McBee/Dunlap v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 31, 1997
• Docket: 03C01-9509-CR-00276
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED MAY SESSION, 1996 October 31, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk MICHAEL EUGENE McBEE, ) C.C.A. NO. 03C01-9509-CR-00276 and ) JEFFR EY EU GENE DUNL AP ) Appellants, ) ) ) KNOX COUNTY VS. ) ) HON. RAY L. JENKINS STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Dire ct Ap pea l - Agg ravat ed R obb ery)

FOR THE APPELLANT: FOR THE APPELLEE:

LESLIE M. JEFFRESS JOHN KNOX WALKUP Attorney for Appellant Dunlap Attorney General and Reporter 1776 Riverview Tower 900 S. Gay Street TIMOTHY F. BEHAN Knoxville, TN 37902 Assistant Attorney General 450 James Robertson Parkway KIIMBERLY A. PARTON Nashville, TN 37243 Attorney for Appellant McBee 407 Union Avenue RANDALL E. NICHOLS Suite 209 District Attorney General Knoxville, TN 37902 ROBERT L. JOLLEY, JR. Assistant District Attorney City-County Building, Ste. 168 400 Main Street Knoxville, TN 37902-2405

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE OPINION

On December 14, 1994, a Knox County Crim inal Court jury found

Appe llants Jeffery Dunlap and Michael McBee each guilty of two counts of

aggravated robbery under Tennessee Code Annotated Section 39-13-402

(1991). As Range III persistent offenders, Appellants we re both s entenc ed to

thirty years imprisonment on each count. The trial court ordered the sentences

to run consec utively for an effective sentence of sixty years for each Appella nt.

On appeal, Appellants raise three issues for review: (1) whether the evidence

presented at trial was sufficient as a matter of law to s ustain the convictions; (2)

whether the trial court erred in refusing to allow certain evidence to be admitted;

and (3) whether the sentences were excessive in length.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL BACKGROUND

In the early morning hours of May 23, 1993, Patrol Officer Larry Gilland

of the Kn oxville Police Depa rtment re spond ed to a 91 1 call at the re sidence of

Ronnie and Margaret Ridenour. Upon arriving at the residence, Officer

Gillan d kno cked on the front do or. He aring n o resp onse , he co ntacte d his

dispatcher to request that a telephone call be made to the location. Soon

thereafte r, Officer Arm an joined Officer G illand at the R idenou r residen ce.

Subsequently, the door was answered by Margaret Ridenour. Ms. Ridenour

was hysterical; she yelled that her husband and grandchildren had been

-2- robbed at knife point and were being held hostage. Upon entering the

residence, Gilland and Arman saw Appellant Dunlap in the living room talking

on the telephone, telling the dispatcher that the police were not needed. As

Gilland went d own the ha llway were Ms. R idenour claim ed hostage s were

being held, Mr. Ridenour came out of a bedroom and yelled that someone had

run across the hall into another bedroom. Gilland heard a window break and

entered that bedroom. In the bedroom, Gilland found Appellant McBee

crouch ed und er a brok en wind ow whic h had b ars on th e other s ide of it.

McBee was found with $827 cash, three rings, two gold chains, a man’s wrist

watch, a gold cross, a cigarette lighter, food stamps, and a food stamp

eligibility card belonging to S heila Rideno ur. In addition, two knives were

found under McBee, and he was wearing gardening gloves on his hands.

At trial, Mr. and Ms. Ridenour testified that they were lying in bed when,

at around two a.m., they heard a knock on the door. When Mr. Ridenour

heard a man call out his name, he unlocked the door to his house. Two men,

later identified as Appellants Dunlap and McBee, forced their way into the

house and held a knife to Mr. Ridenour. Dunlap went into the back of the

house and bro ught Ms . Rideno ur to whe re Mr. Rid enour w as being held. Bo th

of the Appellants had knives, and one of them poked Mr. Ridenour in the head

with his knife causing a small puncture wound. The Appellants then

dema nded m oney an d jewelry fro m the R idenou rs. The R idenou rs took off

what jewelry they were wearing and gave it to Dunlap and McBee but the

couple denied having any money. Then McBee took Ms. Ridenour to the back

bedroom where her purse was located. McBee took $690 from Ms.

