IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 7, 2013
STATE OF TENNESSEE v. JERMAINE OWENS
Appeal from the Criminal Court for Shelby County
No. 09-04257 Lee V. Coffee, Judge
No. W2012-00054-CCA-R3-CD - Filed August 5, 2013
The Shelby County Grand Jury indicted Appellant for two counts of especially aggravated
kidnapping, one count for each victim; two counts of especially aggravated robbery, one
count for each victim; and two counts of aggravated rape. At the conclusion of a jury trial,
Appellant was found guilty of all counts. The trial court sentenced Appellant to an effective
sentence of 125 years. On appeal, Appellant argues that the trial court erred in denying his
motion to suppress his identification in the photographic lineup presented to one of the
victims, that the evidence was insufficient to support his convictions, and that the trial court
erred in imposing consecutive sentences. After a thorough review of the record, we conclude
that the trial court did not err in denying the motion to suppress the line-up results or
imposing consecutive sentences. Further, we hold that the evidence was sufficient to support
his convictions. Therefore, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed.
J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
A LAN E. G LENN, JJ., joined.
Joseph S. Ozment, Memphis, Tennessee, for the appellant, Jermaine Owens.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General, and Ray Lepone, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
On the evening of December 28, 2008, the victims, JH1, a female, and JH2 1 , a male,
attended a Christmas party at the skating rink in Cordova, Tennessee. JH1 and JH2 were co-
workers at the Outback Steakhouse in Cordova. Alcohol was not served at the party, but the
attendees could bring their own. JH2 and JH1 left the party about 3:00 a.m. in JH2’s
brother’s Lincoln Aviator. They soon got lost. They stopped at a gas station where JH1
began driving the car. Shortly thereafter, they arrived at the parking garage attached to JH1’s
apartment building. JH1 was smoking a cigarette in the vehicle with the window slightly
open.
As JH1 and JH2 were getting ready to exit the vehicle, two men with guns appeared
on either side of the vehicle. They had sweatshirts wrapped around their heads in an attempt
to obscure their faces. They ordered JH1 and JH2 out of the vehicle and told them to lie face
down on the ground. The gunmen demanded that the victims give them everything in their
pockets. The victims complied.
After demanding that one of the victims lie on top of the other victim, the gunmen left.
The victims remained on the ground. They thought the crime was through. However, the
gunmen returned and ordered the victims back into the car. The gunmen placed JH1 in the
front seat and JH2 in the back seat behind her. One of Appellant’s co-defendants, Rarlo
Primes, drove the vehicle. The second gunman, James Hamilton, was in the backseat with
JH2. The gunmen told the victims to keep their heads down. At some point, they stopped
and a dark SUV pulled up to the driver’s side of the vehicle. The driver of the dark SUV was
talking to Mr. Primes.
The victims were driven to a field about twenty minutes away from JH1’s apartment.
When they arrived at the field, the victims were pulled out of the vehicle. The assailants
made JH2 and JH1 take off their shoes and some of their clothes.
JH1 was taken away from JH2. They put him on the ground and asked him what his
PIN was for his credit card. JH2 did not know the number. When he told them he did not
know it, one of the gunmen began hitting JH2 in the side of the face and the back of the head
with a gun. JH2 said that when he told them something they did not like, they beat him.
1
Because of the nature of the crimes, we will refer to the victims by their initials.
-2-
Eventually, JH2 gave them a fake PIN. Initially he heard just the two voices of the
individuals in the truck, but later he heard a third voice.
Apparently at some point, one individual took JH2’s credit card and attempted to use
it. The individual was very angry when he returned from the ATM. He shot JH2 in the back
and said, “See. See I’m not playing.” The person who shot him was the third voice. JH2
stated that the third person hit him the most. The assailants also urinated on JH2’s head. At
some point, JH2 lost consciousness.
JH1 testified that when they arrived at the field, she was taken away from JH2 and did
not see him again for about an hour. She also stated that she did not see or hear Mr. Primes
while she was in the field. There was a third gunman at the field. She was not sure when or
how he arrived. She identified the third person in the field as Appellant. According to JH1,
she did not come into contact with Appellant until they got to the field. She testified that
Appellant seemed to be the gunman in charge. She said he ordered that her shirt be taken off
and orchestrated the events of the evening.
