State of Tennessee v. Tyler Young

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 6, 2015

STATE OF TENNESSEE v. TYLER YOUNG

Appeal from the Criminal Court for Shelby County
No. 11-04219 Chris Craft, Judge

No. W2013-01591-CCA-R3-CD - Filed February 6, 2015

Appellant, Tyler Young, was convicted by a Shelby County jury of aggravated burglary,
employing a firearm during the commission of a dangerous felony, and two counts of
attempted aggravated robbery. The trial court ordered him to serve an effective sentence of
fourteen years in the Tennessee Department of Correction. On appeal, he challenges the
sufficiency of the evidence supporting his convictions for employing a firearm during the
commission of a dangerous felony and attempted aggravated robbery and argues that the trial
court erred in its sentencing. Following our review, we affirm the judgments of the trial
court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

Paul J. Springer, Memphis, Tennessee, for the appellant, Tyler Young.

Herbert H. Slatery III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Jose Francisco Leon, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case stems from the home invasion burglary and attempted robbery of the
residence of Valarita Watt and Elijah Robinson on April 4, 2011, in Memphis, Tennessee.
During the course of the burglary, appellant was shot and his accomplice was killed. We
note that one of the victims, Elijah Robinson, passed away prior to the trial, which began on
February 5, 2013.

Valarita Watt testified that on April 4, 2011, she and Elijah Robinson lived in a house
on Glenbrook Street in Memphis. That day, she and her stepdaughter were lying in bed
watching television while Mr. Robinson was lying down in a room across the hall. She
recalled that Mr. Robinson asked her whether she heard noises. She said that at first, she did
not hear anything but that later she heard the same noises. Mr. Robinson checked the house
to see if anyone had entered. She said that he did not find anyone and that as he returned to
his room, he said, “‘I hope ain’t nobody in here, and if they is, I’m . . . back here.’” Ms. Watt
testified that eight to fifteen seconds later, a gunman stepped into her room and said, “‘Shut
up, [expletive].’” She said the gun was black. She threw the bed covers over her head,
pushed the child to the back of the bed, and yelled to Mr. Robinson that the man had a gun.
Ms. Watt said that after this statement, she heard “total shooting.” She then heard someone
screaming, “‘Don’t kill me, ‘E.’ ‘E,’ please don’t kill me.’” Ms. Watt explained that Mr.
Robinson was known as “E.” She said that she turned on the lights and saw Mr. Robinson
standing in the middle of the room, saw one man “in [her] floor jumping, deceasing, and one
guy in the corner, shot in the arm, screaming, ‘Don’t kill me.’” Ms. Watt identified appellant
in the courtroom as the injured man. She said that when Mr. Robinson saw appellant, he
asked, “‘Tyler, did you try to rob me and my family?’”

Ms. Watt testified that Mr. Robinson checked the house for more intruders but that
the two men in her room were the only “unwanted people” in the house. She said that neither
man had permission to be in her house. Ms. Watt testified that Mr. Robinson owned a
weapon at the time but that it was not a .45 caliber pistol. She said that she learned that the
men entered through a window in what she called their exercise room. The window was
broken and raised. Ms. Watt identified Mr. Robinson’s gun, and the assistant district
attorney general showed her a second gun that she had never seen before trial. Ms. Watt
testified that the incident was terrifying and that after the incident she was unable to sleep,
even after she moved out of the house where the incident occurred.

On cross-examination, Ms. Watt testified that appellant was not the man who entered
her room with the gun. Ms. Watt identified pictures of Mr. Robinson’s gun in a drawer and
a gun under her television cabinet. She testified that the gun under the cabinet was not Mr.
Robinson’s. Ms. Watt agreed that they had marijuana in the house for personal consumption,
but she testified that Mr. Robinson did not sell marijuana.1

1
After Ms. Watt’s testimony, the State played a video recording of Mr. Robinson’s preliminary
hearing testimony. However, the recording was not included in the appellate record.

