         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                              JULY SESSION, 1999          October 8, 1999

                                                     Cecil Crowson, Jr.
                                                    Appellate Court Clerk
STATE OF TENNESSEE,             )    C.C.A. NO. 01C01-9810-CR-00400
                                )
      Appellee,                 )
                                )
                                )    DAVIDSON COUNTY
VS.                             )
                                )    HON. RANDALL WYATT, JR.
REGINALD COBB,                  )    JUDGE
                                )
      Appe llant.               )    (Direct Appeal - Aggravated
                                )    Assault/Trespassing)




FOR THE APPELLANT:                   FOR THE APPELLEE:

JEFFREY A. DEVASHER                  PAUL G. SUMMERS
Assistant Pu blic Defende r          Attorney General & Reporter
(on ap peal)
                                     LUCIAN D. GEISE
RICHARD TENNENT                      Assistant Attorney General
Assistant Public Defender            425 Fifth Avenu e North
(at trial)                           Nashville, TN 37243

IVAN ETTA DAV IS                     VICTOR S. JOHNSON
Assistant Public Defender            District Attorney General
(at trial)
1202 Stahlman Building               BRET GUNN
Nashville, TN 37201                  Assistant District Attorney
                                     Washington Sq., Ste. 500
                                     Nashville, TN 37201




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                             OPINION



      The appe llant, Reginald Cobb, was charged in a seven (7) count

indictment with two (2) counts of aggravated assault, one (1) count of aggravated

burglary, two (2) counts of unlawful possession of a weapon and two (2) coun ts

of felony reckle ss en dang erme nt. A D avids on Co unty ju ry foun d the a ppella nt

guilty of two (2) counts of aggravated assault, one (1) count of criminal trespass,

one (1) count of unlawful possession of a weapon and two (2) counts of

misdemeanor reckless endangerment. The trial court sentenced the appellant

as a Range II offender to consecutive terms of seven (7) years for each

aggravated assault conviction and eleven (11) months and twenty-nine (29) days

for misde mean or reckles s enda ngerm ent. 1                   The trial co urt further imposed

concurrent sentences of thirty (30) days for criminal trespass and two (2) years

for felonious possession of a weapon. On appeal, the appellant claims that the

trial court erred in (1) failing to sever Counts Six and Seven from the remainder

of the indictment, and (2) imposing consecutive sentences. After a thorough

review o f the record before th is Court, w e affirm the judgm ent of the tria l court.




                                                 FACTS




      In August 1996, the appellant and Ester Johnson began dating, and soon

thereafter, the appellant moved in with Johnson, Johnson’s four children,



      1
          The trial co urt merg ed the ap pellant’s two convictio ns for m isdem eanor re ckless endan germe nt.

                                                    -2-
John son’s brother, Anthony Crenshaw, and Crenshaw’s fiancé, Sherry Carr. The

appellant and Johnson had an agreement whereby the appellant would drive

John son’s son, James, to school each morning. On the morning of October 29,

1996, the ap pellant was not at home, so Johnson had to take James to school

herself. On the way, Johnson observed the appellant’s car in the parking lot of

Shon ey’s on Trinity Lane in Nashville. Johnson became upset and decided to go

inside Sh oney’s a nd con front the ap pellant.

      Johnson and the appellant argued for several minutes, and when Johnson

walked out of the restaurant, the appellant followed her. Johnson got into her car

and attemp ted to drive out of the p arking lot. However, the appellant opened the

driver’s side car door and attempted to get into the car. As Johnson was backing

her car out of the parking lot, the appellant held onto the steering wheel and

repea tedly struck John son w ith his fre e han d. The strugg le con tinued until

Johns on’s veh icle ran into another car traveling on Trinity Lane and then came

to a rest after striking a telephone pole. After the vehicle came to a rest, the

appellant procla imed , “[b]itch, y ou’re goin g to take the blame for this.” The

appellant then fled from the scene in another automobile.       Johnson sustained

three (3) broken bo nes in her an kle, and Jam es, who w as also prese nt in the car,

received a neck injury as a result of the incident.        After meeting with law

enforcement authorities, Johnson took out warrants against the appe llant for th is

incident.

