        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 9, 2013

              STATE OF TENNESSEE V. HERMAN MCKINLEY

              Direct Appeal from the Criminal Court for Shelby County
                        No. 11-04050    Lee v. Coffee, Judge


                No. W2012-00050-CCA-R3-CD - Filed June 20, 2013


The defendant, Herman McKinley, was found guilty by a Shelby County jury of second
degree murder, attempted first degree murder, two counts of aggravated assault with a deadly
weapon, employing a firearm during the commission of a dangerous felony, and unlawful
possession of a handgun as a convicted felony. Following a sentencing hearing, he was
sentenced to an effective term of one hundred thirty-one years in the Department of
Correction. On appeal, he challenges the sufficiency of the convicting evidence and the
imposition of consecutive sentencing. Following review of the record, we affirm the
convictions and sentences as imposed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and J EFFREY S. B IVINS, JJ., joined.

Stephen C. Bush, District Public Defender; Tony N. Brayton (on appeal) and Jim Hale (at
trial), Assistant Public Defenders, for the appellant, Herman McKinley.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Eric Christenson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                     Procedural History and Factual Background

       The defendant’s multiple convictions in this case arose from two separate, although
related, shootings which occurred on September 23, 2009, at the Claiborne Holmes
Apartments in Memphis. Multiple witnesses testified about the two shootings, and certain
discrepancies were noted in the various testimony. However, the general testimony offered,
with the exception of the defendant’s, established that the defendant approached Laquita
Turner and Jimmie Williams outside Ms. Turner’s apartment and began an argument because
his girlfriend refused to exit the apartment. After leaving the scene, the defendant returned
with a gun and fired one bullet between Ms. Turner and Mr. Williams, although neither party
was wounded. The defendant then left the area again, and police were called to the scene to
investigate. After the police left the scene, the defendant returned and was heard threatening
Mr. Williams. He approached the area where Mr. Williams was assisting a neighbor with
his automobile and began firing the gun. In the fray, seventeen-year-old Toby Gladney was
shot and later died as a result of a gunshot wound to the back.

        At the defendant’s trial, Laquita Turner testified that she lived with her mother in the
Claiborne Holmes Apartments where the incident occurred. She testified that she first saw
the defendant on the evening of September 23, 2009, when he was peeking through her
mother’s apartment windows looking for his girlfriend, who was inside. When Ms. Turner
told him to stop, he told her to tell Tracy, his girlfriend, to come outside. Tracy did not come
out of the apartment, and the defendant left. Shortly thereafter, Ms. Turner was on the porch
talking with Mr. Williams when the defendant returned. Ms. Turner told him that Tracy had
gone, but the defendant accused Mr. Williams of “messing with” Tracy. Mr. Williams
explained to the defendant that he was there speaking with Ms. Turner, not Tracy. The
defendant walked away only to return five to ten minutes later. This time the defendant was
brandishing a gun, which he fired once at Ms. Turner and Mr. Williams. Ms. Turner, who
was four months pregnant at the time, testified that she saw fire and felt the heat as the bullet
passed her. According to Ms. Turner, she heard the bullet pass her and hit the brick wall
behind her. After firing the shot, the defendant again walked away. Police were called to
the scene.

        Ms. Turner testified that they never threatened the defendant and that neither she nor
Mr. Williams were armed. Officer Timothy Williams responded to the scene and spoke with
both Ms. Turner and Mr. Williams, who each identified the defendant as the shooter. Officer
Williams was on the scene approximately thirty minutes investigating. He was unable to
recover any shell casings. Mr. Williams told Officer Williams that the defendant was
employed at a nearby McDonald’s, and the officer left the apartment complex to go there.
Shortly after arriving at McDonald’s, the officer received a second call regarding shots fired
at the Claiborne Holmes Apartments and returned to the scene.

