         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 3, 2004

          STATE OF TENNESSEE v. CHRISTOPHER KIRKENDALL

                      Appeal from the Criminal Court for Shelby County
                           Nos. 02-02068, 69   Chris Craft, Judge


                  No. W2004-00784-CCA-R3-CD - Filed September 16, 2004


The defendant, Christopher Kirkendall, indicted for one count of attempted first degree murder and
two counts of aggravated robbery, was convicted of facilitation of attempted second degree murder
and two counts of facilitation of aggravated robbery, all Class C felonies. The trial court imposed
a sentence of six years for facilitation of attempted second degree murder and, after merging the
robbery convictions, imposed a five-year sentence for one count of facilitation of aggravated robbery.
The sentences were ordered to be served consecutively to each other and consecutively to a
previously imposed twelve-year sentence for an unrelated offense. In this appeal of right, the
defendant challenges the sufficiency of the identity evidence and argues that the sentences should
be concurrently served. Since the filing of the briefs, the defendant has also asked to consider the
impact of the ruling in Blakely v. Washington, 542 U.S. ____ , 124 S. Ct. 2531 (2004), as to the
lengths of the sentences. The judgments are affirmed as modified.


           Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed as Modified

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J., joined.
THOMAS T. WOODALL, J., filed a separate opinion, concurring in part and dissenting in part.

W. Mark Ward (on appeal) and Trent Hall (at trial), Assistant Public Defenders, for the appellant,
Christopher Kirkendall.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General; and
Reginald Henderson, Assistant District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        On November 27, 2001, David Dickey, a Pizza Hut employee, was directed to 1425 Frayser
Boulevard in Memphis to deliver a pizza. When he arrived in his 1999 Ford Contour automobile,
the house was unoccupied but three men met him in the driveway. One of the men was armed with
a pistol and ordered the victim to the ground. As the armed assailant held a gun to the victim's
cheek, the two other men took his wallet, which contained over $300 in cash, a delivery bag
containing the pizzas, and his other personal belongings. After emptying the pockets of the victim,
the armed assailant, later identified as the defendant, shot the victim in the back of the head. The
three men left in the victim's vehicle and the victim, who had not lost consciousness, sought help
from a nearby resident who summoned the police. The victim was able to identify the defendant as
the gunman from a photographic lineup. Later, at trial, the victim again identified the defendant as
the armed assailant.

        Officer Kent Workman, who was dispatched to the scene, found that the house at 1425
Frayser Boulevard was vacant. An empty pizza bag was on the bloodstained driveway. Because
there was a yard light and a street light, the officer described the area as relatively well lit. Despite
his injury, the victim was alert and was able to provide the officer with the details of the incident,
including a description of his assailants. The victim also provided a description of his vehicle and
license tag number.

       Two days later, Patrol Officer Eugene Cicalla observed the victim's car at the 76 Snack Shop
on Frayser Boulevard. A juvenile was inside the vehicle and the defendant and another individual
were nearby. All three men were arrested.

        The defendant did not testify. His sister, Angela Kirkendall, with whom the defendant was
living at the time of the trial, testified that the defendant was with her at their residence at the time
of the crimes.

         Laquita Nisby Kirkendall, the defendant's sister-in-law, testified that "right before dark" on
the day of the robbery, she had asked for a pizza for dinner. She claimed that her boyfriend at the
time, Joseph Jones, and two other men, identified as Net and Arthur, ordered pizza and then left "on
foot," returning about 45 minutes later. She contended that the men were in possession of pizza,
money, a wallet, a gun, and a cell phone. Ms. Kirkendall testified that after she later saw an account
of the robbery on the news, she contacted Crime Stoppers and identified Jones as a likely participant
in the crimes.

       In this appeal, the defendant first argues that the identity evidence was insufficient. He also
contends that he should not have been classified as a dangerous offender for consecutive sentencing
purposes and insists that the length of the terms was excessive.

                                                  I
       The argument of the defendant is that his conviction is based almost entirely upon the
eyewitness identification by the victim, who had no prior acquaintance with his assailant. The
defendant points out that there was a possibility of misidentification because the crime took place
at night and because the victim was lying face down on the ground, fearful for his life. The
defendant submits that a rational trier of fact could not have found the defendant guilty beyond a
reasonable doubt.



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         On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most favorable
to the state, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn.
298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilt removes the presumption of innocence
and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that
the evidence was legally insufficient to sustain a guilty verdict. State v. Evans, 838 S.W.2d 185, 191
(Tenn. 1992).

