State of Tennessee v. Joshua Lee Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 8, 2011

STATE OF TENNESSEE v. JOSHUA LEE BROWN

Appeal from the Criminal Court for Davidson County
No. 2007-A-708 Seth W. Norman, Judge

No. M2010-00437-CCA-R3-CD - Filed September 28, 2011

The Defendant, Joshua Lee Brown, was found guilty by a Davidson County Criminal Court
jury of two counts of felony murder; attempted first degree murder, a Class A felony; and
attempted especially aggravated robbery, a Class B felony. See T.C.A. §§ 39-13-202 (2006)
(amended 2007), 39-12-101 (2010), 39-13-403 (2010). He was sentenced to life
imprisonment without the possibility of parole for each of the felony murder convictions, to
twenty years’ confinement for attempted first degree murder, and to ten years’ confinement
for attempted especially aggravated robbery. The attempted first degree murder conviction
was ordered to be served consecutively to the remaining convictions, for an effective
sentence of life plus twenty years. On appeal, he contends that (1) the trial court erred by
denying his motion to redact a portion of the video evidence; (2) the trial court erred by
denying his motion to strike the State’s notice of intent to seek a sentence of life
imprisonment without the possibility of parole; (3) the trial court erred by denying his motion
to strike the felony murder aggravating circumstance from the State’s notice of intent to seek
a sentence of life imprisonment without the possibility of parole; (4) the trial court erred by
granting the State’s request to augment the pattern jury instruction on the “heinous, atrocious,
and cruel” aggravating circumstance; (5) the trial court erred by rejecting his requested
sentencing instruction regarding the statutory mitigating circumstance that he acted under the
substantial domination of another person; (6) his rights to due process and a fair trial were
violated when the trial court failed to give the jury meaningful guidance or directions as to
their deliberations during the punishment phase of the trial; (7) the trial court erred by
imposing partially consecutive sentences; and (8) the evidence was insufficient to establish
the “heinous, atrocious, and cruel” aggravating circumstance as to one of the victims during
sentencing. We conclude that although the trial court erred when giving a special jury
instruction, the error was harmless in light of the whole record. Furthermore, we conclude
that although the evidence was insufficient to establish an aggravating circumstance and the
trial court failed to make the necessary findings when imposing consecutive sentences, the
sentences imposed were appropriate. We affirm the judgments of the trial court.
 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and N ORMA M CG EE O GLE, JJ., joined.

C. Dawn Deaner, District Public Defender; Jeffrey A. DeVasher, Assistant District Public
Defender (on appeal); and J. Michael Engle and Joan A. Lawson, Assistant District Public
Defenders (at trial), for the appellant, Joshua Lee Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Thomas Thurman, Dina Shabayek, and
Jeff Burks, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

This case relates to an attempted robbery of an AMPM Discount Tobacco shop during
which two store employees, Salama Estfanous and Bishouy Hanna, were killed and one
customer, James Rayburn, was shot. At the trial, Mr. Rayburn testified that he was shopping
at AMPM Discount Tobacco on December 12, 2006, at approximately 9:15 p.m. He said that
he was a frequent customer at the store and that as he joked with Mr. Estfanous and Mr.
Hanna, two masked persons entered the store, one carrying a shotgun and the other carrying
a pistol. Everyone in the store was ordered to the ground, and the person holding the pistol
fired it into the air. Mr. Rayburn said that the persons asked Mr. Estfanous for money and
that when Mr. Estfanous stated he did not understand English, the person with the shotgun
shot Mr. Estfanous. He said that after Mr. Estfanous was shot, one of the masked persons
stated they would kill everyone in the store. Mr. Rayburn said they shot him in the back as
he lay face down on the ground and shot Mr. Hanna in the stomach as he lay on the ground.
He said the person with the pistol approached him, placed the gun to his head, and pulled the
trigger. He said he heard the pistol “click.” He said that he was able to call 9-1-1 after the
persons left the store and that the police arrived a few minutes later.

Mr. Rayburn testified that he was taken to the hospital but that he did not know how
long he remained there because he fell into a coma. He had four surgeries, including having
his colon and portions of his intestines removed. He said that the injury caused him daily
problems and that although he was formerly self-employed, he received disability benefits
at the time of the trial.

On cross-examination, Mr. Rayburn testified that he immediately dropped to the floor
when instructed to do so by the masked persons. He agreed he was face down on the floor
during the robbery. He agreed that although he saw one person with a shotgun and the other

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with a pistol when they entered the store, he was not able to see what occurred after he
dropped to the floor. He agreed that several shots were fired from both weapons, that the
person with the pistol went behind the counter, and that the person with the shotgun remained
in front of the counter. He agreed that he was not asked for money and that nothing was
taken from him. He said that during the robbery, a customer lay on the floor near the potato
chips.

Frederick Cowan testified that he was in the AMPM Discount Tobacco shop on
December 12, 2006, at approximately 9:15 p.m. He said that as he bought potato chips, a
man with a sawed-off shotgun forced him to the ground. He said that a shot was fired at his
head as he dropped to the ground but that the shot missed. Although he could not see the
faces of the persons who attempted to rob the store, he heard them ask the store clerk for
money. He said he spoke with the police and gave them a statement that night.

On cross-examination, Mr. Cowan agreed that two persons entered the store, one with
a sawed-off shotgun and the other with a handgun. He did not know if the person with the
handgun ordered people to the ground. He agreed that the entire encounter happened quickly
and that he heard a lot of yelling and shooting. On redirect examination, Mr. Cowan testified
that the man with the shotgun pointed the gun at his face and ordered him to the ground.

Metro Police Officer Dewan Daniels testified that he responded to a robbery and
shooting at the AMPM Discount Tobacco shop on December 12, 2006. He saw two men on
the floor near the cash register. Both men had been shot and one was not breathing. Another
man who had been shot was on the ground behind the register and was not breathing.

Mohab Khamis testified that in 2006, he owned the AMPM Discount Tobacco shop
located at 342 North Gallatin Road in Madison, Tennessee. He said seven security cameras
were located throughout the store. He drove to his store after being told of the shootings and
gave the police the recordings of the shootings. He said that the recordings showed the
masked persons touching the cash register and that he gave the register to the police to allow
them to obtain fingerprints from it. He said nothing was taken from his store during the
robbery.

Metro Police Officer Christopher Brennan testified that he arrived at the scene around
9:40 p.m. on December 12, 2006. He said that when he entered the store, he saw one victim
on the floor near the counter, one being treated by paramedics, and another behind the
counter. He collected cartridge casings and spent shotgun shells from near the victims and
photographed the scene. He identified photographs of the scene and items he recovered. He
and the detectives at the scene watched the video recordings of the shootings and took the
store’s cash register to the police department for fingerprinting.

