State of Tennessee v. Kendrick Naylor

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 2, 2004

STATE OF TENNESSEE v. KENDRICK NAYLOR

Appeal from the Criminal Court for Shelby County
No. 01-06617 James C. Beasley, Jr., Judge

No. W2004-00329-CCA-R3-CD - Filed February 24, 2005

The appellant, Kendrick Naylor, was convicted by a jury of criminal attempt to commit assault,
felony evading arrest, and theft of property over $10,000. The trial court sentenced the appellant to
four (4) years as a Range II multiple offender for the evading arrest conviction and six (6) months
for the attempt to commit assault conviction, to run concurrently to the sentence for evading arrest.
The trial court sentenced the appellant to eight (8) years for the theft of property conviction, to be
served consecutively to the four-year sentence for evading arrest, for a total effective sentence of
twelve (12) years. After a motion for new trial was denied by the trial court, a timely notice of
appeal was filed. On appeal, the following issues are presented for review: (1) whether the trial court
erred in denying the appellant’s motion for a mistrial; (2) whether the evidence was sufficient to
sustain the convictions; and (3) whether the trial court erred in imposing consecutive sentences. We
affirm the judgment of the trial court and the appellant’s sentence because we determine that the
appellant’s history of criminal convictions more than justifies the sentence imposed.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and J. C.
MCLIN , JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Kendrick Naylor.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General, and Betsy Carnesale and Paul Hagerman, Assistant
District Attorneys General, for the appellee, State of Tennessee.
 OPINION

Factual Background

On October 3, 2000, Sergeant Eddie Bass of the Memphis Police Department was actively
searching for the appellant on an outstanding warrant. Sergeant Bass received a tip that the appellant
was at the Wingood Apartments, so Sergeant Bass contacted another detective and four uniformed
officers. The officers met and proceeded to the Wingood Apartments and set up a perimeter around
the building that the appellant was seen entering. Three of the officers, including Sergeant Bass,
went up to the second floor apartment to locate the appellant. The two remaining officers stayed on
the ground outside the apartment building. As Sergeant Bass was knocking on the door of
apartment number six (6), he heard officers on the ground shout that the appellant had jumped out
of the window of apartment number four (4) to the ground below. A foot chase ensued. The officers
chased the appellant, yelling at him to stop or “freeze” as he headed across the apartment grounds
to the parking lot. Sergeant Bass saw the appellant get into the driver’s side of a maroon Toyota
Camry. Sergeant Bass managed to open the passenger door of the vehicle and get half of his body
into the vehicle before the appellant could start the vehicle and put it into reverse. The two struggled
over the gear shift sending the vehicle into reverse, nearly striking Detective Miguel Aguila, who
was witnessing the events unfold from the rear of the vehicle. The appellant was able to shift gears
again and the vehicle began to move forward. As it did so, Sergeant Bass rolled out of the vehicle
to avoid injury.

As the vehicle moved forward, it went over a curb and onto a grassy area. Officer Bob
Parker, who was standing in front of the vehicle, was forced to jump onto the hood to avoid being
hit by the appellant. Officer Parker hit the windshield with his shoulder and then kicked it with his
foot before he “rolled off” the car. The vehicle then turned to the left, nearly striking Officer Antoine
Owens. Officers Parker and Owens fired several shots at the car in an attempt to stop the appellant.
The appellant continued to drive the vehicle across the grassy area until he crashed into one of the
apartment buildings. The appellant then exited the vehicle and ran on foot until the police caught
him. The appellant sustained a gun shot wound during the incident.

Following his arrest, the appellant was interviewed by the Memphis Police. During the
interview, the appellant admitted that he jumped out of the window and ran from the police. He
claimed that he ran because he was scared, stating:

[T]he Hispanic officer that was in the car with me, he shot at me when I was at
Extended Stay America and he told my mother and everything he was going to kill
me. He told Monica [the resident of Wingood Apartments], that I should have been

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 dead, and that he was going to kill me. When I realized who he was, I panicked
because I was scared.

