State of Tennessee v. Carlos Gonzalez ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs at Knoxville November 17, 2015
STATE OF TENNESSEE v. CARLOS GONZALEZ
Appeal from the Criminal Court for Shelby County
No. 1201055 James C. Beasley, Jr., Judge
No. W2014-02198-CCA-R3-CD - Filed December 15, 2015
_____________________________
Appellant, Carlos Gonzalez, stands convicted of one count of second degree murder,
three counts of attempted second degree murder, one count of misdemeanor reckless
endangerment (a lesser-included offense of attempted second degree murder), three
counts of aggravated assault, and three counts of employing a firearm during the
commission of a dangerous felony. He was acquitted of one count of employing a
firearm during the commission of a dangerous felony. The trial court sentenced him to an
effective sentence of fifty-two years. On appeal, appellant argues that the trial court erred
in its admission and exclusion of evidence, that the evidence was insufficient to support
his conviction for second degree murder, and that the trial court erred in its sentencing.
Following our review, we affirm the judgments of the trial court but remand for
correction of the judgment documents.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed;
Case Remanded
ROGER A. PAGE, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and ROBERT H. MONTGOMERY, JR., JJ., joined.
Michael Edwin Scholl (on appeal), Memphis, Tennessee; Stephen C. Bush, District
Public Defender, and Michael J. Johnson, Assistant District Public Defender (at trial), for
the Appellant, Carlos Gonzalez.
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Amy P. Weirich, District Attorney General; and Jose Francisco Leon and Neal Oldham,
Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
This case concerns a shooting outside of a nightclub in Memphis during which
eleven shots were fired and one person, Miguel Villa, was killed. Appellant was
identified as the shooter. Appellant was indicted for (Count 1) the second degree murder
of Miguel Villa; (Count 2) the attempted second degree murder of Jesus Villa; (Count 3)
the attempted second degree murder of Jose Villa; (Count 4) the attempted second degree
murder of Ricardo Ortega; (Count 5) the attempted second degree murder of Shaniki
Brown; (Count 6) the aggravated assault of Jesus Villa; (Count 7) the aggravated assault
of Jose Villa; (Count 8) the aggravated assault of Ricardo Ortega; (Count 9) the
aggravated assault of Shanika1 Brown; (Count 10) employing a firearm during the
commission of a dangerous felony involving Jesus Villa; (Count 11) employing a firearm
during the commission of a dangerous felony involving Jose Villa; (Count 12) employing
a firearm during the commission of a dangerous felony involving Ricardo Ortega; and
(Count 13) employing a firearm during the commission of a dangerous felony involving
Shanika Brown.
I. Facts
Jesus Villa testified that on August 13, 2011, he went with his brothers, Miguel
and Jose Villa, and friends to San Francisco, a club on Winchester Boulevard. When
they exited their vehicle, “several people” approached them, shouting at them and
insulting them. The strangers then began to assault the Villa group. They were
“uttering” the words, “Playboy Surenos,” the name of a Hispanic gang. Jesus Villa
testified that he saw appellant shoot towards his group. Appellant was in his car, and the
gun was a black pistol. Jesus Villa identified appellant as the shooter both in the
courtroom during his testimony and also in a photographic lineup soon after the shooting.
Jesus Villa said that his brother Miguel was shot.
Jesus Villa further testified that he and his brothers were not in the Playboy
Surenos gang. He said that another Hispanic gang was Los Pelones and that the Villa
brothers were not in that gang either; however, he knew people in Los Pelones. Jesus
Villa said that appellant was not involved in the “brawl” and that appellant was the only
person with a firearm. He said one person in the attacking group had a bat and another
had a metal pipe. There were more than twenty people in the attacking group.
Ricardo Ortega testified next. His recollection of events was substantially similar
to that of Jesus Villa; however, Mr. Ortega said that he attempted to use pepper spray on
the attacking group. In addition, he estimated that there were fifteen to twenty people in
1
The indictment misspells Ms. Brown‟s first name as Shaniki.