        During the interim after Officer Williams left the apartments, Ms. Turner and her
mother were sitting on their porch outside the apartment. They observed Mr. Williams across
the walk where he appeared to be working on an automobile. Several other individuals were
also in the area. The two women then observed the defendant reappear from the direction

                                               -2-
from which he had left previously. As the defendant came around the corner, they observed
that he had a gun, which he cocked and raised, as he advanced to the area where Mr.
Williams and others were located. Ms. Turner heard the defendant say, “Y’all want it with
me? Y’all want it with me?” She testified that several shots were then fired by the defendant.
She also related that she saw no other weapon besides the gun which the defendant was
firing. Once the shooting began, Ms. Turner retreated inside the apartment for safety
reasons.

        Jimmy Williams also testified at trial and confirmed that he was at the apartment
complex when these events occurred. He was not a resident of the apartment complex but
was there visiting his aunt. He did confirm that he was speaking with Ms. Turner outside her
apartment. However, he testified that he and the defendant approached the apartment at the
time time and that Tracy was also outside. Mr. Williams testified that he did speak casually
with Tracy. Mr. Williams indicated that the defendant asked him to whom he was talking.
Later, the defendant approached him and told him that “if you’re messing with my girlfriend,
it’s going to be a misunderstanding.” After this, the defendant disappeared behind the
apartment complex. According to Mr. Williams, the defendant was agitated and was
muttering you “motherf*****s are going to learn me.” Mr. Williams stated that he did not
chase or threaten the defendant in any way. Shortly thereafter, the defendant returned with
a gun, threatened Ms. Turner’s mom, then pointed at him and shot. Ms. Turner was beside
him while this occurred. Mr. Williams stated that he was terrified and did not see where the
bullet had gone. The defendant remained in the area saying he was going to kill somebody,
but he finally disappeared when he was told that the police had been called.

        Afterwards, Mr. Williams testified that he was scared and angry. While he was
outside, Mr. Courtney Oliver asked Mr. Williams to help with his car. Mr. Williams agreed,
and the cars were positioned, hood to hood, with both hood raised. Thereafter, he saw the
seventeen-year-old murder victim, Mr. Gladney, approaching the area and then heard shots
fired. Mr. Williams testified that he did not actually see the defendant shoot but afterwards
saw the defendant running from the scene. Afterwards, Mr. Williams observed Mr. Gladney,
his nephew, lying on the ground with a gunshot wound. According to Mr. Williams, Mr.
Gladney did not have a gun in his possession when he approached. Mr. Williams testified
that after the shooting, someone did hand him a gun. He stated that he just dropped it in the
parking lot. Mr. Williams testified that he never threatened the defendant or pointed a gun
at him. He also stated that he never asked Mr. Gladney to bring a weapon to the area.

       Courtney Oliver testified that he also lived in the apartment complex and was present
on the day of the incident. Mr. Oliver was outside installing an alternator on his vehicle
when he saw the defendant and another individual standing by the drainage ditch. Mr. Oliver
indicated that they disappeared and then the defendant reappeared beside the building where

                                             -3-
the initial shooting occurred. Mr. Oliver did not witness the defendant fire the gun, but he
did hear the shot. Mr. Oliver did see the defendant walking away and heard him say, “I’ll
kill you bitches.” Prior to the arrival of the police, Mr. Oliver also heard Mr. Williams
making threats as well. On cross-examination, Mr. Oliver said that Mr. Williams called Mr.
Gladney and requested that he bring him a gun.

        Later, Mr. Oliver asked Mr. Williams to jumpstart his vehicle, and Mr. Williams
agreed. Just as they were getting ready to disconnect the jumper cables, Mr. Oliver saw Mr.
Gladney approach carrying a shotgun, which he gave to Mr. Williams. Mr. Oliver did not
know whether the gun was loaded, and he testified that he never saw the shotgun fired. He
also stated that neither Mr. Williams nor Mr. Gladney were making any threats toward the
defendant at this time. Thereafter, he saw the defendant come around the side of the building
walking towards Mr. Williams. The defendant fired five or six shots, one of which struck
Mr. Gladney. The defendant then laughed and walked away.

