         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 13, 2004

                  STATE OF TENNESSEE v. RODERICK DAVIS

                     Appeal from the Criminal Court for Shelby County
                         Nos. 99-08211, 12    J. C. McLin, Judge



                  No. W2002-02338-CCA-R3-CD - Filed December 13, 2004


The defendant, Roderick Davis, was convicted by a Shelby County Criminal Court jury of especially
aggravated robbery, for which he received a sentence of 24 years, and especially aggravated burglary,
for which he received a sentence of eleven years. The trial court imposed the sentences to run
consecutively. On appeal, the defendant claims that the convicting evidence is insufficient and that
the trial court erroneously excluded alibi evidence, instructed the jury, and sentenced him. Upon
review, we affirm the conviction of especially aggravated robbery, reverse the conviction of
especially aggravated burglary and modify it to aggravated burglary, and modify the sentences.

        Tenn. R. App. P. 3; Judgments of the Criminal Court are Affirmed in Part;
                             Reversed in Part; and Modified.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE,
J., joined. DAVID G. HAYES, J., filed a dissenting opinion.

Larry Fitzgerald, Memphis, Tennessee (at trial), Robert Little and James Thomas, Memphis,
Tennessee (at trial); and Michael Scholl, Memphis, Tennessee (on appeal), for the Appellee,
Roderick Davis.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Patience Branham and Ray Lepone, Assistant District
Attorneys General, for the Appellee, State of Tennessee.

                                            OPINION

                 The victim, Lekisa Stevens, ended a five-month romantic relationship with the
defendant in October 1998. She testified that the defendant threatened “he would have somebody
to cut [her] face up and cut [her] up.” At 6:00 on the morning of November 21, 1998, the defendant
called and asked whether she was alone. After hanging up, the victim, who had worked the previous
night, went to bed.
               She was awakened later by a loud noise and saw two men dressed in black in her
apartment. The men began hitting and kicking the victim. Although the intruders wore masks, the
victim recognized the voice of the defendant when he told her, “Bitch, I told you I don’t play no
games.” He took a box cutter from the other intruder. As she was repeatedly struck by both men,
the victim did not realize she was being cut. One of the men cut off her hair with the box cutter.
During the affray, the defendant said to the other man, “Dee man, cut the bitch throat.” Dee, who
the victim knew to be Desmond Frazier, a friend and the co-defendant of the defendant, refused to
cut the victim’s throat.

               The defendant then asked, “Where the m ----- f ------g money at?” The victim had
earned approximately $600 dancing at the Pure Passion Club the two previous evenings, and she
pointed to the mattress where she had hidden the cash. The defendant took $575, and Frazier left
the apartment. As the defendant left, he threatened to kill the victim if she said anything.

                The victim testified that she was barely conscious. She was unable to use the
telephone to summon help because the men had cut the phone line. She collapsed after crawling out
of her apartment. She awoke in the ambulance that took her to the hospital, where she received over
400 stitches to her arm, legs, neck, back, and head.

               On cross-examination, the victim denied that she had been upset because the
defendant had other girlfriends. She also denied seeing him with one of them on the morning of
November 21, 1998, before she went home, or previously threatening to seek revenge against him
for dating other women. She testified that she broke up with the defendant because she refused to
“deal with a disrespectful man.”

                Corshundor Warren, the victim’s next-door neighbor, testified that about 7:30 on the
morning of November 21, 1998, he found the victim crawling outside her apartment. She was clad
in a brassiere and panties and was covered in blood. She asked him to call her mother and did not
mention the defendant or the other intruder. Prior to finding the victim, Mr. Warren had neither
heard any loud noises nor seen anyone leaving the apartment.

               The Memphis police officer who first arrived at the victim’s apartment testified that
her door and lock had been damaged. The victim had been cut, was bleeding, and was obviously
upset and distraught. She said that her boyfriend and his friend had broken into her apartment and
“jumped on” her. The officer found splatters of blood inside the apartment.

