State v. Andra Lamar Dillard

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MAY SESSION, 1999 September 20, 1999

Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9804-CC-00157 ) Appellee, ) ) ) MONTGOM ERY COUNTY VS. ) ) HON . JOHN H. GASAW AY ANDRA LAMAR DILLARD, ) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Agg ravat ed R obb ery ) & Aggravated Rape)

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL R. JONES PAUL G. SUMMERS 19th District Public Defender Attorney General & Reporter 109 So uth Sec ond St. Clarksville, TN 37040 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

JOHN CARNEY District Attorney General

HELEN O. YOUNG Assistant District Attorney 204 Franklin St., Suite 200 Clarksville, TN 37040

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE

OPINION

The appellan t, Andra L. Dillard, was charged in a multi-count indictment with four (4) counts of aggravated burglary, two (2) counts of aggravated kidnapping, two (2) counts of aggravated robbery, one (1) count of aggravated rape and one (1) count of theft of property over $1 ,000. He wa s convicted by a Montgom ery County jury of one (1) count of theft of property over $1,000 as charged in Coun t Eleven o f the indictm ent. In a separate trial, he was convicted of one (1) count of aggravated burglary, one (1) count of aggravated kidnapping and one (1) count of robbery under Counts One, Two and Three of the indictme nt. Subse quently, the appellan t pled guilty to one (1) count of aggravated robbery and one (1) coun t of aggra vated rap e as cha rged in C ounts Eight and Nine o f the indictment. Fo r all of his convictions, the trial court sentenced the appellant to an effective sentence of 41 years.

The appellant now brings this appeal, challenging his convictions for aggravated burglary in Count One, aggravated kidnapping in C ount Two , robbery in Coun t Three and the ft of proper ty in Count Eleve n of the indictme nt. Further, the ap pellan t challe nges his sente nces for his c onvictio ns in Counts One, Two, Three, Eight, Nine and Eleven of the indictment. Specifically, he raises the following issues for our review:

(1) whether the evidence is sufficient to sustain his conviction for theft of prop erty over $1 ,000 in C ount Ele ven of the indictme nt;

(2) whether there was sufficient corroboration of an acc omp lice’s testimony to support the appellant’s convictions for aggravated burglary, aggravated kidnapping and robbery in Counts One, Two and Three;

(3) whether the appellant’s convictions for aggravated kidnapping and robbery under Counts Two and Three violate due process under State v. Anthony, 817 S.W .2d 299 (Te nn. 1991);

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(4) whether the trial court imposed excessive sentences for all his convictions; and

(5) whether the trial court erred in imp osing cons ecutive sentences. After a thorou gh review of the reco rd before this Cou rt, we affirm the judgment of the trial cou rt.

FACTUAL BACKGROUND

A. Counts One, Two and Three

At approximately 2:00 a.m. on Jan uary 20, 1995, Janet Lynn Ruppel was sleeping in her hom e in Clark sville when she felt something hard pressing undern eath her chin and something on her stomach. She woke up and saw a man straddling her with a gun underneath her chin. She screamed and asked the man to move. The man forced her out of her bed and informed her that she “was to go with them.” He put a gun to her back and ushered her through the hallway. They went into the dining area of Ruppel’s home, and Ruppel saw a second man stand ing in the doorway to the kitchen. The second man produced her ATM card and demanded that she leave her house with them. Ru ppel gave the men he r ATM n umber in a n attempt to ge t the men to lea ve without her; howev er, both m en insiste d that she leave with th em.

At trial, Ruppel described the men. She stated that the man who put a gun under her chin was a b lack male w ith very dark skin. He was dressed in a black sweatshirt, black jeans, a black hat, a blac k jacket a nd black gloves. He had a blue and white bandana covering his face. The man was approximately sixteen (16) or seven teen (17 ) years of a ge, app roximate ly five feet, eight inches tall with a med ium b uild. Ru ppel testified that he was c arrying a silver s emi-a utom atic

-3-weapon. Ruppel described the other man as a bla ck m ale with lighter skin than the other man. H e was s imilarly dres sed, exc ept that a re d and w hite bandana covered his face. He also had approximately the same height and build as the other m an.

Ruppel and the two men left her house and got into her car. The man w ith the blue and white bandana drove, while the man with the red and white bandana sat in the backseat and held a gun o n Rup pel. They drove to an ATM machine appro ximate ly four miles from Ruppel’s home, and the man with the blue and white bandana ordered R uppel out of the c ar. Ruppel w ithdrew $500 from the ATM machine, got back into the car and handed the money to the driver. They then drove back to Ruppel’s home. When they returned, the men gave her back her car keys, threatened to kill her and her sixteen (16) month old daughter if she called the police an d then left h er hous e.

Jesus We aver testified on beh alf of the state at trial. He stated that he and the appellant planned to rob someone on the night of January 19. Weaver testified that in the early morn ing hours of January 20, he met the appellant at the appe llant’s home. They dressed alike in black gloves, jackets and hats, except that the appellant wore a blue bandana, and Weaver wore a red one. They walked around the appellant’s neighborhood until they spotted a house to rob. They saw a purse sitting inside of a car parked near the house. When they looked through the purse, they discovered keys. They attempted to open the front door of the house with the keys, but were unsucces sful. However, the keys opened the back door of the home.

The appellant walked inside of the home to search for money while Weaver stayed outside. When Weaver heard a woman scream, he went inside the house. He observed the appellant leading a woman into the room and asking her

-4-for money. The woman gave the appellant her ATM card and her ATM number and pled with them to leave without her. However, because they feared that the woman would call the police, they forced the woman to leave with them.

When they got into the car, the appellant drove while W eaver stayed in the backseat with the victim. Weaver held a gun on the victim during the drive to the ATM machine. When they arrived at the ATM, the appe llant dire cted th e victim to withdraw money from her accou nt. The vic tim obtain ed $50 0 and g ave it to the appellan t. They then drove the victim home, gave her the keys and went home.

Weaver testified that he received $220 from the robb ery, and the appellant received $260. The appellant told Weaver that he deserved more money than Weaver because he “did more.”

