       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                     March 4, 2008 Session

                STATE OF TENNESSEE v. STARBROUGH JONES

                  Direct Appeal from the Criminal Court for Shelby County
                             No. 05-01013 Chris Craft, Judge




                  No. W2006-02230-CCA-R3-CD - Filed September 25, 2008



A Shelby County Criminal Court jury convicted the appellant, Starbrough Jones, of first degree
felony murder, especially aggravated robbery, and attempted especially aggravated robbery, and the
appellant received sentences of life, twenty-one years, and nine years, respectively. The trial court
ordered that the appellant serve the twenty-one-year and nine-year sentences concurrently with each
other but consecutively to the life sentence. On appeal, the appellant contends that (1) the trial court
erred by allowing unreliable hearsay testimony into evidence in violation of Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004); (2) the evidence is insufficient to support the
convictions; and (3) consecutive sentencing is excessive. Based upon the record and the parties’
briefs, we affirm the judgments of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T. WOODALL and D.
KELLY THOMAS, JR., JJ., joined.

David Christensen (on appeal) and Robert Parris (at trial), Memphis, Tennessee, for the appellant,
Starbrough Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Michelle Parks and Greg Gilbert, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

       The record reflects that the appellant and Cadaro Hughes were jointly indicted for first degree
felony murder and attempted especially aggravated robbery of Anthony Woodfork and especially
aggravated robbery of Ricardo Guevara. At the appellant’s trial, Deborah Ann Thompson testified
that Anthony Woodfork was her younger brother and that he was killed in May 2004. On the day
of her brother’s death, a cousin telephoned Thompson and told her that Woodfork had been shot in
the back. Thompson and her family went to the hospital, and doctors told her what had happened
to her brother. She said Woodfork had been working at S&S Tire on the day of the shooting and was
twenty-six years old.

        Ricardo Guevara testified through an interpreter that his brother, Salvadore Guevara, owned
S&S Tire at 3125 Summer Avenue in Memphis. On May 14, 2004, Ricardo1 was working there with
Anthony Woodfork. The appellant and two other men arrived at the shop in a red car. The appellant
approached Ricardo and asked for “the black guy.” Woodfork overheard the appellant and came
outside to speak with him. The appellant and Woodfork talked for five minutes about the appellant
selling Woodfork some tennis shoes. The appellant and the two other men then left in the red car.
About 7:00 p.m., the men returned to the shop. The appellant got out of the red car and had tennis
shoes in his hands. He gave Ricardo a pair, and Ricardo sat in the passenger seat of Woodfork’s car
to try on the shoes. Ricardo was sitting in the car with the passenger door closed and the window
rolled down. Woodfork was sitting in the driver’s seat, and the appellant was standing beside
Woodfork. A second man, who had arrived at the shop with the appellant, was standing by Ricardo.

         Ricardo testified that he bent down and began trying on the shoes. Woodfork had money in
his mouth, and began arguing with the appellant over the money. When Ricardo sat upright, he saw
that the second man had pointed a gun at Ricardo’s head. The man opened the car door, and Ricardo
got out with his hands up. The appellant was screaming, and Woodfork got out of the car and began
struggling with the appellant. The appellant and Woodfork moved out of Ricardo’s sight, and the
man pointing the gun at Ricardo reached into Ricardo’s pocket and took his wallet. Ricardo heard
a gunshot, and then the man pointing the gun at him shot him. He stated that he spent two days in
the hospital and that the bullet was still in his body.

        On cross-examination, Ricardo testified that Woodfork’s shooter had a dark complexion and
short, curly hair. He acknowledged that he recognized the appellant as the man who shot Woodfork.
He also acknowledged giving a statement to police but said he did not remember saying in the
statement that the shooter had a medium complexion. Within a month of the shooting, he looked
at a photographic array but was unable to identify a suspect. He stated that eight to ten days later,
he was shown a second array and identified the appellant. He acknowledged that Woodfork was his
friend and that he wanted justice for Woodfork’s death.

      Hector Guevara, Ricardo Guevara’s brother, testified through an interpreter that he was
working at S&S Tire on May 14, 2004. Hector was in the shop’s office, heard two gunshots, and


         1
          Because some of the witnesses in this case share a surname, we have chosen to utilize their first names for
clarity. W e mean no disrespect to these individuals.




