         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                September 12, 2006 Session

                   STATE OF TENNESSEE v. DELSHAUN EPPS

                     Appeal from the Criminal Court for Shelby County
                        No. 04-02523 James C. Beasley, Jr., Judge



                        No. W2005-02487-CCA-R3-CD - May 18, 2007


The appellant, Delshaun Epps, was indicted for especially aggravated robbery and felony murder.
After a jury trial, the appellant was convicted of especially aggravated robbery and reckless
homicide. The appellant was subsequently sentenced to twenty-four years for the robbery conviction
and four years on the homicide conviction. The trial court ordered the appellant to serve the
sentences consecutively, for a total effective sentence of twenty-eight years. After the denial of a
motion for new trial, the appellant pursued this appeal. On appeal, the appellant challenges the
sufficiency of the evidence and his sentence. For the following reasons, we affirm the judgment of
the trial court.

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

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

Paul J. Springer, Memphis, Tennessee, for the appellant Delshaun Epps.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District Attorney
General, for the appellee, State of Tennessee.



                                            OPINION

       On June 29, 2003, Officer Antwon Tucker of the Memphis Police Department responded to
a 911 call from a woman who reported that her neighbor’s side storm door was open. The caller
reported that it was not the homeowner’s habit to leave his door opened or unlocked. The home was
located at 2161 Charjean. Officer Tucker arrived on the scene with his partner and entered the
residence through the open side storm door in the carport. As they entered the residence, they
discovered that the home had been ransacked. Officer Tucker noted that the front door appeared to
have been forced open. Upon further inspection of the residence, Officer Tucker and his partner
found the victim and homeowner, Gregory Smith, lying deceased on the kitchen floor. According
to Officer Tucker, the victim appeared badly beaten and had duct tape around the top of his head and
a white cloth tied around his neck.

        Bonita Black, the victim’s girlfriend, arrived at the scene later that evening. Ms. Black
informed Officer Tucker that she lived at the residence “off and on.” Ms. Black also informed
Officer Tucker that she got mad at the victim the previous morning when he informed her that two
females were coming to the house on the evening of June 28. Ms. Black stated to the officers that
she came to the house on the morning of June 29 to retrieve some clothes, but left when she knocked
on the door and got no response from the victim.

        The appellant was later arrested for his participation in the robbery and murder of the victim.
After the appellant waived his rights, Lieutenant Nathan Berryman interviewed the appellant to
ascertain his role in the robbery and murder of the victim. During his statement, the appellant
admitted to participating in the robbery of the victim along with individuals named Latisha Jones,
also known as Pumpkin, as well as individuals named James Thacker and “Kim.”

        According to the appellant, the four individuals met at the corner near his apartment and
walked to the store while planning the robbery. The initial plan was for Kim to go up to the house
and pretend to be talking on the phone. Kim was to “call [the rest of the individuals] from the side
and tell [them] to come on in the house, screaming really loud, like something had happened to her
kids to distract him.” Apparently, they arrived at the house and Kim entered, then the rest of the
individuals just walked into the house. When the appellant walked in, he told the victim to “get
down,” then Pumpkin hit him with a bottle on his way down to the floor. The appellant explained
that he grabbed two t-shirts and a pillowcase and tied the victim’s hands and legs and put the
pillowcase over the victim’s feet.

         The victim asked the appellant if they were going to kill him. The appellant then took the
victim to the “back room” where he laid the victim on the bed and threw a blanket over him. The
victim told the appellant that they could take everything and even informed the appellant that he had
$4,000 in the house and was going to show the robbers the location of the money. At that point, the
appellant grabbed the television, left the house and took the television behind the carport. James and
Kim informed the appellant that the victim got loose, so they had to “tie him back up.” When the
appellant returned to the house, the victim was “right behind the door [to the back room] blocking
it so I couldn’t get back in.” When the appellant finally got back into the room, James and Pumpkin
were “rolling the cord around” the victim when the blanket fell off the victim’s face. The appellant
stated that the victim’s face “was so swollen like somebody had beaten him really - - real bad or
something.” At that point, the appellant grabbed another television and informed the other
individuals that he was leaving because that “wasn’t [him].”

       The appellant “figured that James and Pumpkin was [sic] in there torturing the guy to find
out where the $4,000 was while I was still in there trying to get the other stuff out of the house.”


                                                 -2-
        When the appellant left the house, he noticed a police car and a “dude” standing behind the
carport who asked him where he got the items from. The appellant ran to the house to inform the
others that they had been discovered. The appellant then ran toward a nearby school and got halfway
there before he realized that he left two rifles at the house. The appellant and James ran back to get
the rifles and they heard something go “boom, boom in the back room” so they took off. The
appellant stated it “sounded like the guy [victim] was back there beating on the door like he was
trying to close himself in so if we came back or something.”

