IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MAY SESSION, 1998 December 7, 1998
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9705-CC-00193 ) Appellee, ) ) ) WILLIAMSON COUNTY VS. ) ) HON . DON ALD P . HARR IS DARRELL WENTZEL, ) JUDGE ) Appe llant. ) (Aggravated Robbery; Aggravated ) Burglary; and Aggravated ) Kidnapping)
FOR THE APPELLANT: FOR THE APPELLEE:
EUGENE J. HONEA JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 407-C Main Street, P. O. Box 68 Franklin, TN 37065-0068 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493
JOSEPH BAUGH District Attorney General P. O. Box 937 Franklin, TN 37065-0937
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On Decem ber 6, 19 96, a W illiamson Coun ty jury convicte d Appe llant,
Darre ll Wentzel, of two counts of agg ravated robbe ry, one count of aggravated
burglary, and one count of aggravated kidnapping. After a sentencing hearing
on January 31, 1997, Appellant was sentenced to twelve years for each count of
aggravated robbery, twelve years for aggravated kidnapping, and six years for
aggravated burglary, with all sentenc es to be serve d concurren tly. On Feb ruary
18, 1997, Appellant filed a motion for judgment of acquittal or, in the alternative,
a motion for a new trial, claiming that the evidence was insufficient for a
conviction, that the aggravating kidnapping conviction should be dismissed
because it was incidental to the robbery, th at seve ral of the trial cou rt’s
evidentiary rulings were e rrone ous, a nd tha t the trial c ourt had misapplied
enhancement factors to arrive at maximum sentences on all four convictions.
The trial court denied the mo tion. App ellant cha llenges b oth his convictions and
his sentence, raising the following issues:
1) whether the trial court comm itted plain error by adm itting the in-court identification of the Appellant by Mary Ethel Veach; 2) whether there was sufficient evidence to corroborate the accomplice testimony of Edward Mitchem; 3) whether Appellant’s convictions for two counts of aggravated robbery constituted dou ble jeopardy; 4) whether the trial court correctly rejected Appellant’s argument that he could not be co nvicted of aggrav ated k idnap ping b ecau se it wa s only incidental to the robb ery; 5) wheth er the trial co urt correc tly sentenc ed the A ppellant.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
-2- I. FACTS
On May 6, 1996, the home of Logan and Mary Ethel Veach was
burglarized by two armed men who bound and robbed them. In addition, the two
men also bound Ruth Poteete, a friend who was visiting the Veaches. One of the
two m en, Ed ward M itchem , later co nfess ed an d testifie d for the State a t trial.
Mitchem testified that he received a phone call from Appellant in October
or November 1995, while Mitchem was living in V irginia. A ppella nt told Mitchem
that he knew someone with a safe in his home that contained $500,000 and he
wanted Mitchem to help bre ak into the safe. Mitch em tes tified that Appellant
called him three or four times and Mitchem agreed to co me to Ten ness ee in
March 1996. Mitchem testified that he stayed at the ho me o f Appe llant an d his
wife whe n he ca me to T ennes see.
Mitchem testified that he and Appellant discussed robbing Mr. Veach, the
man Appe llant ide ntified a s the o wner o f the ho me w ith the s afe. Ap pellan t told
Mitchem that he learned about Mr. Veach from someone named Dudley who
worked at the C oca C ola pla nt. App ellant a nd Mit chem later drove by the
Veaches’ hom e app roxim ately ten to fifte en tim es to o btain information about the
home. Approximately two weeks before the robbery, Mitchem and Appellant
drove to the Veaches’ home, pulled into the driveway, and Mitchem, disguised
with a ski ma sk, appro ached the doo r. When Mrs. Veach came to the door and
a dog began barking, Mitchem returned to the vehicle and the two men fled the
scene .
-3- Mitchem testified that on May 6, 1996, he and Appellant drove to the
Veaches’ hom e in a p lain white car that belonged to Appellant’s mother-in-law.
Mitchem, who was c arrying a clipboard and a scanner that Appellant had
purchased from R adio Shack, gained entry to the Veaches’ home by identifying
hims elf as being from the William son Co unty Sheriff’s Department. After he
entered the home, Mitchem drew a gun and ordered Mr. Veach, Mrs. Veach, and
Mrs. Poteete to get down on the floor with the ir faces toward the floor. Appellant
then entered the home and taped Mr. Veach’s and Mrs. Poteete’s hands behind
their backs, taped their feet, and placed tape over their eyes. After she was
bound with duct tape, Mrs. Poteete became ill and indicated that she was out of
breath.
