        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs March 30, 2010 at Knoxville

           STATE OF TENNESSEE v. JAMES ARTHUR JOHNSON

                 Appeal from the Criminal Court for Davidson County
                     No. 2007-A-129    Mark J. Fishburn, Judge




                No. M2009-01147-CCA-R3-CD - Filed August 24, 2010


The Defendant, James Arthur Johnson, was charged with two counts of premeditated first-
degree murder, two counts of felony murder, and one count of aggravated robbery for events
that occurred on the evening of June 18, 2006. Co-defendant Rodney Lenier Williams was
also charged in all five counts, but his case was severed from the Defendant’s case before
trial. A jury sitting in the Criminal Court for Davidson County found the Defendant not
guilty of the two counts of premeditated first-degree murder, guilty of the two counts of
felony murder, and guilty of the count of aggravated robbery. The Defendant was given
concurrent life sentences for the felony murder convictions. For the aggravated robbery
conviction, the Defendant was given an eleven year sentence to run consecutively to the two
life sentences. In this appeal as of right, the Defendant argues (1) that the evidence was
insufficient to sustain his convictions, (2) that the trial court erred in allowing a non-expert
witness to give his opinion, and (3) that the trial court erred in sentencing the Defendant.
Following our 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.

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

David M. Hopkins, Nashville, Tennessee, attorney for appellant, James Arthur Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Robert McGuire, Assistant
District Attorney General, attorneys for appellee, State of Tennessee.
                                         OPINION
       On the night of June 18, 2006, Leonard Swann of the Robertson County Sheriff’s
Department was working an off-duty security assignment at Kroger grocery store on Eighth
Avenue and Monroe Street in Nashville. As he was standing outside the store, Swann heard
an estimated eleven to thirteen gunshots fired, and seconds later, he observed Marcus
Edmondson running across the Kroger parking lot holding a handgun. Swann testified that
Edmondson was bleeding and bending over as he ran and repetitively stating that he had been
shot. Edmondson then fell in a grassy area at the end of the parking lot, and an ambulance
arrived shortly thereafter. Edmondson died at Vanderbilt Medical Center as a result of his
injuries.

       After the ambulance departed with Edmondson, Detective Warren Fleak of the
Nashville Metropolitan Police Department arrived at the scene to find the deceased body of
Ricky McCorkle in an alleyway behind the Kroger. About twenty-five feet away from
McCorkle’s body, thirteen .22 caliber cartridge casings were found on the ground. Detective
Fleak stated that officers found a water bottle and a Swisher Sweet cigar box containing
marijuana when approaching the front of the Kroger from the location of McCorkle’s body.
In front of the store, officers found a Lorcin 380 semiautomatic handgun, an empty magazine
belonging to that gun, and a cell phone.

       Detective Leonard Peck of the Nashville Metropolitan Police Department was
assigned to investigate the scene at approximately 9:30 P.M. on the night of the incident.
Detective Peck returned to the scene the following morning and found McCorkle’s wallet
and driver’s license. After searching McCorkle’s phone records, Detective Peck discovered
that McCorkle had dialed the phone number of Rodney Williams several times directly
before the time of the shootings. After interviewing Williams, Detective Peck developed the
Defendant as a suspect. After receiving a message that Detective Peck wished to speak to
him, the Defendant voluntarily went to the police station.

        In a recorded interview that was played for the jury, the Defendant told Detective Peck
that Rodney Williams had called the victims and made plans to meet them behind the Kroger
to purchase drugs. The Defendant stated that the original plan was to purchase drugs and that
he had no intention to harm anybody. However, he also stated that Williams discussed
robbing the victims for their drugs and money before arriving at the Kroger. The Defendant
stated that he was to be the lookout and hoped to be paid for his role. Specifically, after
being asked, “So, when Rodney did the robbery, you were hoping to get paid from the
robbery,” the Defendant answered, “Yes.” At trial, the State asked Detective Peck what that
statement meant to him, and over objection by the Defendant, Detective Peck answered,
“That means to me that he’s a willing participant.”


