IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED DECEMB ER SESSION, 1998 May 14, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9802-CR-00056 ) Appellee, ) ) ) HAMILTON COUNTY VS. ) ) HON. DOUGLAS A. MEYER ERIC DEWAYNE MCELMORE, ) JUDGE ) Appe llant. ) (Dire ct Ap pea l - Agg ravat ed R obb ery)
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH JOHN KNOX WALKUP District Public Defender Attorney General and Reporter
DONNA ROBINSON MILLER ELLEN H. POLLACK Assistant District Public Defender Assistant Attorney General Suite 30 0-701 C herry St. 425 Fifth Avenu e North Chattanooga, TN 37402 Nashville, TN 37243
BILL COX District Attorney General
C. CALDWELL HUCKABAY Assistant District Attorney 300 Market Street Chattanooga, TN 37402
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On January 14, 1997, Appellant Eric D. McElmore pled guilty to two counts
of aggra vated robbe ry. On A pril 3, 1997, Appellant pled guilty to another count
of aggravated robbery and a number of counts involving other charges. After a
sentencing hearing on May 29, 1997, the trial court sentenced Appellant as a
Range I standard offender to a term of ten years for the first agg ravated robbe ry
and twelve years for the seco nd aggrava ted robbery, with the sentences to run
concurren tly. The trial court also imposed a sentence of twelve years for the third
aggravated robbery, with this sentence to run consecutively to the other two
sentences. Appellant challenges all three of his aggravated robbery sentences,
raising the following issues:
1) whether the trial court imposed excessive sentences; and
2) whether the trial court erred when it imposed consecutive sentencing.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTS
On January 21, 1996, Appellant and at least two other arme d individ uals
entered a Hooters Restaurant and took approximately $10,000 in cash from the
business. One or m ore of the arm ed robbers then ordered some H ooters
emplo yees into a closet an d forced them to remov e their cloth es.
On June 20, 1996, Appellant entered the offices of Dixie Stamp and
Machine and pointed a gun at Rodney Moore and Roy Covington. Appellant then
-2- robbed Moore and Covington of their wallets and fled through an alley. Moore
then retrieved a gun and gave chase. Appellant then shot Moore in the thigh and
Moore returned fire and sh ot Appe llant in the left ha nd, left leg, an d left foot.
II. LENGTH OF SENTENCES
Appellant conte nds th at the tria l court e rrone ously s enten ced h im to a
longer term than he deserves for each of his three convictions. We disagree.
“When reviewing sentencing issues . . . including the granting or denial of
probation and the length of sentence, the appellate cou rt shall conduct a d e novo
review on the record of such issues. Such review shall be conducted with a
presumption that the determ inations mad e by the court from which the ap peal is
taken are correct.” Tenn. Code Ann. § 40-35-4 01(d) (1997). “However, the
presumption of corre ctnes s whic h acc omp anies the trial c ourt’s a ction is
conditioned upon the affirmative show ing in the record tha t the trial court
considered the sentencing principles and all relevant fa cts and c ircums tances .”
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we
must consider all the evide nce, the presentence report, the sentencing principles,
the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s
statements, the nature and character of the offense, and the defendant’s potential
for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.
1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of
demon strating that the sente nce is improp er.” Id.
-3- In this case , Appella nt was co nvicted of th ree cou nts of aggravated
robbery, a Class B felony. See Tenn. Code Ann. § 39-13-402 (1997). The
sentence for a Range I offender convicted of a Class B felony is between eight
and twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (19 97). W hen bo th
enhancement and mitigating factors are applicable to a se ntenc e, the c ourt is
directed to begin with the minimum sentence, enhance the sentence within the
range as app ropriate for the enhancement factors, and then reduce the sentence
within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-
35-210(e) (19 97).