      Several days later, the appellant contacted Johnson from Mem phis, where

he was staying in a hotel room. Johnson traveled to Memphis in an attemp t to




                                         -3-
recon cile with the appellant, but the me eting end ed violen tly. Johnson testified

at trial that she had no further con tact with the appellan t until Dece mber 6 .

       On the evening of December 6, the appellant telephoned Johnson from a

hotel in Nashville. He wanted Johnson to visit him at his hotel and demanded

that she drop the charges against him for the incident on October 29. When she

refused , he threa tened to kill her.

       The next morning, Johnson and a male friend, Steven Lewis, were lying on

her bed when the ap pellan t walke d into J ohns on’s bedroom. Johnson testified

that she did not invite the appellant to come over. The appellant looked at

Johnson, smiled and said, “Bitch.” He then put his ha nd in his p ocket, pulled out

a handgun, cocked the gun and put it in John son’s fac e. . However, when the

appellant pulled the trigger, the gun did not fire. After hitting Johnson with the

gun, the appellant then pointed the gun towards Lewis, cocked it and pulled the

trigger. Once again, the gun did not fire. Lewis, Johnson and the appellant

struggled for the gun, and Johnson yelled for the assistance of Crenshaw. Lewis

extricated himself from the fight and fled from the residence.

       Crenshaw, who was in the next room , heard the sc uffle an d ran in to his

sister’s bedroom to assist. As Crenshaw attempted to grab the appellant away

from his siste r, he go t caug ht in the struggle as well. At some point, a second

gun was produced, and Johnson fired this gun during the struggle. Crenshaw

ran to a neighbor’s residence to call emergency personnel, but Johnson testified

that she and the appellant con tinued to fight. Johns on fired the gun several mo re

times, striking the ap pellant in the groin and bu ttocks.   Th e appe llant then left

Johns on’s resid ence, b ut was a pprehe nded b y the police a short tim e later.


                                         -4-
       The appellant was charged in a seven (7) count indictment with the

aggravated assault of Ester Johnson on December 7 in Count One, the

aggravated assault of Steven Lewis on December 7 in Count Two, the

aggravated burglary of Johnson’s residence on December 7 in Count Three, the

unlawful posse ssion of a weapon on December 7 in Counts Four and Five, the

felonious reckless endangerment of Ester Johnson on October 29 in Count Six,

and the felonious reckle ss en dang erme nt of Ja mes Jacks on on Octo ber 29 in

Count Seven . The jury returned guilty verdicts for two (2) counts of aggravated

assa ult as alleged in Counts One and Two, the lesser included offense of criminal

trespass in Count Three, unlawful possession of a weapon as alleged in Count

Four and the lesser included offense of misdemeanor reckless endangerment in

Coun ts Six and Seven. The trial court merged the appellant’s convictions for

misdemeanor reckless endangerment in Counts S ix and Seve n.                The jury

acquitted the ap pellan t of unla wful po sses sion o f a wea pon in Count Five of the

indictme nt.

       The trial court sentenced the appellant as a Range II offender to concurrent

sentences of thirty (30) days for criminal trespass and two (2) years for felonious

possession of a weapon. The trial court also imposed consecutive terms of

seven (7) years for each aggravated assault conviction and eleven (11) months

and twenty-nine (29) days for misdemeanor reckless endangerment, giving the

appellant an effective sentence of fourteen (14) years, eleven (11) months and

twenty-nine (29) days. From his convictions and sentences, the appellant brings

this ap peal.




                                         -5-
                          SEVERANCE OF OFFENSES




      In his first issue , the appe llant claims that the trial co urt erred in failing to

sever Counts Six and Seven charging felony reckless endangerment from the

rest of the indictment. He argues that the offenses charged in Counts Six and

Seven are not part of a common scheme or plan with the offenses charged in

Coun ts One through Five of the indictment. In addition, he contends that the

evidence of the reckless endangerment counts would not be admissible in the

trial of the re main ing co unts. T herefo re, he a sserts that he was e ntitled to a

severance of offenses un der Tenn. R . Crim. P. 14(b)(1 ).