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 Memphis Police Officer David Tisdell testified that he was the first police officer to
respond to Glenbrook Street. He said that Mr. Robinson met him at the door and explained
that two men had broken into his house. Mr. Robinson told him that he had shot both men
and gave him the location of the men within the house. Ms. Watt and the child were already
outside. Officer Tisdell said that he located the two men, one of whom was unresponsive.
He testified that appellant was the second injured man and that appellant advised him that
he had been shot in the shoulder. Officer Tisdell assisted appellant in standing and took him
outside, where another officer took custody of appellant. Officer Tisdell said that paramedics
took appellant to the Regional Medical Center. Officer Tisdell testified that he saw one
handgun in the residence — a pistol located in a kitchen drawer to which he was directed by
Mr. Robinson.

Paramedic and firefighter Christopher Coleman testified that he responded to the
Glenbrook Street address on April 4, 2011. He determined that one of the suspects was
deceased. He treated the other suspect for a single gunshot wound to the right shoulder. He
also transported the suspect to the Regional Medical Center.

Memphis Police Sergeant Alvin Moore testified that he met appellant at the Regional
Medical Center. He took biographical information from appellant and took pictures of his
injury.

Memphis Police Officer Marcus Mosby testified that he collected two firearms from
the Glenbrook Street residence, one was a .40 caliber and the other was a .45 caliber Ruger.
He said that he located the .45 caliber Ruger under a television cabinet and that he was not
able to see the weapon until the medical examiner moved the deceased suspect’s body. The
other weapon was collected from a kitchen drawer. Officer Mosby testified that he also
collected six spent .40 caliber rounds and a magazine containing four live .40 caliber rounds.

On cross-examination, Officer Mosby agreed that the .45 caliber weapon was loaded
with a round in the chamber and six rounds in the clip.

Memphis Police Lieutenant Robert Scoggins testified that he interviewed appellant
on April 4, 2011, and that appellant signed a statement regarding his participation in the
offenses at 3:10 p.m. that day. In the statement, appellant agreed that he participated in the
attempted robbery. He said that his brother, Tonio Wilson, was with him but that his brother
was shot and killed by Elijah Robinson. Appellant told Lieutenant Scoggins that Tonio
Wilson had been armed with a .45 caliber pistol but that he himself did not carry a weapon.
Appellant said that he attempted to rob the victims because he believed they had marijuana
and money. He explained,

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 My brother had been living at my mother’s house for too long and she was
ready for him to get his own by him being that old. That’s when I convinced
him to go and rob [Elijah Robinson] because my brother is not from down here
so he didn’t never know [Elijah Robinson]. I gave him a plan and told him it
was simple and easy and we could do it.

Appellant told Lieutenant Scoggins that they did not believe that Mr. Robinson was at home
but that they knew that someone was inside the home. They entered through a window and
went down the hall. When Ms. Watt yelled, Elijah Robinson began shooting at them.
Appellant insisted that his brother never pointed his gun.

Following the close of proof and deliberations, the jury convicted appellant as
charged. The trial court sentenced him as a Range I, standard offender, to four years for
aggravated burglary and four years for each of the two attempted aggravated robbery
convictions. The court sentenced him as a violent offender to six years for employing a
firearm during the commission of a dangerous felony. The trial court imposed partially
consecutive sentence alignment for a total effective sentence of fourteen years. It is from
these judgments that appellant now appeals.

II. Analysis

A. Sufficiency of the Evidence

Appellant challenges the sufficiency of his convictions for attempted aggravated
robbery and employing a firearm during the commission of a dangerous felony. He does not
challenge his conviction for aggravated burglary. Regarding his convictions for attempted
aggravated robbery, he asserts that he could not have intended to gain control over Elijah
Robinson’s property because he believed that Mr. Robinson was not home and that no
evidence showed that he attempted to gain control over either victim’s property. He contests
his employing a firearm conviction on the basis that his brother carried a firearm, not him,
and that no evidence indicated that his brother employed the firearm. The State maintains
that the evidence was sufficient to support all of appellant’s convictions. We agree with the
State.