After the sente ncing he aring, the tria l court imp osed a twelve year
senten ce for the a ggravate d robbe ry that occu rred at the restaura nt, a ten year
sentence for the aggravated robbery of Covington, and a twelve year sentence
for the aggravated robbery of Moore.1 In determining the length of these
sentences, the trial cour t found tha t the following enhan ceme nt factors applied
to all three se ntence s: (1) that A ppellant h ad a pre vious histo ry of criminal
convictions or criminal behavior in addition to those necessary to establish the
approp riate sentencing range; (8) that Appellant had a previous history of
unwillingness to comply with the conditions of a sentence involving release into
the comm unity; (10) tha t Appella nt had n o hesitatio n abou t comm itting a crime
1 The judgment forms state that the sentences are twelve years for the aggravated robbery at the restaurant, twelve years for the aggravated robbery of Covington, and ten years for the aggravated robbery o f Moor e, with the se ntence for the ag gravate d robbe ry at the resta urant to ru n cons ecutively to the aggravated robbery of Covington. However, the transcript of the sentencing hearing indicates that the trial court actually imposed a twelve year sentence for the aggravated robbery of Moore and a ten year sentence for the aggravated robbery of Covington and ordered the sentence for the aggravated robbery at the restaurant to run consecutively to the sentence for the aggravated robbery of Moore. When there is a conflict be tween th e court m inutes or ju dgm ent and th e transc ript, the trans cript contro ls. State v. Moore, 814 S.W .2d 381, 3 83 (Te nn. Crim . App. 199 1); State v. Da vis, 706 S.W.2d 96, 97 (Tenn. Crim. App. 1985). T herefo re, the trial cou rt’s judgm ent form s shall be m odified by this C ourt’s judg men t to reflect a twelve year sentence for the aggravated robbery of Moore and a ten year sentence for the aggravated robb ery of Cov ingto n, with the s ente nce for th e agg rava ted ro bbe ry at the resta uran t to run cons ecu tively to the sentence for the aggravated robbery of Moore.
-4- in which the risk to human life was high; and (20) that Appellant had been
adjudicated of a de linque nt act a s a juve nile tha t would have b een a felony if
committed by an adu lt. See Tenn. Code Ann. § 40-35-114(1), (8), (10), & (20)
(1997). The trial court also found that the following enhancement factors applied
only to the sentence for the aggravated robbery at the restaurant: (2) that
Appellant was the leader in an offense involving two or more criminal actors; (3)
that the offense involved more than one victim; and (7) that the offense involved
a victim a nd wa s com mitted to gratify Appe llant’s desire for pleasure or
excitem ent. See Tenn. C ode Ann . § 40-35-114 (2), (3), & (7) (1997). The trial
court also fo und th at the fo llowing enha ncem ent fac tor app lied on ly to the
sentence for the aggravated robbery of Moore: (6) that the personal injuries
inflicted on the victim were particularly g reat. See Tenn. Code Ann. § 40-35-
114(6) (1997). The trial court also found that mitigating factor (13) applied to all
three sentences because Appellant is mildly retarded and has experienced
emotional problems, he had cooperated with the police, he was s exually abused
as a child, and he had nu merou s family pro blems . See Tenn. Code Ann. § 40-
35-113(13) (1997). Finally, the trial court foun d that the enha nceme nt factors
outweig hed all of th e mitigatin g factors.
Appellant does n ot challen ge the application of enhancement factor (1) and
we conclude that it was prop erly applied to all three sentences. Appellant has a
previous adult c rimina l record consisting of one conviction for cocaine
possession, one conviction for theft of property worth between $1,000 and
$10,000, two convictions for theft of property worth up to $500, and two
convictions for crimin al trespas s. W e conc lude that th is factor is en titled to
significant w eight.
-5- Appellant likewise does not challenge the application of enhancement
factor (8) and we conclude that it was properly applied to all three sentences.
Appellant had received probation in a previous case and that probation was
revoked after he viola ted the term s of prob ation.
Similarly, Appellant does not challenge the application of enhancement
factor (20) and we conclude that this factor was properly applied to all three
sentences. The record indicates that Appellant has a juvenile adjudication for
aggravated burglary. This would have been a felony if com mitted by an adu lt.
See Tenn. Code Ann. § 39-14-403(b) (1997) (“Aggravated burglary is a Class C
felony.”).