Ridenour’s purse. Once the Appellants discovered that the Ridenours had lied

-3- about not having any money, the Appellants became angry. Ms. Ridenour

tried to a ppea se the Appe llants b y telling th em th at if they w ould le t her ca ll

her brother she could get more money for them. The Appellants allowed Ms.

Ridenour to use the telephone. Ms. Ridenour called 911 instead of her

brother. Soon thereafter, the police arrived and arrested the Appellants.

According to the Appellan ts’ theory of the case, the event the Ride nours

claimed was a robbery was in fact “a drug deal gone bad.” Mr. Ridenour

allegedly had sold the Appellants bad cocaine and the Appellants were invited

to the Ridenour home to rectify the problem. At the conclusion of the trial, the

jury found Appella nts guilty of tw o coun ts each o f aggrava ted robb ery.

II. SUFFICIENCY OF THE EVIDENCE

Appe llants firs t allege that the eviden ce pre sente d at trial is not leg ally

sufficient to sustain convictions for aggravated robbery. When an appeal

challenges the sufficiency of the eviden ce, the standa rd of review is wheth er,

after viewing the evidence in the light most favorable to the State, any rational

trier of fact could have found the essential elements of the crime beyond a

reason able do ubt. Jackson v. Virginia, 443 U .S. 307, 3 18 (197 9); State v.

Evans, 838 S.W .2d 185 , 190-91 (Tenn . 1992), cert. denied, 114 S. Ct. 740

(1994); Tenn. R. App. P. 13(e). On appeal, the State is entitled to the

stronge st legitima te view of the evidenc e and a ll reasona ble or legitim ate

inference s which m ay be dra wn there from. State v. Cabbage, 571 S.W.2d

832, 83 5 (Ten n. 1978 ). This C ourt will not re weigh th e eviden ce, re-eva luate

-4- the evidence, or substitute its evidentiary inferences for those reached by the

jury. State v. Grace, 493 S.W .2d 474 , 476 (Te nn. 197 3).

Once approved by the trial court, a jury verdict accredits the witnesses

presen ted by the State an d resolve s all conflicts in favor of the State. State v.

Hatche tt, 560 S.W .2d 627 (Tenn . 1978); State v. Townsend, 525 S.W.2d 842

(Ten n. 197 5). Th e cred ibility of witn esse s, the w eight to be give n their

testimony, and the reconciliation of conflicts in the proof are matters entrusted

exclusively to the jury as trie r of fact. State v. She ffield, 676 S.W.2d 542, 547

(Tenn. 1984). A jury’s guilty verdict removes the presumption of innocence

enjoyed by the de fendan t at trial and rais es a pre sump tion of guilt. State v.

Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant then bears the

burden of overco ming th is presum ption of gu ilt on appe al. State v. Brown, 551

S.W .2d 329, 331 (Tenn. 197 7).

Robbery is 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 (1991). Aggravated robbery is a robbery “(1) accomplished

with a deadly weapon or by display of any article used or fashioned to lead the

victim to believe it to be a de adly weapo n; or (2) where the victim suffers

serious bod ily injury.” Id. § 39-13-402. In order to sustain the convictions for

aggra vated robbe ry in this c ase, th e State had to prove beyon d a rea sona ble

doubt th e above -mentio ned ele ments of aggra vated rob bery. See Evans, 838

S.W.2d at 190-91. When Appellant McBee was apprehended by the police,

$827, jewelry, and a food stam p eligibility card belonging to S heila Rideno ur,

Ms. Ridenour’s daughter, were found on McBee’s person. Two hunting

-5- knives, which fit the description given by the Ridenours of the knives used by

the robbers, were found underneath McBee. In addition, McBee was

apprehended wearing gloves. McBee also attempted to escape from the

Ridenour home by breaking the back bedroom window when the police

arrived. He was prevented from escaping by the bars on the window. When

the police entered the Ridenour home, Dunlap was on the telephone telling

the police dispatc her that police ass istance was n ot needed . Additionally, Mr.

and Ms. Ridenour testified about the horror they faced as they were held at

knifepoint and told to hand over the ir jewelry and mo ney.

