                                                                                            09/22/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 27, 2017

                  STATE OF TENNESSEE v. DAVID HOPKINS

                  Appeal from the Criminal Court for Knox County
                       No. 101102 Steven W. Sword, Judge
                     ___________________________________

                            No. E2016-02192-CCA-R3-CD
                        ___________________________________

The Defendant-Appellant, David Hopkins, appeals his conviction for first degree felony
murder, arguing that the evidence is insufficient to sustain his conviction and that the trial
court abused its discretion in ordering consecutive sentencing. We affirm the judgment
of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, David Hopkins.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Philip H. Morton and
Steven C. Garrett, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                         OPINION

       The Knox County Grand Jury charged Hopkins with one count of first degree
felony murder and two counts of especially aggravated robbery. Prior to trial, the
especially aggravated robbery counts were dismissed on the ground that they were barred
by the statute of limitations. A jury trial on the first degree felony murder charge took
place in June 2014.

       The State’s evidence at trial established that Tony Barrett, the victim, lived two
houses down from Hopkins’ mother in Knoxville and regularly sold marijuana from his
home. Prior to the July 11, 1994 incident, Hopkins had stolen drugs from the victim on
several occasions. At some point, the victim had shown Hopkins a produce truck full of
marijuana and had said that because Hopkins “was a liar and a piece of this, that . . . he
couldn’t have no part of none of this.” At the time of the victim’s death, Hopkins was
aware that the victim was having a sexual relationship with Hopkins’ estranged wife,
Kimberly Sutton.1

       Kimberly Sutton stated that on July 11, 1994, Hopkins and his friend, David
Riggs, appeared at the victim’s house, where she was helping the victim “bag[] up some
weed.” When Sutton and the victim observed Hopkins and Riggs approaching the house,
they put the marijuana away. Sutton then went into the back bedroom to keep Hopkins
and the victim from fighting and did not hear much noise coming from the front of the
house for a long period of time. When she finally exited the bedroom, Sutton saw
Hopkins holding a baseball bat and standing over the victim’s body. She also saw Riggs
standing beside Hopkins. Sutton said Hopkins, who claimed he would never hurt her,
told her, “You won’t say nothing.” Then Hopkins and Riggs searched the victim’s house,
finding money and approximately ten pounds of marijuana. Sutton said Riggs took the
marijuana, but she “didn’t see who had the money.” When questioned further on this
issue, Sutton stated, “I can’t say [Hopkins] had the money. I don’t know.” Sutton placed
a cloth over the victim’s face before leaving the home with Hopkins and Riggs.

       On the evening of July 11, 1994, the victim’s sister, Sherry Shoopman, and her
husband arrived at the victim’s home and discovered the victim’s dead body. Shoopman
stated that the victim, at the time of his death, had approximately $1000 in cash in his
home because he had just been paid. After finding the body, Shoopman called 9-1-1, and
Detective Ed Stair with the Knoxville Police Department responded to the scene.

       Upon his arrival, Detective Stair observed that the victim, whose face was covered
with a cloth napkin, was lying on his back in a pool of blood in the dining room with his
shorts pulled down to his knees. One of the victim’s pockets had been pulled out as if
someone were looking for something, and there was blood spatter from the floor to the
wall, which suggested that the perpetrator had hit the victim as the victim was lying on
the floor.

       Detective Stair also noted that the victim’s home had been ransacked. He said
ceiling tiles had been pushed up and drawers in the kitchen and bedroom had been
opened, which indicated that the perpetrator had been “looking for something.”
Detective Stair also found a metal baseball bat covered in blood lying under a pile of
clothes in the bedroom and determined that this bat was the murder weapon. The coroner


       1
         Although this individual is also identified in portions of the transcript as “Kimberly Sutton
Hopkins” or “Kimberly Hopkins,” we will identify her as “Kimberly Sutton” to avoid confusion.
                                                -2-
and Detective Stair removed the cloth napkin from the victim’s face and saw that the
victim, who had a sock gag in his mouth, had received several blows to back of the head.

       Upon examination, Detective Stair discovered a small amount of marijuana and
drug paraphernalia in the victim’s home. He later learned that the victim, just prior to his
death, had possessed a substantial amount of marijuana and approximately $1500 in cash.
Based on this evidence, Detective Stair surmised that the perpetrator’s motive in
committing the offense was to obtain the victim’s money and drugs.