In addition, Appellant does not challenge the application of enhancement
factor (3) to the sentence for the aggravated robbery at the restaurant and we
conclude that this factor was properly applied to this sentence . The record
indicates that when Appellant and the other armed individuals entered the
restaura nt, some or all of them forced several emplo yees into a closet and then
forced th em to re move their clothe s.
Appellant does challenge the application of enha ncem ent factor (2 ) to his
sentence for the aggravate d robbery at the re staurant. Specifically, Appellant
contends that there w as no e vidence that he w as a lead er in the offe nse. W e
agree with Appellant that the trial court erred when it applied enhancement factor
(2). Although the record indicates that at least two other individuals participated
with Ap pellan t in the commission of this crime, the record does not contain any
evidence about Appellant’s actions in the preparation for or during the
-6- com mission of the offense tha t demons trates that he was a leader in any w ay.
In fact, the trial court did not identify any basis for applying this factor and the
State ’s only argu ment fo r why this fa ctor ap plied was that Appellant was the
participant who had most recently worked at the restaurant. We cannot agree
that the me re fact that A ppellant h ad work ed at this re stauran t, without more ,
established that he was a leader in the commission of the offense.
Appellant also challenges the application of enhancement factor (6) to his
sentence for the aggravate d robbery of M oore. W e agree that the trial court
erred when it applied factor (6) to this sentence. Although there is evidenc e in
the record that Appellant shot Moore in the leg, the record does not reflect the
seriousness of the wound. While it certainly may be true that Moore sustained
serious bodily injury when he was shot in the leg, there is no proo f in the record
that this was the case. Thus, the trial court erred when it applied factor (6).
Howeve r, because the record does reflect that Appellant shot Moore while fleeing
from the scene,2 we conclud e in our de no vo review that the trial court should
have applied enhancement factor (12) beca use A ppella nt willfully in flicted b odily
injury upon Moore during the commission of a felony. 3 See Tenn . Code Ann. §
40-35-114 (12) (1997). 4
2 Appellant maintains that he shot Moore in self-defense and he claims that a jury acquitted him of the attempted first degree m urder of Moore bec ause it believed his theory of self-defense. However, although the record indicates that Appellant was acquitted of the attempted first degree murder of Moore, there is nothing in the record that indicates that the jury acquitted Appellant because it believed his theory of self-defense.
3 Although Appellant apparently shot Moore after he had taken Moore’s wallet and was attempting to flee, we note that “the crime of robbery is not completed the moment the stolen property is in the possession of the robbers , but may be deem ed to continue during their attempt to escape.” Burgin v. State , 217 Te nn. 682, 6 87–88 , 400 S.W .2d 539, 5 41 (196 6); W hite v. State , 533 S.W.2d 735, 738 (Tenn. Crim . App. 197 5); State v. Larry Donald Smith & Jeffrey Sanford , No. 01C01-9201-CC-00021, 1992 WL 217751, at *2 (Tenn. Crim . App., Nashville, Nov. 30, 1992).
4 Appellant contends that under State v. Holman, 611 S.W.2d 411 (Tenn. 1981), evidence that he shot M oore wa s inadm issible bec ause h e was a cquitted o f the attem pted first de gree m urder of Moore . It is true that the Tennessee Supreme Court stated in Holman that in a trial on the issue of guilt, “evidence
-7- Appellant also challenges the application of enha ncem ent fac tor (7) to his
sentence for the agg ravated ro bbery at th e restau rant. W e agree . The S tate has
the burden of demon strating that the crime was com mitted to gratify a
defen dant’s desire for p leasure or excitem ent. State v. Adams, 864 S.W.2d 31,
35 (Tenn. 1993). In this case, the State failed to introduce any evidence that the
robbery itself was c omm itted for th e purp ose o f gratifyin g App ellant’s desire for
pleasure or excitement. There is evidence in the record that Appe llant an d/or his
companions forced some of the resta urant em ployees to remove their clothing.