                                                         -2-
went outside. He saw Anthony Woodfork lying on the ground and went to talk with him but realized
he was dead. Hector ran to hug his brother, and Ricardo told Hector he had been shot. Hector stated
that earlier in the day, three men had driven to the shop in a red car. Hector did not see who shot
Woodfork or Ricardo, but he stated that the appellant was one of the men who came to the shop
earlier that day. He said that the police showed him a photographic array and that he identified
someone in the array as having participated in the crimes. On cross-examination, Hector
acknowledged that he was unable to make a positive identification from the photographs.

         Dr. Feng Li, the Assistant Medical Examiner for Shelby County, testified that he performed
Anthony Woodfork’s autopsy on May 15, 2004. Woodfork was seventy-one inches tall and weighed
one hundred seventy-one and one-half pounds. He had a gunshot wound in the left side of his back,
in the right side of his back, and in his right elbow. Dr. Li did not see any marks, such as stippling,
around the wounds and concluded that the gun was more than three feet away from Woodfork when
it was fired. The bullet that entered the left side of Woodfork’s back damaged Woodfork’s left lung,
liver, right lung, and left kidney, and Dr. Li recovered the bullet from Woodfork’s chest blade. The
bullet that entered the right side of Woodfork’s back damaged his right lung, liver, and pancreas, and
Dr. Li recovered the bullet from Woodfork’s abdominal wall. Woodfork lost a large amount of
blood, and both of the wounds were potentially fatal. The bullet that struck Woodfork’s elbow was
a superficial perforating wound that traveled through the elbow, and Dr. Li was unable to recover
it. He stated that Woodfork’s cause of death was multiple gunshot wounds.

        Seventeen-year-old Marco Deshaun Rubin testified that he knew the appellant as “Teddy”
and that he had known the appellant and the appellant’s brothers for a couple of years. One day in
June 2004, Rubin was at a house on Given Street with a group of people, including the appellant and
Cadaro Hughes. Rubin stated that Hughes told him that on the day of the shootings, a man was
supposed to buy shoes from Hughes. Cartrell Taylor drove Hughes, the appellant, and a man known
as “Bright Teddy” to S&S Tire in a red car. Taylor and “Bright Teddy” waited in the car while
Hughes “ran up to [the] Mexican . . . and the other dude ran and [the appellant] shot him.” Hughes
told Rubin that he was “tussling with the Mexican” and shot him and that the appellant shot “[t]he
black guy.” Hughes told Rubin that they robbed “[t]he black guy” and took two hundred to three
hundred dollars from him. Rubin acknowledged that he talked with the police about the crimes and
told them that the appellant’s brother, Alfreddie, was involved. However, Rubin testified at trial that
Alfreddie was not involved and that the police mistakenly wrote down that information.

        On cross-examination, Rubin testified again that he told the police Cartrell Taylor drove the
red car to S&S Tire. When asked by the defense if he told the police that “Bright Teddy” was the
driver, Rubin said, “They took [it] down wrong.” He said he had known the appellant for about two
years and acknowledged that he told the police he had known the appellant about eight years. He
acknowledged that he did not use the appellant’s real name in his statement to police but said he did
not know the appellant’s real name at that time. He said he did not remember telling the police that
a man named Damien Howard planned the robbery, and he denied telling the police that Howard sold
shoes. He said that he told the police he did not remember what kind of car was used in the robbery
and that he did not know anything about the car when he gave his statement. He said some of the


                                                 -3-
answers in his statement to the police were wrong.

        Officer Darrel Felton of the Memphis Police Department testified that about 8:30 p.m. on
May 14, 2004, he got a call of a “man down” and went to S&S Tire. He was the first officer to arrive
at the scene and saw an African-American male lying on his right side. The male blinked his eyes
a couple of times but could not talk. Blood was on the ground, and the male was not wearing any
shoes. Officer Felton also saw a Hispanic male sitting in a pickup truck.

        Officer Marlon Wright of the Memphis Police Department testified that about 8:50 p.m. on
May 14, 2004, he was dispatched to S&S Tire to preserve the crime scene. The victims had already
been removed from the area. He stated that photographs taken of the crime scene showed one blue
and white tennis shoe inside Anthony Woodfork’s vehicle on the driver’s side. A shoe-shaper and
a cellular telephone were on the floorboard on the driver’s side. Outside the car, one hundred
seventy dollars was on the ground beside the driver’s door. A second blue and white tennis shoe and
a brown tennis shoe were also on the ground.