       Raymond Jones was also present at the time of the second shooting. He saw the
defendant approach and fire his gun, one bullet striking Mr. Gladney. Mr. Jones said that he
did not see either Mr. Williams or Mr. Gladney with a gun. He also testified that he did not
hear any threats made by Mr. Williams prior to the shooting.

        Mr. Eugene Williams testified that he was hanging out with his friends that night and
saw a group of people working on a vehicle in the parking lot. He testified that he saw Mr.
Gladney approach the group carrying a shotgun, which he was holding down by his side. At
that point, he heard gunfire but was not able to see the shooter from his vantage point. He
testified that he did not see anyone point the shotgun before the shots were fired and that he
did not hear any threats. After the shooting stopped, he did observe someone pick up the gun
and point it in the direction from which the shots had been fired, but it was never fired.

        Mr. Eugene Williams further testified that he had been at the apartment complex for
several hours prior to this shooting, but he denied that he had heard a prior gunshot.
However, he did state that he heard someone talking to the police earlier and thought it had
to do with an argument over a girl. He did see a man, whom he did not know, in the parking
lot after the police left who appeared to be angry, although he did not hear any specific
threats.

       Jameda Frazier testified that she was visiting her sister who lived in the complex when
the shooting began. She had just arrived in the parking lot and was attempting to get her two
small children out of the car when she heard the shots. She grabbed her children and ran into
her sister’s apartment. According to her testimony at trial, she told police that she heard
either Mr. Gladney or Mr. Williams state they were “fixing to kill him” prior to the shooting.

                                             -4-
However, she acknowledged that in her statement to police, she had said this statement was
made after the shots were fired by the defendant.

        When police officers returned to the scene, they found the victim, still conscious, lying
on the ground in front a vehicle suffering from a gunshot wound. Officers tried to stop the
bleeding, and an ambulance was called. Mr. Gladney was transported to the hospital where
he later died. Officers began to investigate at the scene. They discovered that a bullet had
hit the car, which was parked near the victim, under the hood, which was open. They also
discovered that a second bullet had hit an apartment window and broken it. No shell casings
or weapons were found on the scene. Some witnesses at the scene did indicate that they saw
someone put a weapon in the trunk of Mr. Williams’ car, and a search of the vehicle was
conducted with Mr. Williams’ consent. No weapon was found.

        Dr. Karen Chancellor, a Shelby County medical examiner, performed the autopsy on
the victim, Mr. Gladney. She concluded that the victim died as a result of a gunshot wound
to the torso which had entered the body from the back.

        The defendant testified in his own defense. He stated that he was a resident of the
apartment and came into contact with Mr. Williams, whom he did not know, earlier in the
day. According to the defendant, he ran into Tracy, whom he barely knew and who was not
his girlfriend, when Mr. Williams approached her from behind and said “what the f*** is
going on.” The defendant said Tracy flinched and walked away. Afterwards, Mr. Williams
“got in his face” and said “that’s my hoe.” Later, as he was going to the store, he saw Mr.
Williams on his cell phone. He also testified that he met Ms. Turner, but they did not speak.
According to the defendant, he then proceeded to the store and remained there for twenty to
thirty minutes. He denied the first altercation and shooting as described by the State’s
witnesses ever occurred.

       The defendant testified that on his way back from the store, he met some friends who
asked him what was going on, “what’s up with the guy from Arkansas?” According to his
friends, Mr. Williams was “mouthing out” and threatening to harm the defendant. Although
the defendant was not sure he believed his friends, he nonetheless took the 9mm gun they
offered and put it into his back pocket. The defendant stated that once he returned to the
apartments, he approached Mr. Williams and asked him, “what do you want to beef about?”
At that point, according to the defendant, Mr. Gladney pointed the shotgun at him, and the
defendant drew his gun and fired. He was adamant that he only fired his weapon because the
shotgun was “leveled” at him. The defendant fled the scene.

