IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MARCH SESSION, 1996 August 1, 1996
Cecil W. Crowson STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9507-CR-00217 Clerk Appellate Court ) Appellee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT, JR. JOHN V. WOODRUFF, ) PRESIDING JUDGE ) Appellant. ) (Direct Appeal)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK FISHBURN CHARLES W. BURSON Attorney at Law Attorney General and Reporter Nashville, TN 37201 CHRISTINA SHEVALIER Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
VICTOR S. JOHNSON District Attorney General
THOMAS THURMAN Assistant District Attorney 222 Second Avenue South Nashville, TN 37201
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
A Davidson County Criminal Court jury found Appellant John V.
W oodruff guilty of felony murder, especially aggravated robbery, especially
aggravated kidnapping, and first degree murder. Appellant received a life
sentence for each murder conviction and a twenty year sentence for both the
especially aggravated robbery conviction and the especially aggravated
kidnapping conviction. The life sentences were ordered to run consecutive to
each other, and the sentences for robbery and kidnapping were ordered to run
concurrent with each other and with the life sentence for first degree murder.
In this appeal as of right, Appellant presents the following issues for review:
(1) whether the trial court erred in allowing the introduction of evidence of
sexual assault upon one of the victims; (2) whether the trial court erred in
denying a request for a jury instruction on the lesser included offense of
criminal attempt to commit especially aggravated robbery; (3) whether the
evidence presented at trial is legally sufficient to sustain convictions for
especially aggravated robbery and first degree murder; and (4) whether the
trial court erred in ordering consecutive life sentences.
After a review of the record, we affirm the judgment of the trial court.
I. FACTUAL BACKGROUND
As accredited by the jury’s verdict, the record reflects that the facts of
this case are as follows. At approximately midnight on March 9, 1992,
Appellant received a phone call from W alter Kendricks, during which
Kendricks asked him if he would like to participate in a robbery. Kendricks
-2- stated that the robbery did not involve a store but an individual. Appellant
agreed to participate in the robbery, borrowed his girlfriend’s car, and drove to
Kendricks’ home. Appellant then drove Kendricks and himself to the home of
John Rucker, Appellant’s brother-in-law. Appellant asked Rucker if he could
borrow his gun, explaining that they intended to rob an individual of ten to
fifteen thousand dollars. Rucker agreed to the use of his gun and stated that
he wanted to participate in the robbery. Before leaving, Jermaine Ferguson
arrived and stated that he too wanted to participate in the robbery. The four
men then left Rucker’s home and proceeded to the Twelve Oaks Motel in
Berry Hill. As instructed by Kendricks, Appellant drove around the motel
twice, parked the car, and turned off the headlights. According to plan,
Kendricks and Ferguson entered one of the motel rooms, and Appellant and
Rucker followed a few minutes later.
W hen Appellant and Rucker entered the room, Ferguson was standing
over one of the beds pointing a gun at Mr. Derrick Grant. Ms. Reba Benford
was also present in the room and was positioned on the other bed. Kendricks
asked Mr. Grant where the money was, and Mr. Grant responded that it was
no longer there. Ms. Benford was then taken into the bathroom upon
Kendricks’ instruction. Appellant and Kendricks began searching the room for
the money. At some point, Appellant entered the bathroom and spoke to Ms.
Benford, promising her that she would not be hurt. While Appellant was in the
bathroom, Kendricks found and took possession of three hundred dollars.
Having discovered the three hundred dollars, Kendricks’ told Appellant
that they had to kill Mr. Grant. In response to Kendricks’ statement, Appellant
-3- told Rucker that it was time for them to go; however, neither man left the motel
room. As Mr. Grant lay on his stomach, Kendricks bound his wrists with a
shoelace and his ankles with telephone cord. Kendricks then injected an
unidentified substance into Mr. Grant’s arm, maintaining that the injection
would not kill him but only put him to sleep. Soon thereafter, Kendricks
determined that the injection was not going to achieve the desired result and
began searching for something else to inject. Appellant returned to the
bathroom where Ms. Benford remained. By this point, both Kendricks and
Ferguson had stated that they wanted to have sexual intercourse with Ms.
Benford.
