         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 12, 2007

                   STATE OF TENNESSEE v. MARIO MORRIS

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 03-01051   James C. Beasley, Jr., Judge



                  No. W2006-02345-CCA-R3-CD - Filed December 3, 2007


The defendant, Mario Morris, was convicted by a Shelby County Criminal Court jury of four counts
of aggravated robbery, a Class B felony, and one count of especially aggravated kidnapping, a Class
A felony. After merging the four counts of aggravated robbery into two counts, the trial court
sentenced him as a Range I, standard offender to ten years at 30% for each of the aggravated robbery
convictions and as a violent offender to twenty years at 100% for the especially aggravated
kidnapping conviction. Finding the defendant to be a dangerous offender, the trial court ordered that
each of the sentences be served consecutively for a total effective sentence of forty years in the
Department of Correction. On appeal, the defendant challenges the sufficiency of the evidence and
the trial court’s imposition of consecutive sentencing. Following our review, we affirm the
judgments of the trial court. However, because the record reveals that the defendant was improperly
sentenced under the 2005 amendments to the 1989 Sentencing Act, we remand to the trial court for
resentencing.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and
                              Remanded for Resentencing

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN
EVERETT WILLIAMS, JJ., joined.

R. Price Harris, Memphis, Tennessee, for the appellant, Mario Morris.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Stacy McEndree, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                              FACTS
        On May 14, 2002, the kidnapping victim, Elisha Wilkins, was alone in her boyfriend’s
Memphis home when a group of armed men broke in demanding to know where the money was
kept. After ransacking the home, the men took Wilkins’ wallet and car keys, forced her into her
vehicle, and drove her to the residence of her friend, LaTonya Cooper, who was home alone with
her two young daughters. The men forced Wilkins at gunpoint to knock on the door and identify
herself to Cooper, thereby gaining entry into the home. Once inside, the men searched the home,
taking Cooper’s cash, jewelry, vehicle, and other valuables.

         The defendant and four codefendants were subsequently indicted in connection with the
crimes, with the defendant and three of his codefendants charged with the especially aggravated
kidnapping of Wilkins and the aggravated robberies of Wilkins and Cooper and the fourth
codefendant charged with the facilitation of the crimes. On August 14, 2006, the case proceeded
to trial against the defendant and two of his codefendants, Montreal Lyons and Khalfani Marion.
Wilkins testified that on the evening of May 14, 2002, she was napping in the home of her boyfriend,
Chris Winford, whom she had since married.1 Awakened by a knock at the back door, she looked
out the kitchen window and saw a man she did not recognize who asked her if Chris was home. She
answered that he was not and began walking back to the den. Hearing a second knock, she returned
to the door to find that the first man was now accompanied by a second, taller man who was armed
with a gun. Next, seven or eight men broke in the residence demanding to know where the money
was kept. According to Wilkins, at least half of these men were armed with guns. She stated that
she told them she did not live there and did not know anything about any money. However, the men
kept telling her that she should reveal the money’s location because they were going to kill her
anyway.

        The men searched the home, taking Wilkins’ wallet, identification, and the keys to her Isuzu
Rodeo. The back door was open and Lyons instructed one of the men to watch her. At about the
same time, Lyons told her that she was going to die because she had seen his face. She was then
forced outside and into the backseat of her vehicle while four of the men, including the defendant,
got into the vehicle with her. At that point, she noticed that a burgundy van was pulled in behind
her vehicle. Wilkins testified that the men held her at gunpoint while they drove her to the home of
LaTonya Cooper, whom she had met through Winford. At a later point in her testimony, she
explained that Winford and Cooper’s husband were co-owners of a bar and grill. She said that when
she realized where the men were taking her, she began pleading with them for the sake of Cooper’s
children:

         And when I discovered that we was going to La[T]o[ny]a Cooper’s house, . . . I
         started begging and pleading with them telling them that she had two little girls. And
         I told them that they might kill me and her but just don’t hurt the babies. And then



         1
           At the time of trial, the witness’s name was Elisha W inford rather than Elisha W ilkins. W e will, however, refer
to her by the name “W ilkins,” since that was the name by which she was known at the time of the crimes and the name
by which she was referred to throughout the trial.

                                                            -2-
       that’s when they was telling us that they didn’t care about nothing, . . . the babies or
       nothing.

        Wilkins testified that Lyons held a gun to the back of her head as he forced her to knock on
the door and identify herself to Cooper. A second man stood beside her at the door while the rest
of the men hid themselves. Cooper unlocked the door, and the men pushed Wilkins inside as they
and their companions rushed in behind her. The same seven or eight men who had been in
Winford’s home came into Cooper’s home.