        Evidence offered to prove identity can be either direct or circumstantial. State v. Thompson,
519 S.W.2d 789, 793 (Tenn. 1975). In State v. Beal, this court held that the reliability of an in-court
identification depended upon the totality of the circumstances, "including the opportunity of the
witness to view the offender at the time of the crime, the witness's degree of attention, the accuracy
of the prior description of the offender, the level of certainty of the witness at the confrontation, and
the length of time between the crime and the confrontation." 614 S.W.2d 77, 82 (Tenn. Crim. App.
1981) (citing Neil v. Biggers, 409 U.S. 189, 199 (1972); Manson v. Brathwaite, 432 U.S. 98, 114
(1977); Rippy v. State, 550 S.W.2d 636, 639-40 (Tenn. 1977)). So long as it is not impermissibly
or unreasonably suggestive, a photographic display is a legally viable alternative means of
identification. Shye v. State, 506 S.W.2d 169, 173-75 (Tenn. Crim. App. 1973).

        In this instance, the victim made an unequivocal identification of the defendant first from a
photographic array and later during the course of the trial. The identification of a defendant as the
person who has committed the crime is a question of fact for the jury. Stubbs v. State, 216 Tenn.
567, 393 S.W.2d 150 (1965); White v. State, 533 S.W.2d 735 (Tenn. Crim. App. 1975). The
testimony of a victim identifying the defendant as the perpetrator is sufficient to support a
conviction. State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993). The jury, which
saw and heard the witnesses firsthand, chose to accredit the testimony of the victim, as was their
prerogative. See State v. Summerall, 926 S.W.2d 272, 275 (Tenn. Crim. App. 1995). In our view,
the evidence was sufficient for a rational trier of fact to have found beyond a reasonable doubt that
the defendant committed the crimes.

                                                    II
        Next, the defendant argues that the trial court erred by enhancing the lengths of the sentences
to five and six years and by ordering the terms to be served consecutively. As a Range I offender
convicted of Class C felonies, the defendant qualified for a sentence of between three and six years
on each conviction. When there is a challenge to the length, range, or manner of service of a
sentence, it is the duty of this court to conduct a de novo review with a presumption that the


                                                   -3-
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). 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); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). “If the trial
court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the
presumption of correctness falls.” State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
The Sentencing Commission Comments provide that the burden is on the defendant to show the
impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

       In calculating the sentence for a Class C felony conviction, the presumptive sentence is the
minimum in the range if there are no enhancement or mitigating factors. Tenn. Code Ann. §
40-35-210(c). If there are enhancement but no mitigating factors, the trial court may set the sentence
above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A sentence
involving both enhancement and mitigating factors requires an assignment of relative weight for the
enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35- 210(e). The
sentence must then be reduced within the range by any weight assigned to the mitigating factors
present. Id. If the trial court's findings of fact are adequately supported by the record, this court may
not modify the sentence even if it would have preferred a different result. State v. Fletcher, 805
S.W.2d 785 (Tenn. Crim. App. 1991).

        At the conclusion of the sentencing hearing, the trial court found three enhancement factors
as to the facilitation of aggravated robbery and four enhancement factors as to the facilitation of
attempted second degree murder. As to each conviction, the trial court, by a preponderance-of-the-
evidence standard, concluded that the following factors applied:

        (2)     That the defendant has a previous history of criminal convictions or criminal
        behavior in addition to those necessary to establish the appropriate range;
        (3)     that the defendant was the leader in the commission of an offense involving
        two or more criminal actors;
        (21) that the defendant as a juvenile had committed two separate delinquent acts
        at ages 13 and 14 that would constitute felonies if committed by an adult.

See Tenn. Code Ann. § 40-35-114(2), (3), (21) (2003). As to facilitation of attempt to commit
murder in the second degree, the trial court also applied enhancement factor (10), that the defendant
possessed or employed a firearm during the commission of the offense. See Tenn. Code Ann. § 40-
35-114(10) (2003). There were no findings as to any mitigating factors.


                                                   -4-
       Under the terms of the 1989 Act, the term of each sentence would be entirely appropriate.
Three enhancement factors applied to the five-year sentence and four applied to the six-year
sentence.

         The United States Supreme Court's recent opinion in Blakely v. Washington, 542 U.S. ____,
124 S. Ct. 2531 (2004), however, calls into question the continuing validity of our current sentencing
scheme. In that case, the Court, applying the rule in Apprendi v. New Jersey, 566 U.S. 466, 490
(2000), struck down a provision of the Washington sentencing guidelines that permitted a trial judge
to impose an "exceptional sentence" upon the finding of certain statutorily enumerated enhancement
factors. Id. The Court observed that "the 'statutory maximum' for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant." Id. at 2537 (emphasis in original). Finally, the Court concluded that
"every defendant has a right to insist that the prosecutor prove to a jury [beyond a reasonable doubt]
all facts legally essential to the punishment." Id. at 2543 (emphasis in original).

