State of Tennessee v. Anthony L. Davis

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 13, 2010

STATE OF TENNESSEE v. ANTHONY L. DAVIS

Direct Appeal from the Criminal Court for Davidson County
No. 2006-D-3070 Cheryl A. Blackburn, Judge

No. M2008-02119-CCA-R3-CD - Filed July 14, 2010

A Davidson County grand jury indicted the Defendant, Anthony L. Davis, and his co-
defendant, Michael Ray Crockett, for the felony murder, premeditated murder, and especially
aggravated robbery of victim Edgar Moreno-Gutierrez and for the especially aggravated
robbery and two counts of felony murder of victim Michael Adams. The trial court severed
the Defendant’s trials, and in his first trial a Davidson County jury convicted him of the
felony murder, premeditated murder, and especially aggravated robbery of victim Moreno-
Gutierrez. The trial court merged the premeditated murder conviction with the felony murder
conviction and sentenced the Defendant to life plus twenty-three years. In his second trial,
a Davidson County jury convicted the Defendant of the especially aggravated robbery and
two counts of the felony murder of victim Adams. The trial court merged the two felony
murder convictions and sentenced the Defendant to life plus eighteen years, to be served
consecutively to his sentence from his first trial. The two cases were consolidated on appeal.
On appeal, the Defendant contends that the evidence is insufficient to support his convictions
and that the trial court improperly imposed consecutive sentencing in his first trial. After a
thorough review of the record and relevant authorities, we affirm the trial court’s judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D AVID H. W ELLES
and J ERRY L. S MITH, J.J., joined.

David A. Collins, Nashville, Tennessee, for the Appellant, Anthony L. Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Renee W. Turner, Assistant Attorney General; Bret Gunn and Rob McGuire, Assistant
District Attorneys General, for the Appellee, State of Tennessee.
 OPINION
I. Facts

After the body of Edgar Moreno-Gutierrez was discovered in April 2006, investigators
received information implicating the Defendant in Moreno-Gutierrez’s death. During the
course of their investigation of Moreno-Gutierrez’s death, they discovered that the Defendant
possessed items belonging to another homicide victim, Michael Adams, whose body was
recovered in June 2008. Ultimately, the Defendant and his co-defendant, Michael Ray
Crockett, were indicted for the robbery and murder of Moreno-Gutierrez, and the Defendant
alone was indicted for the robbery and murder of Adams. Upon the Defendant’s motion, the
trial court severed the counts related to Moreno-Gutierrez’s from those related to Adams, and
it conducted two separate trials. This Court hereinafter will refer to the trial for the crimes
against Moreno-Gutierrez as “Davis I” and to the trial for the crimes against Adams as
“Davis II.”

A. Davis I

In August 2007, the Defendant was tried for the robbery and murder of Moreno-
Gutierrez. At this trial, the following evidence was presented: Sylvia Fregoso, victim
Moreno-Gutierrez’s cousin, testified that Moreno-Gutierrez’s mother was deceased and most
of Moreno-Gutierrez’s family resided in Los Angeles, California, at the time of his death.
Fregoso recalled that Moreno-Gutierrez had been living in Nashville for only ten days when
he was killed, and he did not use illegal drugs.

Raphael Fernandez, a Metro Nashville police officer, testified he worked in a
Nashville Police Department Hispanic outreach program performing community outreach
within the Hispanic community. Homicide detectives enlisted Officer Fernandez to assist
them in identifying Moreno-Gutierrez’s body, which was unidentified at the time. Armed
with a photograph of the victim, he traveled to nearby businesses and apartment complexes,
searching for someone who recognized the person in the photograph. The officer finally met
a man who knew the victim and was in possession of the victim’s laptop computer. Officer
Fernandez opened the laptop, and he found pictures of the victim and his car on the laptop.
In the course of his investigation, Officer Fernandez received information that on April 26,
2006, the victim met with a person who had called and asked to meet the victim. The officer
reported this information to the homicide detectives.

Betty Carmona, another of the victim’s cousins, testified that the victim used a cellular
phone registered under her name while he was living in Nashville. Reviewing several pages
of documentation of ingoing and outgoing cell phone calls, Carmona confirmed that the

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documentation corresponded to the victim’s cell phone registered under her name. The State
introduced this documentation as an exhibit. Carmona further testified that the victim did
not use illegal drugs.

Jeff Mitchell, a police officer with the Metro Nashville Police Department, testified
he was a patrol officer in the North Precinct in April 2006. Officer Mitchell received a call
reporting that a man’s body was lying on the ground at the end of Old Amqui Road, a dead
end road. As he approached this area in his patrol car, he saw a house that appeared be
abandoned and a man lying face down in a gravel driveway beside the house. The man
appeared to have a gunshot wound to the head, and he wore only a t-shirt and boxer shorts.
A pool of blood, which had already begun to dry, surrounded the man’s head, and the man
was unresponsive, but the officer summoned an ambulance. The officer then requested crime
scene investigators, and he blocked off Old Amqui Road with his cruiser until other officers
arrived. Other than to help continue to secure the scene, Officer Mitchell participated no
further in the investigation of the man’s death.

Investigator Ed Hendricks, a fire fighter, EMT, and fire investigator with the City of
Goodlettsville Fire Department, testified he was summoned to respond to a vehicle fire at 440
Professional Park Drive in Goodlettsville on April 24, 2006. When he arrived at the scene,
the fire was already extinguished. He saw a plastic gas can beside the vehicle’s driver’s side
door that was melted to the ground, and he noticed that the wheels and tires of the vehicle
did not match the vehicle. He also noticed that each wheel was missing lug nuts, some
wheels having only one or two lug nuts. The investigator concluded that, because the vehicle
had been burned in a remote location and because a gas can was nearby, someone had
intentionally burned the vehicle. He also testified that the absence of proper lug nuts
indicated to him that the vehicle had not been driven very far since its tires were replaced.
Referencing the report he prepared about the vehicle fire, he testified that the vehicle’s
vehicle identification number (“VIN”) was 1G3GR11Y9HP303280.

On cross-examination, Investigator Hendricks explained that Long Hollow Pike ran
off of Conference Drive, which intersected Professional Park Drive. He said that, because
Long Hollow Pike did not go through Madison, someone driving on Long Hollow Pike
toward Professional Park Drive would not necessarily be coming from Madison.

The State entered a certificate of title indicating that a vehicle with a VIN of
1G3GR11Y9HP303280 was registered to the victim, Edgar Morena-Gutierrez.

Tim Matthews, a Metro Police Department Crime Scene Unit officer, testified he
responded to Old Amqui Road on the day the victim’s body was found. Officer Matthews,
along with another officer in his unit, Janess Graham, photographed the scene, drew a

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diagram of the scene, and searched the area for evidence around the house and driveway.
The diagram reflected that one .380 automatic Winchester bullet cartridge lay thirteen feet,
nine inches from the victim’s body, another such cartridge lay eight feet, seven inches from
the victim’s body, and yet another lay fourteen inches from the victim’s head.

Michael Crockett, the Defendant’s twenty-three year old co-defendant, testified he had
been in jail since October 2006. Crockett testified he was present on April 23, 2006, when
the Defendant killed the victim. At the time of the killing, Crockett, who had known the
Defendant for four or five years, knew the Defendant as “T.J.,” though he was aware of the
Defendant’s real name.

Crockett recalled that on the afternoon of April 23, 2006, he was playing basketball
at a public park in Madison, Tennessee. While he was standing on the sidelines of the court,
he heard someone call his name. He saw a person walking on the sidewalk who was flagging
him down. Crockett started to walk toward the person, whom he soon recognized as the
Defendant.

