        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 23, 2013

           STATE OF TENNESSEE v. CHRISTOPHER LEE DAVIS

            Direct Appeal from the Criminal Court for Trousdale County
                     No. 07-55     John D. Wootten, Jr., Judge


                 No. M2012-01546-CCA-R3-CD - Filed July 18, 2013


The appellant, Christopher Lee Davis, was convicted of attempted first degree murder, a
Class A felony; aggravated robbery, a Class B felony; carjacking, a Class B felony; and
attempted especially aggravated kidnapping, a Class B felony. On direct appeal, our supreme
court affirmed the appellant’s convictions but remanded for resentencing on the issue of
consecutive sentencing. See State v. Davis, 354 S.W.3d 718, 721-22 (Tenn. 2011). On
remand, the trial court again ordered partial consecutive sentencing, which resulted in an
overall effective sentence of forty-nine years. On appeal, the appellant challenges the
imposition of consecutive sentencing. Upon review, we affirm the judgments of the trial
court.

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

N ORMA M CG EE O GLE , J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and T HOMAS T. W OODALL, J., joined.

William K. Cather, Lebanon, Tennessee, for the appellant, Christopher Lee Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Tom
P. Thompson, District Attorney General; and Jason Lawson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       On direct appeal, our supreme court summarized the facts adduced at trial as follows:
        On June 12, 2007, the victim, Glen McDaniel, drove his
black 2001 Chevrolet Monte Carlo into a carwash bay in
Hartsville, Tennessee. While Mr. McDaniel was washing his
car, he saw a gold Nissan Maxima pull into the carwash and
noticed that the two men in the back of the Maxima were staring
at him. Mr. McDaniel continued washing his car until he was
confronted by two African-American men wearing bandanas
over their faces who entered his carwash bay from opposite
sides. The men wore red shirts and red hats, and one of them
had a hat with a depiction of a $100 bill embroidered on it. Mr.
McDaniel described one of them as approximately six feet, three
or four inches tall and heavy set with dark skin. The other man,
whom Mr. McDaniel identified at trial as being the [appellant].
. . , was nearly the same height but thinner and with a lighter
complexion.

        The larger man walked up to Mr. McDaniel, pointed a
pistol at his chest, and told him to get into the Monte Carlo. Mr.
McDaniel complied because he was afraid the man would shoot
him if he refused. The man with the pistol got in the passenger
seat and kept his gun pointed at Mr. McDaniel the entire time
they were in the Monte Carlo. [The appellant] got in the back
seat behind Mr. McDaniel and kept a grip on Mr. McDaniel’s
shoulders. The men asked for $800, and Mr. McDaniel replied
that he did not have that much money on him and that he did not
carry a wallet, but did have an ATM debit card. The men
ordered him to drive across the street to an ATM.

       The gunman walked Mr. McDaniel up to the ATM, and
[the appellant] held his hand over one of the ATM video
cameras. [The appellant] told Mr. McDaniel to get a receipt so
they could make sure that he had withdrawn all of the money in
his checking account. Mr. McDaniel completed the ATM
withdrawal and gave the gunman the money and the receipt.

        All three got back into the Monte Carlo, and Mr.
McDaniel drove back to the carwash. As they approached, they
saw Lacy Smotherman, an acquaintance of Mr. McDaniel,
sitting in a parked car at the carwash, so the men told Mr.
McDaniel to drive down the street. He did, and when they

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turned the car around and returned to the carwash, Ms.
Smotherman was gone. Mr. McDaniel pulled his car into one of
the carwash bays, and the men ordered him to get out of the car.

        [The appellant] pushed Mr. McDaniel against one of the
walls in the carwash bay. Mr. McDaniel asked [the appellant]
to take his car and leave him at the carwash, but [the appellant]
refused, saying, “no, you’re going to go with us.” Mr. McDaniel
testified that at this point, “I thought I was dead to be honest
with you.” He was standing with his chest pressed against the
wall and [the appellant] was trying to pull his hands behind his
back. Mr. McDaniel looked over his shoulder and saw that [the
appellant] had a roll of black duct tape. Mr. McDaniel testified
that “I yanked my hands right back up . . . ‘cause I knew, you
know, if I was duct taped I was done for.” He struggled with
[the appellant], who shoved his face into the brick wall, injuring
his nose and face, and hit him in the eye. [The appellant] said,
“get the gun, we’re going to shoot this motherfucker right here.”
Mr. McDaniel testified that during the incident [the appellant]
appeared to be the one in control of the situation, giving orders
and instructions to the other man.

