State v. Lavender

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE

FOR PUBLICATION

STATE OF TENNESSEE, ) Filed: April 27, 1998
)
Appellee, ) Hon. J. Randall Wyatt, Jr.,
) Judge
Vs. )
) DAVIDSON COUNTY
MARIO A. LAVENDER and, )
ERIC L. HOBBS, )

Appellants. FILED )
)
)
Supreme Court
No. 01-S01-9704-CR-00088

April 27, 1998

Cecil W. Crowson
Appellate Court Clerk
FOR THE APPELLANTS FOR APPELLEE:
Attorney for Mario A. Lavender John Knox Walkup
Deanna Bell Johnson Attorney General & Reporter
Nashville, Tennessee
Michael E. Moore
Attorneys for Eric L. Hobbs Solicitor General
Jeffrey A. DeVasher
Assistant Public Defender Marvin E. Clements, Jr.
Nashville, Tennessee Assistant Attorney General
(Appeal Only) 450 James Robertson Pkwy.
Nashville, Tennessee
Joan A. Lawson
Assistant Public Defender Victor S. Johnson, III
Nashville, Tennessee District Attorney General
(Trial Only)
Nicholas D. Bailey
Charles Carpenter
Assistant District Attorneys General
Nashville, Tennessee

OPINION

COURT OF CRIMINAL APPEALS
AFFIRMED. DROWOTA, J.
The defendants, Mario A. Lavender and Eric Hobbs, each were convicted
on two counts of robbery and one count of theft. With respect to Lavender, the

trial judge imposed consecutive sentences of six years on each robbery

conviction, and four years on the theft conviction, for an effective sentence of

sixteen years. With respect to Hobbs, the trial judge imposed consecutive

sentences of ten years on each robbery conviction, and four years on the theft

conviction, for an effective sentence of twenty-four years. The Court of Criminal

Appeals affirmed the trial court’s judgment.

Thereafter, we granted the defendants permission to appeal primarily to

consider whether certain enhancement factors, set forth in Tenn. Code Ann. § 40-

35-114 (5), (10), and (16) (1997 Repl.), 1 should have been applied to enhance the

sentences of each defendant in this case. After careful consideration, we hold

that enhancement factors (10) and (16), are not, as a matter of law, essential

elements of the offense of robbery, and may be properly utilized when imposing a

sentence for robbery so long as the facts which establish the elements of the

offense are not also relied upon to establish the enhancement factors. This is a

determination which must be undertaken on a case-by-case basis. W e also hold

that enhancement factors (10) and (16) were properly applied in this case.

Although, the proof does not support application of enhancement factor (5), we

have determined that the sentences imposed are appropriate, and therefore,

affirm the judgment of the Court of Criminal Appeals.

1
These statutory provisions are as follows:
“(5) Th e defen dant trea ted or allow ed a victim to be treate d with exc eptional cr uelty
during the com miss ion of the o ffense ;”
“(10) T he defe ndant ha d no hes itation abou t com mitting a c rime w hen the r isk to
human life was high;” and
“(16) The crime was comm itted under circumstances under which the potential for
bodily injury to a victim was great.”

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 BACKGROUND

While sufficiency of the evidence is not an issue, the following brief

statement of relevant facts is necessary to analyze the sentencing issue. The

proof at trial showed that between 1:00 and 1:15 a.m. on January 3, 1994, the

Wilson family was awakened by noises emanating from outside their residence.

Looking out the window to investigate the source of the noise, Mr. Wilson

observed two males standing on the patio outside his residence. When he turned

on the exterior lights, the men fled across the street, and into a concrete drainage

ditch which ran parallel to the home of William and Carolyn Newbill.

Mr. Wilson summoned the police, and two marked police cars arrived

around 2:00 a.m., patrolled the area for approximately 20 to 30 minutes, and

seeing nothing suspicious, left. During the time the police were in the

neighborhood, the defendants, Lavender and Hobbs, were inside the Newbill

home. They had used a tire iron to open sliding doors at the rear of the residence.