Mitchem testified that while Mr. Veach was on the floor, Appellant took
money from his p ocket. While Appellant was looking for a safe in another room,
Mitchem took Mrs. Veach to a back be droom. W hen Mrs. V each said tha t there
was no safe in the house, Mitchem and Appellant took some coins and jewelry
and left the Veaches’ home. Appellant and Mitchem then split up the coins and
money between them. Mitchem later became frightened that he would be caught
and he threw his half of the coins into a pon d on Ap pellant’s fath er’s prop erty
located approximately 150 yards from App ellant’s home . Detective David B eard
of the W illiamson Cou nty Sheriff’s Depa rtment testified that coins were found in
this pond and they were identified as those stolen from the Veach home on May
6, 1996 .
Mr. Veach tes tified that on May 6 , 1996, he saw tw o me n pull u p to his
home in a white fo ur-door car. Mr. Veach then saw Mitchem enter his home
-4- carrying a note pad and what appeared to be a “walkie-talkie.” Mr. Veach
testified that Mitchem then spoke into the “walkie-talkie” and shortly therea fter a
second man entered the home. Mr. Veach never saw the second man and he
could not identify the Appellant. Mr. Veach testified that he had approxim ately
$5,900 in his pock et on the d ay of the ro bbery.
Mrs. Poteete testified that she became ill while she was bound and that
she was taped for approximately twenty minutes. She also testified that she d id
not see the man who taped her. Neither man took anything from Mrs. Poteete.
Mrs. Veach testified that on May 6, 1996, she let Mitchem into her home
because she thought that he was th ere fro m the Sher iff’s Department in response
to her rep ort that a n individ ual wearing a ski mask had previously been at the
Veaches’ hom e. Mrs . Veac h testifie d that she was never blindfolded, that she
saw the Appellant when he came in, and “got a long look” at him two or three
times. When M itchem asked her were the safe was, Mrs. Veach told him that
there was no safe and said “Do n’t hurt us. Logan has some money, and my son
has some coins in there--take the money, just don’t hurt us.” Mitchem then took
coins from the back room a nd jewe lry from M rs. Veac h’s bedro om.
Mrs. Veach testified that she was unable to identify Appellant at the pre-
trial line-up because th ere was something different about him. She explained
that Appe llant’s hair was shorter and styled differently from when she had seen
him during the robbery. Mrs. Veach also testified:
-5- I was under the impression when [Detective ] Fred Be nnett called me to the jail that they was [sic] holding the other guy there with Mr. M itchem . And I said, “Now Fred, I’m not going to tell that this is the man because I’m not for sure.” And he said, “Well, if you’re not sure th en you ’re not g oing to tell me tha t.” I asked Fred Bennett where my husband was and he said “Up in the courtroom.” As I walked into the courtroom, my family was sitting on the right; my h usban d was o n the witne ss stand ; Mr. Wentzel and some peop le sitting on the left. I says [sic] to my sis ter-in-la w, “W ell I’m glad that I did not identify that man they’ve got in jail out there bec ause there sits the man that came in my house.” And it was Mr. Mitchem.
Although she said “Mr. Mitchem,” Mrs. Veach was apparently referring to
Appe llant. Mrs. Veach also testified that she thought she had been looking at
some kind of pictu res at the pre-trial line-up rather than at live persons. She
stated that Appellant c ould n ot have been at the lin e-up “b ecau se I ca me s trait
to the co urthou se an d Dar rell W entze l was s itting with a group of people and
there’s no way h e could have gotten there be fore I got there.”
Gary Beasley testified that he picked Mitchem up at the W illiamson Coun ty
jail abou t a wee k befo re the ro bbery and to ok him to the Appellant’s home at
Mitchem ’s request. Beasley testified that no one was home, but when he later
brought Mitchem back to the house, Mitchem got out of the car an d Beas ley left
him the re.
Teresa Walker, custodian of records at First Farmers and Merchants Bank
in Columbia, Tennessee, testified that Appellant made a deposit of $1,000 cash
to his acc ount o n May 7, 199 6. She also te stified th at App ellant had written a
check to Radio S hack in M arch of 1 996.