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        The Defendant stated that after he arrived at the Kroger parking lot, Williams left the
car with the .22 caliber rifle while he remained in the vehicle. The Defendant then heard
several gunshots, and Williams returned to the car with McCorkle’s wallet and stated, “They
tried to kill me.” After leaving the Kroger, Williams left the rifle with the Defendant, who
gave it to Christopher Phillips. Although Phillips did not possess the weapon when
questioned, officers discovered the rifle wrapped in a plastic bag in a dumpster off Jefferson
Street.

        Dr. Thomas Deering, assistant medical examiner for the State Medical Examiner’s
Office in Nashville, performed autopsies on both of the victims’ bodies and served as a
witness for the State at trial. Dr. Deering testified that McCorkle had two gunshot wounds
on the lower left side of his back. McCorkle had no exit wounds. One bullet had passed
through the victim’s spinal cord and lodged in his right lung, while the other passed through
the left lung, heart, and into the chest plate. Dr. Deering stated that the bullet that passed
through the spinal cord was possibly fatal and that the bullet to the heart was certainly fatal.
Dr. Deering concluded that McCorkle had been shot in the back and that the cause of his
death was multiple gunshot wounds. Dr. Deering added that McCorkle’s blood tested
positive for THC, indicating that he had recently used marijuana.

       Dr. Deering stated that Edmondson had one gunshot wound on his right lower back,
two gunshot wounds on his scrotum, and one gunshot wound on his thigh. Dr. Deering had
difficulty analyzing some of Edmondson’s injuries because surgeons had altered many of his
organs in an attempt to save him. However, Dr. Deering did find two bullets in the victim’s
abdomen and concluded that it appeared the victim had bled to death after being shot in the
back. Like McCorkle, Edmondson also tested positive for THC.

        Steve Scott, a ballistics and firearms identification expert who works for the
Tennessee Bureau of Investigation, examined both the Lorcin handgun found at the scene
and the .22 rifle found in the dumpster off Jefferson Street. Scott also received five bullets
taken from the bodies of the victims and the thirteen cartridge casings found at the crime
scene. Although Scott received the Lorcin with one cartridge, he was unable to test fire the
pistol due to a buildup of oil and lubricant that would not allow it to properly function. Scott
was able to test fire the .22 rifle. Due to the cheap quality of the rifle and the soft nature of
the .22 caliber bullets, Scott was unable to determine whether the bullets taken from the
victims’ bodies were shot from the rifle. However, Scott was able to determine with “no
doubt at all” that the thirteen shell casings found at the scene were fired from the rifle.

     At the sentencing hearing on March 20, 2009, both of the victims’ mothers and Ricky
McCorkle’s brother made victim impact statements, all requesting that the Defendant receive



                                               -3-
the maximum penalty for his crimes. The Defendant also made a statement, apologizing to
the victims’ families and asking for their forgiveness.

       The court determined that concurrent life sentences were appropriate for the felony
murder convictions. In determining the sentence for the aggravated robbery and whether to
impose consecutive sentences, the court considered the victim impact statements, the
Defendant’s allocution, Tennessee Code Annotated section 40-35-103, the characteristics of
the criminal conduct, and the evidence of mitigating and enhancing factors.

        The court cited the Defendant’s previous criminal history, including being declared
delinquent as a juvenile on a felony drug case, five misdemeanor convictions as an adult, and
six to eight arrests in cases that were dismissed or retired, as an enhancing factor. Although
the Defendant disagreed, the court also found that he was on probation at the time of the
offense and considered that as another enhancing factor. Further, the court stated that the
Defendant had no hesitation about committing a crime when the risk of human life was high.
The court considered the Defendant’s remorse at the sentencing hearing and his assistance
in solving the crime as mitigating factors. The trial court sentenced the Defendant to eleven
years for the aggravated robbery conviction. In ordering that the sentence should be served
consecutively to the felony murder convictions, the court stated that extended confinement
was necessary to protect society from the Defendant’s antisocial behavior.