       Mr. McDaniel said that at this point, “I figured if I was
going to get shot, I might as well try to run.” He broke free
from [the appellant’s] grasp and ran toward a nearby restaurant.
[The appellant] chased after him. The restaurant was closed.
Mr. McDaniel ran around the side and headed for a gas station.
He came to a steep embankment and jumped down the slope
into the ditch. As he came over the other side and continued
running toward the gas station, Mr. McDaniel saw his Monte
Carlo pull out of the carwash. He also saw a black Chevrolet
Impala pulling out at the same time. Mr. McDaniel reached the
counter inside the gas station, told the attendant to call the police
because he had just been carjacked and “those guys are trying to
kill me,” and collapsed from exhaustion. The attendant revived
him, and the Sheriff’s Department arrived a few minutes later.
That night, Mr. McDaniel provided a written statement to law
enforcement officers describing the incident.

       The next day, Detective Chris Tarlecky of the Sumner

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County Sheriff’s Department received information from
Trousdale County law enforcement to “be on the lookout”
(“BOLO”) for the suspects in the carjacking and robbery. The
BOLO dispatch contained the basic facts of the incident,
described the stolen vehicle as a 2001 black Monte Carlo with
custom wheels, provided a general description of the suspects,
and identified the suspects’ vehicle as a gold Maxima. Later
that day the abandoned Monte Carlo was discovered at the
Bledsoe Creek boat dock. Detective Tarlecky and another
Sumner County Sheriff’s Department officer drove to the boat
dock.

        Justin Scruggs, a friend of Mr. McDaniel, first discovered
the Monte Carlo as he and some relatives were driving by the
boat dock. Mr. Scruggs, his mother Tammy Scruggs Reed, and
his uncle Jerry Scruggs pulled into the boat dock area and then
called the Sumner and Trousdale County Sheriff’s Departments.
Mr. McDaniel was notified that his car had been found, and he,
his mother, and his girlfriend also drove to the boat dock area to
identify his car. Detective Tarlecky and the second Sumner
County officer arrived in unmarked Ford Crown Victorias.
Additionally, Trousdale County Sheriff Ray Russell and
Detective David Winnett arrived on the scene shortly thereafter,
driving another unmarked Crown Victoria. Detective Tarlecky
testified that the stolen Monte Carlo’s doors were locked, but
that he could see that the CD player had been removed from the
dashboard. He also observed that the Monte Carlo’s wheels,
which were custom after-market wheels that he valued at around
$2,000, were still on the car and that the car contained several
other potentially valuable items. Mr. McDaniel examined his
car and confirmed that the CD player had been ripped out of the
dashboard and that his rear stereo amplifier was also missing.

        Detective Tarlecky stated that as they were inspecting the
stolen car, he and the other officers observed a white Crown
Victoria drive slowly by the boat dock and begin to make a right
turn into the parking area. Detective Tarlecky could see the
driver and passenger, who were African-American males, and
he testified that “their eyes opened as big as saucers when they
saw us and the vehicle just jerked back off on to . . . the

                               -4-
roadway.” He stated that the turn back on the road “was a
startled movement. They had looked down and saw us and they
abruptly turned back . . . It caught our attention the way they did
it.” The white Crown Victoria continued across the Bledsoe
Creek bridge, then turned into a church parking lot, turned
around, and slowly drove back by the boat dock area again.
Detective Tarlecky got in his vehicle, activated its emergency
lights, and initiated a stop of the Crown Victoria. Detective
Tarlecky identified the driver as James Phillips, and the
passenger as [the appellant]. Mr. Phillips consented to a search
of the vehicle. Detective Tarlecky found a Chevrolet key chain
in the door panel on the driver’s side. He tossed the keys to
Sheriff Russell, who confirmed that the car keys fit the Monte
Carlo. The officers then took Mr. Phillips and [the appellant]
into custody.

       The search of the car also revealed several completed job
application forms, one of which had been filled out by Marcus
Bradford and listed an address of 1100 Winwood Drive in the
nearby town of Castalian Springs. Detective Tarlecky went to
the address and spoke with Mr. Bradford, who confirmed that he
lived there, and consented to a search of the common areas of
the house and his bedroom. In the living room, Detective
Tarlecky found a large speaker box and a CD player with part of
a car dashboard attached to it. Detective Tarlecky discovered a
large amplifier of the same brand as Mr. McDaniel’s stolen
amplifier and a blue backpack in the “game room” of the house.
The backpack contained a red hat with a depiction of a $100 bill
embroidered on it, and what Detective Tarlecky described as a
red “doo rag.” Detective Tarlecky also recovered from the
house a wallet with [the appellant’s] identification in it, a red
T-shirt found in the dryer, a blue travel bag containing a roll of
duct tape, and a number of CDs and a black bandana found in
Mr. Bradford’s room.