         The appellant told Lieutenant Berryman that he saw Pumpkin hit the victim with a beer bottle
during the robbery. Further, the appellant stated that he did not use duct tape to tie the victim up.
The appellant admitted that he “meant to tie [the victim] up with duct tape” but that he left his duct
tape at the house. The appellant also admitted that he had a pistol in his waistband when he ordered
the victim to the ground.

        At the conclusion of the statement, the appellant apologized for the victim’s death and stated
that the victim was alive when they left the house.

        The appellant was indicted in April of 2004 by the Shelby County Grand Jury for the
especially aggravated robbery and felony murder of the victim. At trial, Dr. Karen Chancellor of the
Shelby County Medical Examiner’s Officer testified that the victim died from multiple blunt force
trauma to the head, chest and extremities inflicted by a blunt object. Dr. Chancellor noted that
practically all of the victim’s ribs, on both sides of the body had been broken during the beating. A
hammer was found at the scene of the homicide.

       At the conclusion of the proof, the jury found the appellant guilty of especially aggravated
robbery and reckless homicide. At a subsequent sentencing hearing, the trial court sentenced the
appellant to twenty-four years for the robbery conviction and four years on the homicide conviction.
The trial court ordered the appellant to serve the sentences consecutively, for a total effective
sentence of twenty-eight years.

       On appeal, the appellant argues that the evidence was insufficient to support his convictions
and that the trial court improperly applied enhancement factors to his sentence.

                                             Analysis
                                    Sufficiency of the Evidence

        The appellant contends that the evidence was insufficient to convict him of reckless homicide
and especially aggravated robbery. Specifically, the appellant argues that the record “contains
absolutely no proof that the conduct of the defendant or any other party led to the death of the
victim” and that “there is no evidence that there was any deadly weapon used in the commission of
the offense.”




                                                 -3-
        When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Moreover, questions concerning
the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues
raised by the evidence are to be resolved by the trier of fact. State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1991).

                          A. Criminal Responsibility for Reckless Homicide

          Reckless homicide is defined as a “reckless killing of another.” Tenn. Code Ann. § 39-13-
215(a).

          “Reckless” refers to a person who acts recklessly with respect to circumstances
          surrounding the conduct or the result of the conduct when the person is aware of but
          consciously disregards a substantial and unjustifiable risk that the circumstances exist
          or the result will occur. The risk must be of such a nature and degree that its
          disregard constitutes a gross deviation from the standard of care that an ordinary
          person would exercise under all the circumstances as viewed from the accused
          person’s standpoint.

Tenn. Code Ann. § 39-11-106(a)(31).

        The appellant was convicted of reckless homicide under a theory of criminal responsibility
for the conduct of another. “[C]riminal responsibility is not a separate, distinct crime. It is solely
a theory by which the State may prove the defendant’s guilt of the alleged offenses . . . based upon
the conduct of another.” State v. Lemacks, 966 S.W.2d 166, 170 (Tenn. 1999). “A person is
criminally responsible for an offense committed by the conduct of another if [a]cting with intent to
promote or assist the commission of the offense, or to benefit in the proceeds or results of the



                                                    -4-
offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense.”
Tenn. Code Ann. § 39-11-402(2).

       Furthermore, under a theory of criminal responsibility, an individual’s presence and
companionship with the perpetrator of a felony before and after the commission of an offense are
circumstances from which his or her participation in the crime may be inferred. See State v. Ball, 973
S.W.2d 288, 293 (Tenn. Crim. App. 1998). No particular act need be shown, and the defendant
need not have taken a physical part in the crime in order to be held criminally responsible. See id.
To be criminally responsible for the acts of another, the defendant must “‘in some way associate
himself with the venture, act with knowledge that an offense is to be committed, and share in the
criminal intent of the principal in the first degree.’” State v. Maxey, 898 S.W.2d 756, 757 (Tenn.
Crim. App. 1994) (quoting Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)).

