        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 22, 2010

          STATE OF TENNESSEE v. BRANDON TAYLOR FISHER

             Direct Appeal from the Criminal Court for Davidson County
                       No. 2007-B-1811    Steve Dozier, Judge




                 No. M2008-01839-CCA-R3-CD - Filed August 18, 2010


The defendant, Brandon Taylor Fisher, stands convicted of robbery and kidnapping, both
Class C felonies. The trial court sentenced him as a Range I standard offender to five years
for robbery and four years for kidnapping and ordered him to serve the sentences
consecutively in the Tennessee Department of Correction. On appeal, the defendant
challenges the trial court’s imposition of consecutive sentences. Following our review, we
conclude that the trial court failed to make findings sufficient to justify consecutive sentences
under Tennessee Code Annotated section 40-35-115(b) and remand for a new sentencing
hearing solely on the issue of whether consecutive sentences are appropriate in this case.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                             in Part; Case Remanded

J.C. M CL IN, J., delivered the opinion of the court, in which J ERRY L. S MITH, J., joined.
T HOMAS T. W OODALL, J., not participating.

William Thomas Mullican, Brentwood (on appeal), and Reginald Horton (at trial) Nashville,
Tennessee, for the appellant, Brandon Taylor Fisher.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Rachel Sobrero and
J. Wesley King, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                         Background
       On June 22, 2007, a Davidson County grand jury indicted the defendant for
aggravated robbery, a Class B felony, and especially aggravated kidnapping, a Class A
felony. The parties presented the following evidence at the defendant’s May 2008 jury trial.

        Xavier Willis testified that on January 6, 2007, he was working at his studio on
Dickerson Pike when his friend, Shawn Nettles, called him. Mr. Nettles told him that
someone named Green would be coming to the studio to give Mr. Willis $100 that Green
owed Mr. Nettles and to pick up a car battery that Mr. Nettles had left on the studio property.
When Mr. Willis got off the phone with Mr. Nettles, he noticed a gray car with tinted
windows pull into the studio parking lot to make a u-turn with two people in the front seat.
He turned away from the car to put his dogs up and heard the doors of the car opening and
closing. When he looked back at the car, the passenger had moved to the back seat. The
defendant, whom Mr. Willis knew from his neighborhood, was in the driver’s seat and asked
Mr. Willis to sit in the car to talk. Mr. Willis sat in the front passenger’s seat and closed the
door. He then felt a gun pressed to the back of his head. Mr. Willis testified that the
defendant told his accomplice to shoot him if he moved. The defendant removed Mr.
Willis’s pants and shoes and searched through his pockets, finding his keys and cell phone.
The defendant asked where Mr. Willis’s money was. When Mr. Willis responded that he did
not have any money with him, the defendant searched Mr. Willis’s 2005 white Impala. He
opened the trunk and removed a case containing $1,800 and a radio device. When the
defendant returned to the car, he told his accomplice that they would have to kill Mr. Willis
because he knew them. The defendant began driving away, and Mr. Willis jumped out of the
car after the defendant turned on to Dickerson Pike. He returned to his studio, wearing only
a shirt and his underwear, and called the police. The police took his statement and processed
the crime scene. At a later point, Detective Bradley showed Mr. Willis a photo lineup, and
he identified the defendant as the driver of the gray car and the man who took the items from
his car. Mr. Willis was unable to identify the person in the back seat of the car.

        Detective David Zoccola, of the Metropolitan Nashville Police Department, testified
that he was on patrol on January 6, 2007, when dispatch sent him to 1411 Dickerson Pike to
take a report. He met Mr. Willis at that location, and Mr. Willis reported that a gray Ford
Crown Victoria had pulled into his driveway. When he approached the car, someone pulled
a gun on him and forced him into the car. At some point, the driver of the car told the other
suspect to shoot Mr. Willis because he did not have any money. They made him remove his
pants and shoes, and the driver used his keys to open his car. The driver took approximately
$1,300 that was in a case in the trunk of the car and returned to the Crown Victoria. With
Mr. Willis still inside, the driver began driving away. Mr. Willis “bailed out of the car” and
returned to his business to call the police. Mr. Willis reported that the men took the cash, a
cell phone, his pants, shoes, and wallet. Detective Zoccola notified the identification section
so they could process the scene. He completed the offense report and returned to patrol.