-2-
the attacking group. Mr. Ortega also identified appellant as the shooter in a photographic
lineup soon after the shooting and again in court during his testimony. Appellant was the
only person who was shooting a gun, according to Mr. Ortega. On cross-examination,
Mr. Ortega stated that the gunfire began about a minute after he sprayed the attacking
group with pepper spray and that he had been in the process of backing away at that
point. He originally thought two weapons were being fired. He affirmed that he was
running away and looking back when he saw the shooter. He agreed that he used the
nickname “Duende” in his statement to police rather than appellant‟s formal name.
Jose Villa testified consistently with the previous testimonies. He stated that he
saw appellant shoot once and that he knew appellant fired the other shots. Jose Villa said
that two people from the attacking group held him and beat him. He tried to defend
himself. He said that he and his attackers had separated before the first shot was fired.
Shanika Brown testified that on August 13, 2011, she was driving down
Winchester Boulevard when she heard gunshots. A bullet went through her windshield,
and she immediately called 9-1-1. The dispatcher advised her to drive home, and the
police met her at her house. Ms. Brown testified that she had glass particles in her
mouth, hair, and legs but that she was not seriously injured. She stated that she was
terrified by what happened.
Memphis Police Officer Alexander Robert Coughlin III testified that he was
responding to a call at the Taco Bell in the Winchester/Ridgeway area when he heard
gunshots at a shopping center across the street. He drove to the shopping center and saw
a man lying on the ground. Officer Coughlin checked the man for a pulse, but the man
was already deceased. Officer Coughlin testified that the people standing near the man
appeared to be the man‟s family but that everyone else in the vicinity was “booking it”
away from the scene. After other officers arrived to assist in preserving the scene,
Officer Coughlin traced the victim‟s steps back to two trucks, approximately fifty to
seventy-five yards away, and found “numerous shell casings.” He testified that he had
heard six gunshots.
Memphis Police Officer Justin Sheriff testified that he was a crime scene officer
the night of the shooting in question and responded to the scene in that capacity. He
discovered eleven 9mm shell casings at the scene.
Dr. Karen Chancellor, the Chief Medical Examiner for Shelby County, testified
that she autopsied the victim. She said that a bullet entered the back of the victim on the
right side, fractured a rib, then passed through his right lung, aortic arch, and left lung
before exiting his chest.
-3-
Memphis Police Lieutenant Darren Goods testified that on August 14, 2011, the
case coordinator for the shooting in question sent him and other officers to the Super 8
Motel on Lamar Avenue after receiving information that the shooting suspect was at the
motel. The motel‟s manager informed the officers of the location of the room in which
the suspect and several other people were staying, and the officers knocked on the door to
that room. Lieutenant Goods testified that while the officers were outside of the room,
they heard the “distinctive sound” of someone moving the top of the water tank on the
room‟s toilet. After someone let them into the room, Lieutenant Goods went to the
room‟s bathroom and saw that the top of the toilet‟s tank was pushed to the side and a
white cloth was inside the tank. Lieutenant Goods testified that he obtained a search
warrant and had a crime scene officer retrieve the cloth from the tank. They discovered a
semi-automatic handgun wrapped in the cloth. Lieutenant Goods said that one of the
men in the room asked the police officers why they were there. Lieutenant Goods
responded that they were there because of a shooting. Lieutenant Goods testified that
appellant, “without any provocation[,] . . . said something to the effect, „[Y]eah, I was
there. As I pulled up, the shots rang out‟ or „they started shooting.‟”
Memphis Police Officer David Payment testified that he was responsible for
collecting the firearm located at the Super 8 Motel. He said that the handgun, with a full
magazine, had a total capacity of sixteen rounds.
Tennessee Bureau of Investigation Special Agent Laura Hodge testified that she
examined a gunshot residue swab collected from the victim‟s hands. She said that she
did not find any gunshot residue but qualified her response by explaining the fragility of
gunshot residue and how easily it disappears.
Memphis Police Officer Lee Walker testified that he responded to Ms. Brown‟s
location the night of the shooting to collect evidence from her car. He photographed her
broken windshield and a bullet fragment located on the front passenger seat.