        Inside the home, the men initially separated the women, placing Wilkins in the bathroom and
Cooper in a bedroom. As they searched the home, the men repeatedly asked the women where the
money was kept and threatened to kill them. Cooper denied knowledge of any money, and Lyons
said to the other men, “[Y]ou go in there and get one of them kids. I betcha they’ll talk.” At one
point the telephone rang and the men forced Cooper to answer it, at the same time threatening to
shoot her if she said the wrong thing. At another point, the defendant held the women at gunpoint
together in one bedroom. Finally, before leaving, the men forced the women to lie face down
together on the living room floor. Cooper’s husband came home soon thereafter, and Wilkins stayed
in the home until Winford arrived to take her back to his house, where they telephoned the police.

        Wilkins estimated that the men were at Winford’s house for half an hour to an hour and at
Cooper’s house for about the same amount of time. She said the houses were well-lit and she was
within three feet of the men at both locations. On May 16, 2002, a police officer showed her a
photographic spreadsheet from which she positively identified the defendant, Mario Morris, as one
of the perpetrators. On June 8, 2002, she recognized one of the codefendants, Khalfani Marion, at
the Greyhound bus station and immediately contacted a security officer, who called the police. On
September 13, 2002, she positively identified another codefendant, Montreal Lyons, from a
photographic spreadsheet she was shown by the police. Wilkins testified that she particularly
remembered a scar on Lyons’ neck, which was not depicted in the photograph. She made positive
courtroom identifications of each of the three defendants and said that she had also identified each
one at earlier preliminary hearings.

        On cross-examination, Wilkins testified that some of the men were wearing masks but that
the three defendants on trial were not. She acknowledged that both she and Cooper were upset and
frightened and that things were chaotic in the home during the incident. She stated on redirect,
however, that she was certain of her identification of all three defendants.

        LaTonya Cooper testified that she was in bed watching television and her five-and-six-year-
old daughters were asleep in their bedroom when the doorbell rang shortly after 10:30 p.m. on May
14, 2002. She went to the door and asked who was there. When Wilkins identified herself, Cooper
turned the alarm off and opened the door to find not only Wilkins but “a whole bunch of guys with
guns” at her doorstep. Cooper later estimated that there were five or six men present and testified
that she recalled seeing three guns. She said she stepped backwards and raised her hand as the men
came into the house and locked the door behind them. She stated that she asked the men not to wake


                                                 -3-
her daughters, and Marion instructed her to close their bedroom door. When she returned, the men
were moving around the house and asking for money and jewelry.

        Cooper testified that she gave the money in her purse to Marion, who accompanied her to her
bedroom to retrieve it. She said that Lyons, who thought she should have more money, kept
threatening to kill her, her daughters, and Wilkins and suggested that she could produce more money
if he brought her daughters out of their bedroom. In response, she told him that she would not
endanger her children’s lives by withholding any money from him. Marion then took her back into
the bedroom while he rummaged through her dresser. Cooper testified that Wilkins was later
brought into the bedroom with her. She stated that the telephone rang at one point and Lyons made
her answer it, at the same time instructing the defendant to shoot her if she said anything wrong. At
another point, someone knocked on the door and Marion instructed her to answer it, telling the
defendant to “spray her ass” if she tried to run. When she opened the door to find no one there,
Marion told her to close the door.

        Cooper testified that it seemed to her as if the men were in her home “forever.” She said that
before they left, they brought her and Wilkins out of the bedroom and ordered them to lie face down
on the living room floor. Because she believed that she and Wilkins were about to be killed, she
pleaded for the men to take them outside where her children would be unable to see or hear the
murders. Lyons responded that she could either lie down or he would shoot her down. After she had
complied, the men instructed her and Wilkins to start counting and then left through the back door.
A minute or so later, she and Wilkins got up and she telephoned her husband, who came home and
telephoned the police. According to Cooper, the men took her DVD player, money, laptop
computer, jewelry, and vehicle.

        Cooper testified that some of the men wore masks, but the three defendants on trial did not.
The lights were on in the house and the men were as close as two feet at times. She said she
identified the defendant, Marion, and Lyons from photographic spreadsheets she was shown on May
16, 2002, June 8, 2002, and September 21, 2002, respectively. She stated that she was not with
Wilkins when Wilkins recognized Marion at the bus station. She agreed that she positively
identified the defendant and Marion at a July 3, 2002, preliminary hearing and said that she informed
police the night of the incident about Lyons’ large scar on his neck, which was not visible in his
photograph. Cooper made positive courtroom identifications of all three defendants.