Crockett and the Defendant had a casual conversation, during which the Defendant
showed Crockett cash with which he was going to buy an Oldsmobile Cutlass with custom
rims and a sound system. The Defendant said that he was meeting the person selling the car
at the park but that he had to get the rest of the purchase price from a man named Genesis
Hester, whom the Defendant claimed was his father. Crockett testified that the person selling
the Cutlass, a Hispanic man about six feet tall, arrived at the park approximately five to ten
minutes after he and the Defendant began speaking. He arrived alone, driving the Cutlass
the Defendant intended to buy. Crockett saw that the Cutlass did indeed have expensive
rims.

The seller agreed to allow the Defendant to test drive the car. Crockett asked to go
along, and he agreed to this, too. The seller assumed the backseat, Crockett assumed the
front passenger seat, and the Defendant drove. The Defendant then told the seller he had to
go to his father’s house to get the rest of the purchase money for the car. The Defendant
stopped the vehicle so that Crockett and the seller could swap seats.

The Defendant drove the car toward Hester’s house on Old Amqui Road, but, when
he came to the house, he kept driving instead of turning into the driveway, saying “let me go
down here and turn around real quick.” He drove to where Old Amqui Road dead ends,
pulled into a driveway, and parked the car, though he acted as though he was about to back
up. He asked the man to look behind the car to make sure he did not hit anything when he
backed up, and when the man turned around, the Defendant pulled out a gun and pointed it
at the man. Crockett said he did not know before this that the Defendant was armed. The

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Defendant told the man to get out of the car, and he slowly complied. The Defendant got out
of the car, keeping his gun trained on the man, while Crockett remained in the backseat.

Outside the car, the Defendant instructed the seller to empty his pockets, and he
complied. The Defendant took the contents of the seller’s pockets and put them in the car.
He then told the seller to remove his shoes and clothing. The seller again complied, and the
Defendant put these items in the car. The Defendant told the man to lie down, and instructed
Crockett to assume the driver’s seat. Each complied. Then, while standing in front of the
car to the right, the Defendant shot the man. Crockett did not see the man as he was being
shot. After the Defendant stopped shooting, he got back into the car and told Crockett to
drive him to Hester’s house. Crockett began to drive the car toward Hester’s house, and the
Defendant played with the car’s hydraulic system for four to five seconds. Crockett recalled
that the car’s sound system had a television screen and a CD player. Although he did not see
any speakers, Crockett believed the car must have been equipped with speakers.

As they pulled up to Hester’s house, Hester was standing at the end of his driveway.
Crockett stopped the car, and the three stared at each other in silence for four or five seconds.
The Defendant, still in the car with Crockett, told Crockett to drive away. Crockett drove
down Old Amqui Road, turned left at the first street he came to, then stopped the car at a stop
sign. The Defendant rolled the victim’s shoes and pants inside the victim’s shirt, got out of
the car, crouched down, and set the clothing on fire with a lighter. The Defendant got back
into the car and directed Crockett to Old Hickory Boulevard. When they arrived at the
intersection of Old Hickory Boulevard and Dickerson Road, Crockett turned left onto
Dickerson Road, saying he was going to drive them to a store where a friend, who he said
would help them “strip” the car, was working at the time. At trial, Crockett explained that
this was a lie that he told the Defendant so that he could “get out of the situation.” Crockett
pulled up to a store beside a Walgreen’s, got out of the car, and walked away.

Crockett acknowledged that he did not alert police to the killing after he left the
Defendant because he feared for his family’s safety. He also acknowledged that, after this
shooting, he was arrested for possessing crack cocaine, drug scales, and a .22 caliber pistol.
Crockett knew by the time of his own arrest that the Defendant had already been arrested for
the killing he observed. Shortly after he was arrested, Detective Harold Dean Haney met
with Crockett, questioning him about the killing. For several hours, Crockett denied
knowing anything about the killing. At trial, he explained that he initially lied because he felt
he was not responsible for the killing. Soon, however, the fact that the man “got killed like
that” overwhelmed Crockett, so he divulged what he knew about the killing.

Crockett denied Detective Haney offered to give him a deal or to treat him more
lightly in exchange for his statement. He said investigators told him only that they would

5
take his cooperation into consideration in dealing with the charges against him related to this
killing.

On cross-examination, Crockett confirmed he, like the Defendant, had been charged
with first degree murder, felony murder, and especially aggravated robbery. Additionally,
Crockett had been charged with felonious possession of crack cocaine for resale, possession
of drug paraphernalia, and possession of a weapon. He agreed that he would like to avoid
receiving consecutive sentences.

Crockett confirmed that, in the first hour of his interview with Detective Haney, he
acknowledged being acquainted with the Defendant. He agreed that, after the detective and
other interviewing officers interviewed him for several hours, telling him he should “help
himself” because he was “in the middle” of the killing, he began to feel the investigation was
centering on him.

Crockett agreed that he was friends with a man named Bronson Coleman and that
Coleman was physically similar to the Defendant because he was about five feet, seven
inches tall, dark skinned, and wore his hair in braids.

Crockett recalled that on the morning of April 23, 2006, after he woke up at his home
in Parkwood, he took a bus to a friend’s house on May Street, and that he walked from this
friend’s house to the public park, which was about five minutes away, to play basketball. He
recalled he was wearing black shorts, a white t-shirt, and a red, white, and blue hat. Crockett
did not know the names of the people he played basketball with at the park.

Crockett recalled that the Defendant was wearing a red t-shirt, blue shorts, and a red
hat on April 23. He explained that he could not see the gun the Defendant obviously had
been carrying because the Defendant was wearing very oversized clothing. He did not
know how much money the Defendant displayed to him when he showed him the cash he had
for the car, though he testified the victim was asking for six to eight hundred dollars for the
car. Crockett did not know how much the victim wanted for the sound system alone.

Because Crockett’s ears started ringing after two or three gun shots, he was not sure
how many times the Defendant shot the victim. He recalled that several people were on
Hester’s front porch when they drove by but that Hester was the only one that could possibly
have seen the shooting, though bushes would have obscured his view. Crockett denied that
he had ever bought or sold drugs from Hester or that he had ever been Hester’s “do boy.”
Crockett was not sure whether the Defendant smoked cigarettes or cigars but was certain the
Defendant used his own lighter to set the victim’s clothing on fire. He explained that, after
the Defendant set the victim’s clothing and shoes on fire, he placed the flaming mass on the

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road and immediately told Crockett to drive away. Also, Crockett clarified that, after he
parked the car outside the store where he claimed a friend worked, he simply got out of the
car and walked down the street. He explained that, because they were in a public area, he did
not believe the Defendant would shoot him if he fled in this way.

Crockett stated that, before his October 2006 arrest for selling crack cocaine, he had
only been selling drugs for about six weeks. He carried the .22 caliber pistol because he was
selling drugs. He acknowledged that he also owned a .32 caliber rifle, which police seized
from his home. Crockett denied that he had ever had a “falling out” with the Defendant over
money. He also denied that Bronson Coleman, with whom he had been friends for over six
years, was actually the shooter and that he was falsely identifying the Defendant as the
shooter to protect Coleman.

Genesis Hester testified that his sister and the Defendant have a child together and that
he is not the Defendant’s father. Before the shooting, Hester knew the Defendant only as
“T.J. Davis.” He said he resided at 234 Old Amqui Road with his mother, two sisters, two
brothers, and three nieces and nephews at the time of the shooting.

