         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs May 21, 2002

                 STATE OF TENNESSEE v. MELVIN L. HARPER

                  Direct Appeal from the Criminal Court for Sullivan County
                           No. S43,578    Phyllis H. Miller, Judge



                                  No. E2001-01089-CCA-R3-CD
                                       December 12, 2002

The appellant, Melvin L. Harper, was convicted by a jury in the Criminal Court of Sullivan County
of aggravated robbery, a Class B felony. The appellant was sentenced as a Range II multiple
offender to twenty years incarceration in the Tennessee Department of Correction. On appeal, the
appellant challenges: (1) the sufficiency of the evidence to support his conviction of armed robbery;
(2) the trial court’s granting of the State’s motion to amend the indictment on the day of trial; (3) the
wording of the trial court’s jury instructions regarding lesser-included offenses; and (4) the sentence
imposed by the trial court. After a careful review of the record and the parties’ briefs, we affirm the
judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODA LL and
JOHN EVERETT WILLIAMS, JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); Leslie S. Hale, Blountville, Tennessee (at
trial), for the appellant, Melvin L. Harper.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus and William B. Harper,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION
                                     I. Factual Background
                On December 18, 1999, Margie Pickens was working at the Minute Market on West
Sullivan Street in Kingsport, Tennessee. Pickens had worked for the company for twenty years and
was the manager at that particular store. At 12:45 p.m., a black male wearing white silk pants and
a black jacket with the word “FILA” on it entered the store and proceeded to walk around the
counter. There were no other customers in the store. Pickens thought the man wanted to purchase
tobacco from the rack behind the counter and asked the man if she could assist him. Instead, the man
approached Pickens at the cash register and told her to “open the drawer or I’ll kill you.” According
to Pickens, the man “had something under his jacket” pointed at her that Pickens believed to be a
gun, although she never actually saw a weapon. Pickens “froze” in fear and was unable to do as the
man ordered. When Pickens failed to cooperate, the man began punching the keys on the cash
register until the drawer opened. He then took the money out of the drawer and exited the store.
Slightly more than one hundred dollars ($100) was taken from the cash register.

                After the man left, a customer entered the store and Pickens told the customer that
she “just got robbed.” The customer then went outside to a payphone to call 911, while Pickens
phoned her husband. The store was equipped with a security camera which recorded the incident
on video tape. Pickens testified at trial that the security video was a complete and accurate
representation of the events, and the tape was admitted into evidence and played for the jury.
Pickens identified the appellant as the man who robbed the Minute Market.

               Officer Tim Horn of the Kingsport Police Department testified that on December 18,
1999, he was called to the Minute Market “on a complaint of a robbery.” When he arrived at the
store, Officer Horn observed fellow officer, Detective John Blessing, questioning the victim.
Although Officer Horn did not talk to the victim, he stated that she appeared “shaken quite a bit and
real upset.” Officer Horn testified that while at the Minute Market, he viewed the security video of
the robbery and then made a perimeter search of the area surrounding the store.

                 Approximately two hours later, Officer Horn observed a green van with a California
license plate stop, back up, and go around the block as if trying to avoid the police. Officer Horn
followed the van to an alley where the officer observed a man wearing a black and white FILA sport
outfit exit the vehicle. Officer Horn ordered the man to stop, but as he approached the man, the man
“just turned and took off running.” Officer Horn chased and eventually apprehended the suspect.
Officer Horn identified the appellant as the man he arrested that day. Officer Horn testified that no
weapon was found on the appellant or in the green van, nor did he observe the appellant throw
anything to the ground during the pursuit. The van belonged to the appellant’s sister who had
recently moved to Kingsport from California.

               Detective John Blessing of the Kingsport Police Department testified that on
December 18, 1999, he was called to the Minute Market on West Sullivan Street. When he arrived,
Detective Blessing questioned the victim and viewed the security video. According to Detective
Blessing, the victim was “upset, frightened, [and] scared.” Detective Blessing testified that when
he questioned the victim, she told him that “she believed that [the robber] had some sort of weapon
under his coat.”

