         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 8, 2008

                 STATE OF TENNESSEE v. KHALFANI MARION

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



                      No. W2006-02444-CCA-R3-CD - Filed June 2, 2008


The defendant, Khalfani Marion, was convicted of four counts of aggravated robbery, a Class B
felony, and one count of especially aggravated kidnapping, a Class A felony. The trial court merged
the four aggravated robbery counts into two convictions and sentenced the defendant to twenty years
for the especially aggravated kidnapping conviction and nine years for each aggravated robbery
conviction, ordering all sentences to be served consecutively on the basis that the defendant was a
dangerous offender. On appeal, the defendant argues that the evidence was insufficient to support
his convictions and alleges numerous sentencing errors by the trial court. We conclude that the
evidence was sufficient to support the defendant’s convictions and that the trial court did not err in
imposing consecutive sentences. Accordingly, we affirm the judgments of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and J.C. MCLIN ,
JJ., joined.

Rebecca G. Coffee, Memphis, Tennessee, for the appellant, Khalfani Marion.

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


                                             OPINION

                                              FACTS
        Elisha Wilkins1 testified that during the evening of May 14, 2002, she was asleep in the den
of her boyfriend’s house when she was awakened by a knock at the back door. She looked through
a window in the kitchen and saw a man standing at the back door. The man asked her if “Chris” was
home, and she replied in the negative and started to walk away. The man knocked again, and when
Wilkins looked through the window, she saw a taller man, holding a gun, outside the door. Then
seven or eight men, most of whom had guns, broke down the door and entered the house. One of
the men picked up Wilkins by the hair and asked her where was the money. After Wilkins informed
the men that she did not know where any money was located, the men took the keys to her truck, her
wallet, and her identification. Wilkins was standing at the back door when Montreal Lyons, a
codefendant, told her that she was going to die because she had seen his face.

         The men forced Wilkins into the backseat of her truck and drove to the home of her friend,
Latonya Cooper. She remembered seeing a burgundy van behind her truck as she left her boyfriend’s
house. When they arrived at Cooper’s house, Lyons put a gun to her head and ordered her to knock
on the door, while the other men hid from view. When Cooper recognized Wilkins, she opened the
door, and the men entered Cooper’s house. Wilkins testified that all of the men who were present
at her boyfriend’s house were also present at Cooper’s house. Cooper asked for and received
permission to close the door to her children’s bedroom so they would not be awakened. Then the
men ordered Cooper into her bedroom and Wilkins into a bathroom. The men told Cooper and
Wilkins that they should reveal where the money was kept because they were going to die anyway.
Lyons told the men to go get one of Cooper’s children in order to induce the women to give them
the money. Mario Morris, a codefendant, took Cooper and Wilkins into a bedroom and held them
at gunpoint. Cooper’s phone rang, and one of the men told Cooper to answer it and that if she said
the wrong thing she would be shot. After the phone call ended, the men forced Wilkins and Cooper
to lie down on the living room floor, where they remained until the men left the house and Cooper’s
husband arrived.

        On June 8, 2002, Wilkins spotted the defendant at a bus station in Memphis and alerted
police, who arrested him. She testified that on the night of the robbery, the defendant told her that
he knew all about her and that she would die because she had seen the faces of her attackers. She
said she was scared that night and thought the assailants were going to kill her. On cross-
examination, Wilkins testified that she could not remember whether the defendant was carrying a
gun that night.

       LaTonya Cooper testified that on May 14, 2002, she was home with her five- and six-year-
old daughters when she heard the doorbell ring. She asked who was at the door and opened it when
Wilkins replied. Several men with guns walked into her home and locked the door behind them.
Cooper asked the men not to wake her daughters, and the defendant told her to close her daughters’
bedroom door. The men demanded money, and Cooper told them that her purse was in her bedroom.


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

                                                        -2-
The defendant accompanied her to the bedroom, took money from Cooper’s purse, and searched her
dresser. Lyons was upset that Cooper did not produce more money and threatened to kill Cooper,
her children, and Wilkins.

         Cooper testified that Lyons and Morris were carrying guns, but she could not recall whether
the defendant was carrying a gun. She stated that the men took money, jewelry, a DVD player, a
laptop computer, and her truck from her. At one point, her telephone rang, and Lyons instructed
Morris to point his gun at her and shoot her if she said anything wrong. After the phone call, there
was a knock at the door and the defendant told her to answer it while telling Morris to “spray her
ass” if she ran outside. Cooper and Wilkins were then ordered to lie face down in the living room.
 Believing she was about to be shot, Cooper begged the men to take her to a different location so that
her children would not hear or see anything. Lyons told her she could lie down or be shot down.
Cooper and Wilkins complied, and the men exited through the back door.