      The Defendant challenges the sufficiency of the convicting evidence, the length of his
aggravated robbery sentence, and the imposition of consecutive sentences in his case.
Additionally, he argues that the trial court erred in allowing Detective Peck to give his
opinion as to the meaning of one of the Defendant’s statements.


                                        ANALYSIS


                                 Sufficiency of the Evidence
        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, (1979). The
appellate court does not reweigh the evidence; rather, it presumes that the jury has resolved
all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in


                                             -4-
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)). “This [standard]
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389,
392-93 (Tenn. Crim. App. 1999).

        Pursuant to Tennessee Code Annotated section 39-11-401, “[a] person is criminally
responsible as a party to an offense, if the offense is committed by the person’s own conduct,
by the conduct of another for which the person is criminally responsible, or by both.” As
relevant to this case, a person is criminally responsible for an offense committed by another
if “[a]cting with the intent to promote or assist the commission of the offense, or to benefit
in the proceeds or results of the offense, the person . . . aids . . . another person to commit the
offense.” Tenn. Code Ann. § 39-11-402(2).

        Aggravated robbery is the intentional or knowing theft of property accomplished with
a deadly weapon. Tenn. Code Ann. § 39-13-402. A killing committed in the perpetration
of or attempt to perpetrate robbery is felony murder. Tenn. Code Ann. § 39-13-202(a)(2).
Further, the only mental state required to commit felony murder is the intent to commit the
specific felony. Tenn. Code Ann. § 39-13-202(b).

        Here, the Defendant contends that the evidence was insufficient because there was no
evidence that he planned to rob the victims or that he even participated in the discussion to
rob the victims. However, the Defendant was aware that Williams was armed and listened
to Williams discuss his plan to rob the victims for their drugs and money. The Defendant
told Williams he would act as a lookout and admitted that he hoped to be paid for doing so.
He still expected to receive payment after hearing several gunshots and seeing Williams
return to the vehicle with McCorkle’s wallet. Further, the jury heard the recorded interview
where the Defendant answered, “Yes,” when asked if he hoped to receive payment for the
robbery. Contrary to the Defendant’s argument, there exists ample evidence for a reasonable
trier of fact to conclude that he intended to and did assist Rodney Williams in committing
aggravated robbery, making him criminally responsible for the robbery as well as the two
murders under Tennessee Code Annotated section 39-11-402(2). Accordingly, we conclude
that the evidence was sufficient to sustain the Defendant’s convictions.




                                                -5-
                             Detective Peck’s Opinion at Trial

       Next, the Defendant contends that the trial court erred by allowing Detective Peck to
give his opinion as to the meaning of a recorded statement made by the Defendant and used
as evidence at trial. The State responds that any error committed by the trial court in
allowing Detective Peck to state his opinion was harmless. During the recorded interview,
the Defendant was asked, “So when Rodney did the robbery, you were hoping to get paid
from the robbery,” to which he responded, “Yes.” At trial, the State asked Detective Peck
what that answer meant to him, and he stated, “That means to me that he’s a willing
participant.”

       The admissibility of a non-expert witness’s testimony is to be primarily judged by the
standard established in Rule 701 of the Tennessee Rules of Evidence. See State v. Justin
Bradley Haynie, No. W2006-01840-CCA-R3-CD, 2007 WL 4335481, at *18 (Tenn. Crim.
App. Dec. 7, 2007), perm. app. denied (Tenn. May 5, 2008). Rule 701 states:

       If a witness is not testifying as an expert, the witness’s testimony in the form
       of opinions or inferences is limited to those opinions or inferences which are

              (1) rationally based on the perception of the witness and

              (2) helpful to a clear understanding of the witness’s testimony
              or the determination of a fact in issue.