       Mr. Bradford told Detective Tarlecky that Michael Miller
and Michelle Guardiola were the lessees of the house. The
officers contacted Mr. Miller and Ms. Guardiola, who returned
home in a black Chevrolet Impala. Mr. Miller and Ms.
Guardiola consented to a search of the entire house and the

                                -5-
Impala. In the black Impala, Detective Winnett found a red
T-shirt and what appeared to be car stereo wiring. Sheriff
Russell participated in a second search of the house; he testified
that he discovered a lockbox and that a set of keys fitting the
lockbox were found among the personal items taken from [the
appellant] after his arrest. The lockbox contained a 40mm
semi-automatic pistol and ammunition.

        [The appellant] was charged with one count each of
aggravated robbery, carjacking, attempt to commit especially
aggravated kidnapping, and attempt to commit first degree
murder. At the trial, the State presented the videotape recording
from the ATM’s security camera, and Mr. McDaniel identified
the man in the red shirt and red hat as the gunman. Mr.
McDaniel testified that the carwash bays were well-lighted and
that he was able to get a good look at [the appellant] and clearly
see his face. Mr. McDaniel positively identified [the appellant]
as being the man who sat behind him in the Monte Carlo,
pushed him into the carwash bay wall, hit him, tried to duct tape
his hands, and pursued him after he ran.

       The State also presented the testimony of Lacey
Smotherman, who said that she was at the carwash on the night
of June 12, 2007, around 10:00 p.m. Ms. Smotherman knew
Mr. McDaniel because he was dating a friend of hers. Ms.
Smotherman testified that she saw a gold Nissan Maxima
backed into one of the carwash bays. As she was emptying trash
from her car, she saw Mr. McDaniel’s Monte Carlo pulling
around the carwash, driving slowly. She saw three people in the
car and observed that the passenger, an African-American male,
had a bandana covering his face. The passenger looked at her
and then the Monte Carlo drove off. Ms. Smotherman testified
that she was surprised that Mr. McDaniel had not spoken to her.

       The State also presented the testimony of Deangelo
Vaughn, who stated that he works at a nearby auto parts store on
Highway 25. Mr. Vaughn testified that in June of 2007, two
men drove into the store’s parking lot in a white Crown
Victoria. The men entered the store and offered to sell Mr.
Vaughn a set of four 22-inch wheels for $500. The men said

                               -6-
              that the wheels were on a car that was parked “over at the lake.”
              Mr. Vaughn testified that the $500 price for a set of 22-inch
              wheels is “not reasonable, it’s awfully cheap.” Mr. Vaughn told
              the men he couldn’t leave the store, and they left. Later, Mr.
              Vaughn saw photographs of four men in the local newspaper
              and recognized two of them as the men who had tried to sell him
              the wheels. He contacted the Trousdale County Sheriff’s
              Department and provided a written statement.

                     At trial, the parties stipulated that the police found [the
              appellant’s] fingerprints on a gold Nissan Maxima later
              recovered by the investigating officers.

State v. Davis, 354 S.W.3d 718, 722-725 (Tenn. 2011) (footnotes omitted). The appellant
was eventually indicted on four counts: aggravated robbery, carjacking, attempted first
degree murder, and attempted especially aggravated kidnapping. After a jury trial, the
appellant was found guilty as charged on all four counts.

      At a sentencing hearing, the trial court sentenced the appellant as a Range I, standard
offender to twenty-five years for the attempted first degree murder and to twelve years for
each of the three remaining felonies. On direct appeal, this court summarized the proof
adduced at the sentencing hearing as follows:

                     At the sentencing hearing, Judy Kerr, with the Tennessee
              Board of Probation and Parole, testified that she prepared [the
              appellant’s] presentence report, which was introduced as an
              exhibit without objection. At the time of the sentencing
              hearing, [the appellant] was twenty years old. He reported that
              he dropped out of high school in the tenth grade. [The
              appellant] told Ms. Kerr that he had completed his GED, but
              Ms. Kerr verified that [the appellant] had, in fact, failed his
              pretest for the GED exam and had never returned to the class.
              As employment, [the appellant] reported working for a fast food
              restaurant from January 2005 until his arrest in August 2005 on
              a murder charge. [The appellant] stated that he did not have a
              relationship with his family, and that he stayed with friends.
              [The appellant] reported that “he [had] sold drugs for a living
              since he was thirteen years old.”