Mr. Newbill was awakened by one of the defendants who said, “Turn over

and face the wall or I’ll blow your brains out.” As Mr. Newbill turned over, he

noticed the clock beside his bed and recalled at trial that it had been 1:30 a.m.

After he had turned over, Mr. Newbill said he felt something hard sticking him in

the back. He “assumed it was a gun.” The intruder told Mr. Newbill to cover his

head with a pillow, and then asked if anyone else was in the house. Mr. Newbill

put the pillow over his head, and told the intruder that his wife was asleep in the

bedroom across the hall. One of the intruders awakened Mrs. Newbill and told

her, “Don’t look. Take this pillow and cover your head. We have a gun on your

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husband and we’ll shoot him if you don’t [cooperate].”

The defendants remained inside the Newbill residence for over an hour,

ransacking the house and forcing the Newbills to disclose the location of money,

jewelry, and guns. During this time, Mr. Newbill, a heart patient, began having

chest pains and shortness of breath. He asked the defendants if he could get up

from the bed. When they refused, Mr. Newbill asked for and was given a glass of

water. Eventually, the defendants allowed Mr. Newbill to get up from the bed and

go to the bathroom. Mrs. Newbill was forced to remain on the bed, her head

covered with a pillow, for the duration of the incident.

The defendants eventually left the residence taking with them cash and

personal property in excess of $10,000. They drove away from the scene in Mr.

Newbill’s pickup truck which had a value of $9,600. Although she could provide

no description of the men, Mrs. Newbill had looked out the window and seen the

two men getting into the pickup truck to leave.

The Newbills notified the police, who located the pickup truck with the

defendants inside at approximately 5:00 a.m. The defendants, with two patrol

cars in pursuit, drove into a neighborhood, slowed the vehicle, leaped from it while

it was still moving, and ran in opposite directions. The truck came to a stop when

it collided with a utility pole. The police apprehended the defendants a short

distance from the pickup truck. Both Lavender and Hobbs had dropped a pistol as

they were attempting to evade the officers. Some of the property taken from the

Newbills’ home and large sums of cash were found on the defendants when they

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were arrested.

Following a trial, the defendants were each convicted of two counts of

robbery and one count of theft.2 At the sentencing hearing, the trial judge found

evidence of the following four enhancement factors: “(1) [t]he defendant has a

previous history of criminal convictions or criminal behavior in addition to those

necessary to establish the appropriate range;” “(5) [t]he defendant treated or

allowed a victim to be treated with exceptional cruelty during the commission of

the offense;” “(10) [t]he defendants had no hesitation about committing a crime

when the risk to human life was high;” “(16) [t]he crime was committed under

circumstances under which the potential for bodily injury to a victim was great.”

Tenn. Code Ann. § 40-35-114(1), (5), (10) & (16) (1997 Repl.). The trial court

found no mitigating factors. Lavender was sentenced as a Range I, standard

offender, to consecutive sentences of six years on each robbery conviction and

four years on the theft conviction, for an effective sentence of sixteen years.

Hobbs was sentenced as a Range II, multiple offender, to consecutive sentences

of ten years on each robbery conviction and four years on the theft conviction, for

an effective sentence of twenty-four years.

The Court of Criminal Appeals affirmed the trial court’s judgment including

application of the enhancement factors. With respect to Hobbs, the intermediate

court noted that another enhancement factor should have been applied, “[t]he

2
Each defendant had been charged with two counts of aggravated robbery, one count of
aggravated burglary, and one count of theft. Prior to trial, Hobbs entered a plea of guilty to the theft
charge. A jury trial was held on the other charges, at the end of which, the jury returned a verdict of
guilty of robbery as to each defendant, a verdict of not guilty of aggravated burglary as to each
defendant, and a verdict of guilty of theft as to Lavender.

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defendant has a previous history of unwillingness to comply with the conditions of

a sentence involving release in the community.” Tenn. Code Ann. § 40-35-114(8)

(1997 Repl.). Hobbs had been on probation at the time these offenses were

committed. In a separate concurring opinion, one judge on the intermediate court,

agreed that the sentences imposed were proper, but opined that factors (10) and

(16) should not have been applied because the facts which supported the factors

also supported the essential elements of the offense of robbery. Thereafter, we

granted permission to appeal, and for the reasons that follow, now affirm the

judgment of the Court of Criminal Appeals.

