State of Tennessee v. Tobias Senter, a/k/a Toby Senter

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 30, 2011

STATE OF TENNESSEE v. TOBIAS SENTER, a/k/a TOBY SENTER

Direct Appeal from the Circuit Court for Cocke County
No. 0411 Ben W. Hooper, II, Judge

No. E2010-02092-CCA-R3-CD - Filed October 6, 2011

The defendant, Tobias Senter, a/k/a Toby Senter, was convicted by a Cocke County Circuit
Court jury of first degree premeditated murder and sentenced to life imprisonment, to be
served consecutively to a life sentence imposed by a federal district court. On appeal, he
challenges the sufficiency of the evidence and the trial court’s imposition of a consecutive
sentence. After review, we affirm the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Bruce E. Poston, Knoxville, Tennessee, for the appellant, Tobias Senter, a/k/a Toby Senter.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; James B. Dunn, District Attorney General; and James B. Dunn and W. Brownlow
Marsh, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS

The defendant and co-defendant, Edward Leon Talley, were charged with first degree
premeditated murder and conspiracy to commit first degree premeditated murder1 arising out
of the killing of the victim, Michael Grimes, in April 2007 and disposing of his body in a
field near Interstate 40 in Cocke County, Tennessee.

1
It appears that the defendant was only tried on the first degree murder charge.
 State’s Proof

Franklin Davis, Jr. testified that in April 2007, he was looking for arrowheads in a
field near Interstate 40 in Cocke County when he discovered what appeared to be a body
lying on the ground. He called a friend who met him at the field and confirmed that it was
a body. They called 911 and waited for the police to arrive.

Darrell Henderson testified that in April 2007, his friend, Franklin Davis, Jr., called
him because he thought he had found a body in a field and was “freaked out.” Henderson
met Davis and confirmed that it was a body. The two men called 911 and waited for the
police to arrive.

Special Agent Forensic Scientist Denise Morrissey with the Tennessee Bureau of
Investigation (“TBI”) Crime Laboratory testified that she is the leader of the Violent Crime
Response Team, a group within the TBI that assists local agencies in investigating major
crimes. On April 11, 2007, Agent Morrissey and her team were called to a location in Cocke
County “off of O’Neal Road around Mile Marker . . . 439.” At the scene, the team located
the body of the victim and a single tan Timberland boot nearby. Some distance away, they
also observed reddish-brown stains on the side of a tree close to the Pigeon River and the
other boot about halfway down the bank of the river.

The parties agreed to the following stipulation:

[A] silver Nissan Maxima was seized on April 11, 2007, and it was
impounded for two days. And then on the 13th of April, 2007, it was put on
a wrecker and taken to the Crime Lab in Nashville, Tennessee. And it was
processed then on or about April the 27th, 2007, by the Crime Lab in
Nashville.

Special Agent Forensic Scientist Patrick Ihrie in the DNA and Serology Unit of the
TBI Crime Laboratory testified that he examines biological evidence, namely blood, semen,
and saliva, to determine the contributors of the evidence. In April 2007, Agent Ihrie
examined a 2004 Nissan Maxima associated with this case. He found areas of blood in the
car, including two areas of blood on the carpet on the front passenger side floorboard, which
he tested. Agent Ihrie determined that the DNA from the blood on the carpet matched the
victim. Agent Ihrie also tested blood on the right boot collected from the crime scene as
well as a bloodstain from the tree, and the DNA on both matched the victim. Agent Ihrie
tested blood on a towel found in the car, and it was consistent with a mixture of two people.
However, the victim was excluded as a possible contributor of that blood.

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 Detective Robert Caldwell, Chief Detective of the Cocke County Sheriff’s
Department, testified that he responded to an isolated field off O’Neil Road around 2:30
p.m. on April 11, 2007, regarding the discovery of a body. Detective Caldwell identified
the body in the field as the victim. Detective Caldwell was aware that the victim had been
missing.

Travis Stewart testified that he knew both the victim and the defendant. On
Thursday, April 5, 2007, Stewart was at Freddy’s Bar when the defendant entered the
establishment and tried to choke him. Stewart fought back but eventually agreed to go
outside with the defendant. When Stewart got outside, the defendant, who was standing
beside a light-colored car, pulled a gun on him and told him to get in the car. Stewart got
in the car in the backseat on the passenger’s side. He recalled that the defendant was driving
and two other individuals were also in the car.

