         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 11, 2005

                 STATE OF TENNESSEE v. BOBBY JOE LESTER

                      Appeal from the Criminal Court for Shelby County
                          No. 02-02980    Joseph B. Dailey, Judge



                     No. W2004-00842-CCA-R3-CD - Filed July 28, 2005


The Appellant, Bobby Joe Lester, was convicted of attempted first degree murder, especially
aggravated kidnapping, and coercion of a witness. As a result of these convictions, Lester received
an effective eighty-five year sentence. On appeal, Lester argues that: (1) the evidence was not
sufficient to support the verdicts; (2) the trial court erred in failing to dismiss a juror; and (3)
consecutive sentencing was improper. After a review of the record, we conclude that the proof is
sufficient to support Lester’s convictions on all counts. Moreover, we conclude issues (2) and (3)
are without merit.

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

JOHN EVERETT WILLIAMS , J., delivered the opinion of the court, in which J. C. MCLIN , J., joined and
DAVID G. HAYES, J., dissented.

Kamilah E. Turner, Memphis, Tennessee, Attorney for the Appellant, Bobby Joe Lester.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David E.
Coenen, Assistant Attorney General; William L. Gibbons, District Attorney General; Reginald
Henderson and Paul Hagerman, Assistant District Attorneys General, for the Appellee, State of
Tennessee.

                                             OPINION

                                       Factual Background

        In December of 2003, a Shelby County jury convicted the Appellant of attempted first-degree
murder, especially aggravated kidnapping, two counts of aggravated assault, and one count of
coercion of a witness. However, the trial court subsequently merged the convictions for aggravated
assault with the conviction for attempted first degree murder. The trial court sentenced the
Appellant, as a multiple offender, to thirty-nine years for attempted first degree murder and to seven
years for coercion of a witness. The court further sentenced the Appellant to thirty-nine years, as a
violent offender, for the especially aggravated kidnapping conviction. The court then ordered that
the Appellant’s sentences be served consecutively, for an effective sentence of eighty-five years. On
February 5, 2004, the Appellant filed a motion for new trial. Following a February 27, 2004 hearing,
the motion was denied. This timely appeal followed.

        At trial Billie Strong, the victim, testified that she was beaten and raped on April 21, 2001,
by Ervon Blair and Tommy Holmes. After she was discovered, she informed the police of the
identity of her attackers, resulting in criminal charges against the two men. The victim had
previously met Blair and Holmes while visiting her friend Charles Davis at a rooming house on
Foster Street in Memphis, where he lived with Blair and Holmes. She also met the Appellant at the
rooming house, as he was a friend of Blair and Holmes.

         The victim testified that around 11:30 a.m. on June 5, 2001, as she walked to Miller’s
Grocery Store to use the pay phone, a white transfer truck without the trailer, bearing the markings
M. S. Carriers, pulled over on the grass beside her home. The victim had seen the truck circle her
home several times earlier that morning as she sat on her front porch. The driver, a man who
introduced himself as Jody, called her over and offered to give her a ride. The victim entered the
truck, locked the door, and fastened her seatbelt as instructed. At this point, the Appellant, whom
the victim recognized as “Joe,” pulled back the sleeper curtain located behind her and hit her in the
throat with a baseball bat. Holmes, who was also secreted in the truck’s cab, then beat her with a
hammer and asked her why she had pressed charges against him. He told her to call Sergeant
Colbert, the investigating officer, and drop the charges. The victim also testified that after she was
beaten, the Appellant tried to wrap her in plastic and “snap” her neck. The victim also stated that
the Appellant and Jody raped her and that her assailants forced her to smoke crack cocaine in the
truck. While the victim related that she had not used cocaine since her rape in April of that year,
State’s witness Charles Davis testified that the victim had smoked crack cocaine throughout their
entire fifteen-to-twenty-year close friendship. The last thing the victim remembered was lying on
the side of the road and somehow rolling out of the truck’s path as the truck tried to run over her.

       A motorist driving home from work found the victim, undressed and bleeding, in front of an
abandoned house on Frayser Boulevard, crawling toward the sidewalk and crying for help. The
motorist stopped his car and called 9-1-1 on his cell phone. Officer Keith Seibert of the Memphis
Police Department responded to the scene and discovered the victim lying half on the grass and half
on the street in front of 2801 Frayser Boulevard. The victim was coming in and out of
consciousness.

