        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                          Assigned on Briefs January 5, 2011

             STATE OF TENNESSEE v. RANDY ANTONIO RICE

              Direct Appeal from the Circuit Court for Madison County
                        No. 08-178    Roger A. Page, Judge


                 No. W2010-00146-CCA-R3-CD - Filed August 9, 2011


The Defendant-Appellant, Randy Antonio Rice, was convicted by a Madison County jury of
first degree felony murder and facilitation of especially aggravated robbery, a Class B felony.
He was sentenced as a Range I offender to consecutive sentences of life imprisonment and
twelve years at thirty percent, respectively. On appeal, the Defendant-Appellant argues: (1)
the evidence was insufficient to support his convictions, and (2) the trial court erred in
imposing consecutive sentencing. Upon review, we affirm the trial court’s judgments.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.

Clifford K. McGown, Jr. (on appeal), Waverly, Tennessee, and George Morton Googe,
District Public Defender, and Paul E. Meyers, Assistant Public Defender (at trial and of
counsel on appeal), Jackson, Tennessee, for the Defendant-Appellant, Randy Antonio Rice.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; James (Jerry) G. Woodall, District Attorney General; and James W. Thompson,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       Facts. On August 20, 2004, the dead body of David Martin, the victim, was found
inside his residence. The victim suffered four gunshot wounds, with two fatal gunshot
wounds to his left and right chest and two “grazing gunshot wounds” to his head and arm.
The victim’s cause of death was “multiple gunshot wounds” and his manner of death was
“homicide.” The victim also had small cuts on the left side of his face, ear, and neck, some
of which contained fragments of glass. He also had scrapes on both of his arms and on the
left side of his abdomen. A .32 caliber bullet was removed from the victim’s body and a
spent .32 caliber bullet was found in the hallway of the residence, near the body. Ballistic
testing revealed that both of the .32 caliber bullets had been fired from the same gun. Several
items, including some broken glass material in the living room, were covered in blood and
were collected from the victim’s home. Two pistols, a .25 caliber Titan and a .32 caliber
Boston Bulldog, were found in the victim’s car. However, testing revealed that the .32
caliber Boston Bulldog pistol did not fire either of the two bullets found at the scene of the
crime.

       Following the victim’s death, the victim’s brother, Paul Martin, was unable to locate
the victim’s wallet. Paul Martin said that the victim often kept his winnings from Tunica on
his person or in his house. In addition, the living room of the victim’s home “was in
disarray” and there were signs of a “struggle.”

       An envelope with blood on it was taken from the scene from which a partial DNA
profile was recovered. The partial profile did not exclude the victim but did exclude the
Defendant-Appellant and his childhood friend, Jessie Rodgers, as possible contributors of
the blood. DNA testing of other items collected from the home showed that the blood
matched that of the victim.

        During the investigation into the victim’s death, officers received information about
the Defendant-Appellant’s involvement in the offenses against the victim from Cory Bowers,
an individual who was facing federal drug charges. Although Bowers was convicted of his
federal charges prior to the Defendant-Appellant’s trial, his cooperation in the instant case
was communicated to the U.S. Attorney’s office. Consequently, the Assistant U.S. Attorney
who prosecuted his case promised Bowers a reduced sentence in exchange for his assistance
in the prosecution of the Defendant-Appellant.

       At trial, Cory Bowers testified that he was not coerced to present certain testimony.
Bowers stated that he, the Defendant-Appellant, and Jessie Rodgers had been friends since
they were children. Prior to the offenses in this case, Bowers said that he and the Defendant-
Appellant had driven by the victim’s house, and the Defendant-Appellant had told Bowers
that he knew the victim had money inside the house. The Defendant-Appellant then asked
Bowers if he would go into the house with him to take the money. Although Bowers
declined, the Defendant-Appellant approached him approximately a week later and again
asked him to help with the robbery of the victim. Bowers declined a second time. On the
day the offenses were committed in this case, Bowers said the Defendant-Appellant was gone
from the neighborhood for approximately two hours and returned “with scratches and stuff
on him.” When he returned, the Defendant-Appellant told Bowers that he had stolen the
victim’s money and had shot the victim. Bowers said he saw the Defendant-Appellant with

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Rodgers after the offenses were committed. Rodgers was shaking and looked frightened.
The Defendant-Appellant and Rodgers then told Bowers that the victim “got to tussling with
them[,]” and the Defendant-Appellant had to shoot the victim because “he wouldn’t be still.”