Stewart testified that the defendant drove to various locations while questioning him
about the whereabouts of the victim, whom he referred to as “Mikey,” and Gregory Thomas,
whom he referred to as “Frog.” The defendant said that the victim and Thomas had stolen
something from him, which Stewart later learned to be money. Stewart told the defendant
that he did not know where to find the victim. Stewart clarified that only the defendant
asked the questions.

Stewart testified that the defendant eventually drove to “The Slab” restaurant because
the defendant had heard Thomas lived nearby. Although the victim knew where Thomas
lived, he did not tell the defendant. When Stewart failed to provide any information, the
man sitting next to him in the backseat began punching him. The defendant eventually
stopped the vehicle, they all got out of the car, and Stewart “took a beating.” Stewart
elaborated that the men kicked and punched him in the neck and back. However, he did not
bleed, suffer any broken bones, or require stitches. Stewart told the men that he needed to
go to the restroom and ran. He called his girlfriend, and she picked him up near The Slab.
Stewart later learned that the victim and Thomas had stolen money from the defendant.

Stewart testified that he saw the victim on Saturday morning, April 7, 2007, at the
victim’s grandmother’s house and told him that the defendant, Leon Talley, and a third man
were looking for him. Stewart saw the victim later that day at a gas station and advised him
that he should leave town. The victim asked why he needed to leave, and Stewart told him
“it was over money.” The victim asked Stewart if the defendant and his associates were
“serious,” and Stewart told him that “they meant business.”

On cross-examination, Stewart admitted that his April 11, 2007 statement to
Detective Fraley noted that Stewart did not know who the two men were with the defendant

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even though he, in fact, knew Leon Talley. However, Stewart explained that “[he] thought
that [he] had told them [he] knew Leon Talley was in the car[,]” and he did not read the
statement before signing it. Stewart also admitted that he told Detective Fraley in his
statement that in February 2007, he and Thomas stole twelve ounces of cocaine from the
defendant, and he sold his share in approximately a week. However, Stewart said that his
share was actually stolen. He also said that “[he] know[s] that [he] could not sell no six
ounces in about a week’s time.” Stewart stated that “[a]t the time, [he] didn’t want to get
Mr. Thomas into anything,” but he agreed that he had already implicated Thomas.

Kaden Haney, who was thirteen years old at the time of the incident, testified that he
knew the defendant and saw him at the victim’s house on Easter Sunday of 2007. The
defendant was on the front porch of the victim’s house, and Haney asked him a question.
The defendant told Haney, “Go on right now. This is grown man business.” Haney saw the
victim exit the house, get into the backseat of the car the defendant was driving, and leave.
He also saw someone in the front passenger’s seat of the car but did not recognize him.
Haney acknowledged that no one was screaming or yelling.

Terrence Davidson, who was fifteen years old at the time of the offense, testified that
he saw the defendant at the victim’s house on Easter Sunday of 2007. Davidson saw the
victim exit his house and talk to the defendant, whom he knew as “T-Mack.” Davidson saw
a car drive off, but he did not see who was driving or if the victim got into the car.

Dr. Darinka Mileusnic-Polchan, Chief Medical Examiner for Anderson and Knox
Counties, testified that Dr. Jeff Johnson, a forensic pathologist, performed the autopsy on
the victim and prepared a report. Dr. Mileusnic-Polchan reviewed Dr. Johnson’s report and
the slides and photographs taken during autopsy.

Dr. Mileusnic-Polchan stated that the victim’s cause of death was a gunshot wound
to the head. She explained that the bullet entered the victim’s head from the left side and
slightly toward the back. The bullet perforated the victim’s brain and continued downward
into the neck. The bullet, which was recovered in the victim’s upper neck muscle, was a
slightly deformed, medium-caliber, copper-jacketed bullet. She hypothesized that the victim
was shot from a distance of at least two or three feet.

Dr. Mileusnic-Polchan noted that the victim also had bruises and abrasions on his
face, arms, and legs. A cluster of post-mortem abrasions on the victim’s torso, abdomen,
chest, and back looked like “brush burn” or a dragging injury. Blunt force trauma to the side
of the victim’s head was consistent with having been hit with an object.

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 Glenda (“Tina”) Cate testified that she saw the defendant at Bear Pruitt’s house on
the evening of Easter Sunday 2007. The defendant offered to give her drugs in exchange
for sex, and they “had words.” Later, around 1:30 a.m., the defendant and two girls woke
Cate up, and the defendant asked her to follow him to the interstate. When they got outside,
the defendant, who was “high,” grabbed Cate on the buttocks, and she told him to stop. Cate
hit the defendant and noticed what appeared to be blood on his shoulder under his jacket.