Tennessee Bureau of Investigation Special Agent Eric Warren testified that he
examined a pistol and eleven spent 9mm cartridges collected by the Memphis police in
this case and determined that all eleven cartridges had been fired by the pistol. He also
examined a bullet fragment recovered in this case and determined that it also had been
fired by the same pistol.
The State rested its case-in-chief, and appellant rested his case without presenting
any proof. Following deliberations, the jury convicted appellant of second degree murder
(Count One), three counts of attempted second degree murder (Counts Two, Three, and
Four), one count of misdemeanor reckless endangerment as a lesser-included offense of
attempted second degree murder (Count Five), three counts of aggravated assault (Counts
Six, Seven, and Eight), one count of assault as a lesser-included offense (Count Nine),
-4-
and three counts of employing a firearm during the commission of a dangerous felony
(Counts Ten, Eleven, and Twelve). He was acquitted of one count of employing a
firearm during the commission of a dangerous felony. The trial court merged the
aggravated assault convictions into the corresponding attempted second degree murder
convictions and merged the assault conviction into the reckless endangerment conviction.
The trial court held a sentencing hearing on August 25, 2014. At the hearing, the
murder victim‟s father testified about the impact of his son‟s death on their family.
Appellant‟s mother, Racquel Gonzalez, also testified. Ms. Gonzalez stated that appellant
was twenty-five years old at the time of the hearing. His father had not been involved in
his life, and he had not completed high school. Ms. Gonzalez recalled that appellant had
been in trouble for truancy when he was younger and that he abused marijuana.
Appellant‟s pre-sentence report was admitted into evidence.
For all of appellant‟s convictions, the trial court took into consideration his family
history but did not find that a statutory mitigating factor applied. Regarding the second
degree murder conviction, the trial court found that appellant had a previous history of
criminal convictions beyond that necessary to establish his sentencing range and that he
used a firearm during the commission of the offense. The trial court stated that it placed
great weight on both factors. The trial court sentenced appellant to twenty years for
second degree murder.
Regarding the attempted second degree murder convictions, the trial court found
that the same factors were applicable but placed more emphasis on appellant‟s prior
criminal history considering he was also convicted of employing a firearm during those
offenses. The trial court found that no mitigating factors applied. The trial court
sentenced appellant to ten years for each of the attempted second degree murder
convictions.
Regarding the reckless endangerment conviction, a Class A misdemeanor, the trial
court sentenced appellant to eleven months, twenty-nine days.
For the employing a firearm during the commission of a dangerous felony
convictions, the trial court again found that appellant had a previous history of criminal
convictions or behavior beyond that necessary to establish the sentencing range. The trial
court also found that more than one victim was involved in each offense and that
appellant had no hesitation about committing the offense when the risk to human life was
high. The trial court sentenced appellant to six years for these convictions.
The trial court next considered whether appellant‟s sentences should be aligned
consecutively. The court determined that appellant was a dangerous offender, stating that
the circumstances of the offense—appellant‟s firing a gun into a crowd of people with no
-5-
justification—were aggravated and that an extended period of confinement was
“necessary to protect society from this [appellant‟s] unwillingness to lead a productive
lifestyle and [from his resorting] to criminal activity in furtherance of that anti-societal
lifestyle.” The court found that the length of appellant‟s sentences was reasonably related
to the offenses for which he stood convicted. The court stated that appellant‟s sentences
for his employing a firearm convictions were statutorily mandated to be consecutive;
therefore, each sentence for appellant‟s three convictions for employing a firearm during
the commission of dangerous felony would be served consecutively to the sentence for
the corresponding felony, which in this case were appellant‟s three attempted second
degree murder convictions.