      Based upon his actions on September 23, 2009, the defendant was indicted by a
Shelby County grand jury for: (1) first degree premeditated murder of Mr. Gladney; (2)

                                               -5-
attempted first degree premeditated murder of Mr. Williams; (3) two counts of aggravated
assault with a deadly weapon against Mr. Williams and Ms. Turner; (4) employing a firearm
during the commission of a dangerous felony; and (5) unlawful possession of a handgun as
a convicted felon. Following a jury trial, at which the above evidence was presented, the
sequestered jury received the relevant jury instructions, including those on self-defense.
After deliberations, the jury found the defendant guilty in Count 1 of the lesser offense of
second degree murder. He was convicted as charged of the remaining five offenses. The
State notified the defendant of its intent to seek enhanced sentences based upon his prior
convictions and filed a motion for consecutive sentencing. A sentencing hearing was held,
and the trial court imposed the following sentences: (1) forty years at 100% for second
degree murder; (2) forty years at 35% for attempted first degree murder; (3) fifteen years at
45% for each of the two aggravated assault convictions; (4) fifteen years at 100% for
employing a firearm during the commission of a dangerous felony; and 5) six years at 45%
for possession of a handgun as a convicted felon. Based upon the imposition of consecutive
sentencing, the defendant is serving an effective sentence of one hundred thirty-one years in
the Department of Correction.

        The defendant filed a motion for new trial in the case. Following a hearing, the trial
court, by written order, denied the motion. The defendant has now timely appealed that
denial.

                                           Analysis

       On appeal, the defendant raises two issues for our review. First, he challenges the
convicting evidence with regard to five of his six convictions. He does not challenge the
sufficiency of the evidence with regard to his conviction for being a felon in possession of
a firearm. The defendant also contends that it was error for the trial court to impose
consecutive sentencing in his case.

I. Sufficiency of the Evidence

        “When the sufficiency of the evidence is challenged, the relevant question is whether,
after reviewing the evidence in the light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” State v.
Dorantes, 331 S.W.3d 370, 379 (2011); Jackson v. Virginia, 443 U.S. 307, 319 (1979).
“[O]n appeal, the State must be afforded the strongest legitimate view of the evidence and
all reasonable inferences that may be drawn therefrom.” Dorantes, 331 S.W.3d at 379
(internal quotation omitted). It is the trier of fact who resolves all questions of witness
credibility, the weight and value of the evidence, as well as all factual issues raised by the
evidence. State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Reviewing courts

                                               -6-
should neither re-weigh the evidence nor substitute their own inferences for those drawn by
the jury. State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003).

       The trial court’s approval of the jury’s verdict accredits the State’s witnesses and
resolves all conflicts in the evidence in the State’s favor. State v. Moats, 906 S.W.2d 431,
433-34 (Tenn. 1995). “Because a guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt, on appeal a defendant bears the burden of showing
why the evidence is insufficient to support the conviction.” State v. Thacker, 164 S.W.3d
208, 221 (Tenn. 2005). These rules apply whether the verdict is predicated upon direct
evidence, circumstantial evidence, or a combination of both. Dorantes, 331 S.W.3d at 379.

        Again, the defendant in this case was convicted of second degree murder, attempted
first degree murder, two counts of aggravated assault, employing a firearm during the
commission of a dangerous felony, and being a felon in possession of a handgun. Second
degree murder is the unlawful killing of another. T.C.A. § 39-13-201, -210(a)(1) (2010).
Our statute defines “knowing” as follows:

              “Knowing refers to a person who acts knowingly with respect to the
       conduct or to circumstances surrounding the conduct when the person is aware
       of the nature of the conduct or that the circumstances exist. A person acts
       knowingly with respect to a result of the person’s conduct when the person is
       aware that the conduct is reasonably certain to cause the result.”