At trial, Ruppel testified that the appellant’s complexion matched that of the man in the blue and white bandana. She further stated that, even though she never saw th e ma n’s fac e, the a ppella nt’s height and build were the same as that of the m an in the b lue and white ban dana.

The jury returned guilty verdicts for ag grava ted bu rglary a s cha rged in Count One and aggravated kidnapping as charged in Count Two. In Count Three, the jury fo und th e app ellant guilty of the lesser included offense of robbery. 1

B. Counts Eight and Nine

With regard to Counts Eight and Nine, the stipulated facts were recited at the guilty plea proceedings as follows:

[O]n Februa ry 5th, 199 5, the [app ellant] entered the home on Kelsey Drive, here in Clarksville, of one Amy Herchig. She awoke to find him on top of her in her bed with a pistol to her head, . . . . The [appellan t] then choke d the victim until she passed out and then raped her while she was, in fact, unconscious, . . . . When she

1 The appellant was charged with aggravated robbery in Count Three.

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came to, he forced her to drive to an ATM machine and withdraw three hundred d ollars, which she took and then he released the victim.

The appellant was charged with alternative counts of aggravated burglary in Coun ts Five an d Six, aggravated kidnapping in Count Seven, aggravated robbery in Count Eight and aggravated rape in Count Nine. In February 1998, the appellant pled guilty to aggravated robbery as charged in Count Eight and aggravated rape as charged in Count Nine. As part of the plea agreement, the state dism issed C ounts F ive, Six and Seven .

C. Count Eleven2

At approximate ly 1:00 a.m. on February 27, 1995, Michael Cresong noticed that his ma roon 1 991 D odge autom obile was missing. He had p arked his vehicle outside of his home in Clarksville the previous evening and left the keys in the car. Cresong testified that the value of his car in February 1995 was appro ximate ly $5,500. He stated that he had not given anyone perm ission to take the car.

In the early morning hours of February 28, 1995, Officer Joel T. Bach was on patrol for the Berry Hill Police Department when he observed a late model maroon Dodge p arked on B erry Hill Drive in Nashvi lle. Upon checking the license plate number on the vehicle, Officer Bach was advised that the vehicle had been stolen. Other officers arrived at the scene, and they discovered two (2) individu als sleeping inside the vehicle. Those people were later identified as the appellant and Jesus Weaver. Subsequently, the officers took the appellant and Weaver into custody. Upon searching the vehicle , the offic ers fou nd clo thes in a

2 Coun t Four of th e indictm ent did no t involve the a ppellant, bu t charge d co-de fendan ts with aggravated robbery. Count Ten of the indictment charged the appellant with aggravated burglary, but the state later d ismiss ed suc h charg e.

-6-plastic bag in the trunk. In addition, the officers found $300 on Weaver’s person, and the appellan t claimed that $120 of the m oney be longed to him.

Jesus W eaver testified for the state at trial. He stated that on Sunday, February 26, he an d the app ellant “went out looking for a car” to steal. When they found a Dodge with the keys in the ign ition, the y took th e car to We aver’s house and the n to the appellant’s house so that they could obtain some clothes. They drove to N ashville tha t night, parke d the c ar in a residential neighborhood and went to sleep . The n ext day , they dr ove the car aro und N ashville and event ually parked the car an d went to sleep. Subseq uently, they were awakened by the police and ta ken into custod y. Wea ver testified that no one gave them permission to take the vehicle, an d he and the appellant were planning to run away.

The jury found the appellant guilty of theft of property over the value of $1,000 as charg ed in Co unt Eleve n of the ind ictmen t.

SUFFICIENCY OF THE EVIDENCE

In his first issue, th e appe llant claims tha t the eviden ce is insuffic ient to susta in the jury’s verdict of guilt for theft of property over $1,000. He claims that the evidence merely supports a conviction for the lesser included offense of joyriding because there is no evidence that he intended to deprive the owner of his property.

A.

When an accused challeng es the sufficiency of the evidence, this Co urt must review the record to determine if the evidence adduced during the trial was sufficient “to support the findings by the trier of fact of guilt beyond a reaso nable

-7-doubt.” Tenn. R. App. P. 13( e). Th is rule is a pplica ble to fin dings of guilt predicated upon direct evidence, circumstantial evidence or a combination of direct and circums tantial evide nce. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App . 1996).

In determining the sufficiency of the e videnc e, this Court does not reweigh or reeva luate the evide nce. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor m ay this C ourt su bstitute its inferences for those drawn by the trier of fact from c ircums tantial evide nce. Liakas v. S tate, 199 Te nn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, th is Court is re quired to afford the s tate the stronge st legitima te view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Questions concerning the credibility of the witne sses, the weight an d value to be given the evidence as well as all factual issues raised by the evidence are resolved by the jury as the trier of fact. State v. Tuttle , 914 S.W.2d at 932.

Because a verdict of guilt removes the presumption of innocence and replaces it with a pres umptio n 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. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493 S.W.2d at 476.

B.

“A person comm its theft of prop erty if, with intent to deprive the owner of property, the person knowing ly obtains o r exercise s control o ver the pro perty

-8-without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103. To “deprive” means to:

(A) With hold pro perty from the owner permanently or for such a period of time as to substantially diminish the value or enjoyment of the property to the o wner;

(B) With hold pro perty or ca use it to be withheld for the purpose of restoring it only upon p ayment of a reward or other compensation; or

(C) Dispose of property or use it or transfer any interest in it under circumstan ces that ma ke its restoration unlikely.

Tenn. C ode Ann . § 39-11-106 (a)(8).

A person commits the offense of joyriding when that person “takes anoth er’s automobile, airplane, motorcycle, bicycle, boat or other vehicle without the consent of the owner and the person does not have the intent to deprive the owner thereof.” Tenn. Code Ann. § 39-14-106.

C.

The proof at trial showed that the appellant and W eaver took Michael Cres ong’s 1991 Dodge without his consent. They drove the car to their respective home s so that th ey could obtain clo thing. Th ey then d rove to Nash ville and re main ed the re until th ey wer e app rehen ded b y the po lice a day later. Weaver testified that he and the appellant had planned to “steal” a car and run away from home.