        On cross-examination, Officer Wright testified that when he arrived at the tire shop, light rain
was falling, but “it soon after started pouring down rain.” He said that two cellular telephones were
found at the scene, one outside the victim’s car and one on the car’s driver’s side floorboard. He said
that the parking lot was poorly lighted and that officers had to use the high beams from their patrol
cars to see the area.

         Officer Carl Craig of the Memphis Police Department testified that on June 3, 2004, he had
a second job working as a security guard for an apartment complex. About 1:30 a.m., Officer Craig
was inside his security office and heard a gunshot. He went outside and saw a man, later identified
as the appellant, standing between two apartment buildings. Officer Craig was wearing his police
uniform and called out to the appellant. However, the appellant “scooted” around the corner of the
building, and Officer Craig and his partner ran after him. The appellant ran upstairs to the building’s
second floor and down a corridor. Officer Craig saw a gun in the appellant’s hand and intended to
arrest him for possession of a weapon. The appellant ran to the end of the corridor, jumped up onto
the railing, and jumped fifteen to twenty feet down to the ground. The appellant was injured and
could not get up, and Officer Craig handcuffed him and asked for his name. At first, the appellant
would not give Officer Craig any information. However, some people at the scene told Officer Craig
that the appellant’s name was “Teddy,” and the appellant finally told Officer Craig his name was
Starbrough Jones. Officer Craig called an on-duty officer to the scene, and Officer John Harper
arrived and collected the appellant’s gun, which was a six-shot .38 caliber revolver that contained
four live rounds and one spent cartridge. Officer Craig charged the appellant with unlawful
possession of a weapon and evading arrest.

       Memphis Police Department Officer John Harper, III, testified that about 1:30 a.m. on June
3, 2004, he was called to an apartment complex at 2925 Mimosa. When he arrived, he saw the
appellant lying on the ground and screaming. When Officer Craig and his partner rolled the
appellant over, Officer Harper saw a gun underneath the appellant. Officer Harper took possession


                                                  -4-
of the gun, which was a loaded, blue steel .38 caliber gun, and had the appellant transported to The
Med. On cross-examination, Officer Harper testified that the appellant was screaming in pain and
did not threaten or point the gun at him.

         Special Agent Robert Daniel Royse from the Tennessee Bureau of Investigation (TBI)
testified as a firearms identification expert that the TBI received the .38 caliber revolver recovered
from the appellant, the four live rounds found in the gun, the one spent cartridge case in the gun, and
the two bullets recovered from Anthony Woodfork’s body. Agent Royse test-fired the gun and
concluded that the spent cartridge case had been fired in the revolver. He stated that two of the four
live rounds from the gun contained bullets that were consistent with having been manufactured by
the same manufacturer as the bullets recovered from Woodfork’s body. He also stated that the
features of the two bullets recovered from Woodfork were consistent with two of the live rounds
found in the gun. Agent Royse determined that both of the bullets recovered from Woodfork’s body
were made by the same manufacturer but that only the bullet recovered from Woodfork’s chest had
been fired from the revolver. The bullet recovered from Woodfork’s abdomen was fired from a
different gun.

        Sergeant William D. Merritt of the Memphis Police Department testified that he was the case
officer for the crimes committed at S&S Tire on May 14. Sergeant Merritt went to the scene and
spoke with other officers. The police determined that the money and both of the cellular telephones
found at the scene belonged to Anthony Woodfork. The tennis shoes found at the scene were tested
for fingerprints, but no prints were recovered. On June 3, 2004, Sergeant Merritt met with Marco
Rubin, and Rubin told Sergeant Merritt what he knew about the shooting. From that information,
Sergeant Merritt collected photographs of suspects and showed them to Rubin. Rubin identified
Cadaro Hughes’ photograph. Rubin also identified one of the photographs as that of Alfreddie Warr.
Sergeant Merritt later learned that Alfreddie Warr’s real name was Starbrough Jones and that
Aldreddie Warr was the name of Jones’ brother.