Tenn. R. Evid. 701(a)(1)-(2). “Because it is the jury’s duty to draw conclusions from the
evidence presented, a ‘non-expert witness must ordinarily confine his testimony to a narration
of facts based on first-hand knowledge and avoid stating mere personal opinions.” Justin
Bradley Haynie, No. W2006-01840-CCA-R3-CD, 2007 WL 4335481, at *18 (quoting State
v. Middlebrooks, 840 S.W.2d 317, 330 (Tenn. 1992)). “[T]he admission of lay opinion
testimony is limited to those situations wherein the jury could not readily draw its own
conclusions on the ultimate issue, without the aid of the witness’s opinion testimony.” State
v. McCloud, No. E2008-01541-CCA-R3-CD, 2009 WL 1643445, at *12 (Tenn. Crim. App.
June 12, 2009).

       As Detective Peck was testifying as a non-expert witness, his opinion regarding the
Defendant’s statement was not admissible under Rule 701 of the Tennessee Rules of
Evidence. Detective Peck’s opinion was not helpful to a clear understanding of his
testimony; the conversation was recorded and played for the jury, who were free to determine
the meaning of the Defendant’s statement on their own. Detective Peck’s statement was an
intrusion upon the jury’s duty to form conclusions after weighing the evidence and is the type

                                             -6-
of personal opinion by non-expert witnesses that Rule 701 seeks to eliminate. Tenn. R. Evid.
701(a)(1)-(2).

        Our finding that the trial court erred in admitting Detective Peck’s opinion does not
end our analysis. As our supreme court has stated, “[a]ll errors are not the same, nor do they
have the same effect on the judicial process in general or on a particular trial.” State v.
Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). Accordingly, our supreme court “has
recognized three categories of error-structural constitutional error, non-structural
constitutional error, and non-constitutional error.” Id. (citations omitted). As relevant to this
issue, our supreme court has noted that “errors in the admission of evidence do not normally
take on constitutional dimensions.” Id. at 375 (citing State v. Powers, 101 S.W.3d 383, 397
(Tenn. 2003)).

        In determining whether non-constitutional errors are harmless, “Tennessee law places
the burden on the defendant who is seeking to invalidate his or her conviction to demonstrate
that the error ‘more probably than not affected the judgment or would result in prejudice to
the judicial process.’” Id. at 372 (quoting Tenn. R. App. P. 36(b)). While substantial
evidence of the defendant’s guilt makes it difficult for “the defendant to demonstrate that a
non-constitutional error involving a substantial right more probably than not affected the
outcome of the trial,” harmless error inquiry “does not turn upon the existence of sufficient
evidence to affirm a conviction or even a belief that the jury’s verdict is correct.” Id. at 372.
Rather, “the crucial consideration is what impact the error may reasonably be taken to have
had on the jury’s decision making.” Id.

        Here, the Defendant has not satisfied his burden of showing that Detective Peck’s
statement prejudiced the judicial process. The jury watched the interview in which the
Defendant stated, “Yes,” after being asked if he expected to receive payment from the
robbery. The jury also heard the Defendant in the same interview admit that he knew
Williams was armed and that he planned to rob the victims. Further, the Defendant admitted
that he was acting as a lookout. The Defendant was convicted on a theory of criminal
responsibility for another’s actions, and there exists sufficient evidence to support a finding
beyond a reasonable doubt that he assisted in the aggravated robbery with the intent to
benefit in the proceeds. Considering the strength of the evidence against the Defendant,
including the Defendant’s statement, we cannot say that Detective Peck’s statement more
probably than not affected the final judgment. Detective Peck merely stated the obvious:
that a person expecting to benefit from the proceeds of a robbery is a willing participant in
the robbery. Accordingly, we conclude that the Defendant is not entitled to relief on this
issue.




                                               -7-
                                         Sentencing

       The Defendant next contends that the trial court erred in enhancing his sentence for
aggravated robbery beyond the minimum in the range. The State responds that the trial court
properly enhanced the Defendant’s sentence.

        An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. §40-35-401(d) (2006). As
the Sentencing Commission Comments to this section note, on appeal the burden is on the
defendant to show that the sentence is improper. This means that if the trial court followed
the statutory sentencing procedure, made findings of fact that are adequately supported in the
record, and gave due consideration and proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, the court may not disturb the sentence
even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991).