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 On cross-examination, Officer Brennan agreed that the store had seven surveillance
cameras and that the cameras were clearly visible to anyone entering the store. He identified
a photograph of the area near the cash register and agreed that money was on the counter and
that money filled two containers beneath the register. On redirect examination, Officer
Brennan testified that both of the store’s cash registers were taken to the police department
for processing.

Metro Police Officer William Kirby testified that he worked in the identification
section of the police department and that he helped process evidence taken from the AMPM
Discount Tobacco shop. He said he was able to obtain fingerprints from a cash register. He
said that he watched the surveillance video after recovering the prints and that the video
showed one of the masked persons touching the register in the same area where he recovered
the prints. He submitted the prints to the Metro Police Department latent fingerprint
examination section for analysis. He said he also examined a pair of pants and Reebok tennis
shoes to determine if blood was present. He said that one of the shoes contained two spots
that appeared to be blood and that he swabbed the spots and submitted the swabs to the police
department’s property room.

On cross-examination, Officer Kirby testified that the pants submitted were a dark
color and did not appear to have blood on them. He said that he did not do further testing of
the pants and that he instructed a detective to submit the pants to the Tennessee Bureau of
Investigation (TBI) laboratory for testing. He said his role in the investigation was to collect
evidence, not analyze it. He did not know if the tennis shoes were sent to the TBI laboratory
for testing.

Metro Police Detective Harold Dean Haney testified that he investigated the
December 12, 2006 shootings at the AMPM Discount Tobacco shop, but that Detective Mike
Roland was the lead detective in the investigation. He was called to the scene at
approximately 10:00 p.m. and spoke with witnesses at the scene. He viewed the security
footage from the store and learned that the suspects touched the cash register and did not
wear gloves. He said that the security footage was edited and placed on a CD but that
nothing was changed except the duration of each camera’s recording. The CD was played
for the jury and showed each of the seven camera angles recorded within the store as the
shootings occurred.

Detective Haney testified that the Defendant became a suspect after Officer Kirby
submitted the fingerprints lifted from the cash register for analysis. A warrant was issued for
the Defendant’s arrest, and he was arrested on December 13, 2006. Detective Haney said
that the Defendant ran as the police approached the Defendant’s home but that the Defendant
was quickly captured, arrested, and transported to the police department for questioning.

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Robin Betts and Rokisha Alderson were also arrested at the Defendant’s home and taken to
the police department for questioning. Detective Haney said that the Defendant’s family was
present at the home and that he received consent to search the home and a Ford Explorer
parked in front of the home.

Lorita Marsh, an expert in the field of fingerprint analysis, testified that she was a
certified latent fingerprint examiner for the Metro Police Department. She said she entered
the two latent fingerprints that were recovered from the cash register into an automated
fingerprint identification system to determine possible matching candidates. She said that
the Defendant was the top candidate on the list and that she compared the Defendant’s
known fingerprints with the latent fingerprints submitted by Officer Kirby. She said that her
analysis revealed the two prints taken from the register were the Defendant’s left index and
left middle fingerprints and that her finding was verified by her supervisor, Julia Hooper.

On cross-examination, Ms. Marsh agreed that she examined numerous fingerprints
recovered from the scene in addition to those found on the cash register. She agreed she was
unable to match some of the prints to any particular person. She said only two of the latent
fingerprints matched known prints, those of the Defendant. On redirect examination, Ms.
Marsh agreed that she compared the known fingerprints of Rokisha Alderson with the latent
prints found at the scene and that she did not find a match.

Metro Police Detective Cody O’Quinn testified that he observed the autopsies of the
victims on December 13, 2006. He said he received the buckshot pellets and other projectiles
recovered from the victims. He said projectiles were recovered from Mr. Estfanous’s spine,
back, left lung, and neck. He said that glass was recovered from Mr. Hanna’s abdomen and
chest and that projectiles and shotgun wadding were recovered from Mr. Hanna’s chest and
back. He submitted the items to the Metro Police Department property room and then
transferred the items to the police department laboratory.

Metro Police Detective Danny Satterfield testified that he assisted Detective Roland’s
investigation of the shootings that occurred at the AMPM Discount Tobacco shop. He said
that he went to Vanderbilt Hospital to check on Mr. Rayburn and that the surgical pathology
unit gave him a bullet recovered from Mr. Rayburn.

Metro Police Sergeant Chris Steele testified that he assisted in the Defendant’s arrest.
He said the police were given consent to search the Defendant’s home and a Ford Explorer
in front of the home. He said that he saw ski masks and dark clothing on the back seat of the
Explorer and that Officer Thomas Simpkins gathered the items. On cross-examination,
Sergeant Steele agreed that the Explorer sat directly in front of the home and that the ski
masks and clothing could be seen through the windows easily.

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 Metro Police Officer Thomas Simpkins testified that he worked in the identification
section of the police department and that he gathered evidence from the home where the
Defendant was arrested and an Explorer in front of the home. He identified pictures of the
home and items the police recovered. He identified two knit caps and said he obtained one
from the front seat of the Explorer and the other from the console. He said that within the
home, he recovered a jacket with fur lining, a black jacket, black pants, a black sweater, a
blue shirt, and shoes. He identified the items.

On cross-examination, Officer Simpkins agreed that he did not search the home or the
Explorer and that he collected and photographed evidence as instructed. He said some of the
items were removed from the Explorer and placed on the ground before he photographed and
collected them. He said the ski masks were in the front seat when he arrived at the home and
agreed they could cover a person’s face. He agreed that a photograph of the living room
showed the shoes he recovered and a bicycle.

Metro Police Detective Mike Roland testified that he was the lead detective
investigating the shootings. He said that Mr. Hanna’s and Mr. Estfanous’s bodies were still
at the store when he arrived and that they were taken to the medical examiner’s office. He
said the police arrested the Defendant after finding the Defendant’s fingerprints on the store’s
cash register. Robin Betts, who was eighteen years old, and Rokisha Alderson, who was
sixteen years old, were also taken to the police department for questioning. He said Mr. Betts
and Ms. Alderson admitted their involvement in the shootings at the tobacco shop. He said
the Defendant was informed of his constitutional rights and appeared to understand his rights
before he gave a video recorded statement. He identified the Defendant’s recorded statement
and a transcript of the recording. The recording was played for the jury.