       Prior to trial, the court held a hearing to determ ine whe ther to sev er Cou nts

Six and Seve n of the indictme nt. The trial court concluded that evidence of the

incident on October 29 would give the jury a clearer understanding about the

relation ship betwe en the a ppellant a nd Joh nson. F urther, the trial court found

that evidence of the October 29 incident would be permissible evidence of intent

and the motive for the incident on December 7. As a result, the trial court

concluded that Counts Six and Seven of the indictment charging the appellant

with reckless endangerment would not be severed from Counts One through Five

of the indic tment.

       Under Tenn. R. Crim. P. 8(b), “[t]wo or more offenses may be joined in the

same indictment . . . with each offense stated in a separate count, . . . if the

offenses constitute parts o f a com mon sche me o r plan o r if they are of the same

or similar character.” However, if offenses are joined in the same indictment

pursuant to Tenn. R. Crim. P. 8(b), a defendant “shall have a right to a severance


                                           -6-
of the offenses unless the offenses are part of a common scheme or plan and the

evidence of one would be admissible upon the trial of the others.” Tenn. R. Crim.

P. 14(b)(1).     Under Tenn . R. Crim . P. 14(b)(1 ), the trial cour t is required to

conduct a pretrial hearing to determine whether (1) the offe nses a re part of a

common scheme or plan; and (2) the evidence of one offense would be

adm issible in the trial of the other offen se(s). State v. Hoyt, 928 S.W.2d 935, 944

(Tenn. Crim . App. 1995 ).

      The trial court is first required to determ ine whethe r the offenses are part

of a comm on schem e or plan.        “A com mon sch eme or plan for severance

purposes is the same as a com mon s chem e or plan for eviden tiary purpo ses.”

State v. Hallock, 875 S.W .2d 285, 289 -90 (Tenn. C rim. App. 199 3). There are

three different types of “common scheme or plan” evidence: (1) distinctive

designs or signature crimes; (2) a larger continuing plan or conspiracy; and (3)

the same transactio n. State v. Hoyt, 928 S.W.2d at 943; State v. Hallock, 875

S.W.2d at 290.

      To qualify as signature crimes, the modus operandi must be so
      unique and distinctive as to b e like a signature. Th e larger,
      continuing plan category encompasses groups or sequences of
      crimes committed in order to achieve a common ultimate goal or
      purpose. The same transaction category involves crimes which
      occur within a single criminal episode.

Hallock, 875 S.W.2d at 290 (citing N. Cohen, D. Paine & Shepp eard, Tennessee

Law of Evidence, § 404.11 (2n d ed. 1990 )).

      Under the second prong of Tenn. R. Crim . P. 14( b)(1), th e trial co urt is

required to determ ine the ad missibility of the evidence of one crime in the trial of

the other(s). Hoyt, 928 S.W.2 d at 944 . Evidence that the defendant committed



                                         -7-
crimes other than that for which he is on trial is typically inadmissible due to the

danger that the jury might infer guilt from propens ity. Tenn. R. Evid. 40 4(b).

Howe ver, evidence of other crimes, wrongs or acts may be admissible if that

evidence is relevan t to an issu e other th an cha racter. Id.; Hoyt, 928 S.W.2d at

944. In order for a trial court to properly admit evidence of other crimes under

Tenn. R. Evid. 404(b), the court must hold a jury-out hearing to determine

whether the evidence is relevant to issues such as the de fendan t’s motive , intent,

guilty knowle dge, iden tity, or the ab sence of mistak e or accid ent. Hoyt, 928

S.W.2d at 944. Moreover, the trial court must conclude that the probative value

of the evidence outweighs the prejudicial effect to the defendant. Tenn. R. Evid.

