State of Tennessee v. John Edward Lynch ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 7, 2011
STATE OF TENNESSEE v. JOHN EDWARD LYNCH
Direct Appeal from the Circuit Court for Marshall County
Nos. 2008-CR-16, 2008-CR-98 Robert Crigler, Judge
No. M2010-02481-CCA-R3-CD - Filed August 24, 2012
A Marshall County Grand Jury returned two indictments against Defendant, John Edward
Lynch, charging him with violation of the Habitual Motor Offenders Act (count one),
eleventh offense driving under the influence of an intoxicant (DUI) (count two), and
violation of the implied consent law (count three) in Case No. 08-CR-16 and felony failure
to appear in Case No. 08-CR-98. Following two jury trials, Defendant was convicted of the
offenses. He was sentenced to four years for violation of the Habitual Motor Offenders Act,
three years for eleventh offense DUI, eleven months, twenty-nine days for violation of the
implied consent law, and four years for felony failure to appear. The trial court ordered count
three of case no. 08-CR-16 to run concurrently to count one, and the remaining counts in case
nos. 08-CR-16 and 08-CR-98 were ordered to run consecutively with each other for an
effective eleven-year sentence in the Department of Correction. On appeal, Defendant
argues: (1) that the evidence was insufficient to support his conviction for DUI; (2) that the
trial court erred in denying his request for a jury instruction on necessity; (3) that the trial
court erred in denying his request for a continuance in case no. 08-CR-98; and (4) that the
trial court erred in imposing consecutive sentences. After a thorough review, we affirm the
judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.
James O. Martin, Nashville, Tennessee; and Andrew Jackson Dearing, District Public
Defender, Shelbyville, Tennessee, (on appeal); and William J. Harold, Lewisburg,
Tennessee, (at trial), for the appellant, John Edward Lynch.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; Charles Frank Crawford, Jr., District Attorney General; Weakley E.
Barnard, Chris Collins, and Carey Kefauver, Assistant District Attorneys General; for the
appellee, the State of Tennessee
OPINION
I. Background
Trial - Case No. 08-CR-16
On December 22, 2007, at approximately 1:00 a.m., Sergeant Anthony McLean of
the Lewisburg Police Department was stopped at the intersection of Spring Place Road and
Belfast Street when he witnessed Defendant’s vehicle run a stop sign. He estimated that the
car was traveling five to ten miles per hour. Sergeant McLean then activated his blue lights,
got in behind Defendant, and initiated a traffic stop.
After Sergeant McLean approached the car, Defendant said that the vehicle was
registered to Mike Martin. Sergeant McLean asked for Defendant’s driver’s license and the
vehicle registration, but Defendant said that he did not have a license. Defendant told
Sergeant McLean that he had just left Leonard’s Bar and Grill, and Defendant said that he
was “going back to jail” because he was a habitual motor vehicle offender. Defendant also
said that he “shouldn’t have been driving.” He told Sergeant McLean that he was driving
because he and his wife had gotten into an argument at Leonard’s Bar, and “she took out
walking, so he didn’t have no choice but to drive.” Sergeant McLean testified that the
description Defendant gave of his wife matched a woman that Sergeant McLean had seen
walking in front of the Lewisburg Police Department and the county jail. Sergeant McLean
described the weather as being warm that night because he was not wearing a jacket when
he stopped Defendant.
Sergeant McLean asked Defendant to step out if the vehicle and stand at the back of
the car while he radioed in Defendant’s name and date of birth. According to Sergeant
McLean’s report, Defendant “had a strong odor of alcohol on his person, eyes bloodshot, and
he stagger[ed] when he exit[ed] the vehicle.” He asked Defendant to perform a field sobriety
test, and Defendant said, “I don’t need to take it. I’m going to jail.” A driver’s license check
confirmed that Defendant was a habitual motor vehicle offender. Sergeant McLean placed
Defendant under arrest and transported him to the Marshall County Jail.
At the jail, Sergeant McLean read the implied consent form to Defendant, which
advised Defendant of the opportunity to take a blood alcohol or breath test and that refusal
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of the test would result in his driver’s license being revoked, cancelled, or suspended.