W hen Appellant came out of the bathroom, Mr. Grant was still on the
bed but was now covered with a blanket. The four men agreed that it was
time to leave, and Appellant suggested that they tie up Ms. Benford and leave
her in the motel room for someone to find. Kendricks however wanted to take
her with them and instructed Appellant to retrieve her from the bathroom.
Appellant did so, and the group left the motel.
At approximately 2:30 a.m., Officer John Parks of the Berry Hill Police
Department noticed two black males sitting in a dark blue, four-door sedan
parked to the side of the Twelve Oaks Motel. After observing the “suspicious”
vehicle from a distance for a period of time, Officer Parks witnessed three or
four black males and a black female get into the vehicle and leave the motel.
The female did not appear to be held against her will. Officer Parks followed
the vehicle for a while but made no effort to stop it due to a lack of probable
cause to warrant such action. Eventually, he returned to his regular patrol.
-4- Ms. Benford was eventually dropped off on a street near Reservoir
Park. As Appellant drove away, Kendricks stated, “we gotta get her, we gotta
get her.” Appellant then pulled over, and Kendricks and Ferguson exited the
vehicle. After a “long” period of time had passed, Appellant and Rucker, still
sitting in the car, heard gun shots. At Rucker’s behest, Appellant started the
car and began turning it around so that they could leave. While doing so,
Kendricks and Ferguson returned and got in the car. Ferguson told Appellant
that Kendricks had engaged in sexual intercourse with Ms. Benford. Appellant
drove away from the park, eventually dropping the other three men off and
returning home.
Between the hours of 2:00 and 3:30 a.m. on March 9, 1992, two
individuals in separate residences near Reservoir Park were awakened by
noises coming from the park. Ms. Stacey Berry heard a female voice calling
out for help followed by gunshots. Ms. Kate Muir heard an initial, “unusually
loud” gunshot followed by three or four more gunshots. Neither saw anything.
At approximately 6:00 a.m on that same day, the fire department
received a 911 call regarding a possible shooting in the park. An emergency
medical technician from the fire department found the body of Ms. Benford
lying in the middle of the park with a gunshot wound to the head. Medical
evidence later showed that Ms. Benford had been shot twice, suffering two
entrance wounds and two exit wounds. No bullets were recovered from the
body. One of the wounds was a near gunshot wound to the left temple. The
other wound was a distant gunshot wound behind the left ear. According to
medical evidence, both wounds would have been fatal, but an examination of
-5- the body did not reveal which shot occurred first. The time of death was
established to be between 2:30 and 3:00 a.m.
Law enforcement authorities arrived at the park soon after the fire
department and secured the crime scene. Authorities found Derrick Grant’s
driver license approximately thirty yards from the body. Authorities also found
and collected as evidence three .45 caliber shell casings, a bullet, and a
cigarette lighter. Between 5:00 and 6:00 p.m. that same day, authorities found
Mr. Grant’s car in the parking lot of the Twelve Oaks Motel. Believing him to
be a possible suspect, authorities entered his motel room and found his body
on one of the beds, covered with a bedspread. His ankles and right arm were
bound with telephone cord, and his wrists were bound with a shoelace.
Another piece of shoelace was tied around his neck. Medical evidence later
revealed that the cause of death was ligature strangulation. He appeared to
have been dead for more than twenty-four hours from the time he was found
and probably died a short time before Ms. Benford. He tested positive for
trace amounts of cocaine as well as for trace amounts of cold remedy. Except
for two superficial incisions on the left side of the front of his neck, there was
no evidence of an injection having been administered.
Based on the observations of Officer Parks at the Twelve Oaks Motel,
law enforcement authorities were advised to be on the lookout for a damaged,
dark-colored Ford. At approximately 2:00 a.m. on March 12, 1992, Officer
Rick Lemance of the Metropolitan Police Department observed a vehicle
matching this description. He stopped the car and ascertained the occupants
to be Ms. Marlena Buford, Rucker, and Appellant. Officer Lemance patted
-6- each of the occupants down but did not detain them any further. He reported
the stop to the officers investigating the murders. Subsequent to the stop,
Appellant and Rucker were interviewed separately regarding their possible
involvement in the crimes. Appellant stated that, on the night in question, he
borrowed a car, purchased two-and-a-half pints of gin, and drove around east
Nashville. As a result of the interview with Rucker, authorities developed
Kendricks as a suspect and eventually recovered a .45 caliber automatic
handgun, later identified as the weapon used to kill Ms. Benford. Appellant
was interviewed again and, this time, gave authorities a statement detailing his
involvement in the offenses. He was subsequently arrested and indicted on
two counts of first degree murder, two counts of felony murder, one count of
especially aggravated robbery, and one count of especially aggravated
kidnapping.