Howeve r, while this act may well have been motivated by a desire for sexual
pleasure, this does not mean that the robbery itself was committed for that
purpose. In short, the State failed to introduce an y evidence that the robbery was
committed to gratify A ppella nt’s desire for sexual pleasure, rather than for some
other purpose such as obtaining money. The State has simply not met its burden
of showing that factor (7) applied.
Appellant further contends that the trial court erred when it applied
enhancement factor (10) to all three of his sentences. Specifically, Appellant
contends that this was e rror be caus e a hig h risk to hum an life is inherent in the
crime of agg ravate d robb ery. Th is Court has previously stated that absent any
proof establishing risk to life other than the victim ’s, enh ance men t factor (1 0) is
inapp licable to sentences for aggravated robbery because a high risk to human
life is an eleme nt of the offe nse. State v. Hicks, 868 S.W.2d 729, 732 (Tenn.
that the defendant committed an alleged crime other than that for which he is on trial should not be admitted when he h as been acquitted of such alleged other crim e.” Id. at 413. However, in State v. Desirey, 909 S.W.2d 20 (Tenn. Crim. App. 1995), this Court noted that the concerns in a jury trial about the introduction of other crimes evidence do not apply equally to a sentencing hearing conducted by a trial court pursuant to the 1989 Sentencing Reform Act and suggested that even evidence of an offense for which a d efenda nt was a cquitted m ight be co nsidere d in the se ntencing contex t. Id. at 31–32. In addition, Appellant’s argument ignores the fact that Appellant himself introduced evidence during the sentencing hearing that he ha d shot M oore in the leg.
-8- Crim. App. 1993). Although there is no evidence in the record that Appellant
caused a risk to the life of anyone other than the victims during the aggravated
robbery at the restaurant or the aggravated robbery of Covington, the State
contends that this factor was applicable to the sentence for the aggravated
robbery of Moore because Appellant was firin g his g un in th e direc tion of a child
care center when he shot Moore. However, the only part of the record wh ich
indicates that Appellant fired towards a child care center is the transcript of the
two prose cutors ’ argum ents a t the se ntenc ing he aring. It is a well known
princip le of law that “stateme nts made by counse l during a hearing or a trial are
not evidence.” State v. Dykes, 803 S.W .2d 250, 254 (Tenn. Crim . App. 1990 ).
In addition, n o stipulation to this fact is apparent on the face of the record. Thus,
the trial court erred whe n it applied factor (10).
Finally, Appellant contends that the trial court failed to give proper weight
to the mitiga ting factors in this case. Th e record indicate s that the trial court
recognized the followin g mitigatin g eviden ce: App ellant has an I.Q. of between
64 and 68, Appellant was raped as a child, Appellant suffered emotional
problems after the death of his s ix-year-old brother, Appellant came from a
broken home, Appellant has speech and hearing difficulties, and Appellant had
some minor potential for rehabilitation. However, the trial court found that the
enhancement factors completely outweighed the mitigating factors for the
sentences for the aggravate d robbery at the restaurant and the aggravated
robbery of Moore and thu s, maxim um se ntence s were a ppropria te. W e conclude
that the trial court properly con sidered the ab ove evidence under mitigating factor
(13). See Tenn. Code Ann. § 40-35-11 3(13) (1997 ). Further, we agree with the
trial court that, under the circumstances of this cas e, this m itigating eviden ce is
-9- entitled to little weight, when balanced against the enha ncem ent fac tors in th is
case. As this Court has previously stated, “[e]ven if some evidence of mitigation
exists, the applicable enhancement factors [may] so strongly outweigh the
mitigating factors so that the maximum senten ce is warra nted.” State v. Ruane,
912 S.W .2d 766 , 785 (T enn. C rim. App . 1995).
In short, we hold that because the four applicable enhance ment factors
com pletely outweigh the mitigating factors, a sentence of twelve years for the
aggravated robbery at the restaurant is appropriate in this case. In addition, we
hold that be caus e the fo ur app licable enhancement factors completely outweigh
the mitigating factors, a sentence of twelve years for the aggravated robbery of
Moo re is also appropriate in this case. Further, we hold that because the three
applic able enhan ceme nt factors o nly partially ou tweigh the mitigating factors, a
sentence of ten years for the a ggrav ated ro bbery of Cov ington is app ropria te in
this case .