        On cross-examination, Cooper acknowledged that things were chaotic during the time of the
robbery. She reiterated that it seemed like the men were in her home for a long time and did not
respond when asked if she would be surprised to learn that Wilkins and Winford had telephoned the
police from Winford’s home at 11:14 p.m.

        Shelby County Sheriff’s Deputy Jason Long, who was dispatched to Cooper’s home early
on the morning of May 15, 2002, testified that he took an initial report about the incident and noted
that the house was in disarray. Memphis Police Officer John Chevalier, who was dispatched to
Winford’s home before midnight on May 14, 2002, and Lieutenant Daniel Parris, the crime scene


                                                 -4-
unit officer who responded to the same address, each testified that the back door to Winford’s home
had been kicked in and that the house appeared to have been ransacked.

       Lieutenant Larry Skaggs of the Memphis Police Department testified that he was working
downtown on the night of June 8, 2002, when a nervous, frightened woman approached him and said
she had just recognized a man at the bus station as someone who had broken into her home and
robbed her. After obtaining a description of the suspect, he went to the bus station, where he arrested
Khalfani Marion. Lieutenant Connie Maness of the Memphis Police Department testified that she
showed Wilkins a photograph of Marion later that same night and asked whether she was sure he
was the man who had committed the home invasion. She said that Wilkins answered in the
affirmative.

        Sergeant Timothy Green of the Memphis Police Department, who was assigned to the
Robbery Division in 2002, testified that he was the lead officer assigned to the case. On May 16,
2002, he showed both victims a six-person photographic spreadsheet from which each victim
positively identified the defendant, Mario Morris. He said that he conducted the identifications at
separate times and neither victim knew which photograph the other had chosen. He stated that
Wilkins chose the defendant’s photograph within five or six seconds of being shown the
photographic array. He could not recall how long Cooper took but said that she also identified the
defendant, circling his photograph and writing that he had not been wearing a mask. He testified that
he showed Cooper another six-person photographic spreadsheet on June 8, 2002, from which she
“pretty quickly,” identified Khalfani Marion by circling his photograph. At separate times, he also
showed each victim a six-person photographic spreadsheet from which each identified Montreal
Lyons. He said that the victims were certain in their identifications and each also mentioned the
large scar on Lyons’ neck, which was not visible in the photograph.

        Sergeant Green testified that he determined through the course of his investigation that all
three defendants currently on trial were living in the same apartment complex at the time of the
robberies. He acknowledged that five of the suspects in the case had provided Lyons’ name as a
person involved in the crimes. He said that another codefendant, not currently on trial, was arrested
the same day as the crimes and provided a narrative to him about the events that had transpired. On
cross-examination, he acknowledged that no fingerprints had been obtained in connection with the
case.

        Each of the three defendants elected not to testify and rested their cases without presenting
any proof. The only witness at the September 14, 2006, sentencing hearing was LaTonya Cooper,
who testified that she had lived in a state of constant fear since the ordeal. She said she had trouble
sleeping, was constantly worried about the safety of her children, and had never again lived in her
home after the crimes. Over the objection of defense counsel, Cooper testified that on the night of
the crimes Wilkins told her that one of the men had put a gun in her mouth while she was standing
on Cooper’s porch, frightening her so much that she had urinated.




                                                 -5-
        The trial court found one enhancement factor applicable to all of the crimes: that the
defendant was a leader in the commission of the offenses. See Tenn. Code Ann. § 40-35-114(2)
(2006). The trial court found the enhancement factor that the defendant treated a victim with
exceptional cruelty applicable to the aggravated robbery conviction involving Cooper, and the
enhancement factor that the defendant had no hesitation in committing a crime when the risk to
human life was high applicable to both robbery convictions. See id. § 40-35-114(5), (10). The trial
court found no applicable mitigating factors. The trial court then sentenced the defendant as a Range
I, standard offender to ten years for each of the aggravated robbery convictions and to twenty years
as a violent offender for the especially aggravated kidnapping conviction. Based on its finding that
the defendant was a dangerous offender, the trial court ordered that each of his sentences be served
consecutively, for an effective forty-year sentence in the Department of Correction.

