        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs February 27, 2013 at Knoxville

               STATE OF TENNESSEE v. RICKY EARL GENES

                  Appeal from the Circuit Court for Hickman County
                    No. 2010-CR-5179       Derek K. Smith, Judge


                  No. M2012-02284-CCA-R3-CD - Filed April 8, 2013


The defendant, Ricky Earl Genes, pleaded guilty to three counts of aggravated assault, and
the Hickman County Circuit Court sentenced him as a Range I, standard offender to a term
of 18 years’ imprisonment. On appeal, the defendant argues that the trial court erred in its
application of certain enhancement factors. In addition, the defendant challenges both the
manner of service and the alignment of his sentences. Discerning no error, we affirm the
judgments of the trial court.

             Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

James R. Potter, Clarksville, Tennessee, for the appellant, Ricky Earl Genes.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Michael J. Fahey, II, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              On August 4, 2010, the Hickman County Grand Jury charged the defendant
with four counts of attempted first degree murder, four counts of aggravated assault, and four
counts of felony reckless endangerment arising out of a single episode on February 2, 2010.
On May 24, 2012, the defendant, who was 19 years old at the time of the offenses, pleaded
guilty to three counts of aggravated assault. Pursuant to the plea agreement, the State
recommended that the defendant be sentenced as a Range I, standard offender, but the plea
agreement left sentencing to the trial court’s discretion.
               At the plea submission hearing, the State offered the following facts in support
of the plea:

               [O]n the date alleged in the indictment, a gentleman here, who
               had a home here in Hickman County, Norman Roberts, he had
               a . . . niece who also lived here named Levika Woodard, who
               was a co-defendant in this case. That Ms. Woodard had been
               dating the defendant, Mr. Genes, for approximately five, six
               months, something to that effect. That there had been some
               phone calls, or at least an attempt to have some phone calls,
               between Levika Woodard, [the defendant] and her uncle,
               Norman Roberts, concerning personal matters. That on the date
               alleged in the indictment, the date of the offense, Ms. Woodard
               was going to take Mr. Genes back to Clarksville, . . . where his
               mother lived. He had been staying here in Hickman County
               with Ms. Woodard. That he asked if they were not going to go
               by [Mr. Roberts’s] house, the uncle. That they then drove by his
               house. [Mr. Roberts] would testify that when he came out that
               he saw Ms. Woodard’s car, that the passenger window was
               facing towards his house. It’s a pretty short drive and it’s a
               pretty short distance from the road. That [Mr. Roberts] went out
               to get his dog. That he heard Ms. Woodard say, do you want to
               talk to me now, or something to that effect. At which point, he
               . . . started walking back into his home. His wife was also at
               home. She had, at this point, flipped on lights. And then gun
               shots rang out, placing [Mr. Roberts] in fear as he’s going back
               into his house. Placing his wife in fear, who’s in the area
               between the dining room and the kitchen. And then also placing
               the daughter in fear, who’s listed as the victim in count seven.
               There was actually another individual in the home, as well, but
               in this case the plea is to three counts.

                      ....

               The proof would show then that Ms. Woodard drove [the
               defendant], and there were two other people in the backseat of
               the vehicle, to Nashville. That she then came back and, later
               that evening, turned herself into police here. She gave
               statements. She indicated who [the defendant] was. Police then
               began looking for [the defendant]. The State would have proof

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              that, in a short time later, the Bolivar Police . . . received a
              disturbance call about a domestic issue. They responded. [The
              defendant’s] uncle, actually in Bolivar, told police that . . . [the
              defendant] was there, that they’d had some type of conflict.
              That . . . [the defendant], in fact, had a warrant out for, from
              Hickman County. Bolivar Police spotted that vehicle, that had
              been identified that [the defendant] was in, and placed [the
              defendant] under arrest, and found, underneath one of the front
              seats, a 9 millimeter gun. Ms. Woodard had identified one of
              the weapons as being a 9 millimeter that [the defendant] carried.
              That gun would – there would be testimony that that gun was
              matched up to bullets recovered from the scene. Matching, as
              being the weapon that fired at least some of the bullets. There
              would be actually proof that there were actually two weapons
              that fired into the home. So that would have tied in [the
              defendant], along with Ms. Woodard’s testimony identifying
              him as the shooter. . . .