       In conducting its de novo review, the appellate court must consider (1) the evidence,
if any, received at the trial and 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, (5) any mitigating or statutory enhancement factors,
(6) any statement that the defendant made on his own behalf, (7) the potential for
rehabilitation or treatment, and (8) any statistical information provided by the Administrative
Office of the Courts as to sentencing practices for similar offenses in Tennessee. Tenn. Code
Ann. §§ 40-35-102, -103, -210; see also Ashby, 823 S.W.2d at 168; State v. Moss, 727
S.W.2d 229, 236-37 (Tenn. 1986).

       The Defendant committed this offense on June 18, 2006; thus, he was sentenced under
the revised sentencing act as enacted by the Tennessee General Assembly in 2005. The act
provides that:


       (c) The court shall impose a sentence within the range of punishment,
       determined by whether the defendant is a mitigated, standard, persistent,
       career, or repeat violent offender. In imposing a specific sentence within the
       range of punishment, the court shall consider, but is not bound by, the
       following advisory sentencing guidelines:


              (1) The minimum sentence within the range of punishment is the
              sentence that should be imposed, because the general assembly

                                              -8-
              set the minimum length of sentence for each felony class to
              reflect the relative seriousness of each criminal offense in the
              felony classifications; and

              (2) The sentence length within the range should be adjusted, as
              appropriate, by the presence or absence of mitigating and
              enhancement factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. 40-35-210(c)(1)-(2) (2006). “[A] trial court’s weighing of various
mitigating and enhancement factors has been left to the trial court’s sound discretion;”
therefore, the appellate court must not re-weigh such factors. State v. Carter, 254 S.W.3d
335, 345 (Tenn. 2008).

        The appropriate sentence for a Range I offender convicted of aggravated robbery is
eight to twelve years. Tenn. Code Ann. §§ 39-13-402; 40-35-112(a)(2). When sentencing
the Defendant to eleven years for the aggravated robbery conviction, the court considered the
Defendant’s criminal history, the serious bodily injury endured by the victims, that the
Defendant was on probation when the offense was committed, and that the Defendant had
no hesitation in committing a crime when the risk to human life was great in accordance with
Tennessee Code Annotated section 40-35-114. The court stated it gave “some” weight to the
Defendant’s remorse and his willingness to assist the authorities in solving the crime as
mitigating factors.

       The Defendant contends that the court erred in finding that he had no hesitation to
commit a crime when the risk to human life was high. In support of his contention, the
Defendant states that he never left the vehicle while the crimes were being committed.
However, the Defendant remained in the vehicle with the purpose of acting as a lookout
while Williams left the vehicle with a rifle to rob the victims. Although not argued by the
Defendant, this particular enhancement factor is generally inapplicable to aggravated robbery
convictions because a high risk to human life is inherent in the crime. State v. Eric DeWayne
McElmore, No. 03C01-9802-CR-00056, 1999 WL 301489, at *4 (Tenn. Crim. App. May 14,
1999), perm. app. denied (Tenn. Nov. 22, 1999). The enhancement factor “might be
applicable when the proof established the risk to the life of a person other than the victim.”
State v. Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993). However, this court has held
the enhancement factor may not be applied if the other person put at risk by the Defendant’s
conduct is the victim of a separate crime involving risk to life for which the Defendant was
convicted. See, e.g., State v. Tony E. Cannon, Jr., No. M2007-00557-CCA-R3-CD, 2008
WL 2448341 (Tenn. Crim. App. June 19, 2008). Here, the Defendant was convicted of the
aggravated robbery of Ricky McCorkle. Although Marcus Edmondson was not a victim of
the robbery because no property was taken from him, the Defendant was convicted of felony

                                             -9-
murder for his conduct that endangered Edmondson’s life. Therefore, we conclude that the
trial court improperly applied this factor.