                     Ms. Kerr said that when [the appellant] was seventeen

                                             -7-
              years old, he was charged with criminal homicide and unlawful
              possession of a weapon. When he turned eighteen, [the
              appellant] was indicted on the charges as an adult but the
              charges were dismissed on February 28, 2007. Ms. Kerr said
              that [the appellant] ha[d] one prior conviction, in 2006, for an
              assault committed while he was in the Davidson County Jail
              awaiting trial on the murder charge. [The appellant] was
              sentenced to sixty days in confinement for this offense. [The
              appellant] reported joining the Bloods gang when he was eleven
              years old and was a member in both Davidson and Henry
              County. [The appellant] said that he obtained the rank of “00G
              status” which is the highest rank within the gang. As proof of
              his membership in the gang, [the appellant] stated that he has
              three burns in the shape of a triangle on his right upper arm.
              [The appellant], however, said that he was no longer a member
              of the gang at the time the presentence report was prepared.

                       According to the victim’s impact statement, the victim
              still suffered emotional distress and depression as a result of the
              incident and reported feeling scared when in a crowd or outside
              his home at night. The victim wrote, “I am totally and
              completely angry that this happened to me. I was shocked that
              someone could actually do this to another human being without
              the slightest regard for another human life or the effect it would
              have on all our futures.” The victim stated that he was forced
              to sell his vehicle because he was afraid for his life and that of
              his friends and family.

State v. Christopher Lee Davis, No. M2008-01216-CCA-R3-CD, 2010 WL 1837936, at *11
(Tenn. Crim. App. at Nashville, Apr. 19, 2010), perm. to appeal granted, (Tenn. Jan. 13,
2011). The trial court ordered the appellant to serve his sentence for attempted especially
aggravated kidnapping concurrently with his sentence for carjacking, and otherwise ordered
the appellant to serve his sentences consecutively, resulting in an overall effective sentence
of forty-nine years. Id. at *1.

       The appellant appealed his convictions and sentences, raising numerous claims,
including challenging the trial court’s imposition of consecutive sentencing. Id. On appeal,
this court affirmed the appellant’s convictions on all four counts, as well as the length of each
of his individual sentences. However, this court remanded the appellant’s case for
resentencing solely on the issue of consecutive sentencing, explaining that

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              [o]n January 14, 2009, after the submission of [the appellant’s]
              brief on appeal, the United States Supreme Court concluded that
              a defendant’s constitutional right to trial by jury is not
              implicated by sentencing structures, such as Tennessee’s, which
              require the trial court “to make certain predicate fact findings”
              before imposing consecutive sentencing. Oregon v. Ice, 555
              U.S. 160, 129 S. Ct. 711, 715 n.3, 716-720, 172 L. Ed. 2d 517
              (2009).

                      The statute requires certain findings to be made before a
              trial court can order consecutive sentences. See T.C.A. §
              40-35-115(b). Because the trial court did not make any such
              findings, it erred in ordering the [appellant] to serve consecutive
              sentences. Accordingly, we remand this case for the sole
              purpose of determining the manner of service of [the
              appellant’s] sentences in accordance with the Sentencing Act.

Id. at *16. The Tennessee Supreme Court granted the appellant’s application for permission
to appeal and affirmed this court’s judgment. See Davis, 354 S.W.3d at 733.

        On remand, the trial court conducted a new sentencing hearing. A victim impact
statement was read into the record, in which the victim discussed the injuries that he had
sustained during the encounter and the ongoing psychological and financial harm that he
endured due to the appellant’s crimes. The appellant’s presentence report also was entered
into the record, in which the appellant acknowledged that he was a member of the “Bloods”
street gang and that he had achieved the highest rank within that organization. The
appellant’s criminal history included an arrest for first degree murder and a conviction for
assault. The appellant also had an additional first degree murder charge that was pending.
Regarding employment, the appellant said that he was a drug dealer. The presentence report
indicated that the appellant had reported that he did not have a relationship with his family
and that he “stayed with friends and sold drugs to get by.” The presentence report stated that
the appellant claimed to have sold drugs for a living since he was thirteen years old and that
his only legitimate employment had been at a Kentucky Fried Chicken (KFC) for a period
of six months in 2005.

       After receiving this evidence and listening to arguments from the parties, the trial
court found by a preponderance of the evidence that three statutory factors were present that
would support consecutive sentences: (1) the appellant was a professional criminal who had
devoted his life to criminal acts as a major source of livelihood, (2) the appellant was an
offender whose criminal history was extensive, and (3) the appellant was a dangerous

                                              -9-
offender whose behavior showed little or no respect for human life. Based on these findings,
the trial court again ordered the appellant to serve the same partial consecutive sentences,
resulting in an overall effective sentence of forty-nine years.

       The appellant filed a timely notice of appeal, challenging the trial court’s decision to
order partial consecutive sentences.