Defendant refused to submit to the test. Sergeant McLean then turned Defendant over to a
Corrections Officer Justin Christmas to be booked into the jail. Officer Christmas testified
that Defendant was taken to the holding cell where Defendant immediately passed out or
went to sleep. Officer Christmas considered this to be an indication of someone under the
influence of an intoxicant.
Elinor Foster, Marshall County Circuit Court Clerk, testified that the file in Case No.
12,760 contained an agreed order declaring Defendant to be a habitual motor vehicle
offender. The order was still in effect on December 22, 2007.
Defendant testified that on December 22, 2007, he had worked from 8 a.m. until 8
p.m. He then went to the Finish Line bar with his wife and drank one beer at 10:00 p.m. and
drank a second one at 11:00 p.m. Defendant denied being at Leonard’s Bar and Grill because
he did not have “credit” there. He said that he and his wife left the Finish Line bar when it
closed at midnight. Defendant testified that his wife was driving them to a friend’s house
when he and his wife got into an argument. He said that his wife stopped in front of the jail,
got out of the car, and began walking home.
Defendant testified that he sat in the car for a while and then became concerned for
his wife because it was “freezing cold out,” and she did not have a jacket. After
approximately fifteen minutes, he then started the car and drove around looking for her.
Concerning his reason for running the stop sign, Defendant testified:
I had these size 14 Army boots. They weren’t tied tight, and my wife had the
seat pulled up. You know, I was in a rush to go find her, and I didn’t come to
a complete stop at the stop sign, and Sergeant McLean, he said he was waiting
at the stop sign, but he was hiding down the road waiting for someone to run
the stop sign. As soon as I didn’t come to a complete stop, I looked over, and
he lit up his blue lights, and I pulled right over across the street from the stop
sign.
Defendant testified that he never told Sergeant McLean that he left Leonard’s Bar and Grill.
He said that he did not perform the field sobriety test because it was “freezing cold out.”
When asked why he refused the breath test, Defendant testified:
Well, I used to work with a police officer. He said they jerk around the station
and blow in the breathalyzer, just messing around, and one guy will have one
shot, and he will be 500 pounds and fail it, and another guy will be 150 pounds
and have 5 shots and pass it.
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The co-worker advised him that he would be better off not taking the test. Defendant said
that he fell asleep after he had been placed in the holding cell because it was 1:30 a.m., and
he was tired.
Trial - Case No. 08-CR-98
Deanna Reed, an employee of the Marshall County Circuit Court, testified that
according to Defendant’s file, he made bond in Case No. 08-CR-16 on December 22, 2007.
She said that the case was set for trial on August 4, 2008, with a pretrial conference on July
9, 2008. Ms. Reed testified that Defendant failed to appear in court on July 9, 2008, and a
order granting a conditional forfeiture was entered on that date. A capias was issued for
Defendant’s arrest, and he was to be held without bond. Ms. Reed noted that it was the
bonding company’s responsibility to find Defendant. She testified that Defendant’s file
contained a paper stating that Defendant was arrested in Monroe County, Florida on
September 6, 2008. The paper also contained a description of Defendant.
Katie Burk, an employee of the Marshall County Sheriff’s Department, testified that
she entered Defendant into the National Crime Information Center (NCIC) on July 28, 2008,
as a wanted person for failure to appear. On September 7, 2008, Ms. Burk received a
message that Defendant had been arrested on September 6, 2008, in Key West, Florida.
Defendant was asked to sign a waiver of extradition back to Tennessee, but he refused, and
a Governor’s Warrant was obtained on July 9, 2009, asking that Defendant be returned to
Tennessee. Ms. Burk testified that Defendant was eventually brought back to Marshall
County.
Levy Cochran testified that he and his wife own Cochran Bonding. He “wrote a
bond” for Defendant on December 22, 2007. Mr. Cochran testified that when Defendant
failed to appear in court, a “scire facias” was issued to the company granting them six months
“to bring [Defendant] in or get [him] into this court, the court - appointed - - whatever the
bond is made in - - until we have to pay the bond.” Mr. Cochran testified that it took
approximately five and a half months to find Defendant. He initially went to Defendant’s
house but found that it had burned down. Mr. Cochran explained that he tracked Defendant
to Massachusetts through Defendant’s wife and then followed him “through middle Florida.”
