State v. Curtis Lee Majors

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
JANUARY SESSION, 1997 July 30, 1997

Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9602-CR-00076
)
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.
CURTIS LEE MAJORS, ) JUDGE
)
Appellant. ) (Aggravated Robbery and Aggravated
) Assault)

ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JEFFREY A. DEVASHER CHARLES W. BURSON
Senior Assistant Public Defender Attorney General and Reporter

STEPHEN G. YOUNG MICHAEL J. FAHEY II
Assistant Public Defender Assistant Attorney General
1202 Stahlman Building 450 James Robertson Parkway
Nashville, TN 37201 Nashville, TN 37243-0493

VICTOR S. JOHNSON
District Attorney General

KATRIN N. MILLER
Assistant District Attorney
W ashington Square, Suite 500
222 Second Avenue North
Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED AS MODIFIED

DAVID H. WELLES, JUDGE
 OPINION

This is an appeal as of right pursuant to Rule 3 of the Tennessee Rules of

Appellate Procedure. The Defendant, Curtis Lee Majors, was convicted by a

Davidson County jury of one count of aggravated robbery and two counts of

aggravated assault. He was sentenced as a Range II, multiple offender to

seventeen years (17) for the aggravated robbery conviction and nine (9) years for

each conviction for aggravated assault, all to be served concurrently. In this

appeal, the Defendant raises several issues for review: (1) That the trial court

erred by failing to suppress the testimony of eyewitnesses because of an

impermissibly suggestive showup; (2) that the admission of an audiotape of an

unavailable witness was error; (3) that the special jury instruction requiring the

trial court to charge the length of time the Defendant would serve before being

paroled is unconstitutional; and (4) that the sentences imposed were excessive.

W e affirm the Defendant’s convictions, but modify the sentences.

W e begin with a summary of the facts. At approximately 9:00 p.m. on

August 21, 1994, at the Mrs. W inner’s restaurant on Nolensville Road in

Nashville, three employees, Marla Kay Cox, W emi Andeleru, and James Burt

were preparing to close the restaurant. Business was slow and no custom ers

were in the restaurant at that time. Ms. Cox and Mr. Burt were cleaning in the

dining room. A man entered the restaurant and immediately went into the

bathroom. Both Ms. Cox and Mr. Burt recognized the man as the Defendant,

Curtis Lee Majors. However, the employees knew the Defendant as a former

coworker and by an alias, Curtis Patterson. They described the robber as a

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large man who was approximately 5'11'’ in height and who weighed

approximately 225 pounds and had a “pot belly.” These descriptions were very

similar to the Defendant’s physical features.

Ms. Cox and Mr. Burt went behind the serving counter and joined Ms.

Andeleru. Another employee, the district manager, was in a rear office and did

not witness the robbery. Ms. Cox testified that she knew no other customers

came in and that the man in the bathroom did not leave because a chime would

go off when anyone opened the front door to the restaurant. All others exits were

locked. After approximately twenty minutes, the Defendant burst through the

door leading to the employee area behind the serving counter. He had a black

revolver in one hand and a length of pipe in the other. He was wearing black

pants, a black shirt or sweatshirt, pantyhose over his face and a black W hite Sox

baseball cap, worn backwards. He demanded that the employees lie on the floor.

He used the pipe to break open the “drop boxes” under the cash registers and

took the cash. The robber then fled the restaurant.

Ms. Cox testified that the man who robbed the store was the Defendant,

whom she knew as Curtis. She recalled that a week or two before the robbery,

someone had stolen her paycheck from her purse while at work and a meeting

was held regarding this. The Defendant was present, but no one was directly

accused of the theft. Later, the Defendant confronted Ms. Cox and threatened

to harm her if anyone said he had taken the check. Ms. Cox reported this to the

manager and the Defendant soon thereafter discontinued working at Mrs.

W inner’s. It is not clear whether he was terminated or voluntarily resigned.

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 Ms. Andeleru did not see the Defendant enter the restaurant, but testified

that the robber looked like him even though his face was obscured. She reported

that the robber’s physique was like the Defendant’s and that he was “huge” and

that she recognized his voice. Mr. Burt recognized the Defendant when he first

entered the restaurant and identified the robber as the same man who went into

the restaurant bathroom.

