State of Tennessee v. Michael Lebron Branham

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 15, 2015

STATE OF TENNESSEE v. MICHAEL LEBRON BRANHAM

Appeal from the Criminal Court for Hamilton County
No. 283593 Barry A. Steelman, Judge

No. E2014-02071-CCA-R3-CD – Filed January 8, 2016

Following a jury trial, the Defendant, Michael Lebron Branham, was convicted of
aggravated robbery, a Class B felony; aggravated assault, a Class C felony; coercion of a
witness, a Class D felony; aggravated burglary, a Class C felony; and employment of a
firearm during the commission of a dangerous felony, a Class C felony. Tenn. Code
Ann. §§ 39-13-102(a)(1)(A)(iii), -13-402(a)(1), -14-403, -16-507, -17-1324(b)(1). The
trial court imposed a total effective sentence of twenty-nine years. On appeal, the
Defendant contends (1) that this case should be remanded for a new trial because one of
the prosecutors had previously represented the Defendant in an unrelated matter; (2) that
the indictments for aggravated burglary and employing a firearm during the commission
of a dangerous felony should be dismissed due to alleged vindictive prosecution; (3) that
the trial court erred in not severing the coercion of a witness charge from the other
offenses; (4) that the Defendant‟s convictions for aggravated burglary and aggravated
assault violate the constitutional protection against double jeopardy as those offenses
“were incidental to the aggravated robbery”; (5) that the State failed to make a proper
election of offenses with respect to the coercion of a witness charge; (6) that the trial
court erred in setting the length of the Defendant‟s sentences; and (7) that the trial court
erred in imposing partial consecutive sentences.1 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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

1
For the purpose of clarity, we have renumbered and reordered the issues as stated by the Defendant in
his appellate brief.
Andrew W. Childress, Chattanooga, Tennessee (at trial); and Donna Miller, Chattanooga,
Tennessee (at motion for new trial hearing and on appeal), for the appellant, Michael
Lebron Branham.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; M. Neal Pinkston, District Attorney General; and Lance Pope and
David Schmidt, Assistant District Attorneys General, for the appellee, State of
Tennessee.

OPINION

FACTUAL BACKGROUND2

I. Trial

Regika Tillery testified that she lived in the Emma Wheeler Homes housing
development in Chattanooga. Ms. Tillery testified that on the evening of March 10,
2011, she was watching a basketball game with her boyfriend, Reginald Hubbard, and
three friends. Ms. Tillery admitted that Mr. Hubbard and her friends were smoking
marijuana that evening but denied that she had been because she was nine months
pregnant at that time. Ms. Tillery recalled that sometime between 6:00 and 7:00 p.m. she
received a phone call from a friend, Shondrika Jones.

According to Ms. Tillery, Ms. Jones called her because one of Ms. Jones‟s
children had left a “hair bow box” at her house, and she asked Ms. Tillery to give the box
to the Defendant. Ms. Tillery testified that she “knew [the Defendant] through [Ms.
Jones]” and had “seen him a couple of times with her.” Ms. Tillery further testified that
she did not really know the Defendant and denied having ever “part[ied] with him” or
smoked marijuana with him.

According to Ms. Tillery, she “went outside to go walk down the street and get a
cigarette” after she got off the phone with Ms. Jones. Ms. Tillery testified that as she
“was walking back up to the house, [the Defendant] pulled up in a vehicle and jumped
out with a gun.” Another man “jumped from the back seat with a gun.” Ms. Tillery
recalled that the Defendant parked the vehicle parallel to her door and blocked the two
“parking spaces” in front of her home.

Ms. Tillery testified that when the Defendant got out of the car, he said, “Where
it‟s at? Give it to me. You know what this is.” Ms. Tillery further testified that the

2
The factual background of the Defendant‟s procedural issues will be discussed in more detail in other
portions of this opinion.
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Defendant then put the gun to her back and said, “Come on, fixing to walk you back in
this house and you fixing to give me the money.” According to Ms. Tillery, the
Defendant “started walking [her] toward [her] house.” Ms. Tillery recalled that the gun
the Defendant used was “pretty big” and looked like a TEC-9. Ms. Tillery testified that
she felt “[s]cared, nervous, everything” when the Defendant put the gun to her back.

When they entered the house, the Defendant approached Mr. Hubbard, pointed the
gun at him, and asked him “where the money was at.” Ms. Tillery testified that the
Defendant made Mr. Hubbard get up and “pushed him” into the kitchen until he was
against a wall. The Defendant told Mr. Hubbard that “[h]e was going to blow his brains
out if he didn‟t give [the Defendant] the money.” The other man kept his gun pointed at
Ms. Tillery‟s friends while the Defendant threatened Mr. Hubbard. Mr. Hubbard pulled
some money out of his pockets and gave it to the Defendant.

Ms. Tillery testified that the Defendant and the other man left after Mr. Hubbard
gave his money to the Defendant. Ms. Tillery further testified that she “went out the door
behind” the men and said that she was calling the police. According to Ms. Tillery, the
Defendant replied, “So what, bitch.” Ms. Tillery then watched as the men “hopped in the
car and pulled off.” Ms. Tillery‟s 911 call was played for the jury.

During the call, Ms. Tillery was asked if anything was taken from her, and she
responded, “[S]ome money.” Ms. Tillery insisted at trial that nothing was taken directly
from her and that she was referring to the money taken from Mr. Hubbard. Ms. Tillery
admitted at trial that the men also took a “little bag of marijuana off the table” while they
were in her house. Ms. Tillery testified that she did not know why she failed to tell the
911 operator about the marijuana. Also during the call, Ms. Tillery stated that she went
outside after the Defendant called her and told her to come out of the house. However,
Ms. Tillery testified that no one called her to come outside and opined that she told the
911 operator that because she “probably wasn‟t thinking because [she] was so”
distraught.

Ms. Tillery estimated that approximately twenty minutes passed between her 911
call and when the first officers from the Chattanooga Police Department (CPD) arrived at
her house. While the officers were there, Ms. Tillery received a phone call from the
Defendant. Ms. Tillery testified that the Defendant threatened her and asked her if she
had called the police. When she said that she had, the Defendant told her that “it was
going to get serious.” Ms. Tillery testified that she understood the Defendant‟s statement
to mean that “he was going to try to harm” her for calling the police.