              A second investigating officer testified that she found a foot print on the damaged
apartment door. She introduced into evidence photographs she had taken which showed significant
blood smears in the bedroom.

               A third officer testified that, shortly after the attack, the victim was able to identify
both the defendant and Mr. Frazier as the intruders from a photographic array.



                                                  -2-
                Called by the defense, Kesha Morris testified that the victim had told Morris that she
knew that the defendant had not assaulted her, but that the victim stated “vengeance is [mine].”
Manika Phifer testified that she was present with Ms. Morris when the victim said, “I know Rod
didn’t do it, but he had somebody to do it and vengeance is mine.”

                The defendant testified that he and the victim broke up because they constantly argued
about a woman named Shay. He testified that the victim called him on the morning of November
21, 1998, when he was at the Waffle House with Shay. He hung up on her, and she paged him. He
called her back and told her they would talk another time. Otherwise, he denied calling the victim,
assaulting her, or taking money from her.

               Shevica Hardin testified that, about a month before the attack on the victim, the
victim called her to express her anger over Hardin dating the defendant.

              Based upon the foregoing evidence, the jury convicted the defendant of especially
aggravated robbery and especially aggravated burglary.1

               The trial court conducted a sentencing hearing and determined the defendant to be
a standard offender. The trial court imposed consecutive sentences of 24 years for the especially
aggravated robbery and eleven years for the especially aggravated burglary.

                                      I. Sufficiency of the Evidence.

                First we address the defendant’s challenge to the sufficiency of the evidence. He
claims that, relative to the especially aggravated robbery, the state failed to prove that the defendant
intended to deprive the victim of her property prior to assaulting her, and relative to the especially
aggravated burglary, the state failed to prove that the victim sustained serious bodily injury as an
element of the offense. He also claims that the serious bodily injury element precludes a conviction
of especially aggravated burglary. Essentially, then, the defendant posits that the convictions should
be respectively reduced to aggravated robbery and aggravated burglary.

                 Our standard of review when the sufficiency of the evidence is questioned on appeal
is “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 crime beyond a reasonable doubt.” See
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This
means that we do not re-weigh the evidence but presume that the fact finder has resolved all conflicts
in the testimony and drawn all reasonable inferences from the evidence in favor of the state. See
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). Because a verdict of guilt against a defendant removes the presumption of innocence and
raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the


        1
           The jury also convicted the defendant on counts of assault and aggravated assault growing out of the same
incident, but the trial court merged the latter convictions into the conviction for especially aggravated robbery.

                                                        -3-
evidence was legally insufficient to sustain a guilty verdict. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).

                                (a) Especially Aggravated Robbery.

                We agree with the state that it was unnecessary for the state to prove, as the defendant
claims in his brief, “that [he] formed an intent to deprive the victim of her property prior to the
alleged assault.” Indeed, this court has previously held that “the intent to steal need not exist prior
to or concurrently with the [infliction of serious bodily injury] in a case in which the defendant is
charged with especially aggravated robbery.” State v. Wade P. Tucker, No. M2001-
02298-CCA-R3-CD, slip op. at 7-8 (Tenn. Crim. App., Nashville, Jul. 17, 2002), perm. app. denied
(Tenn. 2002). The holding in Wade P. Tucker disposes of the defendant’s claim that the evidence
insufficiently supports especially aggravated robbery.

                               (b) Especially Aggravated Burglary.

                  Next, we address the claim that the evidence does not support a verdict of especially
aggravated burglary in the absence of proof of serious bodily injury. A person commits especially
aggravated burglary who, without the effective consent of the property owner, enters a building and
commits or attempts to commit a felony, theft, or assault, and the victim suffers serious bodily injury.
See Tenn. Code Ann. § 39-14-404(a) (2003). Significantly, for purposes of the present case, “[a]cts
which constitute an offense under [section 39-14-404] may be prosecuted under [section 39-14-404]
or any other applicable section, but not both.” Id. § 39-14-404(d) (2003). “‘Bodily injury’ includes
a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of
the function of a bodily member, organ, or mental faculty . . . .” Id. § 39-11-106(a)(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 . . . .” Id. § 39-11-106(a)(34) (2003).