After the robber left, Mr. Burt went next door, called 911 and a police officer

arrived at the scene within a few minutes. A description of the assailant was

broadcast. Another officer searched the area near the restaurant. W hile on a

nearby street, that officer saw a black male walking on the roadside. The man

was wearing a red T-shirt, blue shorts and a W hite Sox cap. The officer radioed

the officer on the scene and asked whether the robber was heavyset. The officer

on the scene confirmed this description and also stated that the Defendant’s

nam e was Curtis. The officer drove along side the man and asked whether his

name was Curtis and the Defendant answered “yes.” He arrested the Defendant

and took him back to Mrs. W inner’s for a showup. The three witnesses identified

the Defendant as the robber. The witnesses also noted that the Defendant was

yelling from the police cruiser “W hat was the robber wearing?” The police officer

testified that the Defendant yelled “What was I wearing? W hat was I supposed

to be wearing?” The Defendant later claimed that he had been in the restaurant

at approximately 8:30 to buy a drink. However, none of the employees recalled

seeing him in the restaurant earlier that night.

The pipe was left in the restaurant. Other police officers recovered a pair

of black sweatpants and a bank bag containing $770 in cash, which were hidden

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in a nearby field. Pantyhose with the legs cut out were found in the parking lot.

No gun was recovered. No fingerprints were obtained from the pipe or the

restaurant because of a greasy film on the counter and glass surfaces.

The Defendant was charged with three counts aggravated robbery.1 After

the State presented its case-in-chief at trial, defense counsel moved for a

judgment of acquittal as to all counts. The trial court granted the motion except

for the first count against Ms. Cox because she was the assistant manager of the

restaurant from whom the money was taken. As for the remaining counts, the

trial court charged the jury with aggravated assault 2 as a lesser included offense

of aggravated robbery. The Defendant was convicted of one count of aggravated

robbery and two counts of aggravated assault.

I.

As his first issue, the Defendant charges that the trial court erred by

denying his pretrial motion to suppress any in-court identification by the victims

as tainted by a prior showup that was unduly suggestive. An identification

procedure that is so impermissibly suggestive “as to give rise to a very substantial

likelihood of irreparable misidentification” violates due process. Simmons v.

United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

Although it may be suggestive, an identification may satisfy due process as

reliable and admissible if the totality of the circum stances so warrants. See State

v. Brown, 795 S.W.2d 689, 694 (Tenn. Crim. App. 1990). Five factors are to be

1
Tenn. Code Ann. § 39-13-402.
2
Tenn. Code Ann. § 39-13-102.

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considered when evaluating the propriety of the identification process. Neil v.

Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); Bennett

v. State, 530 S.W .2d 511, 514 (Tenn.), reh’g. denied (Tenn. 1975). These are:

(1) The opportunity the witness had to view the criminal at the time of the crime;

(2) the witness’ degree of attention; (3) the accuracy of the witness’ prior

description of the criminal; (4) the level of certainty of the witness at the

confrontation; and (5) the time between the crime and the confrontation. Brown,

795 S.W.2d at 694.

A showup is a form of identification of a defendant that is inherently

suggestive. The use of showups to establish the identification of a person

suspected of committing a criminal offense has been repeatedly condemned,

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); W adley

v. State, 634 S.W .2d 658 (Tenn. Crim. App. 1982); State v. Beal, 614 S.W.2d 77

(Tenn. Crim. App. 1981);unless (a) there are imperative circumstances which

necessitate a showup, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967; Forbes v.

State, 559 S.W.2d 318 (Tenn. 1977); State v. Moore, 596 S.W .2d 841 (Tenn.

Crim. App. 1980) or (b) the showup occurs as an on-the-scene investigatory

procedure shortly after the commission of the crime. State v. Thomas, 780

S.W.2d 379, 381 (Tenn. Crim. App. 1989); Johnson v. State, 596 S.W .2d 97

(Tenn. Crim. App. 1979); Russell v. State, 489 S.W .2d 535 (Tenn. Crim. App.