        The victim suffered life threatening injuries as a result of the beating and entered the hospital
in extremely critical condition. At trial, the victim testified that as result of the beating of June 5,
2001, her jaw was broken and her teeth were knocked out by the roots. Doctors removed her spleen
and inserted three iron plates in her head and a rod in her elbow. Additionally, her first, second, and
third vertebras were compacted forcing her to sleep in a sitting position to prevent swelling. Her arm
was also partially paralyzed.



                                                  -2-
         Sergeant L. W. Colburn, who was with the Memphis Police Department’s Sex Crimes
Bureau at the time of the investigation, was involved in the investigation of the victim’s cases. He
testified that while hospitalized, the victim indicated that Holmes and a man named “Joe” had beaten
her on June 5, 2001. He presented the victim with a photo spread, and she identified Bobby Joe
Lester as the perpetrator and wrote, “I’ll never forget the look he gave me when he first hit me with
the bat.”

                                               Analysis

I. Sufficiency of the Evidence

        The Appellant argues that the evidence in this case is insufficient to support his convictions
for attempted first degree murder, especially aggravated kidnapping, and coercion of a witness. The
standard of review when an appellant questions the sufficiency of evidence is “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.” Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1970); Tenn. R. App. P. 13(e). A conviction by a jury removes
a defendant’s presumption of innocence and replaces it with one of guilt. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant has the burden of proving the insufficiency of
evidence. Id. This court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). A jury’s guilty verdict accredits the testimony of the State’s witnesses and
resolves all conflicts in favor of the prosecution’s theory. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997).

        (a) Attempted First Degree Murder

         The Appellant alleges that the evidence in this case is insufficient to convict him of attempted
first degree murder. Tennessee Code Annotated section 39-13-202(a)(1) (2003) defines first degree
murder as “a premeditated and intentional killing of another.” Criminal attempt occurs when a
person “[a]cts with intent to cause a result that is an element of the offense, and believes the conduct
will cause the result without further conduct on the person’s part . . . [.]” Tenn. Code Ann. § 39-12-
101(a)(2) (2003). The Appellant denies the existence of premeditation, claiming that the perpetrators
never intended to kill the victim. Tennessee Code Annotated section 39-13-202(d) relates that:
         “premeditation” is an act done after the exercise of reflection and judgment.
         “Premeditation” means that the intent to kill must have been formed prior to the act
         itself. It is not necessary that the purpose to kill pre-exist in the mind of the accused
         for any definite period of time. The mental state of the accused at the time the
         accused allegedly decided to kill must be carefully considered in order to determine
         whether the accused was sufficiently free from excitement and passion as to be
         capable of premeditation.
The element of premeditation is a question of fact to be resolved by the jury and may be established
by proof of the circumstances surrounding the killing. Bland, 958 S.W.2d at 660; State v. Brown,
836 S.W.2d 530, 539 (Tenn. 1992). Bland outlines several factors supporting premeditation


                                                  -3-
including “the use of a deadly weapon upon an unarmed victim; the particular cruelty of the killing;
declarations by the defendant of an intent to kill; evidence of procurement of a weapon; preparations
before the killing for concealment of the crime, and calmness immediately after the killing.” 958
S.W.2d at 660 (citing Brown, 836 S.W.2d at 541-42; State v. West, 844 S.W.2d 144, 148 (Tenn.
1992)).

        Having considered the proof in the light most favorable to the State, we conclude that the
evidence is sufficient to support the jury’s finding of premeditation. Prior to the incident, the
Appellant and Holmes planned their revenge on Billie Strong, wanting to “get rid of” her. In
furtherance of their plan, they discussed and obtained a baseball bat, plastic, duct tape, and other
objects. The Appellant and Holmes, along with Blair, cased the victim’s home in preparation for
the attack. Finally, on June 5, 2001, the Appellant savagely hit the victim in the throat with a
baseball bat, wrapped her in plastic wrap, and attempted to snap her neck. Instructions given to the
victim to drop the charges against Holmes do not negate the Appellant’s intent to kill the victim.
Both the extensive planning and the nature of the acts themselves evidence an intent to kill.
Accordingly, we find no error.

       (b) Especially Aggravated Kidnapping

        The Appellant also contends that the evidence in this case is insufficient to find him guilty
of especially aggravated kidnapping because the victim entered the truck willingly, did not attempt
to leave the truck, and was not forced to stay. Especially aggravated kidnapping is false
imprisonment “accomplished with a deadly weapon or by displaying of any article used or fashioned
to lead the victim to reasonably believe it to be a deadly weapon” or “where the victim suffers
serious bodily injury.” Tenn. Code Ann. § 39-13-305(a)(1), (4) (2003). False imprisonment occurs
when “a person . . . knowingly removes or confines another unlawfully so as to interfere substantially
with the other’s liberty.” Tenn. Code Ann. § 39-13-302(a) (2003). The element of removal or
confinement may be accomplished through either “force, threat, or fraud. . . .” Tenn. Code Ann. §
39-13-301(2) (2003).