In the video recording, Detective Roland informed the Defendant of his constitutional
rights, including his right to remain silent and his right to an attorney. The Defendant stated
that he understood his rights and signed a waiver of his rights. Detective Roland told the
Defendant that the police had evidence indicating the Defendant was involved in a homicide
the night before and asked the Defendant why he did it. The Defendant replied, “Stress and
mental . . . problems” caused by not taking his medication. He said that two or three years
earlier, he stopped taking his medication for depression and “mental problems.” The
Defendant stated that he rode to the tobacco shop with Buddy Robinson, who was his cousin,
and that robbing the store was Mr. Robinson’s idea. He said he had never been involved in
a previous robbery. He said that although he initially told Mr. Robinson he did not want to
be involved in the robbery, “my mind just went blank and just got out of the truck and went
in there and told him to come on with the money.” He said that he ordered the people to the
ground, that Mr. Robinson asked the clerk for money, and that the clerk refused. He said that
after Mr. Robinson fired the first shot, “I said naw, then went on and shot the man who was

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on the ground once. Then when I shot the other shot, I didn’t know who the other shot hit,
I just shot it at the ground. I guess the bullet shots spread and hit the man . . . .” The
Defendant said that he purchased the shotgun he used during the robbery from a man on the
street and that he gave “powder” to a woman named Camry in exchange for the truck he used
during the robbery. He said that he wore a black shirt, a gray “hoodie,” and a ski mask
during the robbery and that Mr. Robinson wore a grey shirt, black pants, and a jacket with
fur around the hood. When Detective Roland disputed the Defendant’s version of the
robbery, the Defendant ended the interview.

Detective Roland testified that the Defendant lied when he said Buddy Robinson was
involved in the crime. He said that the recording of the shooting showed the Defendant
wearing blue jeans with white lettering during the robbery but that the jeans were not found
at the Defendant’s home or in the Explorer. He said the police collected projectiles and
shotgun shell casings from the scene, one bullet recovered from Mr. Rayburn at Vanderbilt
Hospital, and projectiles recovered from the victims by the medical examiner. He identified
swabs taken from the Reebok tennis shoes found in the Defendant’s home and said the swabs
were sent to the TBI laboratory for testing. He said that he also asked the medical examiner
to take samples of the victims’ blood for comparison to blood found on the evidence
recovered from the Defendant’s home and the Explorer and that the medical examiner
provided the samples to the TBI laboratory.

On cross-examination, Detective Roland agreed that a large amount of cash sat in a
basket directly beneath the cash register at the tobacco shop, but he did not know the amount.
He agreed his investigation revealed that the person holding the pistol fired the first shot. On
redirect examination, Detective Roland agreed the money beneath the register was pulled
forward to be photographed and said the money was originally in a position that was not
easily seen.

TBI Agent Steve Scott, an expert in firearms identification, testified that he was a
forensic scientist with the firearms identification unit. He said that although most bullets and
shell cases could be matched to the weapon that fired them, shotgun pellets could not
normally be matched to a certain weapon because shotgun barrels were smooth and did not
contain identifying marks that could be imparted to the shotgun pellets. He said the .38
caliber bullets recovered from the scene and from Mr. Rayburn at Vanderbilt Hospital were
fired from the same gun. He said the .38 caliber bullets had hollow points, which created
more tissue damage upon impact. He said that he examined eighteen double-aught buckshot
pellets submitted by the medical examiner’s office and that the pellets were consistent with
the two shotgun shell cases he examined.

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 TBI Agent Patrick Ihrie testified that he was a forensic scientist with the serology and
DNA unit. He said that serology was the identification of body fluids and that unknown
samples of fluids could be compared to and matched with known samples. He said that the
Metro Police Department asked him to compare a swab and scrapings taken from a Reebok
tennis shoe with blood samples taken from Mr. Estfanous and Mr. Hanna. He said that the
swab taken from the Reebok tennis shoe matched Mr. Hanna’s DNA profile and that the
chance of a random match occurring was less than one in 134 million.

On cross-examination, Agent Ihrie testified that although he saw a picture of the
Reebok tennis shoes, he never saw the actual shoes. He was not aware of any TBI policy
requiring analysis of the original source of evidence, as opposed to a sample taken from the
original source. He agreed he used a database maintained by the Federal Bureau of
Investigation to generate DNA statistics and said he did not think any Egyptians were
included in the database. He said that the statistics provided information on how common
a DNA profile was within a given population and that the numbers were generally similar
across different populations. On redirect examination, Agent Ihrie testified that genetic
markers differed from person to person and that only identical twins could have the same
DNA profile.

Dr. Amy McMaster, an expert in forensic medicine, testified that she performed
autopsies on Mr. Estfanous and Mr. Hanna. She said Mr. Estfanous had a large shotgun
wound on his back and pistol wounds on his back and neck. She said that he died from the
wounds minutes after being shot and that he did not have drugs or alcohol in his body. She
recovered bullets from near Mr. Estfanous’s spine and neck, shotgun wadding from his lung,
and buckshot pellets from his flank, back, spine, and lung. She said that Mr. Hanna had a
shotgun wound to his abdomen and that she recovered shotgun pellets, shotgun wadding, and
glass from his body. She said that Mr. Hanna died from the shotgun wound, which caused
damage to his heart, lungs, liver, and ribs, and that he did not have drugs or alcohol in his
body. She took samples of Mr. Hanna’s and Mr. Estfanous’s blood and submitted the
samples to the TBI for testing. On cross-examination, Dr. McMaster testified that although
the victims’ injuries would not have caused death instantly, the victims would not have lived
for more than a few minutes, at most, after being shot.

Upon this evidence, the jury found the Defendant guilty of attempted especially
aggravated robbery, attempted first degree murder, and two counts of felony murder. During
the punishment phase of the trial, Adel Abdelmessih testified through an interpreter that he
was Mr. Hanna’s mother’s uncle. He said that Mr. Hanna was like a son to him and that Mr.
Hanna assisted him with his health problems. He said that Mr. Hanna’s mother was admitted
to a hospital after hearing that Mr. Hanna was killed and that the entire family was devastated
by his death. He said Mr. Hanna assisted his family financially.

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 Eid Ghatas testified that he was Mr. Estfanous’s cousin. He said that Mr. Estfanous
supported his parents and siblings financially. He said that Mr. Estfanous’s father collapsed
and had a nervous breakdown after hearing that his son died and that the entire family was
devastated.

William T. Robinson, Jr., testified for the defense that he taught the Defendant at the
Institution of Learning Research, an alternative school for students with emotional and
educational problems, when the Defendant was sixteen and seventeen years old. He said that
the Defendant’s parents did little to supervise the Defendant, that the Defendant was absent
from school frequently, and that the Defendant often slept during class. He said that when
the Defendant attended school, it was usually due to pressure from the Defendant’s probation
officer. He said that he questioned the Defendant’s ability to think and reason and that the
Defendant had a learning disability.

On cross-examination, Mr. Robinson testified that he did not know why the Defendant
was sent to the alternative school or why he was on probation. He said he met the
Defendant’s mother one time at church and agreed she was supervising the Defendant at that
time. On redirect examination, Mr. Robinson testified that the Defendant’s mother did not
attend the trial.

Dr. Geraldine Bishop, an expert in intellectual disabilities and developmental
psychology, testified that she was a clinical and developmental psychologist and that she
frequently worked with and performed assessments of mentally retarded persons.1 She said
untrained persons would often not immediately realize if a person were mildly retarded. She
said persons suffering from mild mental retardation often do not know how to behave and
will react impulsively when confronted with unfamiliar situations.