The appellant claims that the evidence merely supports a conviction for joyriding because he had no intent to deprive the o wner of his prop erty. However, the appellant’s intent was a question of fact for the jury to determine. Defense counsel vigorously argued the joyriding theory to the jury, but the jury rejected this the ory. Th is was clearly w ithin the jury’s province as the trier of fact. After reviewing the evidence presented at trial, we conclude that a rational trier

-9-of fact co uld ha ve foun d that th e app ellant “knowingly obtain[ed] or exercise[d] contro l” over Mich ael Cres ong’s ve hicle witho ut his consent and inte nded to withho ld the veh icle from Cresong “permanently or for such a period of time as to subs tantially d iminish the value or enjoym ent of the p roperty to th e owne r.” Tenn. Code Ann. §§ 39-11-106(a)(8)(A), 39-14-103.

This issu e is withou t merit.

ACCOMPLICE TESTIMONY

In his next issue, the appellant contends that his convictions for aggravated burglary, aggravated kidnapping and robbery should be dismissed. He claims that these convictions were based solely upon the testimony of his accomplice, Jesus Weaver. He argues that because We aver’s te stimo ny was not su fficiently corroborated, the trial court should have granted his motion for judgment of acqu ittal.

A.

It is well-settled that a conviction may not be based solely upon the uncorro borated testimon y of an ac comp lice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 199 4). However, Tennessee law requires only a modicum of evidence in order to sufficiently corroborate the testimony of an accomplice. State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim. App. 1984). In State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997), this Court stated:

The rule of c orrob oration as ap plied and used in this State is that there must be some evidence independent of the testimony of the accomplice. The co rroboratin g eviden ce mu st conne ct, or tend to connect the defen dant with th e commission of the crime charged; and, furthermore, the tendency of the corro borative e vidence to connect the defendant must be independent of any testimony of the accomplice. The corroborative evidence must of its own force,

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independently of the accomplice’s testimony, tend to connect the defendant with the commission of the crime.

....

The evidence corroborating the testimony of an accomplice may consist of direct evidence, circum stantial evidence, or a combination of direct and circumstantial evidence. The quantum of evidence nece ssary to corrob orate a n acc omp lice’s testimony is not required to be sufficient enough to support the accu sed’s conviction independent of the accomplice’s testim ony nor is it required to extend to every po rtion of the accomplice's testimony. To the contrary, only slight circumstances are required to corroborate an acco mplic e’s testimony. The corroborating eviden ce is su fficient if it connects the accused with the crime in question.

(Citations omitted) ; see also State v. Bigbee, 885 S.W.2d at 803.

This Court held tha t “if the co rrobo rating e videnc e fairly an d legitim ately tends to conn ect the accu sed w ith the c omm ission of the c rime c harge d it satisfies the req uirem ent of th e rule o n corro boratio n of an acco mplic e’s testimon y.” State v. Copeland, 677 S.W.2d at 475. The issue of whether an acco mplic e’s testimony has been sufficiently corroborated is a matter entrusted to the jury, as th e trier of fact. State v. Bigbee, 885 S.W .2d at 803 ; State v. Maddox, 957 S.W .2d 547, 554 (Tenn. Crim . App. 1997).

B.

Jesus We aver te stified a t trial that h e and the ap pellant searched the appe llant’s neighborhood for a hou se. They were both dressed in black gloves, jackets and hats, exc ept that the appellant wore a blue bandana, and Weaver wore a red one . Upon spotting Ruppel’s house, they saw a purse sitting inside of a car parked near the house. They looked through the purse and discovered keys which opened the back door to the house.

The appellant walked inside of the home to search for money while Weaver stayed outside. Weaver heard a woman scream and walked inside where he observed the appellant leading a woman into the room and asking her for money.

-11-The woman was not dres sed at the time . The wom an gave them her A TM card and number, but the appe llant and W eaver forc ed her to leave he r home with them.

They forced the victim into the car, and the appellant drove them to an ATM machine. Weaver stayed in the backseat with the victim while holding a gun. The victim withdrew $500 and gave the money to the appellant. They then drove the victim home, gave her the keys and went home.

Rup pel’s description of the eve nts on the night in qu estion wa s quite similar to Weaver’s. She testified that she was sleeping when she was awakened by the presence of something hard pressing underneath her chin and something on her stomach. When she ope ned her eyes, she saw a man straddling her with a gun underneath her chin. The man forced her out of her bed and informed her that she “was to go with them.” He put a gun to her back and ushered her through the hallwa y. However, because she was undressed at the time, she begged the man to allow her to get dressed. The man refused, but retrieved a sweatshirt lying on the floor for her to wear. When they went into the dining area of Ruppel’s home, she saw a second man stand ing in the doorway to the kitchen. The m en forced he r to leave her home with them, des pite her attemp ts to have them leave without her.

Ruppel and the two men left her house and go t into her ca r. The m an with the blue and white bandana drove, while the man with the red and white bandana sat in the backse at and held a g un on Ru ppel. They d rove to an ATM machine appro ximate ly four miles from Ruppel’s home, and Ruppel withdrew $500 from the ATM machine. She got back into the car and handed the money to the driver. They then drove back to Ruppel’s home, and when they returned, the men gave her the car keys and left her house.

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With regard to the appellant’s identity, Ruppel described the man who woke her as a black male with very dark skin. He was d resse d in all black, except that he had a blue and white bandana covering his face. The man was appro ximate ly sixteen (16) or seventee n (17) years of ag e, approxima tely five feet, eight inches tall with a medium bu ild. At trial, Ruppel testified that the appe llant’s com plexion matc hed th at of the man in the blue and white bandana. She further stated that, even though she never saw the man’s face, the appellan t’s height and build were the same as that of the man in the blue and white bandana.