        Detective Stair said that he interviewed twelve to fifteen individuals during his
investigation into the victim’s death, including Hopkins’ wife, Kimberly Sutton.
However, when Sutton recanted her statement implicating Hopkins in the victim’s
killing, the district attorney’s office dismissed Hopkins’ arrest warrant for murder, and
the case was considered an unsolved or “cold” case. Detective Stair said he did not recall
discussing the nature of the victim’s injuries with anyone he interviewed in the case. He
asserted that the details regarding the cloth over the victim’s face, the gag in the victim’s
mouth, the number of wounds, and the murder weapon were never released to the media.

       Dr. Darinka Miluesnic-Polchan, the Chief Medical Examiner for Knox and
Anderson Counties, reviewed the victim’s autopsy and determined that the victim’s
airway had been blocked with a sock gag and that the victim had sustained four blows to
the back of his head with a blunt object. These four blows fractured the victim’s skull,
which caused his brain to tear. Dr. Miluesnic-Polchan noted that bruising on the side of
the victim’s head indicated that he had been lying against a hard surface, most likely face
down on the floor, when he received these blows. She also observed that the victim had
suffered blow-out fractures to the orbital area of his face, which caused his eyes to bulge
from their sockets. Dr. Miluesnic-Polchan opined that the blows sustained by the victim
did not result in his immediate death; instead, she believed that the victim died when his
brain swelled from these blows and blood collected in his airway. She added that during
the time it took the victim to die, he was probably gasping for air.

       Following the victim’s killing, Sutton was interviewed by the police on multiple
occasions, and her version of the events changed several times. In January 1995, Sutton
implicated Hopkins in the victim’s death. However, she later recanted her statement at
Hopkins’ insistence, and the victim’s killing remained unsolved. Sutton said that after
she was charged with an unrelated murder in Kentucky, she told Detective Day the truth
about Hopkins being responsible for the victim’s death. She said she finally told the truth
about the victim’s death because her situation “couldn’t get no worse[,]” given that she
was charged with first degree murder in the unrelated Kentucky case and was “already
looking at life in the penitentiary.” She said she also told the truth because “the
[victim’s] family needed to rest.” Sutton acknowledged that after disclosing what she
                                            -3-
knew about the victim’s case to Detective Day, she entered a guilty plea to facilitation of
murder in the Kentucky case. Sutton admitted that she had prior convictions for custodial
interference, theft, and forgery, and was currently serving a sentence for her Kentucky
conviction for facilitation of murder. When asked about the day of the victim’s death,
Sutton denied taking a car ride with Hopkins, Andy Bailey, or Misty Humphrey.

       Barry Roark, a federal inmate in Illinois, stated that he was Hopkins’ cellmate at
the Blount County Jail from May 2011 to July 2011. Roark said Hopkins shared so many
details with him about the victim’s killing that he began keeping a journal to document
them. Roark said Hopkins admitted to stealing some items from a neighbor’s home the
morning of the victim’s death. Hopkins said he then went to the victim’s home with
David Riggs “to get weed,” and when they arrived, Riggs put a gun to the victim’s head
and Kimberly Sutton began screaming. Hopkins said he did not want to use a gun to kill
the victim because he believed the police might still be investigating the robbery of the
neighbor’s home, which was down the street. Instead, Hopkins chose to kill the victim
with a baseball bat the victim kept behind his front door. Roark said Hopkins claimed
that he hit the victim “so hard in the back of the head that it knocked his eyes out” and
that he put a dirty rag over the victim’s face. Hopkins also said he stole $150,000 and “a
bunch of dope” from the victim before ransacking the home. Roark said Hopkins
humorously spoke of the victim’s killing, stating he was “glad that fat bastard’s dead.”

        Roark admitted he was currently imprisoned for an armed constructive possession
of a firearm conviction. He said that he informed his attorney in May 2011 about what
Hopkins had told him about the victim’s death. At the time, Roark was facing a federal
sentence of 180 to 262 months. In July 2011, he met with his attorney, an assistant
United States attorney, and Detective Jeff Day to discuss the things Hopkins had told
him. Five days later, Roark signed a cooperation plea agreement and received a sentence
of 180 months in his federal case. Roark claimed that his cooperation in this case had no
impact on his 180-month sentence and that he had not asked for any relief on this
sentence in exchange for testifying against Hopkins at trial. He admitted that his criminal
history included two convictions for aggravated assault, two convictions for burglary of a
dwelling, two convictions for burglary of a conveyance, one conviction for burglary of a
structure, and five or six convictions for grand theft.