On April 23, 2006, Hester was at his home along with the rest of his family. Standing
outside, Hester saw a Cutlass with a nice paint job and a pair of twenty-two inch tires drive
past his house toward the end of the Old Amqui Road. He recalled that the Cutlass was
carrying three people. Two houses and an empty lot separate Hester’s home from where Old
Amqui Road dead ends. Two to three minutes after the car passed Hester’s house, he heard
gun shots coming from the direction in which the car had traveled. About two minutes after
these shots, the car drove back by Hester’s house, going the opposite direction and carrying
only two people.

The car stopped in front of Hester’s house, and the Defendant was seated in the
passenger seat, which faced Hester’s house. He recognized the driver as a man he knew
through the Defendant only as “Mike.” The Defendant then said to Hester, “Look at my new
rims,” and started to turn the hydraulic switches up and down, which caused the car to go up
and down. Hester asked the Defendant, “What were those gunshots?” to which the
Defendant replied, “I don’t know what you’re talking about.” The car then drove off. Hester
and the driver, “Mike,” never spoke during this exchange.

Hester never went to the end of his street to investigate whether the Defendant had
shot someone, and he did not call police. About four or five hours later, emergency
personnel and police began to arrive. Hester still did not report his exchange with the
Defendant to police. Hester explained that he wished to avoid contact with the police
because he was selling drugs from his home. When a police officer came to his house to

7
question him about the killing, he summoned his mother and had her speak with the police
in his stead.

In June 2006, police executed a drug search warrant on Hester’s house and arrested
Hester as well as several other people. Two or three days after his arrest, Detective Anderson
questioned him about the killing, and he told the detective what he had seen. Hester said he
divulged this information because he “had nothing else to lose” and because, having watched
television specials about unsolved murders, he felt bad about the situation. He said that when
he finally did disclose what he witnessed of the victim’s murder, he did not do so with the
expectation that police would help him with his drug charges. He testified, however, that he
had been offered a sentence of six years of probation to be served at thirty percent for his
drug charges if he testified in this case.

Hester confirmed he testified at the Defendant’s preliminary hearing and that he had
reviewed recordings of his original statement to police and of his preliminary hearing
testimony. He confirmed that one of the other people arrested at his home in June 2006 was
Sharika Holt. He also confirmed that when he returned to his home after being released from
jail, quite a few items were missing from his home.

On cross-examination, Hester clarified that, when he was arrested at his home in June
2006, he was on bond, for a previous cocaine sale charge. The State offered a plea deal of
six months of probation on that charge, as well. Hester understood he would have to serve
his sentence from convictions stemming from his June 2006 arrest consecutively to this six-
month sentence.

Hester estimated he heard about three gunshots coming from the end of Old Amqui
Road. He did not believe the rest of his family heard the gunshots, and he never talked about
the incident with anyone else in his family. He explained that part of the reason the family
never discussed the shooting was that the rest of his family went to bed early in order to go
to church the next morning.

Hester testified that police recovered a set of twenty-inch “Boss” rims from his house
when they executed the June 2006 search warrant and that these were not the rims taken from
the victim’s car, which he said were twenty-two inch rims. He testified he sold powder
cocaine, and nothing else, from his home. Hester denied that Crockett had ever worked for
him, and he said he did not know Bronson Coleman.

Johnny Lawrence, an officer in the identification section of the Metro Nashville Police
Department, testified that on April 28, 2006, he examined a burned Cutlass that was brought
to his laboratory. Investigating officers requested Officer Lawrence search the car for latent

8
fingerprints, so the officer photographed the car, and examined the unburned portions of the
car for fingerprints. The State entered as exhibits A-D four photographs of the car, which
the officer confirmed he took. Officer Lawrence agreed that Exhibit B, a photograph of the
exterior of the car, showed that one wheel had only three lugnuts whereas most American
wheels have five lugnuts. He agreed that Exhibit C, a photograph taken looking through the
passenger window, showed electric wiring hanging from the dashboard. The officer
surmised the wiring either ran to stereo speakers or was part of the car’s electric wiring. He
found no speakers, stereo equipment, or burned remains in the car.

Officer Lawrence lifted several latent prints from the front of the car’s hood. The
officer testified that, given that the car had been set on fire and later doused with water, he
was surprised to find any prints at all. Fearing that an attempt to lift the prints would destroy
them, he instead only photographed the prints and turned the photographs in for examination.

Harold Dean Haney, a detective in the North Precinct Investigations Unit of the Metro
Nashville Police Department, testified he was assigned to the victim’s death. The victim’s
body was undisturbed when he arrived to where the body had been found on Old Amqui
Road. Having nothing to identify the victim, he enlisted the aid of Officer Fernandez, who
put them in touch with Juan Acosta. Detective Haney met with Acosta at Acosta’s
daughter’s apartment on Murfreesboro Road. Acosta identified the victim as Moreno-
Gutierrez and gave the detective the victim’s laptop computer along with several other of the
victim’s belongings.

Detective Haney found several photographs of the victim on the laptop. He also found
several photographs of the Cutlass police recovered in this case. He testified that, given the
buildings in the background, the pictures appeared to have been taken in Madison. These
pictures showed the Cutlass’s license plate number and a “FOR SALE” sign in the back
window. Another photograph showed a CD and DVD stereo system and a six-inch TFT
monitor. A stereo box with punch speakers appeared to be inside the car’s trunk in another
picture. The control box for a hydraulic system appeared in another photograph.

The detective obtained a pair of the victim’s shoes, which were size 9.5, the certificate
of title to the victim’s Cutlass, and the victim’s cell phone number. Detective Haney
obtained a subpoena for the records pertaining to the victim’s cell phone number. Reviewing
a copy of these records, the detective confirmed that the last activity on the victim’s cell
phone were calls placed to and received from 615-416-9281. Accordingly, the detective
subpoenaed the cell phone records pertaining to this number and found that this number was
registered to the Defendant. This information is what originally led the detective to
investigate the Defendant.

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 Detective Haney testified that, given the proximity of the victim’s body to Hester’s
house, where police knew drugs were sold, he informed the narcotics unit that Hester might
have information about a homicide. He asked the narcotics unit to inform him in the event
they arrested Hester. The narcotics unit arrested Hester in June 2006, and they informed
Detective Haney, who interviewed Hester in jail on June 16, 2006. The detective said he
neither offered Hester anything in exchange for talking to him about the shooting nor
informed Hester of the cell phone records linking the Defendant to the victim.

Based on what he learned from Hester, Detective Haney obtained an arrest warrant
for the Defendant, which he executed on June 21, 2006, when he arrested the Defendant at
the home of the Defendant’s sister, Markia Winters. The detective obtained a search warrant
for Winters’s home, which he served later that same day. He found car stereo equipment
inside the closet of the front room of the home. The State entered into evidence the stereo
equipment found at Winters’s home. The detective testified that this stereo equipment had
unique markings due to wear and tear that were identical to markings on the photographed
stereo equipment on the victim’s laptop. Given this similarity, Detective Haney concluded
that the stereo equipment in Winters’s house belonged to the victim.