The Appellants argue that there are too many inconsistencies in the

Ridenour’s testimony for a rational trier of fact to conclude beyond a

reasonable doubt that they committed aggravated robbery. As stated

previo usly, de termin ing the credib ility of witne sses and re solving conflict s in

the proo f are ma tters entrus ted exclus ively to the jury. Sheff ield, 676 S.W.2d

at 547. From the guilty verdict returned against the Appellants, it appears the

jury attributed greater credibility to the Ridenour testimony than the Appellants’

proof. The decision of the jury is adequately supported by the record. Thus,

we find that, when viewed in the light most favorable to the State, any rational

trier of fact could have fou nd beyond a reasona ble doubt that A ppellants were

guilty of aggravated ro bbery.

III. DENIAL OF ADMISSION OF EVIDENCE

Next, Appellants argue that the trial court erred in refusing to allow them

to present evidence showing that Mr. and Ms. Ridenour were in possession of

-6- drugs in violation of their M ethadone program . According to A ppellants’ theory

of the case, if the Ride nours pos sessed co ntraband d rugs, they mu st have

been engaged in illegal narcotics trading. This, Appellants argue supported

their claim that the R idenours we re not robbed but instead we re involved in “a

drug de al gone bad.”

In fact Ap pellant D unlap too k the witne ss stand and testified at length

that the altercation with the Ridenours was a drug deal done a wry. The jury

appare ntly rejected this testimo ny in favor o f the Ride nours’ ve rsion of eve nts.

Nevertheless, Appellants argue they should have been allowed to introduce

extrinsic evidence of the Ridenours alleged drug dealing as impeachment

following the defense cross-examination of the couple. Both Mr. and Ms.

Ridenour denied the incident in question involved drug dealing.

Impeachment with specific instances of conduct is governed by Tenn.

R. Evid. 6 08(b) wh ich provide s in pertine nt part:

(b) Specific Instanc es of Cond uct. -- Specific instances of conduct

of a witness for the purpose of attacking or supporting the

witnes s’s cre dibility, oth er than convic tions o f crime as pro vided in

Rule 609, may not be proved by extrinsic evidence. They m ay,

however, if probative of truthfulness or untruthfulness and under

the following conditions, be inquired into on cross-examination of

the witness concerning the witness’s character for truthfulness or

untruthfulness . . . . The conditions wh ich must be satisfied before

allowing inquiry on cross-examination about such conduct

probative solely of truthfulness or untruthfulness are:

-7- (1) The court upon request must hold a hearing outside the

jury’s presence and must determine that the alleged conduct has

probative value and that a reasonable factual basis exists for the

inquiry;

(2) The con duct mus t have occurre d no mo re than ten yea rs

before com men cem ent of th e actio n or pro secu tion . . . . (em phas is

supplied).

It is clear that any conduct on the part of the Ridenours involving

narcotics was not provable through extrinsic evidence for purposes of

impeachment unless the conduct formed the basis of a criminal conviction.1

Thus, the trial court properly excluded this evidence.

Appellants also argue they should have been allowed to make a proffer

of proof for the record as to the nature of the extrinsic evidence excluded for

impeachment purposes. Although ordinarily a proffer of proof concerning

excluded evidence should be allowed by the trial court, it is not reversible error

to deny such a proffer where it is obvious the evidence could not possible be

comp etent. Alley v. State, 882 S.W.2d 810, 816 (Tenn. Crim. App. 1994). As

discussed earlier, extrinsic evidence of the Ridenours alleged drug dealing

which was not the subject of a criminal conviction cannot possibly be admitted

to impeach their testimony, Therefore, denial of a proffer of proof as to the

nature of the evide nce was p roper.

1 Appellants make no claim that the evidence they were not allowed to present involved criminal convictions. Indeed Ms. Ridenour was impeached with her record of criminal convictions for dealing in narcotics.

-8- IV. SENTENCING

Next, Appe llants challenge the ir sentences a s excessive. Sp ecifically,

Appellants argue that the trial court erroneously applied several enhancement

factors and ordered that the sentences run consecutively. When an appeal

challenges the length, range, or m anner of service of a sentence , this Court

conducts a de novo review with a presumption that the determination of the

trial court was correct. Tenn. Code Ann. § 40-35-401(d) (1990). However, the

presumption of correctness is “conditioned upon the affirmative showing in the

record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).