        Bradley Radcliff said he often gave Hopkins rides in 2011 and 2012. On one
occasion, when Radcliff was driving down Western Avenue, Hopkins told him, “I killed
a man right up there.” When Radcliff refused to believe him, Hopkins said he and his
wife had planned to rob the victim and that he had used a baseball bat to kill the victim.
Hopkins added, “I beat the f[---] out of him . . . and I didn’t stop. I kept hitting him and
hitting him and hitting him.” Hopkins then showed Radcliff the specific house where this
killing occurred.
                                           -4-
        Radcliff said he did not believe Hopkins’ claims about the victim’s death until he
saw Detective Jeff Day on television discussing the victim’s “cold” case. Radcliff called
Detective Day, who asked him to take him to the house Hopkins had identified. Radcliff
later showed Detective Day the house, which was difficult to see because it was
unmarked, had no mailbox, and was on a hill obscured by trees. Regarding Radcliff’s
identification of the victim’s house, Detective Day asserted, “[S]omeone would have
[had] to show [Radcliff] where the house was, or there’s no way of knowing [that the
house existed].” Detective Day also said that Radcliff “was very clear” when pointing
out the house that Hopkins had shown him.

       Misty Humphrey also talked to the police about the victim’s “cold” case. In July
1994, Humphrey rode with Hopkins, Sutton, and Andy Bailey, Humphrey’s boyfriend at
the time. During this car ride, Humphrey witnessed an argument between Sutton and
Hopkins wherein Sutton said, “You didn’t have to do that. You didn’t have to kill him
that way.” After Sutton made this statement, Hopkins drove toward Western Avenue,
where the victim’s home was located, and asked Humphrey and Andy Bailey to see if
they observed any police officers or police tape there. Humphrey said Hopkins continued
to drive up and down the victim’s street until nighttime.

       When Humphrey informed her father about Hopkins’ strange comments and
conduct, her father told her she had not actually seen Hopkins do anything and would be
unable to testify against him because she was a teenager. Humphrey explained that
because of what her father had told her, she did not initially inform the police about the
things she had observed.

        Several years later, Humphrey saw a television show about the victim’s “cold”
case and recognized the victim’s house as the same house Hopkins had told her to
observe in July 1994. She called the police and spoke to Detective Day, who was
assigned to the victim’s case. Humphrey later took Detective Day to this house and
identified it to him without hesitation.

       The defense’s proof consisted of testimony from Hopkins, the Defendant-
Appellant, Michael Cohan, and Jessie Parton. Hopkins testified that around 9:30 a.m. on
the morning of the victim’s death, he stole three guns, a video camcorder, and some
jewelry from Bob Davies, his mother’s neighbor. When Hopkins told his mother what he
had done, she told him he had to leave her house, and his sister gave him a ride to Jessie
Parton’s home on Sutherland Avenue. Shortly thereafter, David Riggs and a girl arrived
at Parton’s house, and then Hopkins and Parton rode with them to Keith Clarkson’s home
around 11:30 a.m. After that, the girl dropped off Hopkins, Parton, and Riggs at Riggs’s
home, where they stayed for a few minutes before going to a trailer park across the street
where they were unable to find a buyer for the items Hopkins had stolen from Davies.
                                          -5-
They returned to Riggs’s home, and another girl gave them a ride to Kelly Donahue and
Timmy Stanton’s home at Christenberry Heights around 12:30 or 1:00 p.m., and they
stayed there until approximately 2:30 p.m. Then Clarkson informed Hopkins that he had
found a buyer for the stolen items, and Clarkson picked them up and took them to an area
near the West Town Mall, where Hopkins sold the items for $200. Then they returned to
Parton’s home, where they smoked some marijuana and some of the men lifted weights
until slightly after 3:00 p.m. After that, Hopkins, Clarkson, Parton, Riggs and Gene
Bailey, who was Andy Bailey’s brother, went to Sutton’s grandmother’s home for fifteen
minutes before leaving there at 4:30 p.m. Then Hopkins and Riggs got dropped off at a
car lot on Sutherland Avenue. They called Dayvetta Huskey, and they later met her at
Sean Raybes’s home at the trailer park.

