IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1998 SESSION
FILED
April 24, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9705-CR-00179
Appellee, )
) SHELBY COUNTY
VS. )
) HON. L.T. LAFFERTY,
IVORY THOMAS, ) JUDGE
)
Appellant. ) (Especially aggravated robbery)
FOR THE APPELLANT: FOR THE APPELLEE:
A C WHARTON, JR. JOHN KNOX WALKUP
Public Defender Attorney General & Reporter
TONY N. BRAYTON JANIS L. TURNER
Asst. Public Defender Counsel for the State
201 Poplar, Suite 201 425 Fifth Ave., North
Memphis, TN 38103 Cordell Hull Bldg., Second Fl.
Nashville, TN 37243-0493
JOHN W. PIEROTTI
District Attorney General
CHARLES BELL
Asst. District Attorney General
201 Poplar, Suite 301
Memphis, TN 38103
OPINION FILED:____________________
CONVICTION AFFIRMED;
SENTENCE MODIFIED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted in August 1995 on one count of especially
aggravated robbery.1 A jury found him guilty of the charged offense and the trial court
sentenced him as a Range I standard offender to twenty-five years. In this appeal as of
right, the defendant argues that the trial court erred in allowing testimony explaining the
absence of a State witness. He further argues that his sentence is excessive. After a
review of the record and applicable law, we affirm the defendant’s conviction but modify
his sentence to seventeen years.
Since the defendant does not challenge his conviction on a sufficiency
basis, we will only briefly discuss the facts of this case. On May 2, 1995, the defendant
and three other young men were riding in a stolen vehicle when they spotted the victim
in this case, Adele Hall. Hall had been on her way home from a nearby grocery store.
She parked her car in her driveway and as she was exiting her car, she was confronted
by a young man with a gun. She was struck one time on the head with the gun, and her
purse and car were stolen. At least one gun shot was fired at Hall’s neighbors who were
attempting to come to her aid. One of the other persons actually struck the victim and
fired the shot.
On appeal, the defendant argues that the trial court erred in allowing Officer
Eddie L. Perry to testify about a missing State witness. The State had planned to call
Travis Young to testify about certain facts related to the defendant’s flight from the police.
Perry, a transportation officer with John S. Wilder Youth Center, testified that Young was
1
The defe nda nt wa s also indict ed on char ges of ag grav ated ass ault a nd th eft of prop erty. W hile
the record does not include a copy of these indictments, the jury instructions reflect the additional
charge s. Thes e charg es were in conne ction with the one fac tual inciden t describe d in this opinio n.
Ultima tely, the defen dant wa s convic ted of on ly one coun t, espec ially aggravate d robbe ry.
2
being held at the center, which is a developmental facility for juvenile delinquents. Perry
had been in charge of transporting Young to the courthouse to testify. When Perry and
Young arrived at the courthouse, Perry opened the door of the vehicle, and Young
jumped out of the vehicle and fled. Perry testified that Young had not been seen since
despite the fact that Young had been wearing leg irons and a “belly chain” with handcuffs.
At trial, the State argued that Perry should be allowed to testify and explain
the absence of Young. The State contended that in its opening argument it had
referenced Young’s expected testimony, and that without an explanation, the jury would
be confused about Young’s failure to testify. The trial court allowed the testimony under
what the trial judge termed the “do-right rule for the benefit of the Court of Appeals.” The
defendant now argues that Perry’s testimony was not relevant to the issues before the
trial court and that allowing such testimony essentially denied the defendant his right to
confront a witness called against him.
While we were unable to locate the specific terms of the “do-right” rule, we
can find no harm suffered by the defendant in connection with this issue. Young had
been expected to identify the defendant as one of the four men who fled on foot from the
police. This testimony was related to a count of the indictment on which the defendant
was ultimately acquitted. While the better course might have been for the trial court to
simply inform the jury that Young was not available to testify due to no fault of the State,
we cannot say that the defendant was harmed by allowing the jury to hear testimony
about Young’s escape. We further note that after hearing testimony about the escape,
the jury was informed by the trial court that such testimony was only offered in order to
explain why Young was not present. The court further instructed the jury not to draw an
inference of guilt on behalf of the defendant due to Young’s absence. In light of the fact
3
that the defendant was acquitted on the charge related to Young’s testimony, we are at
a loss to find any prejudice suffered by the defendant. While we are not convinced that
the trial court erred in allowing testimony about Young’s escape, we are entirely
convinced that if error, it was most certainly harmless. Thus, we find this issue is without
merit and affirm the conviction of the defendant.