He then learned that Defendant was arrested in Key West, Florida. Mr. Cochran testified that
he would have taken care of requesting a continuance if Defendant’s attorney could not. He
said that Defendant never contacted him and advised him that Defendant’s house burned.
Mr. Cochran testified that he was in contact with Defendant’s family members, but he never
heard from Defendant.
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Defendant testified that it was “very shocking” when his house burned in March of
2008, and it was hard to concentrate on other things. He also testified that a neighbor had
attempted to molest his daughter in January of 2008. He said that his court case “slipped”
his mind. Defendant testified that although he did not receive written notices regarding his
court dates, he admitted that the bonding company or his attorney advised him of the dates.
He said that his family wanted to move to Florida so he “packed up the truck,” and they
“headed South” in May or June of 2008. Defendant said that he was stressed at the time, and
his court case was the “furthest thing” from his mind. He admitted that he did not let anyone
know that he was moving to Florida. Defendant testified that he fought extradition back to
Tennessee because he thought it was illegal because the “paperwork wasn’t certified.” He
claimed that he never went to Massachusetts.
Sentencing Hearing
Jim Grimes, an employee of the Tennessee Board of Probation and Parole, testified
that in preparing the presentence report, he attempted to talk with Defendant about his case.
He said that Defendant “refused to make any comments and declined to fill out any
paperwork.” Mr. Grimes testified that Defendant said, “I am uncooperative; I am sure the
Judge and the DA will give me the max[.]” Defendant also said that he was illegally
sentenced in 2005 and that “they are all crooks, and if you are working for the State, you are
a crook[.]” Mr. Grimes later asked a jail employee to talk with Defendant about the case, and
Defendant again refused to comment. He said that Defendant indicated that he was going
to sue the probation department.
Mr. Grimes testified that he found a presentence report that was written by Beth Flatt
in regard to Defendant’s sentencing hearing for another case in 2005. He incorporated that
report into the present report. Mr. Grimes testified that he did not find any mitigating factors
in Defendant’s case, and he found at least three enhancement factors. He noted that
Defendant had a previous history of criminal convictions or criminal behavior, in addition
to those necessary to establish the appropriate range, and Defendant was on state parole for
a conviction for driving after having been declared a habitual motor vehicle offender at the
time of the present offenses.
Defendant testified that his aggravated assault conviction from 1987 in Volusia
County, Florida had been improperly relied on by the State as a felony conviction when it
was actually a misdemeanor. He claimed that he was filing “a belated appeal” in twenty-four
of his previous cases because the conviction was used against him as a felony conviction in
those cases. Defendant testified that he had three children, and his wife had two, and he
helped take care of them. He had previously worked as a mechanic. Defendant said that his
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wife still lived in Key West, Florida, and that he needed shoulder surgery from a scooter
wreck and wanted to go back to his surgeon in Key West for the repair.
On cross-examination, the State submitted a certified copy of the Volusia County
aggravated assault conviction, “a third degree felony, 873890, . . ., with the order of
revocation of probation and the judgment form in relation to that case.” Defendant denied
that he used a .22-caliber rifle in the offense. He agreed that his first use of alcohol was at
approximately the age of ten, and said that he “might smoke a joint every five years at a
party.” Defendant testified that he had also tried cocaine and methamphetamine. He had
also been in two mental institutions.
II. Analysis
Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence for his DUI conviction and
argues that there was insufficient evidence to show that he was intoxicated. When an
accused challenges the sufficiency of the convicting evidence, our standard of review is
whether, after reviewing the evidence in a 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, 61 L. Ed. 2d 560 (1979).