The appe llant asserts that W eaver ’s testim ony wa s not s ufficien tly corroborated with regard to the appellant’s identity. However, the corroboration need not be sufficient to support the conviction by itself and only slight corroboration is required. Moreover, whether an accomplice’s testimony has been sufficiently corro borated is a ques tion for the ju ry to determ ine. State v. Bigbee, 885 S.W.2d at 803; State v. Maddox, 957 S.W.2d at 554. By returning verdicts of guilty, the jury determined that Weaver’s testimony had been sufficiently corroborated.3 After reviewing the evidence presented at trial, we conclude that there was su fficient corroboration, through the testimony of Ms. Rup pell, of Weaver’s testimony to sustain the appellant’s convictions for aggravated burglary, aggravated kidnapping and robbery in Counts One, Two and Three.

This issu e has n o merit.

3 Because the jury instructions were not included in the record before this Court on appeal, we ass um e tha t the ju ry was prop erly ins truct ed w ith reg ard to corr obo ration of ac com plice t estim ony.

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STATE V. ANTHONY

In his next issue, the appellant asserts that his convictions for robbery and aggravated kidnapping can not stand under principles of due process. He contends that the kidnapp ing was inciden tal to the robbery, and under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), his conviction for kid napp ing sh ould merge into h is conviction for robbe ry.

In State v. Anthony, the Supreme Court addressed the issue of whether dual convictions of armed robbery and aggravated kidnapping arising out of the same criminal episod e could con stitutionally stand as a m atter of due pro cess. The Cour t held th at whe n a kid napp ing is “e ssen tially incidental” to another offense, due proces s prohibits a convictio n for kidna pping. Id. at 306-307. The test to be applied is wh ether, under the facts of eac h case , “the confin emen t, movement or dete ntion is essentially incidental to the accompanying felony and is not, therefore, sufficient to support a separate conviction for kidnapping, or whether it is significant enough, in and of itself, to warrant independent prosecution and is, therefore, sufficient to sup port such a co nviction.” Id. at 306. The determination of whether the c onvictions for kidnapping and the related felony can stand should be based upon the facts of each case. The Anthony court noted tha t there is no prohibition against c onvictions for both offenses “simp ly because they arise out of the sa me episo de.” Id. at 307 . A cou rt shou ld instead determine if there is a “substantially increased risk of harm over and above th at nece ssarily pres ent” in the link ed felony . Id.

Subseq uently, the Supreme Court released State v. Dixon, which clarified the holding in Anthony by stating:

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The Anthony decision should only prevent the inju stice w hich w ould occur if a defendant could be convicted of kidnapping w here the on ly restraint utilized was that necessary to complete the act of rape or robbery. Acco rdingly , any re straint in additio n to tha t which is necessa ry to consummate rape or robbe ry may su pport a s eparate conviction for kidnapping.

957 S.W.2d 532, 534-35 (Tenn. 1997). The resolution of an Anthony issue is based upon two inquiries: (a) whether the “movement or confinement was beyond that necessary to c onsum mate” the as sociated felony; an d (b) “whether the additional movement or confinement: (1) prevented the victim from summoning help; (2) lessen ed the d efenda nt’s risk of detection; or (3) created a significant danger or increased the victim’s risk of harm.” Id. at 535 (citing Anthony, 817 S.W.2d at 306). If both prong s are met, dual convictions for kidnapping and the additiona l felony do n ot violate du e proce ss. Id.

In the pres ent case, it is clear that the movement of the victim from her home to the ATM was beyond that necessary to consummate the robbery. The appellant and We aver broke into R uppel’s hom e intending to stea l money. Instead of taking money or the ATM card from Ruppel at her home, they forced her at gunpoint into her car and drove approximately four miles so that Ruppel could withdraw money from her bank.

Furthermore, we also hold that the movement prevented the victim from summoning help. T he victim could have easily summoned the police had Weaver and the appellan t left without h er. Indeed, Weaver testified that the appellant made the victim travel with them to the ATM because he “didn’t trust her.” Moreover, by forcing the victim at gunpoint into her car and driving to an ATM mach ine app roximate ly four miles away, the pe rpetra tors su bstan tially increased the risk of danger to the victim.

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The kidnapping of Rup pel wa s not “e ssen tially incide ntal” to th e robb ery in this case. Therefore, under the principles enunciated in Anthony and Dixon, due process is not violated by the appellant’s convictions for aggravated kidnapping and robbe ry.

This issu e is withou t merit.

SENTENCING

In his final issues, the appellant claims that the trial court erred in imposing his senten ces. First, he argues that his sentences are excessive due to the trial court’s erroneous application of enhancement factors. Secondly, he contends that the trial court erred in imposing consecutive sentences.

A. Standard of Review

This Court’s review of the sentence imposed by the trial court is de novo with a presum ption of co rrectnes s. Tenn . Code Ann. § 4 0-35-40 1(d). This presumption is cond itioned upon an affirm ative sh owing in the record that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the s tatutory directives, there is no presumption of correctness and our review is de novo. State v. Poo le, 945 S.W.2d 93, 96 (Tenn. 1997).

The burden is upon the appealing party to show that the sente nce is improper. Tenn . Code Ann. § 40-35-401(d) Sentencing Commission Comme nts. In conducting our rev iew, we a re require d, pursu ant to Te nn. Co de Ann . § 40-35-210, to consider the following factors in sentencing:

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(1) [t]he evidence, if any, received at the trial and the sentencing hearing;

(2) [t]he pre senten ce repo rt;

(3) [t]he principles of sentencing and arguments as to sentencing alternatives;

(4) [t]he nature and characteristics of the criminal conduct involved;

(5) [e]viden ce an d informa tion offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and

(6) [a]ny statement the defendant wishes to make in the de fenda nt's own behalf about sentencing.

Under the 1989 Sentencing Act, the presumptive sentence is the minimum within the applicable range if no mitigating or enhancement factors for sentencing are present. Ten n. Cod e Ann. § 40-35-2 10(c); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. A pp. 199 1). How ever, if such factors do exist, a trial court shou ld start at the minimum sentence, enhance the minimum sente nce w ithin the range for enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute, as the we ight given to each fac tor is left to the discretion of the trial court as long as its findings are supported by the record. State v. Santiago, 914 S.W.2d 116, 12 5 (Ten n. Crim. A pp. 199 5); see Tenn. Code Ann. § 40-35-210 Sentencing Comm ission Comments.