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Later that day, dispatch sent him back to 1411 Dickerson Pike because Mr. Willis had
additional information. Mr. Willis reported that, after talking to friends, including Mr.
Nettles, he had come up with the defendant’s name as a suspect because Mr. Nettles had
spoken with the defendant earlier and had seen him in his car.

       Alicia Primm, a crime scene investigator with the Metropolitan Nashville Police
Department, testified that she photographed the scene at 1411 Dickerson Pike and processed
the trunk of Mr. Willis’s car for fingerprints. She lifted one fingerprint from the lid of the
trunk and two from the bumper of the car.

       Linda Wilson, a fingerprint analyst with the Metropolitan Nashville Police
Department, testified that she received the latent print cards for this case on January 8, 2007.
She searched the Automated Fingerprint Identification System (“AFIS”) for a matching print,
but she did not get an immediate result. She explained that AFIS generates lists of possible
candidates for matches each day. When she received the list of possible candidates for this
case, she retrieved a ten-print card for a possible match from a known fingerprint file. Ms.
Wilson compared the known prints with the latent print and concluded that the “print from
the trunk was one in the same as [the defendant’s] left middle finger.” Regarding the other
two prints lifted from the victim’s car, Ms. Wilson testified that one print “was of no value
for comparison” and the other print did not return a result from AFIS.

        Detective Terrence Bradley, of the Metropolitan Nashville Police Department,
testified that he compiled a photo lineup, which included the defendant, to show to Mr.
Willis. Mr. Willis identified the defendant.

     On cross-examination, Detective Bradley testified that he prepared two lineups, but
Mr. Willis did not make an identification for the second one.

         Melvin Shawn Nettles testified that he worked at Mr. Willis’s studio in January 2007.
He further testified that he knew the defendant and that he spoke with both Mr. Willis and
the defendant on January 6, 2007. Mr. Nettles said that the defendant was supposed to bring
him money for a dog and a car battery, and the defendant also had business with Mr. Willis.
Mr. Nettles instructed the defendant to leave the money at Mr. Willis’s studio if he was not
there. After he and the defendant spoke by phone, Mr. Nettles saw the defendant driving
down Fern Avenue toward Dickerson Pike at approximately 3:30 p.m.. He called Mr. Willis
to let him know that the defendant would be coming by the studio. An hour later, Mr. Nettles
went to the studio, and the police were there.

      On cross-examination, Mr. Nettles testified that he did not know what business the
defendant had with Mr. Willis, but he was “pretty sure” that they knew each other. He

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agreed that he wrote a letter to the District Attorney General explaining that he did not set
up the robbery, that Mr. Willis’s cousin had threatened him under the assumption that he set
up the robbery, and that Mr. Willis had said that he had purchased bad drugs and wanted his
money back.

        Detective Curtis Hafley, of the Metropolitan Nashville Police Department, testified
that he was a patrol officer on February 4, 2007, and came in contact with the defendant on
that day. Prior to February 4, 2007, Detective Hafley and other officers attempted to serve
a warrant on the defendant at his home, but the defendant was not there. The defendant’s
family told them that the defendant was driving a silver Crown Victoria with a temporary tag
in the back window. On February 4, 2007, Detective Hafley observed a Crown Victoria
matching the description that the defendant’s family gave him in the area of Dickerson Pike
and Douglas Avenue. He activated his lights, and the car stopped near Fern Avenue. When
Detective Hafley approached the car on foot, the driver “took off at [a] high rate of speed.”
He returned to his vehicle and pursued the Crown Victoria. He said that he lost sight of the
car for a moment, but by-standers directed him to make a right turn. After making the turn,
he observed the Crown Victoria stopped in the middle of the street and people running from
it. Detective Hafley pursued the defendant and found him sitting on a hill nearby. He then
placed the defendant in custody.