              At the July 18, 2012 sentencing hearing, the State entered into evidence the
defendant’s presentence report, which listed four prior misdemeanor convictions: a 2009
conviction of simple possession of a controlled substance; a 2009 conviction of failure to
appear; and 2010 Hardeman County convictions of unlawful possession of a firearm and
criminal impersonation, apparently arising out of his arrest in Bolivar. On the conviction of
simple possession, the defendant was sentenced on August 13, 2009, to 11 months, 29 days’
supervised probation.

               In determining the defendant’s sentence, the trial court found that seven
enhancement factors were applicable: the defendant had a previous history of criminal
convictions; the defendant was the leader in the commission of the offense which involved
two or more criminal actors; the offense involved more than one victim; the property damage
sustained by the victims was particularly great; the risk to human life was high; the defendant
was on probation at the time of the commission of the crime; and the defendant had been
adjudicated to have committed an offense as a juvenile that would have constituted a felony
if committed as an adult. See T.C.A. § 40-35-114(1), (2), (3), (6), (10), (13), (16). As for
mitigating factors, the court noted that the defendant had expressed remorse in his allocution
and that the defendant was young. With respect to the manner of service, the trial court
found that confinement was necessary to avoid depreciating the seriousness of the offense,
and the court “put some weight” on the fact that measures less restrictive than confinement
had recently been applied unsuccessfully to the defendant. See T.C.A. § 40-35-103(1)(B),
(C). The court also found the defendant to be a dangerous offender who did not hesitate to

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commit a crime when the risk to human life was high and found that the offenses at issue
were committed while the defendant was on probation. See T.C.A. § 40-35-115(b)(4), (6).
Finding that the defendant was not capable of being rehabilitated, the trial court sentenced
him to six years’ incarceration on each of the three counts of aggravated assault and ordered
that the terms be served consecutively, for an effective sentence of 18 years.

               On appeal, the defendant argues that the trial court erred in its application of
some – but not all – of the enhancement factors and that the court abused its discretion in
ordering both a fully-incarcerative sentence and imposing consecutive sentencing. The State
argues that the record fully supports the trial court’s sentencing decision in this case. We will
address each of these issues in turn.

                                   I. Enhancement Factors

               Since the passage of the 1989 Sentencing Act, our standard of review when
considering challenges to the length and manner of service of a sentence has been de novo
review with a presumption that the determinations of the trial court are correct. T.C.A. §
40-35-401(d) (2006) (“When reviewing sentencing issues raised pursuant to subsection (a),
including the granting or denial of probation and the length of sentence, the appellate court
shall conduct a de novo review on the record of the issues. The review shall be conducted
with a presumption that the determinations made by the court from which the appeal is taken
are correct.”). In 2005, the general assembly amended the Sentencing Act to bring our
sentencing law into compliance with federal constitutional requirements as enunciated in
Blakely v. Washington, 542 U.S. 296 (2004), and its progeny. Notably, the 2005 revisions
rendered advisory the enhancement and mitigating factors and removed the presumptive
sentence to be imposed by the trial court. State v. Carter, 254 S.W.3d 335, 345-46 (Tenn.
2008). In a number of cases following passage of the 2005 amendments, our supreme court
signaled that the statutorily prescribed standard of review, de novo with a presumption of
correctness, might be at odds with what had become a far more discretionary sentencing
scheme. See, e.g., Carter, 254 S.W.3d at 344, 346. In State v. Cross, 362 S.W.3d 512 (Tenn.
2012), the court again wrestled with the “the precise metes and bounds of appellate review
under the current increased trial court discretion structure” but ultimately left the issue
unsettled. State v. Cross, 362 S.W.3d 512, 529 (Tenn. 2012). The court visited the issue
most recently in State v. Bise, and ultimately concluded that “although the statutory language
continues to describe appellate review as de novo with a presumption of correctness,” the
2005 revisions to the Sentencing Act “effectively abrogated the de novo standard of appellate
review.” State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Observing that a change in our
standard of review was necessary to comport with the holdings of the United States Supreme
Court, our supreme court “adopt[ed] an abuse of discretion standard of review, granting a
presumption of reasonableness to within-range sentencing decisions that reflect a proper

                                               -4-
application of the purposes and principles of our Sentencing Act.” Id. The court held that
“sentences imposed by the trial court within the appropriate statutory range are to be
reviewed under an abuse of discretion standard with a ‘presumption of reasonableness’”
afforded to sentencing decisions of the trial court. Id. at 708.