B. Trial Court’s Findings

1. Sentencing Hearing - October 10; Counts One, Two, Three and Eleven

On Octo ber 10, 1997, the trial court held a hearing to determine the appe llant’s sentences on Counts One, Two, Three and Eleven of the indictm ent. After hearing testimon y, the trial court determined that the following mitigating factors would apply to all of the appellant’s convictions: (1) that the appellant was

-17-fifteen (15) at the time the offenses were committed, Tenn. Code Ann. § 40-35-113(6); (2) that the appellant had a troubled childhood, Tenn. Code Ann. § 40-35-113(13); (3) that the appellant has a learning disability, Tenn. Code Ann. § 40-35-113(13); and (4) th at the app ellant expre ssed re morse to law enfo rcement authorities during a police interrogation in connection with these offenses, Tenn. Code A nn. § 40-35-1 13(13).

With regard to Count One, aggravated burglary, the trial court found the following enhancement factors: (1) that the appellant was a leader in the commission of the offense, Tenn. Code Ann. § 40-35-114(2); (2) that the appellant had a previous history of unwillingness to comply with the conditions of a sentence involving release into the community, Tenn. Code Ann. § 40-35-114(8); (3) that the offense was committed with a deadly weapon, Tenn. Code Ann. § 40-35 -114(9); a nd (4) tha t the offense was committed under circumstances under which the potential for bodily injury to a victim was great, Tenn. Code Ann. § 40-35-114(16). After weighing the mitigating factors and the enhancement factors, the trial court imposed a sentence of six (6) years for the Class C felon y.

For the ap pellan t’s con viction fo r aggra vated kidna pping , the trial court found as enhancement factors that (1) the appellant was a leader in the commission of the offense, Tenn. Code Ann. § 40-35-114(2); (2) the victim was treated with exceptional cruelty during the commission of the offense, Tenn. Code Ann. § 40-35-114(5); (3) the appellant had a previous unwillingnes s to com ply with the conditions of a senten ce involving release into the comm unity, Tenn. Code Ann. § 40-35-114(8); and (4) the offense was committed under circumstances under which the potential for bodily injury to a victim was great,

-18-Tenn. Code Ann. § 40-35-114(16). The trial court imposed the maximum sentence o f twelve (12) years for the C lass B felony.

The trial court found the following enhancement factors to be applicab le to the appellant’s conviction for robbery: (1) that the appellant was a leader in the com mission of the offen se, Ten n. Cod e Ann. § 40-35-1 14(2); (2) th at the appellant had a p revious u nwillingne ss to com ply with the c onditions of a sentence involving release into the comm unity, Tenn . Code Ann. § 40-35-114 (8); and (3) that the offense was committed under circumstances under which the potential for bodily injury to a victim wa s great, T enn. C ode An n. § 40-35-114 (16). After balancing the enhancement and mitigating factors, the trial court determined that the appellant should receive a sentence of five (5) years for robbery, a Class C felony.

Regarding Coun t Eleven o f the indictm ent, theft of property over $1,000, the trial cou rt found only one enhancement factor to apply, that the appellant had a previous unwillingness to comply with the conditions of a sentence involving release into the comm unity. Tenn. Co de Ann. § 4 0-35-114(8 ). The trial court imposed a sentence of four (4) years for the C lass D felony.

The trial court ne xt determined whethe r the appellant sh ould receive consecu tive sentences . The trial court found that the appellant committed these offenses while he was on pro bation. See Tenn. C ode Ann . § 40-35-115 (b)(6). There fore, the trial court determined that consecutive sentences would be approp riate in this case . The co urt ruled that Counts One and Two would run concurrently with one another, Count Three would run consecutively to Count Two and Count Eleven would run consecutively to Count Three. Accordingly, the appellant received an effective senten ce of twen ty-one (21 ) years for C ounts One, Two, Three and Eleven.

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2. Sentencing Hearing - March 27; Counts Eight and Nine

On March 27, 1998, the trial court held a sentencing hearing for the appe llant’s convictions for agg ravated robbery and ag gravated rape, Co unts Eight and Nine of the indictment. For both convictions, the trial court found that the appe llant’s a ge sh ould be considered as a mitigating factor. Tenn. Code Ann. § 40-35-11 3(6).

Under Count Eight, the trial court found as an enhancement factor that the appellant had a previous history of criminal convictions or be havior. Tenn. Code Ann. § 40-35-114(1). The trial court also found that the appellant had a previous unwillingness to comply with the conditions of a sentence involving release into the community and that the crime was committed under circumstances under which the potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-35-114(8) and (16). After weighing the enhancement factors and the mitigating factor, the trial court imposed a sentence of ten (10) years for aggravated robbery, a Clas s B felony.

With regard to the ap pellant’s conviction for ag gravated rape , the trial court found the following applicable enhancement factors: (1) that the appellant had a previous criminal history, Tenn. Code Ann. § 40-35-114(1); (2) that the victim was particu larly vulnerable because of physical disability, Tenn. Code Ann. § 40-35-114(4); (3) that the appellant had a previous unwillingness to comply with the conditions of a sentence involving release into the comm unity, Tenn. Code Ann. § 40-35-114 (8); and (4) that the appellant had no hesitation about committing a crime when the risk to human life was high, Tenn. C ode Ann . § 40-35-114 (10). The trial court, after considering the enhancement and mitigating factors, imposed a twenty (20) year s entence for ag gravated rape , a Class A felon y.

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Although the se ntenc es in C ounts Eight a nd Nin e were to run c oncu rrently pursuant to the plea agreement, the trial court considered the propriety of running the sente nces in Cou nts Eig ht and Nine c onse cutively to the senten ces in C ounts One, Two, Three and Eleven. With regard to consecutive sentencing, the trial court found that the appellan t was an offende r whose record o f criminal a ctivity was extensive and the appellan t was a dangerous offender whose behavior indicates little or no regard for human life. Tenn. Code Ann. § 40-35-115(b)(2) and (4). Thus , the trial court concluded that consecutive sentences would be approp riate and ruled th at the a ppella nt’s effective twenty (20) year sentence on Coun ts Eight and N ine would run c onsecutively to the a ppellant’s effective twenty-one (21) year sentence on Counts One, Two, Three and Eleven. As a result, the appellant received a total effective sentence of forty-one (41) years.