In the event that the record fails to demonstrate such consideration, review of

the sentenc e is purely de novo. Id. If appellate review reflects that the trial

court properly con sidered all relevant facto rs and its findings of fact are

adequately supported by the record, this Court must affirm the sentence,

“even if we wou ld have preferred a different result.” State v. Fletcher, 805

S.W .2d 785, 789 (Tenn. Crim . App. 1991 ). In reviewing a sente nce, this Cou rt

must consider the evidence, the presentence report, the sentencing principles,

the arguments of counsel, the nature and character of the offense, mitigating

and enhancement factors, any statements made by the defendant, and the

defend ant’s pote ntial for reha bilitation or trea tment. State v. Holland, 860

S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burden of

showin g the imp ropriety of the senten ce imp osed. State v. Grego ry, 862

S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).

-9- A. Length of Sentence

In the absen ce of enhan cemen t and mitigating facto rs, the presum ptive

length of sentence for a Class B, C, D, and E felony is the minimum sentence

in the statutory range while the presumptive length of sentence for a Class A

felony is the midpoint in the statutory range. Tenn. Code Ann. § 40-35-210©

(Supp. 1996). Where one or more enhancement factors apply but no

mitigating factors exist, the trial cou rt may senten ce above the presump tive

senten ce but still within the rang e. Id. § 40-35 -210(d). W here bo th

enhancement and mitigating factors apply, the trial court must start at the

minim um se ntence , enhan ce the se ntence within the ra nge as approp riate to

the enhancement factors, and then reduce the sentence within the range as

approp riate to the m itigating facto rs. Id. § 40-35-210(e). The weight afforded

an enhancement or mitigating factor is left to the discretion of the trial court so

long as the trial court complies with the purposes and principles of the

Tenne ssee Crim inal Sentencin g Reform Act of 1989 a nd its findings are

suppo rted by the record. State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim.

App. 1995 ).

1. Appellant Dunlap

Appe llant Dun lap was convicted of two cou nts of agg ravated ro bbery, a

Class B felony. Tenn. Code Ann. § 39-13-401(b). As a Range III persistent

offender convicted of a Class B felony, Appellant’s statutory sentencing range

was be tween tw enty and thirty years. Id. § 40-35-11 2(c)(3). The trial court

found that the following enhancement factors applied:

-10- (1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (5) The defend ant treate d or allowe d a victim to be treate d with exceptio nal cruelty d uring the comm ission of the offense; (8) Th e defe ndan t has a previo us hist ory of u nwilling ness to com ply with the conditions of a sentence involving release in the c omm unity; (11) The felony resulted in death or bodily injury or involved the threat of death or bodily injury to another person and the defendant has previously been convicted of a felony that resulted in death or bodily injury; and (13) The felony was committed while on any of the following forms of release status if suc h release is from a p rior felony co nviction: (B) Paro le.

Id. § 40-35 -114(1), (5 ), (8), (11), (13 ) (Supp . 1996).

The trial court found no mitigating factors. Based upon the foregoing

enhancement and mitigating factors and relevant sentencing principles, the

trial court imposed a sentence of thirty years for each count, and the

sentences were ordered to run consecutively for an effective sentence of 60

years.

Appe llant Du nlap a rgues that en hanc eme nt facto r (5) sho uld no t apply

because exceptional cruelty is an element of every aggravated robbery and

that it must be presumed that the legislature included this consideration in the

increa sed p enaltie s for ag grava ted rob bery. T his Co urt has cons istently

rejected the notion that enhancement factor (5) is an element of aggravated

robbery, and we have held that this factor may be used in an appropriate case

to enha nce an aggrava ted robb ery sente nce. State v. Sanderson, Davidson

County, No . 01-C-01-93 08-CR-0 0269, (Te nn. Crim. Ap p., Sept. 27, 199 5),

perm. app. denied, (Tenn . Feb. 5, 19 96); State v. Crow, Humph reys Coun ty,

No. 01-C -01-0110-C C-00304 (Tenn. Crim . App., July 8, 1993 ).