         The appellant argues that there was no proof that anyone in his group was responsible for the
victim’s death, much less that he was criminally responsible for the victim’s death. The proof at
trial, however, indicated that the appellant witnessed Ms. Jones strike the victim with a beer bottle
and participated in tying the victim up and transporting him to the back room of the house. The
appellant admitted that he took several items from the house, including guns and televisions. The
appellant also told police that during the commission of the robbery, a pillowcase came off of the
victim’s face and the appellant “saw that [the victim’s] face was so swollen like somebody had
beaten him really - really bad or something.” The appellant even told police that he “figured James
and Pumpkin was [sic] in there torturing the guy to find out where the $4,000 was while I was still
in there trying to get the other stuff out of the house.” The appellant did nothing to inquire about the
victim’s well-being and actually opined that he thought the victim was being tortured during the
robbery. From the evidence, as presented to the jury, we determine that the jury could have inferred
that the victim died as a result of being beaten by the other members of the group while the appellant
was busy removing items from the house, in what could be described as a “gross deviation from the
standard of care that an ordinary person would exercise under all the circumstances as viewed from
the accused person’s standpoint.” Tenn. Code Ann. § 39-11-106(a)(31). The appellant saw that the
victim was beaten “really” bad, clearly creating a “substantial and unjustifiable risk that death would
occur.” See State v. Samuel L. Giddens, No. M2005-00691-CCA-R3-CD, 2006 WL 618312, at *9
(Tenn. Crim. App., at Nashville, Mar. 13, 2006), perm. app. denied, (Tenn. June 26, 2006) (holding
defendant criminally responsible for victim’s death where co-defendant inflicted fatal wounds).

                                 B. Especially Aggravated Robbery

       Especially aggravated robbery “is the intentional or knowing theft of property from the
person of another by violence or putting the person in fearA . . . (1) Accomplished with a deadly
weapon; and (2) Where the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-401,
-403(a)(1)-(2) (2003). “‘Serious bodily injury’ means bodily injury which involves: (A) A
substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted
or obvious disfigurement; or (E) Protracted loss or substantial impairment of a function of a bodily
member, organ or mental faculty.” Tenn. Code Ann. 39-11-106(a)(34). “Deadly weapon” means


                                                  -5-
“[a] firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or
serious bodily injury.” Tenn. Code Ann. § 39-11-106(a)(5).

         In his statement, the appellant admitted that he had a pistol in the waistband of his pants at
the time of the robbery even though the appellant denied using the gun. Additionally, the appellant
admitted witnessing Ms. Jones hit the victim with a beer bottle. This Court has repeatedly held that
a beer bottle used as a club qualifies as a deadly weapon. See State v. Jimmy Wayne Dudley, No.
W2001-01381-CCA-R3-CD, 2003 WL 21339161, at *3 (Tenn. Crim. App., at Jackson, May 16,
2003); State v. Tony Maybry, No. W1999-01438-CCA-R3-CD, 2000 WL 33288754, at *2 (Tenn.
Crim. App., at Jackson, June 28, 2000); State v. Albert King, No. 01C01-9301-CC-00042, 1993 WL
539139, at *2 (Tenn. Crim. App., at Nashville, Dec. 30, 1993). Moreover, there was also proof that
a hammer was found at the scene, and the testimony of the medical examiner indicated that nearly
all of the victim’s ribs were broken by the use of some blunt object. Given all the proof, the jury
could have easily inferred that a deadly weapon or weapons was used during the commission of the
crime. This issue is without merit.

                                             Sentencing

       Next, the appellant challenges his sentence. Specifically, the appellant argues that “the trial
court erroneously enhanced his sentence based upon factors which were not supported by the
evidence and which were elements of the charged offense.” The State disagrees.

        “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” 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). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169. In making its sentencing
determination, the trial court, at the conclusion of the sentencing hearing, determines the range of
sentence and then determines the specific sentence and the propriety of sentencing alternatives by
considering: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statements the defendant wishes
to make in the defendant’s behalf about sentencing; and (7) the potential for rehabilitation or
treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v. Williams, 920 S.W.2d 247, 258
(Tenn. Crim. App. 1995). In balancing these concerns, a trial court should place on the record, either


                                                 -6-
orally or in writing, what enhancement or mitigating factors were considered, if any, as well as the
reasons for the sentence, in order to ensure fair and consistent sentencing. Tenn. Code Ann. § 40-35-
210(e).1 No particular weight for each factor is prescribed by the statute. See State v. Santiago, 914
S.W.2d 116, 125 (Tenn. Crim. App. 1995). The weight given to each factor is left to the discretion
of the trial court as long as it comports with the sentencing principles and purposes of our code and
as long as its findings are supported by the record. Id.