Detective Haney also recovered assorted pieces of stereo equipment hardware from
Winters’s home. Among other things, he found a Rockford Fosgate amplifier, a monitor
mount, and a “monster” cable used for audio hookups, which generally are installed inside
a car door. Most of the hardware’s wiring had been cut away from its original source. The
detective also found several four-inch speakers wires, two of which were Pioneer speakers
wires. Finally, the detective recovered an Audio Video Entertainment (“AVE”) six-inch TFT
LCD monitor and a JVC CD-DVD stereo system. Detective Haney testified that the laptop
photographs of the victim’s car showed that the monitor installed in his car was an “AVE”
monitor and that his stereo system was a JVC system. From this, and from the fact that the
monitor and stereo systems found in Winters’s house were similar in all other respects to
those in the photographs on the victim’s laptop, Detective Haney concluded that the
recovered equipment came from the victim’s car.

Detective Haney confirmed he interviewed Michael Crockett on October 12, 2006,
after Crockett had been arrested in an unrelated incident. Detective Haney confirmed that
Crockett was carrying a .22 caliber rifle when he was arrested. He also testified that Crockett
had been carrying a .32 caliber rifle when he was arrested on an earlier charge that predated
Moreno-Gutierrez’s death. The detective said he did not offer Crockett leniency in exchange
for his statement about the killing. Also, the detective confirmed that he received three
bullets from the medical examiner, which he recovered in the course of the victim’s autopsy.

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 The detective said that officers saw a pair of rims in Hester’s house the day they
arrested him. One day later, after he interviewed Hester, Detective Haney went to Hester’s
house to view these rims; however, the rims were no longer in Hester’s house.

On cross-examination, Detective Haney confirmed he was lead detective in this case,
recalling that his team searched all of Old Amqui Road, a nearby trailer park, and a few
nearby businesses for evidence related to the killing. He said his team did not find any
burned clothing or shoes on or near East Campbell road, where Crockett said the Defendant
left the victim’s clothing after he set it on fire. The detective agreed that the stereo
equipment found in the Defendant’s sister’s house was what the Defendant would possess
had he bought only the stereo system from the victim.

Recalling his interview with Crockett, Detective Haney maintained that he never
offered Crockett anything in return for his statement but confirmed that he encouraged
Crockett to disclose what he knew in order to protect himself. The detective said that he was
not aware of anyone visiting Hester or of Hester placing a phone call to anyone after he was
arrested.

Dr. Staci Turner, an assistant medical examiner for Davidson County and an expert
in the field of forensic pathology, performed an autopsy on Morena-Gutierrez on April 24,
2006. Reviewing the victim’s autopsy report, she testified that he suffered seven gunshot
wounds to the head and one gunshot wound to the left shoulder. Of the seven gunshot
wounds to the victim’s head, only three would have been fatal and the remaining four passed
through the victim’s scalp. The doctor determined that one of the fatal shots was fired while
the gun was pressed against the victim’s head. She could not say from where the gun was
fired for the remaining shots, but she was certain that the same gun could have caused all of
the gunshot wounds. She testified that the victim’s cause of death was multiple gunshot
wounds and his manner of death was homicide.

On cross examination, Dr. Turner agreed that the four bullets that did not embed in
the victim’s head could have come to rest outside the victim’s body, but she said she had no
way of knowing where the bullets would have landed.

Jean McCormick, an officer with the North Crime Suppression Unit of the Metro
Nashville Police Department, testified she was part of the team that searched Hester’s home.
McCormick testified that as she walked through the house’s back door onto the patio and
looked to the right, she saw four tires stacked up on top of each other in a corner. Viewing
a photograph of the rims believed to be taken from the victim’s car, she said the rims in the
photograph were not the rims on the tires she saw on Hester’s back patio.

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 On cross-examination, Officer McCormick agreed that she primarily was searching
for drugs or weapons rather than rims when she searched Hester’s house and that it was dark
outside when she saw the rims on the patio. She agreed that many items were spread out
around the back patio of the house and that, as a result, she may not have noticed if another
set of rims was present.

Thomas E. Simpkins, an officer with the Metro Nashville Police Department,
participated in the execution of the search warrant of Marika Winters’s house on June 21,
2006. He was tasked with photographing several items to be seized and searching for
fingerprints. He photographed a JVC car stereo, a Punch speaker box, a Cutlass Supreme
decal, a collection of car speakers, and a pair of shoes, which were all found in a closet on
the first floor of the home. Officer Simpkins was able to lift latent finger prints from the
AVE box, the JVC car stereo, and two scan disks.

Larry Farnow, a Police Identification Specialist II with the Metro Nashville Police
Department Identification Division, explained his job involved evaluating latent finger prints
and comparing the print to prints contained in the Automated Fingerprint Identification
System (“AFIS”). The officer received the two latent finger prints lifted from the hood of
the burned out Cutlass. He was able to match one of these prints to the victim, but the other
print was of “no value,” meaning it contained insufficient ridge detail from which to
construct a print profile.

Officer Farnow also received the latent fingerprints collected from the stereo
equipment found in Winters’s home. Of these, nine were of no value, but one contained an
identifiable print. The officer identified this print as the same as the right index finger on the
ten-print card taken from the Defendant.

Michael L. Pyburn, an officer with the Metro Nashville Police Department and an
expert in firearm and toolmark examination, testified he received a discharged bullet and two
undischarged cartridges from Officer Matthews, who recovered them from the scene of the
victim’s killing. He testified the unfired cartridges were .380 caliber automatic cartridges
manufactured by Winchester, which ordinarily are fired from a semi-automatic pistol. He
testified that the discharged bullet was a .32 caliber bullet and the number of lines and
grooves it contained indicated it was fired from a revolver.

Officer Pyburn also received three metal-jacketed lead bullets from the medical
examiner, who found the bullets lodged in the victim’s brain and neck. He testified each
bullet was a .32 caliber automatic bullet fired from the same unknown firearm. He said the
majority of .32 caliber revolvers carry eight bullets, though some carry only five.

12
 On cross-examination, Officer Pyburn said that a .38 caliber bullet could not have
been fired from a .32 caliber revolver. He agreed, therefore, that the .38 caliber bullets found
at the scene of the killing could not have come from the .32 caliber revolver that fired the .32
caliber bullets found in the victim’s head.

The State rested its case, and the defense then called Xuandra Scruggs, who dated the
Defendant for two years while she was in high school. Scruggs testified that on April 23,
2006, around 12:30 p.m., the Defendant called her and asked her to pick him up at the public
park in Madison. She said that when she arrived, the Defendant’s friend “Danny” and a
Hispanic male were at the park with him. She recalled that the Hispanic man was driving a
“fixed up older model car.” She said the Defendant bought speakers from the Hispanic man,
put the speakers in Scruggs’s trunk, and they left.

Scruggs acknowledged that she gave a statement to Detective Haney in which she
denied picking the Defendant up at Madison Park and denied allowing the Defendant to put
a stereo in her trunk. She explained that she denied these things because she did not
understand that Madison Park was the park she knew as “the center,” and because she
allowed the Defendant to put speakers, and not a stereo, in her trunk.

Scruggs continued her account of April 23, 2006, testifying that, after she and the
Defendant left the park, they drove to Green Hills, waited for a friend to get off work, and
then picked up the friend and drove her home. She said she and the Defendant then returned
to her house between 4:00 and 5:00 p.m. She said the Defendant was living with her at that
time, so he stayed at her house that night. Scruggs said that the speakers remained in her
trunk for “a while” but that she took them inside her house and placed them in a closet so
they would not be stolen. After the speakers had been in her house a month, she and the
Defendant had an argument, so he moved his belongings, including the speakers, to his
sister’s house. Again, she acknowledged telling Detective Haney she did not allow the
Defendant to store a stereo in her home but explained she believed the detective was
referring to a home stereo rather than a simple set of speakers. She confirmed that the
speakers entered into evidence as those seized from Winters’s home were the speakers the
Defendant stored in her trunk and, later, her closet.