                                                  (1)

                 The prong of the serious bodily injury definition targeted by the parties in the present
case is that of extreme physical pain. We acknowledge, as the defendant argues, that bruises, knots
on the head, bites, slight burns, and lacerations do not implicate the degree of extreme physical pain
that would support a finding of serious bodily injury. See, e.g., State v. Barnes, 954 S.W.2d 760, 765
(Tenn. Crim. App. 1997). We believe that, in the present case, however, the victim’s injuries
resulted in serious bodily injury via extreme physical pain. The victim testified that one of the
intruders “hit her in [her] face real, real hard.” At first when she was being hit, she did not know she
was being cut. The cuts to her arm, legs, head, neck, and back required over 400 stitches to close.
She testified that some of them were so deep that they required suturing from both the inside and
outside. She faded into unconsciousness and collapsed after crawling out of her apartment. She



                                                  -4-
stayed in the hospital a day and a half. The photographs depicted long cuts with wide closure lines.
We hold that the evidence supports a finding of serious bodily injury via extreme physical pain.

                 That said, we also believe that the evidence warranted a finding of serious bodily
injury via “[p]rotracted or obvious disfigurement.” See Tenn. Code Ann. § 39-11-106(a)(34)(D)
(2003). The photographs show prominent cuts, especially on the victim’s leg. To be sure, the state
offered no medical testimony that the cuts would result in permanent scarring or disfigurement, but
the definition does not require that. It requires only protracted or obvious disfigurement. The
disfigurement apparent in the photographs was not only obvious but provided a basis for the jury
inferring that it would be protracted. We hold that the evidence satisfied the statutory element of
especially aggravated burglary that the victim suffered serious bodily injury.

                                                 (2)

                We turn now to the defendant’s claim that the conviction of especially aggravated
burglary was barred by the prohibition in Code section 39-14-404(d) that acts constituting especially
aggravated burglary may be prosecuted as such or pursuant to “any other applicable section, but not
both.” See id. § 39-14-404(d) (2003). Although we believe the defendant miscasts this issue as one
of sufficiency of the evidence, we discern that, with his section 39-14-404(d)-based argument, he
nevertheless gains traction on appeal.

                The terms of section 39-14-404(d) preclude convictions for both the especially
aggravated robbery committed after entering the victim’s apartment, one of the elements being
serious bodily injury to the victim, and the especially aggravated burglary. See State v. James Ruben
Conyers, No. M2002-01007-CCA-R3-CD, slip op. at 8 (Tenn. Crim. App., Nashville, Sept. 5, 2003)
(“In the instant case, the appellant was convicted of both especially aggravated burglary and
especially aggravated robbery based, in part, upon the serious bodily injury suffered by [the victim].
Because section 39-14-404(d) prohibits the conviction for especially aggravated burglary, we
recognize this as plain error and modify the appellant’s conviction for especially aggravated burglary
to aggravated burglary.”), perm. app. denied (Tenn. 2004). As in James Ruben Conyers, we modify
the defendant’s especially aggravated burglary conviction to aggravated burglary. See Tenn. Code
Ann. §39-14-403(a) (2003) (proscribing burglary of a habitation as aggravated burglary).