Appellant had JH1 on the ground while he hit her in the face with a gun. She stated
that Appellant was the one beating her. Although it was dark, she stated that she was very
close to him several times and could identify him. JH1 stated that when the ordeal in the
field began, Appellant was wearing a bandana but later on he was not wearing it anymore.
JH1 testified that she was “crying and crying.” Mr. Hamilton yelled at her and told
her to stop crying. He forced JH1 to perform oral sex while he held a gun to her head. He
did not ejaculate. She stated that Mr. Hamilton did not hit or beat her. JH1 stated that Mr.
Hamilton did not seem eager to participate in the rape. When Appellant was away from her,
Mr. Hamilton told her that she was going to be okay.
Appellant returned when JH1 was on her knees without her shirt. She said that she
was bleeding and in pain. In addition to being beaten repeatedly in the face with a gun, one
of the gunman stomped on her hands. She was looking down, so she could not identify who
it was. She was also stepped on and kicked in the back. Appellant forced her onto her back
and ordered her to take off her pants. She attempted to comply with his demand, but
Appellant became impatient and ripped off her pants. She pleaded with Appellant to stop.
Because Appellant hit her every time she begged, JH1 stopped begging. Appellant told her
to “shut up” or he would kill her. Appellant did not take his pants off, but instead pulled his
pants down enough to rape her vaginally with his penis. Appellant also attempted to insert
his fingers in her anus. Throughout the vaginal and anal rape, Appellant either had the gun
at the victim’s head or laid down on the ground depending upon what he was doing. The
victim did not know if Appellant ejaculated.
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After about an hour of assaulting the victims, the three gunmen placed JH1 in the
driver’s seat and JH2 in the passenger seat of the Lincoln. JH2 regained consciousness in
the Lincoln. He said blood was pouring off of his face, and he saw JH1 sitting next to him
in the driver’s seat. JH2 said that JH1 was bleeding. JH1 had blood all over her face. The
gunmen told the victims to keep their heads down or they would kill them, and the assailants
drove off in the dark SUV.
JH2 retrieved two jackets from the back of the vehicle and gave one to JH1. JH1 tried
to drive away, but the car was stuck. JH2 had to get in the driver’s seat, and JH1 got out and
pushed the Lincoln from behind. They did not know where they were. The victims could
see the big buildings of the Memphis skyline, so they drove in that direction. They
eventually found the Methodist University Hospital.
JH2 was let in the emergency entrance. JH1 went to the front entrance. JH2 did not
see JH1 again once they got to the hospital. JH2 said that he was attempting to tell the
hospital employees what happened when he began to throw up blood. He was taken into
surgery. The doctors were not able to remove the bullet. JH2 was at the hospital for eighteen
days.
At trial, JH2 testified that his wallet, ATM card, cell phone, and the in-dashboard
DVD navigation system were all taken from him. There was a gun pointed at him throughout
the ordeal. JH1 testified that her purse and its contents, cell phone, and twenty-first birthday
ring were taken.
Nurse Pam Preston testified that she worked with the Memphis Sexual Assault
Resource Center. She examined JH1 the morning of the incident. She stated that JH1 was
“sad, trembling, tearful, and beaten” Ms. Preston testified that JH1 was disheveled.
Throughout the examination, JH1 was in pain and was sobbing. Ms. Preston testified that
the victim had multiple, visible injures, including lacerations on both hands, swelling in the
right hand, an abrasion on the left side of her back, bruising of the right hip and buttock,
bruising and laceration of both eyes, lacerations of the right cheek and chin, bruising and
redness of the left jaw and neck, laceration of the scalp, and laceration and bruising of the
inner and outer lips.
JH1 told Ms. Preston that she had been raped orally, vaginally, and anally by two
different perpetrators. They did not use condoms. The victim did not know if the
perpetrators had ejaculated during the rapes. JH1 sustained an injury to the inside of her
mouth that is specific to a forced oral rape. Ms. Preston took swabs from the victim’s body
parts where she was assaulted. She prepared slides to determine if semen was present. There
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was not. At the conclusion of the examination, Ms. Preston prepared a report. She
determined that sexual assault was suspected and that JH1’s level of injury was extreme.
Lieutenant Ryan Thomas with the Memphis Police Department was the case
coordinator. He tracked JH1’s cell phone to an address. An officer proceeded to the address
in question and located JH1’s cell phone. Mr. Hamilton was present at the address. The
officer arrested him.