II. ADMISSION OF SEXUAL ASSAULT EVIDENCE
Appellant first alleges that the trial court erred in allowing the
introduction of evidence of sexual assault upon Ms. Benford. In a pre-trial
motion, Appellant objected to the introduction of any evidence suggesting that
Ms. Benford was sexually assaulted on the night that she was murdered. The
trial court denied the motion, concluding that the evidence corroborated
Appellant’s own statement regarding the incident. At trial, Dr. Mona Gretel
Case Harlan, medical examiner and witness for the State, testified that she
found sperm on the anal, oral, and vaginal swabs taken from Ms. Benford
during the course of her autopsy. Appellant argues that evidence of a sexual
assault upon Ms. Benford should have been excluded because it was
irrelevant. Appellant further argues that, even if this evidence was relevant, it
-7- should have been excluded because its probative value was substantially
outweighed by its prejudicial impact and its tendency to mislead the jury.
Appellant was charged with the first degree murder of Ms. Benford
under the theory that he was criminally responsible for the actions of
Kendricks and Ferguson. See Tenn. Code Ann. § 39-11-402(2). In
establishing that Appellant acted with intent to assist or promote the killing, the
State relied upon Appellant’s own inculpatory statement to authorities.
However, as argued by Appellant in another issue, the corpus delicti of a
crime cannot be established by an inculpatory statement alone. See State v.
Ervin, 731 S.W .2d 70, 71 (Tenn. Crim. App. 1986). Some independent
evidence of the corpus delicti is necessary to corroborate the inculpatory
statement. Id. During his interview with authorities, Appellant stated that
Kendricks wanted to have sexual intercourse with Ms. Benford, that Kendricks
and Ferguson exited the car after releasing Ms. Benford in the park, and that
Ferguson reported that Kendricks had engaged in sexual intercourse with Ms.
Benford before the shooting. Testimony from the medical examiner that
semen was found in the victim tends to corroborate Appellant’s inculpatory
statement.
The Tennessee Rules of Evidence provide the following:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Tenn. R. Evid. 401.
All relevant evidence is admissible except as provided by the Constitution of the United States, the Constitution of Tennessee, these rules,
-8- or other rules or lawsof general application in the courts of Tennessee. Evidence which is not relevant is not admissible.
Id. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Id. 403.
As Appellant seems to concede in his brief, evidence of a sexual assault
upon Ms. Benford is relevant to the jury’s determination of the premeditated
first degree murder charge. The medical examiner’s testimony makes more
probable the fact that the killing was premeditated, intentional, and deliberate.
Furthermore, in light of what the jury already knew about the sexual assault
upon Ms. Benford from the introduction of Appellant’s statement, it could not
have come as a shock that semen was found in the victim. As a result, we are
not persuaded that the prejudicial impact of this testimony is sufficient to
outweigh its probity. Therefore, the admission of this evidence does not
warrant reversal.
III. JURY INSTRUCTION
Appellant also alleges that the trial court erred in denying his request for
a jury instruction on the lesser included offense of criminal attempt to commit
especially aggravated robbery. Appellant argues that the intended robbery
failed, resulting only in an attempted robbery. Appellant concedes that
Kendricks had three hundred dollars in his possession while at the motel and
that authorities recovered a lion’s head ring, later identified as belonging to Mr.
Grant, from Kendricks’ apartment; however, he submits that the State
-9- presented no direct evidence that any money or any jewelry was actually
taken from either victim on the morning in question. As a result, he contends
that the jury could have reasonably inferred that nothing was taken from either
of the victims. Appellant maintains that, based on the fact that the jury could
have concluded that no robbery occurred, the trial court should have given a
jury instruction on the offense of criminal attempt to commit especially
aggravated robbery.
W here two or more grades or classes of offense may be included in the
indictment, it is the duty of the trial court “to charge the jury as to all of the law
of each offense included in the indictment . . . .” Tenn. Code Ann. § 40-18-
110(a) (1990). The Tennessee Rules of Criminal Procedure provide that a
"defendant may be found guilty of an offense necessarily included in the
offense charged or of an attempt to commit either the offense charged or an
offense necessarily included therein if the attempt is an offense." Tenn. R.