        Sergeant Merritt testified that he put together some photographic arrays and showed them
to Hector and Ricardo Guevara with the help of a translator. He showed Ricardo a photographic
spread that contained Cadaro Hughes’ photograph and a spread that contained the appellant’s
photograph, but Ricardo was unable to identify anyone. Sergeant Merritt showed Hector a
photographic spread containing Cadaro Hughes’ photograph, but Hector was unable to identify a
suspect. When Sergeant Merritt showed Hector a photographic array containing the appellant’s
photograph, Hector identified someone as a participant in the crimes. However, Hector was not one
hundred percent positive and, therefore, signed a form stating that he could not make a positive
identification. On June 3 or 4, Sergeant Merritt learned that the appellant had been arrested for
unlawful possession of a weapon and evading arrest but that he had already made bond and been
released from custody. Sergeant Merritt obtained the appellant’s arrest ticket to find out the type of
weapon the appellant had possessed. Sergeant Merritt also obtained the bullets recovered from
Woodfork’s body and sent them and the appellant’s gun to the TBI for testing. He later learned that
one of the bullets recovered from Woodfork had been fired from the appellant’s gun.



                                                 -5-
        Sergeant Merritt testified that on June 18, 2004, he spoke with the appellant about
Woodfork’s death. The appellant told Sergeant Merritt that he had been arrested on a drug charge,
which Sergeant Merritt knew was untrue. Sergeant Merritt showed the appellant a photographic
array containing Marco Rubin’s photograph, but the appellant indicated he did not know Rubin.

        On cross-examination, Sergeant Merritt testified that when he spoke with Marco Rubin on
June 3, 2004, Rubin said he had known Alfreddie Warr about eight years. Rubin told Sergeant
Merritt that men told him “Bright Teddy” drove the getaway car but that the men did not give Rubin
a description of the car. Rubin also said that the men told him Damien Howard planned the robbery
at S&S Tire and that Rubin knew Howard to sell Nike tennis shoes in the neighborhood. Sergeant
Merritt acknowledged that Rubin answered several questions as “Alfreddie Warr.” Sergeant Merritt
sent one of the tennis shoes recovered from the crime scene to the TBI for testing, and DNA inside
the shoe belonged to Cartrell Taylor. When Sergeant Merritt questioned the appellant, the appellant
denied knowing anything about Anthony Woodfork’s death.

       On redirect examination, Sergeant Merritt testified that Marco Rubin told him Alfreddie
Warr participated in the robbery and shooting at S&S Tire. Sergeant Merritt then showed Rubin
some photographs, and Rubin said the man he was talking about was actually Starbrough Jones.
Rubin did not tell Sergeant Merritt that Cartrell Taylor had been involved in the robbery.

       Sergeant Merritt also was called to testify for the defense. He said that he showed the
Guevara brothers a photographic array containing the appellant’s photograph and that Ricardo was
unable to make an identification. Hector identified someone other than the appellant. However,
Hector was not positive about the identification.

         TBI Special Agent Qadriyyah Debnam testified that she performed DNA analysis on
evidence in this case. She analyzed skin cells found in a blue and white pair of tennis shoes and
compared them to Cartrell Taylor’s saliva. DNA from skin cells in the right shoe matched the DNA
in Taylor’s saliva. However, Agent Debnam was unable to obtain enough DNA from the left shoe
to make a comparison. On cross-examination, Agent Debnam testified that rain could affect the
ability to collect DNA from evidence.

        Eddie Warr, the appellant’s brother, testified that Brandy and Alfreddie Warr were also his
brothers. He said that the appellant bought a handgun in June 2004 and that the appellant bought
the handgun two or three days before the appellant was arrested at the apartment complex. The
appellant bought the gun from “Mario, something like that.” The defense showed the witness a
photographic array containing Marco Rubin’s photograph, and the witness identified Rubin as
“Mario.” On cross-examination, Eddie Warr acknowledged that the appellant went by the name
“Teddy,” but he did not know if the appellant had used the name “Alfreddie” previously. Eddie
Warr acknowledged that he did not tell anyone about the appellant’s buying the gun from “Mario”
until the Monday before the appellant’s trial.

       The jury convicted the appellant of first degree felony murder and attempted especially


                                                -6-
aggravated robbery of Anthony Woodfork and especially aggravated robbery of Ricardo Guevara.
The trial court immediately imposed a life sentence for the appellant’s first degree murder conviction
and scheduled a sentencing hearing for his remaining convictions.