        The defendant testified that he had a felony possession of cocaine conviction from
April 1999. He said that he had known Mr. Willis since the sixth grade because they grew
up in the same neighborhood. Additionally, he knew Mr. Willis because they bought and
sold drugs from each other. On January 6, 2007, Mr. Willis contacted him to buy drugs. He
did not have the amount that Mr. Willis requested, but because he wanted the money, he
decided to sell Mr. Willis half real drugs and half fake drugs. According to the defendant,
there was never any discussion about money for a dog or a car battery. The defendant said
that he went to Mr. Willis’s studio, and Mr. Willis got into his car. At Mr. Willis’s direction,
the defendant went to the trunk of Mr. Willis’s car and removed the cash for the drugs. The
defendant testified that he took $1,000 to $1,300. After the exchange, the defendant left the
studio. Later, Mr. Willis called him to complain about the fake drugs, but the defendant
refused to return the money to him. The defendant said that Mr. Willis threatened him. A
week to two weeks later, Mr. Willis called him and said that he had “put the police on [him].”
The defendant did not know that there was a warrant outstanding for his arrest when
Detective Hafley took him into custody in February 2007. The defendant denied robbing and
kidnapping Mr. Willis.

       On cross-examination, the defendant testified that he had sold drugs since he was
sixteen years old, and at the time of trial, he was twenty-seven years old. The defendant said



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that it was unusual for someone to call the police if they received fake drugs. He explained
that he ran from police on February 4, 2007, because he had been smoking marijuana.

        The state called Detective Darryl Morton, of the Metropolitan Nashville Police
Department, as a rebuttal witness. Detective Morton testified that based on his experience
with drug transactions, an ounce of cocaine would cost $900 to $1,000. He said that in
January 2007, more cocaine was available in the Nashville area, so prices would have been
less at that time.

        The state recalled Xavier Willis. He testified that the cash from his trunk was part of
his girlfriend’s advance income tax return. She had refreshed his memory that the amount
of cash that she gave to him was $1,300.

       The jury found the defendant guilty of robbery and kidnapping, both Class C felonies.
The trial court held a sentencing hearing on June 26, 2008. The state presented the
defendant’s presentence report, which the court admitted as evidence. Both the defendant
and his wife testified.

        Veronica L. Fisher, the defendant’s wife, testified that they had been married for over
three years. She said that if the court granted probation, the defendant would return home
to live with her, and she was able to support him until he found employment. Mrs. Fisher
said that she and the defendant did not have children together, but the defendant had three
children with whom he had a good relationship. She testified that she did not know the
defendant to be a violent person.

       On cross-examination, Mrs. Fisher testified that she was aware that the defendant had
sold drugs since he was sixteen years old.

        The defendant testified that he was pursuing his GED and was “get[ting] ready to live
a productive life on the street.” He said that the drug conviction from 1999 was his only
felony. He testified that he did not carry a weapon and did not have convictions for weapons
charges or violent crimes. The defendant said that he had never been on probation “on the
streets” and explained that he served an eight year sentence because he violated the Lifelines
program. The defendant admitted that he sold drugs after serving his sentence.

       On cross-examination, the defendant denied robbing Mr. Willis.

       The court entered a written sentencing order on July 1, 2008. The court denied
alternative sentencing based on the violent nature of the offenses, specifically citing the
defendant’s order to his armed accomplice to shoot the victim, and found that confinement

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was necessary to avoid depreciating the seriousness of the offenses. The court found three
enhancement factors to be applicable: (1) the defendant had a history of criminal convictions
and behavior beyond that necessary to establish the sentencing range; (2) the defendant was
the leader in the commission of an offense involving two or more criminal actors; and (3) the
defendant was adjudicated as a juvenile to have committed delinquent acts that would
constitute felonies if committed by an adult. The court placed minimal weight on the
mitigating factor that the defendant suffered from a drug problem. The court found that the
defendant was “a danger to this community” based on his conduct during the commission of
the offenses and that he “ha[d] not demonstrated an ability to be rehabilitated.” Citing State
v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), the court found that an “aggregate sentence
[was] necessary to protect the public.” The court sentenced the defendant as a Range I
standard offender to five years for robbery and four years for kidnapping and ordered him
to serve the sentences consecutively in the Tennessee Department of Correction.

                                           Analysis

        On appeal, the defendant argues that the trial court erred by imposing consecutive
sentences. Specifically, he contends that he is not a dangerous offender under Tennessee
Code Annotated section 40-35-115(b)(4). The state concedes that the trial court did not make
specific findings as required by State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), but argues
that a de novo review supports the imposition of consecutive sentences.