C. Excessive Sentences

The app ellant contends that the trial court imposed excessive sentences by erroneously applying certain enhan cemen t factors. Specifically, the appellant challenges the app licability of Ten n. Cod e Ann. § 40-35-114(2) to his convictions for aggravated burglary, aggravated kidnapp ing and robbery. He further claims that Tenn. Code Ann. § 40-35-114(8) is inapplicable to any of his convictions. In addition, the appellant contends that Tenn. Code Ann. § 40-35-114(1) is not applic able to his convictions for agg ravated rape a nd aggrava ted robbery. Also, the appellant insists that Tenn. Code Ann. § 40-35 -114( 4) is ina pplica ble to his conviction for aggravated rape. He argues that Tenn. Code Ann. § 40-35-114(5) shou ld not apply to his conviction for aggra vated kidn apping . Finally, he a sserts that Tenn. Code Ann. § 40-35-114(10) does not apply to his conviction for aggravated rape and Tenn. Code Ann. § 40-35-114(16) does not apply to his

-21-convictions for aggravated burglary, aggravated kidnapping, robbery and aggravated robbery.

1. Prior Criminal History

The appellant challenges the applicability of Tenn. Code Ann. § 40-35-114(1) to his convictions for aggravated robbery and aggravated rape. He argues that the criminal behavior occurred after he committed the aggravate d robbery and the aggravated rape and thus was not “previous” criminal behavior. Howeve r, the appellant acknowledges that present case law is unfa vorab le to his position. Indeed, this Court has held that “trial judges can consider criminal convictions or any other criminal behavior which occurred prior to the sentencing hearing as constituting a previous history of criminal convictions or criminal behavior, regardless of wheth er the convictions or behavior occurred before or after the criminal conduct under consideration.” State v. Cha d Dou glas P oole, C.C.A. No. 02C 01-950 6-CC -00178 , 1996 T enn. Crim. A pp. LEXIS 58, at *3, Hardeman County (Tenn. Crim App. filed January 31, 1996, at Jackso n), aff’d (decided on unrelate d groun ds), State v. Poo le, 945 S.W.2d 93 (Tenn. 1997); see also State v. Terry Anton io Lawrence, C.C.A. No. 01C01-9603-CR-00122, 1997 Tenn. Crim. App . LEXIS 90 6, at *3, Davidson County (Te nn. Crim. App. filed September 19, 1997, at Nashville). When the appellant was sentenced for aggravated rape and aggra vated robbe ry, he had been convicted of aggravated burglary, aggravated kidnapping, robbery and theft of property. Therefore, these convictions qualify as previous criminal convictions, and Tenn. Code Ann. § 40-35-114(1) was properly applied to the appellant’s convictions for aggravated robbery and aggravated rape.

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Furthermore, we note that the appellant had been adjudicated a delinquent for the offense of theft of property under the value of $5004 in September 1994 and was on juvenile probation at the time the instant offenses were committed. The appellant’s juvenile record is a sufficient basis for enhancement of the appe llant’s senten ce und er Ten n. Cod e Ann. § 40-35-114(1). State v. Adams, 864 S.W .2d 31, 34 (Tenn . 1993); State v. Crowe, 914 S.W.2d 933, 939 (Tenn. Crim. App. 1995 ).5 Additionally, at the sentencing hearing on March 27, Jesus Weaver testified that he and the appellant had been involved in other criminal activity during the month of January 1995, including theft and numerous instances of burglary. This would a lso qualify as prior crimina l behavior. Moreover, the presentence report reveals that the appellant admitted using alcohol and marijuana, which can also be considered crimina l behavior under Tenn. Code Ann. § 40-35-114(1). Therefore, under this Court’s de novo review, we conclude that Tenn. Code Ann. § 40-35-114(1) is applicable not only to the appe llant’s convictions for aggravated robbery and aggrava ted rape , but also to the appellant’s convictions for aggravated burglary, aggravated kidnapping, robbery and theft of property.

2. Leader in the Offense

The appellant claims that the trial court erroneously applied Tenn. Code Ann. § 40-35-114(2) to his convictions for aggravated burglary, aggravated

4 The presentence report indicates that the offense was theft over $1,000. However a review of the appellant’s juvenile records indicates that the offense was theft of property under the value of $500.

5 In 1995, the legislature amended Tenn. Code Ann. § 40-35-114 with the addition of enhancement factor (20), which allows for enhancement of a sentence if “the defendant 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(20). This Court has held that, as a result of this amendment, “factor (20) becam e the exclusive factor for enhancing a sentenc e based on a defen dant’s juvenile record”; therefor e, any juven ile adjudica tion which would no t be a felon y can not b e cons idered in en hance men t. State v. Brent Brown, C.C.A. No. 02C01-9710-CC-00419, 1998 Tenn. Crim. App. LEXIS 1112, at *3, Hardeman County (Tenn. Crim. App. filed October 26, 1998, at Jackson). However, the present offenses were com mitte d bef ore th e eff ective date of this am end me nt on July 1, 1995 . Acc ordin gly, the appe llant’s juvenile record can be considered in enhan cemen t under Tenn. Code Ann. § 40-35-114(1).

-23-kidnapping and rob bery. He argue s that there is no evidence to suggest that the appellant was the leader, but merely shows that the appellant and Weaver participated equally in the offenses.

The proof a t trial showed that the ap pellan t initially we nt insid e Rup pel’s home. After finding Ruppel asleep in her bedroom, he placed a gun un dernea th her chin and forced her out of bed. He placed a gun to her back and led her down the hallway. The appellant and Weaver then forced the victim to leave her home, and the appellan t drove the victim’s car to an AT M ma chine. R uppel testified that the driver of the car was the perpetrator who gave her instructions on what she was to do. Ruppel also testified that when sh e withdrew the m oney, she gave it to the driver. When Weaver and the appellant divided the money, the appellant took a larger portion, claiming “he did more so he dese rved more .”