Crim. P. 31(c). Additionally, a defendant is entitled to a jury instruction on all
lesser included offenses where "any facts . . . are susceptible of inferring guilt
of any lesser included offense." State v. W right, 618 S.W .2d 310,315 (Tenn.
Crim. App. 1981). In light of the foregoing, the Tennessee Supreme Court has
recently concluded as follows:
[P]ursuant to our statute, rule, and case law interpretations, defendants are entitled to jury instructions on all lesser included offenses . . . and on all offenses which are a lesser grade or class of the charged offense, if the evidence would support a conviction for the offense. The authorizing statute and rule ensure that each defendant has fair and reasonable notice of the charges and an opportunity to defend against them. It preserves a defendant's right to an instruction on all lesser offenses necessarily included in the offense charged in the indictment unless there is no proof in the record which would support the instruction. It allows the jury to consider all relevant offenses in determining the appropriate offense, if any, for conviction.
-10- State v. Trusty, 919 S.W.2d 30, 311 (Tenn. 1996).
Here, the evidence fails to support a conviction for attempted robbery.
Commenting on their search of the motel room for money, Appellant stated
that, while he was not sure where the money had been located, “[Kendricks]
found the three hundred dollars.” Appellant further stated that it made no
sense that the victims were killed for such a small amount of money.
Additionally, authorities recovered a lion’s head ring from Kendricks’
apartment. At trial, both Ms. Nina Grant, Mr. Grant’s sister, and Ms. Lesha
Owens, Mr. Grant’s girlfriend, identified the ring as belonging to Mr. Grant.
The record clearly shows that Appellant was criminally responsible for taking,
by force, at least three hundred dollars and a lion’s head ring from Mr. Grant.
W hether classified as a lesser included offense or a lesser grade of the
charged offense, no evidence exists in the record permitting an inference that
Appellant was guilty of only criminal attempt to commit especially aggravated
robbery. Therefore, the trial court properly refused to charge the jury as to
criminal attempt to commit especially aggravated robbery.
IV. SUFFICIENCY OF THE EVIDENCE
Appellant also alleges that the evidence presented at trial is legally
insufficient to sustain his convictions for first degree murder and for especially
aggravated robbery. W hen an appeal challenges the sufficiency of the
evidence, the standard of review is whether, 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 reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318 (1979); State v. Evans, 838 S.W .2d 185, 190-91
(Tenn. 1992); Tenn. R. App. P. 13(e). On appeal, the State is entitled to the
-11- strongest legitimate view of the evidence and all reasonable or legitimate
inferences which may be drawn therefrom. State v. Cabbage, 571 S.W .2d
832, 835 (Tenn. 1978). This Court will not reweigh the evidence, re-evaluate
the evidence, or substitute its evidentiary inferences for those reached by the
jury. State v. Carey, 914 S.W .2d 93, 95 (Tenn. Crim. App. 1995). In a
criminal trial, great weight is given to the result reached by the jury. State v.
Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995).
Once approved by the trial court, a jury verdict accredits the witnesses
presented by the State and resolves all conflicts in favor of the State. State v.
W illiams, 657 S.W .2d 405, 410 (Tenn. 1983). The credibility of witnesses, the
weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted exclusively to the jury as trier of fact. State v.
Sheffield, 676 S.W .2d 542, 547 (Tenn. 1984). A jury’s guilty verdict removes
the presumption of innocence enjoyed by the defendant at trial and raises a
presumption of guilt. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982).
The defendant then bears the burden of overcoming this presumption of guilt
on appeal. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991).
A. FIRST DEGREE MURDER
First degree murder is defined as “[a]n intentional, premeditated and
deliberate killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). In order to
hold Appellant criminally responsible for first degree murder based upon the
actions of Kendricks and Ferguson, the State must prove that, acting with the
intent to promote or assist the commission of the offense, Appellant solicited,
directed, aided, or attempted to aid Kendricks and Ferguson in the killing of
-12- Ms. Benford. See id. § 39-11-402(2). Appellant argues that the State failed to
establish the requisite intent to hold him criminally responsible for first degree
murder. He contends that, as he sat in the car, he was unaware that
Kendricks and Ferguson intended to kill Ms. Benford.