         Officer John Chevalier and Lieutenant Daniel Parris of the Memphis Police Department
testified that they responded to the residence of Wilkins’ boyfriend after the robbery and that the
back door had been kicked in and the house appeared to have been ransacked.

        Memphis Police Department Officer Larry Skaggs testified that he was working downtown
on June 8, 2002, when he was approached by a woman who told him that she had seen a man at the
bus station who had robbed her and burglarized her house. He asked the woman for a description
of the man and then went to the bus station where he located the defendant, who matched the
description he had been given. Officer Skaggs arrested the defendant and turned him over to another
officer’s custody to be transported to the police station. Memphis Police Department Lieutenant
Connie Maness testified that she showed Wilkins a photograph of the defendant that night, and
Wilkins confirmed that the defendant was the person who invaded her home.

       Sergeant Timothy Green of the Memphis Police Department testified that he showed a six-
person photographic spreadsheet containing the defendant’s photograph to Latonya Cooper on June
8, 2002, and that Cooper circled the defendant’s picture, identifying him as one of her assailants.
On cross-examination, Sergeant Green testified that the defendant did not possess any of the stolen
property when he was arrested.

        The defendant elected not to testify or present other proof. Following deliberations, the jury
found the defendant guilty of two counts of the aggravated robbery of Elisha Wilkins (Counts 1 and
2), two counts of the aggravated robbery of LaTonya Cooper (Counts 4 and 5), and one count of the
especially aggravated kidnapping of Elisha Wilkins (Count 3). Because Counts 1 and 2 and Counts
4 and 5 alleged alternative means of committing the same offense against the same victim, the trial
court merged each pair of counts into a single conviction.

       At the sentencing hearing, LaTonya Cooper testified that the robbery caused her to live in
constant fear. She stated that she woke up three to four times each night to check on her children
and had moved away from the Memphis area because she did not feel safe there. She testified, over


                                                 -3-
defense objection, that Wilkins told her that as the men were leaving on the night of the robbery, one
of them placed a gun in Wilkins’ mouth while she was standing on Cooper’s front porch, scaring her
and causing her to urinate on the porch.

        For the aggravated robbery conviction of Wilkins, the trial court sentenced the defendant as
a Range I, standard offender to nine years, applying two enhancement factors: (1) the defendant has
a previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range; and (2) the defendant was a leader in the commission of an offense
involving two or more criminal actors. Tenn. Code Ann. § 40-35-114(1), (2) (2006). On the
conviction for the aggravated robbery of Cooper, the court sentenced the defendant as a Range I,
standard offender to nine years, finding in addition to the prior criminal history and leadership
enhancement factors that the defendant treated the victim with exceptional cruelty during the
commission of the offense and that the defendant had no hesitation about committing a crime when
the risk to human life was high. Tenn. Code Ann. § 40-35-114(1), (2), (5), (10). On the especially
aggravated kidnapping conviction, the court sentenced the defendant as a Range I, violent offender
to twenty years, finding the prior criminal history and leadership enhancement factors. The court
found 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, and
ordered that all sentences be served consecutively in the Department of Correction, for an effective
sentence of thirty-eight years.

                                             ANALYSIS

         The defendant argues that the evidence was insufficient to support his convictions and that
the trial court erred at sentencing when it: (1) found him to be a dangerous offender and imposed
consecutive sentencing on that basis; (2) found him to be a professional criminal; (3) imposed
consecutive sentencing on the basis that the crime was “inherently dangerous”; (4) applied two
enhancement factors which were elements of the underlying offenses; and (5) allowed Cooper to
testify to Wilkins’ mental state at the time of the offenses. The State argues that the evidence was
sufficient to support the defendant’s convictions and that the trial court properly sentenced the
defendant. As we will explain, we affirm the judgments of the trial court.

                                   I. Sufficiency of the Evidence

        Where sufficiency of the convicting evidence is challenged, the relevant question for the
reviewing court 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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall
be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond
a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835
S.W.2d 600, 604 (Tenn. Crim. App. 1992).



                                                  -4-
        All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:

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

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)).