T.C.A. §39-11-302(b). First degree murder is a premeditated and intentional killing of
another. T.C.A. § 39-13-202(a)(1). A person engages in the criminal attempt to commit a
crime when he commits any of the following:

              (1) Intentionally engages in action or causes a result that would
       constitute an offense, if the circumstances surrounding the conduct were as the
       person believes them to be;

             (2) Acts with intent to cause a result that is an element of the offense,
       and believes the conduct will cause the result without further conduct on the
       person’s part; or

               (3) Acts with intent to complete a course of action or cause a result that
       would constitute the offense, under the circumstances surrounding the conduct
       as the person believes them to be, and the conduct constitutes a substantial step
       toward the commission of the offense.



                                              -7-
T.C.A. § 39-12-101(a). As relevant here, a person commits an aggravated assault by causing
bodily injury, or creating the reasonable fear of impending bodily injury, with the use of a
deadly weapon. T.C.A. § 39-13-102. Further, a person who employs a deadly weapon in the
course of an attempt to commit first degree murder commits a Class C felony. T.C.A. § 39-
17-1324(i)(1)(a).

        The defendant’s argument regarding the sufficiency of the evidence supporting his
convictions for second degree murder and attempted first degree murder are based upon his
claim of self-defense. While acknowledging that the issue of self-defense is a matter for the
jury to decide, State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1991), the defendant
contends that, despite the guilty verdict in this case, the evidence presented established that
he had a reasonable fear for his life when he shot Mr. Gladney. He contends that the
established facts are: (1) that a verbal confrontation with Mr. Williams has occurred; (2) that
the defendant was warned by his friends that Mr. Williams was making threatening remarks;
(3) that either Mr. Williams or Mr. Gladney was armed with a “short black shotgun” at the
time of the shooting; and (4) that the shooting took place in the courtyard where the
defendant lived. These facts he contends support a conclusion beyond a reasonable doubt
that his theory of self-defense was established. Moreover, he asserts that “[e]ven in the
absence of a legally sufficient self-defense claim the proof showed that [the defendant] is
guilty of voluntary manslaughter because the evidence shows he was adequately provoked.
See T.C.A. § 39-13-211(a). He contends that “[a]t most this incident was a confrontation
between two men who were equally at fault.”

        With regard to the two aggravated assault convictions based upon the defendant’s
actions against Ms. Turner and Mr. Williams, he contends there is no proof in the record to
establish this shooting occurred “[e]xcept for the incredible testimony” of the victims. He
also relies upon the State’s witness who testified he had been in the area and heard nothing,
as well as the failure to procure any physical evidence from the scene such as a shell casing.
Finally, with regard to his conviction for employing a firearm during the commission of a
dangerous felony, the defendant urges that if this court concludes that his murder and
attempted murder convictions should be reversed, this conviction must also be vacated
because there is no underlying dangerous felony remaining to support this conviction.

        The defendant’s argument is essentially no more than a credibility challenge to the
testimony and evidence which was presented to the jury. He does not complain that the state
failed to prove any elements of the offenses with regard to second degree murder or
attempted first degree murder; rather, he simply asks this court to reevaluate the jury’s
determination that self-defense was not established. There is no question that the defendant’s
theory of self-defense was placed squarely before the jury and that they were instructed upon
that theory by the court. The defendant relies upon facts to support his argument which were

                                              -8-
introduced in large part by his own testimony of the events which occurred at the apartment
complex. The jury heard that testimony and chose not to accredit the defendant’s version of
events. Contrary to the defendant’s request, it is not the province of this court to reevaluate
credibility determinations made by the trier of fact. See Pappas, 754 S.W.2d at 623. The
jury heard the defendant’s testimony that he fired in self-defense and, based upon their
verdict, found it lacking in comparison to the testimony from numerous other individuals on
the scene.

        Likewise, the defendant’s argument with regard to the two convictions for aggravated
assault is based upon credibility. He asks that this court ignore the “incredible” testimony
of the two victims, Ms. Turner and Mr. Williams, to determine that no evidence exists in the
record to support that these crimes occurred. Again, that it not the function of this court.
Both Ms. Turner and Mr. Williams testified at trial that the defendant pointed a gun between
them and fired a shot, narrowly missing them. Ms. Turner’s mother also provided testimony
regarding the incident. That there is some discrepancy in the details of the events is not fatal
to the case. Those discrepancies were heard by the jury and were pointed out by defense
counsel on cross-examination. On appeal, it is the State who must be afforded the strongest
legitimate view of the evidence. See Dorantes, 331 S.W.3d at 379.