Dudley Delffs testified that he works for Coca Cola and that in October or
Novem ber, 1995, he had a conversation with Appellant about people in the area
-6- who “had money,” including Logan Veach. Delffs testified that although Brad
Thompson, a relative of the Veac hes, to ld him that they had a safe in their home,
Delffs did not recall telling Appellant that the Veaches had a safe with $500,000
in it. Delffs testified that Appellant told him that he needed money because of
financial los ses in C hattano oga an d severa l family illnesse s.
Appellant testified and denied all involvemen t in the crim es and with
Mitchem. Appe llant, his wife, and his mother all testified that Mitchem did not
stay at Appellant’s home as he claimed.
II. IN-COURT IDENTIFICATION BY MRS. VEACH
Appellant conte nds th at it was plain error for the trial court to allow the in-
court identification of Appe llant by Mrs . Veach . Appellan t conc edes that this
issue was not raised below either in the form of an objection to her testimony or
in his motio n for judgm ent of a cquitta l or a ne w trial. Ac cordin gly, Ap pellan t’s
attack on Mrs. Veach’s testimony has been waived under Rule 3(e) of the
Tennessee Rules of Appellate Procedure. Rule 3(e) states:
[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of eviden ce, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other ground upon which a new trial is sought, unless the same was spec ifically stated in a motion for a new trial; otherwise, such issues will be treated as waived.
Tenn. R. App. P. 3(e). Appe llant atte mpts to circu mven t this failu re to co mply
with Rule 3 (e) by a rguing that the trial c ourt co mm itted pla in error unde r Rule
52(b) of the Tennessee Rules of Criminal Procedure, which states:
-7- An error which has affected the substantial rights of an accused may be noticed at any time, even though not raised in the motion for a new trial or assigned as error on appeal, in the discretion of the app ellate court where necessary to do substantial justice.
Tenn . R. Crim . P. 52(b).
In State v. Adkisson, this Cou rt stated that the language of Rule 52(b)
“makes it clear that appellate cou rts are to use it ‘sparingly’ in recog nizing errors
that have n ot bee n raise d by the parties . . . . The p lain erro r rule is not a run -of-
the-m ill remedy.” 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). This Court
then set out five factors to determine w hether an erro r is plain error:
a) the rec ord mu st clearly es tablish wh at occurr ed in the tria l court; b) a clear and unequivocal rule of law must have been breached; c) a substantial right of the accused must have been adversely affected; d) the accused did not waive the issue for tactical reasons; and e) cons ideration o f the error is “n ecessa ry to do su bstantial jus tice.”
Id. at 641–42. Mrs. Veach’s tes timony does n ot satisfy this test. The reco rd
establishes what happened in the trial court, and it is dou btful tha t Appe llant’s
failure to raise this issue at any time before appeal was a tactical ploy, but none
of the other factors is applicab le. Mrs. Ve ach’s tes timony d oes no t represe nt a
breach of a clear and unequivocal rule of law. Indeed, this is likely the reason
why Appella nt’s coun sel did no t object to the testimony at trial. Furt her, the re is
no indica tion tha t a sub stantia l right of the Appellant was adversely affected
because, as explained in Section III, there was other evid ence s ufficient to
corrobo rate Mitche m’s ac com plice te stimo ny. Fina lly, cons ideratio n of this
alleged error is not required to do substantial justice. Thus, this issue has no
merit.
-8- III. CORROBORATING EVIDENCE
Appellant contends tha t the trial court erred w hen it d enied his motion for
judgment of acquittal because the evidence was insufficient as a matter of law to
corrobo rate Mitchem’s accomplice testimony. This Court stated in State v.
Anderson, 880 S.W .2d 720 (Te nn. Crim. Ap p. 1994):
The standard by which the trial court determines a motion for judgment of acquittal at the end of all the proof is, in essence, the same standard which applies when determining the sufficiency of the evidence after a conviction. A jury verdict, approved by the trial judge, acc redits the testimony of the witnesses for the s tate an d reso lves all c onflicts in favor o f the sta te's theory. On ap peal, the state is entitled to the strongest legitimate view of the evidence and any reasonable inferences which might be drawn therefrom. The credib ility of the w itness es, the weigh t to be g iven the ir testimony, and the reco nciliation of conflicts in the evidence are matters entrusted exclus ively to the jury as the triers of fact. This court may neither reevalua te the evidence nor substitute its inferences for those drawn by the jury. A conviction may be set aside only when the reviewing court finds that the evide nce is insu fficient to support the finding by the trier of fact of guilt beyon d a reas onable doubt.