1972); Bracken v. State, 489 S.W.2d 261 (Tenn. Crim. App.1972).

In the case at bar, the Defendant was known to and had worked together

with all three victims. Two of them clearly saw the Defendant enter the bathroom

of the restaurant and did not see him leave the restaurant until he emerged in the

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employee area. All were familiar with his body type and his voice. Although the

Defendant’s face was covered by pantyhose, his other features were identifying.

In addition, the Defendant was apprehended not more than a few minutes after

the robbery and on a street just behind the restaurant. The witnesses told the

police that the perpetrator’s name was Curtis and an officer arrested the

Defendant after he acknowledged that his name was indeed Curtis. The

Defendant was asking the victims from the police cruiser in which he was seated

about the clothes the robber was wearing. Finally, all three victims identified the

Defendant accurately and with certainty.

Although we acknowledge that showup identifications are inherently

suggestive, we believe that these on-the-scene investigatory confrontations that

occurred within a reasonable time after the commission of the offense are

permissible. Therefore, the trial court did not err in denying the motion. This

issue is without merit.

II.

As his next issue, the Defendant argues that trial court erred by failing to

exclude the preliminary hearing testimony of an unavailable witness. Jam es Burt,

one of the witnesses present during the robbery, could not be located at the time

of the trial. However, Burt testified at the preliminary hearing. His testimony was

audio taped. The State moved to introduce Burt’s testimony as a former

testimony hearsay exception pursuant to Rule 804, Tennessee Rules of

Evidence. The pertinent portion of that rule states:

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 (b) Hearsay exceptions. The following are not excluded by the hearsay
rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another
hearing of the same or a different proceeding . . . if the party against
whom the testimony is now offered had both an opportunity and similar
motive to develop the testimony by direct, cross, or redirect examination.

Tenn R. Evid. 804(b)(1). The Advisory Commission Comment notes that “[t]he

rule covers . . . preliminary hearing transcripts.”

The Defendant first alleges that the State failed to prove the unavailability

of the witness, James Burt, by admitting the affidavit of the State’s investigator

without allowing the Defendant to cross-examine him. Also, he asserts that

defense counsel did not have a “similar motive” at the preliminary hearing. This,

he claims, amounts to a violation of the Sixth and Fourteenth Amendments to the

United States Constitution and Article I, section 9 of the Tennessee Constitution.

Our supreme court has addressed this issue as follows:

The same standards and criteria apply to both of the constitutional
provisions. State v. Armes, 607 S.W .2d 234, 236 (Tenn.1980). The
confrontation clause of the Sixth Amendment restricts the range of
admissible hearsay in two ways. First, the admission of the hearsay
testimony must be necessary, i.e., the declarant must be unavailable.
Second, once the declarant is shown to be unavailable, some indicia of
reliability must be shown. Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct.
2531, 2538-39, 65 L.Ed.2d 597 (1980). The indicia of reliability
requirement is met by those hearsay exceptions resting upon such solid
foundations that admission of virtually any evidence within them
com ports with the right of confrontation. Id. at 66, 100 S.Ct. at 2539.

State v. Causby, 706 S.W .2d 628, 631 (Tenn. 1986). The determination that a

witness is unavailable requires a good faith effort by the State to locate the

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witness. Armes, 607 S.W .2d at 237; State v. Arnold, 719 S.W .2d 543, 548

(Tenn. Crim. App. 1986).

Although it would have been preferable for the investigator to testify

regarding his efforts to find the witness, we feel the proof submitted established

a reasonable good faith effort. The State first attempted to serve a subpoena.