-11- However, in order for application of enhancement factor 5 to be

appro priate, th e reco rd mu st reflec t cruelty over an d abo ve that in heren tly

attenda nt to the crim e of which a defen dant is co nvicted. State v. Emb ry, 915

S.W .2d 451 , 456 (T enn. C rim. App . 1995). T he beh avior of Ap pellants

dem onstra tes exc eption al crue lty. In an a ppare nt attem pt to pre vent the ir

identification Appellants, in the presence of the Ridenours, discussed killing

the fam ily. The rob bery wa s accom plished b y this time a nd thus any threa t to

kill the family w as not ne cessar y for the com pletion of th e prima ry crime.

Secondly, both Appellants threatened to kill the small children present in the

residen ce sho uld the R idenou rs fail to be forth comin g with their p roperty.

Thre atenin g the live s of the adults was b ad en ough , but thre atenin g to kill the ir

small grandchildren if the Ridenours failed to cooperate represents a type of

cruelty that is reprehensible. In addition, Appellants told Ms. Ridenour if she

did not remove one of her rings, her finger would be cut off. We find

application of this factor was appropriate.

Appe llant Du nlap fu rther a sserts that en hanc eme nt facto r (11) sh ould

not apply. He argues that although he was previously convicted of armed

robbery, he did not injure anyone in the commission of that crime. He

supports his contention with an affidavit from one of the alleged victims of the

prior crime which states that Appellant did not injure him. A review of the

record reveals however that the victim was injured in a robbery to which

Appellant Dunlap had pleaded guilty. Under these circumstances application

of enha ncem ent factor 1 1 was a ppropria te.

-12- The record reflects the appropriate application of five (5) enhancement

factors. No mitigating factors appear. Under the circumstances a sentence of

thirty (30) years is amply justified.

2. Appellant McBee

Appe llant McB ee was convicted of two cou nts of agg ravated ro bbery, a

Class B felony. Tenn. Code Ann. § 39-13-401(b). As a Range III persistent

offender convicted of a Class B felony, Appellant’s statutory sentencing range

was be tween tw enty and thirty years. Id. § 40-35-11 2(c)(3). The trial court

(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (2) The defendant was a leader in the commission of an offense involving two (2) or more criminal actors; (3) The offense in volved m ore than one (1) vic tim; (5) The defend ant treate d or allowe d a victim to be treate d with exceptio nal cruelty d uring the comm ission of the offense; (8) Th e defe ndan t has a previo us hist ory of u nwilling ness to com ply with the conditions of a sentence involving release in the c omm unity; (11) The felony resulted in death or bodily injury or involved the threat of death or bodily injury to another person and the defendant has previously been convicted of a felony that resulted in death or bodily injury; and (13) The felony was committed while on any of the following forms of release status if suc h release is from a p rior felony co nviction: (B) Paro le.

Id. § 40-35 -114 (1), (2 ), (3), (5), (8), (11 ), (13) (Su pp. 199 6).

The court found no mitigating factors. Based upon the foregoing

enhancement and mitigating factors and relevant sentencing principles, the

trial court imposed a sentence of thirty years for each count, and the

sentences were ordered to run consecutively for an effective sentence of 60

-13- Appellant McBee argues that enhancement factors (2), (3), (5), and (11)

should not have been applied by the trial court. Evidence presented at trial

clearly supports the trial court’s application of enhancement factor (2), which

provides that the de fendan t was a lea der in the c omm ission of the crime.

Appellant McBee held a knife to Mr. Ridenour and demanded money and

jewelry. McBee ordered Appellant Dunlap to take Mrs. Ridenour’s jewelry. He

also ordered Appellant Dunlap to hold Mr. Ridenour while he took Mrs.

Ridenour in the back bedroom and robbed Mrs. Ridenour of the contents of

her purs e. Appa rently, it was A ppellant M cBee th at was d irecting the robbery.

McBee was found with the Ridenours’ money and jewelry. Thus, we find that

the app lication of en hance ment fa ctor (2) by th e trial court w as prop er.