In the three to four years Scruggs had known the Defendant, she had not known him
to either smoke or carry a cigarette lighter. Scruggs identified a photograph of the victim’s
car and stated it looked similar to the car she saw the Hispanic man driving. She viewed a
photograph of the victim and said the man pictured looked like the Hispanic man she saw in
the park with the Defendant.

On cross-examination, Scruggs confirmed that, when she gave her statement to

13
Detective Haney on June 22, 2006, she knew that the Defendant had already been arrested.
She agreed that, when she spoke with Detective Haney, she had not spoken with the
Defendant since his arrest. Scruggs agreed she knew the Defendant was charged with
murder, and the interview was critical to herself, the police, and the Defendant. She
reiterated, however, that she did not realize that the detective was referencing the park she
knew as “the center” when he asked her about Madison Park. Scruggs explained that the
name, “the center,” by which she knew Madison Park, referred to the recreational center in
the middle of the park.

She said she did not remember Detective Haney saying during the interview, “We’re
talking about the park over around the center.” The State played a two-minute portion of her
interview with the detective in which the detective clarifies that, in asking her whether she
met the Defendant at “Madison Park,” he is referring to the park that encircles the center.
After the tape was played, Scruggs maintained that she did not hear the detective give this
description during their interview. She said that the Defendant informed her a few days after
her interview with the detective that he was alleged to have killed a Hispanic man and stolen
his stereo equipment. She said that, at this point, she remembered that she had picked up the
Defendant at Madison Park and let him store his stereo equipment in her trunk. She said that,
since remembering these events, informing police of this potentially exculpatory information
simply did not cross her mind. She also said she was “trying to stay away from all of it.” She
testified that she did not tell anyone that the Hispanic man the Defendant was accused of
killing was alive when she picked the Defendant up from the park because she did not know
whom in the police department to contact. Scruggs suggested again that she did not disclose
this information because she wanted “to keep [herself] out of trouble.” Scruggs said the
Defendant was “not currently” her boyfriend and that the last time she had seen him was one
and a half months before trial.

Katherine Green, an employee of R.W. Back, Inc., located at 400 Professional Park
Drive in Goodlettsville, Tennessee, testified that she left work to pick up lunch, and, when
she returned, she followed a car driven by a white man in his forties or fifties with light hair
into the parking lot. Later, while she was eating her lunch in the break room, another
employee suggested she move her car because a car had been set on fire very near to her car.
Green saw the car that was on fire and realized it was the car she had followed into the
parking lot.

The State called Detective Haney as a rebuttal witness. Detective Haney confirmed
he and Detective Danny Satterfield repeatedly asked Scruggs whether she picked up the
Defendant and any sound system or stereo equipment, but Scruggs denied that she had. He
also confirmed that he explained to Scruggs that, in referring to “Madison Park,” he meant
the park containing the area she knew as “the center.” He said that, during the interview, the

14
park they were referring to was perfectly clear.

The jury convicted the Defendant of first degree felony murder, first degree
premeditated murder, and especially aggravated robbery. The trial court merged the two
murder convictions and imposed a life sentence for Moreno-Gutierrez’s murder. The trial
court conducted a sentencing hearing wherein it reviewed the presentence report and heard
testimony from several witnesses. According to the presentence report, the Defendant was
nineteen at the time of Moreno-Gutierrez’s death and twenty at the time of trial. He dropped
out of high school his senior year. He stated to the officer preparing the investigation report
that he attempted suicide in 2001 and subsequently received mental health treatment. The
Defendant is unmarried and has one son. His previous convictions included driving on a
suspended license and criminal impersonation.

The presentence report included a statement by the Defendant disclaiming
involvement in the victim’s death. In the statement the Defendant said he met the victim by
chance at Madison Park and exchanged numbers with the victim to discuss purchasing his
car. He says he called the victim the next day and arranged to meet him at the park again.
He met the victim, inspected the car’s engine, and decided to only buy the car’s speakers.
He said the victim helped him load the speakers into Scruggs’s car, and then he and Scruggs
left the park.

The report includes two victim impact statements, one from Sylvia Fregoso and the
other from Norma Carmona, that describe the victim’s family’s painful reaction to his death
and ask the court to impose a sentence that would prevent the Defendant from ever being
released. Moreno-Gutierrez’s cousin, Sylvia Fregoso, testified that her grandmother raised
Moreno-Gutierrez since his mother died when he was three years old. She introduced a letter
from his grandmother who resided in Guadalajara, Mexico. The letter described her grief
over her grandson’s death and her hope that the Defendant would face justice. Betty
Carmona, another cousin of Moreno-Gutierrez, testified that her cousin had surmounted
enormous difficulties, such as his mother’s death, and remained a positive member of society
and of his family. She said he worked and sent money to his grandmother in Mexico. She
expressed her anger at the Defendant for depriving her family of such a beloved person as
Moreno-Gutierrez.

Also at the sentencing hearing, Detective James Fuqua, an investigator in the North
Precinct of the Metro Nashville Police Department, described his investigation of the
Defendant’s involvement in the murder of Michael Adams, which occurred after Moreno-
Gutierrez’s murder. At the time of sentencing, the Defendant had not yet been tried for his
involvement in Adams’s death. The detective testified that on June 5, 2006, he arrived at
Adams’s apartment in Madison, Tennessee, where Adams’s body was found. This was six

15
weeks after Moreno-Gutierrez was murdered. He recalled that Adams’s front door had been
kicked in and that a blood trail led from the kitchen to the living room, where he found
Adams’s body slumped over at the knees, appearing to have been shot in the head. He
testified that an examination later revealed Adams had been shot once in the head, once in
the shoulder, and once in the chest. He recalled that the apartment had been “ransacked” and
that Adams’s 2004 Chevrolet Silverado was missing. Officers later recovered the victim’s
Silverado in Hermitage, Tennessee. The detective said the truck had been so badly burned
that it was of no evidentiary value.

The detective testified that, when the Defendant was arrested on charges that he
murdered Moreno-Gutierrez, police found several of Adams’s belongings in the Defendant’s
possession, such as prescription medications and martial arts knives, which Adams collected.
Also, the bullets that killed Moreno-Gutierrez and the bullets that killed Adams were all .32
caliber rounds that analysis determined to have been fired from the same gun. Detective
Fuqua interviewed Michael Crockett, the Defendant’s co-defendant in Moreno-Gutierrez’s
murder, and he corroborated other evidence implicating the Defendant in Adams’s murder.

On cross-examination, the detective confirmed he learned during his investigation that
Crockett and another man had helped Adams move into his apartment. He agreed that this
would have given Crockett the opportunity to view Adams’s collection of knives. The
detective said his investigative team never determined whether the Defendant’s foot could
have left the footprint left on the kicked-in door of Adams’s apartment. He also
acknowledged that he did not know how many people stayed at the Defendant’s sister’s
home, where Adams’s belonging were found during the Defendant’s arrest. Finally, he
confirmed his team never found the gun used to kill Adams and Moreno-Gutierrez.

The trial court noted that it was required to ensure the punishment was justly deserved
in relationship to the seriousness of the offense and to preserve prison capacity for the most
severe offenses committed by those possessing criminal histories evidencing a clear disregard
for the law. The court found that enhancement factors (1), that the Defendant had a history
of criminal behavior, and (2), that the Defendant was the leader in the commission of a
felony, applied to the Defendant’s conviction for especially aggravated robbery. It sentenced
the Defendant to twenty-three years for his especially aggravated robbery conviction.