                                             ANALYSIS

                                   I. Sufficiency of the Evidence

        As his first issue, the defendant challenges the sufficiency of the convicting evidence.
Specifically, he contends that there was insufficient evidence to establish his identity, arguing that
the State’s only evidence linking him to the crimes was the “tearful testimony” of the victims, which
was so inconsistent and full of gaps as to “warrant a finding by this court that each and every element
of each and every charge was not proven beyond a reasonable doubt.” The State argues that the
victims’ eyewitness identifications of the defendant were sufficient to establish his identity as one
of the participants in the crimes. We agree with the State.

         When the sufficiency of the convicting evidence is challenged on appeal, this court must
consider “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the offense charged beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also
Tenn. R. App. P. 13(e) (“Findings 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.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835
S.W.2d 600, 604 (Tenn. Crim. App. 1992). The same standard applies whether the finding of guilt
is predicated upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On
appeal, the State is entitled to the strongest legitimate view of the evidence and all inferences
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury conviction removes the
presumption of innocence with which a defendant is initially cloaked and replaces it with one of
guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is
insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973).

       All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved not by this court, but by the trier of fact. See State v.


                                                  -6-
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court may not reweigh or reevaluate
the evidence. Cabbage, 571 S.W.2d at 855. Our supreme court stated the rationale for this rule:

        This well-settled rule rests on a sound foundation. The trial judge and the jury see
        the witnesses face to face, hear their testimony and observe their demeanor on the
        stand. Thus the trial judge and jury are the primary instrumentality of justice to
        determine the weight and credibility to be given to the testimony of witnesses. In the
        trial forum alone is there human atmosphere and the totality of the evidence cannot
        be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). “A guilty verdict by the jury, approved by the trial judge, accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.”
Grace, 493 S.W.2d at 476.

        In the light most favorable to the State, the evidence was sufficient to establish beyond a
reasonable doubt that the defendant was one of the perpetrators of the crimes. The identity of an
accused may be established by either direct evidence, circumstantial evidence, or a combination of
the two. State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). The determination of identity is
a question of fact for the jury to determine after consideration of all the evidence. State v.
Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). Regarding the identity of an accused, “the
testimony of a victim, by itself, is sufficient to support a conviction.” Id. (citation omitted). Both
victims testified that they viewed the men, including the defendant, at close proximity in well-lit
areas. The defendant’s face was not masked, and each victim was therefore able to get a good look
at his features. Both victims chose the defendant’s photograph out of a six-person photographic
spreadsheet, and both identified him at the preliminary hearing. Finally, both victims positively and
unequivocally identified the defendant at trial as one of the participants in the crimes. “The credible
testimony of one identification witness is sufficient to support a conviction if the witness viewed the
accused under such circumstances as would permit a positive identification to be made.” State v.
Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App. 1999).

        Although the victims’ accounts varied in some instances, particularly with respect to the
number of men involved, they were remarkably similar in other details. Moreover, the credibility
of witnesses, the weight to be afforded their testimony, and the reconciliation of conflicts in the
evidence are matters entrusted to the jury as the trier of fact. State v. Anderson, 880 S.W.2d 720,
726 (Tenn. Crim. App. 1994) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).
It was well within the province of the jury to accredit the testimony of Wilkins and Cooper
identifying the defendant as a perpetrator of the crimes. In sum, we conclude that the evidence was
sufficient to sustain the defendant’s convictions.




                                                  -7-
                                    II. Consecutive Sentencing

        The defendant also contends that the trial court erred by imposing consecutive sentencing.
When an accused challenges the length and manner of service of a sentence, it is the duty of this
court to conduct a de novo review on the record 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). 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). The party challenging the sentence imposed by the trial court has
the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Cmts.; Ashby, 823 S.W.2d at 169. The burden, therefore, falls on the defendant to
show that the consecutive sentencing imposed by the trial court is erroneous.

        The trial court based its imposition of consecutive sentencing on a finding that the defendant
was a dangerous offender. Tennessee Code Annotated section 40-35-115 provides that a trial court
may in its discretion impose consecutive sentencing when it finds any one of a number of different
factors by a preponderance of the evidence, including that the defendant is a dangerous offender
whose behavior exhibits little or no regard for human life and no hesitation about committing a crime
in which the risk to human life is high. Tenn. Code Ann. § 40-35-115(b)(4). When a trial court
bases consecutive sentencing upon its classification of the defendant as a dangerous offender, it is
required to make further findings that the aggregate length of the defendant’s sentence reasonably
relates to the severity of his offenses and is necessary to protect the public from further criminal
conduct of the defendant. State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wilkerson,
905 S.W.2d 933, 937-38 (Tenn. 1995).