Dr. Bishop testified that she reviewed the Defendant’s school records and that when
he was in kindergarten, he was diagnosed as being mentally retarded and placed in special
education classes. She said that the Defendant underwent regular psychological assessments
during school and that he was found to be mildly retarded in each developmental category
except physical development. She said the Defendant was mildly retarded academically,
intellectually, and with regard to his adaptive behavior, which included how effectively a
person could perform basic tasks and communicate.

1
We note that on April 9, 2010, the General Assembly ordered all references to“mental retardation”
in Tennessee Code Annotated to be changed to “intellectual disability.” See 2010 Tenn. Pub. Acts 734. The
testimony of witnesses is provided as given.

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 Dr. Bishop testified that she administered tests on the Defendant to determine his level
of intelligence and adaptive behavior. She said the Defendant’s full scale IQ was sixty-six,
which was in the bottom one percent of the population. She said that his ability to make
decisions and focus on complicated situations was impaired and that he probably did not have
the ability to participate meaningfully in his own defense. She said the Defendant’s adaptive
behavior functioning was significantly impaired in the areas of communication, daily living,
and socialization. She said over ninety-nine percent of the population had better adaptive
behavior than the Defendant. She said that the Defendant was able to perform simple plans
but that he would not know how to think and would react impulsively if something
unexpected occurred. She said the Defendant’s desire to be in the company of others may
have caused him to ride to the scene of the robbery with his co-defendants.

On cross-examination, Dr. Bishop testified that she was hired to determine if the
Defendant was mentally retarded. During her assessment of the Defendant, she spent about
four or five hours with him, reviewed his school records, and spoke with his family. She
agreed the last test administered to the Defendant while he was in school indicated that he
had an IQ of seventy-seven and that although he was on the borderline of mental retardation,
he was not mildly retarded. She said the increase in his IQ score could have been caused by
medications he took at the time.

Dr. Bishop agreed that she was provided with information regarding the Defendant’s
criminal record. She was aware that in 2003, the Defendant went into an assistant principal’s
office and stole money from her purse and that the Defendant was also charged in 2003 for
possessing a .32 caliber pistol, which he said he purchased from someone on the street for
seventy-five dollars. She was not aware that the Defendant stole cars in 2004 and 2005 or
that he provided the police with false names when he was arrested. She said mildly retarded
persons could lie to protect themselves. She was not aware the Defendant informed the
police that he bought the shotgun used to kill the victims from a man on the street or that he
traded cocaine to obtain the car used during the robbery. She said mildly retarded people
could negotiate for things and find a way to meet their needs. She was aware the Defendant
wore a ski mask during the robbery and said the Defendant had the ability to plan things. She
was not surprised that the Defendant disposed of the murder weapon or the car used during
the robbery and said the Defendant was able to perform tasks to protect himself.

On redirect examination, Dr. Bishop testified that the Defendant’s full scale IQ was
measured to be sixty-two at age seven, sixty at ages eleven and twelve, and sixty-seven at age
sixteen. She said his earlier evaluations were consistent with her findings of mild mental
retardation.

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 Upon this evidence, the jury sentenced the Defendant to life imprisonment without the
possibility of parole for each of the felony murder convictions. The trial court sentenced the
Defendant to twenty years’ confinement for attempted first degree murder and to ten years’
confinement for attempted especially aggravated robbery. The attempted first degree murder
conviction was ordered to be served consecutively to the remaining convictions, for an
effective sentence of life plus twenty years. This appeal followed.

I

The Defendant contends that the trial court erred by denying his motion to redact a
portion of the video evidence. He argues that the portion of the video depicting Mr. Hanna’s
intestines after he was shot in the stomach was not relevant to any contested issue at trial and
that the probative value of this portion of the video was substantially outweighed by the
danger of unfair prejudice. The State contends that the trial court properly denied the
Defendant’s motion and did not abuse its discretion. We agree with the State.

Evidence is relevant if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. However, relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403. Prejudicial evidence
is not excluded as a matter of law. State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000)
(citing State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App. 1993)). The trial court’s decision
to admit or exclude evidence will be overturned on appeal only when there has been an abuse
of discretion. See State v. Samuel, 243 S.W.3d 592, 599 (Tenn. Crim. App. 2007).

In denying the Defendant’s motion to redact the portion of the video evidence
showing Mr. Hanna’s intestines, the trial court noted that the images, “despite being
somewhat inevitably gruesome, are not so graphic as to unnecessarily inflame any trier of
fact of ordinary sensibility. The distance of the cameras from the victims and the relatively
low resolution of the recording assist in abating the inherently horrific nature of this type of
injury.” The trial court found that the jury would be better informed as to the sequence of
events if permitted to view the recording in its entirety and concluded that the probative value
of the evidence was not substantially outweighed by the danger of unfair prejudice.

We have viewed the surveillance video submitted at the trial. Although the angle
produced from camera one shows the Defendant shoot Mr. Hanna in the stomach and Mr.
Hanna convulse, Mr. Hanna’s intestines are not clearly shown. The angles from camera three
and camera five show Mr. Hanna’s intestines protrude shortly after the Defendant shoots him
in the stomach. We note that cameras three and five are the only cameras to capture footage

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of the co-defendant shooting Mr. Rayburn and that although camera seven shows an
obstructed view of the co-defendant standing behind the counter and the Defendant reaching
over the counter, only footage from camera five clearly shows the Defendant and his co-
defendant touching the cash register. The recordings have a relatively low resolution, and
all of the cameras showing Mr. Hanna are mounted on the ceiling and are several feet from
his body.

We agree with the trial court that the video evidence was relevant to inform the jury
of the sequence of events and the Defendant’s actions. The video shows Mr. Hanna and the
other victims directly before, during, and after the Defendant’s crimes. Despite the potential
for prejudice, the footage showing Mr. Hanna’s intestines is short in duration, and the protrusion is
limited in size and is not particularly bloody or overly graphic considering the type of wound
inflicted. We agree with the trial court that the probative value of this evidence was not
substantially outweighed by the danger of unfair prejudice and conclude that the trial court
did not abuse its discretion by admitting the video evidence. The Defendant is not entitled
to relief.

II

The Defendant contends that the trial court erred by denying his motion to strike the
State’s notice of intent to seek a sentence of life imprisonment without the possibility of
parole. He argues that such a sentence constitutes cruel and unusual punishment when
imposed on a person who is intellectually disabled, as proscribed by the Eighth Amendment
to the United States Constitution and article I, section 16 of the Tennessee Constitution. The
State argues that the trial court properly denied the Defendant’s motion because there is no
legal precedent to support the Defendant’s argument. We agree with the State.