The trier of fact, not this Court, resolves questions concerning the credibility of the
witnesses, and the weight and value to be given the evidence as well as all factual issues
raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor
may this Court reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). On appeal, the State is entitled to the strongest legitimate view of the evidence
and all inferences therefrom. Id. Because a verdict of guilt removes the presumption of
innocence and replaces it with a presumption of guilt, the accused has the burden in this
Court of illustrating why the evidence is insufficient to support the verdict returned by the
trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “[D]irect and
circumstantial evidence should be treated the same when weighing the sufficiency of [the]
evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).
Pursuant to the DUI statute in effect at the time of the offense,
[i]t is unlawful for any person to drive or to be in physical control of any
automobile or other motor driven vehicle on any of the public roads and
highways of the state, or on any streets or alleys, or while on the premises of
any shopping center, trailer park or any apartment house complex, or any other
premises that is generally frequented by the public at large, while under the
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influence of any intoxicant, marijuana, narcotic drug, or drug producing
stimulating effects on the central nervous system.
Tenn. Code Ann. § 55-10-401(a)(1).
Viewed in the light most favorable to the State, in this case, Sergeant McLean testified
that he observed Defendant run a stop sign at the intersection of Spring Place Road and
Belfast Road at approximately 1:00 a.m. He estimated that the vehicle was traveling five to
ten miles per hour. When Sergeant McLean approached the car, Defendant said that he did
not have a license and that he had just left Leonard’s Bar and Grill. He also told Sergeant
McLean that he should not have been driving and that he was going back to jail because he
was a habitual motor vehicle offender. In his report, Sergeant McLean noted that Defendant
“had a strong odor of alcohol on his person, eyes blood shot, and he stagger[ed] when he
exit[ed] the vehicle.” Defendant refused to perform a field sobriety test or take a breath or
blood alcohol test. Corrections Officer Christmas testified that once Defendant was booked
into the jail and placed in a holding cell, Defendant immediately went to sleep or passed out.
Officer Christmas considered this to be an indication of someone who was under the
influence of an intoxicant. Defendant himself testified that he and his wife had been at the
Finish Line bar and said that he consumed two beers before leaving at midnight.
Based on our review of the evidence, we conclude that the evidence was sufficient to
support beyond a reasonable doubt Defendant’s conviction for DUI. Defendant is not
entitled to relief in this appeal.
Defense of Necessity
Next, Defendant argues that the trial court erred in denying his request for jury
instruction on the defense of necessity. The trial court has the duty of giving a correct and
complete charge of the law applicable to the facts of the case, and the defendant has the right
to have every issue of fact raised by the evidence and material to the defense submitted to the
jury upon proper instructions by the trial court. State v. Teel, 793 S.W.2d 236, 249 (Tenn.
1990), superseded by statute on other grounds as stated in State v. Reid, 91 S.W.3d 247(Tenn. 2002); State v. Bryant, 654 S.W.2d 389, 390 (Tenn. 1983); State v. Thompson, 519
S.W.2d 789, 792 (Tenn. 1975) (citing Poe v. State, 212 Tenn. 413, 370 S.W.2d 488 (1963)).
Neither duress or necessity is an affirmative defense. Rather, both are general defenses and,
as a result, if evidence fairly raises either defense, the trial court must submit the defense to
the jury and must instruct the jury that any reasonable doubt on the existence of the defense
requires acquittal. The State is required to negate the defense beyond a reasonable doubt.
State v. Culp, 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994); Tenn. Code Ann. § § 39-11-
203, -504, -601, -609.
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With regard to necessity, Tennessee Code Annotated section 39-11-609 provides:
Except as provided in §§ 39-11-611 [through] 39-11-616, 39-11-620 and 39-
11-621, conduct is justified if:
(1) The person reasonably believes the conduct is immediately necessary to
avoid imminent harm; and
(2) The desirability and urgency of avoiding the harm clearly outweigh the harm
sought to be prevented by the law proscribing the conduct, according to ordinary
standards of reasonableness.
The sentencing Commission Comments to the section further states:
This section codifies the common law defense of necessity. It excuses the
criminal liability in those situations where criminal activity is an objectively
reasonable response to an extreme situation. For example, the necessity
defense would bar a trespass conviction for a hiker, stranded in a snowstorm,
who spends the night in a vacant cabin rather than risking death sleeping in the
open.