                                 II. Exclusion of Alibi Evidence.

               In the defendant’s next issue, he asserts that the trial court erred in prohibiting him
from calling an alibi witness. Tennessee Rule of Criminal Procedure 12.1 provides in pertinent part:

                      (a) Notice by Defendant. Upon written demand of the district
               attorney general stating the time, date, and place at which the alleged
               offense was committed, the defendant shall serve within ten days, or
               at such different time as the court may direct, upon the district
               attorney general a written notice of an intention to offer a defense of


                                                 -5-
                  alibi. Such notice by the defendant shall state the specific place or
                  places at which the defendant claims to have been at the time of the
                  alleged offense and the names and addresses of the witnesses upon
                  whom the defendant intends to rely to establish such alibi.

                          (b) Disclosure of Information and Witness. Within ten days
                  thereafter, but in no event less than ten days before trial, unless the
                  court otherwise directs, the district attorney general shall serve upon
                  the defendant or the defendant’s attorney a written notice stating the
                  names and addresses of the witnesses upon whom the state intends to
                  rely to establish the defendant’s presence at the scene of the alleged
                  offense and any other witnesses to be relied on to rebut testimony of
                  any of the defendant’s alibi witnesses.

                            ....

                          (d) Failure to Comply. Upon the failure of either party to
                  comply with the requirements of this rule, the court may exclude the
                  testimony of any undisclosed witness offered by such party as to the
                  defendant’s absence from or presence at, the scene of the alleged
                  offense. This rule shall not limit the right of the defendant to testify
                  in his or her own behalf.

                         (e) Exceptions. For good cause shown, the court may grant an
                  exception to any of the requirements of this rule.

Tenn. R. Crim. P. 12.1.

                 In the present case, the record on appeal contains no demand for notice of an alibi
defense. Nevertheless, in March 2001, the defendant filed a “Notice of Alibi Witness,” but the
notice failed to “state the specific place or places at which the defendant claims to have been at the
time of the alleged offense and the names and addresses of the witnesses upon whom the defendant
intends to rely to establish such alibi.” Id. The trial commenced on February 20, 2002. During the
trial, counsel for the co-defendant, Mr. Frazier, apparently told the prosecutor that he planned to call
Frazier’s mother to testify that Frazier was with her at the time of the offense. So prompted, the
prosecutor moved to exclude the proposed testimony after the state presented its case-in-chief. The
prosecutor adverted to the state’s “motion for notice of alibi defense” and told the court that the
motion was filed on August 2, 2000. The co-defendant’s counsel acknowledged that the motion, or
demand, was filed.2 The co-defendant Frazier’s counsel argued that the failure to disclose the


         2
          The transcript of the colloquy among the prosecutor, defense counsel, and the trial judge reveals that the judge
examined the state’s written demand and commented that it was filed on August 2, 2000. Despite the absence of a written
                                                                                                            (continued...)

                                                           -6-
specifics of an alibi defense was not willful and that he had learned of the alibi witness just before
trial. Counsel for the defendant, Roderick Davis, did not participate in the colloquy. The trial court
acknowledged that “both defendants may testify as to their whereabouts” but granted the state’s
motion to exclude the alibi witness.

                In our view, the defendant has established no claim on appeal that an alibi witness
was erroneously excluded. In the first place, no one claimed that the putative witness had any
knowledge of the defendant’s whereabouts at the time of the offense; therefore, it can hardly be
claimed that the defendant tried to present a defense of his alibi.

                Furthermore, even if it could be argued that Frazier’s role in the offense was so
closely linked to that of the defendant that Frazier’s alibi was critical to Davis’ defense, neither
defendant filed a notice that complied with Rule 12.1(a). In this event, the trial court had discretion
to exclude the proposed witness. See Tenn. R. Crim. P. 12.1(d); see also State v. Joy A. Stinson, No.
E1999-02082-CCA-R3-CD, slip op. at 6 (Tenn. Crim. App., Knoxville, Sept. 29, 2000) (decision
to exclude witness pursuant to Rule 12.1 lies in discretion of trial court and on appeal is reviewable
for abuse of discretion), perm. app. denied (Tenn. 2001). Even if defendant Davis has “standing”
to raise the exclusion issue, the record evinces no abuse of discretion.