Appellant McBee also challenges the application of enhancement factor

(3), which provides that the offense involved more than one victim. Case law

establishes that this enhancement factor may not be applied when a

defendant is separately convicted of the offenses committed against each

victim. State v. Lam bert, 741 S.W .2d 127 , 134 (T enn. C rim. App . 1987).

Thus, the application of this enhancement factor could not rest on the fact that

both Mr. and Mrs. Ridenour were victims of the aggravated robbery. The

State argued at McBee’s sentencing hearing that this enhancements factor

shou ld app ly beca use A ppella nt McB ee thre atene d to ha rm the Riden our’s

grandc hildren if they did not co mply with his dem ands fo r mone y and jew elry.

In State v. Raines, this co urt foun d that th e term “victim” as use d in this

enhancement factor means a person injured, killed, or whose property was

stolen or destroyed. 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994). Since

under the circumstances of this case, the Ridenour grandchildren cannot be

-14- considered victims for the purposes of this enhancement factor, the

application of enhancement factor (3) was erroneous.

Appellant McBee further maintains that enhancement factor (5), which

provides that a victim w as treated with exc eptional cruelty, shou ld not have

been applied. For the reasons given in the discussion of the application of

enha ncem ent fac tor (5) to Appe llant Du nlap’s sente nce th e app lication of this

enhancement factor to Appellant McBee’s case was also appropriate.

Finally, Appellant McBee challenges the application of enhancement

factor (11). At Appellant McBee’s sentencing hearing, the State relied upon

McB ee’s co nviction for aidin g and abettin g rape for the a pplica tion of th is

enhancement factor. Appellant argues that this was improper as he did not

com mit the rape h imse lf but wa s only a n acc esso ry after th e fact. It is

unnecessary to decide whether or not a conviction for aiding and abetting rape

can support the application of this enhancement factor. The evidence

presented at Appellant McBee’s sentencing hearing includes proof that

Appe llant wa s con victed o f aggra vated assa ult in 19 86. Th is conv iction is

sufficient to find that the app lication of enhanc ement fac tor (11) was prop er.

Althou gh the trial cou rt impro perly a pplied one e nhan cem ent fac tor, six

enhancement factors were properly applied. The record shows that Appellant

has b een c onvicte d of se ven felo nies, a nd ha s spe nt his e ntire ad ult life in

prison. In addition, he c omm itted the aggravate d robbery of the R idenours

while on parole. In light of the strength and number of these enhancement

-15- factors, we conclude that the trial court’s imposition of a thirty year sentence

for each count of aggravated robbery was justified and reasonable.

B. Consecutive Sentencing

Appe llants a lso m aintain that the trial cou rt erred in orde ring the ir

senten ces to be served c onsec utively. The trial court ha s the disc retion to

impose sentences concurrently or consecutively. Tenn. Code Ann. § 40-20-

111(a) (1990). The imposition of consecutive sentences is appropriate if the

defendan t has been c onvicted of mo re than one o ffense and the trial court

finds, by a preponderance of the evidence, one or more of the following

criteria:

(1) Th e defe ndan t is a pro fessio nal crim inal wh o has know ingly devoted himse lf to criminal a cts as a m ajor sour ce of livelihoo d; (2) Th e defe ndan t is an of fende r whos e reco rd of crim inal ac tivity is extensive ; (3) The defendant is a dangerous mentally abnormal person so declared by a competent psychiatrist who concludes as a result of an investigatio n prior to sentencing that the defendant's criminal conduct has been charac terized by a pattern of repetitive o r comp ulsive beh avior with heedle ss indiffere nce to co nsequ ences ; (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 th e risk to hu man life is high; (5) The defendant is convicted of two (2) or more statutory offenses involving se xual abu se of a m inor . . . ; (6) The defendant is sentenced for an offense committed while on probation; or (7) The defend ant is sen tenced for crimina l contem pt.

Id. § 40-35-115.

-16- 1. Appellant Dunlap

In imp osing cons ecutive sente ncing , the trial c ourt no ted D unlap ’s

record of extens ive criminal activity. Dunlap h as four secon d degree b urglary

convictions, one conviction for third degree burglary, and one conviction for

armed robbery. H is record a lso include s various other felon y conviction s.