404(b); Hoyt, 928 S.W.2d at 944.

      In the present case, we conclude that the trial court erred in finding that the

crimes committed on October 29 and December 7 constituted a common scheme

or plan under the first prong of Tenn. R. Crim. P. 14(b)(1). The crimes were in

no way sim ilar and, therefore, are not so unique and distinctive “as to be like a

signature .” See Hallock, 875 S.W.2d at 290. The October 29 offenses w ere

committed when the appellant recklessly interfered with Johnson’s driving,

causing her automobile to collide with another. In contrast, the De cembe r 7

offenses were committed when the appellant entered Johnson’s home

brandishing a handgun. Furthermore, there is no evidence in the record that the

crimes were planned to achieve a comm on ultima te goal or p urpose . Moreove r,

as the offenses occurred more than thirty (30) days apart, they can not be part

of the same criminal episode.




                                         -8-
      On the other hand, under the second prong of Tenn. R. Crim. P. 14(b)(1),

evidence of the offenses on October 29 would be admissible in the trial for the

offenses on De cemb er 7. After the commission of the offenses on October 29,

Johnson initiated criminal proceedings against the appellant. On December 6,

the appellant telephoned Johnson and demanded that she drop the charges

against him. W hen s he refu sed, th e app ellant th reaten ed to k ill her. The next

day, the appellant entered Johnson’s home and pointed a weapon at Johnson

and her friend, Le wis.    Evid ence o f the Octo ber 29 o ffenses is relevant to

establish the app ellant’s m otive for the Decem ber 7 offe nses. See State v.

Smith , 868 S.W.2d 561, 574 (Tenn. 1993).            Additionally, evidence of the

appe llant’s threat esta blishes th e appe llant’s intent to com mit an assault when he

entered the residence, an element of the charged offense of aggravated burglary.

      Because the crimes committed on October 29 and December 7 did not

constitute a comm on schem e or plan, the trial court erred in denying the

appe llant’s motion to sever the offenses. However, we conclude that such error

was harmless in that the appellant has failed to establish that he was prejudiced

by the trial cour t’s failure to se ver Co unts Six a nd Sev en from the rest of th e

indictme nt. State v. Hodgkinson, 778 S.W .2d 54, 61 (Tenn. C rim. App. 198 9).

As previo usly noted, evidence of the October 29 offenses (Counts Six and

Seven) would be admissible in the trial of the other offenses (Counts One through

Five). Moreover, the appellant was convicted of the lesser offense of criminal

trespass in Count Three, the lesser offenses of m isdemeanor reckless

endangerment in Counts Six and Seven and acquitted of felonious possession

of a weapon in Count Five of the indictment. Clearly, the jury properly considered


                                          -9-
the evide nce fo r each offens e sep arately and did not improperly infer guilt as a

result. Thus, the appellant has not established that he was prejudiced by the

failure to sever th e offense s. See State v. Wiseman, 643 S.W.2d 354, 363

(Tenn. Crim. A pp. 1982). The error in failing to sever was harmless. Tenn. R.

Crim. P. 52(a ).




                         CONSECUTIVE SENTENCING




      In his next issue, the appellant argues that the trial court erred in ordering

that some of his sentences run consecutively.         This Court’s review of the

sentence imposed by the trial court is de novo with a presumption of correctness.

Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an

affirmative showin g in the rec ord that th e trial judge considered the sentencing

principles and all relevant facts and circums tances . State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991).       If the trial court fails to comp ly with the statutory

directives, there is no presumption of correctness and our review is de novo.

State v. Poo le, 945 S.W .2d 93, 96 (Te nn. 1997).

      The burde n is up on the appe aling p arty to s how that the sente nce is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comm ents.