                 Finally, again assuming arguendo that defendant Davis may otherwise lay a claim
now to an alibi defense, the claim would be waived. The defendant failed to make any proffer of the
excluded evidence. See Tenn. R. Evid. 103(a)(2). Furthermore, after the trial judge heard arguments
from the prosecutor and Frazier’s counsel, he asked the defendant’s counsel if he had any comment,
and counsel declined to argue, object, or comment. Under the circumstances, the defendant failed
to avail the trial court the opportunity to rule upon the alibi claim now being presented on appeal,
and as such, he has waived the claim for this reason as well. See Tenn. R. App. P. 36(a) (“[R]elief
may not be granted in contravention of the province of the trier of fact.”).

                For the foregoing reasons, we hold that the defendant has failed to demonstrate on
appeal that the trial court erred in excluding a proposed alibi witness.

                                             III. Jury Instrucions.

                 In his next issue, the defendant claims that the trial court erred in referring to the
defendants jointly, as opposed to individually, in the jury instructions. For instance, he points to the
trial court’s instructional statement that “[i]f you [the jury] do find the defendants guilty, you may
convict them on only one of the above named offenses . . . .” (Emphasis added.)




         2
          (...continued)
demand in the appellate record, we conclude that the record as a whole, including defense counsel’s concession, supports
the existence of a statutorily compliant demand.

                                                          -7-
                We agree that a defendant in a criminal case has a right to a correct and complete
charge of the law applicable to the facts of the case. State v. Teel, 793 S.W.2d 236, 249 (Tenn.
1990). In the present case, however, the defendant does not claim that the instructions were
inaccurate or incomplete; he essentially posits that they were misleading or confusing. Against that
claim, we notice that the trial judge gave the following instructions to the jury:

                You should give separate consideration to each defendant. Each is
                entitled to have his case decided on the evidence and the law which
                [are] applicable to that particular defendant. You should not consider
                any evidence, which was limited to a particular defendant, as to any
                other defendant. You can acquit both or convict both, or you can
                acquit one and convict the other. If you cannot agree upon a verdict
                as to both the defendants, but do agree upon a verdict as to one of
                them, you must render a verdict as to the one upon [whom] you agree.

The jury is presumed to have heeded this instruction. See State v. Hall, 976 S.W.2d 121, 148 (Tenn.
1998). Even if the trial court erred in referring to the defendants jointly in various portions of the
instructions, we cannot fathom how the error had any prejudicial effect on the result at trial. See
Tenn. R. App. P. 36(b).

                                       IV. Cumulative Error.

                Before addressing the defendant’s final issue of sentencing error, we acknowledge
his claim that cumulative trial error compels the reversal of his convictions. We did discern error
in the imposition of a conviction of especially aggravated burglary, and above we articulated the
proper response to such error - - that of reducing the conviction to one of aggravated burglary. Even
if we were inclined to characterize the trial court’s use of joint references to both men on trial in its
jury instructions as error, we deemed the error in and of itself to be harmless beyond a reasonable
doubt, and we found no other error present in the proceedings. Thus, there are no errors to be
deemed cumulative.

                                           V. Sentencing.

                As to sentencing, the defendant disputes the application of enhancement factors that
he had a previous history of criminal convictions or behavior, that the victim’s injuries were
particularly great, and that he had a previous history of unwillingness to comply with the conditions
of a sentence involving release into the community. Additionally, the defendant claims that the order
of consecutive sentencing is infirm. The state agrees that the trial court should not have enhanced
the sentences based upon the magnitude of the victim’s injuries, that being implicit in the element
of serious bodily injury.