Ms. Tillery also testified that the Defendant continued to threaten her by
“[s]ending people and telling people that he [was] going to do stuff to [her] if [she]
[came] to court.” Ms. Tillery explained that the Defendant had sent her cousin,
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“Flubber,” to talk to her about not testifying. Ms. Tillery testified that the Defendant and
Flubber knew each other because they were “both in gangs.” Ms. Tillery also testified
that Flubber‟s “baby mama,” Cordesia, told her that the Defendant said he would “pay
[her] not to come to court, but if [she did] come to court, that something was going to
happen to [her] for coming to court.” Ms. Tillery testified that she took these threats
seriously and that she was afraid of the Defendant.

The State introduced three recordings of phone calls made by the Defendant from
jail on October 31, 2011, January 9, 2012, and March 11, 2012. In the October 2011
phone call, the Defendant stated that he had “done hollered at Cordesia on that” when the
other caller mentioned seeing Ms. Tillery. The Defendant then stated, “Cordesia is
supposed to be on that s--t.” Ms. Tillery testified that she believed that this referred to
Cordesia “[t]rying to get [her] not to come to court.”

In the January 2012 phone call, the Defendant told the other caller to “[s]end word
[to Ms. Tillery] through Cordesia” and stated that “Cordesia knows what‟s up.” Ms.
Tillery testified that she believed that this referred to the fact that Cordesia “had already
[come] to [her] before then telling [her] what [the Defendant] said.” In the March 2012
phone call, Flubber told the Defendant that he did not know Mr. Hubbard and that he was
only worried about Ms. Tillery. The Defendant then asked Flubber “about his end . . .
being straight.” Ms. Tillery testified that she believed they were referring to her.

Ms. Tillery admitted that she had a prior conviction for attempted theft which she
explained arose when she “[p]layed with [a] police bike.” Ms. Tillery also admitted that
she had previously used marijuana. Ms. Tillery acknowledged that Mr. Hubbard had a
“criminal background” and that he used marijuana. Ms. Tillery denied making “this
whole thing up” in order to avoid admitting that the incident was a drug deal gone bad
and chastised trial counsel for “[a]sking these dumb-ass questions.”

On cross-examination, Ms. Tillery clarified that her friends had been at her house
“for a couple hours” before the Defendant arrived and that one of her friends, “Bug,” did
not actually use any marijuana because “she a child.” Ms. Tillery insisted that she was
scared during the incident and explained that she “wasn‟t thinking” when she ran after the
Defendant and the other man as they left.

Mr. Hubbard testified that he had a child with Ms. Tillery and that he was
currently serving a sentence for aggravated robbery. Mr. Hubbard testified that he was
not incarcerated on March 10, 2011. Mr. Hubbard then refused to answer any more
questions, stating that he had “nothing to say” and that he would “rather plead the Fifth.”
Mr. Hubbard denied that he was refusing to testify because he was scared, stating that he
“just [did not] want to.” Mr. Hubbard was instructed by the trial court that if he refused

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to testify he could be found in contempt. Mr. Hubbard continued to refuse to answer any
questions.

At that point, Mr. Hubbard was declared unavailable, and his preliminary hearing
testimony from June 2011 was introduced into evidence. At the preliminary hearing, Mr.
Hubbard testified that on March 10, 2011, he was “sitting on [his] couch” watching a
basketball game with some friends and smoking marijuana when “the door swing open
and a machine gun came around the corner.” Mr. Hubbard testified that he knew the
Defendant, that the Defendant was holding the “machine gun,” and that the Defendant
was not wearing a mask or attempting to conceal his identity.

Once inside the house, the Defendant demanded money from the victims. Mr.
Hubbard testified that the Defendant said, “Give me the money, give me the money, y‟all
know what it is, give me the money.” The Defendant then took Mr. Hubbard into the
kitchen and put a gun to his head. Mr. Hubbard testified that the Defendant said, “Give
me the money or I‟m going to spray you.” Mr. Hubbard fumbled with his pockets until
he produced approximately $200 that he had just been paid by his employer. Mr.
Hubbard testified that the Defendant and the other armed man fled after he gave the
money to the Defendant.

Mr. Hubbard further testified that Ms. Tillery “chased [the men] out the door” and
that he grabbed her and pulled her back into the house while the men “just zoomed off.”
Mr. Hubbard noted that the Defendant was driving Ms. Jones‟s car. Mr. Hubbard
testified that Ms. Tillery immediately called the police. According to Mr. Hubbard, the
Defendant called Ms. Tillery shortly after the incident and asked her if she had called the
police. Ms. Tillery told the Defendant that she had, and the Defendant “said a few cuss
words” and then said, “It‟s going to get real crucial for y‟all if y‟all go to court and testify
against me.”

Mr. Hubbard testified that a few days later the Defendant called and offered $500
for them “not to come to court” and that after he realized they were not “going to take his
$500, he made some threatening, more threatening” remarks. Mr. Hubbard denied selling
marijuana generally and specifically denied selling marijuana to the Defendant. Mr.
Hubbard denied that the Defendant had called his phone on March 10, 2011, and stated
that the Defendant had only called Ms. Tillery‟s phone that day.

Calesia Morris testified that she was at Ms. Tillery‟s home on March 10, 2011,
watching a basketball game when Ms. Tillery “got up to go outside.” Ms. Morris
testified that when Ms. Tillery returned, there were “two dudes behind her with guns, and
they was telling everybody to lay down and give them everything that [they] had.” Ms.
Morris “was just looking down” and told the men she did not have anything to give them.
Ms. Morris testified that she was “too scared to move” and just sat on the couch. One of
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the men went to Mr. Hubbard, and Ms. Morris saw Mr. Hubbard take some money out of
his pocket and give it to the man.