After this failed, the State directed its investigator, Bob Chaudoin, to locate the

witness. The investigator’s affidavit admitted by the State chronicled his

investigation. The affidavit reads as follows:

I, Bob Chaudoin, being first duly sworn, do hereby state that I am an
Investigator for the Office of the District Attorney General for the
Twentieth Judicial District. As part of my duties, I am assigned to help
locate witnesses. During the last few months I have tried to locate a
James David Burt, male, white, DOB 4/15/64. I spoke to Rhonda A.
Burt, the ex-wife of James, who related to me that she had not seen or
heard from James in at least two months, nor has James sent her any
money or called about his child. A computer check shows his last
arrest as January 12, 1995, at which time he gave his address as 656
W est Iris Drive which is a halfway house. His Tennessee Driver’s
License is suspended. The address in the computer shows an address
of 123 Vickie Court, Nashville, Tennessee, 37211. A check with the
owner of the duplex, who related that James was never on the lease of
the duplex, had moved out in September 1994 owing over a thousand
dollars, and his location was unknown. A credit check shows his last
address as 123 Vickie Court (this was in June 1994). His last known
employer was the Sylvan Park Restaurant located at 5207 Nolensville
Road. He left there in September of last year with no forwarding
address. His last known address at the restaurant was 123 Vickie
Court. His mother in Palm Harbor, Florida, has not heard from him in
months and is not sure if he is alive or dead and is very concerned for
him.

The Defendant contends that because the investigator was out of town and

did not testify about the contents of the affidavit, the Defendant was unable to

cross-examine him. He complains that the investigator did not properly check the

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halfway house address as his last known address and that with cross-

examination, the Defendant may have proved that there was an insufficient

showing of unavailability. Although we agree that it would have been preferable

for the investigator to testify, the confrontation clause does not require that the

source of proof of unavailability be cross-examined. The trial court reviewed the

affidavit and determined that the witness was unavailable. This case is

distinguishable from Armes, in which our supreme court found a lack of good

faith. 607 S.W.2d at 237. There, the State was on notice after a witness did not

appear at a first trial. Id. The State merely issued another subpoena and

presented no admissible proof of its investigator’s efforts to locate the witness.

Id. Here, the State submitted an affidavit detailing the investigator’s efforts. We

believe that from the proof presented, there was a sufficient showing of a good

faith effort to locate the witness to validly establish his unavailability.

The Defendant also argues that the trial court erred in admitting the former

testimony under Rule 804(b)(1) because the motivation for cross-examining the

witness at the preliminary hearing was different from that at trial. He contends

that the focus of cross-examination at the preliminary hearing was to learn what

the witness had seen and done at the time of the robbery. Conversely, he claims

that the cross-examination at trial would have focused on the propriety of the

witness’ identification of the Defendant. He concludes that because defense

counsel could not cross-examine the witness on this issue, he was deprived of

his constitutional right to confront the witnesses against him.

The issues in the two proceedings are not required to be identical, but if

they are “sufficiently similar,” a similar motive may be concluded. State v. Howell,

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868 S.W.2d 238, 251 (Tenn. 1993). It is clear that the Defendant had an

opportunity at the preliminary hearing to confront Mr. Burt. The Defendant

asserts, however, that the purpose of the cross-examination was to “learn

everything that Burt had seen and done during and immediately after the

robbery.” Yet, the ultimate issues in question were whether the Defendant was

the person who committed the robbery. W e believe the motives at the

preliminary hearing and at trial were sufficiently similar to support the introduction

of the former testimony. There is no unfairness if a similar motive is present and

defense counsel chose not to develop such testimony on cross-examination in

the former proceeding for tactical or other reasons. Howell, 868 S.W .2d at 252.

This issue is without merit.

III.

As his third issue, the Defendant argues that the trial court erred by

denying his motion to charge a special jury instruction regarding the range of

punishments concerning his eventual eligibility for parole. He contends that this

portion of the jury instruction is unconstitutional for vagueness, that it

contravenes the separation of powers doctrine and that it denied him due

process. He cites Article I, sections 8, 9, 17, 19, and Article II, sections 1 and 2

of the Tennessee Constitution and the Fifth, Sixth and Fourteenth Amendments

to the United States Constitution.

The Defendant's counsel filed a motion to charge the jury on the range of

punishment and a motion to exclude an instruction on parole eligibility as required

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by Tennessee Code Annotated section 40-35-201. The trial court overruled the

Defendant's motion to exclude the parole eligibility information because it is

required by the statute. The statute reads:

(b)(1) In all contested criminal cases, except for capital crimes which are
governed by the procedures contained in §§ 39-13-204 and 39-13-205,
upon the motion of either party, filed with the court prior to the selection
of the jury, the court shall charge the possible penalties for the offense
charged and all lesser included offenses.