                                             II. Analysis

                                     A. Right to Confrontation

        The appellant contends that the trial court committed plain error by allowing Marco Rubin
to give inadmissible hearsay testimony in violation of Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354 (2004). Specifically, he contends that Rubin’s testimony regarding what Cadaro Hughes
told him about the robbery and shooting at S&S Tire was so “crippling” that the issue could not have
been waived for tactical reasons and that consideration of the issue is necessary for a just disposition
of the case. The State first contends that plain error relief is not warranted because the appellant
participated in Hughes’ conversation with Rubin and, therefore, the record does not show that an
unequivocal rule of law was breached or that a substantial right was adversely affected. The State
also contends that the appellant is not entitled to plain error relief because the appellant has failed
to show that his attorney did not object for tactical reasons. We agree with the State that the
appellant has failed to show his attorney did not object for tactical reasons.

         The Sixth Amendment to the United States Constitution provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him”
and article I, section 9 of the Tennessee Constitution provides that “in all criminal prosecutions, the
accused hath the right to . . . meet the witnesses face to face.” In Crawford, the Supreme Court
examined the right to confrontation. The Court held that “[w]here testimonial evidence is at issue,
. . . the Sixth Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” Id. at 68, 127 S. Ct. at 1374. Recently, our supreme court
explained that a statement is testimonial “if the primary purpose of the statement is to establish or
to prove past events potentially relevant to later criminal prosecutions.” State v. Kacy Dewayne
Cannon, ___ S.W.3d ___, No. E2005-01237-SC-R11-CD, 2008 Tenn. LEXIS 278, *34 (Knoxville,
Apr. 29, 2008). Statements to friends and acquaintances, however, are nontestimonial. See
Crawford, 541 U.S. at 51, 124 S. Ct. at 1364 (providing that “[a]n accuser who makes a formal
statement to government officers bears testimony in a sense that a person who makes a casual remark
to an acquaintance does not”). “If the statement is nontestimonial, the Confrontation Clause does
not apply, and the statement must be analyzed under the “traditional limitations upon hearsay
evidence.” Cannon, at **34-35. Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). Generally, hearsay statements are inadmissible unless they fall
under one of the recognized exceptions to the hearsay rule. Tenn. R. Evid. 802.

       Marco Rubin stated that sometime in June 2004, he was at a home in Memphis with a large
group of people, including the appellant and Cadaro Hughes. He then testified as follows:



                                                  -7-
               Q       How did this conversation come up about the robbery?

               A       I was gambling and Cadaro told me about it.

               Q       Who did?

               A       Cadaro telling me, you know, he was worried he had told me
                       what had happened.

               Q       So Cadaro telling you about this robbery, what does he say
                       about the robbery?

               A       He told me that day he said a guy supposed to bought some
                       shoes from him and he’s supposed to met the guy at his shop,
                       and the guy -- when they got there I guess . . . he said the guy
                       he ran up to [was] Mexican and the Mexican was tussling and
                       he said the other dude ran and Mr. Jones shot him.

               ....

               Q       And what did Starbrough say he did?

               A       He never did get to say what he did. He was like Cadaro told
                       me he was tussling and Starbrough shot the other guy.

        The appellant contends that Rubin’s statements about what Cadaro Hughes told him were
nontestimonial. We agree. Therefore, the Confrontation Clause does not apply. Nevertheless, the
statements were hearsay, and they fail to meet the requirements of any exception to the hearsay rule.
However, the appellant did not object to Rubin’s hearsay testimony. Tennessee Rule of Appellate
Procedure 36(a) does not require “relief [to] be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an
error.”

        Although the appellant has waived the issue, he contends that this court should address his
claim as plain error. Tennessee Rule of Criminal Procedure 52(b) provides that this court may,
“[w]hen necessary to do substantial justice,” address “an error that has affected the substantial rights
of an accused at any time, even though the error was not raised in the motion for a new trial or
assigned as error on appeal.” See also Tenn. R. Evid. 103(d). When determining whether an error
constitutes plain error, the following factors should be considered:

               (a) the record must clearly establish what occurred in the trial court;

               (b) a clear and unequivocal rule of law must have been breached;


                                                  -8-
                (c) a substantial right of the accused must have been adversely
                affected;

                (d) the accused did not waive the issue for tactical reasons; and

                (e) consideration of the error is “necessary to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see also
State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for determining plain
error). The presence of all five factors must be established, and consideration of all the factors is not
necessary when it is clear from the record that at least one of the factors cannot be established. Id.
Furthermore, the error “‘must be of such a great magnitude that it probably changed the outcome of
the trial.’” Adkisson, 899 S.W.2d at 642 (quoting United States v. Kerley, 838 F.2d 932, 937 (7th
Cir. 1988)).