        Although the Appellant would have us focus on the subjective intent of the victim, in our
view, the focus of the fraud analysis is on the elements of trickery or deceit considering, when
necessary, any characteristics of the victim that would make him or her particularly susceptible to
such elements. State v. Edward Coleman and Sean Williams, No. W2001-01021-CCA-R3-CD, 2002
Tenn. Crim. App. LEXIS 965, at *15 (Tenn. Crim. App., at Jackson, Nov. 7, 2002) (citing 51 C.J.S.
Kidnapping § 1, p. 498 (1976)).

        Considering the proof in the light most favorable to the State, we conclude that the actions
of the driver and the appellant indicate an intricate plan to deceive the victim. Specifically, the
record reflects that the driver approached the victim’s house, spoke with her, and then parked around
the corner from her home. Being previously acquainted with the driver, the victim more willingly




                                                 -4-
accepted his offer to drive her to the store as she walked past.1 However, once the victim was in the
truck and immobilized by the locked door and the seatbelt, the Appellant and the driver inflicted a
series of assaults on the victim, eventually leaving her to die. In our view, the “nature of the artifice”
was such that it constituted a fraudulent inducement. Id.

        Furthermore, this court has previously noted “that removal or confinement may initially be
with the consent of a victim, yet subsequently become unlawful and against the will of a victim.”
Id. at *17 (citing State v. Davis, 656 S.W.2d 406, 409 (Tenn. Crim. App. 1983)) (holding that a
confinement that is initially consensual may become a kidnapping “if subsequent events show the
person remains with the accused against their will as a result of force or the use of arms by the
accused.”) Initially, we find it noteworthy that the victim was assaulted almost immediately after
she entered the vehicle; therefore, she did not have an opportunity to attempt to leave before she was
attacked. Furthermore, the victim’s testimony reveals that, after she realized the motives of her
captors, she expressed her desire to leave but was kept in the truck by physical force and threats of
physical force. Specifically, she stated that she “prayed,” pleaded with the Appellant not to kill her,
and cried as she was beaten and raped. In our view, any consensual confinement certainly became
otherwise when the victim’s assault began.

         In sum, the testimony reveals that the victim’s intention was to walk to the store; however,
as she walked past the truck, the driver inquired as to where she was going and offered to drive the
victim to the store. Accepting the offer, the victim got into the truck and complied with the driver’s
instructions to lock the door and fasten her seatbelt, thereby immobilizing her. Immediately
thereafter, the Appellant pulled back a curtain and struck the victim in the throat with a baseball bat.
Following a series of attacks, the victim was taken to a second location where she was left in a field
of weeds, making her virtually undetectable to passers-by. In our opinion, this testimony constitutes
sufficient evidence for a rational trier of fact to find that the victim was fraudulently induced to get
into the truck, and to convict the Appellant of especially aggravated kidnapping. In any event, even
if the initial confinement was consensual, it certainly became against the will of the victim when she
was taken, unconscious, to a second location. For these reasons, we affirm the conviction for
especially aggravated kidnapping.

         (c) Coercion of a Witness

       The Appellant argues that the evidence in this case is not sufficient to convict him of
coercion of a witness. Tennessee Code Annotated § 39-16-507(a) (2003) provides:
       a person commits an offense who, by means of coercion, influences or attempts to
       influence a witness or prospective witness in an official proceeding with intent to
       influence the witness to (1) [t]estify falsely; (2) [w]ithhold any truthful testimony,
       truthful information, document or thing; or (3) [e]lude legal process summoning the



         1
           Although the victim initially stated that she walked “up to the truck,” she further clarified that she meant she
had to approach the truck en route to the store.