Cate testified that she got in her car and followed the defendant to the interstate. She
saw the defendant throw something resembling a brown paper bag out his window. She
explained that she drove directly behind the defendant so no one could see his license plate.
Cate then returned to Bear Pruitt’s house. She gave a statement to police on April 11, 2007;
however, she acknowledged that she did not mention in her statement that the defendant had
thrown something out the window. She explained that she never mentioned it previously
because she had lupus and “it just slipped [her] mind.”

TBI Agent Greg Monroe testified that, in March 2007, he was investigating the
defendant regarding the defendant’s drug activities. As part of that investigation, he sought
and obtained an order from a federal judge to place a tracking device on a silver Nissan
Maxima. The device was temporarily removed following an accident, then replaced on
March 31, 2007 by Agent Monroe and Jim Marcum, an investigator with the Knoxville
Police Department. Agent Monroe later downloaded information from the device, placed
it on a disc, and gave it to Investigator Marcum. On cross-examination, Agent Monroe
acknowledged that he was aware of an instance when someone other than the defendant had
driven the car.

Investigator Jim Marcum of the Knoxville Police Department’s Organized Crime
Unit testified that, in March 2007, he and Agent Monroe placed a tracking device on a gray
or light-colored Nissan Maxima. He explained that the device worked like a GPS unit and
stored the locations traveled to in its memory. Investigator Marcum later received
information downloaded from the device by Agent Monroe. The information showed,
among other things, that, on April 8, 2007, the vehicle traveled from a location on White
Oak Avenue in Newport to a location off O’Neil Road near Interstate 40 where the victim’s
body was found, and it stopped there for “a couple minutes.” The car resumed travel and
returned to O’Neil Road at 7:07 p.m.

Hope Hastings testified that she was traveling westbound on Interstate 40 near
Newport around 7:00 p.m. on April 8, 2007, which was Easter Sunday. She observed a
light-colored car in a field, and two people dragging something “large and heavy looking.”
Likewise, Cliff Hastings testified that on April 8, 2007, he and his wife, Hope, were driving
home to Knoxville from South Carolina. Around 7:00 p.m., they were on Interstate 40 near

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Newport. Mr. Hastings saw a silver or light-colored Nissan Altima or Maxima in a field,
and two people “carrying something that looked heavy.”

Todd Douglas testified that sometime on or around April 6, 2007, the defendant told
him that he had been robbed and that Gregory Thomas, Travis Stewart, Sheena Coggins,
who was the defendant’s girlfriend, and the victim were responsible. On Monday, April 9,
2007, the defendant and Leon Talley came to his house. Douglas and the defendant talked
alone in Douglas’ bathroom in the basement, during which the defendant said that he shot
“him” in the head. Douglas asked to whom he was referring, and the defendant said, “The
agent’s boy.” Douglas assumed the defendant meant the victim because the victim’s uncle
was an agent. The defendant told Douglas that the shooting occurred “up on the river.”
Douglas assumed “up on the river” referred to Keith Hicks’s residence because Hicks lived
on the river.

On cross-examination, Douglas admitted that he was presently in federal custody
because he was involved in a drug conspiracy along with the defendant. He also admitted
that, by the time he talked to the authorities with regard to the present case, it was common
knowledge that the victim had been shot in the head and found by the river. Douglas
acknowledged that he told the authorities when he was arrested that he would only talk
about the homicide of the victim and not anything related to drugs.

Edward Leon Talley, the co-defendant, testified that he pled guilty to facilitation of
first degree murder in this case and would be sentenced to fifteen to twenty-five years,
served at thirty percent, at a later date. He acknowledged that he had other prior felony drug
convictions and was currently serving a ten-year federal sentence at eighty-five percent. He
admitted that his sentence for the present offense could possibly run concurrently with his
federal sentence.

Talley testified that he had known the defendant since they were young. In April
2007, he was staying at the defendant’s house, but he did not have a key to the house. On
Thursday, April 5, 2007, Talley arrived home to find the back door to the house unlocked
and the window open. Talley went inside and called the defendant to tell him that the back
door was unlocked. The defendant told Talley that he would be home shortly.