       On cross-examination, Bowers acknowledged that the Defendant-Appellant’s brother,
Robert Rice, was responsible for his arrest on the federal drug charges. Bowers also
admitted that he did not know how much his sentence would be reduced because the federal
judge had wanted to determine the effectiveness of his testimony in the instant case before
reducing his sentence. Bowers also acknowledged that he could have just as easily blamed
Rodgers as the Defendant-Appellant for these crimes. However, on re-direct examination,
Bowers confirmed that he had not lied about the Defendant-Appellant’s involvement in the
crimes in order to get a reduced federal sentence. He also confirmed that the Defendant-
Appellant admitted to shooting the victim in this case.

       The Defendant-Appellant consistently denied that he was involved in the robbery and
murder of the victim until November 13, 2007. On November 13, 2007, the Defendant-
Appellant admitted that he was, in fact, involved in the offenses against the victim. The
Defendant-Appellant then told officers that he, his brother Robert Rice, and Jessie Rodgers
went to the victim’s house intending to commit a robbery. Initially, Robert Rice drove by
and identified the victim’s house. Later, the Defendant-Appellant drove Rodgers to the
victim’s house, dropped him off a short distance from the house, and then circled back to the
area as Rodgers went inside the house. The Defendant-Appellant was aware that Rodgers
was going to “hit the house and rob the [victim].” When Rodgers did not exit the house
within a short amount of time, the Defendant-Appellant parked his car in front of the victim’s
house and approached the slightly open door of the victim’s residence. He “hollered” for
Rodgers to come outside so they could leave. When Rodgers finally appeared, he was
bleeding “real bad [sic]” and informed the Defendant-Appellant that he had been “hit.”
During the scuffle, the victim threw something and hit Rodgers in the eye. Rodgers told the
Defendant-Appellant that he and the victim had wrestled over the gun and that he had shot
the victim. The Defendant-Appellant drove Rodgers to his sister’s home in Humboldt.
When they got back to their neighborhood, Rodgers told everyone about the crime, and
Robert Rice told him that he needed to go back to the victim’s house and remove his
fingerprints from everything he touched. Rodgers subsequently borrowed someone’s car and
went back to the victim’s house. At nighttime, Rodgers returned with the victim’s black
wallet. Rodgers claimed that he only stole eighty dollars from the victim. Rodgers then gave
the Defendant-Appellant and Robert Rice twenty dollars each. The Defendant-Appellant
said that he never entered the victim’s house the day of the offense. He also claimed that he
did not tell anyone about the crime before giving the November 13, 2007 statement because
he was frightened.



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       Robert Rice, the Defendant-Appellant’s brother, denied any participation in the
offenses against the victim and claimed that his brother’s statement to police implicating him
was not the truth. Robert Rice said that his brother regularly tells lies about him. On cross
examination, he admitted that he had cooperated with the federal authorities to “set up”
Bowers because he had a prior conviction for cocaine distribution.

        Although the Defendant-Appellant was indicted for first degree premeditated murder,
felony murder, and especially aggravated robbery, he was convicted of felony murder and
facilitation of especially aggravated robbery. He received a life sentence and a consecutive
twelve-year sentence, respectively. The Defendant-Appellant filed motions for new trial,
which were denied. He subsequently filed a timely notice of appeal.