The defense is limited to situations: (1) where the defendant acts upon a
reasonable belief that the action is necessary to avoid harm; and (2) where the
harm sought to be avoided is clearly greater than the harm caused by the
criminal act.
Prior to the beginning of trial in this case, the State made a motion to preclude
Defendant from presenting the defense of necessity. The trial court determined that
Defendant could not be precluded from presenting the defense, but did not state whether it
would give the defense of necessity as part of the jury charge. At the close of proof,
Defendant asked the trial court to charge the jury on the defense of necessity. After hearing
arguments from both sides, the trial court determined that the defense was not properly raised
by the proof and refused to give the instruction.
At trial, Defendant testified that it was necessary for him to drive because his wife,
who had been driving the car, got out and began walking home after an argument between
the two. He claimed that he needed to find his wife because it was “freezing cold” outside,
and she got out of the car wearing a thin shirt with no jacket. However, Defendant has failed
to show that his actions were necessary to prevent harm to himself or to his wife. Sergeant
McLean testified that he remembered the night of the offense to be a warm December night.
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He said that he was not wearing a jacket at the time he stopped Defendant. The proof at trial
also showed that Defendant and his wife stopped in front of the county jail and near the
Lewisburg Police Department. In fact, Sergeant McLean testified that he saw a woman
walking in front of the county jail who matched the description that Defendant gave of his
wife. There was no indication that Defendant’s wife was in any imminent danger or that
Defendant could not have walked to the jail or to the police department and asked for help.
We conclude that the trial court properly denied Defendant’s request for a jury instruction
on the defense of necessity because it was not fairly raised by the proof. This issue is without
merit.
Denial of a Continuance
Third, Defendant contends that the trial court abused its discretion in denying his
motion for a continuance. It is well established that the decision to grant a continuance rests
within the sound discretion of the trial court and will not be overturned on appeal absent a
clear showing of prejudice to the defendant. State v. Russell, 10 S.W.3d 270, 275 (Tenn.
Crim. App. 1999)(citing State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982)); Baxter v.
State, 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973). In order to reverse the judgment of
the trial court, we must be convinced that Defendant “did not have a fair trial and that a
different result would or might reasonably have been reached had there been a different
disposition of the application for a continuance.” Baxter, 503 S.W.2d at 230.
We recognize that in most cases, a defendant seeking a continuance on the basis of
an absent witness must support the motion with an affidavit alleging the substance of the
witness’s testimony, the testimony’s relevance and materiality to the defense, that the
testimony was admissible and not cumulative, that the witness would be available at a later
date, and that counsel exercised diligence in trying to obtain the witness’ presence at trial.
See State v. Dykes, 803 S.W.2d 250, 257 (Tenn. Crim. App. 1990), overruled on other
grounds; State v. Bennett, 798 S.W.2d 783, 787-88 (Tenn. Crim. App. 1990); State v. Frahm,
737 S.W.2d 799, 802 (Tenn. Crim. App. 1987). This Court has also recognized, however,
that the lack of a written affidavit is not always controlling. State v. Edward Mitchell, No.
W1999-01314-CCA-R3-CD, 2001 WL 204180 (Tenn. Crim. App., Jackson, Mar. 1, 2001),
no perm. to appeal filed; State v. Alvin Glenn Hughes, No. 02C01-9208-CR-00183, 1993 WL
193712 (Tenn. Crim. App., Jackson, June 9, 1993), no perm. to appeal filed. Cases relying
on the mandatory filing of an affidavit in support of a motion for a continuance rely primarily
on case law decided before the adoption of the Tennessee Rules of Criminal Procedure.
Hughes, 1993 WL 193712, at *4. Tennessee Code Annotated section 40-18-103(c) provides
that the trial court may grant a continuance upon “good cause shown.”