Ms. Morris testified that the men “ran on out the door” after they got Mr.
Hubbard‟s money and that Ms. Tillery chased after them, saying that she was going to
call the police. Ms. Morris admitted that she had used marijuana that day but denied that
Ms. Tillery had. Ms. Morris further denied that Ms. Tillery and Mr. Hubbard sold
marijuana. Ms. Morris testified that she could not identify the two men because she “was
too scared to remember how they look[ed].” Ms. Morris also testified that she never gave
a statement to the police.

Alan Lamar Jordan testified that he was also at Ms. Tillery‟s house on March 10,
2011, watching a basketball game. Mr. Jordan recalled that Ms. Tillery “received a
phone call” and went outside. When Ms. Tillery returned, “there was a light skinned
dude had a gun to her head, and there was another dark skinned dude with dreads, he
followed in behind them and come over to [him].” Mr. Jordan testified that Ms. Tillery
had a “facial expression” like “[o]h my God . . . . He got a gun to my head[,] [w]hat‟s
going to happen,” when she entered the house.

Mr. Jordan testified that the men were saying, “Lay it down, lay it down.” The
man “with the dreads” was pointing his gun at Mr. Jordan, and Mr. Jordan told him that
he did not have anything. Mr. Jordan testified that he took his wallet out to show the man
there was nothing inside it. Mr. Jordan further testified that the man who had his gun
pointed at Ms. Tillery‟s head had “a big gun.” That man took Mr. Hubbard into the
kitchen, and Mr. Jordan heard the man ask Mr. Hubbard, “What‟s in your pocket.” Mr.
Jordan testified that the men then “just left.”

Mr. Jordan admitted that he could not identify the two men, stating that he had
“never seen them before.” Mr. Jordan also admitted to smoking marijuana that day. Mr.
Jordan further testified that everyone in the house, including Ms. Tillery, had used
marijuana that day. However, Mr. Jordan denied that either Mr. Hubbard or Ms. Tillery
sold marijuana.

Detective Jacques Weary of the CPD testified that he was the lead investigator in
this case. Det. Weary testified that when he arrived, Ms. Tillery was distraught, upset,
angry, and “still scared.” Ms. Tillery told Det. Weary, “as soon as [he] walked through
the door,” that the Defendant had “robbed her.” Det. Weary testified that he spoke to all
of the victims, including Ms. Morris. Det. Weary recalled that the home smelled of
marijuana and that he initially suspected that “maybe there [were] some drug sales
happening.” However, Det. Weary testified that after speaking to the victims, he
believed that “there were no drug sales happening” at Ms. Tillery‟s home. Ms. Tillery
did tell him that the men took a bag of marijuana from the house.
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 Det. Weary testified that while he was interviewing the victims, Ms. Tillery
received a phone call from the Defendant. Ms. Tillery put her phone “on speaker phone,”
and Det. Weary overheard the Defendant say, “You were wrong for calling the police.
I‟m going to tell them that this was a drug deal gone bad. If you, if you go through with
it, it‟s going to get serious.” At that point, Det. Weary took the phone and said the
Defendant‟s name. The Defendant responded, “Yeah,” and told Det. Weary that “it was a
drug deal gone bad” and that he had just taken “some marijuana from them.” Det. Weary
testified that he offered to have the Defendant come to his office and explain his side of
the incident, but the Defendant never did.

Based upon the foregoing, the jury convicted the Defendant of aggravated robbery
regarding Mr. Hubbard, a Class B felony; aggravated assault regarding Ms. Tillery, a
Class C felony; coercion of a witness regarding Ms. Tillery, a Class D felony; aggravated
burglary of Ms. Tillery‟s home, a Class C felony; and employment of a firearm during
the commission of a dangerous felony regarding the aggravated burglary, a Class C
felony. Tenn. Code Ann. §§ 39-13-102(a)(1)(A)(iii), -13-402(a)(1), -14-403, -16-507, -
17-1324(b)(1).

II. Sentencing Hearing

The Defendant‟s presentence report revealed that the Defendant had three prior
felony convictions for theft, evading arrest, and aggravated assault in addition to
misdemeanor convictions for assault, simple possession of cocaine, evading arrest,
“joyriding,” criminal trespass, and vehicular assault. The Defendant also had a federal
conviction for possession of a firearm by a convicted felon. The Defendant reported that
he had been adjudicated delinquent as a juvenile for “auto burglary,” “auto theft,”
attempted robbery, theft, evading arrest, and disorderly conduct. However, the
Defendant‟s juvenile records were not reviewed due to his age. In addition to his prior
convictions, the Defendant had his state probation revoked on two prior occasions and his
federal probation revoked once.

The Defendant stated in the presentence report that he went to Ms. Tillery‟s house
to buy marijuana but that he did not intend to pay for it. The Defendant stated that he
“requested a large amount, let the dealer weigh it, [and] then told the dealer he had left
his money in the car.” The Defendant claimed that “the dealer” let him take the
marijuana to his car and that he drove away, “at which time the dealer called the police to
report a robbery.” The presentence report also reflected that on June 8, 2011, the
Defendant “was verified by the Hamilton County Sheriff‟s Office as a member of the
„Rollin‟ 60s‟ Crips.”

The Defendant‟s sister, Darlisha Simmons, testified that she believed the
Defendant, if placed on supervised release, would “[get] it together” because he had a
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daughter he wanted to care for. The Defendant‟s mother, Kathy Johnson, testified that
the Defendant was diagnosed with attention deficit hyperactivity disorder as a child. Ms.
Johnson further testified that the Defendant was a “good person” and wanted to “be
there” for his daughter. The Defendant told Ms. Johnson that he “went to go purchase
some weed from [Ms. Tillery] and she tried to beat him and he just took it and walked
away.” Ms. Johnson admitted that the Defendant had his first case transferred to criminal
court when he was fifteen.

The Defendant testified that he went to Ms. Tillery‟s house alone and without a
gun to steal marijuana from her. The Defendant denied ever speaking to Det. Weary and
claimed that he offered to turn himself in to another police officer but decided not to
when he found out that a warrant had been issued for him because it was the officers‟ job
“to come get [him].” To the extent that his testimony differed from the testimony at trial,
the Defendant claimed that all of the witnesses at trial had lied. The Defendant also
claimed that most of his prior convictions and probation revocations were not as serious
as they seemed and also claimed that some of his convictions were errors and should not
have been on his record. The Defendant admitted to being in a gang when he was
“younger” but denied that he was still involved in it. The Defendant further admitted that
he sometimes went by “M-60” and that he had a tattoo on his right hand that said
“rolling.” The Defendant testified that he wanted to leave the state so he could be with
his daughter.