        We agree with the State that the appellant has failed to show that defense counsel did not
waive this issue for tactical reasons. The defense cross-examined Rubin extensively, pointing out
numerous discrepancies between what Hughes allegedly told Rubin and what Rubin told police. For
example, Rubin testified during direct examination that Hughes told him Cartrell Taylor drove the
getaway car, that the getaway car was red, and that the appellant shot and robbed Anthony
Woodfork. But under cross-examination, the jury heard that Rubin told police “Bright Teddy” drove
the getaway car, that Rubin did not know anything about the getaway car, and that Alfreddie Warr
shot and robbed the victim. The jury also heard that Rubin told the police Damien Howard planned
the robbery and that Rubin never mentioned the appellant’s name in his statement to police. We also
note that during a jury-out hearing before the first witness testified, defense counsel informed the
trial court that Cartrell Taylor had not been charged with any crimes related to this case and that
“there’s more evidence to link Cartrell Taylor to this murder than there is the defendant.” Counsel
then stated that “depending on what I’m able to get into with Mr. Rubin, three shooters with two
guns, it doesn’t make any sense. . . . [S]omebody’s lying.” The appellant has failed to show that he
did not waive this issue for tactical reasons.

                                   B. Sufficiency of the Evidence

        The appellant claims that the evidence is insufficient to support the convictions because no
one saw him shoot Anthony Woodfork or even saw him with a gun. He argues that although the jury
heard testimony that he was arrested with the murder weapon, Eddie Warr testified that the appellant
purchased the gun two weeks after the crimes at S&S Tire were committed. Finally, he contends that
the discrepancies in Marco Rubin’s testimony and his statement to police cast doubt on Rubin’s
credibility and the appellant’s conviction. The State contends that the evidence is sufficient. We
agree with the State.

       When an appellant challenges the sufficiency of the convicting evidence, the standard for
review by an appellate court is “whether, after viewing the evidence in the light most favorable to


                                                  -9-
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); Tenn. R.
App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value
to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the
trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or
reevaluate the evidence, nor will this court substitute its inferences drawn from the circumstantial
evidence for those inferences drawn by the jury. Id. Because a jury conviction removes the
presumption of innocence with which a defendant is initially cloaked at trial and replaces it on appeal
with one of guilt, a convicted defendant has the burden of demonstrating to this court that the
evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Ricardo Guevara testified that the appellant came to the S&S Tire shop on May 14, 2004,
where he and Anthony Woodfork were working. The appellant spoke with Woodfork about buying
some tennis shoes and left. He and some men returned to the shop that evening. The appellant and
a second man gave tennis shoes to Woodfork and Guevara, and the victims began trying on the shoes
in Woodfork’s car. The second man pulled a gun on Guevara and took his wallet, and Woodfork
and the appellant began arguing over money. The appellant and Woodfork tussled and moved out
of Guevara’s sight. Guevara heard someone shoot Woodfork, and then the second man shot
Guevara. Two weeks later, Officer Craig arrested the appellant and found him in possession of the
murder weapon. At trial, Guevara identified the appellant as the man who argued and struggled with
Woodfork over money on May 14. Marco Rubin testified that Cadaro Hughes told him the appellant
shot Woodfork. As noted by the appellant, parts of Rubin’s testimony were inconsistent with the
statement he gave to police. However, even if the jury totally discredited Rubin, the jury reasonably
could have determined from Guevara’s testimony alone that the appellant committed the first degree
felony murder and attempted especially aggravated robbery of Woodfork and the especially
aggravated robbery of Guevara. The evidence is sufficient to support the convictions.

                                       C. Excessive Sentence

        The appellant contends that the trial court erred by ordering consecutive sentencing because
the court determined he was a dangerous offender based upon his prior criminal record, not upon the
circumstances of the instant crimes. He also contends that because the trial court had already
sentenced the appellant to life for the first degree murder conviction when it ordered consecutive
sentencing, consecutive sentencing was not necessary to protect the public from the appellant. The
State contends that the trial court properly ordered consecutive sentencing. We agree with the State.