Id. at 726 (cita tions om itted).
The appellate courts have addressed the nature, quality, and sufficiency
of the evidence required to corroborate the testimony of an accomplice on
numerous occasio ns. In State v. G riffis, 964 S.W.2d 577 (Tenn. Crim. App.
1997), this Court stated:
The rule of corroboration as applied and used in this State is that there must be some evidence independent of the testimony of the accomplice. The corroborating evidence must connect, or tend to connect the defendant with the commission of the crime charged; and, furthermore, the tendency of the corroborative evidence to connect the defendant must be independent of any testimony of the accomplice. The corroborative evidenc e mus t of its own for ce, indep enden tly of the
-9- acco mplic e’s testimony, tend to connect the defendant with the comm ission of the crime. ....
The evidence corroborating the testimony of an accomplice may consist of direct evidence, circumstantial evidence, or a combination of direct and circum stantial evidence. T he quantu m of evidenc e necessa ry to corroborate an accomplice’s testimony is not required to be sufficient enough to support the accused’s conviction independent of the acco mplic e’s testimony nor is it required to extend to every portion of the acco mplic e’s testimony. To the contrary, only slight circumstan ces are required to corroborate an accomplice’s testimony. The corroborating evidence is sufficient if it con nects the accused with the crime in question.
Id. at 588–89 (citations omitted). “Whether a witness’ testimony has been
sufficie ntly corroborated is a matter entrus ted to the jury as trier of fact.” State
v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992) (citing Stanley v. S tate,
189 Ten n. 110, 222 S .W.2d 384 (1949 )).
The evidence in this case clearly established at least the “slight
circumstances” required to corroborate Mitchem’s accomplice testimony. Most
obvious, of course, was the testimony of Mrs. Veach that she clearly saw
Appellant participate in the robb ery. Howeve r, even without this identification,
there was s till enough e vidence to sufficiently corro borate Mitche m’s testimon y.
First, Dudley Delffs testified that in October 1995, he and Appellant had a
conversation about various individuals in the area who had money and that
Appellant mentioned the name of Logan Veach. Delffs also testified that
Appellant told him that he had lost a lot of m oney. Second, Mr. Veach testified
that a white car had been used in the crimes, corroborating Mitchem’s testimony
that he and Appellant used a white car ow ned by A ppellant’s mothe r-in-law to
drive to the Veaches’ home. Further, Mitchem’s testimony that he lived in the
Appe llant’s home while they were planning the robbery was corroborated by the
-10- testimony of Gary Beasley that he took Mitchem to the Appellant’s house.
Mitche m’s testimony that he stayed with Appellant was also buttressed by the fact
that the police found some of the stolen coins in Appellant’s father’s pond about
150 yards fr om A ppella nt’s house . In addition, Mitchem’s statement that he and
Appellant used a scanner in the robbery that Appellant pu rchas ed from Radio
Shack in March 1996, was corroborated by Teresa Walker’s testimony that
Appellant had written a check to Radio Shack in March 1996. Finally, the
evidence showe d that Ap pellant m ade a $1,000 cash deposit into has bank
accou nt on the d ay after the robbery.
In short, there was sufficient evidence before the jury as th e trier of fact to
determine that Mitchem’s testimony was sufficiently corroborated. This issue is
without m erit.
IV. CONVICTIONS ON TWO COUNTS OF AGGRAVATED ROBBERY
Appellant contends that his convictions for two counts of aggravated
robbery violate his rights under the United States and Tennessee Constitutions
not to be convicted twice for the same offense.1 This issue was not raised in the
trial court. Nevertheless, we address this issue in order to review an alleged error
of constitutional dimension. See State v. Lewis , 958 S.W.2d 736, 738 (Tenn.
1997) (reviewing double jeopa rdy issue even th ough not raise d below).
1 The double jeopardy clause of the United States Constitution provides “nor shall any person be sub ject f or the sam e off ens e to b e twic e put in jeo pard y of life o r limb .” U.S . Con st. am end . V. Sim ilarly, the Tennessee Constitution provides “[t]hat no person shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn. Const. art I, § 10.
