IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED APRIL SESSION, 1998 June 10, 1998
Cecil W. Crowson
Appellate Court Clerk
STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9708-CR-00349 )
Appellee, )
) DAVIDSON COUNTY
V. )
)
) HON. J. RANDALL WYATT, JUDGE JACK KEVIN SUTTON, )
)
Appe llant. ) (AGGR AVATED BURG LARY)
FOR THE APPELLANT: FOR THE APPELLEE:
KARL DEAN JOHN KNOX WALKUP District Public Defe nder Attorney General & Reporter
JEFFREY A. DeVASHER LISA A. NAYLOR Assistant Public Defender Assistant Attorney General (On A ppea l) 2nd Floor, Cordell Hull Building 425 Fifth Avenue North
DAVID BAKER Nashville, TN 37243 Senior Assistant Public Defender 1202 Stahlman Building VICTO R S. JO HNS ON, III Nashville, TN 37201 District Attorney General (At Tr ial)
KATRIN MILLER
Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue North
Nashville, TN 37201-1649
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Jack Kevin Sutton, appeals as of right the sentences imposed
by the Davidson County Criminal Court. Defendant pled guilty to two counts of simp le robbery, one count of aggravated burglary, one count of assault, and one count of theft o f prope rty. The trial court sentenced Defendant as a Range I Standard Offender to three consecutive five-year sentences for the robbery and burglary convictions, and two eleven month and 29-day senten ces fo r the as sault and theft convictions. The latter two sente nces were o rdere d to run conc urren tly to the others. In this appeal, Defendant arg ues that the se ntences im posed we re excessive and that consecutive sentences were not prop er. Although we disagree with the trial court’s application of two enhancement factors, we affirm the judgment of the trial cou rt.
At the sentencing hearing, sixty-two-year-old Leland Stalcup testified that on March 1, 1996, he was coming out of a tobacco shop on Gallatin Road with a carton of ciga rettes in his ha nd, wh en De fenda nt app roach ed an d ask ed him if he would like to purchase more cigarettes at $5.00 a carton. Mr. Stalcup agreed and then allowed Defendant into his car. Defend ant told Stalcup to g ive him the money for the cigarettes an d that he wou ld purchase them for Stalcu p at a grocery sto re where his father allegedly w orked. Mr. Stalcu p gave D efenda nt $35 w ith which to purchase the cigarettes. However Defendant began “mumbling and looking down at the place and back up again” so Mr. Stalcup asked Defendant for his money back and told him “we’ll just forget the whole thing here.” According to Mr. Stalcup, Defendant then grabbed the money from him. Stalcup attempted to catch Defendant at which point they began to scuffle. Defendant pushed Stalcup to the ground on the
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gravel and Mr. Stalcup skinned his knee . Defend ant pled g uilty to assa ult and the ft pertaining to Mr. Stalc up (Co unts Fo ur and F ive).
Mrs. Clara Sutton, of no relatio n to Defe ndant, testified that on March 1, 1996, Defendant began hollering outside her ho use a t 1802 Merid ian Str eet, to le t him come in. Mrs. Su tton, who is 80-yea rs-old, had just had open heart surgery two weeks before th is incident. M rs. Sutton testified that s he reco gnized Defen dant’s voice as being the nephew of one of her neighbors. She told Defendant tha t she does not allow anyone into her home because she lives by herself. Defendant told her that a man was bleeding to death in the street and he needed to use her teleph one to call for h elp. Mr s. Sutto n told h im to go use his aunt’s telephone, but he told her that his aunt was not at home. Sutton then told him to use another neigh bor’s phone because she was sure that that person was at home. Defendant told Mrs. Sutton that her neighbo rs were in fact not at ho me. Believing h er storm door to be latched, she then went to open the glass door to talk further w ith Defen dant. Wh en she began to open the glass door, De fendan t pushe d his way inside. She testified that h e came in “wild as a deer.”