The trial court found that the record established by clear and convincing evidence that
the Defendant murdered Adams shortly after he murdered Moreno-Gutierrez. Based on this
conduct, the trial court found that the Defendant was a “dangerous offender” as defined by
consecutive sentencing factor (4) and ordered his sentences to be served consecutively for
a total sentence of life plus twenty-three years.

16
 B. Davis II

In June 2008, the Defendant was tried for Michael Adams’s robbery and murder. At
this trial, the following evidence was presented: Cody O’Quinn, a Metro Nashville Police
Department investigator, testified he received a call from a woman who requested a welfare
check at the apartment at 311 Nix Drive because no one had heard from its resident, Michael
Adams, in three or four days. When the investigator arrived at the apartment , Adams’s
truck was not at his residence. The officer approached the door to the apartment and found
it slightly ajar and marked with a footprint. He tried to push the door open, but the door
would only open six to eight inches before it struck molding knocked loose from its frame.
He called out for Adams but received no response. The officer forced the door open and
immediately noticed droplets of blood on the kitchen floor. He then summoned his sergeant
and did not enter the apartment until his sergeant and another officer arrived.

As he entered the apartment he noticed the apartment smelled “bad,” and the kitchen
was slightly disheveled. As he looked into the living room from the kitchen he saw smudges
of blood down the arm of a sofa that was facing the kitchen. The officer continued on into
the living room, which had been ransacked, and he found Adams’s body lying on the floor
positioned on his stomach with his legs tucked underneath his torso and his head on the floor.
Blood had pooled on the carpet underneath the left side of Adams’s head, and a computer
printer lying nearby on the floor was splattered with blood. Having found Adams’s body,
the officer retreated from the apartment, roped it off, and called precinct detectives.

Dr. Amy R. McMaster, an expert in the field of forensic pathology, supervised
Adams’s autopsy, which revealed that Adams suffered three gun shot wounds: one to the
head, one to the shoulder, and one to the left side of the abdomen. The gun shot wound to
Adams’s head entered from the top and traveled downward but would not necessarily have
been fatal because it did not enter his brain or skull. The gun shot wound to his shoulder,
however, would have been fatal because after it entered his shoulder, it traveled downward,
puncturing a lung and his aorta. Dr. McMaster estimated this wound would have killed
Adams in less than a few minutes. The gun shot wound to Adams’s abdomen would also
have been fatal because, after it entered the left side of the abdomen, it injured the stomach
and the mesentery, which supports and nourishes the stomach. The doctor said this wound
would not, however, have caused Adams’s death as quickly as the wound to his lung and
aorta.

The doctor recovered the bullets from Adams’s two gunshot wounds and delivered
them to investigating officers. She testified that, given Adams’s body temperature, he had
been dead at least one day when his body was found. Also, she said his body tested negative
for the presence of drugs. The doctor testified his cause of death was multiple gunshot

17
wounds and his manner of death was homicide.

Felicia Evans, a crime scene investigator for the Metro Nashville Police Department,
produced a diagram of the scene within Adams’s apartment. Reviewing the diagram, Officer
Evans said it showed that someone had forced open not only the entrance opening into the
kitchen but also the entrance to the back bedroom from a bathroom. Pictures of the
apartment showed droplets of blood on the floor in front of the refrigerator and a trail of
blood leading from the kitchen, down the hallway, and into the living room. The pictures
also showed a shirt lying in the hallway alongside the refrigerator, a blood smear on the arm
of a couch, and the victim’s body lying in front of a door.

Officer Evans, along with other officers, searched Adams’s home for fingerprints and
ballistic evidence. They located several fingerprints, which they turned over for further
examination. They did not find any ballistics evidence.

The State entered the following stipulation as to the events of April 23 and 24, 2006:
“The parties agree that the State could present evidence that would establish that on April
23rd or 24th of 2006 the [D]efendant fired a gun outside of 206 Old Amqui Road in
Madison, Tennessee and the police collected fired bullets. The jury should consider these
facts as proven.”

Harold Dean Haney, a detective with the North Precinct Investigation Unit of the
Metro Nashville Police Department, testified he was involved in the investigation of the
Defendant in 2006. He confirmed that he and other officers arrested the Defendant on June
21, 2006, at his sister’s home. He recalled that, after he arrested the Defendant, he and
several other officer’s searched the home and found several prescription pill bottles inside
a pillow case in a kitchen closet. These pill bottles bore prescription labels written out to
Michael Adams, Marilyn Adams, and Mary Wooding. They collected the pill bottles and
submitted them for fingerprint analysis. The officers also collected five unique, “Gothic
looking” knives in the home.

On cross-examination, Detective Haney said he did not know whether Sheylean
Hester, Genesis Hester’s sister and the mother of the Defendant’s son, was living at the
Defendant’s sister’s house. Also, he said he did not know the results of the fingerprint
analysis of the pill bottles taken from the Defendant’s sister’s home.

Johnny C. Lawrence, an officer in the identification section of the technical services
of the Nashville Metro Police Department, photographed Adams’s vehicle after it was found
on Central Pike in Hermitage, Tennessee. The truck had been pulled up behind a building
to where it was barely visible from Central Pike and severely burned. Officers found the

18
vehicle’s license plate at the scene. After officers retrieved items from the vehicle, it was
towed to a lot operated by the police department.

Officer Lawrence was tasked with examining the pill bottles collected from the
Defendant’s sister’s home. He located a partial fingerprint from one of the bottles, lifted the
print, and submitted it for comparison analysis.

William Kirby, an officer in the identification crime scene section of the Metro
Nashville Police department, testified he processed a burned Chevrolet Avalanche on June
10, 2006. The officer was only able to process a small amount of paint that was not burned
off the vehicle’s exterior. He was unable, however, to lift fingerprints from this paint
section.

Thomas E. Simpkins, an officer in the identification section of the Metro Police
Department, processed and photographed the knives collected from the Defendant’s sister’s
home during his arrest. Officer Simpkins was able to develop and lift a fingerprint from each
knife. He submitted these prints for comparison analysis.

Brenda Russell, an expert in latent fingerprint examination and a Metro Nashville
Police Department officer, received the fingerprints recovered during the Adams death
investigation. None of the prints were clear enough to compare them against profiles
contained within the Automated Fingerprint Identification System (“AFIS”). Two of the
prints, however, were clear enough to examine under a magnifying glass and determine that
they belonged to Adams. On cross-examination, Officer Russell agreed that she did not
receive any fingerprints that belonged to the Defendant.

Alex Brodhag, a firearms examiner in the forensic services division of the Tennessee
Bureau of Investigation (“TBI”), explained he could determine whether a bullet was fired
from a specific firearm by examining the unique markings that a firearm leaves on the
surface of a bullet it fires. He said that two identical guns made by the same manufacturer
would each leave unique markings. Detectives sent Agent Brodhag four bullets they
collected on Old Amqui Road on April 23 or 24, 2006. Also, Dr. McMaster sent the agent
two bullets she recovered from Adams’s body. Agent Brodhag examined each of the six
bullets submitted to him for examination and determined each was fired from the same barrel
in the same .32 caliber weapon. Agent Brodhag said the weight of the bullets he received
for analysis suggested they were fired from a .32 caliber automatic cartridge, which normally
is fired from a pistol.