III. CONSECUTIVE SENTENCING
Appellant contends that the trial court erred when it ordered his sentence
for the ag grava ted rob bery a t the res tauran t to run c onse cutively to the sentence
for the aggravated robbery of Moore. We disagree.
Consec utive sentencing is g overned by T ennessee Code Annotated
section 40-35-115. The trial court has the discretion to order co nsecutive
sentencing if it finds that o ne or m ore of the required statutory crite ria exist. State
v. Black, 924 S.W.2 d 912, 9 17 (T enn. C rim. A pp. 19 95). Fu rther, th e cou rt is
-10- required to determine whether the consecutive sentences (1) are reas onab ly
related to the severity of the offenses committed; (2) serve to protect the public
from further criminal con duct by the offend er; and (3) are congruent with general
principles of senten cing. State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5).
In imposing consecutive sentences, the trial court found that Appellant was
an offender whose record of criminal activity was extensive and was a dangerous
offender whose behavio r indicates little or no rega rd for hum an life and who has
no hesitation in committing a crime in which the risk to huma n life is high. See
Tenn. Code A nn. § 40-35-1 15(2), (4) (1997). We agree with the trial court that
Appellant is an offend er who h as an e xtensive c riminal rec ord. Indeed, Appellant
has an adult criminal record consisting of one conviction for cocaine possession,
one conviction for th eft of prope rty worth be tween $ 1,000 a nd $10 ,000, two
convictions for theft of prope rty worth up to $500, and two convictions for criminal
trespass. In addition, Appellant’s record also consists of juvenile adjudications
for aggravated burglary, theft of property worth up to $500, assault, and three
adjudications for delinque nt acts tha t are not de fined. W e also agree with the trial
court that Appellant is a dangerous offender whose behavior indicates little or no
regard for huma n life and who has no hesitation in committing a crime in which
the risk to human life is high. Indeed, within a five month period, Appellant
committed three aggravated robberies by use of a deadly weapon and he fired
at least two shots at a victim, one of which hit the victim in the leg.
In this case , the trial court made no express finding that the Wilkerson test
was satisfied. Howeve r, we conclud e that it is. First, consecutive sen tences are
reaso nably related to the seve rity of Appe llant’s offens es. Indeed, Appellant was
-11- convicted of three serious felony offenses that put the lives of several victims at
risk. Second, co nsecutive sen tences are require d in this case in order to protect
the public from further criminal conduct by Appellant. The record indicates that
Appe llant’s criminal condu ct has beco me m ore and m ore serious ove r time.
Further, the fact that Appellant continued to engage in criminal activity from age
twelve until he was arrested at age twenty for the o ffense s in this case indicates
that he poses a continuing threat to the public. Finally, consecutive sentencing
in this case is congruent with general principles of sentencing.5 This issue has
no me rit.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ DAVID G. HAYES, JUDGE
___________________________________ JAMES CURWOOD WITT, JR. JUDGE
5 Appellant contends that the trial court erred when it ordered the sentence for the aggravated robbery at the restaurant to run consecutively to the sentence for the aggravated robbery of Mo ore because the aggravated robbery at the restaurant occurred first in time. As authority for this proposition, Appellant cites Tennessee Code Annotated section 40-20-111(a) and State v. Arn old, 824 S.W.2d 176 (Tenn. Crim. App. 1991). However, these authorities merely stand for the proposition that a sentence may not be or dered to run con secutive ly to a senten ce that w ill be impos ed in the fu ture. See Tenn. Code Ann. § 40-20 -111(a) (1997); Arno ld, 824 S.W.2d at 178. In addition, this Court has previously held that when a court imposes c onsecutive sentences, it is irrelevant whether the conviction for the first offense occurs before the conv iction for the secon d offens e and it is im mate rial whethe r senten ce one is conse cutive to senten ce two, o r vice vers a, beca use the senten ces are conse cutive in eithe r case. State v. Blanton, 926 S.W .2d 953, 961 (Tenn. Crim . App. 1996).
-12-