At this point he told her he needed a glass of water. Sh e told h im to g et it hims elf becau se she had just h ad surg ery and w as not ab le to freely m ove abo ut. Mrs. Sutton testified that he then began talking about one of her daughters who had some emotional problems. He then informed her that he needed money to which she replied that all o f her m oney w as in th e ban k. He to ld her th at all of her neighbors had told him that she kept money in her dresser drawers. She then offered to write him a che ck if he would just leave her home. He refused and began going through all her things in search of money. She then threatened to call the
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police to which he said, “[Y]ou’d better not call the police, I’ll stomp you.” Mrs. Sutton then began moving toward th e front door and sta rted scre aming . At this poin t, Defendant grabbed M rs. Sutton and threw her to the floor. She again told Defendant to leave o r she w ould c all the p olice. D efend ant sa id “whe n you c all the p olice, I’m going to stom p you and k ill you.”
Defendant continued to search the house for money and he eventually found a box that contained jewelry belonging to Mrs. Sutton’s deceased husband. He took the box and ran out o f the hous e. A few moments later, Mrs. Sutton’s daughter and granddaughter arrived and they notified the police. Mrs. Sutton testified that she was still being treated by a ph ysician at the time of the sentencing hearing for a knee injury she suffered when Defendant threw her to the floor on the day of the burglary. Defendant pled guilty to aggravated burglary and robbery pertaining to these acts on Mrs . Sutton (C ounts T wo and Three ).
Chester Earl Co llins, who is 8 3-years-o ld, testified tha t on Marc h 5, 1996, Defendant forced his way onto his prope rty by placing his foot insid e the pro perty gate so that it cou ld not be c losed. Mr. Co llins said that D efend ant thre w him on his back and that he landed on a lawnmower. Defendant demanded money from Collins to which he told Defendant that he did not have any money. Defendant removed a set of keys and a change purse which contained another key from Collins’ pants. Defendant further sea rched th rough M r. Collins’ hip p ocket an d tore his p ants in the process of searching for money. Defendant then left and a neighbor called the police. Mr. Collins testified that his back continues to hurt him as a result of Defendant pushing him down on top of the lawnmower. Defendant pled guilty to robbery of Mr. C ollins (Count O ne).
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Mary Ellen Hea, a licensed clinical social worker for the Pu blic De fende r’s Office, was called by the defense to testify at the sentencing hearing. She said that she had as sessed the Defe ndant a nd had conclud ed that D efenda nt was born prem aturely and tested at the borderline intellectual functioning range. Ms. Hea testified that D efend ant ha d bee n hos pitalized for mental illness on five prior occasions. She also said that Defendant may suffer from visual hallucinations and that his illness requires medication. On cross-examination she testified that she was aware of Defendant’s daily crack cocaine addiction. Ms. Hea also said that she did believe Defendant to be taking his medication when he committed the present offenses.
The 35-year-old Defendant testified that he is remorseful for his crimes and that he was not taking his medications at the time he comm itted the crimes. Defendant could recall his prior conviction for prostitution, but he could not remember his prior convictions for fraud, attem pt to com mit a felon y, or forgery. He also said that although he had been convicted of DUI, he did not commit that crime. Defendant testified that he had been using crack cocaine for two to three years. He denied that he com mitted the presen t crimes in an attem pt to get money for drugs. In fact, he said th at he ask ed Ms. S utton for m oney to ride the bus and that he asked Mr. Collins if he could work for him for money. He further said that he did not intend to commit these crimes.
When an accused challenges the length, range, or the manner of service of a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with a presumption that the determinations made by the trial court are correct. Tenn.
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Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative showing in the record that the trial court considered the sentencing principles and all relevant fac ts and circ umsta nces." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
In conducting a de novo review of a sentence, this Court must consider the evidence adduced at trial and the sentencing hearing, the presentence report, the principles of senten cing, the a rgume nts of cou nsel relative to sente ncing alternatives, the natur e of the offe nse, and the defendant’s potential for rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945, 955- 56 (Tenn . Crim App . 1996).
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 th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record, we find that the trial court considered the proper sentencing principles and state d its reasons and fin dings on the record . Ther efore, r eview by this c ourt is de novo with a presumption of correctness.