(2)(A)(i) W hen a charge as to possible penalties has been requested
pursuant to subdivision (b)(1), the judge shall also include in the
instructions for the jury to weigh and consider the meaning of a sentence
of imprisonment for the offense charged and any lesser included
offenses. Such instruction shall include an approximate calculation of
the minimum number of years a person sentenced to imprisonment for
the offense charged and lesser included offenses must serve before
reaching such person's earliest release eligibility date. Such calculation
shall include such factors as the release eligibility percentage
established by § 40-35-501, maximum and minimum sentence reduction
credits authorized by § 41-21-236 and the governor's power to reduce
prison overcrowding pursuant to title 41, chapter 1, part 5, if applicable.

Tenn.Code Ann. § 40-35-201(b)(1) & (2)(A)(i). The Defendant now argues that

he was prejudiced by this instruction which he requested.

The trial court instructed the jury that “the minimum number of years a

person sentenced to imprisonment for this offense must serve before reaching

the earliest possible release eligibility date is 1.65 years. This calculation is

based on the minimum sentence possible (for aggravated robbery) which is 12

years.” This was based on the 1994 amendment to the statute requiring that

parole eligibility be charged. Acts 1994, ch. 847, § 1,2.

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 The Defendant cites Farris v. State, 535 S.W .2d 608 (Tenn. 1976), in

which our supreme court determined that a jury instruction under former law was

unconstitutional. This Court recently addressed this issue in State v. Howard E.

King, C.C.A. No. 02C01-9601-CR-00032, Shelby County (Tenn. Crim. App,

Jackson, Oct. 22, 1996), perm. to appeal granted (March 10, 1997). In that case

we held that because Farris involved former law in which juries sentenced

defendants, it did not apply to the case involving judge sentencing and noted that

Farris held the statute unconstitutional regarding the jury’s determination of

punishment. Slip op. at 7. Even if we apply Farris, we conclude that the

provision regarding parole eligibility in effect when Farris was decided is

distinguishable from the current form of the statute when considering whether it

is unconstitutionally vague.

The former provision, enacted in 1973, provided that “It shall be the further

duty of the trial judge charging jurors in cases of criminal prosecutions for felony

offenses to charge the said jury as to the provisions of this section and as to the

provisions of §§ 40-3612, 40-3613, 41-332 and 41-334, wherever applicable.”

Tenn. Code Ann. § 40-2707 (repealed), amendment Acts 1973, ch. 163, § 2.

Juries were provided with information that invited them to speculate about

sentences because no approximation was provided. The Farris court concluded

that “[j]urors should not be perm itted to speculate on the length of sentences,

discretionary parole, the accumulation of good and honor time and a whole

conglomeration of contingent events which, if they come to pass at all, will come

to pass in the future.” Farris, 535 S.W .2d at 614.

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 Subsequently, the legislature has attempted to remedy this by supplying

the estimated figures to juries rather than leaving them on their own to calculate

parole eligibility by enacting sections (b)(2)(A)(ii) and (b)(2)(B). Tenn. Code Ann.

§ 40-35-201. They read:

(2)(A)(ii) Such instructions to the jury shall also include a statement that
whether a defendant is actually released from incarceration on the date
when such defendant is first eligible for release is a discretionary
decision made by the board of paroles based upon many factors, and
that such board has the authority to require the defendant to serve the
entire sentence imposed by the court.

(B) On an annual basis, the department of correction shall provide each
judge exercising criminal trial court jurisdiction with the approximate
calculation required in subdivision (2)(a). Such calculation shall be
broken down to show the effect of each factor used in making such
calculation. If the calculation provided by the department to the judges
changes because of a change in the law or correctional policy, court
intervention, the governor's prison overcrowding policy or any other
such circumstance, the department shall send a revised calculation to
the judges as such changes occur.