         Turning more specifically to the facts of this case, the appellant was convicted of reckless
homicide, a class D felony, and especially aggravated robbery, a class A felony. Tenn. Code Ann.
§ 39-13-215, -403. For felonies, the starting point for sentencing determinations is the minimum of
the range. See Tenn. Code Ann. § 40-35-210(c).2 Undisputably, the appellant was a Range I
standard offender; thus, for reckless homicide, two years was the minimum sentence and four years
was the maximum sentence against which the trial court was to balance any mitigating and
enhancement factors. Tenn. Code Ann. § 40-35-112(a)(4). For especially aggravated robbery, the
minimum sentence was fifteen years and the maximum sentence was twenty-five years against which
the trial court was to balance any mitigating and enhancement factors. Tenn. Code Ann. § 40-35-
112(a)(1).

        After an extensive on the record discussion of the purposes of the sentencing act and the
guidelines that the trial court is instructed to follow by statute, the trial court determined that the
appellant was a range one offender and concluded that due to a prior conviction for domestic assault
in 2003, the appellant had a history of previous criminal convictions. Tenn. Code Ann. § 40-35-
114(1). The trial court also determined pursuant to Tennessee Code Annotated section 40-35-114(2)
that the appellant was a leader in the commission of the offense. The trial court made this
determination based on the statements made by the appellant at the sentencing hearing. Specifically,
the trial court relied on the appellant’s statements in which he indicated that Ms. Jones was the
person who initially set up the criminal activity, but that the appellant was the one who recruited Mr.
Thacker. The appellant also mentioned that he forgot his duct tape and participated in tying and
restraining the victim. Further, the trial court noted that the appellant was the “lead participant” in


         1
          W e note that the Tennessee Supreme Court has determined that despite the ability of trial judges to set
sentences above the presumptive sentence based on the finding of enhancement factors neither found by a jury or
admitted by a defendant, Tennessee’s sentencing structure does not violate the Sixth Amendment and does not conflict
with the holdings of Blakely v. W ashington, 542 U.S. 296 (2004), United States v. Booker, 543 U.S. 220 (2005), or
United States v. FanFan, the case consolidated with Booker, because “the Reform Act [of Tennessee] authorizes a
discretionary, non-mandatory sentencing procedure and requires trial judges to consider the principles of sentencing and
to engage in a qualitative analysis of enhancement and mitigating factors . . . all of which serve to guide trial judges in
exercising their discretion to select an appropriate sentence within the range set by the Legislature.” State v. Gomez,
163 S.W .3d 632, 661 (Tenn. 2005). Effective July 1, 2005, prior to the appellant’s sentencing hearing herein, the
Tennessee General Assembly amended the sentencing act to reflect the advisory nature of enhancement factors.


         2
          The Tennessee General Assembly amended this statute effective July 1, 2005, to reflect that the presumptive
sentence is the minimum sentence in the range, regardless of the class of the felony. Because the appellant in the case
herein was sentenced after July 1, 2005, the amended statute applies.

                                                           -7-
removing the property from the residence. The trial court next determined that the appellant allowed
the victim to be treated with exceptional cruelty. Tenn. Code Ann. § 40-35-114(5). In finding this
enhancement factor, the trial court specifically noted the testimony of the medical examiner who
determined that “that the victim in this case died as a result of every one of his ribs being fractured.”
The trial court also noted that the victim had bruising and injuries from head to toe, consistent with
being hit by a hammer and that the victim was bound and taped. The trial court compared the
victim’s injuries to “torture.” Lastly, the trial court determined that the appellant possessed a firearm
during the commission of the offense.3 Tenn. Code Ann. § 40-35-114(9). The trial court found the
existence of several other enhancement factors, but did not apply them, concluding that they were
elements of the offenses. Further, the trial court allowed mitigation for the appellant’s efforts at self-
improvement, specifically anger management classes, while in jail.

         After a review of the record, we determine that the proof supports the trial court’s application
of the preceding enhancement factors. The appellant did not deny his prior assault conviction. The
appellant admitted during his statement that he robbed the victim by taking numerous items from
his home. The appellant also admitted that he possessed a firearm during the commission of the
offense and that he witnessed Ms. Jones hit the victim with a beer bottle. The medical examiner
testified that the appellant died from repeated blunt force trauma inflicted by a blunt object. A
hammer was found at the scene of the offense. The appellant also told police that he recruited Mr.
Thacker to assist in the robbery. This Court has upheld the application of enhancement factor (2)
where a defendant recruited help in committing a crime. See State v. Montes Waters, No. E2001-
00882-CCA-R3-CD, 2003 WL 824278, at *9-10 (Tenn. Crim. App., at Knoxville, Mar. 6, 2003),
perm. app. denied, (Tenn. July 21, 2003). The appellant admitted that he tied the victim up and took
him to the back room of the home during the robbery. The appellant also admitted that he witnessed
the appellant’s injuries and that it looked as though the appellant had been “tortured.” Although the
trial court chose to consider in mitigation that the appellant had made efforts at self-improvement
during jail, the judge gave the mitigation little weight overall. The trial court was not required to
consider the appellant’s participation in these programs in mitigation. See Tenn. Code Ann. § 40-35-
113. “The weight afforded mitigating or enhancement factors derives from balancing relative
degrees of culpability within the totality of the circumstances . . . . In other words, the weight that
is given to any existing factors is left to the trial court’s discretion so long as . . . its findings are
supported by the record.” State v. Marshall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993). The
trial court’s sentencing determination is supported by the record. This issue is without merit.