I. LENGTH OF SENTENCES
The Defendant argues that the trial court erred by imposing the sentences of five (5) years on each of his two robbery convictions (Counts One and Three), and
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on his aggravated burglary conviction (Count Two). Defendant does not challenge the sentences for the misd eme anor c onvictio ns for a ssau lt and theft (Counts Four and Five). The trial court found that four (4) enhan cemen t factors were a pplica ble to the three felony convictions:
(A) The D efenda nt has a p revious h istory of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate ran ge. Tenn . Code An n. § 40-35-11 4(1).
(B) A victim of the offense was particularly vulnerable because of age or physical or m ental disability. Tenn. C ode Ann . § 40-35-114 (4).
(C) The Defendant treated or allowed the victims to b e treated with exceptional crue lty. Tenn. Code Ann. § 40-3 5-114(5).
(D) The Defendant had no hesitation about committing a crime when the risk to hum an life was high. T enn. Cod e Ann. § 40 -35-114(10 ).
(E) The crimes were committed under circumstances in which the potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-
35-114(16 ).
The trial court found as mitigating factors the Defendant’s history of mental problems, and the fact that Defendant was raised in a dysfunctional family. Tenn. Code Ann. §§ 40-35-1 13(8) an d (13).
First, the trial court conclude d that Defend ant had a prior c riminal history.
Tenn. Code Ann. § 40-35-114(1). Defendant does not contest the ap plicatio n of this factor, but we will nevertheless review its significance. Although Defendant was unab le to recall several of his convictions, the presentence report indicates that Defendant had s ix prior misdemeanor convictions, including solicitation of an undercover officer for pro stitution, fraud , DUI, attem pt to commit the felony of larceny, attempt to comm it the felony o f forgery, an d mak ing false re ports. In addition, Defenda nt admitted us ing crack coc aine for the past two to three years.
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Based on the se fac ts, the a pplica tion of th is enh ance men t factor is justified in enhancing all three felony convictions (Counts O ne, Two a nd Three ).
Defendant does challe nge th e trial co urt’s finding that one of the victims, Mr.
Chester Collins, was particularly vulnerable because of his age and physical limitations. Tenn. Code Ann. § 40-35 -114( 4). De fenda nt only challenges this factor as applied to Cheste r Collins (C ount O ne). Upo n care ful review of the record, we find that this e nhanc emen t factor doe s not app ly as to Mr. C ollins.
Our supreme court recently addressed the applicability of this factor in State v. Poo le, 945 S.W.2d 93, 96-98 (Tenn. 1997). In Poole , the supreme court stated that the trial c ourt m ust co nside r all of the facts a nd circ ums tance s of the offens e in determining whether this factor is appropriate for the offe nse. T he ap plicatio n of this factor is a factua l issue res olved on a case-b y-case b asis. Id. at 96 (citation omitted). The S tate bears the burden of proving the victim’s limitations which made the victim partic ularly vulner able. Id. In determ ining whe ther the S tate has m et its burden, the trial c ourt sh ould c onsid er whe ther ev idenc e perta ining to the victim ’s age or physical a nd me ntal attribute s dem onstrate d an inab ility to resist the crime, summon help, or tes tify at a later date. Id. The re mu st be e videnc e in the record in addition to the victim ’s age. Id. at 97. T he co urt mu st also determ ine if the factor is approp riate for the offense by considering the nature of the offense and the manner in which it w as com mitted. Id.
There is no qu estion that an 80-ye ar-old man migh t be pa rticularly vulner able to the type of offense committed by Defendant. However, “[a] person’s age alone may have little or no bearing on size, strength or vitality.” Id. at 98. Since the State
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produced no evidence of physical or mental limitations at the time of the offe nse, it cannot be presumed that the victim w as pa rticularly vulner able b ased solely o n his age. Therefore, there is not su fficient e videnc e to su pport th e app lication of this factor to Def enda nt’s conviction for robbe ry of Mr. Collins (Count One). This factor does how ever, apply to the two convictions pertaining to Mrs. Sutton (Counts Two and Thre e), since her delicate physical condition made her particularly vulnerable.
The trial court also found that Defendant treated or allowed the victims to be treated with exceptional cruelty. Tenn . Code Ann. § 4 0-35-11 4(5). Th e State correc tly agrees with Defendant that the circumstances in this case do not supp ort the finding of this enhancement factor as to any of the felony convictions.