              The supreme court observed, however, that in making its sentencing decision,
a trial court must consider the principles of sentencing enumerated in Code section
40-35-210(b):

              (1) The evidence, if any, received at the trial and the sentencing
              hearing;

              (2) The presentence report;

              (3) The principles of sentencing and arguments as to sentencing
              alternatives;

              (4) The nature and characteristics of the criminal conduct
              involved;

              (5) Evidence and information offered by the parties on the
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;

              (6) Any statistical information provided by the administrative
              office of the courts as to sentencing practices for similar
              offenses in Tennessee; and

              (7) Any statement the defendant wishes to make in the
              defendant’s own behalf about sentencing.

see Bise, 380 S.W.3d at 698 n.33(citing T.C.A. § 40-35-210(b)), 706 n.41. By statute, the
trial court must also consider “[t]he potential or lack of potential for the rehabilitation or
treatment of the defendant . . . in determining the sentence alternative or length of a term to
be imposed.” Id. § 40-35-103(5). The court cautioned that, despite the wide discretion
afforded the trial court under the revised Sentencing Act, trial courts are “still required under
the 2005 amendments to ‘place on the record, either orally or in writing, what enhancement
or mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.’” Bise at 706 n.41 (citing T.C.A. § 40-35-210(e)).
Moreover, “a trial court’s misapplication of an enhancement or mitigating factor does not

                                               -5-
invalidate the sentence imposed unless the trial court wholly departed from” the Sentencing
Act. Bise at 706. Thus, under the holding in Bise, “[a] sentence should be upheld so long
as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.” Id. at 709.

                In the instant case, the record reflects that the trial court, in sentencing the
defendant, considered all appropriate principles set forth in Code section 40-35-210(b). The
trial court determined that the defendant was not amenable to rehabilitation, and the court
orally placed on the record the enhancement and mitigating factors it considered when
determining the defendant’s sentence. In imposing the maximum sentence of six years for
each count of aggravated assault, the trial court was not required to find the presence of any
statutory enhancement factors. See T.C.A. § 40-35-210(c)-(e); Bise, 380 S.W.3d at 698. It
did, however, find that seven enhancement factors were applicable, only five of which the
defendant challenges on appeal. The defendant does not contend that the trial court
misapplied factor six, addressing the victim’s significant property damage, or factor thirteen,
the fact that the crimes were committed while the defendant was on probation. See T.C.A.
§ 40-35-114(6), (13).

                With respect to the challenged enhancement factors, we discern no error in the
trial court’s application of four of these factors. In finding enhancement factor one, previous
history of criminal convictions or behavior, the trial court noted the defendant had two prior
misdemeanor convictions. See T.C.A. § 40-35-114(1). The defendant was also convicted
of criminal impersonation and unlawful possession of a firearm arising from his arrest in
Bolivar. Although those crimes were committed after the underlying offenses in this case,
trial courts “‘can consider criminal convictions or any other criminal behavior which
occurred prior to the sentencing hearing as being a previous history of criminal convictions
or criminal behavior under [T.C.A.] § 40-35-114(1), regardless of whether the convictions
or behavior occurred before or after the criminal conduct under consideration.’” State v.
Jordan, 116 S.W.3d 8, 24 (Tenn. Crim. App. 2003) (quoting State v. Ed Waters, No. 01-C-
01-9106-CR-00158, slip op. at 6-7 (Tenn. Crim. App., Nashville, Feb. 20, 1992)) (citation
and internal quotation marks omitted). The defendant’s prior criminal convictions are
sufficient to establish enhancement factor one.