Mr. Hamilton gave a statement to Lieutenant Thomas. He admitted that he
participated in the robbery of JH1 and JH2. As a result of this interview, Lieutenant Thomas
and several other officers went to an address in Memphis. When they arrived at the address,
the officers knocked on the door. Appellant answered the door and let them into the home.
The officers took Appellant into custody. They also recovered a black Tahoe that they
discovered belonged to Appellant’s cousin. Within a day of the crime, Mr. Hamilton,
Appellant, and Mr. Primes had all been arrested.
After advising Appellant of his Miranda rights, Appellant waived his rights.
Lieutenant Thomas interviewed Appellant regarding the evening in question. Initially,
Appellant denied any involvement with the crimes. Lieutenant Thomas confronted Appellant
with a photograph of Appellant at a First Tennessee Bank attempting to use JH2’s ATM card.
This location was less than five minutes from the field. Appellant changed his story. He
stated that Mr. Primes and Mr. Hamilton called him to pick them up at a parking garage. He
said he circled the garage and that the other two men ran out of the garage. After getting in
the Tahoe, Appellant said the two men decided to return to the garage. He said that he asked
Mr. Primes for some gas and that Mr. Primes gave him some credit cards and codes that did
not work. Appellant said that he drove to the field and the two men jumped out of the Tahoe.
Appellant said he drove off and was not involved with the incident other than driving the
Tahoe.
On July 9, 2009, the Shelby County Grand Jury indicted Appellant, Mr. Hamilton, and
Mr. Primes for two counts of especially aggravated kidnapping, one count for each victim;
two counts of especially aggravated robbery, one count for each victim; and two counts of
aggravated rape.
On March 1, 2010, Appellant filed a motion to suppress a photographic lineup that
occurred the day before the preliminary hearing. After a hearing on the motion, the trial
court denied the motion. A jury trial was held from August 22, 2011, to August 27, 2011.
At the conclusion of the trial, the jury found Appellant guilty of two counts of especially
aggravated kidnapping, two counts of especially aggravated robbery, and two counts of
aggravated rape.
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On September 30, 2011, the trial court held a separate sentencing hearing. The two
rape convictions were merged into one another, and Appellant was sentenced to twenty five
years at 100 percent for each conviction, resulting in five twenty-five-year sentences. The
trial court ordered that the sentences be served consecutively to each other. Appellant’s
effective sentence is 125 years to be served at 100 percent.
Appellant appeals his convictions and sentence.
ANALYSIS
Motion to Suppress
On appeal, Appellant argues that the trial court erred in denying his motion to
suppress the photographic lineup because “his photograph was emphasized in the array
because of the difference in clothing worn made the Appellant stand out unnecessarily and
with prejudice.” The State disagrees.
Initially, we point out that Appellant’s brief states that the trial court should have
granted his motion to suppress “the Photo Lineup and subsequent identifications.” (emphasis
added). However, Appellant’s argument, citations to the record, and citation to authority
only addresses the photographic lineup. Rule 27(a)(7) of the Tennessee Rules of Appellate
Procedure provides that a brief shall contain “[an] argument . . . setting forth the contentions
of the appellant with respect to the issues presented, and the reasons therefor, including the
reasons why the contentions require appellate relief, with citations to the authorities and
appropriate references to the record . . . relied on.” Tennessee Court of Criminal Appeals
Rule 10(b) states that “[i]ssues which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as waived in this court.” See also State
v. Sanders, 842 S.W.2d 257, 259 (Tenn. Crim. App. 1992) (determining that issue was
waived where defendant cited no authority to support his complaint). Therefore, we will only
address the identification issue with regard to the out-of-court photographic lineup.
In reviewing a trial court’s denial of a motion to suppress, this Court is bound by the
trial court’s findings of fact unless the evidence preponderates otherwise. State v. Yeargan,
958 S.W.2d 626, 629 (Tenn. 1997). However, the law as applied to those facts is subject to
de novo review. Id. Appellant bears the burden of demonstrating that the evidence
preponderates against the trial court’s findings. State v. Odom, 928 S.W.2d 18, 22-23 (Tenn.
1996).