Defendant next contends that the trial court erred in finding that he had no hesitation about committing a crime when the risk to hum an life w as hig h in regards to his convictions for robbery of Mr. Collins and Mrs. Sutton (Counts One and Three). See Tenn . Cod e Ann . § 40-3 5-114 (10). O ur sup reme court re cently addressed this enhancement factor, as applied to the crime of robbery, in State v. Mario A. Lavender and Eric L. Hobbs, No. 01-S01-9704-CR-00088, Davidson Coun ty (Tenn., Nashville, Apr. 27, 1998) (for publication). In that opinion, the supreme court stated that enhancement factor (10) is not an essential element of the offense of robbery, and that it may be used “when imposing a sentence for ro bbery so long as the facts which establish the elements of the offense are not also relied upon to establish the enhancement factors. This determination is dependent upon the particular facts of each case.” Id. at 14. Th e court a lso pointe d out that “[i]n determining whether a particular enhancement factor may be applied in a specific
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case, the trial court must consider the elemen ts of the offense and the evidence adduced at the trial and senten cing hearing.” Id. at 9.
Robbe ry is defined as “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39- 13-401(a). A person c omm its “theft of property” if, “with intent to deprive the owner of property, the perso n knowingly ob tains or exercises con trol over the property without the owner’s effective co nsent.” T enn. C ode An n. § 39-1 4-103 . In this case, the proof shows that Defend ant forced his way onto Mr. Collins property, pushed Mr. Collins to the groun d, and having placed the victim in fea r, Defendant then sea rched th rough h is pocke ts for mo ney. Defendant took control of the victim’s property and left the premises with it, without Mr. Collins effec tive conse nt. Thes e facts su pport the eleme nts of the o ffense of ro bbery.
However, in this particu lar case, th e State o ffered no additiona l proof as to how the risk to Mr. Collins life was particularly high, other than his age. While we find this crime to be utterly despicable, we cannot say that the evidence shows that the risk to M r. Collin s’ life wa s high . The tr ial court erred in app lying this enhance ment factor a s to Mr. Collins (Co unt One).
The Defendant fo rced his way into Mrs. Sutton’s home, pushed her to the ground, and while she was placed in fear, Defendant searched her house for anything that might be of value. Defendant then took control of the property (her deceased husband’s belongings) and left the premises with them, without Mrs. Sutto n’s effective con sent. A gain, th e elem ents o f robbe ry are m et. Ho weve r, in regards to Mrs. Sutton, we find that the evidenc e supp orts the trial court’s application
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of enhancement factor (10), “[t]he defendant had no hesitation about committing a crime when the risk to hum an life was high.” Tenn . Code An n. § 40-35-11 4(10). Mrs. Sutton was recovering from open hea rt surgery and the chance that sh e cou ld have died from Defendant’s actions wa s certa inly high . The tr ial cou rt corre ctly applied this factor as to Mrs. Sutton (Count Three). Defendant does not contest the application of enhancement factor (10) to the aggravated burglary conviction (Count Two), but we note for the record that we agree with the trial court’s application of that factor to the aggravated burglary conviction.
Next, the trial court applied enhancement factor (16), “[t]he crime was committed under circumstances under which the po tential fo r bodily in jury to a v ictim was great” to a ll three felony conviction s. See § 40-35-11 4(16). Defendant contends that this enhancement factor was improperly applied to his three felony convictions becau se it is an essen tial element of the offen ses. As to the rob bery convictions, (Coun ts One and T hree) , the su prem e cou rt held in State v. Lavender and Hobbs that enhancement factor (16) is also not an essential element of the offense of robbery. No. 01-S01-9704-CR-00088, slip op. at 9. Again, we must determine its applicab ility on a case -by-case basis. Id. In rega rds to th is facto r, this Court finds th at the tria l court properly ap plied this factor as to the two robbery convictions. As discussed above , all of the elem ents of rob bery we re clearly m et. Furthermore, the proof at the sentencing hearing revealed that Mr. C ollins was eighty years old and Mrs. S utton was eigh ty-three years old . Defend ant pus hed bo th victims to the g round in an attem pt to rob them, so certainly it can be said that the risk of bod ily injury to both o f these eld erly victims w as grea t.