The appellant was indicted by the Shelby County Grand Jury on June 26, 2001, for three
incidents of aggravated assault, felony evading arrest in a motor vehicle and two counts of theft of
property over $10,000.

A jury trial was held in November of 2003. At trial, the jury heard testimony from Sergeant
Bass, Detective Aguila, Officer Parker and Officer Owens regarding the incident. Steve Street, a
construction foreman doing work at Wingood Apartments, was putting trash in the dumpster when
he saw several police officers chasing a black male across the apartment grounds. Mr. Street
testified at trial that he saw the appellant get into a red vehicle and drive over a curb nearly striking
several of the officers. Mr. Street also heard the vehicle hit the building. Mr. Street remembered
that the officers ordered the appellant to stop and did not fire their weapons until he began to drive
away.

Marilyn Smith testified on behalf of the appellant. She was in the apartment with the
appellant at the time the police arrived. Ms. Smith informed the appellant that the police were
“coming for him” because she was aware that the appellant was a wanted man. She saw the
appellant pace the floor for a few seconds before he jumped out of the window. Ms. Smith testified
that she heard shots fired immediately after the appellant jumped out of the window.

The maroon Toyota Camry driven by the appellant belonged to Enterprise Car Rental. At
trial, Mydris Boltze, the loss prevention coordinator for Enterprise, testified that the vehicle was
rented by Jeffrey Biernesser on May 2, 2000, and had not been returned as scheduled. Ms. Boltze
contacted Mr. Biernesser about the vehicle in July of 2000, and she was informed that the appellant
was in possession of the vehicle. Ms. Boltze actually talked to the appellant on July 31, 2000, and
August 3, 2000, each time telling him that the vehicle had been reported stolen and that he should
return it. Ms. Boltze stated that the car was worth $17,000 to $18,000.

At the conclusion of the proof, the trial court dismissed count one of each of the aggravated
assault indictments.1 The jury found the appellant not guilty of two counts of aggravated assault,
guilty of criminal attempt to commit assault, a Class B misdemeanor, evading arrest in a motor
vehicle, a Class E felony, and two counts of theft of property over $10,000, a Class C felony.

After a sentencing hearing, the trial court sentenced the appellant to four (4) years as a Range
II multiple offender for the evading arrest conviction, six (6) months for the attempt to commit
assault conviction, to run concurrently to the sentence for evading arrest and eight (8) years for the

1
Eac h indictment charged alternative theories o f aggravated assault in two counts.

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theft of property conviction,2 to be served consecutively to the four-year sentence, for a total effective
sentence of twelve (12) years. The trial court denied the appellant’s motion for new trial and this
appeal followed. On appeal, the following issues are presented for review: (1) whether the trial court
erred in denying the appellant’s motion for a mistrial; (2) whether the evidence was sufficient to
sustain the convictions; and (3) whether the trial court erred in imposing consecutive sentences.

Denial of Mistrial

The appellant argues that the trial court erred by denying a motion for mistrial after Sergeant
Bass testified that the appellant was “booked for an aggravated kidnapping charge” at the time of the
incident. Specifically, the appellant claims that the trial court erred because the trial court had
granted a pre-trial motion filed by the appellant to limit the testimony of prosecution witnesses as
to the basis of the underlying arrest warrant. The State argues that the trial court “properly ruled that
a mistrial was not necessary based on the testimony.”

At trial, Sergeant Bass testified that on the date of the incident, he was looking for the
appellant because he was “booked for an aggravated kidnapping charge.” Defense counsel
immediately objected and requested a mistrial. The trial court denied the request and admonished
the jury not to consider the statement. Specifically, the trial court told the jury that the testimony
“with regard to why they were on the scene has absolutely no bearing, whatsoever, on the facts of
the case that we’re trying” and that the facts that are “alleged in the indictment” are “the only” facts
that they were to consider.