       Hopkins admitted he had purchased marijuana from the victim in the past but
asserted that he did not buy drugs from the victim on July 11, 1994, because the victim
was “on vacation.” He acknowledged that he had previously burglarized the victim’s
home a single time. Hopkins said he was aware that his wife had been having a sexual
relationship with the victim; however, he asserted that this relationship did not bother him
because they were separated at the time and because his “wife slept with all of [his]
friends.”

        Hopkins denied seeing the victim on July 11, 1994, denied going to the victim’s
home that day, and denied killing the victim. He claimed that over the years law police
officers had questioned him several times about the victim’s death and that each time he
had learned information about the victim’s death. Hopkins also claimed that he had
learned some details regarding the victim’s killing when he was served with a warrant
and accompanying affidavit for his DNA, which occurred prior to his sharing a jail cell
with Barry Roark. Hopkins also said he learned details about the crime from news
stories, television shows, and the internet, which occurred before he met Roark. Hopkins
denied telling Radcliff that he killed the victim, although he admitted identifying the
victim’s house to him after he saw the television show about the victim’s killing.

       Hopkins also denied telling Roark that he killed the victim, although he
acknowledged telling him details regarding the crime. Hopkins admitted that his criminal
history included three convictions for theft, two convictions for aggravated burglary, one
conviction for burglary of a business, and one conviction for misdemeanor theft.
However, he denied knowing Misty Humphrey.

      Michael Cohan, a private investigator, said that the news reports and television
coverage about the victim’s killing disclosed that the victim was found gagged and
beaten to death with a baseball bat and included photographs of the victim’s home.
Cohan admitted that these reports and coverage had not revealed that a cloth had been
                                           -6-
placed over the victim’s face, that a sock had been used as a gag, that the victim’s house
had been ransacked, or that the ceiling tiles had been moved and the stove opened in the
victim’s home.

       Jessie Parton, who had known Hopkins for twenty-five years but had not seen him
for the last twelve years, stated that he was with Hopkins between 11:00 a.m. and 5:00
p.m. the day of the victim’s death. Parton claimed that when Hopkins got dropped off at
his home on July 11, 1994, they went to a trailer park on Sutherland Avenue before going
to David Riggs’s house, to Bearden to sell the guns and jewelry Hopkins had stolen, and
to Christenberry Heights to buy some marijuana. Parton said that at that point, Keith
Clarkson picked up Hopkins, Gene Bailey, Riggs and him, and they all went to Kimberly
Sutton’s grandmother’s house before going to Parton’s home, where they smoked some
marijuana and lifted some weights. Parton said that the last time he saw Hopkins that day
was when they dropped Hopkins off at a car wash around 5:00 p.m. He asserted that
when he was questioned about the victim’s killing, the officers disclosed that the victim
had been beaten to death with a baseball bat in his home and that his eyeballs had been
“knocked out.” Parton denied seeing any blood on Hopkins the day of the victim’s death.

       Parton acknowledged that he underwent brain surgery in 2012. He stated that
while his short-term memory was not very good, his long-term memory was “fairly okay”
post-surgery. Parton denied telling Detective Day that he thought Hopkins could have
killed the victim; instead, he insisted that he told Detective Day only that Sutton
suggested Hopkins could have committed the crime. Parton acknowledged that he was
not with Hopkins the entire day of July 11, 1994, and that he did not know what Hopkins
had done when he was not in his presence. While Parton was initially unable to recall
what he said to Detective Day during the October 6, 2011 interview, which was prior to
his brain surgery, Parton later admitted he had not informed Detective Day that he spent a
large portion of July 11, 1994, with Hopkins.

        In rebuttal, the State presented testimony from Detective Day, who recalled the
substance of his October 6, 2011 interview with Parton. Detective Day said that during
this interview, Parton failed to provide any valuable information and claimed his
“memory was fuzzy” regarding the events of July 11, 1994. Detective Day asserted that
Parton never told him Hopkins was with him from 11:00 a.m. to 5:00 p.m. the day of the
victim’s death and that the first time he had heard these details was during Parton’s
earlier testimony.