-11- In State v. Denton, 938 S.W.2d 373 (Tenn. 1996), the Tennessee Supreme
Court extended double jeopardy protection under the Tennessee Constitution
beyond that pro vided b y the U nited S tates C onstitu tion. Th us, wh ile mu ltiple
convictions for a single criminal a ction cou ld be per mitted by the United States
Constitution under Blockburger v. United States, 384 U.S. 299, 52 S. Ct. 180, 76
L. Ed. 306 (1932), the result may be different under the Tennessee Constitution.
Under Denton, resolution of a double jeopardy issue requires the following:
(1) a Blockburger analysis of the statutory offenses; (2) an analysis guided by the princip les of Duch ac [v. State , 505 S.W.2d 237 (Tenn. 1973)], of the evidence used to prove the offenses; (3) a consideration o f whether there were multiple victims or discrete acts; and (4) a comparison of the purposes of the respective statutes. None of these steps is determinative; rather the res ults of e ach m ust be weigh ed an d con sidere d in rela tion to each other.
Denton, 938 S.W .2d at 381 .
Thus, we beg in with the first Denton factor, an analysis under the
Blockburger test. Under this test, we ask “whether each offense contains an
element not conta ined in the other; if not, they are the ‘same offense’ and d ouble
jeopardy bars additional punishment and successive prosecution.” United States
v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856, 125 L. Ed. 556, 56 8 (1993).
In this case, both counts of aggravated robbery contain an element that is not
contained in the other. Count one required proof that property was taken from
the person of Loga n Veac h while co unt two re quired p roof that property was
taken from the person of Mary Ethel Veach.2 Because each robbery count
required proof of an element not required by the other count, the Blockburger test
2 Under the criminal responsibility provisions of Tennessee C ode Annotated § 39-11 -402 (1997), it does not matter whether it was Appellant or Mitchem who actually took property from Mr. or Mrs. Veach.
-12- is satisfied and there is no violation of the federal double jeopardy clause.
However, under Denton, our analysis under the state double jeopardy clause
does not stop there.
The next step in the inquiry is the Duchac analysis of the evidence used
to prove each offense. If the same evidenc e is not us ed to prove each offense,
“‘then the fact tha t both cha rges rela te to, and grow out of, one transaction, does
not mak e a sin gle offense whe re two are define d by the statutes.’” Denton, 938
S.W.2d at 380 (quoting Duchac, 505 S.W.2d at 239). Here, the evidence used
to prove each count was different, at least in part. Indeed, count one was
established by evidence that Appellant took money from M r. Vea ch’s pocket and
count two by evidence that Mitchem took Mrs. Veach away from Mr. Veach to a
back bedroom where he took possession of the coins.3 Count one did not require
proof that anything was taken from Mrs. Veach and coun t two did not require
proof that anything was taken from Mr. Veach. Thus, application of Duchac
indicates that the two offenses are different for double jeopardy purposes.
W e now tu rn to the third do uble jeopard y factor of Denton, the
consideration of whether there were different victims or discrete acts. The two
counts of aggra vated rob bery in this c ase relate to two disc rete acts. F irst,
Appellant tied up Mr. Veach and took money from his pocket. A few minutes
later, Mitchem took Mrs. Veach out of the presence of Mr. Veach to a back room
3 It is wo rth no ting th at “a r obb ery m ay be a ctua l or co nstru ctive: it is act ual w hen the ta king is imm ediately from the pers on; and c onstruc tive when in the pos sessio n or in the p resenc e of the pa rty robbed.” State v. Edwards, 868 S.W .2d 6 82, 7 00 (T enn . Crim . App . 199 3). T he ta king of the coins clear ly occurred in the presence of Mrs. Veach.
-13- where he took th e coins. These tw o actions were cle arly not a sin gle act. 4
Further, there were clearly two victims here. “The fact that differen t victims are
involved suggests that separate prosecutions would not violate double jeopardy
principles under the Tennessee Constitution.” State v. Winningham, 958 S.W.2d
740, 746 (T enn. 1997 ).