Under these circumstances a finding that Dunlap has an extensive criminal

record is clearly warranted.

The trial court also found that Appellant was a dangerous offender as a

ground for imposing consecutive sentences. Tenn. Code Ann. § 40-35-115

(b)(4). However this Court held in State v. Wilkerson, this finding standing

alone does not justify consecutive sentences. A trial court may not impose

consecutive sentences based upon the defendant’s dangerous offender status

unless th e record establish es that:

(a) the defendant's behavior indicated little or no regard for human life, and no hesitation about co mm itting a crime in which th e risk to human life is high; (b) the circumstances surrounding the commission of the offense were ag gravated ; (c) consecutive sentences are necessary to protect society from further crim inal cond uct by the defend ant; (d) consecutive sentences reasonably relate to the severity of the offenses committed; and (e) the sentence is in accord with the principles set forth in the Senten cing reform Act.

State v. Wilkerson, 905 S.W .2d 933 , 938-39 (Tenn . 1995); see also State v.

Ross, No. 03C01-9404-CR-00153, 1996 WL 167723, at *9 (Tenn. Crim. App.

Apr. 10, 1 996).

In the instant case Dunlap, a relative of the Ridenours, demanded

money and jewelry by holding the couple at knifepoint. At one point Ms.

-17- Rideno ur was to ld her hu sband had be en killed an d that she was ne xt.

Threats were made to kill the small children in the residence, as well as a

threat to cut off Ms. R idenour’s finger. Cle arly the circumsta nces are

aggravated, Dunlap has no hesitancy about committing such a crime and

conse cutive sen tencing re asona bly relates to the seve rity of the offen se.

Finally, Dunlap’s prior c riminal record indica tes that conse cutive sentence s are

nece ssary to protec t socie ty from this ind ividual.

The trial court found that Appellant McBee was a professional criminal

who knowingly devoted himself to criminal acts as a major source of

livelihood. Tenn. Code Ann. § 40-35-115(1). The record clearly establishes

Appellant McBee as a professional criminal. Appellant McBee has been

incarcerated almost his entire adult life. The probation officer that prepared

McBee’s pre-sentence report testified at McBee’s sentencing hearing that he

had never h eld a job. There fore, we find that the im position of conse cutive

sentences on the groun d that McBe e is a profession al criminal was p roper.

The trial c ourt also n oted Mc Bee’s re cord of e xtensive c riminal ac tivity

as a basis for ordering consecutive sentences. Tenn. Code Ann. § 40-35-

115(2). He has numerous prior felony convictions. These convictions include

a conviction for two counts of aggravated robbery, a conviction for aiding and

abetting rape, a conviction for simple robbery, a conviction for second-degree

burglary, two convictions for escape, a conviction for aggravated assault, and

a convictio n for arm ed robb ery. The proof he re is mo re than s ufficient to

-18- support the trial court’s finding that McBee’s criminal activity was extensive.

Based on this finding, the trial court properly imposed consecutive sentences.

The trial court also found that McBee was a dangerous offender as a

ground for imposing consecutive sentences. Tenn. Code Ann. § 40-35-

115(b)(4). However, as we have mentioned previously, this finding, standing

alone does not justify consecutive sentences. A trial court may not impose

consecutive sentences based upon the defendant’s dangerous offender status

unless the record established the criteria set forth in State v. Wilkerson and

State v. Ross. See Wilkerson, 905 S.W .2d at 938 -39; Ross, 1996 WL

167723, at *9.

From the record, it is clear that McBee’s behavior indicated little or no

regard for human life and no hesitation about committing a crime in which the

risk to hum an life is high . McBe e participa ted fully in the th reats an d cruelty

which characterize this home invasion. In addition it is obvious that prior

incarceration ha s not had an impact on M cBee’s be havior. Conse cutive

sentencing reasonab ly relates to the severity of this offense and is neces sary

to protect society from further criminal activity by McBee.

According ly, the convictions and sentences of both Appe llants are

affirmed.

____________________________________ JERRY L. SMITH, JUDGE

-19- CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JOHN K. BYERS, SENIOR JUDGE

-20-