       A jury conviction removes the presumption of innocence with which a defendant is initially
cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of
demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982).

         Aggravated robbery is the intentional or knowing theft of property from the person of another
by violence or putting the person in fear, when either (a) accomplished with a deadly weapon or (b)
the victim suffers serious bodily injury. Tenn. Code Ann. § 39-13-402(a) (2006). As relevant here,
especially aggravated kidnapping is the knowing, unlawful removal or confinement of another so
as to interfere substantially with the other’s liberty, when accomplished with a deadly weapon. Id.
§ 39-13-305(a)(1).

         The defendant argues that the evidence was insufficient because “the State’s proof only
consisted of two purported eyewitnesses who were unable to state how many people were actually
involved. The State provided no proof of direct evidence of the [defendant’s] involvement such as
fingerprints etc.” He contends that “[i]t is clear that the jury was swayed by the emotional nature of
the testimony and that the many different gaps and inconsistencies in the testimony were substantial
enough to warrant a finding by this court that each and every element of each and every charge was
not proven beyond a reasonable doubt.” As we will explain, we agree with the State that the
evidence was sufficient to support the defendant’s convictions.

       The proof belies the defendant’s claim that the State did not present direct evidence of his
involvement in the crimes. Viewing the evidence in the light most favorable to the State, Elisha
Wilkins testified that seven or eight men, most of them carrying guns, broke down her back door and
entered her boyfriend’s house demanding money. The men took her keys, identification, and wallet
and then forced her into the backseat of her truck and drove to LaTonya Cooper’s house. Montreal


                                                  -5-
Lyons placed a gun to Wilkins’ head and forced her to knock on Cooper’s door. The men held
Cooper and Wilkins at gunpoint, demanded money from Cooper, and threatened to shoot her and her
children. Several weeks later, Wilkins spotted the defendant at a bus station and identified him to
police officers as one of the men who burglarized her boyfriend’s house and kidnapped her. When
shown a photograph of the defendant later that night, Wilkins confirmed that he was one of her
assailants.

       LaTonya Cooper testified that during the robbery, the defendant took her to her bedroom,
removed money from her purse, and searched her dresser. When Cooper heard a knock at her door,
the defendant instructed her to answer it and told Mario Morris to “spray her ass” if Cooper
attempted to run outside. Sergeant Timothy Green testified that, following the defendant’s arrest,
Cooper identified him from a six-person photospread as one of the assailants.

        The foregoing proof was sufficient to support the defendant’s convictions for aggravated
robbery and especially aggravated kidnapping. The defendant’s argument is unfounded that the
proof is insufficient because it is based solely on the testimony of the two victims. Questions
regarding the weight and credibility to be accorded to the evidence are resolved by the jury as trier
of fact. The evidence is such that a reasonable jury could have made that determination.

                                           II. Sentencing

         As we will discuss, the defendant argues both against the length of his sentences and the fact
they were to be served consecutively. When an accused challenges the length, range, or manner of
service of a sentence, it is the duty of this court to conduct a de novo review on the record with a
presumption that “the determinations made by the court from which the appeal is taken are correct.”
Tenn. Code Ann. § 40-35-401(d) (2006). This presumption is “conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant facts
and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not
apply to the legal conclusions reached by the trial court in sentencing the accused or to the
determinations made by the trial court which are predicated upon uncontroverted facts. State v.
Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn.
Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on
other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, this court is required to
give great weight to the trial court’s determination of controverted facts as the trial court's
determination of these facts is predicated upon the witnesses’ demeanor and appearance when
testifying.

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused’s potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210 (2003); State v. Taylor, 63 S.W.3d 400, 411


                                                 -6-
(Tenn. Crim. App. 2001). Enhancement factors may be considered only if they are “appropriate for
the offense,” and “not themselves essential elements of the offense.” Tenn. Code Ann. § 40-35-114.

        The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence
imposed by the trial court is erroneous. If our review reflects that the trial court, following the
statutory sentencing procedure, imposed a lawful sentence, after having given due consideration and
proper weight to the factors and principles set out under the sentencing law and made findings of fact
that are adequately supported by the record, then we may not modify 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 defendant alleges numerous sentencing errors, which we will address in turn. Because
his claims are closely interrelated that the trial court erred in finding him a dangerous offender and
in imposing consecutive sentencing, we will analyze them simultaneously. The defendant argues
that he is not a dangerous offender and that the trial court “made nothing more than a naked assertion
in labeling him as such.” He contends that the court erred in imposing consecutive sentencing
because he does not satisfy any of the criteria for consecutive sentencing set out in Tennessee Rule
of Criminal Procedure 32(c).