                When there is a challenge to the length, range, or manner of service of a sentence, it
is the duty of this court to conduct a de novo review of the record with a presumption that the

                                                  -8-
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). 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); see State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). “The burden of
showing that the sentence is improper is upon the appellant.” Ashby, 823 S.W.2d at 169. In the
event the record fails to demonstrate the required consideration by the trial court, review of the
sentence is purely de novo. Id. If appellate review, however, reflects that the trial court properly
considered all relevant factors and its findings of fact are adequately supported by the record, this
court must affirm the sentence, “even if we would have preferred a different result.” State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                The mechanics of arriving at an appropriate sentence are spelled out in the Criminal
Sentencing Reform Act of 1989. At the conclusion of the sentencing hearing, the trial court
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) (2003); 40-35-103(5) (2003);
State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

              In the present case, the trial judge made appropriate reference to the principles of
sentencing and expressed specific findings of fact. We, therefore, accord to his judgment the
presumption of correctness.

                                       (a) Length of Sentence.

                 The court applied enhancement factors (2) the defendant has a previous history of
criminal convictions or criminal behavior in addition to that necessary to establish the range, (3) he
was a leader in committing an offense involving two or more offenders, (7) the personal injuries
inflicted upon the victim were particularly great, (9) the defendant has a previous history of
unwillingness to comply with the conditions of a sentence involving release in the community, (14)
the felonies were committed while the defendant was on bail for another felony, and (21) the
defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would
constitute a felony if committed by an adult. See Tenn. Code Ann. § 40-35-114(2), (3), (7), (9), (14),
(21) (2003). The trial court applied as a mitigating factor that, at the sentencing hearing, the
defendant expressed remorse. See id. § 40-35-113(13) (2003).

                As to factor (2), previous criminal history or behavior, the record on appeal shows
that, as an adult, the defendant’s prior convictions consisted only of disregarding a stop sign and
violating the driver’s license law. As such, his record as an adult was scant and deserving of very
slight weight. On the other hand, the trial court also utilized factor (21), that the defendant, when

                                                  -9-
a juvenile, was adjudicated to have committed a delinquent act that would constitute a felony if
committed by an adult. See id. § 40-35-114(21) (2003). As a juvenile, the defendant had been
adjudicated guilty of theft of property valued in excess of $500. Thus, the utility of factor (21) in
the defendant’s case supplies some weight to the issue of prior offending conduct that factor (2)
alone would not justify. In summary, the trial court had a basis for applying both factors. Slight
weight should have been accorded to factor (2) and moderate weight to factor (21).

                 We agree with the parties that the trial court should not have applied factor (7), that
the victim’s injuries were particularly great. The court may not enhance a sentence via a factor that
is itself an essential element of the offense as charged in the indictment. Id. § 40-35-114 (2003).
Tennessee’s statutory conditions of serious bodily injury satisfy the definition of a particularly great
injury. State v. Jones, 883 S.W.2d 597, 602 (Tenn. 1994). The trial court should not have applied
this factor.

                The defendant claims that the trial court should not have enhanced the sentences
based upon factor (9), that the defendant had a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community. He correctly points out that this factor
is not applicable on the basis of the defendant committing the offense for which he is being
sentenced while on release status from another offense. See, e.g., State v. James M. Coggins, Jr.,
No. 01C01-9310-CR-00360, slip op. at 15 n.4 (Tenn. Crim. App., Nashville, Jul. 28, 1994).
However, the record shows that on at least two previous occasions, the defendant’s juvenile
probation was revoked. See State v. Jackson, 60 S.W.3d 738, 740 (Tenn. 2001) (juvenile probation
violations may serve as history of unwillingness to comply with conditions for release into the
community). We hold that this fact supports the use of factor (9).

                 Even though enhancement factor (7) should not have been applied, we acknowledge
that the trial judge ascribed little weight to that factor. All in all, the trial court’s methodical
approach to sentencing the defendant bespeaks a considered weighing of enhancement factors and
a mitigating factor, and despite the misapplication of one enhancement factor, we would be loath to
interfere with the trial court’s determination were it not for the impact of Blakely v. Washington, 542
U.S. ___, 124 S. Ct. 2531 (2004).