The decision whether to grant a mistrial is within the discretion of the trial court and that
decision will not be disturbed on appeal unless there was an abuse of discretion. State v. Reid, 91
S.W.3d 247, 279 (Tenn. 2002); State v. Smith, 871 S.W.2d 667, 672 (Tenn. 1994). Moreover, the
burden of establishing the necessity for a mistrial lies with the party seeking it. State v. Williams,
929 S.W.2d 385, 388 (Tenn. Crim. App. 1996). “The purpose for declaring a mistrial is to correct
damage done to the judicial process when some event has occurred which precludes an impartial
verdict.” Williams, 929 S.W.2d at 388. Generally, a mistrial will be declared and the jury
discharged in a criminal case only if there is “manifest necessity” requiring such action by the trial
judge. State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991) (quoting Arnold v. State,
563 S.W.2d 792, 794 (Tenn. Crim. App. 1977)).

In the case herein, the appellant has not shown a “manifest necessity” for a mistrial to be
declared. The statement made by Sergeant Bass was brief and did not prejudice the appellant.
Further, the lack of prejudice is demonstrated by the fact that the jury acquitted the appellant on all
of the aggravated assault charges. Morover, the trial court gave a curative instruction to the jury.
The trial court’s curative instruction was sufficient to counter the potential for prejudice, and the law
presumes that juries follow the instructions that they receive absent clear and convincing proof to
the contrary. See State v. Hall, 976 S.W.2d 121, 148 (Tenn. 1998); State v. Vanzant, 659 S.W.2d

2
The trial court merged the two counts of theft of p roperty ove r $10,00 0 into o ne co nviction .

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816, 819 (Tenn. Crim. App. 1983). This issue is without merit. Finally, discussed in the next
section of this opinion, the evidence of the appellant’s guilt of the offenses for which he was
convicted is overwhelming.

Sufficiency of the Evidence

The appellant next contends that the evidence was not sufficient to support the jury verdict
on the charges of theft of property and evading arrest. Specifically, he argues that the evidence was
insufficient to support the theft conviction because the vehicle had been rented by another individual.
Further, the appellant argues that he should not have been convicted of evading arrest because he was
running from the officers to avoid being shot rather than to avoid being arrested. The State counters
that the evidence supports the jury verdict.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the state. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning
witness credibility are resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

The appellant was convicted of theft of property over $10,000 in violation of Tennessee Code
Annotated section 39-14-103. According to Tennessee Code Annotated section 39-14-103, in order
to prove that the appellant was guilty of the offense, the State was required to prove beyond a
reasonable doubt that the appellant: (1) knowingly obtained or exercised control over the property;
(2) did not have the owner’s effective consent; and (3) intended to deprive the owner of the property.
Tenn. Code Ann. § 39-14-103. The appellant was indicted on alternate theories that he either
obtained the 2000 Toyota Camry without the owner’s effective consent with the intent to deprive the
owner of the property or that he exercised control over the property without the owner’s effective
consent with the intent to deprive the owner of the property. The jury convicted the appellant on
both counts of theft of property.

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 The appellant argues that the vehicle was rented by Mr. Beirnesser and that Mr. Biernesser
failed to return the car. However, the appellant obtained the vehicle from Mr. Biernesser without
the effective consent of Enterprise Car Rental even after being contacted by Enterprise Car Rental
on two separate occasions. Mydris Boltze testified that she spoke with the appellant on July 31 and
August 3, each time notifying the appellant that the vehicle had been reported stolen. The appellant
retained possession of the vehicle even after receiving notification from the owner of the vehicle that
it had been reported stolen, showing a clear intent to deprive the owner of the property. The
evidence of guilt on this charge is overwhelming.