STANDARD OF REVIEW

Imposition of a sentence pursuant to the Sentencing Reform Act of 1989

requires that the trial court first determine the applicable range of punishment

based upon the severity of the offense and the defendant’s prior criminal

convictions. These statutory classifications, as well as the applicable ranges of

punishment, are established by the General Assembly. See Tenn. Code Ann. §§

40-35-106 to -109 (1997 Repl.). For most offenses, the presumptive sentence to

be imposed under the Act is the minimum sentence in the appropriate range.3

However, where there are enhancement factors, but no mitigating factors in the

record, the trial court may set the sentence above the minimum in that range. If

enhancement and mitigating factors are supported by the proof, the trial court

must start at the minimum sentence in the range, enhance the sentence within the

range as appropriate for the enhancement factors, and then reduce the sentence

3
The presumptive sentence for a Class A felony is the midpoint of the range if there are no
enhan cem ent or m itigating facto rs.

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within the range as appropriate for the mitigating factors.” See Tenn. Code Ann. §

40-35-210(c), (d), & (e) (1997 Repl.); State v. Poole, 945 S.W.2d 93, 95 (Tenn.

1997); State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994); State v. Adams, 864

S.W.2d 31, 33 (Tenn. 1993).

To facilitate appellate review, a trial court “must place on the record its

reasons for arriving at the final sentencing decision, identify the mitigating and

enhancement factors found, state the specific facts supporting each enhancement

factor found, and articulate how the mitigating and enhancement factors have

been evaluated and balanced in determining the sentence.” Jones, 883 S.W.2d at

601; see also Tenn. Code Ann. § 40-35-210(f) (1997 Repl.). If the trial court

complies with these requirements, an appellate court reviewing the length, range,

or manner of service of the sentence conducts a de novo review of the record with

a presumption that the determinations made by the trial court are correct. If,

however, the trial court fails to comply with these statutory requirements, an

appellate court applies a de novo standard of review, without a presumption of

correctness. Poole, 945 S.W.2d at 96; Jones, 883 S.W.2d at 600. In this case,

the trial court complied with the statutory requirements; therefore, in considering

whether or not the enhancement factors were appropriately applied, we review the

trial court’s findings with a presumption of correctness.

ENHANCEMENT FACTORS

In this case, the defendants urge that the trial court erred in applying

enhancement factors (10), high risk to human life, and (16) great potential for

bodily injury, because they are essential elements of the offense of robbery in

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every case. The State argues, on the other hand, that the determination of

whether these two enhancement factors may be applied to enhance a sentence

for robbery must be undertaken on a case-by-case basis, and in this case, the

factors were appropriately applied.

Under the 1989 Act, only those enhancement factors enumerated in Tenn.

Code Ann. § 40-35-114 (1997 Repl.) may be utilized to enhance a sentence. The

factors must be “appropriate for the offense” and “not themselves essential

elements of the offense.” Tenn. Code Ann. § 40-25-114 (1997 Repl.); Poole, 945

S.W.2d at 95. The rationale for these limitations is to

exclude enhancement factors which are not relevant to the offense
and those based on facts which are used to prove the offense.
Facts which establish the elements of the offense charged may not
also be the basis of an enhancement factor increasing punishment.
The legislature, in determining the range of punishment within the
classifications of offenses, necessarily took into account the
culpability inherent in each offense.

Jones, 883 S.W.2d at 601. As we stated in Jones, and recently reaffirmed in

Poole, the determination of whether or not a particular enhancement factor should

be applied is a task which must be undertaken on a case-by-case basis. Poole,

945 S.W.2d at 96; Jones, 883 S.W.2d at 601. Therefore, we decline the

defendants’ invitation to adopt a rule which automatically would preclude

application of enhancement factors (10) and (16) in every robbery case.4

4
The d efenda nts rely upon severa l unrepor ted dec isions of th e Cou rt of Crim inal Appe als to
support their argument that enhancement factors (10) and (16) are essential elements of the
offens e of robb ery in every ca se. Som e of the de cisions re lied upon s upport th at propo sition.
Others refute the proposition and apply the enhancement factors as warranted by the particular
facts and circumstances of each case. To the extent these unreported decisions conflict with our
holding herein, they are overruled.