Talley testified that, meanwhile, Sheena Coggins, the defendant’s girlfriend, arrived
with her mother. Coggins called the defendant and told him that she believed someone had
been in the house because some of her jewelry was missing. When the defendant arrived,
he discovered that $75,000 was missing from his bedroom. The defendant and Coggins
went into the defendant’s bedroom to talk about the missing money. When they emerged,
the defendant told Talley that Coggins had tried to implicate Talley in the theft, but the

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defendant did not believe her.

Talley testified that the following night, Friday, he and the defendant went to
Freddy’s Bar in Newport. The defendant was driving a Nissan Maxima, and Talley was
sitting in the front passenger’s seat. Talley remained in the car, while the defendant went
inside the bar. The defendant returned with Travis Stewart, who sat in the backseat.
According to Talley, Stewart got into the car willingly. Talley did not recall anyone else
being in the car with them.

Talley testified that the defendant drove around looking for Gregory Thomas, while
asking Stewart where to find him. Stewart told the defendant that he did not know Thomas’
location, “but he thought he knew where his baby’s mama stayed[.]” Talley stated that the
defendant believed Stewart, Sheena Coggins, Gregory Thomas, and the victim were
involved in the theft. Talley said that neither he nor the defendant hit, punched, or
threatened Stewart the entire time. At some point, Stewart said that he needed to use the
bathroom, so the defendant pulled over. Stewart got out of the car and ran. The defendant
and Talley circled the block, but, unable to find Stewart, they returned to the defendant’s
home.

Talley testified that on Easter Sunday, April 8, 2007, he went with the defendant to
Bear Pruitt’s house in Cocke County for four or five hours. Around 6:00 or 7:00 p.m., they
left to go look for the victim. They learned that the victim’s grandmother lived on White
Oak Avenue and went to her house. The defendant knocked on the door and asked if the
victim was there. The victim came outside and talked to the defendant in the front yard for
a few minutes. The victim went back in the house briefly, came outside, and willingly got
in the backseat of the car behind the defendant, who was driving.

Talley testified that the defendant drove around and questioned the victim about the
break-in at the defendant’s house and about how to get in touch with Thomas. The victim
responded that he had nothing to do with the break-in at the defendant’s house and that he
did not know how to get in touch with Thomas or where he was located. The defendant
drove to a field known as the “bean patch” and told the victim to get out of the car. The
victim got out of the car, and the defendant hit him with a nine-millimeter gun and said, “I’m
going to teach you all about stealing from me.” The defendant then shot the victim. Talley
estimated that the shooting occurred around 6:30 or 7:00 p.m. and noted that they could see
the interstate from the field.

Talley testified that, after the shooting, the defendant rolled the victim over and told
Talley to grab him by the legs. The defendant grabbed the victim’s upper body, and they
moved the victim “next to a tree down by the river.” They then returned to the car and left

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the scene. He estimated that they were in the bean patch only two or three minutes. Talley
recalled that the defendant had said, when they were leaving the house earlier that day, “that
if he found anybody who . . . got his money that he was going to take care of them.”

Talley testified that the defendant put the gun on the floorboard on the passenger’s
side, where it remained until they stopped at a vacant store down the street from Sheena
Coggins’ parents’ house. The defendant took the gun, wrapped it in the floor mats, and put
it in the trunk of the car. The defendant told Talley that “he was going to get rid of the gun,
the clothes, everything.” They picked up Coggins at her parents’ house and then went to the
defendant’s house. Talley could not explain how blood got on the carpet under the floor mat
if the gun was lying on the floor mat.

Talley noted that the defendant’s gun was black and gray, even though he said in his
statement to police that the defendant had a blue gun. Talley explained the discrepancy by
saying, “As time goes on, your memory gets better.” Also, confronted with his statement
in which he told the police that he refused to help the defendant move the victim’s body so
the defendant had to do it himself, Talley explained, “Just at the moment . . . I was just trying
to cover myself.” Asked about the time he and the defendant went to Todd Douglas’ house,
Talley stated that he was with the defendant and Douglas throughout the entire visit and they
did not talk about the shooting.

Defendant’s Proof

The defendant acknowledged that he was a drug dealer, that he had prior felony drug
convictions, and that he was serving a life sentence in federal prison. He said that he came
to court to clear his name because he was not a murderer.

The defendant testified that, at the time of the murder, Leon Talley was living at his
house and “selling dope for [him].” The defendant was dating Sheena Coggins, who had
previously dated Gregory Thomas. Coggins was aware that the defendant sold drugs and
often saw the money.