At the suppression hearing, Lieutenant Ryan Thomas with the Memphis Police
Department testified that he was the case coordinator of the case at hand. As a result of his
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investigation, he developed a suspect by the name of James Hamilton. Mr. Hamilton’s
statements led to the arrest of Appellant. Lieutenant Thomas interviewed both victims at the
hospital immediately after the incident. He showed JH1 photographic lineups from which
she identified Mr. Primes and Mr. Hamilton. JH1 was never shown a photographic lineup
from which to identify Appellant. This was an inadvertent mistake on the part of the police
department. In February 2009, immediately before Appellant’s preliminary hearing, the
oversight was discovered. Lieutenant Thomas testified that he used a computer program
called “Mug Shots” to help create a photographic lineup with similar photographs. JH1 was
in the lobby of the courthouse on February 23, 2009, before the hearing, and Lieutenant
Thomas took her to a room where he showed her a photographic lineup. JH1 immediately
identified Appellant and circled his picture.
JH1 testified at the hearing about her ordeal. She stated that they were in the field for
around an hour and she was raped multiple times by Appellant and one of the co-defendants.
She stated that although it was dark, she saw Appellant up close and was able to identify him.
JH1 stated that before the photographic lineup, she viewed Appellant’s picture at the Shelby
County Jail kiosk online. She said she looked because she feared for her safety and was
concerned that the defendants would be released. JH1 stated that if one of the individuals
who had been arrested for the crime was not involved, she would have called the police
immediately. She also stated that viewing the photograph online did not effect her
identification of Appellant in the photographic lineup shown to her in February.
At the conclusion of the hearing, the trial court denied the motion to suppress the
photographic identification.
Out-of-Court Identifications
Out-of-court eyewitness identifications as well as in-court identifications may be
challenged on constitutional grounds. A defendant’s right to due process is violated if, under
the totality of the circumstances, “the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Simmons v. U.S., 390 U.S. 377, 384 (1968); Stovall v. Denno, 388 U.S.
293, 302 (1967); see also State v. Strickland, 885 S.W.2d 85, 88 (Tenn. Crim. App. 1993).
“Suggestive confrontations are disapproved because they increase the likelihood of
misidentification, and unnecessarily suggestive ones are condemned for the further reason
that the increased chance of misidentification is gratuitous.” Neil v. Biggers, 409 U.S. 188,
198 (1972). Examples of impermissibly suggestive identification procedures include:
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That all in the lineup but the suspect were known to the identifying witness,
that the other participants in a lineup were grossly dissimilar in appearance to
the suspect, that only the suspect was required to wear distinctive clothing
which the culprit allegedly wore, that the witness is told by the police that they
have caught the culprit after which the defendant is brought before the witness
alone or is viewed in jail, that the suspect is pointed out before or during a
lineup, and that the participants in the lineup are asked to try on an article of
clothing which fits only the suspect.
United States v. Wade, 388 U.S. 218, 233 (1967) (footnotes omitted).
Although an identification procedure might be unnecessarily suggestive, the ensuing
identifications may be admissible at trial if the identification was nonetheless reliable. Neil,
409 U.S. at 199-201. The factors to be considered in determining the reliability of the
identification include:
[T]he opportunity of the witness to view the criminal at the time of the crime,
the witness’ degree of attention, the accuracy of the witness’ prior description
of the criminal, the level of certainty demonstrated by the witness at the
confrontation, and the length of time between the crime and the confrontation.
Id. at 199; see State v. Edwards, 868 S.W.2d 682, 695 (Tenn. Crim. App. 1993).
The trial court made the following findings at the conclusion of the hearing on the
motion to suppress:
The motion alleged that [Appellant] is dressed a little bit differently, that the
photograph is significantly different from other defendants, and the Court, for
the record, has reviewed the photographic display, and the Court finds that
there may be some differences in the appearances of [Appellant] and other
defendants, namely, that he does not appear to have anything white on under
his shirt. Lt. Thomas testified that his photographic display was put together
by Mug Shot program, and certain criteria is put in, and they try to get
descriptions that are as close to each other as possible.
....
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The Court finds the process for this photographic display is not overly
suggestive. The only difference in this photographic display is that
[Appellant] does not appear to have anything white on or under the dark
colored shirt that he does [have]. All these people have facial hair. All these
folks have either twists or dreads.
....