                                              Consecutive Sentencing

       Lastly, the appellant argues that the trial court erred in ordering him to serve his sentence for
reckless homicide consecutively to his sentence for especially aggravated robbery. Specifically, the
appellant argues that it was “not the evidence at trial, but the trial court’s own assessment of the facts



         3
          The trial court did not apply this enhancement factor to the appellant’s robbery conviction as it correctly found
the possession of a deadly weapon to be an element of the offense.

                                                           -8-
which guided the decision to run appellant’s sentences consecutively.” The State argues that the trial
court properly ordered the sentences to run consecutively.

        Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted of more
than one (1) offense, the trial court shall order the sentence to run either consecutively or
concurrently. The trial court may order the sentences to run consecutively if the trial court finds by
a preponderance of the evidence that certain criteria enumerated in Tennessee Code Annotated
section 40-35-115(b) are present. Those factors include the following:

       (1) The defendant is a professional criminal who has knowingly devoted such
       defendant’s life 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 . . . ;
       (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 statutory offenses involving sexual
       abuse of a minor . . . ;
       (6) The defendant is sentenced for an offense committed while on probation; or
       (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b). The decision to impose concurrent or consecutive sentences,
however, is a matter entrusted to the sound discretion of the trial court. State v. Blouvet, 965 S.W.2d
489, 495 (Tenn. Crim. App. 1997).

        In the case herein the trial court determined that consecutive sentencing was warranted,
determining that the appellant was a dangerous offender. The trial court found the circumstances
surrounding the commission of the offense to be aggravated and the appellant’s decision to commit
such a heinous crime indicate an unwillingness to “lead a productive life.” The trial court further
determined that “the length of the sentence reasonably relates to the offense for which the defendant
stands convicted.” The trial court concluded that:

               An extended sentence in this case in my opinion is necessary to protect the
       public against further criminal conduct by the defendant and that consecutive
       sentences must reasonably relate to the severity of the offense committed, and I find
       that that’s the case here, and that [the appellant], I do find is an offender who is
       dangerous, and as a result, the Court will impose a consecutive sentencing, and will
       so order.

        Thus, the trial court relied on section (4) of Tennessee Code Annotated section 40-35-115
to justify the imposition of consecutive sentencing. If the trial court rests its determination of
consecutive sentencing on this category, the court must make two additional findings. State v.
Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002). First, the trial court must find that an extended sentence


                                                 -9-
is necessary to protect the public from further criminal conduct by the defendant, and, second, it must
find consecutive sentencing to be reasonably related to the severity of the offenses. State v.
Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Although such specific factual findings are
unnecessary for the other categories enumerated in Tennessee Code Annotated section 40-35-115(b),
the imposition of consecutive sentences is also guided by the general sentencing principles that the
length of a sentence be ‘justly deserved in relation to the seriousness of the offense’ and ‘no greater
than that deserved for the offense committed.’” Imfeld, 70 S.W.3d at 708 (quoting Tenn. Code Ann.
§§ 40-35-102(1) and -103(2)); State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

         We agree with the trial court’s decision ordering that these sentences be served consecutively.
The record amply supports a finding that the appellant was a dangerous offender. The trial court
found that the circumstances surrounding the commission of appellant’s offenses were extremely
aggravated. The victim was unarmed and in no position to resist the robbery, nor did he attempt to
do so. Nonetheless, the victim was severely and ruthlessly beaten causing substantial injuries which
resulted in death. Although the appellant stated that the victim was alive when he and the other
perpetrators left the residence, the circumstances surrounding the offense do not preponderate against
the trial court’s finding that the appellant’s behavior indicated little regard for human life and that
he had no hesitancy about committing a crime where the risk to human life was high. Based on the
severity of the injuries suffered by the victim during the offense, the trial court found that
consecutive sentencing was necessary to protect society and was reasonably related to the severity
of the offenses. We conclude that the trial court did not err in classifying the appellant as a
dangerous offender and ordering the appellant to serve his sentences for reckless homicide and
especially aggravated robbery consecutively. Consequently, this issue is without merit.


                                             Conclusion


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



                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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