One day, the defendant and Coggins went to Morristown and returned home to
discover that $75,000 had been stolen from his house, some of which he needed to pay his
suppliers. The defendant said that Coggins tried to blame Talley for the theft, but the
defendant did not believe her. Instead, he thought that Gregory Thomas, Travis Stewart, the
victim, and Coggins were responsible.

The defendant admitted that he interrogated Travis Stewart on April 6, 2007, but said
that he was only trying to find out about his missing money and did not strike or threaten

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Stewart. He said that he located Stewart at Freddy’s Bar, and Stewart willingly got into the
car with him.

The defendant testified that on Easter Sunday, April 8, 2007, he was driving his
uncle’s gray Nissan Maxima and Leon Talley was with him. At the victim’s house on White
Oak Avenue, the defendant knocked on the door and talked to the victim. The victim went
back inside to get dressed, then got in the car with the defendant and Talley. During the
drive, the defendant questioned the victim about his money, “trying to coerce him into
telling me that I know he got my money.” However, the victim said “he ain’t got nothing.
He heard [Thomas] and [Coggins] did it.” The defendant also asked the victim where
Thomas lived, but the victim did not tell him.

The defendant testified that he wanted to know who took his money and where it was
located, so he drove to a field by the river to interrogate the victim. He explained that he
wanted to get the victim in unfamiliar territory as a “[f]ear tactic.” The defendant said that
he stopped the car, and all three men got out of the vehicle. He continued to question the
victim, and the victim responded that he heard it was Coggins and Talley who committed
the theft. According to the defendant, Talley then “hit [the victim], cocked the hammer, and
shot him.” He said that he did not do anything because he was “in shock.”

The defendant testified that he and Talley picked up the victim’s body and moved it
a short distance, placing it on an incline. The defendant said that he cursed at Talley for
killing the victim and was angry because he was not going to be able to retrieve his money.
The defendant said he had no intention of hurting the victim and only wanted his money
returned.

The defendant testified that, after disposing of the victim’s body, he drove away from
the scene. They had only been in the field a brief amount of time. He said that he stopped
at Coggins’ house so Talley could take off his shirt, wrap up the gun, and throw it in a trash
can at an abandoned store. The defendant denied personally wrapping the gun in a floor
mat, explaining that there were no floor mats in the car.

The defendant admitted to having guns at his home but said that none of the guns
were ever linked to this crime. He also admitted that he had been “ripped off” of large sums
of money in the past, which made him “[d]isappointed” in those people.

After the conclusion of the proof, the jury convicted the defendant as charged of first
degree premeditated murder.

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 ANALYSIS

I. Sufficiency of the Evidence

The defendant challenges the sufficiency of the convicting evidence, arguing that “[i]t
was at least equally plausible that [Leon] Talley killed [the victim]” and that the State did not
prove the element of premeditation. When the sufficiency of the convicting evidence is
challenged, the relevant question of the reviewing court 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); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans,
838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim.
App. 1992).

All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “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). Our
supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).

“A jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has
the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).

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 First degree murder is “[a] premeditated and intentional killing of another[.]” Tenn.
Code Ann. § 39-13-202(a)(1) (2006). “Premeditation” is defined in our criminal code as

an act done after the exercise of reflection and judgment. “Premeditation”
means that the intent to kill must have been formed prior to the act itself. It is
not necessary that the purpose to kill pre-exist in the mind of the accused for
any definite period of time. The mental state of the accused at the time the
accused allegedly decided to kill must be carefully considered in order to
determine whether the accused was sufficiently free from excitement and
passion as to be capable of premeditation.

Id. § 39-13-202(d).

Whether premeditation exists in any particular case is a question of fact for the jury
to determine based upon a consideration of all the evidence, including the circumstantial
evidence surrounding the crime. See State v. Suttles, 30 S.W.3d 252, 261 (Tenn. 2000);
State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Pike, 978 S.W.2d 904, 914
(Tenn. 1998). Facts from which the jury may infer premeditation include the defendant’s
declaration of an intent to kill the victim; the use of a deadly weapon upon an unarmed
victim; the establishment of a motive for the killing; the particular cruelty of the killing; the
infliction of multiple wounds; the defendant’s procurement of a weapon, preparations to
conceal the crime, and destruction or secretion of evidence of the killing; and the defendant’s
calmness immediately after the killing. State v. Jackson, 173 S.W.3d 401, 409 (Tenn. 2005);
State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v. Leach, 148 S.W.3d 42, 54
(Tenn. 2004); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000); Bland, 958 S.W.2d at 660.