        Under the rule established in Blakely, the defendant's prior convictions may be used to
enhance the sentences. With regard to that factor, the trial court in this instance gave "fairly good
weight" to a prior aggravated robbery offense, a Class B felony, because "there was a deadly weapon
used." The state submits that the application of enhancement factor (21), that the defendant was
adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony
if committed by an adult, is appropriate because it is based upon prior convictions. Under our law,
however, juvenile adjudications differ fundamentally from criminal convictions. The purpose of
juvenile justice laws is to "remove from children committing delinquent acts the taint of criminality
and the consequences of criminal behavior." Tenn. Code Ann. § 37-1-101. Moreover, our statutes
provide that "adjudication in a proceeding under this part is not a conviction of a crime." Tenn. Code
Ann. § 37-1-133(a). In our view, juvenile adjudications do not qualify as prior convictions under
the rule established in Apprendi and Blakely.

        The remaining factors, enhancement factors (3) and (10), are not based on prior convictions
and were not admitted by the defendant. In consequence, the holding in Blakely would preclude
their application. In our view, by application of the ruling in Blakely, the term of each sentence
should be modified to four years, one year above the minimum.

        The defendant also asserts that the trial court erred by ordering consecutive sentencing. Prior
to the enactment of the Criminal Sentencing Reform Act of 1989, the limited classifications for the
imposition of consecutive sentences were set out in Gray v. State, 538 S.W.2d 391, 393 (Tenn.
1976). In that case, our supreme court ruled that aggravating circumstances must be present before
placement in any one of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987),
the court established an additional category for those defendants convicted of two or more statutory
offenses involving sexual abuse of minors. There were, however, additional words of caution:




                                                 -5-
                  [C]onsecutive sentences should not routinely be imposed . . . and . .
                  . the aggregate maximum of consecutive terms must be reasonably
                  related to the severity of the offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the cautionary
language. Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments. The 1989 Act is, in
essence, the codification of the holdings in Gray and Taylor; consecutive sentences may be imposed
in the discretion of the trial court only upon a determination that one or more of the following
criteria1 exist:

                  (1) The defendant is a professional criminal who has knowingly
                  devoted himself 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 so
                  declared by a competent psychiatrist who concludes as a result of an
                  investigation prior to sentencing that the defendant's criminal conduct
                  has been characterized by a pattern of repetitive or compulsive
                  behavior with heedless indifference to consequences;
                  (4) 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;
                  (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).

        The length of the sentence, when consecutive in nature, must be "justly deserved in relation
to the seriousness of the offense," Tenn. Code Ann. § 40-35-102(1), and "no greater than that
deserved" under the circumstances, Tenn. Code Ann. § 40-35-103(2); State v. Lane, 3 S.W.3d 456
(Tenn. 1999).


         1
          The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
convictions, may enhance the sentence range but is no longer a listed criterion. See Tenn. Code Ann. § 40-35-115,
Sentencing Commission Comments.

                                                          -6-
         In Gray, our supreme court ruled that before consecutive sentencing could be imposed upon
the dangerous offender, considered the most subjective of the classifications and the most difficult
to apply, other conditions must be present: (a) that the crimes involved aggravating circumstances;
(b) that consecutive sentences are a necessary means to protect the public from the defendant; and
(c) that the term reasonably relates to the severity of the offenses. In State v. Wilkerson, 905 S.W.2d
933, 938 (Tenn. 1995), our high court reaffirmed those principles, holding that consecutive sentences
cannot be required of the dangerous offender "unless the terms reasonably relate[] to the severity of
the offenses committed and are necessary in order to protect the public (society) from further
criminal acts by those persons who resort to aggravated criminal conduct." The Wilkerson decision,
which modified somewhat the strict factual guidelines for consecutive sentencing adopted in State
v. Woods, 814 S.W.2d 378, 380 (Tenn. Crim. App. 1991), described sentencing as a "human process
that neither can nor should be reduced to a set of fixed and mechanical rules." 905 S.W.2d at 938.

         The trial court imposed consecutive sentencing, finding that the defendant was a dangerous
offender. After determining that "the circumstances surrounding the commission of this offense are
aggravated" and "completely unnecessary," the trial court concluded that "this man fired a bullet into
this man's head just because he wanted to, for no other necessary reason." Had the victim not turned
his head as the gun was fired, he might not have survived. The trial court observed that the
defendant had been expelled from school for fighting, that he had an extensive history of delinquent
acts as a juvenile, and that he had resorted "to criminal activity in furtherance of an antisocial
lifestyle." The court described the defendant as "rambling wild" and without a care "about anything
or anybody," having been on probation several times unsuccessfully. Observing that the defendant
had attempted and failed at several rehabilitative programs, the trial court ruled that the aggregate
length of the sentence was reasonable in relation to the seriousness of the offenses. Because the trial
court made findings of fact, as required, and properly classified the defendant as a dangerous
offender, it is our view that consecutive sentencing was appropriate.

       Accordingly, each of the sentences is modified to four years. The terms shall be served
consecutively, however, for an effective sentence of eight years. Otherwise, the judgments are
affirmed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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