       At the conclusion of trial, the jury convicted Hopkins as charged of first degree
felony murder. Following a sentencing hearing, the trial court imposed a sentence of life
imprisonment and ordered it to be served consecutively to Hopkins’ prior federal

                                          -7-
sentence. After the trial court denied his timely motion for new trial, Hopkins filed a
timely notice of appeal.

                                        ANALYSIS

       I. Sufficiency of the Evidence. Hopkins argues that the evidence is insufficient
to sustain his conviction for first degree felony murder. Specifically, he claims that the
State failed to establish that he formed the intent to rob the victim prior to or concurrently
with the killing of the victim. Because a rational jury could have inferred from the
evidence presented at trial that Hopkins formed the intent to commit the robbery at the
time of the killing, Hopkins is not entitled to relief.

        “Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992)). “Appellate courts evaluating the sufficiency of the convicting evidence must
determine ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e).
When this court evaluates the sufficiency of the evidence on appeal, the State is entitled
to the strongest legitimate view of the evidence and all reasonable inferences that may be
drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing
State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the
credibility of the witnesses, determine the weight given to witnesses’ testimony, and
reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.
2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,
the jury determines the weight to be given to circumstantial evidence, and the inferences
to be drawn from this evidence, and the extent to which the circumstances are consistent
with guilt and inconsistent with innocence, are questions primarily for the jury. Dorantes,
331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When
considering the sufficiency of the evidence, this court “neither re-weighs the evidence nor

                                            -8-
substitutes its inferences for those drawn by the jury.” Wagner, 382 S.W.3d at 297
(citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

       First, Hopkins urges this court to disregard Kimberly Sutton’s testimony when
assessing whether the evidence is sufficient to support his conviction. He contends,
citing State v. Matthews, 888 S.W.2d 446, 449 (Tenn. Crim. App. 1993), that Sutton’s
testimony implicating him in the victim’s killing and robbery is a “nullity” because her
contradictory statements cancelled each other. Specifically, he asserts that although
Sutton testified she saw Hopkins holding a baseball bat and standing over the victim’s
body, she admitted on cross-examination that she had given several contradictory
statements over the years regarding this incident.

        The court in Matthews recognized that “contradictory [sworn] statements by a
witness in connection with the same fact cancel each other.” 888 S.W.2d at 449 (citing
Taylor v. Nashville Banner Pub. Co., 573 S.W.2d 476, 482 (Tenn. Crim. App. 1978)); see
State v. Cayle Wayne Harris, No. M2000-02143-CCA-R3-CD, 2001 WL 1218582, at *2
(Tenn. Crim. App. Oct. 12, 2001) (“The rule of cancellation is typically limited to
circumstances in which the witness has sworn to each statement.”). The Matthews court
explained that unlike a scenario in which the jury hears contradictory testimony from two
different witnesses and must make a credibility determination, a witness’s self-
contradicting testimony means that each version carries equal weight and cannot be
resolved by the jury except through whimsy. Matthews, 888 S.W.2d at 449-50 (citing
Johnston v. Cincinnati N.O. & T.P. Ry. Co., 240 S.W. 429, 436 (Tenn. 1922)). The rule
of cancellation applies when “inconsistency in a witness’[s] testimony is unexplained and
when neither version of his testimony is corroborated by other evidence.” Id. at 450
(citing Taylor, 573 S.W.2d at 483). Testimony from a single witness will be disregarded
when the testimony “is not of a cogent and conclusive nature, and ‘if it is so indefinite,
contradictory or unreliable that it would be unsafe to rest a conviction thereon.’” Letner
v. State, 512 S.W.2d 643, 649 (Tenn. Crim. App. 1974) (quoting 23 C.J.S. Criminal Law
§ 903).