In the light most favorable to the State, the evidence was sufficient for a rational trier
of fact to find beyond a reasonable doubt that the defendant killed the victim after the
exercise of reflection and judgment. The evidence shows that the victim’s body was found
in an isolated field near Interstate 40 in Cocke County on April 11, 2007. The medical
examiner determined that the victim had died from a gunshot wound to the head. The
medical examiner also noted that the victim had post-mortem abrasions on his mid-section
consistent with a dragging injury, as well as blunt force trauma to the side of the head
consistent with having been hit with an object.

Leon Talley, the co-defendant in this case, testified that $75,000 was stolen from the
defendant’s house, and the defendant believed that the victim, Travis Stewart, Gregory
Thomas, and Sheena Coggins were responsible for the theft. The day after the theft, the
defendant and Talley went to a local bar where the defendant found Travis Stewart, who got
into the car with them. The defendant drove around while questioning Stewart about how

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to find Thomas. Stewart eventually got out of the car and ran.

On Easter Sunday, April 8, 2007, the defendant and Talley located the victim at the
victim’s grandmother’s house on White Oak Avenue and, after talking to the defendant, got
into the Nissan Maxima the defendant was driving. The defendant drove around and
questioned the victim about the missing money and how to find Thomas, but the victim did
not provide any information. The defendant then drove to a field known as the “bean patch”
and told the victim to get out of the car. The victim got out of the car, and the defendant hit
him with a nine-millimeter gun and said, “I’m going to teach you all about stealing from
me.” The defendant then shot the victim. Talley helped the defendant move the victim’s
body closer to the river, and they left the scene. The defendant put the gun on the
passenger’s side floorboard and later disposed of it.

Travis Stewart testified about the defendant’s driving him to various locations while
questioning him about how to find the victim and Thomas. Stewart escaped and later told
the victim he needed to leave town because the defendant was looking for him and he
“meant business.” Todd Douglas testified that, prior to the murder, the defendant told him
that he had been robbed and that the victim was involved. The day after the murder the
defendant told him that he had shot “[t]he agent’s boy” in the head “up on the river.”
Douglas assumed the defendant meant the victim because the victim’s uncle was an agent.

Two witnesses, Kaden Haney and Terrence Davidson, saw the defendant talking to
the victim at the victim’s house on White Oak Avenue on Easter Sunday 2007. Haney saw
the victim get into the defendant’s car. Tina Cate saw the defendant the evening of Easter
Sunday 2007 and noticed that he had blood on his shirt. Later that night, she followed the
defendant to the interstate, staying directly behind him so no one could see his license plate.
Cate observed the defendant throw something out the window.

A tracking device on the Nissan Maxima the defendant was driving showed that the
car stopped at a location on White Oak Avenue the evening of April 8, 2007, and then
traveled to the field where the victim’s body was discovered. The car left the field at 7:07
p.m. Two witnesses, Hope and Cliff Hastings, were traveling westbound on Interstate 40
near Newport around 7:00 p.m. and observed a light-colored car in a field and two men
carrying something that appeared heavy. The Nissan Maxima was seized following the
murder. TBI Agent Patrick Ihrie located areas of blood on the passenger’s side floorboard
of the car. The blood matched the victim.

The defendant admitted that he believed the victim had stolen money from him and
interrogated him about the theft on Easter Sunday 2007. However, the defendant claimed
that it was Talley who shot the victim after the victim suggested that Talley had committed

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the theft.

The jury heard all of the evidence, including the defendant’s assertion that it was
Talley who shot the victim, and obviously accredited the testimony of the State’s witnesses
instead of that of the defendant, as was its province. In addition, as outlined above, the State
presented sufficient evidence to establish the element of premeditation, including a motive
for the killing, the defendant’s declaring to the victim that he was “going to teach [him]
about stealing from [him],” shooting an unarmed victim, moving the body, and disposing
of the gun.

II. Sentencing

The defendant also challenges the trial court’s order that his life sentence be served
consecutively to his federal life sentence.