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Defendant has failed to show that the trial court abused its discretion in denying his
request for a continuance in this case. It appears from the record that Defendant’s trial for
failure to appear in Case No. 08-CR-98 was originally scheduled for October 7, 2010,
however, the case was reset due to an unrelated trial on that date. The case was later reset for
October 13, 2010. On the day of trial, Defendant indicated that he thought his trial was
supposed to be on November 3, 2010. However, the trial court noted that an open date
occurred sooner, and the case was reset for October 13, 2010. The court said, “Since we had
a jury coming in it was my idea to put your case today. We have got to do it sooner or later.”
Defendant then told the court that he wanted to hire new counsel and that he was requesting
a continuance because he wanted his wife to testify, and she had already bought a plane ticket
for November 3, 2010. Concerning the continuance, the trial court said:
The charge is failure to appear. I really don’t know what witnesses you would
have. I don’t want to go into the facts of the case because that is not my role
to discuss strategy. It seems to me like either you showed up or you didn’t .
That is just the way I would think of it.
Defendant then told the court that his house burned, and he had a good excuse for wanting
to leave town. He also said, “I need my family here to testify, you know, of what happened
and, you know, when, how and where. I am not being afforded that right.”
Defendant offered no proof as what his wife’s testimony or that of any other family
member would have been or how the testimony was relevant to his trial for failure to appear.
On appeal, Defendant has not alleged how he was prejudiced by the trial court’s denial of his
request for a continuance. Defendant is not entitled to relief on this issue.
Consecutive Sentencing
On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is improper. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
Defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). This presumption of correctness, however, “‘is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and
all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008)
(quoting State v. Ashby, 823 S.W.2d 166, 169 Tenn. 1991)). “If, however, the trial court
applies inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails,” and our review is de novo. Carter,
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254 S.W.3d at 345 (quoting State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004); State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992)).
A trial court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that any of the following factors are applicable:
(1) The defendant is a professional criminal who has knowingly devoted such
defendant’s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is extensive;
(3) The defendant is a dangerous mentally abnormal person so declared by a
competent psychiatrist who concludes as a result of an investigation prior to
sentencing that the defendant’s criminal conduct has been characterized by a
pattern of repetitive or compulsive behavior with heedless indifference to
consequences;
(4) The defendant is a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which
the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses involving
sexual abuse of a minor with consideration of the aggravating circumstances
arising from the relationship between the defendant and victim or victims, the
time span of the defendant’s undetected sexual activity, the nature and scope
of the sexual acts and the extent of the residual, physical and mental damage
to the victim or victims;
(6) The defendant is sentenced for an offense committed while on probation;
or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b); See also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
The length of the sentence should be “justly deserved in relation to the seriousness of the
offense” and “no greater than that deserved for the offense committed.” Tenn. Code Ann.
§ 40-35-102(1), 103(2). Unless mandated by statute or rule, the determination of whether
sentences are to be served concurrently or consecutively is a matter addressed to the sound
discretion of the trial court. State v. Hastings, 25 S.W.3d 178, 181 (Tenn. Crim. App. 1999).
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In this case, the trial court found that consecutive sentencing was appropriate based
on a finding that Defendant was an offender whose record of criminal activity is extensive.
The trial court specifically found that the effective eleven-year sentence in this case was
“justly deserved in relationship to the seriousness of these offenses and based on the
defendant’s prior record.” The trial court further found that “less restrictive measures than
confinement have frequently and recently been applied unsuccessfully to the defendant.” At
the sentencing hearing, Mr. Grimes testified that Defendant was on state parole for a
conviction for driving after being declared a habitual traffic offender at the time of the
offenses. Furthermore, Defendant’s criminal record consists of thirty-seven convictions
which include: ten DUI convictions, ten driving on a revoked license convictions, two
resisting arrest convictions, three public intoxication convictions, two traffic offenses, three
violations of the Motor Vehicle Habitual Offenders Act, two assault convictions, and
convictions for theft, sale of a controlled substance, evading arrest, aggravated assault, and
vandalism. The presence of a single factor is sufficient to justify the imposition of
consecutive sentences under Tennessee Code Annotated section 40-35-115. State v. Black,
924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Defendant is not entitled to relief on this
issue.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
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THOMAS T. WOODALL, JUDGE
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