As a result, juries are provided with a figure with the caveat that the actual

time served may vary. Although an “approximate”, we feel that this figure

provides sufficient definition and is not unconstitutionally vague. Furthermore,

jurors are protected from the wide open speculation that was apparent with the

statutory section considered in Farris.

The Defendant next asserts that the relevant portions of the statute are a

constitutionally impermissible encroachment on the judicial function by the

legislature. W e disagree. Some functions of the three departments of state

government are necessarily overlapping and interdependent. W e believe this is

particularly true in our criminal justice system. See, e.g., Lavon v. State, 586

S.W.2d 112, 115 (Tenn. 1979); Underwood v. State, 529 S.W .2d 45, 47 (Tenn.

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1975); W oods v. State, 130 Tenn. 100, 169 S.W . 558 (1914). W e find this issue

to be without merit.

The Defendant also charges that the calculation of the minimum number

of years to be served unfairly misleads the jury because the actual time served

may be longer. Tenn. Code Ann. § 40-35-201(b)(2)(A)(i). Therefore, he argues

that he has been deprived of due process and the right to a fair and impartial jury.

W e disagree. He claims that the suggestion that parole eligibility dates may vary

due to the decision by the Board of Paroles “based on many factors” invites the

jury to speculate. Tenn. Code Ann. § 40-35-201(b)(2)(A)(ii). However, we do not

believe this differs substantially from the charge of the “possible penalties for the

offense charged and all lesser included offenses.” Tenn. Code Ann. § 40-25-

201(b)(1).

In the case sub judice, the trial judge charged the jury that “[t]he

punishment for the offense of Aggravated Robbery in this case will be

imprisonment for a period of not less than Twelve (12) years nor more than

Twenty (20) years. . . . the Court will set the punishment after a separate

sentencing hearing, and that punishment will be set within the applicable range

of 12 to 20 years after review of all relevant factors.” The range of punishment

instruction, which the Defendant requested, provided an approxim ate number

that had a potentially wide range for possible speculation, but no broader than

that involved in the eligibility instruction.

The legislature has seen fit to provide juries with comprehensive

information about the sentencing scheme when either party requests such an

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instruction. The Defendant complains that the jury was unfairly informed of the

earliest release date, but the latest release date has also been provided. It is

possible that the Defendant could be sentenced to twenty years, of which the jury

was informed, and serve the entire term while incarcerated. Thus, the maximum

sentence was charged as well. W e cannot conclude that the Defendant has

been deprived of due process in this case.

This issue is without merit.

IV.

As his last issue, the Defendant asserts that the sentences imposed were

excessive because the trial court misapplied three statutory enhancement

factors. Furthermore, he notes that the trial court failed to specify which

enhancement factors applied to which convictions.

W hen an accused challenges the length, range, or the manner of service

of a sentence, this court has a duty to conduct a de novo review of the sentence

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

Tenn. Code Ann. § 40-35-401(d). This presumption 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 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

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presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Sm ith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and

that the trial court's findings of fact are adequately supported by the record, then

we may not modify 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 trial court found five statutory enhancement factors: (1) That the

Defendant has a previous history of criminal convictions or criminal behavior in

addition to those necessary to establish the appropriate range; (3) that the

offense involved more than one person; (10) that the Defendant had no hesitation

about committing a crime when the risk to human life was high; (13)(B) that the

felony was committed while the Defendant was on probation; and (16) that the

crime was committed under circumstances under which the potential for bodily

injury to a victim was great. Tenn. Code Ann. § 40-35-114(1),(3),(10),(13)(B) and

(16). The trial court found no mitigating factors.

As an initial matter, we agree that the trial court misapplied enhancement

factors and did not individually specify how each enhancement factor applied to

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each conviction. As a result, we review the Defendant’s sentence de novo

without the presumption of correctness.

During the sentencing hearing, the trial court enhanced the Defendant’s

sentences based upon a number of factors. First, the court found that the

Defendant had a previous history of criminal convictions and criminal behavior

as reflected in the presentence report that were beyond those necessary to

establish him as a Range II offender. W e find that the court properly considered

the Defendant's prior convictions in enhancing his sentences for aggravated

robbery and for both counts of aggravated assault. Tenn. Code Ann. §

40-35-114(1). Also, the trial court applied enhancement factor (13)(B), that the

offense was committed while the Defendant was on probation. Tenn. Code Ann.