The trial court further ordered that appellant serve the following sentences
consecutively for a total of fifty-two years: second degree murder (Count One, twenty
years); attempted second degree murder (Count Two, ten years); Count Two‟s
corresponding employing a firearm during the commission of a dangerous felony (Count
Ten, six years); attempted second degree murder (Count Three, ten years); and Count
Three‟s corresponding employing a firearm during the commission of a dangerous felony
(Count Eleven, six years). The trial court ordered that appellant‟s remaining attempted
second degree murder sentence (Count Four, ten years) and its corresponding employing
a firearm during the commission of a dangerous felony sentence (Count Twelve, six
years) be served consecutively to each other by operation of law and concurrently with
appellant‟s other sentences. Finally, the trial court ordered that appellant‟s sentence for
reckless endangerment (Count Five; eleven months, twenty-nine days) be served
concurrently with all other sentences. Thus, appellant‟s total effective sentence was fifty-
two years.
Appellant‟s motion for new trial was heard and denied. Subsequently, appellant
filed a timely notice of appeal.
II. Analysis
A. Evidentiary Issues
Appellant‟s first issue, presented in two parts, concerns the trial court‟s admission
and exclusion of certain evidence. Appellant contends that the trial court should have
disallowed testimony that someone shouted “Playboy Surenos” before the altercation and
that the trial court should have allowed into evidence a photograph of the murder victim
that had been overlaid with the word “Pelones.” However, these arguments were not
included in the motion for new trial that is in the appellate record. Arguments not
included in a motion for new trial are waived. Tenn. R. App. P. 3(e) (“[I]n all cases tried
by a jury, no issue presented for review shall be predicated upon error in the admission or
-6-
exclusion of evidence . . . unless the same was specifically stated in a motion for a new
trial; otherwise such issues will be treated as waived.”). The transcript of the motion
indicates that an amended motion for new trial was given to the trial court on the day of
the hearing, but no amended motion is included in the appellate record. Moreover,
defense counsel did not argue the issues orally but rather relied on the document that is
not in the record. It is the appellant‟s responsibility to prepare an adequate record for this
court to address the issues. State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). While
the trial court considered at least part of the evidentiary issues now presented on appeal
when it denied appellant‟s motion for new trial, without the argument put forth by
appellant in the motion for new trial, the trial court‟s statements are without sufficient
context. Therefore, we must conclude that appellant has waived these evidentiary issues.
B. Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence supporting his conviction for
second degree murder. The standard for appellate review of a claim challenging the
sufficiency of the State‟s 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 (1979) (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P.
13(e); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of
insufficient evidence, appellant must demonstrate that no reasonable trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. See Jackson,
443 U.S. at 319. This standard of review is identical whether the conviction is predicated
on direct or circumstantial evidence, or a combination of both. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011); State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977).
On appellate review, “„we afford the prosecution the strongest legitimate view of
the evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.‟” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual
disputes raised by the evidence, are resolved by the jury as trier of fact. State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
This court presumes that the jury has afforded the State all reasonable inferences from the
evidence and resolved all conflicts in the testimony in favor of the State; as such, we will
not substitute our own inferences drawn from the evidence for those drawn by the jury,
nor will we re-weigh or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379;
Cabbage, 571 S.W.2d at 835; see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).
Because a jury conviction removes the presumption of innocence that appellant enjoyed
at trial and replaces it with one of guilt at the appellate level, the burden of proof shifts
-7-
from the State to the convicted appellant, who must demonstrate to this court that the
evidence is insufficient to support the jury‟s findings. Davis, 354 S.W.3d at 729 (citing
State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).
Second degree murder is defined by statute as “[a] knowing killing of another.”
Tenn. Code Ann. § 39-13-210(a)(1). “To establish that a defendant committed a second
degree murder, the State has the burden of proving beyond a reasonable doubt that (1) the
defendant killed the victim, and (2) the defendant committed the killing with a “knowing”
state of mind.” State v. Parker, 350 S.W.3d 883, 904 (Tenn. 2011). The criminal code
states that “[a] person acts knowingly with respect to a result of the person‟s conduct
when the person is aware that the conduct is reasonably certain to cause the result.”