                  Detective Blessing stated that he was later called to the police department to question
a suspect in the robbery. Detective Blessing identified the appellant as the man he questioned that
day. According to Detective Blessing, the appellant was very cooperative and, after signing a waiver
of his rights, the appellant made a statement which Detective Blessing recorded in writing. Detective
Blessing testified that he then read the statement back to the appellant, who signed the statement as



                                                  -2-
accurate after initialing one spelling error. The statement, which was introduced into evidence, read
as follows:
                I came down to Kingsport to visit my sister Martha Harper. I have
                been staying with her. Martha has been having a rough time trying to
                make ends meet. I had been to the Mall and I got a ride going
                towards Riverview. I started walking around. I found myself down
                next to the Minute Market. I decided to go in and rob the business.
                I walked in and proceeded to go behind the counter and I told the
                female to give me the money out of the register. I kept my hands in
                my coat as to make her believe I had a gun or something. I took the
                money out of the register and left running out of the store. I don’t
                know how much I got but I don’t think it was even a $100.00 dollars.
                I hid out going along the back streets until I made it to Riverview.
                While I was in Riverview, the police saw me and that’s when I took
                off running. While I was running, I lost the money out of my pocket.
Detective Blessing testified that the appellant told him that he did not have a weapon when he robbed
the store.

                Based upon the foregoing testimony, the jury convicted the appellant of aggravated
robbery and imposed a ten thousand dollar ($10,000) fine. The trial court initially sentenced the
appellant as a Range III persistent offender to twenty-eight years incarceration because the appellant
had “five prior Class C convictions.” However, after later discovering that one of the robbery
convictions was actually a conviction for solicitation to commit a robbery thereby reducing the
number of Class C convictions to four, the trial court entered an order setting aside the twenty-eight
year sentence and granting a new sentencing hearing. At the resentencing hearing, the trial court
found the appellant to be a Range II multiple offender and sentenced him to twenty years
incarceration. The appellant appeals his conviction and sentence, challenging (1) the sufficiency of
the evidence to support his conviction of armed robbery; (2) the trial court’s granting of the State’s
motion to amend the indictment on the day of trial; (3) the wording of the trial court’s jury
instructions regarding lesser-included offenses; and (4) the sentence imposed by the trial court.

                                            II. Analysis
A. Sufficiency of the Evidence
               The appellant first challenges the sufficiency of the evidence to support his conviction
of aggravated robbery. Specifically, the appellant asserts that “the evidence adduced at trial fails to
establish beyond a reasonable doubt that [the appellant] accomplished the robbery by use of a deadly
weapon or any article intended to make the victim reasonably believe that he was carrying a deadly
weapon.” The appellant contends that “the evidence, at most, supports a conviction for the lesser
included offense of robbery.”

               When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime


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beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value
to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier
of fact. Id. This court will not reweigh or reevaluate the evidence. State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). Because a jury conviction removes the presumption of innocence with which a
defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted
defendant has the burden of demonstrating to this court that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

                 Robbery 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) (1997). As
relevant to the crime charged in this case, aggravated robbery is robbery “[a]ccomplished with a
deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe
it to be a deadly weapon.” Tenn. Code Ann. § 39-13-402(a)(1) (1997). The appellant asserts that,
based upon the evidence, the victim could not have reasonably believed that the appellant possessed
a weapon. According to the appellant, the evidence showed only that the appellant demanded money
while placing his hand inside his jacket. In support of his argument, the appellant cites to State v.
Daryl Anthony Jemison, No. 01C01-9303-CR-00107, 1994 Tenn. Crim. App. LEXIS 199, at *6
(Nashville, Mar. 31, 1994), in which this court stated, “We have reservations about a hand in a
jacket, without more, supporting a conclusion beyond a reasonable doubt that there was a ‘display
of [an] article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon.’”

                Jemison involved an aggravated robbery in which the defendant broke into an
apartment and, with his hand inside his jacket, ordered the victim to go into the bathroom and remain
there until he was gone. Id. at **2-3. The victim testified that she believed that the defendant had
a weapon and that “he told her to be quiet or he would shoot her.” Id. at *3. Although expressing
skepticism that a hand in a jacket alone would be sufficient to convict the defendant of aggravated
robbery, this court upheld the aggravated robbery conviction, finding that “the jury was entitled to
conclude beyond a reasonable doubt that the defendant possessed a deadly weapon from the manner
in which the defendant had his hand in the jacket and his threat to shoot [the victim].” Id. at *6. The
appellant contends that the facts in Jemison are “readily distinguishable” from the facts in the present
case. The appellant states that the defendant in Jemison kept his hand in his pocket and threatened
“to shoot” the victim, but in the present case, “the appellant made no statements about a weapon
before, during, or after placing his hand in his pocket.” The State, on the other hand, contends that
the evidence in the present case “was stronger than the evidence presented in [Jemison].” We find
the two cases to be indistinguishable.