§ 40-35-114(13)(B). The Defendant does not contest the use of this factor and

we agree that it is applicable to all three convictions.

The trial court found that the offenses involved more than one victim.

Tenn. Code Ann. § 40-35-114(3). The robbery at Mrs. Winner’s involved three

persons. Here, the Defendant was convicted separately for an offense for each

victim. This Court has held that this factor may not be applied to enhance a

sentence when the defendant is separately convicted of the offenses committed

against each victim. State v. Williamson, 919 S.W .2d 69, 82 (Tenn. Crim. App.

1995); State v. McKnight, 900 S.W .2d 36, 54 (Tenn. Crim. App. 1994); State v.

Makoka, 885 S.W .2d 366, 373 (Tenn. Crim. App. 1994); State v. Lambert, 741

S.W.2d 127 (Tenn. Crim. App. 1987). Indeed, the State concedes that this factor

may have been misapplied. Accordingly, we find that this enhancement factor

was not applicable.

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 The trial court also applied enhancem ent factors (10), that the Defendant

had no hesitation about committing a crime when the risk to human life was high,

and (16) that the crime was com mitted under circumstances under which the

potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-35-

114(10), (16). The Defendant contends that the trial court m isapplied both

factors as double enhancement because they duplicate the elements inherent in

the offenses of aggravated robbery and aggravated assault. The State counters

that these crimes have additional factual circumstances that justify the application

of factors (10) and (16); namely, that the Defendant yelled :”Get down or I’ll blow

your heads off” while waving the gun, and that he also possessed a pipe.

However, we believe that these circumstances are associated with the element

of the use of a deadly weapon upon which the Defendant was convicted.

W e agree with the Defendant that the trial court should not have applied

these factors because they are inherent in the offenses of aggravated robbery,

See, e.g., State v. Claybrooks, 910 S.W .2d 868, 872 (Tenn. Crim. App. 1994)

(factors (10) and (16) inapplicable); State v. Strickland, 885 S.W .2d 85, 89 (Tenn.

Crim. App. 1993)(factor (10) inapplicable), and aggravated assault. See, e.g.,

State v. Hill, 885 S.W.2d 357, 363 (Tenn. Crim. App 1994)(factors (10) and (16)

inapplicable). All three offenses for which the Defendant was convicted were

based on the same set of facts and were dependent upon the use of a deadly

weapon. Such use carries with it inherent risks to human life and for bodily injury.

No persons other than the victims were present who were at risk, thus, these

enhancement factors constitute elements of the offenses. The Defendant’s

yelling at the victims and possession of the pipe are not sufficient additional facts

to justify such enhancement. Therefore, enhancement factors (10) and (16)

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should not have been applied to the aggravated robbery conviction nor to the two

convictions for aggravated assault.

The trial court sentenced the Defendant to seventeen (17) years for the

aggravated robbery conviction and nine (9) years for each conviction for

aggravated assault, to be served concurrently. The appropriate sentence range

for a multiple offender for aggravated robbery, a Class B felony, is twelve (12) to

twenty (20) years. The sentence range for aggravated assault, a Class C felony,

is six (6) to ten (10) years. Because we have found three enhancement factors

to be inapplicable for each conviction, we are compelled to modify the

Defendant’s sentences. Accordingly, we reduce the sentence for aggravated

robbery to fifteen (15) years and each aggravated assault conviction to seven (7)

years, to run concurrently for an effective sentence of fifteen (15) years.

After carefully reviewing the issues and the record in this case, we affirm

the judgment of the trial court but modify the sentences. We remand to the trial

court solely for entry of a judgment consistent with this opinion.

____________________________________
DAVID H. WELLES, JUDGE

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CONCUR:

__________________________________
JOHN H. PEAY, JUDGE

___________________________________
JERRY L. SMITH, JUDGE

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