A defendant may not be sentenced to death if suffering from an intellectual disability
at the time the first degree murder was committed. T.C.A. § 39-13-203(3)(b) (2010).
Although the death penalty constitutes cruel and unusual punishment with regard to the
intellectually disabled, no court in this state has ever held that a sentence of life
imprisonment without the possibility of parole violates the Eighth Amendment to the United
States Constitution or article I, section 16 of the Tennessee Constitution when applied to an
intellectually disabled defendant. See Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001); see
also Atkins v. Virginia, 536 U.S. 304 (2002).

In denying the Defendant’s motion, the trial court stated:

The Defendant admits that the existing statutory and
caselaw offers no support for his contention, however, he

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 proposes that sentencing a mentally retarded person to prison for
the remainder of his life qualifies as cruel and unusual
punishment. While courts have held that the death penalty
constitutes constitutionally impermissible punishment with
regard to the mentally retarded, it has yet to be decided that life
without parole is of such severity as to transgress the protective
boundaries of the Eighth Amendment.

The Defendant argues that because the United States Supreme Court recently held that
a sentence of life imprisonment without the possibility of parole constituted cruel and
unusual punishment when applied to a juvenile offender convicted of a nonhomicide offense,
the trial court should have come to a similar conclusion in this case and struck the State’s
notice of intent to seek a sentence of life imprisonment without the possibility of parole. See
Graham v. Florida, __ U.S. __, 130 S.Ct. 2011 (2010). We disagree. Unlike the defendant
in Graham, this case involves an adult Defendant convicted of murdering two unarmed
persons during a botched robbery attempt. As noted above, nothing in our jurisprudence
suggests that the Defendant’s intellectual disability renders his sentence unconstitutional.
We hold that the trial court did not err by denying the Defendant’s motion. The Defendant
is not entitled to relief.

III

The Defendant contends that the trial court erred by denying his motion to strike the
felony murder aggravating circumstance from the State’s notice of intent to seek a sentence
of life imprisonment without the possibility of parole. He contends that this aggravating
factor was inappropriate because the State used identical proof to establish both the
Defendant’s guilt and the application of the aggravating factor. The State responds that the
trial court properly denied the Defendant’s motion because the felony murder aggravating
circumstance can support a sentence of life imprisonment without the possibility of parole
when a defendant is convicted of felony murder. We agree with the State.

A sentence of life imprisonment without the possibility of parole may be imposed if
the State proves beyond a reasonable doubt that a murder was “knowingly committed,
solicited, directed, or aided by the defendant, while the defendant had a substantial role in
committing or attempting to commit, or was fleeing after having a substantial role in
committing or attempting to commit, any . . . robbery.” T.C.A. § 39-13-204(i)(7) (2006)
(amended 2008, 2009, 2010). The felony murder aggravating circumstance can be used to
enhance a sentence to life imprisonment without parole when a defendant is convicted of
felony murder. State v. Butler, 980 S.W.2d 359, 363 (Tenn. 1998). Tennessee Code
Annotated section 39-13-204 “is unambiguous and contains no restriction upon the use of

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an aggravating circumstance when the aggravator duplicates an element of the offense.” Id.

Although the Defendant argues that the aggravating factor was inappropriate, he cites
no legal authority to support his position and concedes that our courts have previously
decided this issue against him. We conclude that the trial court did not err by denying the
Defendant’s motion. The Defendant is not entitled to relief.

IV

The Defendant contends that the trial court erred by granting the State’s request to
augment the pattern jury instruction on the “heinous, atrocious, and cruel” aggravating
circumstance. He argues that the trial court should not have informed the jury that the
anticipation of physical harm constitutes mental torture because the additional instruction
was not supported by the evidence, the instruction constituted an improper judicial comment
on the evidence, and the pattern jury instruction fully and accurately defined the term
“torture” without the additional instruction. The State contends that the trial court did not
err by augmenting the pattern jury instruction with a clarifying statement of law. We
conclude that although the trial court erred when giving the special instruction, the error was
harmless in light of the whole record.

In criminal cases, the trial court has the duty to charge the jury on all of the law that
applies to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing
State v. Thompson, 519 S.W. 2d 789, 792 (Tenn. 1975)). Anything short of a complete
charge denies the defendant his constitutional right to a trial by jury. See State v. McAfee,
737 S.W.2d 304, 308 (Tenn. Crim. App. 1987). A jury instruction must be reviewed in its
entirety and read as a whole rather than in isolation. State v. Leach, 148 S.W.3d 42, 58
(Tenn. 2004). “An instruction should be considered prejudicially erroneous only if the jury
charge, when read as a whole, fails to fairly submit the legal issues or misleads the jury as
to the applicable law.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v.
Vann, 976 S.W.2d 93, 101 (Tenn. 1998)).

When giving jury instructions, the trial court has a duty to define statutory terms
containing a technical meaning. State v. Raines, 882 S.W.2d 376, 382-83 (Tenn. Crim. App.
1994). Torture is “the infliction of severe physical or mental pain upon the victim while he
or she remains alive and conscious.” State v. Williams, 690 S.W.2d 517, 529 (Tenn. 1985).
Causing a victim to anticipate physical harm may constitute mental torture. See State v.
Carter, 114 S.W.3d 895, 904-05 (Tenn. 2003); State v. Nesbit, 978 S.W.2d 872, 886-87
(Tenn. 1998).

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 The Tennessee Pattern Jury Instructions define torture using the definition stated in
Williams but do not state what type of mental pain can constitute torture. See T.P.I.- Crim.
7.04(a) (10th ed. 2006). “The proper function of a special instruction is to supply an
omission or correct a mistake made in the general charge, to present a material question not
treated in the general charge, or to limit, extend, eliminate, or more accurately define a
proposition already submitted to the jury.” State v. Cozart, 54 S.W.3d 242, 245 (Tenn. 2001)
(citing Chesapeake, O. & S.W.R. Co. v. Foster, 13 S.W. 694 (1890)).

During the punishment phase of the trial, the trial court instructed the jury that a
sentence of life without the possibility of parole could be imposed if the State proved beyond
a reasonable doubt that Mr. Hanna’s murder was especially heinous, atrocious, or cruel, in
that it involved torture or serious physical abuse beyond that necessary to produce death. The
trial court defined torture as “the infliction of severe physical or mental pain upon the victims
while he or she remains alive and conscious. Anticipation of physical harm to [one’s] self
or a loved one then constitutes mental torture.” (Emphasis added.)

We conclude that the trial court made an incorrect statement of law when it gave the
special instruction. If the jury determined that Mr. Hanna anticipated physical harm, the trial
court’s use of the word “then” effectively directed a verdict that the Defendant tortured Mr.
Hanna. Although the anticipation of physical harm to one’s self or a loved one may
constitute mental torture under appropriate circumstances, it is not a foregone conclusion that
mental torture is present every time a person anticipates harm before it occurs.