In sentencing the Defendant, the trial court discussed several things under the
“catch-all” mitigating factor. See Tenn. Code Ann. § 40-35-113(13). The trial court
noted the Defendant‟s “home life,” the fact that he grew up “without a father,” and his
diagnosis of attention deficit hyperactivity disorder as a child. The trial court further
noted that the Defendant earned his G.E.D. while in federal prison. The trial court also
acknowledged that no one was harmed during the offenses. The trial court stated that the
Defendant was “educated and smart.” The trial court acknowledged the Defendant‟s
desire to be with his daughter and “to really become involved in her life.” The trial court
stated that it considered “all of these factors as mitigating factors.”

For all of the offenses, the trial court found that the Defendant had a previous
history of criminal convictions or criminal behavior, in addition to those necessary to
establish the appropriate range, and that the Defendant, before trial or sentencing, had
failed to comply with the conditions of a sentence involving release into the community.
See Tenn. Code Ann. § 40-35-114(1), (8). For the aggravated robbery, aggravated
assault, and the aggravated burglary convictions, the trial court also found that the
Defendant had no hesitation about committing a crime when the risk to human life was
high. See Tenn. Code Ann. § 40-35-114(10). The trial court concluded that the
applicable enhancement factors “significantly outweigh[ed] the mitigating factors.”

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 The Defendant was classified as a Range I, standard offender for the aggravated
robbery conviction and as a Range II, multiple offender for his convictions of aggravated
assault, coercion of a witness, aggravated burglary, and employment of a firearm during
the commission of a dangerous felony. The trial court sentenced the Defendant to eleven
years for the aggravated robbery conviction; nine years for the aggravated assault, the
aggravated burglary, and the employment of a firearm convictions; and six years for the
coercion of a witness conviction.

The trial court imposed partial consecutive sentences based upon the Defendant‟s
extensive record of criminal activity. See Tenn. Code Ann. § 40-35-115(b)(2). The trial
court ordered the Defendant‟s sentences for aggravated assault, coercion of a witness, and
aggravated burglary to be served concurrently with each other but consecutively to the
sentence for the Defendant‟s aggravated robbery conviction. The trial court ordered the
Defendant‟s sentence for employment of a firearm during the commission of a dangerous
felony be served consecutively to his sentence for aggravated burglary, noting that
consecutive sentencing was statutorily mandated. See Tenn. Code Ann. § 39-17-
1324(e)(1). In total, the trial court imposed an effective sentence of twenty-nine years.

III. Motion for New Trial Hearing

At the motion for new trial hearing, the Defendant was represented by a new
attorney. In his amended motion for new trial, the Defendant raised the issue that one of
the prosecutors, Assistant District Attorney General (ADA) David Schmidt, had
represented the Defendant in an unrelated criminal case several years prior to this case.
The Defendant‟s attorney acknowledged that trial counsel was aware of this fact, that trial
counsel never objected to ADA Schmidt‟s participation in the prosecution, and that the
issue was not brought to the trial court‟s attention until the Defendant filed his amended
motion for new trial.

The Defendant testified that in 2007, ADA Schmidt represented him in an assault
case. The Defendant explained that he had assaulted a fellow inmate while he was
incarcerated in the county jail and that prison officials had deemed the offense “gang-
related.” The Defendant admitted that the assault was never brought up during his trial in
this case. However, the Defendant testified that he believed ADA Schmidt became
“aware that [he] was a validated member of a gang” due to their attorney-client
relationship and complained that the assault conviction was used by the State to enhance
his sentences in this case.

ADA Schmidt testified that he began working for the District Attorney General‟s
Office in December 2009, and that prior to that, he had been in private practice in
Hamilton County. ADA Schmidt testified that he did not realize the Defendant was a
former client until the Defendant filed his amended motion for new trial. ADA
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Schmidt‟s billing sheet for the Defendant‟s assault case reflected that he only spent 1.1
hours representing the Defendant. ADA Schmidt testified that he became involved in this
case “a couple of months prior to trial” and that his prior representation of the Defendant
played no role in this case. ADA Schmidt further testified that his prior representation of
the Defendant was not how he learned that the Defendant was a gang member. ADA
Schmidt also denied that his prior representation of the Defendant had any role in the
Defendant‟s re-indictment.

The trial court issued a general denial of the Defendant‟s motion for new trial
without making any specific findings of fact or conclusions of law regarding this issue.
This timely appeal followed.

ANALYSIS

I. Disqualification of ADA Schmidt

The Defendant contends that this case should be remanded for a new trial because
ADA Schmidt had previously represented the Defendant in an unrelated matter. The
Defendant argues that ADA Schmidt “learned through that representation of [the]
Defendant‟s involvement in a gang” and that “there was no evidence of any other way in
which ADA Schmidt had learned of [the] Defendant‟s alleged gang involvement.” The
Defendant further argues that ADA Schmidt used that information to “deliberately
[solicit] extremely prejudicial testimony from [Ms.] Tillery that [the Defendant] was in a
gang.” The Defendant also argues that the prior assault conviction was “used against him
at sentencing.” The State responds that the Defendant has waived this issue by failing to
raise an objection prior to trial and that plain error review of this issue is not warranted.

The Defendant raised this issue for the first time in his amended motion for new
trial. As such, he has waived full appellate review of the issue. See Tenn. R. App. P.
36(a) (stating that relief will not be granted “to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error”). Therefore, we review this issue solely to determine if plain error
review is warranted.

The doctrine of plain error applies only when all five of the following factors
have been established:

(a) the record must clearly establish what occurred in the trial court;
(b) a clear and unequivocal rule of law must have been breached;
(c) a substantial right of the accused must have been adversely affected;
(d) the accused must not have waived the issue for tactical reasons; and
(e) consideration of the error must be “necessary to do substantial justice.”
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State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d
355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be]
especially egregious in nature, striking at the very heart of the fairness of the judicial
proceeding, to rise to the level of plain error.” Id. at 231.