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 In determining whether a particular enhancement factor may be applied in

a specific case, the trial court must consider the elements of the offense and the

evidence adduced at the trial and sentencing hearing. If the facts which establish

the elements of the offense charged also establish the enhancement factor, then

the enhancement factor may not be used to increase punishment. Jones, 883

S.W.2d at 601.

Applying that test, we conclude that enhancement factors (10) and (16)

were appropriately applied in this case. 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 (1997 Repl.). A person commits

“theft of property” if, “with intent to deprive the owner of property, the person

knowingly obtains or exercises control over the property without the owner’s

effective consent.” Tenn. Code Ann. § 39-14-103 (1997 Repl.).

In this case, the proof shows that Mr. Newbill was awakened and told if he

did not cooperate, he would be killed. Mrs. Newbill was awakened and told if she

did not cooperate, her husband would be killed. Having placed the victims in fear,

the defendants demanded that the victims direct them to all their jewelry, money,

and guns. The victims complied, and the defendants obtained control of the

property, and left the premises with it, without the Newbills’ effective consent. The

foregoing facts support the elements of the offense of robbery.

However, in this particular case, the robbery was committed by the

defendants inside the victims’ home at approximately 1:30 a.m., a time when it is

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likely that the residents of the home are present and sleeping. In fact, there were

three cars parked in the driveway when the defendants gained entry to the

Newbills’ home. We agree with the trial judge that “someone could have easily

been killed” when the defendants entered a home, in the middle of the night,

under circumstances where the residents obviously were present. Therefore, the

risk to human life was high, and the evidence does not preponderate against the

trial court’s application of enhancement factor (10), “[t]he defendant had no

hesitation about committing a crime when the risk to human life was high.” Jones,

883 S.W.2d at 602.

The record also does not preponderate against the trial court’s application

of enhancement factor (16), “[t]he crime was committed under circumstances

under which the potential for bodily injury to a victim was great.” The defendants

remained inside the Newbills’ home for over an hour, kept the victims separated

for the entire time, and threatened to kill Mr. Newbill if either victim moved or

refused to cooperate. Both Mr. and Mrs. Newbill testified that they feared for the

safety of each other. Mrs. Newbill said she heard Mr. Newbill asking for

permission to get up and complaining of chest pains. Fortunately for Mr. Newbill,

she did not attempt to check on him, but these circumstances posed a great

potential for bodily injury. Moreover, though the jury did not convict the

defendants of aggravated robbery, the trial judge found that the defendants were

armed. These facts illustrate circumstances under which the potential for bodily

injury to either victim was great. In sum, the facts in this case support the trial

court’s application of enhancement factors (10) & (16).

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 However, we agree with the defendants that the record preponderates

against the trial court’s application of enhancement factor (5), that “[t]he defendant

treated or allowed a victim to be treated with exceptional cruelty during the

commission of the offense.” In applying this factor, the trial court stated that the

defendants had taken personal property and jewelry from the victims that “meant

something to them, what is that, other than treating them with cruelty.” Since the

fact that the defendants had taken the property of the victims was utilized to

establish an element of the offense of robbery it should not have also been relied

upon to establish the enhancement factor. Moreover, there is no other evidence

in the record to support application of the exceptional cruelty enhancement factor

in this case. Though the defendants, by threat of violence, forced the victims to

remain on their beds with their heads covered during the ordeal, the victims were

not physically assaulted. Indeed, Mrs. Newbill testified that neither defendant

touched her during the ordeal, and Mr. Newbill testified that the defendants

touched him only once by sticking something hard in his back. Though the

defendants initially would not allow Mr. Newbill to get up from the bed when he

complained of chest pains, they honored his request for a glass of water

immediately, and the defendants eventually allowed Mr. Newbill to go to the

bathroom. There is no evidence in the record that Mr. Newbill requested his heart

medication during the episode. Mr. Newbill testified that it was after the

defendants had departed that he had taken his medication. While the Newbills

certainly endured a harrowing ordeal, the evidence does not support a finding that

they were treated with “exceptional cruelty” as that enhancement factor has been

described in prior cases. State v. Williams, 920 S.W.2d 247, 259 (Tenn. Crim.