The other issue on the identification process is [JH1] has indicated that
she wanted to make sure that the people that had committed this rape against
her, this robbery, this kidnapping, were, in fact, still in custody, so she, on her
own, without any prompting from anyone, not any advice, not any prompting
from the Attorney General’s office or any law enforcement agencies, that she
wanted to make sure that the folks that committed this crime against her were
still in jail and that she went to that kiosk many times. She has also told the
Court that if she recognized that the three people that were arrested and
charged for this crime against her, if one of these folks had been wrongfully
charged, she wanted to make sure that she would let [the police] know because
she would not want an innocent person in jail. Those were [JH1’s] words.
....
What she told the Court on direct examination is that she is not
identifying [Appellant] in Court today because of her identification in the
lineup or because of what she saw on the kiosk. She has told the Court that
she is making this identification based on her own recollection of [Appellant]
pointing a gun at her, threatening to kill her and raping her in a field, and the
Court does find that this identification in Court is of an independent origin and
[JH1] is not making this identification based on her viewing of [Appellant] in
a photographic display or viewing him on a kiosk on many different occasions.
....
And this Court finds, for the record, that the out-of-court identification
in which [JH1] identified [Appellant] in a photographic display, that there is
nothing impermissibly suggestive about the six photographs that are contained
here, and the fact that she may have seen [Appellant’s] – did see [Appellant’s]
picture in the Shelby County kiosk on many different occasions has nothing to
do with her identification of [Appellant]. Her identification in Court is of an
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independent origin in which she told the Court that she is identifying
[Appellant] because of what he and others did to her on December 28, 2008.
We conclude that the evidence in the record does not preponderate against the trial
court’s findings. As stated by the trial court, the only miniscule difference is that Appellant
was wearing a solid dark-colored shirt and the other individuals are wearing dark-colored
shirts with either white trim or a white t-shirt barely visible underneath. This small
difference alone is not enough to make the photographic lineup unduly suggestive. The
photographic array depicted six African-American males of similar age with similar facial
characteristics, facial hair, hair color, hair style and hair length.
Moreover, even if the lineup had been suggestive, we find the victim’s identification
of Appellant to be nonetheless reliable. The victim testified that the incident lasted about an
hour. She also stated that Appellant was very close to her several times enabling her to view
Appellant during the incident. Therefore, she had ample opportunity to observe Appellant.
Only two months had passed between the incident and the photographic lineup and
identification. Also, Lieutenant Thomas and the victim testified to her certainty when she
identified Appellant. Therefore, we agree with the trial court’s assessment that the victim’s
viewing of the photograph online did not taint her identification under the totality of the
circumstances. Under these circumstances, we find the victim’s identification of Appellant
reliable. Appellant is not entitled to relief on this issue.
Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to support his convictions for
especially aggravated kidnapping, especially aggravated robbery, and aggravated rape
because the evidence could not establish Appellant’s identity. Appellant does not argue that
any of the elements for the crimes have not been met, therefore, we will address only the
issue presented regarding identity.
To begin our analysis, we note that 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 deemed with a presumption
of innocence, the verdict of guilty removes this presumption and replaces it with one of guilt.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate
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the insufficiency of the convicting evidence. Bland, 958 S.W.3d at 659; Tuggle, 639 S.W.2d
at 914.
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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
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 the credibility of the witnesses and the weight and value to be given
to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).
The guilt of a defendant, including any fact required to be proved, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.
App. 1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).
The identification of a defendant is a question of fact for the determination of the jury
after consideration of the proof. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App.
1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)). The jury
obviously accredited JH1’s testimony herein to establish Appellant’s identity. Furthermore,
there was a photograph of Appellant attempting to use JH2’s ATM card at a First Tennessee
Bank that was located less than five minutes from the crime scene. Agent Nelson also stated
that a DNA sample taken from the Lincoln was a mixture of genetic material and Appellant
was the major contributor. The evidence was sufficient to support the convictions.
Appellant is not entitled to relief on this issue.
Sentencing
Appellant’s final issue on appeal is that the trial court erred in imposing consecutive
sentences. The State disagrees.
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Appellate review of sentencing is for abuse of discretion. We must apply “a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” See State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012).
In making its sentencing determination, the trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (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 the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses;
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).
The trial court is still required to place on the record its reasons for imposing the
specific sentence, including the identification of the mitigating and enhancement factors
found, the specific facts supporting each enhancement factor found, and the method by which
the mitigating and enhancement factors have been evaluated and balanced in determining the
sentence. See Bise, 380 S.W.3d at 705 n.41; State v. Samuels, 44 S.W.3d 489, 492 (Tenn.
