § 40-35-107(a)(1). The Range III sentence for a Class E felony is four to six years. See id. § 40-
35-112(c)(5). The trial court imposed a midrange sentence of five years, apparently relying again
on enhancement factors (2) and (9). As with the Defendant’s conviction for aggravated burglary,
all of his previous felony convictions are necessary to establish his status as a persistent offender
with respect to his theft conviction. Some further enhancement on that basis is appropriate based
on his other criminal history. Further, enhancement on the basis of the Defendant’s status at the time
he committed the crime is also appropriate. We therefore affirm the Defendant’s mid-range sentence
for his theft conviction.

        Because we have reversed and remanded for retrial the Defendant’s Class D felony evading
arrest conviction, we need not address the sentence he received for that offense.

3. Consecutive sentencing
       Finally, the Defendant complains that the trial court erred in ordering partially consecutive
sentences. The trial court ordered the Defendant’s sentences for his carjacking and aggravated
burglary convictions to run consecutively to each other and to the sentence for his aggravated
robbery conviction on the basis of the following five statutory criteria:

        [a] [t]he defendant is a professional criminal who has knowingly devoted such
        defendant’s life to criminal acts as a major source of livelihood;
        [b] [t]he defendant is an offender whose record of criminal activity is extensive;
        [c] [t]he defendant is a dangerous mentally abnormal person so declared by a
        competent psychiatrist who concludes as a result of an investigation prior to


        5
         The Defendant has a total of six prior felonies: one fraudulent use of a credit card, two unlawful weapon
possessions, two rapes, and one attempted especially aggravated robbery. However, because the two weapon possessions
occurred on the same day, these two convictions are counted as one for purposes of determining the Defendant’s
sentencing status. See Tenn. Code Ann. § 40-35-107(b)(4).


                                                       -19-
       sentencing that the defendant’s criminal conduct has been characterized by a pattern
       of repetitive or compulsive behavior with heedless indifference to the consequences;

       [d] [t]he 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; and
       [e] [t]he defendant is sentenced for an offense committed while on probation.

Tenn. Code Ann. § 40-35-115(b)(1), (2), (3), (4), (6). Consecutive sentences may be ordered where
the court finds any of these criteria to exist “by a preponderance of the evidence.” Id. § 40-35-
115(b). In this case, there is no proof in the record to support application of the third and final of
these five criteria, and the trial court erred in ordering consecutive sentencing on these bases. We
further find insufficient proof to support application of the first of these criteria.

       We turn now to the propriety of the second of these factors, that the defendant is an offender
whose record of criminal activity is extensive. We hold that the record contains sufficient evidence
to support consecutive sentences on this basis. Prior to committing the instant offenses, the
Defendant had been convicted of six felonies, three of them violent. The Defendant’s record also
contains numerous misdemeanors. The Defendant also admitted at trial that he sold drugs, additional
criminal activity that is not otherwise reflected in the Defendant’s history of convictions. Combined
with the instant six offenses, the Defendant has a record of extensive criminal activity.

        We also conclude that the Defendant meets the definition of “dangerous offender.” The
Defendant severely beat Mr. Springer and left him stripped and virtually naked on the side of a road.
This is conduct which indicates little or no regard for human life. Moreover, the Defendant showed
no hesitation whatsoever in assaulting Mr. Springer in such manner as to create a high risk to his life.

        We recognize, of course, that even where the imposition of consecutive sentences is
supported by the proof, additional considerations must be taken into account. Specifically, the
Criminal Sentencing Reform Act of 1989 provides that the overall sentence imposed “should be no
greater than that deserved for the offense[s] committed,” that it “should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed,” and that the defendant’s
potential for rehabilitation must be taken into account. Tenn. Code Ann. § 40-35-103(2), (4), (5).
See also State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999). We are further advised that “the aggregate
maximum of consecutive terms must be reasonably related to the severity of the offenses involved.”
Tenn. Code Ann. § 40-35-115 Sentencing Commission Comments. With respect to the Defendant’s
status as a “dangerous offender,” the proof must also establish that the effective sentence is necessary
in order to protect the public from further criminal acts by the Defendant. See State v. Wilkerson,
905 S.W.2d 933, 938 (Tenn. 1995).

       Here, the Defendant’s effective sentence is life without the possibility of parole plus thirty-
seven years. This sentence is the result of the Defendant’s ongoing course of extremely violent
crimes against multiple persons and his obvious unwillingness to abandon his anti-social conduct
even during and after rehabilitation attempts. The Defendant’s attack against his most recent victim

                                                 -20-
was vicious and unprovoked. Clearly, the general public needs protection from the Defendant, and
he therefore needs to be isolated from the general public for the rest of his life. The severity of the
Defendant’s crimes, and his total lack of rehabilitative potential, demand a severe sentence.
Accordingly, we affirm the trial court’s imposition of partially consecutive sentences.

                                            CONCLUSION
         We reverse the Defendant’s conviction for Class D felony evading arrest and remand that
charge for a new trial. We modify the Defendant’s sentence for his aggravated robbery conviction
to life without the possibility of parole. We direct the trial court to correct the judgment reflecting
the Defendant’s carjacking conviction to indicate that he is a persistent offender as to that crime,
with a release eligibility of forty-five percent. In all other respects, we affirm the judgments of the
trial court.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




                                                 -21-