       Clearly, viewing the evidence in the light most favorable to the State, sufficient
evidence was presented to allow a rational trier of fact to determine that the defendant
committed the crimes for which he was convicted. The defendant approached Mr. Williams
and Ms. Turner, and an argument ensued over the defendant’s girlfriend who was inside the
apartment. The defendant became agitated but left the apartment area but not before
threatening remarks were made. He returned a short while later and fired a gun at Ms. Turner
and Mr. Williams before again departing the area.

        Shortly thereafter, the defendant was seen returning by multiple witnesses to the area
carrying a gun. He approached a group of individuals with the gun pointed and fired multiple
shots into the crowded parking lot, one of which killed Mr. Gladney. The defendant does not
dispute that he in fact possessed the gun and that he shot Mr. Gladney. His only argument
is one of self-defense. However, as noted above, the jury has concluded that the defendant’s
actions were not in fact justified. We conclude, as did the trial court, that the evidence is
sufficient to support the convictions in this case.

II. Consecutive Sentencing

       The defendant also contends that the trial court erred in ordering that his sentences be
served consecutively. A defendant may appeal from the length, range, or the manner of
service of a sentence. T.C.A. § 40-35-401(a). We review a trial court’s decision regarding

                                              -9-
the length of a sentence for an abuse of discretion, granting a presumption of reasonableness
to within-range decisions that reflect a proper application of the purposes and principles of
the Sentencing Act. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). “So long as there are
other reasons consistent with the purposes and principles of sentencing, as provided by
statute, a sentence imposed by the trial court within the appropriate range should be upheld.”
Id. at 706. The trial court in this case applied multiple enhancement factors and imposed the
maximum sentences within the range for each of the defendant’s convictions. The defendant
does not dispute the length of his sentences, and we agree the sentences were properly
imposed; rather, he challenges only the trial court’s imposition of consecutive sentencing.

        Under Tennessee Code Annotated section 40-35-115, a trial court may impose
consecutive sentences if it finds it finds by a preponderance of the evidence that any one of
the following is established:

       (2) The defendant is an offender whose record of criminal activity is extensive;

              . . . [or]

       (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.

T.C.A. § 40-35-115(b). A single factor will support consecutive sentencing. State v. Black,
924 S.W.2d 912, 917 (Tenn. Crim. App. 1995); T.C.A. § 40-35-115. For instance, a finding
of an extensive criminal history alone justifies the imposition of consecutive sentences. State
v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). However, when imposing
consecutive sentences solely on the basis that the defendant is a dangerous offender
demonstrating little or no regard for human life and no hesitation in committing a crime in
which the risk to human life is high, the trial court also must find that consecutive sentencing
is “reasonably related to the severity of the offenses” and is necessary to protect society from
further aggravated criminal conduct by the defendant. State v. Lane, 3 S.W.3d 456, 461
(Tenn. 1999) (citing State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995)). Consecutive
sentences must also comport with the general sentencing principles that the overall sentence
imposed “should be no greater than that deserved for the offense committed” and that it
“should be the least severe measure necessary to achieve the purposes for which the sentence
is imposed.” T.C.A. § 40-35-103(2) & (4).