        Sentencing Hearing. The State presented testimony from Dr. Christopher White, a
psychiatrist with the Western Mental Health Institute. Dr. White testified that he evaluated
the Defendant-Appellant personally and viewed the Defendant-Appellant’s medical records,
juvenile criminal records, and witness statements regarding the instant case. During his
evaluation of the Defendant-Appellant, Dr. White also referred to the Diagnostic and
Statistics Manual, Version IV, Text Revised, a manual for psychiatric disorders. He stated
that the Defendant-Appellant spent twenty-three days at the institute, where he participated
in interviews, group therapy, peer interaction, treatment teams, and two forensic conferences.
After conducting a full evaluation, Dr. White concluded that the Defendant-Appellant was
a dangerous mentally abnormal person pursuant to Tennessee Code Annotated section 40-35-
115(b)(3). In reaching this conclusion, Dr. White focused on the Defendant-Appellant’s
numerous juvenile police reports evidencing his violent and sexually abusive behavior as
well as his antisocial personality disorder diagnosis.

      Dr. White acknowledged that he had been part of the team that had found the
Defendant-Appellant competent to stand trial. However, he stated that conclusions as to
competency and conclusions as to dangerous mentally abnormal persons were different issues
which were determined by different factors. Because he observed the Defendant-Appellant
malingering during his twenty-three days at the institute, Dr. White stated he disagreed with
a previous doctor’s diagnosis that the Defendant-Appellant suffered from paranoid
schizophrenia. He explained that his disagreement with the doctor’s diagnosis of paranoid
schizophrenia did not mean that he and the previous doctor would necessarily disagree about
whether the Defendant-Appellant met the legal definition of a dangerous mentally abnormal
person.

       I. Sufficiency of the Evidence. The Defendant-Appellant argues the evidence is
insufficient to support his convictions. Specifically, he claims that there was no DNA
evidence connecting him to the blood samples and physical evidence that was tested and that

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Bowers’ identification of him as one of the perpetrators was not credible since Bowers’
sentence was reduced in exchange for his testimony. The State responds that because the
Defendant-Appellant provided substantial assistance in the commission of the especially
aggravated robbery of the victim, the evidence is sufficient to support his convictions for
felony murder and facilitation of especially aggravated robbery. We agree with the State.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case
where there is direct evidence, circumstantial evidence, or a combination of the two. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551
S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The
trier of fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and must reconcile all conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the
evidence, this court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997) (citation omitted). A guilty verdict also “removes the presumption of
innocence and replaces it with a presumption of guilt, and 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)).

       First degree felony murder is “[a] killing of another committed in the perpetration of
or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery,
burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect or aircraft
piracy[.]” T.C.A. § 39–13–202(a)(2) (2003). In order to sustain the conviction for felony
murder, the State was required to prove that the Defendant-Appellant killed the victim in the
perpetration of any robbery. Id. Robbery is defined as “the intentional or knowing theft of
property from the person of another by violence or putting the person in fear.” Id. §
39–13–401(a) (2003). Especially aggravated robbery is robbery, as defined in section



                                                -5-
39-13-401, which is accomplished with a deadly weapon and where the victim suffers serious
bodily injury. Id. § 39-13-403(a) (2003).

        “Although intent to kill is not required under the felony murder statute, the perpetrator
must possess the requisite intent to commit the underlying felony for a felony murder
conviction to be sustained.” State v. John Dennis Rushing, No. 01 C01– 9501–CR–00020,
1996 WL 63920, at *6 (Tenn. Crim. App., at Nashville, Feb. 13, 1996), perm. to appeal
denied (Tenn. July 22, 1996). “The killing may precede, coincide with, or follow the felony
and still be considered as occurring ‘in the perpetration of’ the felony offense, so long as
there is a connection in time, place, and continuity of action.” State v. Buggs, 995 S.W.2d
102, 106 (Tenn. 1999). Proof of the intention to commit the underlying felony, and at what
point it existed, is a question of fact to be decided by the jury after consideration of all the
facts and circumstances. Id. at 107.