Here, plain error review is not warranted because the Defendant has failed to
establish that a clear and unequivocal rule of law was breached. Page, 184 S.W.3d at
230. Attorneys “cannot represent conflicting interests or undertake to discharge
inconsistent duties.” State v. Phillips, 672 S.W.2d 427, 430 (Tenn. Crim. App. 1984)
(quoting Autry v. State, 430 S.W.2d 808, 809 (Tenn. Crim. App. 1967)). To that end,
“[w]hen an attorney has once been engaged and received the confidences of his client, he
cannot enter the services of those whose interests are adverse to that of his client or
former client.” Id. In criminal cases, “[a]n attorney cannot be permitted to participate in
the prosecution . . . if, by reason of his professional relation with the accused, he has
acquired knowledge of facts upon which the prosecution is predicated, or which are
closely interwoven therewith.” Id. at 430-31.

ADA Schmidt represented the Defendant in an unrelated matter some five years
prior to the trial in this case. ADA Schmidt only spent 1.1 hours representing the
Defendant on an assault charge and testified that he did not recall representing the
Defendant until the issue was raised in the Defendant‟s motion for new trial. The
Defendant argues that during the prior representation, ADA Schmidt acquired knowledge
of facts “closely interwoven” with this case, chiefly the Defendant‟s gang affiliation.
However, there is significant evidence that the Defendant‟s gang affiliation was public
knowledge by the time of his trial in this case.

The Defendant “was verified by the Hamilton County Sheriff‟s Office as a
member of the „Rollin‟ 60s‟ Crips” in June 2011. During an objection to Ms. Tillery‟s
testimony about the Defendant and Flubber both being gang members, trial counsel stated
that he “had an inclination” that Ms. Tillery would testify that the Defendant was a gang
member. Later, trial counsel objected to a portion of Mr. Hubbard‟s preliminary hearing
testimony from June 2011, in which Mr. Hubbard testified that the Defendant was in a
gang. That portion of the testimony was redacted and not provided to the jury.
Furthermore, the Defendant testified at the sentencing hearing that he had been in a gang
when he was “younger,” that he sometimes went by “M-60,” and that he had a tattoo on
one of his hands which read, “rolling.”

This case is similar to State v. Tina M. Dixon, in which the defendant alleged she
was denied due process because the prosecutor had represented her on two prior
convictions and those convictions were used to enhance her sentences. No. M2010-
02382-CCA-R3-CD, 2012 WL 2356523, at *13 (Tenn. Crim. App. June 21, 2012). A
panel of this court concluded that the trial court did not err in denying the defendant‟s
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motion to disqualify the prosecutor because, similar to the case at hand, there was no
evidence that the prosecutor even remembered having previously represented the
defendant “eighteen years before the current prosecution” and there was no evidence
“that the prosecutor obtained information through her previous representation that had
any bearing on [the current] convictions.” Id. at *14. Accordingly, we conclude that
plain error review of this issue is not warranted.

II. Vindictive Prosecution

The Defendant contends that the indictments for aggravated burglary and
employing a firearm during the commission of a dangerous felony should be dismissed
due to alleged vindictive prosecution. The Defendant alleges that those charges were
“merely a ruse by the State . . . to expose the Defendant to greater sentencing and
mandatory consecutive sentencing.” However, the Defendant makes no argument that
the State lacked probable cause to support the indictments and makes no allegation that
the State‟s actions were a vindictive response to the Defendant choosing to exercise his
constitutional rights. The State responds that the Defendant has waived full appellate
review of this issue by failing to raise it prior to trial and that plain error review is not
warranted.

A trial court “at any time while [a] case is pending, . . . may hear a claim that the
indictment . . . fails to show jurisdiction in the court or to charge an offense.” Tenn. R.
Crim. P. 12(b)(2)(B). However, motions alleging other types of defects in the indictment
or “alleging a defect in the institution of the prosecution” must be raised before trial.
Tenn. R. Crim. P. 12(b)(2)(A), (B). Failure to do so waives the issue. Tenn. R. Crim. P.
12(f)(1). A claim of vindictive prosecution alleges a defect in the institution of the
prosecution; therefore, it must be raised prior to trial. See Fed. R. Crim. P.
12(b)(3)(A)(iv).3 The Defendant has waived this issue by failing to raise it prior to trial.
As such, we review the issue solely to determine if plain error review is warranted.

Here, plain error review is not warranted because the Defendant has failed to
establish that a clear and unequivocal rule of law was breached. Page, 184 S.W.3d at
230. “Allegations of prosecutorial vindictiveness or selective prosecution in the
institution of a prosecution, have constitutional implications that, if proven, may warrant
dismissal of the indictment.” State v. Skidmore, 15 S.W.3d 502, 508 (Tenn. Crim. App.
1999) (citing Blackledge v. Perry, 417 U.S. 21, 27 (1974)). However, “as long as the
prosecutor has probable cause to believe that an accused committed an offense, the

3
This court, noting the similarity between the two rules, has previously relied upon federal case law
interpreting Federal Rule of Criminal Procedure 12 in interpreting Tennessee Rule of Criminal Procedure
12. See State v. Nixon, 977 S.W.2d 119, 120-21 (Tenn. Crim. App. 1997).
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determination whether to prosecute rests entirely within the prosecutor‟s discretion,
subject to these constitutional limitations.” Id.

The Defendant was originally indicted for aggravated robbery, aggravated assault,
and coercion of a witness. A new indictment was filed shortly before trial adding the
offenses of aggravated burglary and employment of a firearm during the commission of a
dangerous felony. It is well settled that “„the initial charges filed by a prosecutor may not
reflect the extent to which an individual is legitimately subject to prosecutions‟” and that
“an initial charging decision is not binding upon the State with respect to the future
course of the prosecution.” State v. Mann, 959 S.W.2d 503, 510 (Tenn. 1997) (quoting
United States v. Goodwin, 457 U.S. 368, 382 (1982)). As the State had probable cause to
believe that the offenses of aggravated burglary and employment of a firearm during the
commission of a dangerous felony had been committed by the Defendant, the new
indictment was not the product of prosecutorial vindictiveness. Accordingly, we
conclude that plain error review of this issue is not warranted.