        Initially we must note that Rule 32(c) governs only mandatory consecutive sentencing. A
trial court, in its sound discretion, may also impose consecutive sentencing in accordance with
Tennessee Code Annotated section 40-35-115, if it finds any of the following criteria:

       (1) The defendant is a professional criminal who has knowingly devoted such
       defendant’s life to criminal acts as a major source of livelihood;

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

       (3) The defendant is a dangerous mentally abnormal person as 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) 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;

       (5) The 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;


                                                 -7-
       (6) The defendant is sentenced for an offense committed while on probation; or

       (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b). These criteria are stated in the alternative; therefore, only one
need exist to support the appropriateness of consecutive sentencing. Here, the trial court applied,
as its basis for imposing consecutive sentencing, criterion (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.” Id. § 40-35-115(b)(4) (2006). Criterion
four has been specifically discussed by our supreme court in State v. Wilkerson, 905 S.W.2d 933
(Tenn. 1995), where the court held:

       [T]he 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.

Id. at 939. This requirement of additional findings is limited to criterion four. See State v. Lane,
3 S.W.3d 456 (Tenn. 1999).

       In imposing consecutive sentencing, the trial court stated:

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

               ....

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

       The trial court made the detailed factual findings mandated by Wilkerson, and the record
supports its determination that consecutive sentencing was appropriate.

       The defendant next argues that the trial court erred in finding that he is “a professional
criminal as defined under [Tennessee Code Annotated] Section 40-35-111,” because there was no
proof presented at trial or sentencing that he knowingly devoted himself to criminal acts as a major


                                                 -8-
source of his livelihood or derived substantial resources from his criminal acts.2 However, the
defendant’s presentence report, which was entered into evidence as an exhibit at the sentencing
hearing, reflects prior convictions for driving while license suspended, cancelled, or revoked;
attempted forgery; criminal impersonation; possession of a controlled substance; use of false
identification; violation of the open container law; and theft under $500.3 Moreover, assuming
arguendo that the trial court erred in finding that the defendant was a professional criminal, such
error was harmless. We previously determined that the trial court properly imposed consecutive
sentencing based on the dangerous offender criterion; as set out above, the existence of a single
criterion is sufficient to support consecutive sentencing. The defendant is not entitled to relief on
this issue.

        Additionally, the defendant asserts that “the fact that a crime is ‘inherently dangerous’ does
not in and of itself require consecutive sentencing” and that the trial court erroneously imposed
consecutive sentencing on this basis. The defendant cites no legal authority in support of this
contention, and the appellate record does not reflect that the trial court imposed consecutive
sentencing on this basis. This issue is without merit.

         As we understand, the defendant challenges the trial court’s application of two enhancement
factors to the sentences imposed for the aggravated robbery of LaTonya Cooper: that he had no
hesitation about committing an act in which the risk to human life was high and that the crime was
committed under circumstances where the potential for bodily injury was great. He argues that these
factors are elements of the offense of aggravated robbery and therefore may not be used to enhance
his sentence for this offense. The defendant has filed a reply brief in which, for the first time, the
claim is raised, as we understand, that he should be resentenced because certain of the findings upon
which the court based the sentencing were “unsupported in the record.” Additionally, the defendant
argues that he could “elect or waive Blakely” and, since there is no waiver in the record on appeal
showing a waiver, the “sentencing should be set aside.” The defendant makes no claim as to whether
the trial court utilized the pre- or post-2005 version of the sentencing act as to him. We note that the
defendant has not argued on appeal that the trial court erred in concluding that an enhanced sentence
was justified because of the defendant’s prior history of criminal convictions.

        We will consider this argument. In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004), the United States Supreme Court ruled that any fact, other than that of a prior conviction,
used to enhance a defendant’s sentence beyond the statutory minimum must be found by a jury
beyond a reasonable doubt. Id. at 301, 124 S. Ct. at 2536. Subsequently, our supreme court in State
v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007), concluded that, applying Blakely to Tennessee’s
pre-2005 sentencing law, the judge could enhance a sentence beyond a presumptive minimum based
on judicially-determined facts in addition to a prior conviction. Prior to this, our supreme court had


          2
           His argument in this regard is unclear, as section 40-35-111 governs authorized sentences for offenses, prison
terms or fines, and reports, and does not define the term “professional criminal.”
          3
              The defendant’s presentence report is included in the appellate record of one of the codefendants, Mario
Morris.