In conducting our review, we are required, pursuant to Tenn. Code Ann. §

40-35-210, to consider the following factors in sentencing:

      (1) [t]he evidence, if any, received at the trial and the sentencing
      hearing;

      (2) [t]he pre senten ce repo rt;



                                         -10-
      (3) [t]he principles of sentencing and arguments as to sentencing
      alternatives;

      (4) [t]he nature and characteristics of the criminal conduct involved;

      (5) [e]vidence and information offered by the parties on the
      enhancement and mitigating factors in §§ 40-35-113 and 40-35-114;
      and

      (6) [a]ny state ment th e defen dant w ishes to make in the defen dant's
      own behalf about sentencing.

      Consecutive sentencing is governed by Ten n. Cod e Ann. § 40-35-1 15. A

trial court may order sentences to run consecutively if it finds that one or more of

the statutory criteria exists by a preponderance of the evidence. Tenn. Code

Ann. § 40-35 -115(b); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App.

1995). Additionally, a trial court must also find that an exten ded s enten ce is

“necessary to protect the public against further criminal conduct by the defendant

and that the cons ecutive s entenc es mu st reason ably relate to the severity of the

offenses com mitted.” State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5).

      In imposing the app ellant’s sen tences , the trial court fo und tha t the

appellant was a dangerous offender whose behavior indicated little regard for

human life and no hesitation about committing a crime in which the risk to human

life was high. Tenn. Code Ann. § 40-35-115(b)(4). The trial court also noted that

the appellant had an extensiv e record of crimina l activity. See Tenn. Code Ann.

§ 40-35-115(b)(2). The trial court further found that consecutive sentences were

related to the severity of the crime s comm itted by the defend ant and w ere

necessa ry to protect the public against further criminal condu ct by the d efenda nt.

As a result, the trial court ordered that the appellant’s sentences for both co unts




                                         -11-
of aggravated assault and his sentence for misdemeanor reckless endangerment

run conse cutively to one an other. 2

        After thorou ghly reviewing the record before this Court, we conclude that

the trial court pro perly imp osed c onsec utive sen tences . The rec ord fully su pports

the trial court’s finding that the appella nt is a dan gerou s offen der w ho ha s little

regard for hum an life and no hesitation about committing a crime where the risk

to human life is high. Tenn. Co de Ann. § 4 0-35-115(b )(4). The evidence at trial

showed that on October 29, the appe llant follo wed John son fro m the Shon ey’s

restaura nt, forced his way into her car and interfered with her driving while on a

busy street in Nashville endangering not only M s. Johnson but other me mbers

of the public as well. He repeatedly struck Johnson and tried to gain control of

her vehicle until he r vehic le collided with another car and then ran into a

telephone pole. Appro xima tely one m onth la ter, the a ppella nt ente red Jo hnso n’s

home carrying a weapon. He walked into Johnson’s bedroom, callously smiled,

pointed the weapon at Johnson and pulled the trigger. Fortunately, the gu n did

not fire. However, the appellant struck Johnson with the weapon and then

pointed the weapon at Lewis and pulled the trigger again. It is clear that th e

appellant has little regard for human life and no hesitation about committing a

crime where the risk to human life is high.

        Secondly, we agree with the trial court that the appellant has an extensive

record of criminal activity. Tenn. Code Ann. § 40-35-115(b)(2). At the time of

sentencing, the appellant was twenty-seven (27) years of age.                                  He had




        2
           The trial court ordered that the appellant receive concurrent sentences for his convictions for
criminal trespass and unlawful possession of a weapon.

                                                  -12-
appro xima tely eighteen (18) prior convictions for various felonies and

misdemeanors. More over, h e had num erous arrests as we ll as app roxim ately

ten (10) pending charges against him.

      Finally, we conclude that the aggregate term imposed by the trial cou rt is

reaso nably related to the severity of the offenses committed by the appellant and

that consecutive sentencing is necessary to protect the public against further

criminal condu ct by the a ppellant. See State v. Wilkerson, 905 S.W.2d at 939.

The trial court properly imposed consecutive sentences in this case.

      This issu e is withou t merit.




                                  ____________________________________
                                  JERRY L. SMITH, JUDGE




CONCUR:




___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




                                       -13-