                 In Jemison, the defendant kept his hand in his jacket while threatening “to shoot” the
victim. Id. at *3. In the present case, Pickens testified that the appellant had an object under his
jacket which he pointed at Pickens while ordering her to “open the drawer or I’ll kill you.” There
is only a slight difference in the wording of the threats. While the word “shoot” obviously led the


                                                  -4-
victim in Jemison to believe that the defendant had a gun, we have no doubt that the appellant’s
threat to “kill” Pickens could have led Pickens to believe that the appellant was holding a weapon
under his jacket. As in Jemison, we conclude in the instant case that “[t]he jury was entitled to
accredit the [appellant’s] threat and to infer from it and his hand positioning that he was armed.”
Id. at *6.

                In determining the evidence necessary to establish aggravated robbery, the appellant
also asks this court to consider the aggravated robbery statutes of Arizona, Georgia, and Michigan,
which the appellant asserts are similar to that of Tennessee.1 According to the appellant, these states
“have made specific findings as to the type of evidence required to establish the offense of
aggravated robbery.” However, because our law is clear on the matter, we see no need to look to the
law of other states.

B. Amendment of the Indictment
               The appellant next contends that the trial court erred in granting the State’s motion
to amend the indictment on the day of trial.2 Prior to the amendment, the indictment charged that
on December 18, 1999, the appellant
               did unlawfully, feloniously, intentionally, knowingly, by violence and
               by the use of an article used and fashioned to lead Margie R. Pickens
               to reasonably believe it to be a deadly weapon, obtain approximately
               $100 in U.S. currency owned by Store No. 4 of Minute Markets, Inc.,
               a corporation, from the person of Margie R. Pickens, by placing the
               said Margie R. Pickens in fear, without the effective consent of the
               owner and with the intent to deprive the owner thereof, contrary to



         1
              Arizo na Revised Statute se ction 1 3-19 04(A) (2 001 ) provides that:
                     A person commits armed robbe ry if, in the course of committing robbery . . . , such
                     person or an accomplice:
                     (1) Is armed with a deadly weapon or a simulated deadly weapon; or
                     (2) Uses or threatens to use a deadly weapon or dangerous instrument or a simulated
                     deadly weapon.


             Geo rgia Code Anno tated section 1 6-8-4 1 (2002 ) provides that:
                     (a) A person comm its the offense of armed robbery when, with intent to comm it
                     theft, he or she take s property of another from the person or the immediate presence
                     of another by use of an offensive weapon, or any replica, article, or device having
                     the appearance of such weapon.

          Michigan Com piled Laws section 750.529 (200 2) defines armed robbery as robbery “with a dangerous
weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a
dangerous weapon.”

         2
            The mo tion to amend the indictment was filed on September 22, 2000, three days before trial. On September
25, 2000 , the trial court heard the motion prior to jury selection.

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                Tennessee Code Annotated, Section 39-13-402, a Class B felony, and
                . . . [a]gainst the peace and dignity of the State of Tennessee.
The State moved to amend the indictment by deleting the words “by violence and by the use” and
inserting the words “by the display.” The trial court granted the State’s motion over the appellant’s
objection that the amendment “change[d] the factual theory of the State’s proof.”

               The United States and the Tennessee Constitutions require that an indictment inform
the accused of “the nature and cause of the accusation.” U.S. Const. amend. VI; Tenn. Const. art.
I, § 9. An indictment satisfies the constitutional requirement of notice “if it provides sufficient
information (1) to enable the accused to know the accusation to which answer is required, (2) to
furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the accused
from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997); Tenn. Code Ann. § 40-13-
202 (1997).

                  Rule 7(b) of the Tennessee Rules of Criminal Procedure provides that an indictment
may be amended in all cases with the consent of the defendant. However, where a defendant objects
to an amendment, the trial court may permit the amendment only “if no additional or different
offense is charged, no substantial rights of the defendant are prejudiced, and jeopardy has not
attached.” State v. Kirkland, 696 S.W.2d 544, 545 (Tenn. Crim. App. 1985); Tenn. R. Crim. P. 7(b).
In a jury trial, jeopardy attaches when the jury is sworn. State v. Pennington, 952 S.W.2d 420, 422
(Tenn. 1997). The decision to grant or deny a motion to amend an indictment is left to the sound
discretion of the trial court, and this court will not alter that decision unless such discretion was
abused. Kirkland, 696 S.W.2d at 545.