Tenn. Code Ann. § 39-11-302(b). Therefore, “the proof to support the mens rea element
of second degree murder needs to demonstrate beyond a reasonable doubt only that the
accused „knew that his or her actions were reasonably certain to cause the victim‟s
death.‟” Parker, 350 S.W.3d at 904 (quoting State v. Brown, 311 S.W.3d 422, 432
(Tenn. 2010)). “A person can act knowingly irrespective of his or her desire that the
conduct or result will occur.” State v. Gray, 960 S.W.2d 598, 604 (Tenn. Crim. App.
1997).
Viewed in the light most favorable to the State, the proof at trial showed that
appellant, while sitting in his vehicle, fired a semi-automatic pistol towards a crowd of
people who were involved in an altercation. Appellant himself had not been involved in
the melee. One bullet hit the victim in his back, killing him. Multiple eyewitnesses
identified appellant as the shooter. Six spent shell casings were found at the scene, and
the weapon that fired those shells was discovered hidden in a toilet tank in the motel
room where police arrested appellant. Appellant argues that there was no proof that he
had any motive to kill the victim, but that type of proof is not required for a second
degree murder conviction. The proof was sufficient for a jury to conclude beyond a
reasonable doubt that appellant, by firing a pistol into a crowd of people, knew that his
actions were reasonably certain to cause the victim‟s death. Therefore, we affirm
appellant‟s conviction for second degree murder.
C. Sentencing
For his final issue, appellant contends that the trial court erred by sentencing
appellant to the middle of his sentencing range and to partially consecutive sentences. He
argues that the trial court should have but did not consider any mitigating factors despite
the testimony during his sentencing hearing.
i. Sentence Length
In determining an appropriate sentence, a trial court must consider the following
-8-
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5)
evidence and information offered by the parties on mitigating and enhancement factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
should be the least severe measure necessary to achieve the purposes for which the
sentence is imposed.” Tenn. Code Ann. § 40-35-103(4).
Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See
Tenn. Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain
“advisory sentencing guidelines” that are not binding on the trial court; however, the trial
court must nonetheless consider them. See id. § 40-35-210(c). Although the application
of the factors is advisory, a court shall consider “[e]vidence and information offered by
the parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-
114.” Id. § 40-35-210(b)(5). The trial court must also place on the record “what
enhancement or mitigating factors were considered, if any, as well as the reasons for the
sentence, in order to ensure fair and consistent sentencing.” Id. § 40-35-210(e). The
weighing of mitigating and enhancing factors is left to the sound discretion of the trial
court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The burden of proving
applicable mitigating factors rests upon appellant. State v. Mark Moore, No. 03C01-
9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App. Sept. 18, 1995). The trial
court‟s weighing of the various enhancement and mitigating factors is not grounds for
reversal under the revised Sentencing Act. Carter, 254 S.W.3d at 345 (citing State v.
Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (Tenn. Crim.
App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).
When an accused challenges the length and manner of service of a sentence, this
court reviews the trial court‟s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). If a trial court misapplies an enhancing or mitigating factor in
passing sentence, said error will not remove the presumption of reasonableness from its
sentencing determination. Bise, 380 S.W.3d at 709. This court will uphold the trial
court‟s sentencing decision “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Id. at 709-10. Moreover, under such circumstances,
appellate courts may not disturb the sentence even if we had preferred a different result.
See Carter, 254 S.W.3d at 346. The party challenging the sentence imposed by the trial
court has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. §
-9-
40-35-401, Sentencing Comm‟n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).
In this case, the trial court heard testimony about appellant‟s family life—the
absence of his father, his truancy from school, and his drug use—but determined that
appellant‟s family history did not rise to the level of a mitigating factor. The trial court
stated that it nonetheless took appellant‟s family history into consideration when
determining appellant‟s sentences. The record shows that appellant‟s sentences were
within the appropriate range and in compliance with the purposes and principles of our
sentencing statutes.
ii. Consecutive Sentencing
Although appellant‟s brief did not expressly raise an issue as to his consecutive
sentencing, he nevertheless mentioned his aggregate sentence length. Therefore, we will
address the propriety of his sentence alignment. Prior to 2013, on appellate review of
sentence alignment issues, courts employed the abuse of discretion standard of review.