The appellant also argues that he should not have been convicted of evading arrest because
he raised the defense of necessity, asserting that he was not evading arrest, but avoiding being shot
by the officers. Tennessee Code Annotated section 39-16-603(b)(1) makes it “unlawful for any
person, while operating a motor vehicle on any street, road, alley or highway in this state, to
intentionally flee or attempt to elude any law enforcement officer, after having received any signal
from such officer to bring the vehicle to a stop.” Tenn. Code Ann. § 39-16-603(b)(1).

The evidence at trial indicated that the appellant jumped out the window and ran to the
vehicle as the police were getting ready to knock on the door of the apartment where the appellant
was located. The appellant got into the vehicle, ignoring repeated requests of the police to stop or
“freeze.” The appellant struggled to get the vehicle into gear when Sergeant Bass managed to get
half-way into the vehicle and grab onto the gear shift. Even after the struggle ended, the appellant
drove the vehicle over a curb, nearly striking two officers. The appellant did not even stop the
vehicle when the officers began to fire their weapons at him. Further, even after the appellant
crashed the vehicle into the apartment building, he exited the vehicle and tried to run on foot. The
only evidence that supports the appellant’s contention that he ran out of “necessity” is his own
statement alleging that he was afraid that the “hispanic officer” would shoot him because of prior
confrontations between the two. Implicit in the jury verdict is the determination that the appellant’s
statement was not credible. The proof was overwhelming that the appellant evaded arrest in an
automobile. Therefore, we cannot say that the evidence preponderates against the jury verdict. This
issue is without merit.

Sentencing

Finally, the appellant argues that the trial court erred by imposing “excessive” sentences.
Specifically, the appellant complains that the trial court ordered his sentences to be served
consecutively. The appellant argues that the consecutive sentences imposed were not “reasonably
related to the severity of the offenses committed.” The State counters that the record “supports the
trial court’s finding that the defendant has an extensive criminal record deserving of consecutive
sentences.”

“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §

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40-35-401(d). “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. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

At the outset, we note that the appellant does not make any argument concerning the validity
of his sentence under the United States Supreme Court’s recent decision in Blakely v. Washington,
542 U.S. ___ , 124 S.Ct. 2531 (2004).3 Prior to the release of Blakely, in order to determine a
defendant’s sentence, a trial court started at the presumptive sentence, enhanced the sentence within
the range for existing enhancement factors, and then reduced the sentence within the range for
existing mitigating factors in accordance with Tennessee Code Annotated section 40-35-210(e). No
particular weight for each factor is prescribed by the statute; the weight given to each factor is left
to the discretion of the trial court as long as it comports with the sentencing principles and purposes
of our Code and as long as its findings are supported by the record. See State v. Santiago, 914
S.W.2d 116, 125 (Tenn. Crim. App. 1995). This Court has recently recognized that Blakely “calls
into question the continuing validity of our current sentencing scheme.” State v. Julius E. Smith, No.
E2003-01059-CCA-R3-CD, 2004 WL 1606998, at *4 (Tenn. Crim. App. at Knoxville, July 19,
2004); see also State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL 1607002,
at *9 (Tenn. Crim. App. at Knoxville, July 19, 2004).

Because we believe that the decision in Blakely has compromised the validity of Tennessee’s
current sentencing scheme we have determined that we must sua sponte analyze the appellant’s
sentence. Because this issue was not raised by the appellant, the only way the issue may be
addressed is through a plain error analysis. In exercising our discretion as to whether plain error
review under Tennessee Rule of Criminal Procedure 52(b) is appropriate, the Tennessee Supreme
Court has directed that we examine five factors: (1) the record must clearly establish what occurred
in the trial court; (2) a clear and unequivocal rule of law must have been breached; (3) a substantial
right of the defendant must have been adversely affected; (4) the accused did not waive the issue for
tactical reasons; and (5) consideration of the error is necessary to do substantial justice. State v.
Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (citing State v. Adkisson, 899 S.W.2d 626, 641 (Tenn.
Crim. App. 1994)). All five (5) factors must be present for plain error review. Smith, 24 S.W.3d
at 283.