        The Defendant also contends that the court erred in finding that he was on probation
at the time of the offense in this case. The record reflects that the Defendant was convicted
of an offense and sentenced to probation and that his probation was imposed on October 26,
2005 and expired on October 26, 2006. The Defendant committed these offenses on June
18, 2006; however, the Defendant argues that there is no evidence that he was still on
probation at the time of these offenses. He offers no evidence to suggest that his probation
had expired. Accordingly, we conclude that the record supports the trial court’s finding that
the Defendant was on probation when he committed these offenses.

       Although the trial court erred in applying that the Defendant had no hesitation to
commit a crime when the risk to human life was high as an enhancement factor, the
erroneous application does not affect the length of sentence imposed in light of the remaining
factors. The minimum sentence for an aggravated robbery conviction for a Range I offender
is eight years and the maximum sentence is twelve years. The trial court sentenced the
Defendant to eleven years for his aggravated robbery conviction. In determining his
sentence, the trial court considered, in addition to the two factors the Defendant disputes, the
serious bodily injury inflicted upon the victims and the Defendant’s extensive criminal
records. The court also considered two mitigating factors, the Defendant’s remorse
expressed at the sentencing hearing, and his willingness to assist authorities. After
identifying and balancing the mitigating and enhancing factors, the court found that an eleven
year sentence was appropriate for the Defendant’s offenses. We cannot say that the
Defendant’s sentence is inappropriate because one enhancement factor was improperly
applied when several other enhancement factors exist. Further, the Defendant was still
sentenced below the maximum twelve years for a Range I offender convicted of aggravated
assault. Therefore, we conclude that the record supports the imposition of a sentence three
years above the minimum for aggravated robbery.

                                   Consecutive Sentencing

       The Defendant further contends that the trial court inappropriately imposed the
sentence for aggravated robbery to run consecutively to the felony murder sentences. The
State responds that the trial court properly imposed consecutive sentences.

         Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b),
which states, in pertinent part, that the trial court may order sentences to run consecutively
if it finds by a preponderance of the evidence that “[t]he defendant is a dangerous offender
whose behavior indicates little or no regard for human life, and no hesitation about

                                              -10-
committing a crime in which the risk to human life is high” or “is sentenced for an offense
committed while on probation.” Tenn. Code Ann. § 40-35-115(b)(4), (6) (2006). When
imposing consecutive sentences based on the defendant’s status as a dangerous offender, the
trial court must, “in addition to the application of general principles of sentencing,” find “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.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.1995). In all cases
where consecutive sentences are imposed, the trial court is required to “specifically recite [on
the record] the reasons” behind imposition of consecutive sentences. See Tenn. R. Crim. P.
32(c)(1); see, e.g., State v. Palmer, 10 S.W.3d 638, 647-48 (Tenn. Crim. App. 1999) (noting
the requirements of Rule 32(c)(1) for purposes of consecutive sentencing).

        Here, the trial court followed the appropriate guidelines for imposing consecutive
sentences. The Defendant contends that the record does not support the trial court’s finding
that a consecutive sentence was necessary to protect the public and was reasonably related
to the severity of the crime and that therefore, the court wrongly based the consecutive
sentence on his being a dangerous offender. However, the trial court found that the
Defendant had an increasingly severe criminal record that culminated in the loss of two
human lives in this case. Further, the court also found that the Defendant was on probation
at the time of these offenses. Only one factor is needed for the trial court to act within its
discretion to impose consecutive sentences. See Tenn. Code Ann. § 40-35-115, Sentencing
Comm’n Cmts; State v. Luis Castanon, No. M2003-01491-CCA-R3-CD, 2005 WL 544724,
at *6 (Tenn. Crim. App. March 8, 2005), perm. app. denied (Tenn. Aug. 22, 2005).
Following our review, we conclude that the record supports the trial court’s finding that the
Defendant was a dangerous offender and was on probation at the time of these offenses and
that the imposition of consecutive sentences was appropriate.

                                        CONCLUSION

       In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.




                                                     ________________________________
                                                     D. KELLY THOMAS, JR., JUDGE




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