Having determined that the trial court erred when giving the special instruction
regarding the “especially heinous, atrocious, or cruel” aggravating circumstance, we must
determine the effect of that error. As noted above, if the jury determined that Mr. Hanna
anticipated physical harm, the instruction effectively directed a verdict that the Defendant
tortured Mr. Hanna. The jury’s finding that the “especially heinous, atrocious, or cruel”
aggravating factor applied was surely influenced by the trial court’s instruction because the
jury is presumed to have followed the instructions of the trial court. See State v. Reid, 164
S.W.3d 286, 346 (Tenn. 2005).

Despite the likelihood that the jury’s finding was influenced by the erroneous
instruction, a “final judgment from which relief is available and otherwise appropriate shall
not be set aside unless, considering the whole record, error involving a substantial right more
probably than not affected the judgment or would result in prejudice to the judicial process.”
T.R.A.P. 36(b). In sentencing the Defendant to life imprisonment without the possibility of
parole for the murder of Mr. Hanna, the jury found two aggravating circumstances
applicable: the “especially heinous, atrocious, or cruel” aggravating circumstance and the
felony murder aggravating circumstance. The jury could properly impose a sentence of life

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imprisonment without the possibility of parole based on the felony murder aggravating
circumstance alone, and it did so when sentencing the Defendant for the murder of Mr.
Estfanous. See T.C.A. § 39-13-204(i). The record reflects no reason why the jury would
have sentenced the Defendant differently for the murder of Mr. Hanna had they not been
instructed on the additional aggravating circumstance or found it inapplicable. We conclude
that although the trial court erred when giving the special instruction, this error was harmless
and did not more probably than not affect the judgment or result in prejudice to the judicial
process. The Defendant is not entitled to relief.

V

The Defendant contends that the trial court erred by rejecting his requested sentencing
instruction regarding the statutory mitigating circumstance that he acted under the substantial
domination of another person. He argues that the instruction should have been given because
he informed the police that the robbery was Mr. Robinson’s idea and that he did not want to
be involved but that he became involved after his mind went “blank.” He also argues that
the instruction was appropriate because the evidence showed that he was intellectually
disabled and susceptible to domination by others. The State contends that the trial court did
not err because no credible evidence supported the Defendant’s claim that he was under the
substantial domination of another person and because the evidence established that the
Defendant freely and voluntarily engaged in the robbery. We conclude that the trial court did
not err by rejecting the Defendant’s requested sentencing instruction.

In criminal cases, the trial court has the duty to charge the jury on all of the law that
applies to the facts of the case. See Harris, 839 S.W.2d at 73. During the punishment phase
of a first degree murder trial, the trial judge shall instruct the jury “to weigh and consider any
mitigating circumstances raised by the evidence at either the guilt or sentencing hearing. . .
.” T.C.A. § 39-13-204(e)(1).

The Defendant relies upon proof of his mental disability and his recorded statement
to Detective Roland to support his claim that he was under the substantial domination of
another person during the robbery. Although the Defendant told Detective Roland that
robbing the store was Mr. Robinson’s idea and initially told Mr. Robinson he did not want
to be involved in the robbery, Detective Roland testified that Mr. Robinson was not involved
in the robbery. He said Mr. Betts and Ms. Alderson admitted their involvement in the
robbery. The indictment reflects that the Defendant, Mr. Betts, and Ms. Alderson, not Mr.
Robinson, were charged with the crimes. The record reflects that Ms. Alderson was the other
masked person involved in the robbery and that Mr. Betts drove the truck used during the
attempted robbery. Furthermore, although Dr. Bishop testified that the Defendant’s desire
to be in the company of others may have caused him to ride to the site of the robbery with

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his co-defendants and that the Defendant would react impulsively if something unexpected
occurred, she did not testify that the Defendant was under the domination of anyone during
the robbery. The record reflects that the person by whom the Defendant claims to have been
controlled during the robbery was not involved with the crimes or indicted. No other
evidence indicated that the Defendant was under the substantial domination of another
person. We conclude that the evidence did not support the mitigating circumstance and that
the trial court did not err by rejecting the Defendant’s requested sentencing instruction. The
Defendant is not entitled to relief.

VI

The Defendant contends that his rights to due process and a fair trial were violated
when the trial court failed to give the jury meaningful guidance or directions as to their
deliberations during the punishment phase of the trial. He argues that the jury should have
been instructed on how to weigh and consider the aggravating and mitigating circumstances,
including an instruction that aggravating circumstances must outweigh mitigating factors in
order to impose a sentence of life imprisonment without the possibility of parole. The State
contends that the trial court’s instructions complied with the requirements of law and that the
instructions enabled the jury to weigh the evidence properly and determine an appropriate
sentence. We agree with the State.

Tennessee Code Annotated section 39-13-207 controls the sentencing for first degree
murder cases in which the State does not seek the death penalty, but is seeking life
imprisonment without the possibility of parole as the maximum punishment, and states:

The sentencing proceeding shall be conducted in accordance
with the provisions of § 39-13-204, excluding references to the
death penalty.

(b) If the jury unanimously determines that no statutory
aggravating circumstance or circumstances have been proven by
the state beyond a reasonable doubt . . . the court shall sentence
the defendant to imprisonment for life.

(c) If the jury unanimously determines that the state has proven
beyond a reasonable doubt one (1) or more of the statutory
aggravating circumstances set forth in § 39-13-204(i), the jury
shall, in its considered discretion, sentence the defendant either
to imprisonment for life without possibility of parole or to
imprisonment for life.

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 (d) The jury shall be instructed that, in imposing sentence, it
shall weigh and consider the statutory aggravating circumstance
or circumstances proven by the state beyond a reasonable doubt
and any mitigating circumstance or circumstances.

Tennessee Code Annotated section 39-13-204(f)(2) also states that if a jury unanimously
determines that the State has proven one or more of the statutory aggravating circumstances
beyond a reasonable doubt, the trial judge shall instruct the jury that when choosing between
the sentences of imprisonment for life without the possibility of parole and imprisonment for
life, the jury “shall weigh and consider the statutory aggravating circumstance or
circumstances proven by the state beyond a reasonable doubt and any mitigating
circumstance or circumstances.” Although a jury may not impose a sentence of death unless
the State establishes that the aggravating factors outweigh any mitigating circumstances
beyond a reasonable doubt, no such requirement or jury instruction is required when the
death penalty is not sought. See T.C.A. § 39-13-204(g). The statute “directs that the jury
must ‘weigh and consider’ the aggravating and mitigating circumstances but does not require
the jury to determine that the aggravating circumstances outweigh the mitigating
circumstances by any specific level of proof in order to impose a sentence of life
imprisonment without the possibility of parole.” State v. Guy, 165 S.W.3d 651, 663 (Tenn.
Crim. App. 2004) (citing T.C.A.§ 39-13-204(f)(2)).