                On appeal, the appellant argues that he is entitled to a new trial because the
amendment prejudiced his rights by absolving the State of proving the elements of “violence” and
“use.” The appellant claims that, because his “defense would have [] focused upon defending
against the allegation of ‘violence,’ and the actual use, rather than display, of such an article[,]” the
trial court should have either denied the State’s motion to amend or continued the trial in order to
provide the appellant time to prepare a proper defense based upon the amended indictment.3 The
State asserts that “a review of the [aggravated robbery] statute reveals that the amendment neither
changed the offense charged nor affected the substantial rights of the [appellant].” We agree.

               As previously noted, aggravated robbery is defined, in pertinent part, as robbery
“[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead the
victim to reasonably believe it to be a deadly weapon.” Tenn. Code Ann. § 39-13-402(a)(1). To
establish robbery, the State was required to prove beyond a reasonable doubt that the appellant
obtained the money from the person of another by violence or putting the person in fear, not both.
Tenn. Code Ann. § 39-13-401(a). Therefore, the deletion of the phrase “by violence” in the amended
indictment did not prejudice the appellant because the original indictment also alleged that the
appellant obtained the money “by placing the said Margie R. Pickens in fear.” The State was not


        3
            W e note that the ap pellant did no t reque st a continuance follow ing the amendme nt of the ind ictment.

                                                            -6-
required to prove “violence.” Furthermore, in granting the motion to amend the indictment, the trial
court noted that the evidence presented at the suppression hearing made it clear that the State was
not relying on a theory of “violence.”

               To elevate robbery to aggravated robbery, the language in the original indictment
provided that the robbery was accomplished “by the use of an article used and fashioned to lead
Margie R. Pickens to reasonably believe it to be a deadly weapon.” The amended language alleged
that the robbery was accomplished “by the display” of such an article. The State contends that the
“amendment merely conformed the language of the indictment to the language of the statute.” We
agree. Regardless, the original indictment referenced the statute defining the offense of aggravated
robbery and, therefore, was sufficient to place the appellant on notice of the charged offense. State
v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000) (noting that “recent decisions of this Court hold[]
that an indictment which references the statute defining the offense is sufficient and satisfies the
constitutional and statutory requirements of Hill”). We conclude that the appellant was not
prejudiced by the amendment of the indictment. This issue is without merit.

C. Jury Instructions
                 Next, the appellant challenges the wording of the trial court’s jury instructions
regarding lesser-included offenses. Specifically, the appellant argues that, in instructing the jury, the
trial court did not specify that the offenses of robbery and theft under five hundred dollars ($500)
were “lesser-included offenses” of aggravated robbery. The State contends that the trial court
properly instructed the jury.

                In Tennessee, “a defendant has a right to a correct and complete charge of the law,
so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions.”
State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). We review a jury charge to determine whether
it fairly submitted the legal issues involved and did not mislead the jury. State v. Hodges, 944
S.W.2d 346, 352 (Tenn. 1997).

                 In charging the jury, the trial court informed the jury that “[i]n Count I of this case
you are charging three charges against the defendant, Aggravated Robbery, Robbery, Theft Under
Five Hundred Dollars ($500.00). You cannot find the defendant guilty of more than one offense.
You may, however, find the defendant not guilty of all offenses.” Thereafter, the trial court
instructed the jury as to the elements of the indicted offense and each lesser-included offense.
Following the instruction on each offense, the trial court further instructed the jury, “If, however, you
have a reasonable doubt as to the defendant’s guilt of [insert offense] then your verdict must be not
guilty as to [that offense] and you shall proceed to determine whether the defendant is guilty or not
guilty of [next offense].” During deliberations, the jury submitted the following question to the trial
court, “What is the minimum and maximum prison time sentences for (1) Aggravated Robbery, (2)
Robbery.” The trial court responded, “The Court cannot instruct you as to any possible sentence for
an offense. Such information is not relevant to the determination of guilt or innocence.”