III. Severance of the Coercion of a Witness Charge

The Defendant contends that the trial court erred by not severing the coercion of a
witness charge from the other offenses. The Defendant argues that trying the coercion of
a witness charge with the other offenses resulted “in extreme prejudice to [the]
Defendant,” improperly bolstered Ms. Tillery‟s credibility, and prevented “effective
cross-examination of her testimony.” The State responds that the Defendant has waived
this issue by failing to file a pretrial motion to sever and that plain error review of this
issue is not warranted.

A motion to sever must be filed prior to trial. Tenn. R. Crim. P. 12(b)(2)(E).
Failure to do so waives the issue. Tenn. R. Crim. P. 12(f)(1). Here, the Defendant failed
to file a pretrial motion to sever and raised this issue for the first time in his amended
motion for new trial. Accordingly, we address this issue solely to determine if plain error
review is warranted.

Here, plain error review is not warranted because the Defendant has failed to show
that a clear and unequivocal rule of law has been breached. Page, 184 S.W.3d at 230. A
panel of this court has previously held that a trial court did not err in denying a
defendant‟s severance motion seeking to sever a coercion of a witness charge from the
underlying offenses because “[e]vidence of efforts to avoid prosecution for a crime,”
such a coercing a witness to the crime, “is highly probative to establish the intent of a
perpetrator.” State v. Larry D. LaForce, II, No. E2007-00334-CCA-R3-CD, 2008 WL
538969, at *7 (Tenn. Crim. App. Feb. 27, 2008). Therefore, plain error review is not
warranted because no clear and unequivocal rule of law has been breached.

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 IV. Double Jeopardy

The Defendant contends that his convictions for aggravated burglary and
aggravated assault violate the constitutional protection against double jeopardy because
those offenses “were incidental to the aggravated robbery.” The Defendant argues that
the aggravated assault of Ms. Tillery and the aggravated burglary of her home were “part
of a single episode of aggravated robbery.” In making this argument, the Defendant
urges this court to compare the facts of this case with those of State v. White, 362 S.W.3d
559 (Tenn. 2012), and its progeny. The Defendant also argues, with respect to the
aggravated burglary conviction, that the State failed to prove the required element that the
Defendant entered the house with the intent to commit a theft because he “entered the
Tillery residence to rob, not to commit theft.” The State responds that the Defendant‟s
convictions for aggravated robbery, aggravated assault, and aggravated burglary do not
violate the prohibition against double jeopardy.

Both the United States and Tennessee Constitutions protect against a criminal
defendant being placed in double jeopardy for the same offense. U.S. Const., amend. V;
Tenn. Const. art. I, § 10. This protection includes: “(1) protection against a second
prosecution for the same offense after acquittal; (2) protection against a second
prosecution for the same offense after conviction; and (3) protection against multiple
punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012).
At issue here is the last of these protections, protection against multiple punishments for
the same offense, specifically a “multiple description claim.”

Multiple description claims “arise in cases in which defendants who have been
convicted of multiple criminal offenses under different statutes allege that the convictions
violate double jeopardy because the statutes punish the „same offense.‟” Watkins, 362
S.W.3d at 544. As such, we are tasked with determining whether the Defendant
committed multiple offenses or only one. Id. In doing so, we apply the test announced in
Blockburger v. United States, 284 U.S. 299 (1932). Id. at 556 (adopting the Blockburger
test).

The Blockburger test applies “where the same act or transaction constitutes a
violation of two distinct statutory provisions” and requires examination of “whether each
provision requires proof of a fact which the other does not.” 284 U.S. at 304. Put
another way, “[i]f each offense includes an element that the other offense does not, „the
Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to
establish the crimes.‟” Watkins, 362 S.W.3d at 544 (quoting Iannelli v. United States,
420 U.S. 770, 785 n.17 (1975)).

“The Blockburger test involves a two-step process”: (1) “the threshold inquiry . . .
is whether the alleged statutory violations arise from „the same act or transaction‟”; and
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(2) if they do, “a court next examines the statutes to determine whether the crimes of
which the defendant was convicted constitute the same offense.” Watkins, 362 S.W.3d at
545. If each statutory offense “includes an element not contained in the other, the
offenses are distinct,” and “the legislature is presumed to have intended to allow the
offenses to be punished separately.” Id. at 545-46. The question of whether multiple
convictions violate double jeopardy is one of mixed law and fact, “which we review de
novo without any presumption of correctness.” Id. at 539.

At the outset, we reject the Defendant‟s request to compare this case with White
and its progeny. The holding of White “was intended to address the due process concerns
that arise when a defendant is charged with kidnapping a victim and other crimes, such as
robbery, rape, or assault, that involve some inherent confinement of that victim.” State v.
Teats, 468 S.W.3d 495, 503 (Tenn. 2015). This court, reasoning that the precedent
preceding White was “expressly limited to those cases involving the propriety of a
separate conviction of kidnapping,” has previously held that “[t]he same danger does not
exist between the crimes of aggravated robbery and aggravated burglary.” State v. Larry
Jereller Alston, No. E2012-00431-CCA-R3-CD, 2013 WL 2382589, at *10 (Tenn. Crim.
App. May 30, 2013), aff‟d on other grounds, State v. Alston, 465 S.W.3d 555 (Tenn.
2015).

In previously rejecting an argument similar to the Defendant‟s and holding that
separate convictions for aggravated robbery and aggravated burglary do not violate the
principle of double jeopardy, this court has stated the following:

The offenses of aggravated burglary and aggravated robbery “are narrowly
defined by statute and each contains different elements.” Aggravated
burglary is a property crime that is complete upon the unauthorized entry
into a habitation. The victim of aggravated burglary need not even be
present when the offense is committed. Aggravated robbery, as charged, on
the other hand, is a crime against the person complete upon the taking of
property from another by putting in fear and use of a deadly weapon. A
perpetrator need not make any entry into a habitation to complete the
offense of aggravated robbery.