Before the jury began their deliberations, the trial court instructed the jury that the
State alleged the felony murder aggravating circumstance with regard to Mr. Estfanous’s
murder, and the felony murder and “heinous, atrocious, or cruel” aggravating circumstances
with regard to Mr. Hanna’s murder. The trial court also instructed the jury that it should
consider any mitigating circumstances raised by the evidence, including: (1) the capacity of
the Defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the
requirements of the law was substantially impaired as a result of mental disease or defect; (2)
the Defendant lacked substantial judgment in committing the offense because of his youth;
(3) the Defendant was mentally retarded; (4) the Defendant cooperated with the police by
admitting his involvement; (5) the Defendant attended twenty schools while growing up; and
(6) the Defendant did not receive the intervention or resources needed to assist his significant
educational, personal, and family problems. The trial court also instructed the jury that

If you unanimously determine that a statutory aggravating
circumstance or circumstances have been proved by the State
beyond a reasonable doubt, you shall, in your considered
discretion, sentence the defendant either to imprisonment for life
without possibility of parole or to life imprisonment. In
choosing between the sentences . . . you shall weigh and

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 consider the statutory aggravating circumstance or
circumstances proven by the state beyond a reasonable doubt
and any mitigating circumstance or circumstances.

The jury was instructed that it had to use its considered discretion and weigh and
consider the aggravating and mitigating circumstances before imposing a sentence. The jury
was not required to determine that the aggravating circumstances outweighed the mitigating
circumstances by any specific level of proof in order to impose a sentence of life
imprisonment without the possibility of parole. We conclude that the jury instructions met
the requirements of Tennessee Code Annotated sections 39-13-204(f)(2) and 39-13-207 and
that the jury was properly instructed with regard to their consideration of the aggravating and
mitigating circumstances when determining an appropriate sentence. The Defendant is not
entitled to relief.

VII

The Defendant contends that the evidence was insufficient to establish the “heinous,
atrocious, and cruel” aggravating circumstance as to Mr. Hanna because no evidence
established that the Defendant tortured or inflicted serious physical abuse after he shot Mr.
Hanna once. The State contends that the evidence was sufficient because it established that
Mr. Hanna suffered the anticipation of death in the moments before he was shot and then
suffered physical and emotional pain after he was shot. We hold that the evidence was not
sufficient to support this aggravating circumstance.

“In determining whether the evidence supports a jury’s finding of a statutory
aggravating circumstance, the proper inquiry for an appellate court is whether, after
reviewing the evidence in the light most favorable to the State, a rational trier of fact could
have found the existence of the aggravating circumstance beyond a reasonable doubt.” State
v. Suttles, 30 S.W.3d 252, 262 (Tenn. 2000). A sentence of life imprisonment without the
possibility of parole may be imposed if the State proves beyond a reasonable doubt that a
murder was “especially heinous, atrocious, or cruel, in that it involved torture or serious
physical abuse beyond that necessary to produce death.” T.C.A. § 39-13-204(i)(5). As noted
above, torture is “the infliction of severe physical or mental pain upon the victim while he
or she remains alive and conscious.” Williams, 690 S.W.2d at 529. Causing a victim to
anticipate physical harm may constitute mental torture. See Carter, 114 S.W.3d at 904-05;
Nesbit, 978 S.W.2d at 886-87. Serious physical abuse has been defined as follows:

The word “serious” alludes to a matter of degree. The abuse
must be physical, as opposed to mental, and it must be “beyond
that” or more than what is “necessary to produce death.”

-19-
 “Abuse” is defined as an act that is “excessive” or which makes
“improper use of a thing,” or which uses a thing “in a manner
contrary to the natural or legal rules for its use.”

State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996) (quoting Black’s Law Dictionary 11 (6th ed.
1990)).

The record reflects that after the Defendant shot Mr. Estfanous, the Defendant and his
co-defendant spent a few seconds attempting to open the cash register before the Defendant
turned to Mr. Hanna, fired his shotgun once, and ran from the store. Mr. Rayburn testified
that after the Defendant shot Mr. Estfanous, either the Defendant or the other masked person
stated that they would kill everyone in the store. The Defendant did not physically harm Mr.
Hanna after firing the single shot. Although causing a victim to anticipate physical harm can
constitute mental torture, we note that the cases in which our courts have concluded that
mental torture was present did not involve a threat of harm quickly followed by a single fatal
blow. See, e.g., Carter, 114 S.W.3d at 904 (finding mental torture applicable when the
defendants broke into the victim’s home at gunpoint, forced the victim in a closet before
raping the victim’s wife and ransacking their home, and then murdered the victim and his
wife); Nesbit, 978 S.W.2d at 886-87 (finding mental torture applicable when the victim was
burned and beaten over a six-hour time period in her own home while four of her young
children were present); State v. Hodges, 944 S.W.2d 346, 357-58 (Tenn. 1997) (finding
mental torture applicable when the victim was handcuffed, bound, and placed on a bed with
a pillow over his head as the defendants ransacked his home, discussed whether they should
kill the victim, and then suffocated the victim). Despite the fact that our courts have not
expressly stated that the harm must be anticipated for any particular length of time, to find
mental torture applicable in this case would render almost every fatal shooting quickly
preceded by a physical threat to be torture. We hold that the evidence was not sufficient to
support a finding that Mr. Hanna’s murder involved torture or serious physical abuse beyond
that necessary to produce death.

The Defendant argues that because the evidence was insufficient to support the
“especially heinous, atrocious, or cruel” aggravating circumstance, his sentence on this
conviction should be reduced from life imprisonment without the possibility of parole to life
imprisonment. We disagree. In addition to this aggravating circumstance, the jury also
found the felony murder aggravating circumstance applicable to the Defendant’s conviction
for murdering Mr. Hanna. As previously noted, a sentence of life imprisonment without the
possibility of parole may be imposed if the State proves beyond a reasonable doubt that a
murder was knowingly committed while the Defendant committed or attempted to commit
a robbery. T.C.A. § 39-13-204(i)(7). It is not disputed that the Defendant murdered Mr.
Hanna during the attempted commission of an especially aggravated robbery. We hold that

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although the evidence was insufficient to support the “especially heinous, atrocious, or cruel”
aggravating circumstance, a sentence of life imprisonment without the possibility of parole
was properly imposed pursuant to the felony murder aggravating circumstance. The
Defendant is not entitled to relief.

VIII

The Defendant contends that the trial court erred by imposing partially consecutive
sentences. He argues that consecutive sentences are improper because the court made no
reference to any of the statutory factors upon which consecutive sentences may be imposed
and a sentence of life imprisonment without the possibility of parole plus twenty years is not
the least severe measure necessary to achieve the purposes for which the sentence was
imposed. The State concedes that the trial court failed to state proper criteria under
Tennessee Code Annotated section 40-35-115 (2010) to justify imposing consecutive
sentences, but it contends that a partially consecutive sentence was proper because the
Defendant is a dangerous offender whose behavior indicates little or no regard for human life
and no hesitation about committing a crime in which the risk to human life is high. We
conclude that although the trial court failed to make the findings required by law to impose
consecutive sentences, a partially consecutive sentence is appropriate.