W e conclude tha t the trial court properly considered that the appellant was a leade r in the c omm ission of the offenses as an enhancement factor for the offenses of aggravated burglary, aggravated kidnapping and robbery. Tenn. Code A nn. § 40-35-1 14(2).

3. Vulne rability of the Victim

The appellant argues that the trial court erred in applying Tenn. Code Ann. § 40-35-114(4), that the victim was particularly vulnerable because of a physical disability, to his con viction for aggravated rape. The stipulated facts as recited during the guilty plea procee dings were that the appellant “chok ed the victim u ntil she pass ed ou t and th en rap ed he r while s he wa s, in fac t, unco nscio us.” W e believe that the victim’s unconscious state was a physical disability which rendered her incapable of resisting the rape as contemplated by the statute. See State v. Adams, 864 S.W.2d at 35 (holding that this factor “can be used in an aggravated rape case if the circumstances show that the victim, beca use o f his

-24-age or physica l or men tal condition , was in fac t ‘particularly vu lnerable,’ i.e., incap able of resis ting, su mm oning help, o r testifying against the p erpetrator”); State v. Bobby Burns, C.C.A. N o. 03C 01-940 6-CR -00208 , 1995 T enn. C rim. App. LEXIS 457, at *3 , Blount C ounty (T enn. C rim. App . filed June 2, 1995, at Knoxville). The trial court pro perly applied this enh ancem ent factor.

4. Excep tional Crue lty

The appe llant ne xt challe nges the trial c ourt’s application of Tenn. Code Ann. § 40-35-114(5) to his con viction for ag gravated kidnapp ing. The trial court applied this enhancement factor because the appellant and Weaver forced the victim to leave her home and would not allow her to check on h er sixteen (16) month old daughter who was sleeping in the next room. The trial court recognized the “mental anguish” associated with the victim not knowing the safety or condition of her child. The trial court stressed that cruelty includes mental cruelty and found that the victim was subjected to mental cruelty by not knowing whether her child was safe. However, this Court has held that this enhancement factor is typically applied where the victim is subjected to physical abuse or torture. State v. Williams, 920 S .W .2d 24 7, 259 (Ten n. Crim . App. 1 995). W hile this Cour t in no w ay wish es to d iminis h the vic tim’s m ental a nguish by not knowing the condition of her daughter, we do not believe that this constitutes “exceptional cruelty” as contem plated by the statute . Therefore, the trial cou rt impro perly conside red Te nn. Code Ann. § 40-35-114(5) as an enhancement factor for the appellant’s conviction for aggravated kidnapping.

5. Previou s Histo ry of Unw illingnes s to Co mply

The appellant asse rts that Tenn. C ode Ann . § 40-35-114(8) was inapp licable to all of his convictions . He cla ims th at the tria l court a pplied this factor because he was on juvenile probation a t the time the offens es were

-25-committed, and this can not be the basis for the app lication of this fa ctor. W e agree. This C ourt ha s held that there must be a previous history of unwillingness to comply and has rejected the application of Tenn. Code Ann. § 40-35-114(8) mere ly because the defendant was on probation at the time the subject offense was comm itted. State v. Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995 ). Because there is no indication that the appellant previously failed to com ply with a sentence involving release into the community other than by committing the present offenses, the trial court err oneously applied Tenn. Code Ann. § 40-35-114(8) to all of the appellant’s convictions.

6. High Ris k to Hum an Life

The appellant further contends that the trial court erred in applying Tenn. Code Ann. § 40-35-114(10), no hesitation about committing a crime when the risk to human life was high, to his conviction for aggravated rape. In State v. Jones, 883 S.W.2d 597, 603 (Tenn. 1994), the Supr eme Cour t held th at this enhancement factor is properly applied where the defendant demonstrates “a culpab ility distinct from and appreciably greater than that incident to the offense for which he was convicted.” The victim testified at the sentencing hearing that the appellant choked her until she became unconscious and then raped her wh ile she was in an unconscious state. Jesus Weaver testified that the appe llant told him that he choked the victim “until she turned blue.” In add ition, the victim stated that the appellant employed a gun and a knife during the commission of the offense. W e conclude that the app ellant’s actio ns dem onstrate “a culpab ility distinct from and appreciably greater than” that wh ich is incident to the crime of aggravated rape. The trial cou rt properly applied this en hancem ent factor.

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7. Grea t Poten tial for Bo dily Injury to a V ictim

Finally, the appellant contends that the trial c ourt er red in applying Tenn. Code Ann. § 40-35-114(16) to his conviction s for aggravated burglary, aggravated kidnapping, rob bery and ag gravated robb ery. With reg ard to the appe llant’s convictions for aggravated burglary, aggravated kidnapping and aggravated robbery, we must agree. In State v. S mith, 891 S.W.2d 922, 930-31 (Tenn. Crim. App. 1994 ), this Co urt held that the re is a g reat po tential fo r bodily injury in every aggravated burgla ry and abse nt extra ordina ry circum stanc es, this factor may not be used to enhance a defendant’s sentence for aggravated burglary. Similarly, this Court has determined that Tenn . Code Ann. § 40-35-114(16) is inherent in every aggravated robbery committed with a deadly weapon. State v. Claybrooks, 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994); State v. Randy Lee Carver, C.C.A. No. 03C01-9301-CR-00027, 1995 Tenn. Crim. App. LEXIS 11, at *6, Ham blen Coun ty (Tenn . Crim. App. filed January 9, 1995, at Knoxville). Moreover, Tenn. Code Ann. § 40-35-114(16) cannot be used as an enhancement factor for the o ffense of agg ravate d kidn appin g as it is in heren t in the offense. State v. Kern, 909 S.W .2d 5, 7-8 (Ten n. Crim. App . 1993). Therefore, the trial court imp roperly ap plied Te nn. Co de Ann . § 40-35-1 14(16) to the appe llant’s convictions for aggravated burglary, aggravated kidnapping and aggravated robbery.