The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant

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must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

As charged in this case, a defendant is guilty of criminal attempt to commit a crime
when he or she, acting with the kind of culpability otherwise required for the offense, “[a]cts
with intent to complete a course of action or cause a result that would constitute the offense,
under the circumstances surrounding the conduct as the person believes them to be, and the
conduct constitutes a substantial step toward the commission of the offense.” Tenn. Code
Ann. § 39-12-101(a)(3). A person commits the offense of aggravated robbery by the
“intentional or knowing theft of property from the person of another by violence or putting
the person in fear” and the theft is “[a]ccomplished with a deadly weapon or by display of
any article used or fashioned to lead the victim to reasonably believe it to be a deadly
weapon.” Tenn. Code Ann. §§ 39-13-401, -402. Tennessee Code Annotated 39-17-
1324(b)(1) provides, “It is an offense to employ a firearm during the commission of a
dangerous felony,” of which aggravated burglary is enumerated as a dangerous felony. Id.
§ 39-17-1324(i)(1)(H). The Tennessee Supreme Court has defined “employ” as “to make
use of,” which is also the definition included in the jury charge in this case. See State v.
Broderick Devonte Fayne, ---S.W.3d ---, No. W2012-01488-SC-R11-CD, 2014 WL
5430049, at *6 (Tenn. Oct. 27, 2014).

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 The State pursued a theory that appellant was criminally responsible for the actions
of his accomplice in this case. “A person is criminally responsible as a party to an offense
if the offense is committed by the person’s own conduct, by the conduct of another for which
the person is criminally responsible, or by both.” Tenn. Code Ann. § 39-11-401(a). Further,
a person is criminally responsible for an offense committed by the conduct of another, if
“[a]cting with intent to promote or assist the commission of the offense, or to benefit in the
proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another
person to commit the offense[.]” Id. § 39-11-402(2). While not a separate crime, criminal
responsibility is a theory by which the State may alternatively establish guilt based on the
conduct of another. Dorantes, 331 S.W.3d at 386 (citing State v. Lemacks, 996 S.W.2d 166,
170 (Tenn. 1999)). No specific act or deed needs to be demonstrated by the State, and
furthermore, the presence and companionship of an accused with the offender before and
after the offense are circumstances from which participation in the crime may be inferred.
State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App. 1998). However, to be convicted, “the
evidence must establish that the defendant in some way knowingly and voluntarily shared in
the criminal intent of the crime and promoted its commission.” Dorantes, 331 S.W.3d at 386
(citing State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994); State v. Foster, 755
S.W.2d 846, 848 (Tenn. Crim. App. 1988)).

Viewed in the light most favorable to the State, the evidence adduced at trial showed
that appellant and his brother, Tonio Wilson, planned to steal drugs and money from Elijah
Robinson. In effectuating this plan, appellant and Wilson went to Mr. Robinson’s house,
forced open a window, and entered the house. They suspected that the house was occupied
but did not believe that Mr. Robinson was home at the time. However, Mr. Robinson was
home and so were Valaria Watt and Mr. Robinson’s young daughter. According to
appellant’s statement to police, Tonio Wilson was armed with a .45 caliber pistol. The pistol
was subsequently recovered near his body. Ms. Watt testified that Wilson pointed the gun
at her. Wilson and appellant were unable to complete their plan because Mr. Robinson shot
them both, killing Wilson. The only disputed evidence at trial was whether Wilson pointed
his gun at Ms. Watt, and the jury by its verdict credited Ms. Watt’s testimony over
appellant’s statement that Wilson did not do so. Appellant’s conduct in entering Mr.
Robinson and Ms. Watt’s house with the confessed intention to steal money and drugs from
them is sufficient evidence to support a finding that he took a substantial step toward the
completion of aggravated robbery. In addition, the evidence supported the finding that
Wilson was armed and that he made use of his weapon in the course of the aggravated
burglary. Moreover, there is more than ample evidence to support appellant’s criminal
responsibility for Wilson’s actions considering his presence with Wilson in the house and his
confession to police. Therefore, we affirm appellant’s convictions for attempted aggravated
robbery and employing a firearm during the commission of a dangerous felony.

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 B. Sentencing

Appellant contends that the trial court erred in its sentencing by incorrectly finding
certain enhancement factors, not finding any mitigating factors, and not making the findings
required for designating a defendant as a dangerous offender for purposes of consecutive
sentencing. The State responds that the trial court did not abuse its discretion in sentencing.
We agree with the State.