       We recognize that although Sutton gave unsworn, contradictory statements to the
police prior to Hopkins’ trial, she provided consistent testimony at trial implicating
Hopkins in the victim’s killing and robbery. Because Sutton did not provide conflicting
sworn testimony, we do not believe the rule of cancellation applies, and we may consider
her testimony when evaluating the sufficiency of the evidence. In any case, Sutton, who
was subject to rigorous cross-examination on this topic at trial, explained that she gave
different statements to police shortly after the crime because Hopkins had pressured her
to recant her statement implicating him. Sutton asserted that she was telling the truth
about Hopkins’ involvement in the killing and robbery because her situation could not get
any worse and because the victim’s family needed closure. Significantly, Sutton’s
                                          -9-
testimony identifying Hopkins as a perpetrator was corroborated by the testimony from
Barry Roark, Bradley Radcliff, and Misty Humphrey. The jury was able to use Sutton’s
acknowledgement of her contradictory statements to police in determining her credibility
and the weight given to her testimony, and we decline to re-weigh the evidence or to
substitute our inferences for those drawn by the trier of fact. See Wagner, 382 S.W.3d at
297. For all these reasons, we decline to disregard Sutton’s testimony in evaluating the
sufficiency of the evidence in this case.

        Hopkins also claims that the testimony from Sutton, Roark, Humphrey, and
Radcliff fails to show that he had the intent to rob the victim prior to or concurrently with
the killing of the victim. First, he claims that although Sutton testified that David Riggs
“had the [victim’s] weed,” Sutton was unable to state that Hopkins took the victim’s
money. Next, he asserts that while Roark testified that Hopkins went to the victim’s
house “to get weed,” Roark never testified that Hopkins intended to take the marijuana
illegally. Hopkins also insists that Humphrey never testified to any facts supporting a
finding that he intended to commit a robbery. Finally, Hopkins claims that although
Radcliff testified that Hopkins informed him that he and Sutton “were setting [the victim]
up for a burglary,” Radcliff admitted he did not know whether Hopkins took anything
from the victim’s home. As we will explain, there was sufficient evidence establishing
that Hopkins had the intent to commit the underlying felony of robbery at the time of the
victim’s killing.

       As relevant in this case, felony murder is “[a] killing of another committed in the
perpetration of or attempt to perpetrate any . . . robbery[.]” T.C.A. § 39-13-202(a)(2).
The culpable mental state required for a felony murder conviction is the intent to commit
the underlying felony, namely robbery in this case. Id. § 39-13-202(b); see Wagner, 382
S.W.3d at 299. Robbery is an “intentional or knowing theft of property from the person
of another by violence or putting the person in fear.” T.C.A. § 39-13-401(a). “A person
commits theft of property if, with intent to deprive the owner of property, the person
knowingly obtains or exercises control over the property without the owner’s effective
consent.” Id. § 39-14-103 (Supp. 1994).

       Because Hopkins claims the State failed to establish that he formed the intent to
commit the robbery prior to or concurrently with the killing of the victim, we must
determine whether the evidence supporting his conviction satisfies the felony murder
rule. We note that the felony murder rule applies when the killing is “‘done in pursuance
of the unlawful act, and not collateral to it.’” State v. Banks, 271 S.W.3d 90, 140 (Tenn.
2008) (quoting Rice, 184 S.W.3d at 663). In other words, “‘[t]he killing must have had
an intimate relation and close connection with the felony . . . and not be separate, distinct,
and independent from it.’” State v. Thacker, 164 S.W.3d 208, 223 (Tenn. 2005) (quoting
Farmer v. State, 296 S.W.2d 879, 883 (1956)).
                                            - 10 -
       “A killing that precedes, coincides with, or follows the commission of an
underlying felony will be considered ‘in the perpetration of’ the underlying felony, so
long as there is a connection in time, place, and continuity of action.” Wagner, 382
S.W.3d at 299 (citing State v. Pierce, 23 S.W.3d 289, 294-97 (Tenn. 2000); State v.
Buggs, 995 S.W.2d 102, 106 (Tenn. 1999)). There should also be a causal connection
between the killing and the underlying felony. Buggs, 995 S.W.3d at 106 (citing Farmer,
296 S.W.2d at 884; State v. Severs, 759 S.W.2d 935, 938 (Tenn. Crim. App. 1988)).
Requiring this causal connection supports the deterrent effect of the felony murder rule
by excluding killings that are “collateral to and separate from the underlying felony.”
Pierce, 23 S.W.3d at 296.