The fourth and final step u nder Denton require s an a nalysis of the
purposes of the statu tes involved . Becau se both counts of aggravated robbery
involved the same statute, the purposes are obviously the same: to prevent the
theft of prope rty from person s by force. How ever, no one fa ctor is determina tive
and when eac h factor is weighe d and con sidered in rela tion to the others, we
conclude that Appellant’s convictions for two counts of aggravated robbery do not
violate either the federal or state double jeopardy clauses. This issue is without
V. AGGRAVATED KIDNAPPING CONVICTION
Appellant contends that his conviction for aggravated kidnapping violates
his right to due process because the kidnapping was only incidental to the
robbery. The Tennessee Supreme Court addressed the issue of whethe r both
robbery and kidnapping convictions can be upheld when each conviction arises
out of the same criminal episode in State v. Anthony, 817 S.W.2d 299 (Tenn.
1991 ). The court s tated th at the re levant in quiry is
4 Appellant contends that there were no discrete acts in this case because there was no proof that the property taken from the Vea ches was own ed by them as individuals, rather than jointly. However, nothing in th e aggra vated rob bery statute s require s proof o f owner ship. Te nn. Cod e. Ann. § 3 9-13-40 1 to -402 (19 97). See also Elliot v. State , 2 Tenn. Crim. App. 418, 420, 454 S.W.2d 187, 188 (1970) (stating that right to possession of property taken is not the issue in the crime of robbery).
-14- [W]hether the confinement, moveme nt, or de tention is esse ntially incidental to the a ccom panyin g felony and is not, there fore, sufficien t to support a separate conviction for kidnapping, or whether it is significant enough, in and of itself, to warrant independent prosecution and is, therefore, sufficient to support such a conviction.
Id. at 306. The court cited the following test, as taken from Faison v. State, 426
So.2d 963, 9 65 (Fla . 1983 ), with ap prova l:
[I]f a taking o r confinem ent is allege d to have been d one to fa cilitate the commission of another crime, to be kidnapping the resulting movement or confinem ent: (a) Must not be slight, inconsequential and merely incidental to the other crime; (b) Must not be of the kind inherent in the nature of the other crime; and (c) Must have some significa nce in depe nden t of the o ther crim e in that it makes the other crime substantially easier of commission or substa ntially lessen s the risk o f detection .
Id. See also State v. Michael K. Christian, Jr., No. 03C01-9609-CR-00336, 1998
WL 125562, a t *8–9 (Tenn . Crim. App., Kn oxville, March 23, 19 98).
It is clear that under this tes t, Appellant’s conviction fo r aggravated
kidnapping must be upheld . The bin ding of M rs. Potee te’s hand s and fee t with
duct tape was certainly not slight or inconsequential. Indeed, this action was
clearly a substantial interference with her liberty that increased the chance that
she would s uffer physical injury. Further, tying up the elderly Mrs. Poteete was
not the kind of action that was inherent in the crime of robbing the Veaches
because it was not necessary in order to commit the robberies. In addition,
although it was not necessary to bind Mrs. Poteete, it did make the robberies
easier by allowing both Appellant and Mitchem to search the house rather than
requiring that one of them watch Mrs. Poteete. Finally, binding Mrs. P oteete ’s
-15- hands and feet and taping over her eyes also lessened the risk of dete ction. T his
issue is, the refore, with out me rit.
VI. APPELLANT’S SENTENCE
Appellant conte nds th at his se ntenc e is excessive because the trial court
misapplied enhancement factors and failed to follow the appropriate sentencing
guidelines. Under Tennessee law, “[w]hen reviewin g sente ncing iss ues . . .
including the granting or denial of probation and the length of sentence, the
appellate court shall conduct a de novo review on the record of such issues.
Such review shall be conducted with a presumption that the determinations made
by the court from w hich the appe al is taken are correct.” Tenn. Code Ann. § 40-
35-401(d) (1997). “How ever, the presu mptio n of correctness which accompanies
the trial court's action is conditioned upon the affirm ative showing in the record
that the trial court considered the sentencing principles and all relevant facts and
circum stance s.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). “The
defendan t has the burde n of demo nstrating that the sen tence is impro per.” Id.
A portion of th e Sente ncing R eform A ct of 1989 , codified at Tennessee
Code Annotated § 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 eviden ce, if any, received at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing and argum ents as to sentencing alternatives; (4) [t]he nature and characteristics of the c riminal conduct involved; (5) [e]vidence and information offered by the parties on the enhancement and mitigating
-16- factors in §§ 40-35-113 and 40-35-114; and (6 ) [a]ny statement the defend ant wishe s to ma ke in his ow n beha lf about se ntencing .