Alston, 2013 WL 2382589, at *10-11 (internal citations omitted). As such, the
Defendant‟s argument with respect to his aggravated burglary and aggravated robbery
convictions is without merit.

Regarding the Defendant‟s aggravated assault and aggravated robbery convictions,
we note that “[i]f a defendant‟s multiple convictions arise under different statutes and . . .
involve multiple victims, then the double jeopardy protection against multiple
punishment is not implicated.” Watkins, 362 S.W.3d at 554. Here, Ms. Tillery was the
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victim of the aggravated assault and Mr. Hubbard was the victim of the aggravated
robbery.

“[T]he proper unit of prosecution for robbery in Tennessee is the number of
takings, i.e., the number of thefts.” State v. Franklin, 130 S.W.3d 789, 797 (Tenn. Crim.
App. 2003). Here, the evidence established that the Defendant only took money from
Mr. Hubbard. However, contrary to the Defendant‟s argument, “[t]hat is not to say that
the [Defendant is not] guilty of two crimes.” Id. at 798. This court has previously held
that a defendant can be convicted of both aggravated assault with respect to one victim
and aggravated robbery with respect to a second victim when “each of the two victims
was threatened with a gun during the course of the robbery.” Id.; see also State v. James
Carlos Ward, No. M2009-00417-CCA-R3-CD, 2010 WL 1949155, at *9 (Tenn. Crim.
App. May 14, 2010) (citing Franklin and reaching the same result). Accordingly, the
Defendant‟s challenge to his aggravated assault and aggravated robbery convictions is
without merit.

We must also reject the Defendant‟s argument that the State failed to establish that
he entered Ms. Tillery‟s home with the intent to commit a theft because he “entered the
[home] to rob, not to commit theft.” Robbery is statutorily defined as “the intentional or
knowing theft of property from the person of another by violence or putting the person in
fear.” Tenn. Code Ann. § 39-13-401(a) (emphasis added). “The element which
distinguishes theft from robbery is the use of violence or fear.” State v. Owens, 20
S.W.3d 634, 638 (Tenn. 2000). As such, when the Defendant entered Ms. Tillery‟s home
“to rob,” he did so with the intent to commit a theft by the use of violence or fear. The
fact that this was the Defendant‟s intent is clear from the fact that he put a gun to Ms.
Tillery‟s back and told her that he was going to walk her back into the house and she was
“fixing to give [him] the money.” Accordingly, we conclude that this argument is devoid
of merit.

V. Election of Offenses

The Defendant contends that the State failed to make a proper election of offenses
with respect to the coercion of a witness charge. The Defendant argues that the State
simply restated what was charged in the indictment, which covered a three-month period
and “alleged multiple events.” The Defendant further argues that this error was
compounded by the admission of his recorded jail phone calls, which were made outside
the time provided in the indictment. The State responds that an election of offenses was
not required because coercion of a witness is a continuing offense. In the alternative, the
State responds that any error in the election was cured by the prosecutor‟s closing
argument.

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 The indictment charged the Defendant with coercion of a witness occurring
“between March 10, 2011 and June 9, 2011.” After Det. Weary‟s testimony, the State
made the following election of offenses:

The State elects the coercion of a witness as the behavior between
March the 10th, the date of the offense, and June the 9th of 2011, the day of
the preliminary hearing. Those specific acts are those testified by [Ms.
Tillery] between the time that the event took place and the time of the
preliminary hearing, and those testified to here just now by [Det.] Weary.

The trial court charged the jury as follows regarding the State‟s election of
offenses:

The State alleges that the [D]efendant committed the crime of
coercion of a witness between March 10, 2011, and June 9, 2011.
Therefore, the evidence of telephone calls from the Hamilton County jail is
not to be considered by you as evidence constituting coercion of a witness
as alleged in the indictment.

During his closing argument, the prosecutor made the following statement about
the coercion of a witness charge:

What are the facts? What‟s the proof? Ms. Tillery‟s testimony, she
received a phone call. She heard [the Defendant‟s] voice threaten her.
And, of course, it was [the Defendant‟s] intent that she, one, not call the
police, and that she not show up to court to testify. Why else would he
call? And it‟s also supported by [Det.] Weary‟s testimony that you heard.
[The Defendant] is guilty of coercion of a witness.

Our supreme court “has consistently held that the prosecution must elect the facts
upon which it is relying to establish the charged offense if evidence is introduced at trial
indicating that the defendant has committed multiple offenses against the victim.” State
v. Johnson, 53 S.W.3d 628, 630 (Tenn. 2001). “The election requirement safeguards the
defendant‟s state constitutional right to a unanimous jury verdict by ensuring that jurors
deliberate and render a verdict based on the same evidence.” Id. at 631.

With respect to the State‟s argument that coercion of a witness is a continuing
offense, we note that this court has previously held that it is not. Colbert, 2013 WL
3128698, at *24 n.6. However, we do not believe that the election in this case was
insufficient. While the State‟s election simply referred back to the timeframe from the
indictment and referred to the “specific acts” Ms. Tillery had testified occurred “between
the time that the event took place and the time of the preliminary hearing,” the election
-17-
also referred to Det. Weary‟s testimony regarding the phone call the Defendant made to
Ms. Tillery immediately after the offenses.

Furthermore, any error made by the State in its election of offenses was cured
during the prosecutor‟s closing argument. In his closing argument, the prosecutor made
clear that the State was seeking a conviction for coercion of a witness based upon the
Defendant‟s phone call to Ms. Tillery, which Det. Weary overheard, immediately after
the offenses. “[F]ailure to instruct the jury properly about the State‟s election of offenses
may be cured by a prosecutor‟s closing argument if it provides an effective substitute for
the missing instruction.” State v. Knowles, 470 S.W.3d 416, 427 (Tenn. 2015). Here, the
State‟s closing argument provided an effective substitute for any inaccuracies in its
original election.