        In a felony murder case, the “intent to commit the underlying felony must exist
prior to or concurrent with the commission of the act causing the death of the victim.”
Buggs, 995 S.W.2d at 107. “[W]hether a defendant intended to commit the underlying
felony, and at what point the intent existed, is a question of fact to be decided by the jury
after consideration of all the facts and circumstances.” Wagner, 382 S.W.3d at 300
(citing Buggs, 995 S.W.2d at 107). As applicable in this case, “a jury may reasonably
infer from a defendant’s actions immediately after a killing that the defendant had the
intent to commit the felony prior to, or concurrent with, the killing.” Buggs, 995 S.W.2d
at 108 (citing State v. Addison, 973 S.W.2d 260, 266 (Tenn. Crim. App. 1997); State v.
Johnson, 661 S.W.2d 854, 861 (Tenn. 1983); State v. Holland, 860 S.W.2d 53, 59 (Tenn.
Crim. App. 1993)).

        The evidence, when viewed in the light most favorable to the prosecution, is
sufficient to sustain Hopkins’ conviction for first degree felony murder. The proof
established that on July 11, 1994, Hopkins planned to rob the victim of drugs and money.
On the day of the victim’s death, Hopkins was aware that the victim had a substantial
amount of marijuana and money because the victim was a known drug dealer. Hopkins
had stolen from the victim in the past and had robbed Davies’ home the morning of the
victim’s death. Moreover, Sutton testified that the day of the victim’s death she observed
Hopkins holding a baseball bat and standing over the victim’s body before Hopkins and
Riggs searched the victim’s house, finding money and approximately ten pounds of
marijuana. Later that day, Hopkins drove past the victim’s house and asked Humphrey to
look for police officers and police tape. Detective Stair, who responded to the crime
scene, noted that the victim’s home had been ransacked, and a search of the home
revealed only a small amount of drugs and no money, despite the fact that the victim was
deeply involved in the drug trade. Both Radcliff and Roark testified that Hopkins
bragged about robbing and killing the victim after the fact. Given all of this evidence, a
rational jury could have reasonably inferred that Hopkins had the intent to commit the
robbery prior to, or concurrent with, the killing of the victim, and we conclude that the
evidence is sufficient to sustain Hopkins’ conviction.
                                           - 11 -
        II. Sentencing. Hopkins also contends that the trial court abused its discretion in
ordering his sentence for life imprisonment served consecutively to his previously
imposed federal sentence. He claims that the imposition of consecutive sentencing is
excessive because sentences “should be no greater than that deserved for the offense
committed” and “should be the least severe measure necessary to achieve the purposes
for which the sentence is imposed.” T.C.A. § 40-35-103(2), (4). He also maintains that
the trial court, when applying the dangerous offender classification, failed to make the
required finding that the sentence terms imposed were “‘necessary in order to protect the
public from further criminal acts by the offender.’” State v. Pollard, 432 S.W.3d 851,
863 (Tenn. 2013) (quoting State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995)).
Hopkins asserts that if the trial court had ordered concurrent sentencing, then he would be
eligible for release from his life sentence at age ninety, making the need to protect the
public from him unnecessary. Because the trial court did not abuse its discretion in
imposing consecutive sentencing, we affirm the sentence in this case.

       When 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.
T.C.A. § 40-35-115(a); see State v. Hogg, 448 S.W.3d 877, 890 (Tenn. 2014). A trial
court may impose consecutive sentencing if it finds by a preponderance of the evidence
that one or more of the criteria in Code section 40-35-115(b) exists. “[T]he abuse of
discretion standard, accompanied by a presumption of reasonableness, applies to
consecutive sentencing determinations.” Pollard, 432 S.W.3d at 860.

       This court must give “deference to the trial court’s exercise of its discretionary
authority to impose consecutive sentences if it has provided reasons on the record
establishing at least one of the seven grounds listed in Tennessee Code Annotated section
40-35-115(b).” Id. at 861. “So long as a trial court properly articulates reasons for
ordering consecutive sentences, thereby providing a basis for meaningful appellate
review, the sentences will be presumed reasonable and, absent an abuse of discretion,
upheld on appeal.” Id. at 862 (citing Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at
705). When imposing consecutive sentences, the court must consider the general
sentencing principles that each sentence imposed shall be “justly deserved in relation to
the seriousness of the offense,” “no greater than that deserved for the offense
committed,” and “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” T.C.A. §§ 40-35-102(1), -103(2), (4); see State v. Imfield, 70
S.W.3d 698, 708 (Tenn. 2002).