Tenn. Code Ann. § 40-35-2 10 (199 7). 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 an d enhanc e the senten ce as app ropriate for the enhancement
factors and the n reduc e the sen tence w ithin 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 give n eac h facto r is left to the discretion of the trial judge. State v. Shelton,
854 S.W .2d 11 6, 123 (Ten n. 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 mitiga ting fac tors it fou nd, if any, as well
as findings of fact as requ ired by § 40-35-209 .” Tenn . Code Ann. § 4 0-35-21 0(f)
(1997). 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. Tenn. Code Ann. § 40-35-210 (1997) comment. These findings
by the trial judge mus t be recorded in order to allo w an adequate review on
appe al. In addition , “[w]hen imposing sentences for multiple offenses, the trial
court must make separate findings as to which enhancement and mitigating
factors apply to which co nvictions.” State v. Christopher B lockett, No. 02C01-
9509-CC-00258, 1996 W L 417659, at *4 (Tenn. Crim. App., Jackson, July 26,
1996) (citing State v. Chrisman, 885 S.W .2d 834, 839 (Tenn. Crim . App. 1994 ).
In this case, the trial court failed to make separate findings as to which
enhancement factors applied to which convictions. Thus, the sentences carry no
presumption of correctness.
-17- The trial court stated that in making its sentencing decision, it had
considered the evidence presented during trial, during the sentencing hearing,
and in the presentence report. The trial court found that no mitigating factors
were applicab le. We agree that no evidence was presented to support a finding
that any of the enumerated factors of Tennessee Code Annotated § 40-35-113
were present. The trial court stated that it found that the following enhancement
factors of Tennessee Code Annotated § 40-35-114 applied: (1) that Appellant
had a previous history of criminal co nvictions in addition to those ne cessar y to
establish the ap propr iate ran ge; (2) that Ap pellan t was a leade r in the
commission of the offenses; (3) that the offense involved more than one victim;
(4) that the victims were particularly vulnerable because of age; (6) that the
amount of money taken from Mr. Veach was particularly great; and (16) that the
potential for bodily injury to a victim was great. For the following reasons, we
hold that en hanc eme nt facto rs (1) an d (2) ap ply to all four offenses, that (3) and
(6) apply to some of the offenses, but factors (4) and (16) do not apply to any of
the offenses.
The trial cou rt was c orrect in applying factor (1). Indeed, Appellant has a
previous conviction in 1979 for attempt to commit a felony. This conviction was
not necessary to establish the appropriate range because other enhancement
factors exist. See Tenn. Code Ann. §§ 40-35-105, -109 (1997). Appellant
contends that he does not have a prior history of criminal convictions or behavior
because one c onvictio n can not be a “histo ry.” How ever, th is Cou rt has p reviou sly
held that factor (1) applied even though there had been only one previous
conviction. State v. William Ray Rhodes, No. 02C01-9406-CC-00124, 1995 WL
425046, at *6 (Te nn. C rim. A pp. 19 95). T hus, fa ctor (1) could prope rly be used
-18- to enhance all four of Appellant’s co nviction s, altho ugh it d eserv es little
enhan ceme nt weigh t. See id.
The trial court was correct in applying factor (2). Indeed, the evidence
showed that Appellant was the leader in all four offenses: Appellant came up
with the idea, planned the crimes, and enticed Mitchem to become involved.
Appe llant’s contention that this factor should not have been applied because he
was “a” leader rather than “the” leader has no merit. See State v. Hicks, 868
S.W.2d 729, 73 1 (Ten n. Crim. App. 1993) (“Our cases have established that
enhancement for being a leader in the co mmissio n of an offense does not req uire
that the de fendan t be the so le leader b ut only that h e be ‘a’ lea der.”).
The trial court erred in applying fac tor (3) to the aggrava ted robbery and
aggravated kidnapping convictions because each of th ese o ffense s involve d only
one victim and there were separate convictions for each offense. See State v.