By his own admission, Appellant provided both the transportation and
the weapon used on the night in question. Furthermore, he drove the vehicle
that carried Ms. Benford from the motel to the park where she was killed.
According to Appellant’s statement to authorities, Ms. Benford was initially
released near the park; however, as Appellant drove away, Kendricks stated,
“we gotta get her, we gotta get her.” In response to this statement, Appellant
pulled over, and Kendricks and Ferguson exited the vehicle. Appellant and
Rucker sat in the car and waited for the other two men to return. It was within
the province of the jury to conclude that, in taking Ms. Benford from the motel
in the first place and, by pulling over in response to Kendricks’ statement,
Appellant intended to promote or assist in the murder of Ms. Benford. As
stated previously, this Court is not free to substitute its inferences for those
reached by the jury. After viewing the evidence in the light most favorable to
the State, we conclude that, based on his response to Kendricks’ statement as
well as his involvement in the events leading up to the murder, any rational
trier of fact could have found that Appellant possessed the requisite mental
state to be found guilty of first degree murder beyond a reasonable doubt.
B. ESPECIALLY AGGRAVATED ROBBERY
Robbery is defined as “the intentional and knowing theft of property from
the person of another by violence or putting the person in fear.” Tenn. Code
-13- Ann. § 39-13-401(a) (1990). Especially aggravated robbery is defined as
robbery accomplished with a deadly weapon, where the victim suffers serious
bodily injury. Id. § 39-13-403(a) (1990). Appellant argues that the State
failed to sufficiently corroborate his inculpatory statements with independent
evidence of the corpus delicti.
As noted earlier, it is long-standing and well-settled law in Tennessee
that the corpus delicti of a crime cannot be established by inculpatory
statements alone. See Ashby v. State, 139 S.W . 872, 875 (Tenn. 1911).
However, only slight evidence of the corpus delicti is necessary to corroborate
an inculpatory statement. State v. Ervin, 731 S.W .2d 70, 71 (Tenn. Crim App.
1986). To establish the corpus delicti of a crime, the State must prove beyond
a reasonable doubt that a certain result has been produced and that the result
was created through criminal agency. Id. 71-72. Whether the State has
sufficiently established the corpus delicti is primarily a jury question. Id. at 71.
A conviction resting primarily on the inculpatory statements of the accused
must be affirmed where the record contains "substantial independent evidence
tending to establish the trustworthiness of the defendant’s statements." Id.
(citing Opper v. United States, 348 U.S. 84, 93 (1954)).
Here, as previously stated, the State introduced a lion’s head ring found
in Kendricks’ apartment shortly after the murders. Both Ms. Grant and Ms.
Owens identified the ring as belonging to Mr. Grant. Furthermore, during his
interview with authorities, Appellant stated that, soon after the murders,
Kendricks had requested his help in selling some rings. The record reflects no
reasonable explanation for the presence of Mr. Grant’s ring in Kendricks’
-14- apartment other than the State’s theory that it was taken from Mr. Grant just
before his murder. Therefore, the State has met its burden of corroborating
Appellant’s inculpatory statements with independent evidence.
V. SENTENCING
Finally, Appellant alleges that the trial court erred in imposing
consecutive sentences for his first degree murder conviction and his felony
murder conviction. W hen an appeal challenges the length, range, or manner
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 only
applies when the record demonstrates that the trial court properly considered
the relevant sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 1991). In conducting a review of
a sentence, this Court 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 potential for rehabilitation or treatment. State v. Holland,
860 S.W .2d 53, 60 (Tenn. Crim. App. 1993). If appellate review reflects that
the trial court properly considered all relevant factors and its findings of fact
are adequately supported by the record, this Court must affirm the sentence,
“even if we would have preferred a different result. State v. Fletcher, 805
S.W .2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of
showing the impropriety of the sentence imposed. State v. Gregory, 862
S.W.2d 574, 578 (Tenn. Crim. App. 1993).