       At the sentencing hearing, Hopkins’ presentence report and several victim impact
statements were entered into evidence. The presentence report showed that Hopkins’
criminal history included three aggravated burglary convictions, one burglary conviction,
five felony theft convictions, and one conviction for felon in possession of a firearm.
                                          - 12 -
Scott Barrett, the victim’s brother, testified that the victim’s murder took a “terrible toll
on [his] family” and that his mother had never been the same since the victim died.
Hopkins then made an allocution, stating, “I did not kill [the victim]. I’m an innocent
man. . . . I’m sorry for your loss, but I did not do that.”

       During the sentencing hearing, the trial court applied several of the criteria in
Code section 40-35-115(b). At the conclusion of the hearing, the trial court, noting that
Hopkins had committed “a violent homicide [in] somebody’s own home,” found that
“consecutive sentences . . . reasonably relate[d] to the seriousness of this offense” and
Hopkins’ extensive “criminal history.” The court then ordered Hopkins’ life sentence
served consecutively to his federal sentence.

        Initially, we recognize that under Tennessee Rule of Criminal Procedure
32(c)(2)(B), a trial court “shall impose a sentence that is consecutive to any . . . unserved
[federal] sentence unless the court determines in the exercise of its discretion that good
cause exists to run the sentences concurrently and explicitly so orders.” Therefore,
pursuant to this rule, Hopkins could not have received concurrent sentencing unless the
trial court found that good cause existed to order the sentences served concurrently and
explicitly so ordered, which did not occur in this case.

        We also recognize that the trial court ordered Hopkins’ felony murder sentence
served consecutively to his federal sentence after finding that more than one of the
criteria in Code section 40-35-115(b) existed. First, the trial court determined that
Hopkins was a professional criminal who knowingly devoted his life to criminal acts as a
major source of livelihood. See T.C.A. § 40-35-115(b)(1). The trial court noted that
Hopkins’ criminal history, which primarily consisted of property crimes, was “indicative
of somebody who is engaging in criminal behavior for the purpose of sustaining
livelihood or a major source of livelihood.” The court found that Hopkins chose “not to
try to be productive but to steal from other people,” which was significant because the
victim’s murder in this case was committed in the perpetration of a robbery. The record
shows that Hopkins, who was thirty-nine years old at the time of the conviction in this
case, had worked just over six years of his adult life. Although Hopkins argues that there
was no evidence he derived a major source of livelihood from his criminal acts, we
conclude that his extensive criminal history of property crimes, along with his extremely
limited employment history, support the trial court’s finding regarding this factor.

        The trial court also found that Hopkins had an extensive record of criminal activity
in light of his “multiple” felony convictions. See id. § 40-35-115(b)(2). The trial court,
while recognizing that “[p]roperty crimes don’t weigh quite as heavy as violent crimes,”
found that “when you have this many, it is significant and sufficient to show that

                                           - 13 -
[Hopkins] has [an] extensive [record of] criminal activity.” Therefore, we conclude that
the record also supports the trial court’s finding as to this factor.

       Finally, the trial court considered whether Hopkins was “a dangerous offender
whose behavior indicated little or no regard for human life and no hesitation about
committing a crime in which the risk to human life was high.” See id. § 40-35-115(b)(4).
The court recognized that the dangerous offender classification was “more of a stretch,”
but noted that it “could possibly apply [here] as well.”

        In Wilkerson, 905 S.W.2d at 938, the Tennessee Supreme Court held that when
imposing consecutive sentencing based on the dangerous offender classification, the trial
court was required to make two additional findings, that the terms imposed were
“reasonably related to the severity of the offenses committed” and were “necessary in
order to protect the public from further criminal acts by the offender.” We note that even
if the trial court did not make this second additional finding required for the dangerous
offender classification, the trial court properly determined that Hopkins was a
“professional criminal” and that his “record of criminal activity [was] extensive.” T.C.A.
§ 40-35-115(b)(1), (2). Because the trial court did not abuse its discretion in ordering
consecutive sentencing, we affirm the sentence in this case.

                                    CONCLUSION

        Based on the aforementioned authorities and analysis, we affirm the judgment of
the trial court.


                                                   _________________________________
                                                   CAMILLE R. MCMULLEN, JUDGE




                                          - 14 -