The defendant next argues that the trial court erred by sentencing him to
twenty-five years, the maximum sentence. He argues that the sentence is excessive and
that the trial court erroneously applied enhancement factors as well as failed to apply
certain mitigating factors.
When a defendant complains of his or her sentence, we must conduct a de
novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of
showing that the sentence is improper is upon the appealing party. T.C.A.
§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, “is
conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).
A portion of the Sentencing Reform Act of 1989, codified at T.C.A.
§ 40-35-210, established a number of specific procedures to be followed in sentencing.
This section mandates the court’s consideration of the following:
(1) The evidence, if any, received at the trial and the sentenc-
ing hearing; (2) [t]he presentence report; (3) [t]he principles of
sentencing and arguments as to sentencing alternatives; (4)
[t]he nature and characteristics of the criminal conduct
involved; (5) [e]vidence and information offered by the parties
on the enhancement and mitigating factors in §§ 40-35-113
and 40-35-114; and (6) [a]ny statement the defendant wishes
4
to make in his own behalf about sentencing.
T.C.A. § 40-35-210.
In addition, this section provides that the minimum sentence within the range
is the presumptive sentence. If there are enhancing and mitigating factors, the court must
start at the minimum sentence in the range and enhance the sentence as appropriate for
the enhancement factors and then reduce the sentence within the range as appropriate
for the mitigating factors. If there are no mitigating factors, the court may set the sentence
above the minimum in that range but still within the range. The weight to be given each
factor is left to the discretion of the trial judge. State v. Shelton, 854 S.W.2d 116, 123
(Tenn. Crim. App. 1992).
The Act further provides that “[w]henever the court imposes a sentence, it
shall place on the record either orally or in writing, what enhancement or mitigating factors
it found, if any, as well as findings of fact as required by § 40-35-209.” T.C.A.
§ 40-35-210(f) (emphasis added). Because of the importance of enhancing and mitigating
factors under the sentencing guidelines, even the absence of these factors must be
recorded if none are found. T.C.A. § 40-35-210 comment. These findings by the trial
judge must be recorded in order to allow an adequate review on appeal.
In this case, the trial court applied the following enhancement factors from
T.C.A. § 40-35-114: that the victim was particularly vulnerable because of age (4); that the
defendant treated or allowed the victim to be treated with exceptional cruelty during the
offense (5); and that the defendant possessed or employed a firearm during the offense
5
(9).2 The defendant asserts that all three factors were applied in error and that his
sentence of twenty-five years is excessive. The State’s brief made little mention of how
the factors applied, rather it made a conclusory statement that the sentence was
appropriate.
First, the defendant argues that the trial court erred in applying factor four,
that the victim was particularly vulnerable. In State v. Adams, 864 S.W.2d 31 (Tenn.
1993), the Supreme Court analyzed enhancement factor four and concluded that “the
vulnerability enhancement relates more to the natural physical and mental limitations of
the victim than merely to the victim’s age.” The Court further explained that “particularly
vulnerable” victims would include those who were incapable of resisting, of summoning
help, or of testifying against the offender. Adams, 864 S.W.2d at 35. It is the burden of
the State to prove that the victim’s limitations made her particularly vulnerable.
The record in this case is absolutely devoid of any information regarding the
victim’s vulnerability. The State did not even question her as to her age. While the pre-
sentence report did reflect that the victim was seventy-six years old, the State presented
no evidence that she was particularly vulnerable. See State v. Poole, 945 S.W.2d 93
(Tenn. 1997)(finding that the State did not carry its burden in proving seventy-year-old
victim was particularly vulnerable). In fact, this victim did summon help from her neighbor
and she did testify against the defendant. We find nothing in the record to suggest that
this victim was particularly vulnerable. Thus, enhancement factor four should not have
been applied to enhance the defendant’s sentence.
The defendant next contends that factor five, that the defendant treated or
2
Actually it appears from the record that the trial judge only found factors 4 and 5 to be
applicab le but bec ause o f an error in the trans cript, there is a finding of fa ctors “fo ur and n ine.”