       At the appellant’s sentencing hearing, no witnesses testified, but the State introduced the
appellant’s presentence report into evidence. According to the report, the then twenty-two-year-old
appellant was expelled from school in the ninth grade for truancy and fighting and has two young
children. The report shows that the appellant worked as a busboy for nine months at El Chico
Restaurant in 2000. The appellant did not report any alcohol or drug use and stated in the report that


                                                 -10-
he was in good physical and mental health. The report shows that since he was eighteen years old,
the appellant has been convicted of misdemeanor theft, aggravated criminal trespass, simple assault,
and two weapons offenses. The report also shows that the appellant was adjudicated delinquent for
attempted aggravated robbery, unlawful possession of a weapon, and evading arrest in 2000.

        The trial court applied enhancement factor (2), that the appellant “has a previous history of
criminal convictions or criminal behavior in addition to those necessary to establish the appropriate
range,” based upon the appellant’s five prior misdemeanor convictions, and factor (21), that the
appellant “was adjudicated to have committed a delinquent act or acts as a juvenile that would
constitute a felony if committed by an adult.” Tenn. Code Ann. 40-35-114(2), (21) (2003). The
court enhanced the appellant’s sentence one year above the presumptive midpoint of the range for
the especially aggravated robbery conviction, a Class A felony, and sentenced him to twenty-one
years to be served at one hundred percent. See Tenn. Code Ann. § 40-35-112(a)(1), -210(c), (d)
(2003), -510(i)(2)(E). For the attempted especially aggravated robbery conviction, a Class B felony,
the court enhanced the appellant’s sentence one year above the presumptive minimum of the range
and sentenced the appellant as a Range I, standard offender to nine years. See Tenn. Code Ann. §
40-35-112(a)(2), -210(c), (d) (2003). Regarding consecutive sentencing, the trial court stated as
follows:

                      In light of Mr. Jones’ record of weapons and attempted
               robberies and his actions in this case I do find that he’s a dangerous
               offender. I’m going to run the criminal attempt . . . especially
               aggravated robbery and the especially aggravated robbery concurrent
               with each other but consecutive to the life sentence.

        Tennessee Code Annotated section 40-35-115(b)(4) provides for consecutive sentencing if
“[t]he 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.” In order to
support consecutive sentencing based upon a defendant’s being a dangerous offender, a court must
find that (1) the sentences are necessary in order to protect the public from further misconduct by the
defendant and (2) “the terms are reasonably related to the severity of the offenses.” State v.
Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). Moreover, trial courts must make specific findings
regarding these factors before imposing consecutive sentences. State v. Lane, 3 S.W.3d 456, 461
(Tenn. 1999).

        The appellant argues that the trial court determined he was a dangerous offender based upon
his prior criminal record, not upon the circumstances of the instant crimes. However, at the
conclusion of the sentencing hearing, the trial court stated that it was ordering consecutive
sentencing based upon the appellant’s “actions in this case.” Furthermore, in a written order dated
the same day as the appellant’s sentencing hearing, the trial court stated that it found the
circumstances surrounding the offenses to be aggravated, and it specifically addressed the




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“Wilkerson factors.”2 We agree with the trial court that the facts in this case justify consecutive
sentencing. The appellant met with the victims at their workplace under the guise of selling them
tennis shoes. He then argued with the unarmed Woodfork over money and shot him while an
accomplice robbed and shot Ricardo Guevara, who also was unarmed. The appellant is a dangerous
offender. As to his claim that consecutive sentencing is not necessary to protect the public because
he received a life-sentence for the murder conviction, this court has stated that “[t]he power of a trial
judge to impose consecutive sentences ensures that defendants committing separate and distinct
violations of the law receive separate and distinct punishments.” State v. Robinson, 930 S.W.2d 78,
85 (Tenn. Crim. App. 1995) (affirming trial court’s ordering defendant to serve two sentences of life
without parole consecutively). Therefore, the trial court properly ordered consecutive sentencing.

                                                      III. Conclusion

           Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.


                                                                     ___________________________________
                                                                     NORMA McGEE OGLE, JUDGE




           2
               The trial court informed the parties about the written order during the appellant’s motion for new trial
hearing.

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