             Next, the trial court found that factor two – that the defendant was a leader in
the commission of the offense which involved two or more criminal actors – was applicable.
See T.C.A. § 40-35-114(2). We agree. Without question, the defendant was “a leader” in
the commission of these crimes. When he was arrested in Bolivar, the handgun found in his
possession matched bullets found at the scene of the crime in Hickman County, and the
defendant’s girlfriend, Ms. Woodard, identified him as the shooter. That a second shooter
may have participated does not preclude the use of factor two.

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               The trial court was further correct in finding factor ten, that the defendant did
not hesitate to commit the crime when the risk to human life was high. See T.C.A. § 40-35-
114(10). The trial court stated, “Clearly there was a risk to human life. You had four
individuals there and, as [Mr. Roberts] testified, it’s lucky for the victims that nobody – and
for the defendant, as well – that nobody was killed.” We find no error in the application of
this enhancement factor.

              The trial court also applied factor 16, that the defendant had been adjudicated
to have committed delinquent acts as a juvenile that would have constituted felonies if
committed by an adult. See T.C.A. § 40-35-114(16). The trial court relied on records from
the Montgomery County Juvenile Court1 in finding that the defendant had been adjudicated
to have committed two such delinquent acts. Our review of the record supports the trial
court’s finding of one of these offenses, but there is no showing by a preponderance of the
evidence that the other juvenile offense resulted in an adjudication. However, the existence
of one adjudication is enough to warrant application of this factor.

               We do hold, however, that the trial court erred in its application of factor three,
that the offense involved more than one victim. See T.C.A. § 40-35-114(3). The defendant
was convicted of three counts of aggravated assault, each count involving a specific, named
victim. As our supreme court has noted, the language of factor three “limits its application
to ‘an offense’ involving ‘more than one (1) victim,” and “there cannot be multiple victims
for any one offense of aggravated assault committed against a specific, named victim.” State
v. Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002) (quoting T.C.A. § 40-35-114(3)). Although the
application of this enhancement factor was erroneous, the error does not affect the propriety
of the sentence. See Bise, 380 S.W.3d at 706.

            We discern no abuse of discretion in the trial court’s decision to impose the
maximum allowable sentence in this case.

                                  II. Manner of Service of Sentence

                Although the defendant does not specifically argue that the trial court erred in


        1
          The defendant contends that these records were inadmissible hearsay and were not properly
authenticated under Tennessee Rules of Evidence 901 and 902. The trial court, however, found the records
to be reliable hearsay. There is no need to adduce evidence through a testifying witness when the evidence
is judicially noticeable under Evidence rule 201. The trial court’s review and commentary on the juvenile
court records was an act of judicial notice. It is authorized by Rule 201(b)(2), the facts being “capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
Id. The trial court may take judicial notice “whether requested or not,” Tenn. R. Evid. 201(c), and the notice
may be taken at any stage of the proceeding. Id. at 201(f).
                                                     -7-
imposing a fully-incarcerative sentence, the defendant does contend that the court erred in
its application of Code section 40-35-103, which addresses sentences involving confinement.

                In State v. Caudle, 388 S.W.3d 273 (Tenn. 2012), the supreme court expanded
the holding in Bise to the trial court’s decision regarding alternative sentencing and probation
eligibility, ruling “that the abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

             The record reflects that the trial court based its sentencing decision on the
considerations set forth in Code section 40-35-103, which provides:

              (1) Sentences involving confinement should be based on the
              following considerations:

              (A) Confinement is necessary to protect society by restraining a
              defendant who has a long history of criminal conduct;

              (B) Confinement is necessary to avoid depreciating the
              seriousness of the offense or confinement is particularly suited
              to provide an effective deterrence to others likely to commit
              similar offenses; or

              (C) Measures less restrictive than confinement have frequently
              or recently been applied unsuccessfully to the defendant;

              (2) The sentence imposed should be no greater than that
              deserved for the offense committed;

                      ....

              (4) The sentence imposed should be the least severe measure
              necessary to achieve the purposes for which the sentence is
              imposed;

              (5) The potential or lack of potential for the rehabilitation or
              treatment of the defendant should be considered in determining
              the sentence alternative or length of a term to be imposed. . . .