1. Sentence Length

The trial court sentenced appellant as a Range I, standard offender, and he was
therefore subject to a sentencing range of three to six years for his aggravated burglary and
attempted aggravated robbery convictions, all Class C felonies. The trial court sentenced him
to four years for each of these convictions. His sentence for employing a firearm during the
commission of a dangerous felony was six years, which is the mandatory minimum set by
Tennessee Code Annotated section 39-17-1324(h)(1).

In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence
and information offered by the parties on mitigating and enhancement factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement the defendant makes on his
own behalf as to sentencing; and (8) the potential for rehabilitation. Id. §§ 40-35-103(5), -
113, -114, -210(b). In addition, “[t]he sentence imposed should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Id. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.
Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain “advisory
sentencing guidelines” that are not binding on the trial court; however, the trial court must
nonetheless consider them. See id. § 40-35-210(c). Although the application of the factors
is advisory, a court shall consider “[e]vidence and information offered by the parties on the
mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-
210(b)(5). The trial court must also place on the record “what enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair
and consistent sentencing.” Id. § 40-35-210(e). The weighing of mitigating and enhancing
factors is left to the sound discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345
(Tenn. 2008). The burden of proving applicable mitigating factors rests upon appellant.

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State v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim.
App. Sept. 18, 1995). The trial court’s weighing of the various enhancement and mitigating
factors is not grounds for reversal under the revised Sentencing Act. Carter, 254 S.W.3d at
345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at
*48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).

When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). If a trial court misapplies an enhancing or mitigating factor in passing sentence, said
error will not remove the presumption of reasonableness from its sentencing determination.
Bise, 380 S.W.3d at 709. This court will uphold the trial court’s sentencing decision “so long
as it is within the appropriate range and the record demonstrates that the sentence is
otherwise in compliance with the purposes and principles listed by statute.” Id. at 709-10.
Moreover, under such circumstances, appellate courts may not disturb the sentence even if
we had preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging
the sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).

In this case, the trial court considered five enhancement factors advocated by the State
and found that two of the five were applicable to appellant’s sentencing — that he was a
leader in the commission of the offense and that the actions of appellant resulted in the death
of a person other than the intended victim. See Tenn. Code. Ann. § 40-35-114(2), (12). The
trial court found that enhancement factors three (“The offense involved more than one (1)
victim[.]”), nine (“The defendant possessed or employed a firearm . . . during the commission
of the offense[.]”), and ten (“The defendant had no hesitation about committing a crime when
the risk to human life was high[.]”) were not applicable. See id. § 40-35-114(3), (9), (10).
The trial court stated that it considered mitigating factors but found that none applied to
appellant’s case. The record supports the trial court’s application of enhancement factors.
Appellant confessed that he formed the plan to rob Mr. Robinson that he and his brother
executed, and appellant’s brother died in the course of the aggravated burglary and attempted
aggravated robbery. Furthermore, the record otherwise demonstrates that the sentence is
within the applicable range and in compliance with the statutory purposes and principles.
Therefore, the trial court did not abuse its discretion in setting the length of appellant’s
sentences.

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 2. Consecutive Sentences

The trial court imposed partially consecutive sentences in this case. Appellant’s
sentence for employing a firearm during the commission of a dangerous felony was ordered
to be served consecutively to his aggravated burglary conviction by operation of law under
Tennessee Code Annotated section 39-17-1324(e)(1). The trial court aligned appellant’s two
four-year sentences for attempted aggravated robbery convictions concurrently. The court
then ordered that the concurrent four-year sentences for the attempted aggravated robbery
convictions be served consecutively to the four-year sentence for aggravated burglary and
the six-year sentence for the firearm conviction, resulting in an aggregate sentence of
fourteen years.

