        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 8, 2013

             STATE OF TENNESSEE v. COLTON D. WHITELOW

                    Appeal from the Circuit Court for Dyer County
                    No. 09-CR-396    Russell Lee Moore, Jr., Judge


                 No. W2012-00527-CCA-R3-CD - Filed June 25, 2013


The Defendant, Colton D. Whitelow, was indicted for first degree premeditated murder, first
degree felony murder, and aggravated assault. Following a jury trial, the Defendant was
convicted of the lesser included offenses of voluntary manslaughter and reckless homicide
and acquitted of the aggravated assault charge. See Tenn. Code Ann. §§ 39-13-211, -215.
The trial court sentenced the Defendant to an effective ten-year sentence. In this appeal as
of right, the Defendant contends (1) that the length of his sentences were excessive; and (2)
that the trial court erred in imposing consecutive sentences. Following our review, we affirm
the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH and
T HOMAS T. W OODALL, JJ., joined.

Danny H. Goodman, Jr., Tiptonville, Tennessee, for the appellant, Colton D. Whitelow.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; and
C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

        Because the Defendant challenges only his sentences on appeal, we will provide a
brief summary of the factual background leading to the Defendant’s convictions. This case
arose from a massive street fight between residents of Newburn and Ripley, Tennessee on
the night of February 27, 2008. An altercation between two women earlier in the day led to
approximately thirty people, including two pregnant women, fighting in front of an apartment
complex in Newburn around 9:00 p.m. that night. The fight ended when three men from
Ripley began shooting into the crowd.

       After the gunfire ended, the victim, Tamara Brown, was found in the street with a
gunshot wound to her torso. The victim, who was thirty weeks pregnant at the time, died at
the scene. A short time later, her baby was delivered stillborn at a local hospital. The bullet
entered the victim just below her left arm pit, traveled through her left and right lungs, and
exited from the right side of her body. The victim’s baby died due to hypoxia, a lack of
oxygen, caused by his mother’s death.

        At trial, two witnesses testified that they saw the Defendant shoot the victim.
Additionally, a .38 caliber bullet fragment with traces of the victim’s blood was found at the
crime scene. Inside the Defendant’s car, police found several other unfired .38 caliber
bullets. It was determined at trial that the two other shooters had used a nine millimeter rifle
and a .22 caliber handgun. The Defendant claimed that he did not intend to shoot the victim,
that “it was a crazy situation,” and that he felt “sorry [] about what happened.”

       At the sentencing hearing, the victim’s close friend Melissa Harvey testified that she
was raising the victim’s orphaned nine-year-old son because he had no other relatives. The
Defendant testified that he was only eighteen at the time of the shooting and that he wanted
to “[g]o on with [his] life.” The Defendant admitted that he was a member of the Gangster
Disciples and that the longest period of time he had ever been employed was two weeks. The
Defendant also admitted that he had a lengthy juvenile record including adjudications of guilt
for vandalism, assault, aggravated burglary, theft over $500, aggravated assault, and
probation violations.

        The trial court concluded that the following statutory enhancement factors applied to
the Defendant: (3) the offense involved more than one victim; (9) the Defendant employed
a firearm during the commission of the offense; (10) the Defendant had no hesitation about
committing a crime when the risk to human life was high; and (16) the Defendant had been
adjudicated as having committed delinquent acts as a juvenile that would constitute a felony
if committed by an adult. See Tenn. Code Ann. § 40-35-114. The trial court concluded that
no mitigating factors applied to this case. The trial court then sentenced the Defendant to six
years for the voluntary manslaughter conviction and four years for the reckless homicide
conviction.

       The trial court noted that the Defendant had “a significant prior criminal [] history as
a juvenile” and that the Defendant’s prospects for rehabilitation did “not appear to look
good.” The trial court stated that the Defendant had not accepted responsibility for what he
had done and that less restrictive measures than incarceration had previously been applied

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to the Defendant and had been unsuccessful. The trial court repeatedly stated that “this [was]
a very serious case” and that it would have given the Defendant a greater sentence if it could.