                                         II. Analysis

        In conducting its sentencing review, this court considers the following factors: (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 enhancement and mitigating factors; (6) any statistical information provided
by the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement by the appellant in his own behalf; and (8) the potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also State
v. Bise, 380 S.W.3d 682, 697-98 (Tenn. 2012). The burden is on the appellant to
demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Cmts.

       We note that under the 1989 Sentencing Act, appellate review of the length, range,
or manner of service of a sentence was de novo with a presumption of correctness. See Bise,
380 S.W.3d at 693; Tenn. Code Ann. § 40-35-401(d). However, in 2005, in response to
Blakely v. Washington, 542 U.S. 296 (2004), our legislature passed amendments to the
Sentencing Act to ensure that Tennessee’s sentencing scheme could withstand Sixth
Amendment scrutiny. See State v. Carter, 254 S.W.3d 335, 342-43 (Tenn. 2008). Thereafter,
our supreme court revisited the standard of review to be applied to sentencing determinations
and held that “sentences imposed by the trial court within the appropriate statutory range are
to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” Bise, 380 S.W.3d at 708. Additionally, our supreme court has held that
“the abuse of discretion standard, accompanied by a presumption of reasonableness, applies
to within-range sentences that reflect a decision based upon the purposes and principles of
sentencing, including the questions related to probation or any other alternative sentence.”
State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

       However, since the 2005 Amendments to the Sentencing Act, our supreme court has
not ruled upon the standard of review to be utilized when reviewing a trial court’s imposition
of consecutive sentencing. See State v. Jeremy J. Edick, No. W2012-01123-CCA-R3-CD,
2013 WL 3130953, at *9 (Tenn. Crim. App. at Jackson, June 13, 2013). As such, this court

                                              -10-
has been split regarding the proper standard of review when addressing consecutive
sentencing. See State v. Colton D. Whitelow, No. W2012-00527-CCA-R3-CD, 2013 WL
3291889, at *2 (Tenn. Crim. App. at Jackson, June 25, 2013). We conclude that regardless
of which standard is applicable, the trial court did not err by imposing consecutive
sentencing.

        Generally, “[w]hether sentences are to be served concurrently or consecutively is a
matter addressed to the sound discretion of the trial court.” State v. Adams, 973 S.W.2d 224,
230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated section 40-35-115(b) contains
the discretionary criteria for imposing consecutive sentencing. See also State v. Wilkerson,
905 S.W.2d 933, 936 (Tenn. 1995). Because the criteria for determining consecutive
sentencing “are stated in the alternative[,] . . . only one [criterion] need exist to support the
appropriateness of consecutive sentencing.” State v. Mickens, 123 S.W.3d 355, 394 (Tenn.
Crim. App. 2003). The trial court may impose consecutive sentencing upon finding the
existence of any one of the criteria. In the instant case, the trial court imposed consecutive
sentencing based upon three criteria: (1) that the appellant was a professional criminal who
had knowingly devoted his life to criminal acts as a major source of livelihood; (2) that the
appellant was an offender whose record of criminal activity was extensive; and (4) that the
appellant was a dangerous offender whose behavior indicated little or no regard for human
life and who had no hesitation about committing a crime in which the risk to human life was
high. Tenn. Code Ann. § 40-35-115(b)(1), (2), and (4).

        With respect to the professional criminal criterion, the appellant argues that the trial
court erred by applying this criterion based solely on the appellant’s admission that he was
a drug dealer. The appellant argues that he was only nineteen years old at the time of the
offenses and that there was no evidence that he ever earned a “livelihood” from drug dealing
in the sense of acquiring an appreciable sum of money or assets. Regardless, the appellant
admitted that he had never held a job, with the exception of a brief stint at KFC, and that he
had sold drugs “to get by.” These admissions fully suffice to support the trial judge’s
conclusion that the State had established by a preponderance of the evidence that the
appellant had knowingly devoted his life to criminal activity as a major source of livelihood.

        As we stated earlier, a trial court may impose consecutive sentencing after finding any
one of the criteria. Therefore, because the trial court did not err in imposing consecutive
sentencing upon finding that the appellant was a professional criminal, any error in applying
either criteria (2) or (4) is harmless. See Tenn. R. App. P. 36(b).

        After a full review of the record, we conclude that the effective sentence of forty-nine
years that was imposed in this case was reasonable and was consistent with the principles and
purposes of sentencing. See Tenn. Code Ann. §§ 40-35-103 and 40-35-103. The appellant’s

                                              -11-
claim that the trial court erred by sentencing him to partial consecutive sentences is denied.

                                      III. Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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