                                              -8-
Id.

                Our review of the record indicates that the trial court placed great emphasis on
Code subsection (1)(B), finding that confinement was necessary to avoid depreciating the
seriousness of the offense or to effectively deter others from committing similar crimes. The
court recognized “that the least severe measure is what is required” under subsection (4), but
the court found “that [the defendant] knew that there were people in that house and [he] shot
into that house . . . with the intent of killing somebody.” Regarding Code subsection (5), the
trial court further found that the defendant was not amenable to rehabilitation.

                The trial court did “put some weight” on Code subsection (1)(C), that measures
less restrictive than confinement have been recently applied unsuccessfully to the defendant.
It appears that in applying this factor, the trial court partially relied on what it found to be two
prior juvenile adjudications. We previously pointed out that the record failed to establish that
the defendant had been adjudicated on one of those juvenile offenses, and as such, the trial
court’s reliance on that offense was improper. However, this was not the court’s sole – or
even primary – basis for imposing the fully-incarcerative sentence. Moreover, the defendant
was on probation at the time of the commission of these crimes, clearly evincing that
measures less restrictive than confinement had recently been applied unsuccessfully to the
defendant. We find no abuse of discretion in the trial court’s decision to order the defendant
to serve his sentence in confinement.

                                    III. Sentence Alignment

             Finally, the defendant challenges the trial court’s decision to impose
consecutive sentences.

               The Sixth Amendment considerations attendant to the trial court’s imposition
of sentence length are not implicated by the trial court’s decision regarding alignment of
sentences. See Oregon v. Ice, 555 U.S. 160, 172 (2009); State v. Allen, 259 S.W.3d 671, 688
(Tenn. 2008) (ruling Sixth Amendment Blakely challenges inapplicable to consecutive
sentencing). Consequently, our standard of review when considering challenges to the
alignment of sentences remains de novo with a presumption that the determinations of the
trial court are correct. T.C.A. § 40-35-401(d) (2006); see also id. § 40-35-401(a) (“The
defendant in a criminal case may appeal from the length, range or manner of service of the
sentence imposed by the sentencing court. The defendant may also appeal the imposition of
consecutive sentences.”). The presumption of correctness afforded the trial court 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). In the event the record fails to demonstrate the required

                                                -9-
consideration by the trial court, review of the sentence is purely de novo. Id.

              When a defendant is convicted of multiple crimes, the trial court, in its
discretion, may order the sentence to be served consecutively if it finds by a preponderance
of the evidence that a defendant falls into one of seven categories listed in Tennessee Code
Annotated section 40-35-115. They are:

              (1) The defendant is a professional criminal who has knowingly
              devoted the defendant’s life to criminal acts as 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.

T.C.A. § 40-35-115(b). The existence of a single category is sufficient to warrant the

                                            -10-
imposition of consecutive sentences. See State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim.
App. 1997). In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), the supreme court imposed
two additional requirements for consecutive sentencing when the “dangerous offender”
category is used: the court must find that consecutive sentences are reasonably related to the
severity of the offenses committed and are necessary to protect the public from further
criminal conduct. Id. at 937-39; see State v. Imfeld, 70 S.W.3d 698,707-08 (Tenn. 2002).

              In the instant case, the trial court based its decision to order consecutive
sentencing on both the dangerous offender category and the fact that the defendant committed
the underlying offenses while on probation. See T.C.A. 40-35-115(b)(4), (6). The defendant
contends that the trial court, in relying on the dangerous offender category, did not make the
additional findings required by Wilkerson. We need not concern ourselves with this
contention, however, because the finding of a single category suffices to impose consecutive
sentences. Adams, 973 S.W.2d at 231. As previously noted, the defendant was on probation
at the time he committed these crimes. Therefore, we find no error in the trial court’s
decision to impose consecutive sentencing.

                                         Conclusion

             The trial court did not abuse its discretion in imposing a fully-incarcerative
sentence. Furthermore, we find the trial court’s imposition of consecutive sentences was
appropriate. Accordingly, we affirm the judgments of the trial court.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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