6
allowed the victim to be treated with exceptional cruelty, should not have been applied.
The defendant claims that this factor is an element of the offense of especially aggravated
robbery. The Supreme Court, however, has held otherwise. In State v. Poole, the Court
determined that “proof of serious bodily injury, which is an element of especially
aggravated robbery, does not necessarily establish the enhancement factor of ‘excep-
tional cruelty.’” 945 S.W.2d at 98. Exceptional cruelty may exist in cases where the
evidence “‘demonstrates a culpability distinct from and appreciably greater than that
incident to’ the crime of especially aggravated robbery.” Poole, 945 S.W.2d at 99, quoting
State v. Jones, 883 S.W.2d 597, 603 (Tenn. 1994). It is the duty of the trial court to state
what specific actions by the defendant, apart from the elements of the offense, constituted
exceptional cruelty. State v. Goodwin, 909 S.W.2d 35, 45-46 (Tenn. Crim. App. 1995).
In this case, the trial court failed to state what actions by the defendant
constituted this enhancement factor. Rather, the trial judge simply stated, “Now, I find
number five. Took a pistol up there and the woman was pistol-whipped. And I can’t be
divorced from the fact that pistol shots were fired at other individuals who were in the
vicinity.”
The “exceptional cruelty” factor has generally been applied in cases of
abuse or torture. State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991). While
we do not deny the serious nature of the injuries suffered by the victim as a result of being
hit over the head with a pistol by her attacker, we cannot conclude that such actions
constitute a case of abuse or torture.3 The entire incident lasted a very brief time; the
victim was hit one time on the head by someone other than the defendant, and her car
was stolen. She was not subjected to further abuse after being hit on the head, rather her
3
W e not e tha t the s eriou s bod ily injury s uffe red b y the vic tim h as alr ead y been acc oun ted fo r in
the c harg e of e spe cially ag grav ated robb ery.
7
attackers immediately fled the area. Nor was she left in such a state that she could not
summon help. As we noted earlier, the victim walked to her neighbor’s house in order to
obtain assistance. Furthermore, we fail to see the connection between the fact that a shot
was fired at a neighbor and the application of this enhancement factor. Thus, we
conclude that the trial court erred when it applied factor five to this defendant.
The defendant next challenges the application of factor nine, that the
defendant possessed or employed a firearm. The State concedes that this factor is an
element of the offense of especially aggravated robbery, and thus, does not apply. State
v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). However, the State suggests the
application of factor ten, that the defendant had no hesitation about committing a crime
when the risk to human life was high. The State’s suggestion is misplaced. This Court
has previously held that factor ten is an element of especially aggravated robbery because
there is “necessarily a high risk to human life and the great potential for bodily injury
whenever a deadly weapon is used.” Nix, 922 S.W.2d at 903. Thus, factor ten is also
inapplicable.
While we have determined that the above enhancement factors were
erroneously applied, we find that enhancement factor one does apply. This factor states
that the defendant has a previous history of criminal behavior or criminal convictions in
addition to that necessary to establish the appropriate range. As an adult, this defendant
has been convicted of criminal trespassing and possession of a controlled substance. As
a juvenile, he was arrested for at least three offenses which resulted in his being warned
and referred to a community service program. This previous history of criminal behavior,
including that while a juvenile, may be taken into account in determining an appropriate
sentence. State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993). Thus, the trial court should
8
have considered this factor.
Because the defendant committed this offense prior to the amendment of
T.C.A. § 40-35-210, the minimum sentence is the presumptive sentence. The amended
statute provides that for Class A felonies committed after July 1, 1995, the presumptive
sentence will be the midpoint in the range. The defendant committed the instant offense
on May 2, 1995, therefore, the presumptive sentence is the minimum. As noted above,
we have determined that one enhancement factor, the defendant’s history of criminal
behavior and convictions, applies. Furthermore, our review of the record affirms the trial
court’s refusal to apply any mitigating factors to this defendant. Thus, we feel it
appropriate to enhance the defendant’s sentence two years beyond the presumptive
sentence. The defendant’s sentence is modified to reflect a sentence of seventeen years.
For the foregoing reasons, we affirm the conviction of the defendant but
modify his sentence to seventeen years.
_______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOSEPH B. JONES, Judge
______________________________
THOMAS T. W OODALL, Judge
9