Marilyn Adams, the victim’s mother, testified her son had lived at his apartment only
one month before he was killed. She said he had several jobs including servicing computers

19
in medical offices, working for Dell, and selling real estate. Ms. Adams testified she kept
several prescription medications, including Oxycontin, at her son’s apartment when she left
town because her family cautioned her against traveling with Oxycontin. Viewing the pill
bottles seized during the Defendant’s arrest, she confirmed that several of the bottles
belonged to her. Ms. Adams said her son previously was married to Mary Evelyn Woody,
to whom the remaining bottles were prescribed.

James Court Kolter, the victim’s brother, recalled he and his brother used to attend
knife shows together and purchase unique knives. Viewing the knives seized from Winters’s
home, he said he had seen three of the knives on display in his brother’s living room. One
of the remaining two knives also looked familiar to Kolter. Viewing photographs of the
burned-out Chevrolet Avalanche, he confirmed the vehicle was his brother’s.

Sherylean Hester testified that she and the Defendant had a child together in June
2005. In June 2006, she was still dating the Defendant, and she was living with her brother,
Genesis Hester, on Old Amqui Road. She said her son and five of her brother’s friends also
lived with them on Old Amqui Road. Hester testified she commonly heard gunshots on Old
Amqui Road during April, May, and June of 2006. Sherylean Hester moved from the house
in June 2006 to live with her sister, but she left behind some clothing.

Hester recalled that, after police searched her brother’s house on Old Amqui Road,
she asked the Defendant to retrieve some of her clothing from the house. He did so and
returned with two bags: one containing her and her son’s clothing and another containing
prescription pill bottles. She said the bags did not contain knives, and the Defendant took
the bag of pill bottles with him when he left.

Julia Eggers, a real estate broker who also owned and managed rental property,
testified she met the victim when he worked on her business computers. He subsequently
rented his apartment from her. She said she and Adams had only a “close” friendship beyond
their business dealings and denied having an intimate relationship with him. She also denied
that her husband and the Defendant had ever fought, though she said her husband
occasionally became frustrated with the Defendant over computer issues.

Robert Eggers, Julia Eggers’s husband, said he knew the victim because he serviced
his wife’s business computers. He said his wife’s relationship with the victim was “strictly
professional,” though he acknowledged they occasionally had lunch together. He denied ever
suspecting the two had a romantic relationship or becoming angry over such a suspicion.

In rebuttal for the State, the victim’s mother, Ms. Adams, recalled an occasion she and
her son stopped by Julia Eggers’s office, and Robert Eggers pulled up and began to threaten

20
her son. She recalled that Mr. Eggers, who was intoxicated and angry, cursed at Adams,
calling him a “son of a bitch,” and saying “he was going to kill [her son’s] ass.” Ms. Adams
said her son went inside in order to diffuse the situation, while she stayed outside and spoke
with Mr. Eggers.

After hearing the above evidence, the jury convicted the Defendant of felony murder,
premeditated murder, and especially aggravated burglary. The trial court merged the two
murder convictions, and it conducted a sentencing hearing. The trial court imposed a life
sentence as to the murder conviction and an eighteen-year sentence for the especially
aggravated robbery conviction. Finding that the Defendant was a dangerous offender, the
trial court ordered these sentences to be served consecutively for a total sentence of life plus
eighteen years.

II. Analysis

On appeal, the Defendant contends that the evidence was insufficient to establish his
identity as the perpetrator in either Davis I or Davis II and that the trial court improperly
imposed consecutive sentencing in Davis I.

A. Sufficiency of the Evidence

The Defendant contends the evidence offered at trial in Davis I is insufficient to
support his convictions for first degree murder and especially aggravated robbery.
Specifically, he asserts that the testimony that he was the perpetrator of Moreno-Gutierrez’s
robbery/murder was unreliable and that his girlfriend’s alibi testimony established that he
could not have been the perpetrator. The State responds that, because the jury was entitled
to credit the former testimony and discredit the latter, the record sufficiently supports the
Defendant’s convictions in Davis I.

As to Davis II, the Defendant contends the record does not support his convictions
because it contains no forensic evidence connecting him to Adams’s murder. The State
responds that adequate circumstantial evidence establishes the Defendant’s identity as the
perpetrator of Adams’s robbery/murder.

When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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 Tenn. R. App. P.
13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,

21
circumstantial evidence, or a combination of both direct and circumstantial evidence. State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). A conviction may be
based entirely on circumstantial evidence where the facts are “so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant
alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn.1993). The jury decides the weight to
be given to circumstantial evidence, and “[t]he inferences to be drawn from such evidence,
and the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (citations omitted).

In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee 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, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 212 Tenn. 464, 370
S.W.2d 523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record, as well as all reasonable inferences
which may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith,
24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes
the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain
a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

1. Davis I

22
 The record in Davis I contains direct evidence that the Defendant was the perpetrator
of victim Moreno-Gutierrez’s murder. Co-defendant Crockett testified that he accompanied
the Defendant as he drove the victim’s Cutlass past Genesis Hester’s house to a secluded
location, ordered the victim out of the car, shot the victim several times, and left, briefly
stopping at Hester’s house. Ample circumstantial evidence corroborates Crockett’s account:
Genesis Hester testified that a car carrying the Defendant and two males drove past his house
on the day of the victim’s death and returned minutes later with the Defendant and only one
other male. Between when the car arrived and departed, Hester heard several gunshots.
Phone records show that the last calls on the victim’s cell phone were placed to and received
from the Defendant. The stereo equipment featured in pictures found of the Cutlass on
Moreno-Gutierrez’s computer was missing when police later found the Cutlass abandoned
and partially burned. Police later found this stereo equipment in a closet of the home in
which the Defendant was living when he was arrested. The Defendant agreed that he had
contacted and met with the victim but claimed he only purchased stereo equipment from him.

In conflict with the preceding evidence, Xundra Scruggs, the Defendant’s ex-
girlfriend, testified that on the day of the victim’s death she gave the Defendant a ride after
he briefly met with the victim at Madison Park. She testified the Defendant spoke with the
victim, purchased the victim’s stereo equipment, and placed the equipment in the trunk of
her car. She said the victim was alive when they left the park and that she and the Defendant
spent the remainder of the evening together. No evidence corroborates Xundra Scruggs’s
account. The jury was entitled to reject Scruggs’s testimony, as it apparently did in reaching
a guilty verdict. See Bland, 958 S.W.2d at 659.

Resolving all conflicts in favor of the State, we conclude the record establishes that
the Defendant met with the victim on the pretense of buying his car and took the car for a
“test drive” to a secluded location where he ordered the victim out of the car, shot him
execution-style, and drove away with the victim’s car, which he stripped of its rims and
stereo equipment and abandoned. Based on these facts, “any rational trier of fact could have
found” that the Defendant was the perpetrator of the victim’s murder and especially
aggravated robbery. See Jackson v. Virginia, 443 U.S. at 319. As such, the evidence is
sufficient to support the Defendant’s convictions for first-degree murder and especially
aggravated robbery in Davis I. He is not entitled to relief on this issue.

2. Davis II

With regard to the Defendant’s claim that the largely circumstantial evidence
supporting his convictions in Davis II was insufficient to support to establish his identity as
Adam’s assailant, we similarly find the record sufficient. As discussed above, where the
facts are “so clearly interwoven and connected that the finger of guilt is pointed unerringly

23
at the Defendant and the Defendant alone,” circumstantial evidence alone may support a
guilty verdict. See Smith, 868 S.W.2d at 569. Further, the jury decides “[t]he inferences to
be drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence.” See Rice, 184 S.W.3d at 662.