                                                           -5-
        witness to testify or supply evidence, or to be absent from an official proceeding to
        which the witness has been legally summoned.
The Appellant argues that because he was not implicated in the victim’s April 2001 rape and never
threatened her not to testify against him, the conviction cannot stand. However, Tennessee Code
Annotated section 29-16-507(a) (2003) contains no language mandating that the person who
commits this offense must be a party to the action or even have a stake in the outcome of the judicial
proceedings. The proof at trial established that the victim had filed charges against Holmes for the
alleged rape that occurred in April 2001 and that the victim intended to pursue the charges. The
Appellant and Holmes were good friends and had planned the attack of the victim to discourage her
from testifying or to influence her to drop the charges. During the attack, Holmes instructed the
victim “to call Sergeant Colbert and drop the charges.” Accordingly, we conclude that the proof was
sufficient for a jury to find the Appellant guilty of coercion of a witness beyond a reasonable doubt.

II. Failure to Remove a Juror

         Next, the Appellant contends that the trial court erred when it failed to remove a juror who
supposedly talked to another juror about the merits of the case. We disagree. The record reflects
that in response to the court’s admonition to the jury about discussing the case prior to the close of
the proof, juror Wasmund reported to the court that he overheard juror Harty make “a general
observation about how the case was going” to another juror. Wasmund also reported that the
comment was related “I guess to guilt or not guilt.” Wasmund stated that overhearing this statement
would not affect his own thought process regarding the case, but he expressed his discomfort in
returning to the jury after making the report. After dismissing Wasmund, the court stated, “. . . he
seemed so uncomfortable with how things developed that I don’t think it would have been
appropriate to have left him on even though he did nothing wrong and he made no statements
pertaining to the case.” The court then questioned juror Harty, who claimed that he had not formed
an opinion as to the defendant’s guilt or innocence and that he did not remember commenting about
the facts of the case to another juror. The court found no reason to dismiss Harty. The court
concluded:
         Mr. Wasmund indicated that he overheard a statement last night; it wasn’t within the
         context of the trial itself; it wasn’t in the jury room while whey were waiting to be
         brought back into the courtroom or anything of that sort. So it might well be that Mr.
         Harty made some statement that he doesn’t even remember having made that Mr.
         Wasmund overheard, and they viewed it on two different levels. And Mr. Wasmund
         felt it was serious enough to report to Officer Burras, but Mr. Harty doesn’t recall
         having made it because it was made in such a casual manner that he just might have
         made it and moved on to some other conversation or some other event in the evening.

        Tennessee Rule of Criminal Procedure 24(f) relates that after a jury is sworn, the court should
give jurors admonitions regarding their conduct during the case. Jurors must not communicate with
one another or others concerning the trial or express opinions regarding the case until its completion,
and they are told to report such improper action promptly. Tenn. R. Crim. P. 24(f). Juror Wasmund
complied with this rule by bringing the matter to the court’s attention. The Appellant argues that the


                                                 -6-
trial court erred because Harty “was obviously unable to render a fair and impartial verdict, by his
comments, yet he was allowed to remain on the jury.” We conclude that the trial court did not abuse
its discretion in retaining this juror. We agree with the reasoning of the trial court and are unable
to determine the extent of extrajudicial communication or whether it actually transpired in this case.
Thus, the trial court properly retained Harty as a member of the jury.

III. Consecutive Sentencing

        The Appellant argues that the trial court erred by ordering his sentences for attempted first-
degree murder and especially aggravated kidnapping be served consecutively.2 With reference to
the facts of this case, Tennessee Code Annotated section 40- 35-115(b) provides that the court may
order sentences to run consecutively if the court finds by a preponderance of the evidence that:
        (2) The defendant is an offender whose record of criminal activity is extensive;
        (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;
        (6) The defendant is sentenced for an offense committed while on probation[.]
Tenn. Code Ann. § 40-35-115(b)(2), (4), (6) (2003).

        This court’s review of the manner of service of a sentence is de novo with a presumption that
the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-401(d) (2003).
Likewise, the appellant bears the burden of proving the impropriety of the consecutive nature of the
sentences imposed. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. Before
consecutive sentences can be imposed, the trial court must first determine that one or more of the
statutorily enumerated criteria of Tennessee Code Annotated section 40-35-115 exist. Gray v. State,
538 S.W.2d 391, 393 (Tenn.1976). If the defendant is found to be a dangerous offender, the court
must additionally find that the aggregate sentence is reasonably related to the severity of the offenses
and is necessary to protect the public from further criminal activity of the offender. State v.
Wilkerson, 905 S.W.2d 933, 937 (Tenn. 1995); see also State v. Lane, 3 S.W.3d 456, 461 (Tenn.
1999) (holding Wilkerson factors were limited to sentencing of “dangerous offenders”).
Notwithstanding proof of these criteria, a sentencing court retains discretion in imposing consecutive
sentences. On appeal, the exercise of the trial court’s discretion is afforded great weight, provided
the court correctly applied the principles of consecutive sentencing. Moreover, in determining
whether the trial court providently exercised its discretion, “the overriding concern” is the fairness
of the resulting sentence under all the circumstances.