        A defendant’s sentence is reviewed by the appellate courts de novo with a
presumption that the determinations made by the trial court are correct. Tenn. Code Ann. §
40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). For this presumption to
apply to the trial court’s actions, there must be an affirmative showing in the record that the
trial court considered sentencing principles and all relevant facts and circumstances. State
v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). While determining or reviewing a sentence,
the courts must consider: (1) the evidence received at 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
offered by the parties on the enhancement and mitigating factors; (6) any statement the
defendant wishes to make in the defendant’s behalf about sentencing; and (7) the potential
for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103(5), -210(b); State v. Ashby,
823 S.W.2d 166, 168; State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

       If the trial court has imposed a lawful sentence by following the statutory sentencing
procedure, has given due consideration and proper weight to the factors and sentencing
principles, and has made findings of fact adequately supported by the record, this court may
not modify the sentence even if it would have preferred a different result. State v. Fletcher,

                                              -6-
805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, if the trial court does not comply
with statutory sentencing provisions, our review of the sentence is de novo with no
presumption the trial court’s determinations were correct. State v. Winfield, 23 S.W.3d 279,
283 (Tenn. 2000).

         Generally, it is within the discretion of the trial court to impose consecutive sentences
if it finds by a preponderance of the evidence that at least one of the following statutory
criteria apply:


               (1) [t]he defendant is a professional criminal who has knowingly
               devoted such defendant’s life to criminal acts as a major source
               of livelihood;

               (2) [t]he defendant is an offender whose record of criminal
               activity is extensive;

               (3) [t]he defendant is a dangerous mentally abnormal person so
               declared by a competent psychiatrist who concludes as a result
               of an investigation prior to sentencing that the defendant’s
               criminal conduct has been characterized by a pattern of
               repetitive or compulsive behavior with heedless indifference to
               consequences;

               (4) [t]he defendant is a dangerous offender whose behavior
               indicates little or no regard for human life, and no hesitation
               about committing a crime in which the risk to human life is
               high;

               (5) [t]he defendant is convicted of two (2) or more statutory
               offenses involving sexual abuse of a minor with consideration
               of the aggravating circumstances arising from the relationship
               between the defendant and victim or victims, the time span of
               defendant’s undetected sexual activity, the nature and scope of
               the sexual acts and the extent of the residual, physical and
               mental damage to the victim or victims;

               (6) [t]he defendant is sentenced for an offense committed while
               on probation; or

               (7) [t]he defendant is sentenced for criminal contempt.



                                               -7-
Tenn. Code Ann. § 40-35-115(b).


       If the court concludes the defendant is a dangerous offender under Tennessee Code
Annotated section 40-35-115(b)(4), it must make two further determinations in addition to
applying general sentencing principles. Imfeld, 70 S.W.3d at 708. First, it must find an
extended sentence is necessary to protect the public from further criminal conduct by the
defendant, and, second, it must find consecutive sentencing to be reasonably related to the
severity of the offenses. Wilkerson, 905 S.W.2d at 939. However, such specific factual
findings are unnecessary for the other categories of Tennessee Code Annotated section 40-
35-115(b). State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).


       In this case, the trial court did not make an explicit finding regarding any of the factors
under Tennessee Code Annotated section 40-35-115(b) that justify the imposition of
consecutive sentences. The defendant’s lack of potential for rehabilitation and the fact that
he is a danger to the community are not valid bases upon which to impose consecutive
sentencing. See Tenn. Code Ann. § 40-35-115(b)(1)-(7). The court’s finding that an
“aggregate sentence [was] necessary to protect the public” satisfies one prong of the
Wilkerson factors for defendants who are dangerous offenders under Tennessee Code
Annotated section 40-35-115(b)(4) but by itself is insufficient to justify consecutive
sentences. Because the trial court failed to justify its imposition of consecutive sentences
under any factor listed in Tennessee Code Annotated section 40-35-115(b), we reverse the
judgment of the trial court as to consecutive sentences and remand for a new sentencing
hearing to consider whether consecutive sentences are warranted in this case. See State v.
Tavarski Childress, No. W2004-02545-CCA-R3-CD, 2006 WL 3804418, at *12 (Tenn.
Crim. App., at Jackson, Dec. 27, 2006). We affirm the length of the sentences.


                                          Conclusion


       Based on the foregoing reasons, we affirm the defendant’s convictions and the length
of sentences imposed. However, we remand for a sentencing hearing to determine the sole
issue of whether consecutive sentences are appropriate.




                                                     ___________________________________
                                                     J.C. McLIN, JUDGE



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