                 In Blakely, the United States Supreme Court held that Blakely’s constitutional rights
to a jury trial were violated when the trial judge, based upon facts he found without the aid of a jury,
imposed a sentence in excess of the “maximum” he could have otherwise imposed under state law
“without the challenged factual finding.” Id. at ___, 124 S. Ct. at 2536-38. The “maximum”
sentence for purposes of Blakely “is the maximum sentence a judge may impose solely on the basis
of the facts reflected in the jury verdict or admitted by the defendant.” Id. at ___, 124 S. Ct. at 2537
(emphasis in original). The statutory maximum the court may impose is the maximum “he may
impose without any additional finding.” Id., 124 S. Ct. at 2537 (emphasis in original). “When a
judge inflicts punishment that the jury’s verdict [or guilty plea] alone does not allow, [a] jury has not
found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his
proper authority.” Id., 124 S. Ct. at 2537 (citation omitted).

                                                  -10-
                The single exception to the this rule is that state law may authorize a trial judge to
increase a sentence beyond the minimum based upon “the fact of a prior conviction.” Id. at ___, 124
S. Ct. at 2536; see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362 (2000).

                Apparently, Blakely signals certain infirmities in Tennessee’s sentencing scheme.
One such infirmity is the procedure for determining the length of the defendant’s sentence.
Tennessee Code Annotated section 40-35-210(c) establishes presumptive sentences. See Tenn.
Code Ann. § 40-35-210(c) (2003). When there are no enhancement or mitigating factors, the
presumptive sentence for a Class A felony shall be the midpoint of the range, and the presumptive
sentence for a Class B, C, D and E felony shall be the minimum sentence in the range. Id. The trial
court may impose a sentence in excess of the presumptive sentence only when it finds the existence
of one or more enhancement factors enumerated in Code section 40-35-114. Id. § 40-35-210(d), (e)
(2003). Thus, the court may not increase the sentence above the presumptive or “maximum” without
additional findings of fact.

                In the present case, the trial court increased the sentence for especially aggravated
robbery, a Class A felony, see Tenn. Code Ann. § 39-13-304(b) (2003), from the presumptive
sentence of 20 years to a sentence of 24 years, and it increased the sentence for especially aggravated
burglary, id. § 39-14-404(c) (2003), from the presumptive sentence of eight years to a sentence of
eleven years, see id. § 40-35-112(a)(1), (2) (2003) (establishing sentencing ranges for Class A and
Class B felonies, respectively). In so doing, it relied upon factual findings in addition to a record of
prior convictions or adjudications to enhance the defendant’s sentences. Pursuant to Apprendi and
Blakely, this was error. We impose a sentence of 20 years for especially aggravated robbery and the
presumptive sentence of three years for the conviction herein modified to aggravated burglary. See
id. §§ 39-14-403(b) (2003) (establishing aggravated burglary as a Class C offense), 40-35-112(a)(2)
(2003) (establishing Range I, Class C offense range of three to six years).

                                    (b) Consecutive Sentencing.

                 After imposing sentences of 24 years and eleven years, the trial court ordered that they
be served consecutively, based upon its finding that the defendant was 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. See id. § 40-35-113(a)(4) (2003). The defendant now argues
that the trial court made insufficient findings to support consecutive sentencing.

                 Tennessee Code Annotated section 40-35-115 establishes criteria for ordering
consecutive, instead of concurrent, sentencing. Tenn. Code Ann. § 40-35-115(a) (2003). One
statutory basis upon which consecutive sentencing may be imposed -- the one utilized by the trial
court in the present case - - is 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.” Id. § 40-35-115(b)(4) (2003). To support consecutive sentencing of a
“dangerous” offender, the evidence must demonstrate that the “terms imposed are reasonably related
to the severity of the offenses committed and are necessary in order to protect the public from further

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criminal acts by the offender.” State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), limited by
State v. Lane, 3 S.W.3d 456 (Tenn. 1999). Essentially, the defendant claims that the trial judge
failed to support his dangerous-offender finding when he neglected to make the Wilkerson findings.