        The defendant argues that the trial court erred by failing to make the additional Wilkerson
findings, by finding that he “refused to live a productive life” and “resorted to criminal activity to
further his anti-societal state” and by relying on Cooper’s hearsay account of what had happened to
Wilkins while she was standing on the porch of Cooper’s home. The State argues, among other
things, that the trial court made the appropriate findings under Wilkerson and properly admitted the
challenged portion of Cooper’s testimony under the excited utterance exception to the rule against
hearsay. We agree with the State.

        The record reveals that the trial court recited the applicable statutes and case law, including
the required Wilkerson factors, prior to making the following findings:

                The Court has already found and will reiterate the fact that the Court finds
       that the circumstances surrounding the commission of these offenses was aggravated.
       The Court also finds that the aggregate length of the sentences reasonably relate[s]
       to the offense for which the defendants stand convicted and also the Court finds that
       confinement for an extended period of time is necessary to protect society from the
       defendant’s unwillingness to lead a productive life and the defendant’s resort to
       criminal activity in furtherance of an anti-societal lifestyle.


                                                 -8-
                This Court finds that there is absolutely nothing to indicate that any of these
       three defendants has done anything that indicates anything other than an anti-societal
       lifestyle[;] . . . that they have . . . resorted to this criminal activity in furtherance of
       their lifestyle[;] that this is an aggravated crime, a series of crimes is very aggravated
       as previously outlined by this Court and that the length of sentence imposed does in
       fact relate to the serious nature of this offense.

               The Court feels that each of these three individuals is a very dangerous
       offender to our society, a dangerous offender within our community. The very nature
       of these crimes, the very manner in which they were carried out wreaked terror and
       havoc within our community.

        Contrary to the defendant’s suggestion, although the trial court referred to the three
defendants’ anti-societal lifestyle, it neither explicitly nor implicitly found that the defendant
qualified as a professional criminal under the consecutive sentencing statute. To the contrary, the
trial court specifically noted in its application of enhancement factors that the defendant’s prior
criminal history consisted of a single conviction for driving with a revoked license. Instead, the trial
court focused on the aggravated nature and circumstances of the crimes in finding that the defendant
was a dangerous offender. Based on our review of the record, we cannot conclude that the evidence
preponderates against this finding. The defendant and his codefendants terrorized Cooper and
Wilkins by invading their respective homes, holding them at gunpoint, kidnapping Wilkins, and
threatening to kill not only the women but also Cooper’s two young children.

         We also find no error in the trial court’s allowance of Cooper’s challenged testimony. The
prosecutor explained to the trial court that she had contacted Wilkins, who had informed her that she
was in the process of attempting to get to the hearing from her job in Mississippi. The prosecutor
said, however, that she did not believe that Wilkins would reach the hearing on time and argued that
the statement was admissible as an excited utterance. The trial court allowed the proposed
testimony, stating that it would not consider it if it found that it consisted of something that was
inappropriate. It is well-settled in Tennessee that a trial court has the authority to admit trustworthy
and probative evidence, including hearsay, for sentencing purposes. See State v. Flynn, 675 S.W.2d
494, 498 (Tenn. Crim. App. 1984); Tenn. Code Ann. § 40-35-209(b). We conclude, therefore, that
the trial court properly admitted the statement as an excited utterance.

        We note that the trial court apparently sentenced the defendant, who committed the crimes
in 2002, under the 2005 amendments to the 1989 Sentencing Act. A defendant who is sentenced
after June 7, 2005, for a crime committed on or after June 1, 1982, may elect to be sentenced under
the 2005 amendments by executing a waiver of his ex post facto protections. See Tenn. Code Ann.
§ 40-35-210(c), Compiler’s Notes. The record in this case, however, contains no waiver of the
defendant’s ex post facto protections. We must, therefore, remand to the trial court for resentencing.
On remand, the trial court should either appropriately resentence the defendant under the old law or
ensure that the defendant executes a waiver of his ex post facto protections in order to be sentenced
under the 2005 amendments to the Sentencing Act.


                                                   -9-
                                         CONCLUSION

         We conclude that the evidence was sufficient to sustain the defendant’s convictions and that
the trial court did not err in its imposition of consecutive sentencing. Accordingly, we affirm the
judgments of conviction and the imposition of consecutive sentencing. However, because the
defendant was improperly sentenced under the 2005 amendments to the Sentencing Act, we remand
to the trial court for appropriate resentencing in accordance with this opinion.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




                                                -10-