Appellate review of sentencing is de novo on the record with a presumption that the
trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2010). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing is improper. This means that if the trial court
followed the statutory sentencing procedure, made findings of fact that are adequately
supported in the record, and gave due consideration and proper weight to the factors and
principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb
the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789
(Tenn. Crim. App. 1991).

However, “‘the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.’” State v. Carter, 254 S.W.3d
335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). In
this respect, for the purpose of meaningful appellate review, the trial court must place on the
record its reasons for arriving at the final sentencing decision, identify the mitigating and
enhancement factors found, state the specific facts supporting each enhancement factor
found, and articulate how the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see
T.C.A. § 40-35-210(e) (2010).

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 Also, in conducting a de novo review, we must consider (1) any evidence received at
the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing
and arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal
conduct, (5) any mitigating or statutory enhancement factors, (6) statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)
the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see Ashby,
823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

In imposing a sentence within the appropriate range of punishment for the defendant:

[T]he court shall consider, but is not bound by, the
following advisory sentencing guidelines:

(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because the
general assembly set the minimum length of sentence for each
felony class to reflect the relative seriousness of each criminal
offense in the felony classifications; and

(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113 and
40-35-114.

T.C.A. § 40-35-210 (2010). From this, “the trial court is free to select any sentence within
the applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. §
40-35-210(d)).

The determination of concurrent or consecutive sentences is a matter left to the
discretion of the trial court and should not be disturbed on appeal absent an abuse of
discretion. State v. Blouvet, 965 S.W.2d 489, 495 (Tenn. Crim. App. 1997). Consecutive
sentencing is guided by Tennessee Code Annotated section 40-35-115(b), which states in
pertinent part that the court may order sentences to run consecutively if it finds by a
preponderance of the evidence that:

(2) The defendant is an offender whose record of criminal
activity is extensive; or

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 ...

(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life, and no hesitation
about committing a crime in which the risk to human life is
high; or

...

(6) The defendant is sentenced for an offense committed while
on probation.

The imposition of consecutive sentences on an offender found to be a dangerous offender
also requires “the finding that an extended sentence is necessary to protect the public against
further criminal conduct by the defendant and that the consecutive sentences must reasonably
relate to the severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939
(Tenn. 1995). Only one of the criteria stated in Tennessee Code Annotated section
40-35-115 need exist to support consecutive sentencing. State v. Mickens, 123 S.W.3d 355,
394 (Tenn. Crim. App. 2003).

After the jury sentenced the Defendant to life imprisonment without the possibility of
parole for each of the felony murder convictions, the trial court held a separate sentencing
hearing for the Defendant’s attempted first degree murder and attempted especially
aggravated robbery convictions. At the sentencing hearing, the State introduced the
presentence report. In the report, the Defendant stated that he used marijuana and cocaine
daily, beginning at the age of fifteen and continuing until the time of his incarceration. The
Defendant also stated that he was expelled from McGavock High School for fighting. The
report reflects that the Defendant has previous convictions for reckless driving, driving with
a suspended license, criminal impersonation, theft of property valued at more than $500 but
less than $1000, and casual exchange of drugs. After being convicted of theft of property
on July 3, 2005, the Defendant was sentenced to eighteen months’ probation. The
presentence report reflects that the Defendant violated the terms of his probation twice and
that he was on probation when he committed these felonies. The Defendant submitted
documents listing the schools he attended and an assessment of his special needs and
recommendations for treatment. The Defendant also apologized to the victims’ families.

The trial court found that the following enhancement factors applied: (8) The
Defendant, before trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community; (10) The Defendant had no hesitation about
committing a crime when the risk to human life was high; and (13) The Defendant was

-23-
released on probation at the time he committed these felonies. See T.C.A. § 40-35-114
(2010). The trial court found no mitigating factors applicable. In determining that the
twenty-year sentence for attempted first degree murder should run consecutively to the
sentences for felony murder, the trial court stated:

I might also point out that the co-defendant in this matter
has heretofore been sentenced to life imprisonment with 15
years consecutive. It is the opinion of this Court that [the
Defendant] was in fact the leader of the crimes and that he did,
in fact, commit those murders. He was the trigger man in those
murders. Certainly his sentence should be in excess of the
sentence that was received by the co-defendant. That’s the
judgment of the Court.

Although the trial court’s finding that the Defendant was a leader in the commission
of the offense could be used as an enhancement factor, it was not a proper factor under
Tennessee Code Annotated section 40-35-115 to justify imposing consecutive sentences. See
T.C.A. § 40-35-114, -115. The trial court’s finding that he was the “triggerman” and
deserved more punishment also was not a proper factor to justify imposing consecutive
sentences. Despite the trial court’s reliance on these improper criteria, we note that the trial
court found as an enhancement factor that the Defendant was released on probation at the
time he committed these felonies, a proper factor upon which the court could order the
Defendant’s sentences to run consecutively. See T.C.A. § 40-35-115(b)(6). The Defendant
does not dispute that he was on probation at the time of the offenses. Furthermore, the record
reflects that the Defendant is a dangerous offender whose behavior indicates little or no
regard for human life and no hesitation about committing a crime in which the risk to human
life is high, that an extended sentence is necessary to protect the public against further
criminal conduct by the Defendant, and that consecutive sentences reasonably relate to the
severity of the offenses committed. See Wilkerson, 905 S.W.2d at 939. The Defendant
entered the store and murdered Mr. Estfanous almost immediately, before Mr. Estfanous
could attempt to open the cash register. The Defendant proceeded, without provocation, to
murder Mr. Hanna as he lay defenseless on the floor. The Defendant has multiple previous
convictions and continued to violate the law when placed on probation. This evidence
supports a finding that the criteria provided in Tennessee Code Annotated section
40-35-115(b)(4), -115(b)(6), and Wilkerson were applicable in the Defendant’s case and that
consecutive sentencing was proper.

With regard to the Defendant’s claim that the sentence is not the least severe measure
necessary to achieve the purposes for which his sentence was imposed, we note that the
jury’s sentencing the Defendant to life imprisonment without the possibility of parole reflects

-24-
that the sentence was imposed to ensure that the Defendant not be released from prison
during his lifetime. A partially consecutive sentence furthers this purpose and ensures that
the Defendant will not be released. We conclude that although the trial court failed to make
the findings required by law to impose consecutive sentences, a partially consecutive
sentence is appropriate. Furthermore, we hold that in light of the facts in this case, the
Defendant’s sentences were appropriate and that they were not imposed arbitrarily. See
T.C.A. § 39-13-207(g).

In consideration of the foregoing and the record as a whole, we affirm the judgments
of the trial court.
____________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE

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