The record in Davis II establishes the following facts: The gun used to kill victim
Adams was the same gun that the Defendant fired in April 2006. Also, when the Defendant
was arrested several weeks after Adams’s death, he was in possession of several prescription
pill bottles and a knife collection that were missing from victim Adams’s apartment.
Sherylean Hester insisted in her testimony that the Defendant obtained the pill bottles from
her brother’s house; however, the jury was entitled to discredit her testimony. See Bland, 958
S.W.2d at 659. Moreover, the jury was entitled to give more weight to the circumstantial
evidence that the Defendant murdered victim Adams than to Hester’s testimony. See Rice
184 S.W.3d at 662. In our view, the facts connecting the Defendant to both the
instrumentality of and the fruit from Adams’s robbery-murder are “so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant
alone.” See Smith, 868 S.W.2d at 569. As such, we conclude that any rational trier of fact
could have found that the Defendant was the perpetrator of Adams’s murder and that, as a
result, the record sufficiently supports the Defendant’s convictions for first degree murder
and especially aggravated robbery. He is not entitled to relief on this issue.

B. Sentencing

The Defendant contends the trial court erred when it imposed consecutive sentencing
in Davis I because it partially based its finding that the Defendant was a dangerous offender
on its finding that the Defendant murdered Adams, though he had not yet been convicted of
so doing. The State responds first that the Defendant waives his objection to this sentencing
issue because he failed to cite to the record or relevant authorities in support of his argument.
Further, the State continues, the trial court’s reliance on the Defendant’s involvement in
Adams’s death was proper because a dangerous offender classification need not be based on
behavior for which a defendant has been convicted.

In the interest of justice, we will address the Defendant’s objection to his sentence
although his brief lacks adequate citation to the record and relevant authorities. It is within
the sound discretion of the trial court whether or not an offender should be sentenced
consecutively or concurrently. State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App.
1984). A court may order multiple sentences to run consecutively if it finds, by a
preponderance of the evidence, one of seven factors applicable to the case. T.C.A. § 40-35-
115(b)(1)-(7) (2006). These factors include factor (4), that the defendant is a dangerous
offender whose behavior indicates little or no regard for human life, and no hesitation about

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committing a crime in which the risk to human life is high. T.C.A. § 40-35-115(b)(1)-(7).
The trial court’s finding that the Defendant is a “dangerous offender” by itself is insufficient
to support consecutive sentences. In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), our
Supreme Court set forth additional requirements for consecutive sentences when the
defendant is a “dangerous offender.” Accordingly, in order to base consecutive sentencing
on the dangerous offender category, the trial court must find: (1) that the term imposed “is
necessary to protect the public from further criminal acts by the offender;” and (2) “that the
terms imposed are reasonably related to the severity of the offenses committed.” Id. at 938.
The requirement of additional findings when the defendant is a “dangerous offender” “arises
from the fact that of all of the categories for consecutive sentencing, the dangerous offender
category is the most subjective and hardest to apply.” State v. Lane, 3 S.W.3d 456, 461
(Tenn. 1999). The other categories for consecutive sentencing have “self-contained limits;”
thus, the additional findings are limited to cases involving consecutive sentencing of
“dangerous offenders.” Id.

A trial court may base its sentencing determinations in general upon prior criminal
behavior for which an accused has not yet been tried or convicted. State v. Carico, 968
S.W.2d 280, 287-88 (Tenn. 1998). Consequently, contrary to the Defendant’s argument on
appeal, a trial court may base its finding that a defendant is a dangerous offender upon
conduct that is not yet the object of criminal proceedings. State v. Horace Demon Pulliam,
No. M 2001-00417-CCA-R3-CD, 2002 WL 122928, *7 (Tenn. Crim. App., at Nashville, Jan.
23, 2002), perm. app. denied (Tenn. May 28, 2002). As long as the record establishes prior
criminal conduct by a preponderance of the evidence, a trial court may base its finding that
an accused is a dangerous offender on such conduct. Id.; see T.C.A. § 40-35-115(b)(4).

In addition to these criteria, consecutive sentencing is subject to the general
sentencing principle that the length of a sentence should be “justly deserved in relation to the
seriousness of the offense” and “no greater than that deserved for the offense committed.”
T.C.A. § 40-35-102(1), 103(2); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

At the conclusion of the sentencing hearing in Davis I, the trial court found that the
Defendant’s involvement in Michael Adams’s death justified consecutive sentencing:

[B]ased on the facts that I’ve heard . . . . [w]e now have Detective Fuqua
talking about the other homicide where Mr. Adams was found in his home,
shot with a gun that was also used in this case. The bullets matched. The car
was missing, found burnt. We have the items that were found where Mr.
Davis lived. And that is the medication as well as the martial arts. Again, the
vehicle was burned, and in this particular case beyond recognition. The
similarities as I determined previously–I found that it had been established by

25
 clear and convincing evidence, but for the purposes of this Detective
Fuqua–and this happens June the 5th, less than two months after the other
victim was executed.

And I think based on all of that I’m going to find that he is a dangerous
offender. And clearly I must go further and use the Wilkerson factors and
determine whether the aggregate term necessarily relates to the severity of the
offenses. Obviously two people were executed, and it’s necessary to protect
the public from further serious conduct by the [D]efendant. Obviously it’s
necessary when we have two serious situations as we have here well within a
month. The first one–the events of this case happened first followed by
another one where someone else is shot. At this point the record is not clear
as to who did the shooting, but clearly the same gun was used. And the fruits
of the crime were found–or some of the fruits of the crime were found with the
defendant and, therefore, I’m going to run these sentences consecutive to each
other.

Thus, the court found not only that the Defendant’s prior criminal behavior established his
status as a dangerous offender but also that the proximity of Adams’s murder to that of
Moreno-Gutierrez compelled the court to protect the public from “further serious conduct”
by the Defendant and, by implication, that a life plus twenty-three years sentence necessarily
related to the severity of Moreno-Gutierrez’s murder.

At the sentencing hearing, Detective Fuqua described several aspects of Michael
Adams’s murder that indicated the Defendant committed both Adams’s murder and that of
Moreno-Gutierrez: the bullets fired into each victim’s body were fired from the same .32
caliber gun; when the Defendant was arrested for Moreno-Gutierrez’s murder, he was found
to be in possession of several items stolen from Adams’s apartment; the victims’ killings
were carried out similarly: each was shot execution style and robbed, and each victim’s
vehicle was stolen, burned out, and abandoned. The record, therefore, does not preponderate
against the trial court’s finding for sentencing purposes that the Defendant murdered Adams.
See T.C.A. § 40-35-115(b)(4). Further, as is necessary to impose consecutive sentencing, the
trial court explicitly found that the Defendant’s resulting sentence reasonably related to his
conduct and was necessary to protect the public from further criminal conduct. See
Wilkerson, 905 S.W.2d 933. We conclude that the trial court properly found that consecutive
sentencing factor (4) applied to the Defendant’s crimes in Davis I and properly imposed
consecutive sentencing on that basis. The Defendant is not entitled to relief on this issue.

III. Conclusion

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 After a thorough review of the law and relevant authorities, we conclude that the
evidence sufficiently supports the Defendant’s convictions and that the trial court properly
imposed consecutive sentencing. As such, we affirm the trial court’s judgments.

__________________________________
ROBERT W. WEDEMEYER, JUDGE

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