               We disagree. The brutality and savagery of the attack upon the victim bespeak the
level of dangerous offending that is the target of Code section 40-35-115(b)(4) and Wilkerson. The
record supports the trial court’s use of the factor to impose consecutive sentences.

                That said, we must now determine whether Blakely affects Tennessee’s procedure for
imposing consecutive sentences. As noted above, Blakely speaks in terms of the right to jury trial
being implicated when the government inflicts punishment, a general concept that is broader than
the specific activity of determining the length of a sentence. Indeed, the High Court said, “[E]very
defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the
punishment.” Blakely, 542 U.S. at ___, 124 S. Ct. at 2543 (first emphasis in original; second
emphasis added). Clearly, an effective sentence of 35 years is more severe punishment than is an
effective sentence of 24 years. Thus, we consider whether the determination to arrange sentences
consecutively is a function of punishment that Blakely addresses.

                 In Tennessee’s procedure, concurrent sentencing is the baseline or presumptive
arrangement of multiple sentences: “Sentences shall be ordered to run concurrently, if the criteria
noted in [section 40-35-115](b) are not met, unless consecutive sentences are specifically required
by statute or the Tennessee Rules of Criminal Procedure.” Tenn. Code Ann. § 40-35-115(d) (2003);
see also Tenn. R. Crim. P. 32(c)(1) (“Unless it is made to affirmatively appear that the sentences are
consecutive, they shall be deemed to be concurrent.”). Thus, as in the case of the enhancement of
the length of individual sentences, the trial judge must make a finding of one or more of the factual
criteria enumerated in Code section 40-35-115 as a basis for ordering the consecutive service of
multiple sentences.

                Having thus discerned a potential conflict between Blakely and Tennessee’s scheme
for imposing consecutive sentences and having solicited the parties’ supplemental briefs on the issue,
we nevertheless believe that Apprendi and Blakely establish that the right to jury trial as embodied
in the Sixth Amendment applies merely to the findings necessary to establish a defendant’s guilt of
a specific offense. For instance, the High Court adopted for purposes of state application the
language of Jones v. United States, 526 U.S. 227, 243, 119 S. Ct. 1215 (1999), a federal prosecution:
“[U]nder the Due Process Clause of the Fifth Amendment and the . . . jury trial guarantees of the
Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a
crime must be . . . submitted to a jury . . . .” Apprendi, 530 U.S. at 476, 120 S. Ct. at 2355 (emphasis
added). Additionally, the Court said, “Taken together, [the due process and jury trial rights]
indisputably entitle a criminal defendant to ‘a jury determination that [he] is guilty of every element
of the crime with which he is charged, beyond a reasonable doubt.’” Id. at 477, 120 S. Ct. at 2355-56
(emphasis added); see People v. Sykes, 120 Cal. App. 4th 1331, 16 Cal. Rptr. 3d 317, 327 (Cal. App.
2 Dist. 2004). We believe these references to the findings necessary to establish the required
elements for individual offenses, including factors for extraordinary sentencing, articulate that the

                                                 -12-
due process and jury trial guarantees have no application to a judge’s consecutive sentencing
determination. As such, we believe these references reflect a time-honored view that, once
convictions and the lengths of individual sentences are properly determined, the judge is the arbiter
of whether the sentences shall run concurrently or consecutively.

               Accordingly, we hold that the Apprendi-Blakely rule does not apply to the trial court’s
imposition of consecutive sentences.

                                     VI. Conclusion.

               We affirm the defendant’s conviction of especially aggravated robbery but modify
his especially aggravated burglary conviction to one of aggravated burglary. We modify the
sentences to 20 years and three years, respectively, and affirm the imposition of consecutive
sentences. The end result is an effective sentence of 23 years.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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