                                                           -9-
held that Blakely did not apply to Tennessee’s pre-2005 sentencing law. State v. Gomez, 163
S.W.3d 632 (Tenn. 2005), vacated and remanded by Gomez v. Tennessee, __ U.S. __, 127 S. Ct.
1209 (2007).

        Subsequently, this court has held that a defendant who fails to raise the Blakely issue in the
trial court waives the issue and may seek relief only under a “plain error” review. See State v. John
William Matkin, III, No. E2005-02946-CCA-R3-CD, 2007 WL 4117362, at *11 (Tenn. Crim. App.
Nov. 19, 2007), perm. to appeal denied (Tenn. Apr. 7, 2008).

        When determining whether a plain error review is appropriate, the following factors must be
established: “(a) the record must clearly establish what occurred in the trial court; (b) a clear and
unequivocal rule of law must have been breached; (c) a substantial right of the accused must have
been adversely affected; (d) the accused [must not have waived] the issue for tactical reasons; and
(e) consideration of the error [must be] ‘necessary to do substantial justice.’” State v. Terry, 118
S.W.3d 355, 360 (Tenn. 2003) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim.
App. 1994)). In addition, “[a]ll five factors must be established by the record before” an appellate
court may “recognize the existence of plain error, and complete consideration of all the factors is not
necessary when it is clear from the record that at least one of the factors cannot be established.” Id.
(citing State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000)). Rule 52(b) of the Tennessee Rules of
Criminal Procedure provides: “When necessary to do substantial justice, an appellate court may
consider an error that has affected the substantial rights of an accused at any time, even though the
error was not raised in the motion for a new trial or assigned as error on appeal.” See Tenn. R. App.
P. 36(b).

        In the present appeal, the defendant’s argument in his reply brief, as we have set out, is that
since he committed his crimes before the enactment of the 2005 amendments to the sentencing law,
was sentenced after that date, and the record on appeal does not contain a waiver of his ex post facto
rights, he must be resentenced. The defendant does not argue that we should make a plain error
review of his sentencing. It is clear that, even if this court makes a plain error review of the
defendant’s sentencing, he is not entitled to relief. One of the enhancement factors applied by the
trial court was the fact that the defendant had a previous history of criminal convictions in addition
to those necessary to establish the appropriate range. Thus, since this enhancement factor is
applicable both before and after the amendment to the 1989 Sentencing Act and the defendant does
not claim that it was inapplicable, it is not necessary that we consider the defendant’s claims in this
regard to do substantial justice, and a plain error review is not appropriate.

        Finally, the defendant argues that the trial court erred in permitting LaTonya Cooper to
testify at the sentencing hearing about how Elisha Wilkins felt during the commission of the
offenses. He contends that the trial court permitted Cooper to testify “as to the intensity of Ms.
Wilkins’ fear after the suspects fled and left her unharmed.” As we understand, the defendant is
referring to the following colloquy between the State and Cooper:
        [Counsel for the State]: Ms. Cooper, did Ms. Wilkins tell you that night when the
        defendants left the house what they did to her when she was standing on your front
        porch?

                                                 -10-
       [The Witness]: Yes. Someone had put gun [sic] to her mouth, in her mouth, and she
       was so afraid that she peed on my porch.

We do not entirely understand the nature of the defendant’s objection to this testimony. To the
extent he argues that such testimony was inadmissible hearsay, we disagree. Reliable hearsay is
admissible at a sentencing hearing if the opposing party is accorded a fair opportunity to rebut such
evidence. Tenn. Code Ann. § 40-35-209(b); State v. Blackhurst, 70 S.W.3d 88, 94 (Tenn. Crim.
App. 2001). This claim is without merit.

       Thus, as to the setting of the defendant’s sentences, we conclude that his extensive prior
record of convictions, which he does not contest, justifies the enhancements. See State v. Gosnell,
62 S.W.3d 740, 750 (Tenn. Crim. App. 2001).

                                         CONCLUSION

         We conclude that the evidence was sufficient to sustain the defendant’s convictions and that
the trial court did not err in its imposition of consecutive sentencing. Accordingly, we affirm the
judgments of conviction and the imposition of consecutive sentencing.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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