2001). Thus, under Bise, “[a] sentence should be upheld 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.” Bise, 380 S.W.3d at 709-10.
Under Tennessee Code Annotated section 40-35-115(a), if a defendant is convicted
of more than one offense, the trial court shall order the sentences to run either consecutively
or concurrently. 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:
(2) The defendant is an offender whose record of criminal activity is extensive;
....
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(4) The defendant is a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which
the risk to human life is high; . . . .
T.C.A. § 40-35-115(b)(2), (4). When imposing a consecutive sentence, a trial court should
also consider general sentencing principles, which include whether or not the length of a
sentence is justly deserved in relation to the seriousness of the offense. See State v. Imfeld,
70 S.W.3d 698, 708 (Tenn. 2002). The imposition of consecutive sentencing is in the
discretion of the trial court. See State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App.
1997).
As stated above, this section also 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.” T.C.A. § 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 Imfeld, 70 S.W.3d at 708-
09; State v. Wilkerson, 905 S.W.2d 933, 938-39 (Tenn. 1995).
Appellant argues that the trial court erred in imposing consecutive sentences based
upon the determination that Appellant is a dangerous offender. The trial court first
determined that Appellant was subject to consecutive sentencing based upon the conclusion
that Appellant’s criminal record was extensive. The trial court then stated the following:
[B]ased on the facts and circumstances of this offense alone, the Court-
and in this case the Court does find that [Appellant] is a dangerous offender
and he had no hesitation in committing a crime in which the risk to human life
was high. He did everything but kill these two people. He shot a peson in the
back and if he had not gotten immediate attention [JH2] may have very well
died. He did everything to [JH1] except kill her and [JH1] has told the Court
in this letter that she has submitted to the Court that she doesn’t know that
whether or not death may have been preferable, but she’s glad that she’s alive,
but she could have easily been killed.
These are two people that were abducted, taken to a location where they
had no idea where they were, taken to an abandoned field and raped and
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brutalized and beaten and stomped and kicked and urinated on for over an
hour. And this Court does find that the circumstances surrounding the
commission of this offense are aggravated. And that the length of sentences
reasonably relates to the severity of the offenses for which the defendant
stands convicted and that consecutive sentences in this case are necessary to
protect the public from future acts of the defendant. And that’s language from
State versus Wilkerson. This case is stated in the Court’s finding in this case
and the Court does find that all these factors apply.
In the case at hand, the trial court did made extensive findings based on Wilkerson
prior to applying consecutive sentencing based upon Appellant being a dangerous offender.
We conclude that these findings were sufficient to support the imposition of consecutive
sentences.
Furthermore, the trial court also relied upon its conclusion that Appellant’s record of
criminal history was extensive. Appellant was twenty-seven at the time he committed the
crime. At the age of nineteen he was convicted of his first felony, theft of property, and
placed on diversion. A year later he was charged with disorderly conduct and pled guilty.
The next year he was charged with simple assault to which he pled guilty and was sentenced
to one day. At the age of twenty-two he was charged with domestic violence for which he
pled guilty to simple assault. He was also charged with various traffic offenses. At the age
of twenty-three, he was charged with possession of marijuana and various traffic offenses.
He was also charged with domestic violence, to which he pled guilty and received a sentence
of forty-five days. He was also charged with promoting prostitution. At the age of twenty-
four Appellant was charged with driving with a suspended, cancelled, or revoked license;
possession of marijuana, and disorderly conducted. At the ages of twenty-five and twenty-
six, he was charged with three separate charges of indecent exposure with a victim thirteen
years old or older. He was also charged with simple assault at the age of twenty-six. These
charges resulted in seven felony convictions. Appellant was charged with at least one
criminal charge each year from the age of nineteen leading up to the charges at hand. We
consider this an extensive criminal record in a short period of time.
As stated above, the trial court only needs to find that one of the criteria set out in
Tennessee Code Annotated section 40-35-115(b) exists. We conclude that there is ample
evidence to support either criteria cited by the trial court.
Therefore, Appellant is not entitled to relief on this issue.
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CONCLUSION
For the foregoing reasons, we affirm the judgments of the trial court.
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JERRY L. SMITH, JUDGE
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State of Tennessee v. Jermaine Owens
Combined Opinion