Howeve r, the trial court did not err in applying Tenn. Code Ann. § 40-35-114(16) to the appellant’s conviction for robbery. Although the jury convicted the appellant of the lesser included offense of robbery, the trial court found that the appellant and Weaver were armed during the commission of the robb ery. Clearly, there was a g reat pote ntial for bodily injury to the victim during the commission of this offens e. See State v. Lavender, 967 S.W.2d 803, 808 (Tenn.

-27-1998). This enha nceme nt factor was ap propriately applied to the rob bery conviction.

8. Conclusion

The trial cou rt appr opriate ly applied T enn. C ode An n. § 40-35-114 (1), (2), (4) and (10) as enhancement factors in this case. Furthermore, for the appe llant’s robbery conviction, Tenn. Code Ann. § 40-35-114(16) was applicable. The trial court misapplied enhanc eme nt facto r (8) to a ll of the a ppella nt’s convictions. Tenn . Cod e Ann . § 40-3 5-114 (5) is ina pplica ble to th e app ellant’s aggravated kidnapping conviction, and Tenn. Code Ann. § 40-35-114(16) does not apply to appellant’s convictions for aggravated burglary, aggravated kidnapping and aggra vated robbe ry.

Although the trial cour t misapp lied certain enhancement factors, the appellant is not nec essarily en titled to a red uction in h is sentences. State v. Lavender, 967 S.W.2d at 809. Under this Court’s de novo review, we find that Tenn. Code Ann. § 40-3 5-114 (1) app lies to a ll of the a ppella nt’s co nviction s. This Court is authorized to consider any enhancing or mitigating factors supported by the record even if not relied upo n by the trial c ourt. See State v. S mith, 910 S.W.2d 457 (Ten n. Crim. App . 1995). The appellant’s criminal history is entitled to great w eight, e spec ially in light of the quantity and magnitude of the crimes committed. Even though the trial court considered various mitigating factors, it is clear that the court afforded the m little weight, if any. 6 It is within the trial court’s discretion to determine the weight afforded enhancement and mitigating

6 W e find it ques tiona ble w heth er two of the se m itigatin g fac tors s hou ld app ly in this c ase . First , although the appellant was fifteen (15) at the time of the offenses, there is no evidence in the record that he lack ed sub stantial judg men t becau se of his yo uth. Tenn. Code Ann. § 40-35-113(6). Moreover, the trial court co nsidere d the app ellant’s rem orse du ring a police interrogatio n as a m itigating facto r. However, the appellant’s statements to law enforcement authorities were deemed involuntary by the trial court and were, therefore, suppressed at trial. This Court seriously doubts that the purposes of the Sentencing Act would be achieved by the consideration of an “involuntary” statement as a mitigating factor. See Tenn. Code A nn. § 40-35-113(13).

-28-factors. State v. Santiago, 914 S.W.2d at 125. After a careful review of the record, we conc lude th at the tria l court im pose d app ropria te sen tence s of six (6) years for aggravated burglary, twelve (12) yea rs for aggravated kidnapping, five (5) years for robbery, ten (10) years for aggravated robbery, twenty (20) years for aggravated rape, and fou r (4) years for theft of prope rty.

This issu e is withou t merit.

D. Consecutive Sentencing

In his final issue, the appellant challenges the trial court’s imposition of consecu tive sentences. Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115. A trial court m ay ord er sen tence s to run cons ecutive ly if it finds that on e or m ore of th e statu tory crite ria exists by a preponderance of the evidence. Tenn . Code Ann. § 4 0-35-11 5(b); State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Additionally, a trial court must also find that an extended sentence is “necessary to protect the public against further criminal conduct by the defendant and that the cons ecutive sente nces mus t reaso nably relate to the severity of the offense s comm itted.” State v. Wilkerson, 905 S.W.2d 933, 939 (T enn. 1995 ).

With regard to Counts One, Two, Three and Eleven, the trial court based consecu tive sente ncing on a fin ding th at the a ppellant committed the offenses while he was on prob ation. Tenn. Code Ann. § 40-3 5-115(b)(6). T he trial court further found that the appellant was a dangerous offender and an offend er with an extensive record of criminal activity. Tenn. Code Ann. § 40-35-115(b)(2) and (4). Therefore, the court ordered that the appellant’s sentences in Counts Eight and Nine would ru n cons ecutively to his sentences in Counts One, Two, Three and Eleven.

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W e agree with the trial court that the appellan t is a dangerous offender “whose behavior indicates little or no regard for human life, and no hesitation about comm itting a crime in which th e risk to hu man life is high.” 7 Tenn. Code Ann. § 40-35-115(b)(4). The appellant was convicted of six (6) felonies, four (4) of which involve violen ce to ano ther hum an bein g. The fa cts and circumstances surrounding these offenses clearly show the appellant’s disregard for human life. The evidence showed th at ma ny of the se crim es too k place in the a ppella nt’s own neighborhood. The appellant and his accomplice preyed upon these innocent victims while they slept in their homes. Clearly, the appellant is an offender for whom incarceration is a prio rity. See Tenn. Code Ann. § 40-35-102(5 ). Furth ermo re, an e xtend ed se ntenc e is “necessary to protect the public against further criminal conduct by the defendant” and the consecutive sentences are reasonably related “to the severity of the offense s comm itted.” State v. Wilkerson, 905 S.W .2d at 939. We, therefore, conclu de that the trial court properly imposed consecutive sentences in this case.

This issu e has n o merit.

CONCLUSION

After thoroughly reviewing the record on appeal, we conclude that there is no reversible error. Accordingly, the judgment of the trial court is affirmed.

____________________________________ JERRY L. SMITH, JUDGE

7 Because we find that consecutive sentences were appropriate under Tenn. Code Ann. § 40-35- 115(b)(4), we need not address the appellant’s contentions with regard to Tenn. Code Ann. § 40-35- 115(b)(2) and (6).

-30-CONCUR:

___________________________________ DAVID G. HAYES, JUDGE

___________________________________ NORMA MCGEE OGLE, JUDGE

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