See State v. Hastings, 25 S.W.3d 178, 181 (Tenn. Crim. App. 1999). Our supreme court
has since extended the standard of review enunciated in State v. Bise, abuse of discretion
with a presumption of reasonableness, to consecutive sentencing determinations. State v.
Pollard, 432 S.W.3d 851, 860 (Tenn. 2013); Bise, 380 S.W.3d 682, 707 (Tenn. 2012)
(modifying standard of review of within-range sentences to abuse of discretion with a
presumption of reasonableness); see also State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn.
2012) (applying abuse of discretion with a presumption of reasonableness to review of
alternative sentencing determinations by the trial court). Thus, the presumption of
reasonableness gives “deference to the trial court‟s exercise of its discretionary authority
to impose consecutive sentences if it has provided reasons on the record establishing at
least one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b) .
. . .” Pollard, 432 S.W.3d at 861.
The procedure used by the trial courts in deciding sentence alignment is governed
by Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant
to a trial court‟s sentencing decision. Imposition of consecutive sentences must be “justly
deserved in relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102(1).
The length of the resulting consecutive sentence must be “no greater than that deserved
for the offense committed.” Id. § 40-35-103(2). The court may order consecutive
sentences if it finds by a preponderance of the evidence that one or more of the following
seven statutory criteria exists:
(1) The defendant is a professional criminal who has knowingly devoted
the defendant=s life to criminal acts as a major source of livelihood;
-10-
(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 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)(1)-(7).
The Pollard court reiterated that “[a]ny one of these grounds is a sufficient basis
for the imposition of consecutive sentences.” Pollard, 432 S.W.3d at 862 (citing State v.
Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So long as a trial court properly
articulates reasons for ordering consecutive sentences, thereby providing a basis for
meaningful appellate review, the sentences will be presumed reasonable and, absent an
abuse of discretion, upheld on appeal.” Id.
Of the seven statutory factors, the trial court in this case found that one factor
applied: (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. We note that the trial court properly engaged in a discussion of the
Wilkerson factors that must accompany application Tennessee Code Annotated section
40-35-115(b)(4). State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Pursuant to
Wilkerson, before imposing consecutive sentences based upon the defendant‟s status as a
-11-
dangerous offender, the trial court “must conclude that the evidence has established that
the aggregate sentence is „reasonably related to the severity of the offenses‟ and
„necessary in order to protect the public from further criminal acts.‟” Pollard, 432
S.W.3d at 863 (quoting Wilkerson, 905 S.W.2d at 938).
In this case, the trial court found that the circumstances of the offense were
aggravated considering that appellant fired a gun into a crowd of people, that an extended
period of confinement was necessary to protect the public from “[appellant‟s]
unwillingness to lead a productive lifestyle and [from his resorting] to criminal activity in
furtherance of that anti-societal lifestyle,” and that the length of the sentences was
reasonably related to the severity of the offenses. Therefore, we conclude that the trial
court did not abuse its discretion by imposing partially consecutive sentencing.
Appellant has failed to show that his sentences were erroneous, and we affirm the
sentences as set by the trial court.
D. Clerical Errors
The uniform judgment documents for Counts Two through Four erroneously
indicate that appellant was convicted of three counts of attempted first degree murder.
Therefore, we remand these counts to the trial court for correction of the documents to
show that appellant was charged with and convicted of three counts of attempted second
degree murder. In addition, Counts Ten, Eleven, and Twelve erroneously indicate that
appellant was convicted of employing a firearm with intent to commit a felony. These
three counts should be corrected to show that appellant was charged with and convicted
of employing a firearm during the commission of a dangerous felony. Counts Ten,
Eleven, and Twelve should also show that appellant‟s release eligibility is 100%.
CONCLUSION
Based on the record, the applicable law, and the briefs of the parties, we affirm the
judgments of the trial court, as modified on remand.
_________________________________
ROGER A. PAGE, JUDGE
-12-