Clabo, 905 S.W.2d 197, 206 (Tenn. Crim. App. 1995) (holding that factor (3) was
an “improper enhancement factor, since there were separate convictions for each
victim”). Howe ver, the trial court c orrectly applied this factor to the aggravated
burglary convic tion be caus e both Mr. an d Mrs . Veac h were victims of this
offense. See State v. Derek Denton, No. 02C01-9409-CR-00186, 1996 WL
432338 (Tenn. Crim. App., Jackson, Aug. 2, 1996) (stating that factor (3) can be
applied to aggravated burglary convictions when m ore than one person is killed,
injured, has prop erty stolen, or has pro perty destroyed).
The trial court erred in applying factor (4) because in committing the
offenses, Appellant did not take advantage of the victims’ ages or physical
-19- conditions. As stated by this court in State v. Butler, 900 S.W.2d 305 (Tenn.
Crim. A pp. 199 4),
[A] victim is particu larly vuln erable within the m eanin g of this enhancement factor when the victim lacks the ability to resist the commission of the crime due to age, a physical cond ition, or a men tal con dition. A victim is also particularly vulnerable when his or her a bility to summons assistance is impaired; or the victim does not have the capacity to testify against the perpetrator of the c rime. H owev er, a find ing tha t one o f these cond itions exists does not, as a m atter of la w, me an tha t this fac tor is au toma tically considered. The appellant must have taken advantage of one or more of these conditions during the commission of the crime. The state had the burden of establishing the limitatio ns tha t rende r the victim “particu larly vulnerable.” The sta te also ha d the bu rden of e stablishing that the condition which rendered the victim “particularly vulnerable” was a factor in the commission of the offense.
Id. at 313 (citations omitted). Here, the state failed to meet its burd en. There
was no evidence at all that either of the Veaches was particularly vulnerable and
the only evidence that Mrs. Poteete was vulnerable was that she “had some kind
of spell” during the robbery and needed a glass of water. There was no evidence
that established that any vulner ability of the victims was a factor in the
commission of the offense. Thus, the trial court shou ld not h ave ap plied th is
factor.
The trial court was correct in applying factor (6) to the convictions for
aggravated robbery of Mr. Veach and for aggravated burglary. Appellant
contends that the trial court’s determination that the approximately $6,000 taken
from Mr. Veach was particula rly great wa s “purely a rbitrary and capriciou s.”
Howeve r, the evidence s howed tha t Mr. Veach carries this amount of money on
his person because he cannot read well enough to use checks. Indeed, Mr.
Veach testified that h e only “de als with cash.” Clearly, Appellant’s argument that
-20- $6,000 is not a partic ularly great amount is without merit. However, this factor
cannot be applied to the other convictions because there was no evidence that
anything of particularly great value was taken from the other victims or that they
sustained pa rticularly great persona l injury.
The trial court erre d in applyin g factor (16 ). As to the aggrava ted burglary
conviction, this Court has stated that for aggravated burglary convictions, “a trial
court shou ld not a pply this factor absent extra ordinary circum stances.” State v.
Smith , 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994). There are no
extraordinary circum stanc es in th is case which warra nt the a pplication of this
factor. As to the aggravated robbery convictions, this Court has also stated that
absent any proof establishing risk to life other than the victim’s, factor (16) is an
essential element of the offense and it cannot be used for enhan ceme nt. State
v. King, 905 S.W.2d 207, 213 (Tenn . Crim. A pp. 199 5). This C ourt ha s also h eld
that factor (16) cannot be used as an enhancement factor for the offense of
aggravated kidnapping as it is inherent in the offens e. State v. Kern, 909 S.W.2d
5, 7–8 (Ten n. Crim. App . 1993).
Even though we hold that the trial court erred in applying some of the
enhancement factors , a findin g that e nhan cem ent fac tors we re erro neou sly
applied does n ot equa te to a redu ction in the se ntence . State v. Keel, 882
S.W.2d 410, 423 (Tenn. Crim. App. 1994). There are no mitigating factors and
at least two enhancement factors apply to each conviction. We place great
weight on each of these enhancemen t factors conside ring the type of robb ery
and burglary involved. Home invasions by armed hooligans are perhaps one of
-21- the most d etestab le and frigh tening forms of criminality. Under these
circum stance s, we affirm the sente nces im posed by the trial co urt.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ GARY R. WADE, PRESIDING JUDGE
___________________________________ DAVID G. HAYES, JUDGE
-22-