3
The State notes that “the defendant apparently does not contest the enhancement factors applied by the trial
court” but that Blakely “would not apply” to the appellant’s enhanced sentence for theft and that the four (4) year
sentence on the evading arrest charge is “justified” even if the trial court imprope rly app lied enhancement factors.

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 For a “substantial right” of the accused to have been affected, the error must have prejudiced
the appellant. In other words, it must have affected the outcome of the trial court proceedings.
United States v. Olano, 507 U.S. 725, 732-37 (1993) (analyzing the substantially similar Federal
Rule of Criminal Procedure 52(b)); Adkisson, 899 S.W.2d at 642. This is the same type of inquiry
as the harmless error analysis under Tennessee Rule of Appellate Procedure 36(b), but the appellant
bears the burden of persuasion with respect to plain error claims. Olano, 507 U.S. at 732-37.

In Blakely, the Supreme Court determined that the “statutory maximum” sentence for
Apprendi4 purposes is “the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” 542 U .S. at ___, 124 S.Ct. at 2537. In
other words:

[T]he relevant “statutory maximum” is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may impose without any
additional findings. When a judge inflicts punishment that the jury’s verdict alone
does not allow, the jury has not found all the facts “which the law makes essential to
the punishment,” and the judge exceeds his proper authority.

Id. Blakely involved the sentencing scheme of the State of Washington where the criminal code
establishes maximum sentences for felonies according to the class of felony. Washington also has
presumptive sentencing ranges based on the seriousness level of the offense and the offender’s
criminal history. In Washington, a judge is permitted to impose a sentence above the presumptive
range when there exists “substantial and compelling reasons justifying an exceptional sentence.”
Blakely, 542 U.S. at ___, 124 S.Ct. at 2535. A judge may impose an exceptional sentence utilizing
one of these “reasons” illustrated in the Sentencing Reform Act only if it is not already taken into
account in the calculation of the presumptive range.

Blakely pled guilty to second-degree kidnapping with a firearm. As a Class B felony, it was
punishable by a sentence of up to 10 years. The Sentencing Reform Act of Washington, however,
specified a presumptive range of 49 to 53 months. The sentencing judge imposed an exceptional
sentence of 90 months on the ground that the defendant had acted with “deliberate cruelty,” a
statutorily enumerated ground for upward departure. The Supreme Court ultimately determined that
Washington’s sentencing procedure violated the defendant’s Sixth Amendment right to a trial by
jury. Id. 542 U.S. at ___, 124 S.Ct. at 2538.

4
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court held that, “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. In Ring v. Arizona, 536 U.S. 584, 587
(2002), the Court applied Apprendi to hold that because Arizona conditioned eligibility for the death penalty upon the
presence of an aggravating fact that was not an element of first degree murder, the Sixth Amendm ent guaranteed the
defendant a right to a jury determination o f that fact.

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 This Court has acknowledged that Blakely “extended Apprendi’s holding that, under the
Sixth Amendment, a jury must find all facts used to increase a defendant’s sentence beyond the
statutory maximum.” See State v. Charles Benson, No. M2003-02127-CCA-R3-CD, 2004 WL
2266801, at *8 (Tenn. Crim. App. at Nashville, Oct. 8, 2004). In so doing, this Court went on to
state that:

[N]othing in Apprendi suggested that the phrase “statutory maximum” equated to
anything other than the maximum in the range. To the contrary, the United States
Supreme Court stated the issue in Apprendi as “whether the 12-year sentence
imposed . . . was permissible, given that it was above the 10-year maximum for the
offense charged in that count.” 530 U.S. at 474, 120 S.Ct. at 2354. We also note that
the Supreme Court has considered the retroactive effect of the holding in Ring v.
Arizona, 536 U.S. 584, 592-93, 122 S.Ct. 2428, 2435 n.1, 153 L.Ed.2d 556 (2002),
as a new rule for capital cases even though it was based on Apprendi. See Schriro,
___ U.S. at ___, 124 S.Ct. at 2525-27. . . . We conclude that Blakely alters
Tennessee courts’ interpretation of the phrase “statutory maximum” and establishes
a new rule in this state. . . .