         2
           The Appellant’s sentencing issue is framed: “The trial judge erred by imposing top of the range, consecutive
sentencing for Criminal Attempt M urder First Degree and Especially Aggravated Kidnapping.” An appeal of a sentence
may be brought on either of following grounds: (1) the sentence was not imposed in accordance with the Sentencing Act
and/or the enhancing and mitigating factors were not properly weighed, and the sentence is excessive under the
sentencing considerations set out in Tennessee Code Annotated section 40-35-103, 401(b)(1), (2) (2003). The Appellant
challenges neither of the above grounds, does not contest application of the five enhancing factors found by the trial
court, nor offers any argument in support of an excessive or erroneous sentence. Accordingly, we limit our review to
the propriety of consecutive sentences.

                                                         -7-
        Consecutive sentences are imposed upon dangerous offenders to protect society against
offenders who commit aggravated crimes that pose a high risk to human life. Under Gray, a finding
that a defendant is a “dangerous offender” is based upon the circumstances surrounding the crimes
for which the defendant is being sentenced. The court stated in Gray, 538 S.W.2d at 393:”[a]
defendant may be classified as a dangerous offender if the crimes for which he is convicted indicate
that he has little or no regard for human life, and no hesitation about committing a crime in which
the risk to human life is high.” Id; see also Tenn. Code Ann. § 40-35-115(b)(4). No prerequisite
exists in Tennessee Code Annotated section 40-35-115(b)(4), Gray v. State, or State v. Wilkerson
that the offense, by statutory definition alone, be a dangerous offense. In determining the inherently
dangerous nature of the instant offenses, the focus is not whether the crimes were dangerous crimes,
but whether there exists aggravating circumstances in the commission of the instant offenses. See
Gray, 538 S.W.2d at 393.

       At the sentencing hearing, the trial court conducted a thorough analysis before imposing
consecutive sentences. The court reasoned that the Appellant had an extensive criminal record
finding “. . . thirteen prior convictions - felony and misdemeanor, and four or five juvenile
court/contempt of court, which I would assume are child-support issues, I would call that extensive.”
Our review of the presentence report reveals numerous convictions, including convictions for
harassment, stalking, aggravated robbery, assault, and possession of drugs and drug paraphernalia.
The court also determined that the Appellant was a dangerous offender concluding:
       anyone who participates in a beating of this sort that is so extensive, so severe, and
       has no regard for human life, no hesitation about committing a crime in which the
       risk to human life is high. It can be a reasonable inference from the facts of this case
       - the manner in which this lady was beaten - the fact that she was wrapped in plastic
       and dumped in a ditch in Frayser in a fairly remote spot that the individuals who did
       this, did it with the intention of killing their victim. So, certainly the risk to her life
       was high.
The court also found that the Appellant committed this offense while on probation as reflected in the
presentence report. Finally, the court determined that the need for consecutive sentencing balanced
with the severity of the offenses and the need to protect the public.

         The Appellant concedes that he was on probation when the offense occurred and that he has
a criminal record but denies that “he showed little or no regard for human life, or that he devoted his
life to criminal activity.” We disagree. The Appellant beat the victim with a baseball bat, wrapped
her in plastic, and tried to snap her neck before leaving her to die on the side of the road. At no point
did the Appellant hesitate or feel remorse. We cannot construe these actions to manifest anything
but undeniable disregard for human life. As indicated by the word or, the sentencing court may use
any one factor delineated in Tennessee Code Annotated section 40-35-115 as criteria for consecutive
sentencing, but all factors need not be present. In this case the court found that the Appellant had
an extensive criminal record. At no time did the court express that the Appellant was a career
criminal. It also concluded that the Appellant acted as a dangerous offender with no regard for
human life and committed the offense while on probation. Upon de novo review of the record, we


                                                  -8-
conclude that the imposition of consecutive sentences was appropriate, as the proof established that
the aggregate sentence imposed reasonably relates to the severity of the offenses and was necessary
to protect the public from further criminal acts of the Appellant. Accordingly, this issue is without
merit.

                                            Conclusion

       After review, we conclude that the proof is legally sufficient to support the Appellant’s
convictions on all counts. The remaining issues raised by the Appellant are without merit.
Therefore, we affirm.




                                                      ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




                                                -9-