       An individual is criminally responsible for the conduct of another if:

       (1) Acting with the culpability required for the offense, the person causes or
       aids an innocent or irresponsible person to engage in conduct prohibited by the
       definition of the offense;

       (2) Acting with intent to promote or assist the commission of the offense, or
       to benefit in the proceeds or results of the offense, the person solicits, directs,
       aids, or attempts to aid another person to commit the offense; or

       (3) Having a duty imposed by law or voluntarily undertaken to prevent
       commission of the offense and acting with intent to benefit in the proceeds or
       results of the offense, or to promote or assist its commission, the person fails
       to make a reasonable effort to prevent commission of the offense.

T.C.A. § 39-11-402 (2003).

        Criminal responsibility is not a distinct crime but “a theory by which the state may
prove the defendant’s guilt based on another person’s conduct.” State v. Osborne, 251
S.W.3d 1, 16 (Tenn. Crim. App. 2007) (citing State v. Mickens, 123 S.W.3d 355, 389-90
(Tenn. Crim. App. 2003)). In order to be held criminally responsible for the acts of another,
the defendant must “‘in some way associate himself with the venture, act with the knowledge
that an offense is to be committed, and share in the criminal intent of the principal in the first
degree.’” Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976) (quoting Jenkins
v. State, 509 S.W.2d 240, 244-45 (Tenn. Crim. App. 1974)). Additionally, there is no
requirement that the State “elect between prosecution as a principal actor and prosecution for

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criminal responsibility.” State v. Hodges, 7 S.W.3d 609, 625 (Tenn. Crim. App. 1998)
(citing State v. Williams, 920 S.W.2d 247, 257-58 (Tenn. Crim. App. 1995)).

       The Defendant-Appellant was also found guilty of facilitation of especially aggravated
robbery. A person is guilty of the facilitation of a felony “if, knowing that another intends
to commit a specific felony, but without the intent required for criminal responsibility under
§ 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of
the felony.” T.C.A. § 39-11-403(a) (2003).

        Here, the evidence, viewed in the light most favorable to the State, shows that the
Defendant-Appellant was guilty of first degree felony murder under a theory of criminal
responsibility. According to the Defendant-Appellant’s version of events, he drove Rodgers
to the victim’s house for the purpose of robbing the victim. He let Rodgers out near the
victim’s residence, and circled around to pick him up. When Rodgers failed to exit the
victim’s house after a reasonable period of time, the Defendant-Appellant approached the
victim’s door and yelled for him. Rodgers finally appeared, covered in blood, and informed
the Defendant-Appellant that he had fought with the victim and had shot him. The
Defendant-Appellant and Rodgers returned to their neighborhood, where Robert Rice
convinced Rodgers to return to the victim’s house to remove his fingerprints. Rodgers left
in another person’s vehicle, and when he returned from the victim’s house, he had a black
wallet. Rodgers told everyone that he recovered only eighty dollars from the victim and then
gave the Defendant-Appellant and Robert Rice twenty dollars each. Based on this evidence,
a jury could have determined, based on a theory of criminal responsibility, that the
Defendant-Appellant “[a]cting with intent to promote or assist the commission of the offense,
or to benefit in the proceeds or results of the offense” aided or attempted to aid Rodgers in
killing the victim during the robbery. In addition, the jury could have also determined that
the Defendant-Appellant was guilty of facilitation of especially aggravated robbery because
he furnished substantial assistance to Rodgers, knowing that Rodgers intended to rob the
victim. See State v. Quartes Williams, No. W2008-01946-CCA-R3-CD, 2009 WL 2971046,
at *11 (Tenn. Crim. App., at Jackson, Sept. 14, 2009), perm. to appeal denied (Tenn. Feb.
22, 2010) (concluding that a rational jury could have found the defendant guilty of both first
degree felony murder under a theory of criminal responsibility and facilitation of especially
aggravated robbery since the defendant furnished substantial assistance to an accomplice,
knowing that the accomplice intended to rob the victim).

        Moreover, the jury could have also found the Defendant-Appellant guilty of both
crimes under a theory of direct responsibility with the defendant as the principal actor. See
id. at *12 (further concluding that the jury could have found the defendant guilty under a
theory of direct responsibility in light of the testimony from the medical examiner and of the
statement arguably signed by the defendant). Bowers testified that although Rodgers was

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involved in the offenses, the Defendant-Appellant admitted to robbing and shooting the
victim. The evidence presented at trial is sufficient to support the Defendant-Appellant’s
conviction for first degree felony murder and facilitation of especially aggravated robbery.
Accordingly, the Defendant-Appellant is not entitled to relief on this issue.