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As to the aggravated burglary conviction, this Court has held that enhancement factor (16) should not be applied to an aggravated burglary conviction absent extraordin ary circum stance s. State v. S mith, 891 S.W.2d 922, 930 (Tenn. Crim. App., N ashville, July 21, 199 4), perm. to appeal denied (Tenn. 199 4). However, the circumstances surrounding the aggravated burglary of Mrs. Sutton ’s home does sup port the application o f this enhance ment factor. Mrs. Sutton was an eighty-three year old w oman recupe rating in he r home from op en hea rt surgery. Defendant forced his way into her home, threw Mrs. Sutton to the ground, ransacked her home in search of money or anything else of value, a nd thre atene d to kill he r if she tried to call for help. The circumstances surrounding this horrifying event certainly support the application of this enhancement factor to the aggravated burglary conviction. This Court finds that the trial court properly applied enhancement factor (16) to all three felony convictions (Counts One, Two and Three ).
In summary, the trial court properly applied enhancement factor (1) and (16)
to all three felony convictions (Counts One, Two and Three). We find that enhancement factor (4) and (10) should only be applied to the two offenses against Mrs. Sutton (Cou nts Two a nd Three ). We further find that enhancement factor (5) does not apply to any of the felony c onvictio ns. W e agre e with th e trial co urt’s application of the mitigating factors that D efendant ha s a history of mental problems and that Defe ndant c omes from a d ysfunctional background to all three felony conviction s. See Tenn. C ode Ann . § 40-35-113 (8) and (13).
The trial court sentenced Defendant as a Range I Standard Offender for the three Class C felonies. T enn. C ode An n. §§ 39-13-401(b); 39-14-403(b). The
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sentencing range for a R ange I Stand ard O ffende r convic ted of a Class C felon y is not less than three years no r more than six years. Tenn. Code Ann. § 40-35- 112(a)(3). The presumptive sentence for a Class C fe lony shall be the minimum sentence in the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-21 0(c). Should the re be enha nceme nt and mitigating fa ctors, the court must start at the minimum sentence in the range, enhance the sentence within the range as app ropriate fo r the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35- 210(e). The trial court in the case sub judice, imposed three five-year sentences for the Class C felony con victions. As to Coun t One, w e find that tw o enhancement factors and two mitigating factors ap ply. As to C ount T wo, we find that f our enhancement factors and two mitigating factors apply. As to Count Three, we find that four enh ancem ent factors and two mitigating factors apply. The mitigating factors in this cas e do n ot weig h hea vily against the enhancement factors. The great weight attributable to the applicable enhancement factors more than justifies the five- year sentences imposed as to all three felony convictions.
II. Consecutive Sentences
The trial court ordered consecutive sentencing after making a finding that Defe ndan t is a dangerous offender whose behavior indicated little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high. Tenn. Code Ann. § 40-35-115(b)(4). We agree. The Defendant, without provocation, pushed two elderly people to the ground in an attempt to rob them. Certa inly it can be said that Defendant’s behavior demonstrated a contemptible lack
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of conce rn for hum an life and an abs ence o f basic human decen cy. Our de novo review further indicates that consecutive sentencing is necessary to protect the public from further criminal conduct by Defendant and that the terms im posed are reaso nably related to the severity of the offenses. State v. Wilkerson, 905 S.W.2d 933, 938-39 (Tenn. 1995). Although the trial court did not specifically make the additional findings required b y Wilkerson, we find that these factors are pre sent in our de novo review. See State v. Adams, 859 S.W.2d 359, 363 (Tenn. Crim. App. 1993), perm. to appeal denied (Tenn. 199 3) . Conse cutive sen tencing is approp riate in this case .
Based on all the foregoing, the judgment of the trial c ourt is a ccord ingly affirmed.
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THOMAS T. W OODALL, Judge
CONCUR:
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GARY R. WA DE, Presiding Judge
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L. T. LAFFERTY, Special Judge