       On appeal, the burden is on the defendant to show the impropriety of the sentence.
T.C.A. § 40-35-401, Sentencing Comm’n Cmts; State v. Goodwin, 143 S.W.3d 771, 783
(Tenn. 2004). In the Bise case, a case which involved concurrent sentencing, our supreme

                                              -10-
court did not directly address whether the abuse of discretion with a presumption of
reasonableness standard of review is to be applied to a court’s decision to impose consecutive
sentences. See Bise, 380 S.W.3d at 682. However, the court has cited with approval State
v. Henry Floyd Sanders, No. M2001-00962-CCA-R3-CD, 2012 WL 4841545 (Tenn. Crim.
App., Oct. 9, 2012), perm. app. granted, (Tenn., Feb. 15, 2013), in which this court cited to
the Bise language in stating the applicable standard of review on the issue of consecutive
sentencing. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). Moreover, the Bise
court also stated that “when the 2005 amendments vested the trial court with broad
discretionary authority in the imposition of sentences, de novo appellate review and the
‘presumption of correctness’ ceased to be relevant.” Bise, 380 S.W.3d at 708. While other
panels of this court have held otherwise, See, e.g., State v. Ricky Earl Genes, No. M2012-
02284-CCA-R3-CD, 2013 WL 1395290, at *6 (Tenn. Crim. App., Apr. 8, 2013), we
conclude that the imposition of consecutive sentencing should also be reviewed under the
abuse of discretion standard with a presumption of reasonableness set forth in Bise.

       In imposing consecutive sentencing in this case, the trial court made the following
extensive findings of fact on the record:

              This Court does find that the defendant is an offender. His record of
       criminal activity is in fact extensive, not only as a juvenile. Not only is
       extensive but is violent. Not only crimes against property but against people.
       His record as an adult is extensive. He has been convicted in other states for
       which the defendant has been found guilty by this jury of being a convicted
       felon in possession of a handgun and the Court does find that his record of
       criminal activity is extensive. It is one of the most extensive, frankly, that this
       Court has seen as a juvenile. And anytime, the only time apparently that [the
       defendant] does not commit crimes is when he’s locked up, but when [the
       defendant] is out of the streets of Shelby County or other states, [he] has
       continued to commit crimes against states across this country and his record
       is extensive.

               This Court also finds, as indicated earlier, that he is a dangerous
       offender whose behavior indicates little or no regard for human life. And has
       no hesitation about committing a crime in which the risk to human life is high.
       . . . This defendant . . . has a history of committing robberies, violent crimes
       against people, crimes against property. Has a history of committing
       aggravated assault offenses and been convicted three times or been a convicted
       felon in possession of a handgun with a violent history. And this Court does
       find, given the history and given the facts of this case, when [the defendant]
       fired a gun between two people, and the testimony from Mr. Williams and Ms.

                                              -11-
       Turner indicated that they were out on the sidewalk, outside of Ms. Turner’s
       mother’s home just talking when the defendant walked up with a [gun], stood
       a few feet from them and fired a gun at close proximity to them. They both
       testified, particularly Ms. Turner, that she could feel the heat of the bullet as
       it passed between them and she does not know how that bullet missed them.
       This defendant left this location and came back a few minutes later and
       continued to fire a semiautomatic weapon at a group of people. Striking cars,
       striking apartments, killing a seventeen year old kid when he tried to kill
       Jimmie Williams. And this Court finds that he is a dangerous offender whose
       behavior indicates little or no regard for human life and that he had no
       hesitation about committing a crime in which the risk to human life was in fact
       high. This Court also finds, pursuant to [State v. Wilkerson, 905 S.W.2d 933
       (Tenn. 1995)], . . . that the circumstances surrounding the commission of this
       offenses are in fact aggravated and that the (Indiscernible) reasonably relates
       to the severity of the offenses for which the defendant stands convicted and
       that consecutive sentences are necessary to protect the public from future
       criminal acts of the defendant. . . . And this Court does find under the
       Robinson case and under the Wilkerson case that consecutive sentences are
       absolutely necessary in this case. [The defendant] is thirty-three years old and
       for twenty plus years he had been committing violent crimes against the State
       of Tennessee, against Iowa. And had somebody at some point put [the
       defendant] where he’s been begging to go for a long period of time, he’s been
       begging judges to please put him in prison for a long period of time, if
       somebody would have done that, Toby Gladney may not have been killed. He
       might be alive had somebody taken [the defendant] off the streets and put
       [him] in a position where he could not harm anyone, but unfortunately, for
       thirty-three years, twenty some odd years, at the age of thirty-three, [the
       defendant] has continued to commit crimes and has continued to be allowed
       the privilege of being in and out of prison until, unfortunately, a child was
       killed and for all those reason, the Court is firmly of the opinion that
       consecutive sentences are warranted in this case because of the facts, because
       of his history and because of Tennessee law. . . .