Id. at *8.

We now turn to the five factors required for plain error review. The record in the case herein
clearly establishes what happened at trial. Further, because it has been determined that Blakely
established a new rule of law, it is clear that a rule of law was violated. It is thus without question
that a new rule established for sentencing affects a substantial right of the appellant. The fourth
factor, the defendant did not waive the issue for tactical reasons, has been met. Finally, despite the
trial court’s application of enhancement factors in violation of Blakely,5 we determine that review
of this issue is not clearly necessary to do substantial justice because the appellant’s prior record
more than justifies a four-year sentence for evading arrest. The record establishes that appellant had
at least eight (8) prior felony convictions and ten (10) prior misdemeanor convictions as set forth in
the pre-sentence report. Thus, we will not review the sentence for plain error.

5
The trial court relied on several enhancement factors when determining the appellant’s sentence. As stated
above, only enhancement factors that are reflected in the jury verdict or admitted by the defendant may be used to
enhance the defendant’s sentence. Blakely, 542 U.S. at___, 124 S.Ct. at 2537. The trial court relied upon the following
enhancement factors in sentencing the appellant on the conviction for evading arrest: (1) that the appellant had a previous
history of criminal conviction s in addition to those necessary to establish the appropriate range, Tenn. Code Ann. § 40-
35-114(2); (2) the appellant had no hesitation about committing a crime in which the risk to human life was high, Tenn.
Code Ann. § 40-35-114(11); and (3) the crime was committed under circumstances under which the potential for bod ily
injury to a victim was gre at, Tenn. Cod e Ann. § 40-35-114 (17). The application of enhancement factors (11) and (17)
is clearly in violation of Blakely as they were not reflected in the jury verdict or admitted by the appe llant. Blakely, 542
U.S. at ___ , 124 S.Ct. at 2 537 .

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 As to consecutive sentencing, we note that a trial court may impose consecutive sentencing
upon a determination that one or more of the criteria set forth in Tennessee Code Annotated section
40-35-115(b) exists. This section permits the trial court to impose consecutive sentences if the court
finds, among other criteria, 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.” Tenn. Code Ann. § 40-35-115(b)(4). However, before ordering the defendant
to serve consecutive sentences on the basis that he is a dangerous offender, the trial court must find
that the resulting sentence is reasonably related to the severity of the crimes, necessary to protect the
public against further criminal conduct, and in accord with the general sentencing principles. See
State v. Imfeld, 70 S.W.3d 698, 708-09 (Tenn. 2002); State v. Wilkerson, 905 S.W.2d 933, 938-39
(Tenn. 1995).

In the case herein, the trial court found that the appellant had an extensive criminal record,
noting that the pre-sentence report reflected eight (8) prior felony convictions and ten (10)
misdemeanor convictions. The trial court emphasized that on “at least three other occasions when
officers attempted to arrest or detain . . . [the appellant], he has either fled or resisted or in some way
attempted to elude them.” The trial court also noted that the appellant had several prior theft
convictions.

The trial court herein made specific findings when imposing consecutive sentences. The trial
court stated:

The Court further finds that . . . [the appellant] is an offender whose record of
criminal activity is extensive as the Court has previously read into the record. And
for that reason, based upon the long record of . . . [the appellant], the Court feels that
consecutive sentencing is appropriate for this particular case and the length of
sentencing in this case 12 years the aggravated manner in which the Intentionally
Evading Arrest occurred and the Theft of Property, this Court feels that consecutive
sentence is appropriate . . . .

After a review of the record, we determine that the trial court properly sentenced the
appellant. This issue is without merit.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________________
JERRY L. SMITH, JUDGE

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