App. 1995); State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991) (factor

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normally applied in cases of physical abuse or torture).

However, elimination of this enhancement factor does not require a

reduction of the sentences imposed in this case. With respect to Hobbs, four

enhancement factors are supported by the proof. See Tenn. Code Ann. § 40-35-

114 (1), (8), (10), and (16) (1997 Repl.). In this Court, Hobbs did not challenge

application of enhancement factors (1) and (8),5 and, as previously explained, the

facts of this case support the trial court’s application of enhancement factors (10)

and (16). With respect to Lavender, three enhancement factors are supported by

the proof. Tenn. Code Ann. § 40-35-114 (1), (10), and (16) (1997 Repl.). Again,

Lavender did not challenge application of enhancement factor (1) in this Court,

and we have previously found the facts of this case support the trial court’s

application of enhancement factors (10) and (16). The trial court also correctly

held that there were no mitigating factors. Lavender was twenty-seven-years old

at the time this offense was committed. There is no proof in the record to indicate

that his age played any role in the commission of the offense. As the Court of

Criminal Appeals noted, he previously had been convicted of two drug offenses

before committing the crimes in question in this case. Considering the weight of

the enhancement factors, the sentences imposed as to each defendant are

appropriate.

As previously discussed, the facts and circumstances surrounding this

5
Those statutory enhancement factors are as follows:”(1) [t]he defendant has a previous
history of criminal convictions or criminal behavior in addition to those necessary to establish the
approp riate range ;“ and “(8) [t]h e defen dant has a previou s history of u nwillingnes s to com ply with
the con ditions of a s entenc e involving re lease in the com mun ity.”

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robbery also support the trial court’s order of consecutive sentencing and finding

that the defendants are dangerous offenders 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. Tenn. Code Ann. § 40-35-115 (b)(4) (1997 Repl.). This

finding is further supported by the defendants’ determination to commit this

offense. Rather than abandoning their plan to invade a home when Mr. Wilson

turned on his exterior lights and almost apprehended them, they persisted and

immediately entered the Newbills’ home across the street. This behavior certainly

indicates an attitude of little or no regard for human life.

In addition, as the Court of Criminal Appeals held, the sentences imposed

reasonably relate to the severity of the offense committed by the defendants, and

are necessary to protect the public against further criminal conduct at the hands of

these defendants. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). The

trial court emphasized that the severity of this offense should not be depreciated.

The trial court stated that the circumstances of this crime, involving personal

confrontations inside the victims’ own home, amounted to a nightmare. As the

Court of Criminal Appeals pointed out, both defendants have prior criminal records

and have served jail or prison sentences for past offenses which obviously have

not deterred them from continuing to commit crimes. The record supports

imposition of consecutive sentencing.

CONCLUSION

For the reasons herein stated, we conclude that enhancement factors (10)

and (16), are not, as a matter of law, essential elements of the offense of robbery,

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and may be properly utilized when imposing a sentence for robbery so long as the

facts which establish the elements of the offense are not also relied upon to

establish the enhancement factors. This determination is dependent upon the

particular facts of each case. Considering the circumstances of this case, we

conclude that the enhancement factors were properly applied. Even though the

proof does not support application of enhancement factor (5), we have determined

that the length of the sentences and imposition of consecutive sentencing are

appropriate in this case. Accordingly, we affirm the judgment of the Court of

Criminal Appeals.

_____________________________________
FRANK F. DROWOTA, III,
JUSTICE

Concur:

Anderson, C.J.
Birch, Holder, JJ.

Reid, J. - Not Participating.

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