Finally, regarding the Defendant‟s argument that the admission of his jail phone
calls recorded after the timeframe alleged in the indictment also prevented a proper
election from being made, we note that the trial court instructed the jury that those
recordings were not to be considered as evidence of coercion of a witness. The jury is
presumed to have followed the trial court‟s instructions. See State v. Keen, 31 S.W.3d
196, 232 (Tenn. 2002) (appendix); State v. Lawson, 695 S.W.2d 202, 204 (Tenn. Crim.
App. 1985). Accordingly, we conclude that this issue is without merit.

VI. Sentencing

A. Length of Sentence

The Defendant contends that the trial court erred in setting the length of his
sentences. The Defendant argues that the trial court failed to consider in mitigation the
fact that the Defendant “had a mental health diagnosis from childhood,” “that he had
family support from his mother and sister,” “that he had disavowed his gang affiliation,”
that he claimed to have contacted a police officer “to explain his version of the incident,”
“that no one was injured during the instant offense[s],” and that the entire incident “lasted
only a couple of minutes.” The State responds the trial court did not abuse its discretion
in setting the length of the Defendant‟s sentences.

Appellate courts are to review “sentences imposed by the trial court within the
appropriate statutory range . . . under an abuse of discretion standard with a presumption
of reasonableness.”4 State v. Bise, 380 S.W3d 682, 709 (Tenn. 2012) (internal quotation
marks omitted). A sentence will be upheld “so long as the statutory purposes and
principles [of the Sentencing Reform Act] . . . have been properly addressed.” Id. at 706.

4
Here, we must note that at no point in his brief does the Defendant refer to Bise or the appropriate
standard of review for this issue or his consecutive sentencing issue.
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If this is true, this court may not disturb the sentence even if a different result were
preferred. State v. Carter, 254 S.W.3d 335 (Tenn. 2008). Even if the trial court has
misapplied an enhancement or mitigating factor, the sentence will be upheld if “there are
other reasons consistent with the purposes and principles of sentencing, as provided by
statute . . . .” Bise, 380 S.W.3d at 706. On appeal, the burden is on the defendant to
show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d).

The Sentencing Reform Act was enacted in order “to promote justice” by ensuring
that every defendant “be punished by the imposition of a sentence justly deserved in
relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102. In order to
implement the purposes of the Sentencing Reform Act, trial courts must consider several
sentencing principles. The sentence imposed for an offense “should be no greater than
that deserved for the offense committed” and “should be the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann.
§ 40-35-103(2), (4). Sentences involving incarceration “should be based on the following
considerations”:

(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.

Tenn. Code Ann. § 40-35-103(2). Trial courts should consider the “potential or lack of
potential for the rehabilitation or treatment of the defendant” when “determining the
sentence alternative or length of term to be imposed.” Tenn. Code Ann. § 40-35-103(5).

The record belies the Defendant‟s claim that the trial court did not consider his
diagnosis for attention deficit hyperactivity disorder as a child and the fact that no one
was harmed during the offenses. The trial court considered these facts along with the
Defendant‟s “home life,” the fact that he earned his G.E.D. while in federal prison, and
his desire “to really become involved in [his daughter‟s] life” under the “catch-all”
mitigating factor. See Tenn. Code Ann. § 40-35-113(13).

Furthermore, to the extent that the trial court did not consider the other facts listed
by the Defendant in his appellate brief, a within range sentence imposed by the trial court
will be upheld even if the trial court misapplied a mitigating factor so long as the trial
court has not “wholly departed from” the Sentencing Reform Act and there are “other
reasons consistent with the purposes and principles of sentencing” to support the
sentence. Bise, 380 S.W.3d at 706. Here, there were multiple enhancement factors found
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to justify the trial court‟s decision regarding the length of the Defendant‟s sentences.
Accordingly, we conclude that the trial court did not abuse its discretion in setting the
length of the Defendant‟s sentences.

B. Consecutive Sentencing

The Defendant contends that the trial court erred in imposing partial consecutive
sentences. The Defendant argues that the trial court erred by using the same prior
convictions used to enhance the length of his sentences to justify partial consecutive
sentencing. The Defendant further argues that partial consecutive sentencing was not
warranted because all of the offenses were “related.” The State responds that the trial
court did not abuse its discretion in imposing partial consecutive sentences.

When reviewing a trial court‟s imposition of consecutive sentences, “the
presumption of reasonableness applies,” which 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).” State v. Pollard, 432 S.W.3d 851, 861 (Tenn.
2013). “Any one of [the] grounds [listed in section 40-35-115(b)] is a sufficient basis for
the imposition of consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d
735 (Tenn. 2013)).

Here, the trial court concluded that the Defendant was an offender whose record of
criminal activity was extensive. See Tenn. Code Ann. § 40-35-115(b)(2). It is
undisputed that the Defendant had a lengthy record of criminal activity. The Defendant
admitted in the presentence report to having been adjudicated delinquent on several
occasions in juvenile court, and the Defendant appeared in criminal court for the first
time at fifteen years old. Since then, the Defendant has had three felony convictions and
six misdemeanor convictions, in addition to a conviction in federal court. The Defendant
has also had suspended sentences revoked on three prior occasions. Furthermore, current
“offenses may be used in determining criminal history for the purposes of consecutive
sentencing.” State v. Richard Hanke, Sr., No. W2011-01830-CCA-R3-CD, 2012 WL
4470964, at *4 (Tenn. Crim. App. Sept. 27, 2012) (quotation marks omitted) (citing
cases).

This court has previously held that, “[a]n extensive history of criminal conduct . . .
can be used both to enhance a particular sentence and to require consecutive service of
multiple sentences.” State v. Marshall, 888 S.W.2d 786, 788 (Tenn. Crim. App. 1994).
Likewise, our supreme court long ago rejected the argument that “the trial judge is
required to take into consideration the fact that all of the offenses arose out of one single
criminal episode or were inspired by the same general intent and minutely limited in both
time and space” in deciding whether to impose consecutive sentences. As there was
-20-
ample evidence for the trial court to find that the Defendant had an extensive history of
criminal activity, we conclude that the trial court did not abuse its discretion in imposing
partial consecutive sentencing.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.

_________________________________
D. KELLY THOMAS, JR., JUDGE

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