Prior to 2013, on appellate review of sentence alignment issues, courts employed the
abuse of discretion standard of review. See State v. Hastings, 25 S.W.3d 178, 181 (Tenn.
Crim. App. 1999). Our supreme court has since extended the standard of review enunciated
in State v. Bise, abuse of discretion with a presumption of reasonableness, to consecutive
sentencing determinations. State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013); Bise, 380
S.W.3d at 707 (modifying standard of review of within-range sentences to abuse of discretion
with a presumption of reasonableness); see also State v. Caudle, 388 S.W.3d 273, 278-79
(Tenn. 2012) (applying abuse of discretion with a presumption of reasonableness to review
of alternative sentencing determinations by the trial court). Thus, the presumption of
reasonableness gives “deference to the trial court’s exercise of its discretionary authority to
impose consecutive sentences if it has provided reasons on the record establishing at least
one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b) . . . .”
Pollard, 432 S.W.3d at 861.

The procedure used by the trial courts in deciding sentence alignment is governed by
Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant to a
trial court’s sentencing decision. Imposition of consecutive sentences must be “justly
deserved in relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102(1).
The length of the resulting consecutive sentence must be “no greater than that deserved for
the offense committed.” Id. § 40-35-103(2). The court may order consecutive sentences if
it finds by a preponderance of the evidence that one or more of the following seven statutory
criteria exists:

(1) The defendant is a professional criminal who has knowingly devoted
the defendant’s life to criminal acts as a major source of livelihood;

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

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 (3) The defendant is a dangerous mentally abnormal person so declared by
a competent psychiatrist who concludes as a result of an investigation
prior to sentencing that the defendant’s criminal conduct has been
characterized by a pattern of repetitive or compulsive behavior with
heedless indifference to consequences;

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

(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the defendant and
victim or victims, the time span of defendant’s undetected sexual
activity, the nature and scope of the sexual acts and the extent of the
residual, physical and mental damage to the victim or victims;

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

(7) The defendant is sentenced for criminal contempt.

The Pollard court reiterated that “[a]ny one of these grounds is a sufficient basis for
the imposition of consecutive sentences.” Pollard, 432 S.W.3d at 862 (citing State v.
Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So long as a trial court properly articulates
reasons for ordering consecutive sentences, thereby providing a basis for meaningful
appellate review, the sentences will be presumed reasonable and, absent an abuse of
discretion, upheld on appeal.” Id.

Of the seven statutory factors, the trial court in this case found that factor (4) — that
appellant was a dangerous offender — applied to appellant’s sentencing. Appellant argues
that the trial court failed to engage in a discussion of the Wilkerson factors that must
accompany the application of Tennessee Code Annotated section 40-35-115(b)(4). State v.
Wilkerson, 905 S.W.2d 933 (Tenn. 1995). Pursuant to Wilkerson, before imposing
consecutive sentences based upon the defendant’s status as a dangerous offender, the trial
court “must conclude that the evidence has established that the aggregate sentence is
‘reasonably related to the severity of the offenses’ and ‘necessary in order to protect the
public from further criminal acts.’” Pollard, 432 S.W.3d at 863 (quoting Wilkerson, 905
S.W.2d at 938)).

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 In this case, the trial court made the following statements with regard to its
determination that partially consecutive sentencing was appropriate:

I also make findings as far as consecutive sentencing 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. . . . .

I find that the circumstances surrounding the commission of the offense
are aggravated. The masks and the gun and the death of the brother. I find
that confinement for an extended period of time is necessary to protect society
from the defendant’s unwillingness to lead a productive life. He dropped out
of school when he was in 10th grade. He resorted to an armed attack on a
home.

I find that count one -- that count three and four should be run
concurrently -- they happened at the same time -- but consecutively to count
one and two. And count two of course is consecutive as well by law, which
would be an aggregate sentence of 14 years. The first six years would be at a
hundred percent in the Department of Correction. I do find that the aggregate
length of that 14-year sentence reasonably relates to the offense that he stands
convicted of.

Thus, the trial court appropriately considered the Wilkerson factors and did not abuse its
discretion in finding that appellant was a dangerous offender. Therefore, we affirm
appellant’s sentences.

CONCLUSION

Based on the record, the applicable law, and the briefs of the parties, we affirm the
judgments of the trial court.

_________________________________
ROGER A. PAGE, JUDGE

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