       Based upon our reading of its findings, we conclude that the trial court found
consecutive sentencing appropriate in this case based upon the fact that the defendant: (1)
had a record of criminal activity which was extensive; and (2) that he was a dangerous
offender. In his brief, the defendant contends that the court erred by finding him to be a
dangerous offender because the court failed to articulate “any aggravating circumstances”
which justify the imposition of consecutive sentences.



                                             -12-
       The defendant apparently makes no challenge to the court’s finding that his record of
criminal activity is extensive. As noted above, this finding alone supports the imposition of
consecutive sentencing. See Adams, 973 S.W. 2d at 231. Moreover, the record more than
supports that the trial court did not abuse its discretion in reaching this conclusion. The court
in great detail summarized the defendant’s prior record which by any definition would be
considered extensive. The crimes committed by the defendant included multiple driving
offenses, being a felon in possession of a handgun, vandalism, thefts, robberies, and assaults.
The court also specifically noted that the defendant was also charged and pled guilty to
robbery as a sixteen-year-old in criminal court following a transfer based upon his already
extensive juvenile record, with his first arrest occurring when he was twelve years old. We
conclude there was no abuse of discretion in the trial court finding the defendant to be an
offender who had an extensive criminal history.

        Although unnecessary based upon our conclusion above, we nonetheless note that the
trial court also did not abuse its discretion in determining that the defendant was a dangerous
offender. Again, the defendant contends this finding was error because the trial court failed
to specify “aggravating circumstances” which justified imposition of consecutive sentencing.
He appears to argue that because the “dangerous offender” category is subjective and
difficult to apply, it should only be applied based on the presence of “aggravating
circumstances” surrounding the crimes for which the defendant is being sentenced. The
defendant cites to Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976), and State v. Lambert,
741 S.W.2d 127, 134 (Tenn. Crim. App. 1987), in support of this argument. However, the
cases relied upon by the defendant were superseded by State v. Wilkerson, in which the
supreme court considered the issue of consecutive sentences based on the “dangerous
offender” classification in light of the Criminal Sentencing Reform Act of 1989 and held that
“the imposition of consecutive sentences on an offender found to be a dangerous offender
requires, in addition to the application of general principles of sentencing, the finding that
an extended sentence is necessary to protect the public against further criminal conduct by
the defendant and that the consecutive sentences must reasonably relate to the severity of the
offenses committed” without making any mention of the need for a finding that any
additional aggravating circumstances accompanied the crimes. Wilkerson, 905 S.W.2d at
939. Thus, the trial court was not required to make such a finding in this case.

       In this case, the trial court expressly stated that it found that both Wilkerson factors
were satisfied in this case. The court considered the principles of sentencing and the
circumstances of the crimes in reaching its conclusions, which were adequately articulated
on the record. The facts of this case amply support the findings made by the trial court. The
defendant approached two unarmed people and initiated a dispute based upon his girlfriend’s
conduct, which eventually led to the defendant retrieving a weapon and firing directly
between Ms. Turner and Mr. Williams. The defendant returned to the apartment complex

                                              -13-
and began randomly shooting in an area which was heavily populated with people, including
two small children. His actions resulted in the death of a seventeen-year-old young man.
The court could not reach any conclusion other than that the defendant had no meaningful
respect for, and no hesitation about committing a crime that risks human life. The
defendant’s claim that the trial court erred by ordering him to serve his sentences
consecutively is denied.

                                    CONCLUSION

       Based upon the foregoing, the judgments of conviction and resulting sentences are
affirmed.




                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




                                          -14-