        II. Sentencing. The Defendant-Appellant next argues that the trial court abused its
discretion in ordering that his twelve-year sentence be served consecutively rather than
concurrently to his sentence of life imprisonment. He suggests that his effective sentence of
sixty-three years is not reasonably related to the seriousness of his offenses. The State
responds that the trial court properly imposed consecutive sentencing pursuant to Tennessee
Code Annotated section 40-35-115(b)(3) (2003) and that the record supports the Defendant-
Appellant’s sentence. We agree with the State.

        On appeal, we must review issues regarding the length and manner of service of a
sentence de novo with a presumption that the trial court’s determinations are correct. T.C.A.
§ 40-35-401(d) (2003). Nevertheless, “the presumption of correctness which accompanies
the trial court’s action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defendant has the burden of showing the
impropriety of the sentence. T.C.A. § 40-35-401(d) (2003), Sentencing Comm’n Comments.
This means that if the trial court followed the statutory sentencing procedure, made adequate
findings of fact that are supported by the record, and gave due consideration and proper
weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, this court “may not disturb the sentence even if we would have preferred a different
result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Because the trial
court properly considered the sentencing principles and all relevant facts and circumstances
in this case, our review will be de novo with a presumption of correctness.

       A trial court, when sentencing a defendant, must consider the following:

       (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 enhancement and
       mitigating factors in §§ 40-35-113 and 40-35-114; and

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

T.C.A. § 40-35-210(b) (2003).

        Where a defendant is convicted of one or more offenses, the trial court has discretion
to decide whether the sentences shall be served concurrently or consecutively. Id. § 40-35-
115(a) (2003). A trial court may order multiple offenses to be served consecutively if it finds
by a preponderance of the evidence that a defendant fits into at least one of the seven
categories in section 40-35-115(b) (2003). An order of consecutive sentencing must be
“justly deserved in relation to the seriousness of the offense.” Id. § 40-35-102(1) (2003).
In addition, the length of a consecutive sentence must be “no greater than that deserved for
the offense committed.” Id. § 40-35-103(2) (2003).

        Although the Defendant-Appellant argues that the trial court improperly applied the
dangerous offender criteria as stated in section 40-35-115(b)(4), the record is clear that the
trial court imposed consecutive sentencing based solely on its finding that the Defendant-
Appellant was a dangerous mentally abnormal person as stated in section 40-35-115(b)(3).
Pursuant to this particular subsection, a trial court may impose consecutive sentencing if it
finds by a preponderance of the evidence that “[t]he 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[.]” Id. § 40-35-115(b)(3) (2003).

       Upon review, we conclude that the trial court did not abuse its discretion in ordering
the Defendant-Appellant to serve his sentences consecutively. A finding of any one of the
factors in section 40-35-115(b) can justify a trial court’s imposition of consecutive
sentencing. The record shows that the trial court determined that Dr. White was a competent
psychiatrist who concluded that the Defendant-Appellant was a dangerous mentally abnormal
person whose criminal conduct had been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to consequences. See id. Although the court
noted that it was unnecessary to consider the factors for a dangerous offender as stated in
State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995), it noted that consecutive sentencing
was appropriate in this case because it “protect[ed] the public against further criminal
conduct” by the Defendant-Appellant and because it “reasonably relate[d] to the severity of
the offenses.” We conclude that the trial court properly found by a preponderance of the
evidence that the Defendant-Appellant was a dangerous mentally abnormal person. See
T.C.A. § 40-35-115(b)(3) (2003). Accordingly, the trial court’s judgments are affirmed.



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                             CONCLUSION

Upon review, the judgments of the trial court are affirmed.


                                           __________________________________
                                           CAMILLE R. McMULLEN, JUDGE




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