-15- The trial court has the discretion to impose sentences concurrently or
consecutively. Tenn. Code Ann. § 40-20-111(a) (1990). The imposition of
consecutive sentences is appropriate if the defendant has been convicted of
more than one offense and the trial court finds, by a preponderance of the
evidence, one or more of the following criteria:
(1) The defendant is a professional criminal who has knowingly devoted
himself to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
(3) The defendant is a dangerous mentally abnormal person so
declared by a competent psychiatrist who concludes as a result of an
investigation prior to sentencing that the defendant's criminal conduct
has been characterized by a pattern of repetitive or compulsive behavior
with heedless indifference to consequences;
(4) The defendant is a dangerous offender whose behavior indicates
little or no regard for human life, and no hesitation about committing a
crime in which the risk to human life is high;
(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor . . . ;
(6) The defendant is sentenced for an offense committed while on
probation; or
(7) The defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115 (1990).
A. RECORD OF EXTENSIVE CRIMINAL ACTIVITY
-16- In imposing consecutive sentences, the trial court noted Appellant’s
record of extensive criminal activity. See id. § 40-35-115(b)(2). Because the
trial court considered the principles, purposes, and goals of the Criminal
Sentencing Reform Act of 1989, the presumption of correctness applies to the
imposition of consecutive sentences on this ground. According to the proof
presented at the sentencing hearing, Appellant had six prior felony
convictions. These convictions include two counts of grand larceny, two
counts of third degree burglary, and two counts of burglary of a motor vehicle.
This Court has previously held that proof of two drug offense convictions, two
weapons offense convictions, and numerous misdemeanor driving offenses
was sufficient to support a finding that the defendant had an extensive criminal
record, giving the trial court the discretion to impose consecutive sentences.
See State v. Chrisman, 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994). The
proof here is similarly sufficient to support a finding that Appellant’s criminal
activity has been extensive. Based on this finding, the trial court properly
imposed consecutive sentences.
B. DANGEROUS OFFENDER FINDING
The trial court also found that Appellant was a dangerous offender as a
ground for imposing consecutive sentences. See Tenn. Code Ann. § 40-35-
115 (b)(4) (1990). However, 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
establishes that:
(a) the defendant's behavior indicated little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high;
-17- (b) the circumstances surrounding the commission of the offense were aggravated;
(c) consecutive sentences are necessary to protect society from further criminal conduct by the defendant;
(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 Sentencing reform Act.
State v. W ilkerson, 905 S.W .2d 933, 938-39 (Tenn. 1995); see also
State v. Ross, No. 03C01-9404-CR-00153, 1996 W L 167723, *9 (Tenn. Crim.
App. Apr. 10, 1996). It is not entirely clear from the record that the trial court
considered whether consecutive sentences were necessary to protect society
from further criminal conduct by Appellant and whether consecutive sentences
reasonably related to the severity of the offenses committed. As a result, we
make our review of the imposition of consecutive sentences on this ground
under Tenn. Code Ann. § 40-35-115 (b)(4) de novo.
Clearly, the trial court was correct in finding that Appellant’s behavior
indicated little or no regard for human life and no hesitation about committing a
crime in which the risk to human life is high. Both victims were held against
their will while Appellant and the other offenders ransacked the motel room
searching for money. Mr. Grant was then bound and injected with some
unknown substance. W hen he remained conscious, his captors began
searching for something else to inject. Eventually, he was strangled with a
shoelace. The record reflects that these events occurred over some extended
period of time. Ms. Benford was then carried away from the motel to a park. It
appears from Appellant’s statement as well as from circumstantial evidence
-18- that Kendricks had sexual intercourse with Ms. Benford before shooting her
twice in the head. By shooting Ms. Benford, the offenders eliminated a
potential witness against them. We find that the circumstances surrounding
the offenses were aggravated. Furthermore, having established that Appellant
participated in the torture and strangulation of one victim, followed by the
kidnapping and shooting of another victim, we also find that consecutive
sentences reasonably relate to the severity of the offenses committed. Lastly,
in light of the seriousness of these offenses and the fact that incarceration has
failed to have an impact upon Appellant in the past, we find that consecutive
sentences are necessary to protect society from further criminal conduct by
Appellant. Based on these findings and in accord with the principles and
purposes of the Sentencing Reform Act, we conclude that the imposition of
consecutive sentences on the ground that Appellant is a dangerous offender
was proper.
Accordingly, the judgment of the trial court is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ DAVID G. HAYES, JUDGE
___________________________________
-19- WILLIAM S. RUSSELL, SPECIAL JUDGE
-20-