        The trial court concluded that the Defendant’s actions of shooting into a crowd of
people “exhibit[ed] little or no regard for human life” and that the Defendant did not hesitate
“to commit a crime when the risk [to] human life [was] high.” The trial court further stated
that the Defendant’s actions showed “a conscious disregard for the lives of everybody [that
was] around.” The trial court concluded that the Defendant was a dangerous offender and
ordered his sentences to be served consecutively for an effective ten-year sentence as a
Range I, standard offender.

                                         ANALYSIS

       The Defendant contends that the trial court’s imposition of the maximum sentence for
each conviction was excessive. However, the Defendant has failed to make any argument
beyond this conclusory statement and has failed to cite to any legal authority to support his
assertion. As such, the Defendant has waived review of this issue by this court. See Tenn.
Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, [or] citation to
authorities . . . will be treated as waived in this court.”).

        The Defendant also contends that the trial court erred by imposing consecutive
sentences. The Defendant argues that the trial court failed to make the necessary findings
to support its conclusion that the Defendant was a dangerous offender. The State responds
that the trial court made detailed findings justifying its classification of the Defendant as a
dangerous offender that were supported by the proof and consistent with the principles and
purposes of sentencing.

        The standard of review on the issue of consecutive is unclear under our state’s current
jurisprudence. Our supreme court recently announced that an “abuse of discretion standard,
accompanied by a presumption of reasonableness, applies to within-range sentences that
reflect a decision based upon the purposes and principles of sentencing, including the
questions related to probation or any other alternative sentence.” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012).

       However, our supreme court has not issued a definitive ruling on the standard of
review to be applied regarding consecutive sentencing. In response, some panels of this
court are applying an abuse of discretion standard, while others are continuing to apply a de
novo standard of review until instructed otherwise by our supreme court. See generally State
v. Eric Demond McCathern, No. M2011-01612-CCA-R3-CD, 2012 WL 5949096, at *4-5
(Tenn. Crim. App. Nov. 16, 2012) (majority applying abuse of discretion standard of review

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and concurring opinion advocating de novo standard of review), perm. app. denied, (Tenn.
Feb. 25, 2013).

        A trial court may order sentences to run consecutively if the trial court finds by a
preponderance of the evidence that 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.” Tenn. Code Ann. § 40-35-115(b). In addition to this,
the trial court must also find “that an extended sentence is necessary to protect the public
against further criminal conduct by the defendant and that the consecutive sentences must
reasonably relate to the severity of the offenses committed” before it can impose consecutive
sentences on the basis that the defendant is a dangerous offender. State v. Wilkerson, 905
S.W.3d 933, 938 (Tenn. 1995).

        There is no dispute that the trial court concluded that the Defendant’s action of
shooting a gun indiscriminately into a crowd of approximately thirty people indicated that
he had little or no regard for human life and no hesitation about committing a crime in which
the risk to human life was high. The Defendant argues that the trial court failed to make the
necessary findings with respect to the two Wilkerson factors.

       However, the trial court in its decision emphasized that the Defendant was a gang
member, that the Defendant had a lengthy juvenile record, that measures less restrictive than
incarceration had previously been applied unsuccessfully to the Defendant, that the
Defendant failed to accept responsibility for his actions, and that the Defendant’s prospects
for rehabilitation were poor. These facts all support a finding that consecutive sentences
were necessary to protect the public against further criminal conduct by the Defendant.

        With respect to the second Wilkerson factor, the trial court repeatedly emphasized the
severity of the Defendant’s offenses and stated that it wished it could impose a longer
sentence. The Defendant shot indiscriminately into a crowd of approximately thirty people
during a massive street fight. One of the Defendant’s bullets struck the pregnant victim in
the torso, and she died there in the street. As a result of her death, the victim’s baby died due
to hypoxia. The trial court did not err in its finding that a ten-year sentence with a release
eligibility of thirty percent was reasonably related to the severity of the offenses committed.
Based upon either standard of review, de novo or abuse of discretion, we affirm the trial
court’s imposition of consecutive sentences.




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                                     CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.




                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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