The trial court conducted a sentencing hearing at which Janea Grimes, the victim’s
sister, read a statement prepared by their mother, Renee Hannon. In the statement, Hannon
said that her son’s death had changed her family forever. She explained that the victim was
“just beginning to experience life . . . [and] treated everyone with respect.” She asked that
the defendant take responsibility for his actions, noting that his life had been spared and he
still had the opportunity to change.

TBI Agent Greg Monroe, who was also a member of the Federal Drug Task Force,
testified that he was the lead agent in a federal drug conspiracy investigation involving the
defendant. The investigation began in the spring or summer of 2006 and concluded in April
2007. Agent Monroe testified that the criminal acts for which the defendant was convicted
in federal case number CR3-07-42 were committed prior to the day of the victim’s death,
Easter Sunday 2007. During the course of his investigation, Agent Monroe became familiar
with the defendant’s background and history and noted that, to his knowledge, from 2006
to 2007, the defendant did not have any gainful employment other than selling controlled
substances. Agent Monroe acknowledged that the defendant had not been arrested or on
bond on the federal charges at the time the victim was killed.

The State discussed a sentencing memorandum it had previously filed with the court.
The State argued that Tennessee Rule of Criminal Procedure 32(c)(B)(2) required that the
defendant be sentenced consecutively because he had an unserved federal sentence, unless
the court found good cause for running the sentence concurrently. The State also asserted
that the defendant was a professional criminal and persistent offender within the meaning
of Gray v. State, 538 S.W.2d 391 (Tenn. 1976).

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 In sentencing the defendant, the court adopted the sentencing memorandum submitted
by the State “as being supportive of the Court’s decision.” The court noted that the
defendant qualified as a professional criminal and a persistent offender. The court also
noted that “under all these circumstances that [it] would have to consider and find [the
defendant] to be [a] dangerous [offender].” The court observed that even though the
defendant was given a life sentence in the federal system, he “move[d] up in the seriousness
and the severity of the offense[.]” The court concluded that “it would destroy respect for the
law in this community” if “an act of murder [was] diluted by running it concurrently with
[the defendant’s] federal sentence.”

When an accused challenges the length and 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) (2006). This presumption 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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
presumption does not apply to the legal conclusions reached by the trial court in sentencing
the accused or to the determinations made by the trial court which are predicated upon
uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State
v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163,
166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d
1, 9 (Tenn. 2000).

In conducting a de novo review of a sentence, this court must consider (a) any
evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the
principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)
the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g)
any statistical information provided by the administrative office of the courts as to Tennessee
sentencing practices for similar offenses, (h) any statements made by the accused in his own
behalf, and (i) the accused’s potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001). The party challenging the sentence imposed by the trial court has the
burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2006),
Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169.

Tennessee Rule of Criminal Procedure 32(c)(2)(B) provides:

If, as the result of conviction in another state or in federal court, the defendant has
any additional sentence or portion thereof to serve, the court shall impose a sentence
that is consecutive to any such unserved sentence unless the court determines in the

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 exercise of its discretion that good cause exists to run the sentences concurrently and
explicitly so orders.

This court has previously observed that the “shall” language in the rule “connotes a
requirement that the [d]efendant’s state and federal sentences run consecutively to each
other, absent ‘good cause’ to order otherwise[,] [and] places a finding of ‘good cause’ solely
within the discretion of the trial court.” State v. Darrin Toni Webb, No.
E2006-00736-CCA-R3-CD, 2007 WL 642071, at *6 (Tenn. Crim. App. Mar. 5, 2007).

We conclude that the trial court did not abuse its discretion in ordering consecutive
sentencing. It is apparent from the trial court’s findings at the sentencing hearing that it did
not find good cause for sentencing the defendant concurrently. Foremost, the court adopted
the sentencing memorandum of the State, which asserted that the sentences should run
consecutively unless good cause was shown for concurrent sentencing and also that the
defendant was a persistent offender and a professional criminal. The memorandum alleged
the defendant’s numerous prior convictions and at least two revocations of probation. The
evidence shows that the defendant admitted to making his living as a drug dealer and that
he had no gainful employment other than selling drugs – at least during the time he was
under federal investigation. The court observed that the defendant was sentenced in the
federal court for a drug offense, but then “move[d] up in the . . . severity of the offense” by
committing first degree murder. Even if the trial court failed to find the Wilkerson factors
regarding the defendant’s being a “dangerous offender” under Tennessee Code Annotated
section 40-35-114(b)(4), such does not make consecutive sentencing erroneous in this case.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.

_________________________________
ALAN E. GLENN, JUDGE

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