                                                  -7-
                The appellant contends that, pursuant to Tennessee Pattern Jury Instruction 41.01, the
following jury instruction should be given when the offense charged contains more than one lesser-
included offense:
                If you have a reasonable doubt as to the defendant’s guilt of [insert
                offense charged] as charged in [count __ of] the indictment, then your
                verdict must be not guilty as to this offense, and then you shall
                proceed to determine [his][her] guilt or innocence of the lesser
                included offense of [insert next lesser included offense in order].
(footnote omitted) (emphasis added). However, contrary to the appellant’s argument, pattern jury
instructions are “merely patterns or suggestions” and, as such, trial courts are not required to recite
their language. Hodges, 944 S.W.2d at 354.

                 The State asserts that the trial court properly instructed the jury, citing State v.
Deandrade Phillips, No. E2000-00153-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 190,
(Knoxville, Mar. 15, 2001), in which this court upheld similar, if not identical, jury instructions. In
Phillips, this court concluded that “the trial court’s instructions were clear, accurate, and complete
and [we] do not believe that the jury was confused by the included offenses not being described as
lesser included.” Id. at *20. Although the appellant acknowledges our holding in Phillips, he claims
that the present case is distinguishable in that the instructions in the present case clearly confused
the jury, as evidenced by the jury’s question to the trial court. We disagree.

                We do not find the jury instructions confusing or misleading. First, the trial court
instructed the jury on all three offenses and further instructed that it could convict the appellant of
only one offense or it could acquit the appellant of all offenses. Second, the trial court instructed the
jury as to the elements of each offense and clearly instructed that if there was reasonable doubt as
to one offense, the jury was required to find the appellant not guilty as to that offense and move on
to the next offense. Finally, in response to the jury’s question, the trial court informed the jury that
the potential sentences were irrelevant in determining guilt or innocence. We conclude that the trial
court did not err in instructing the jury.

D. Sentencing
                 Finally, the appellant argues that the sentence imposed by the trial court was
excessive. Specifically, the appellant contends that he should not have been sentenced to twenty
years incarceration, the maximum sentence for a Range II offender convicted of a Class B felony.
At the initial sentencing hearing, the evidence presented consisted of the presentence report, a copy
of the appellant’s prior convictions, and a copy of the statement the appellant made to Detective
Blessing. At the resentencing hearing, the parties presented argument, but otherwise relied upon the
evidence presented at the initial hearing. Based on this information, the trial court applied three
enhancement factors to which it afforded great weight, i.e., that the appellant had a prior history of
criminal behavior, that the appellant had an unwillingness to comply with sentences involving
release into the community, and that the appellant committed the instant offense while on parole.
Tenn. Code Ann. § 40-35-114(1), (8), and (13) (Supp. 2001). As a mitigating factor, the trial court
considered the appellant’s voluntary confession of guilt. Tenn. Code Ann. § 40-35-113(13) (1997).


                                                  -8-
However, the trial court did not afford this factor enough weight to reduce the appellant’s sentence
because the appellant testified during an offer of proof at trial that Detective Blessing, who recorded
the statement in writing, “made up” part of the statement.

                 When an appellant challenges the length, range, or manner of service of a sentence,
it is the duty of this court to conduct a de novo review with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). However, this
presumption of correctness is “conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991). The burden is on the appellant to show that the sentence is
improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

                  In conducting our review, this court must consider (1) the evidence, if any, received
at trial and at the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and
the arguments of counsel relative to the sentencing alternatives; (4) the nature and characteristics of
the offenses; (5) any mitigating or enhancements factors; (6) any statements made by the appellant
on his own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann.
§ 40-35-102 and -103 (1997), -210 (Supp. 2002); see also Ashby, 823 S.W.2d at 168.

                 The presumptive sentence for a Class B felony is the minimum within the applicable
range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If the trial
court finds that such factors do exist, the court must start at the presumptive sentence, enhance the
sentence within the range as appropriate 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). There
is no mathematical formula for valuating factors to calculate the appropriate sentence. State v.
Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). “Rather, the weight to be afforded an
existing factor is left to the trial court’s discretion so long as the court complies with the purposes
and principles of the 1989 Sentencing Act and its findings are adequately supported by the record.”
Id. at 475-76.

                 In challenging the length of his sentence, the appellant first asserts that the trial court
erred in applying enhancement factor (13), i.e., that the felony was committed while the appellant
was on parole. Tenn. Code Ann. § 40-35-114(13). The appellant argues that, in applying this factor,
the trial court relied only on the presentence report, “[no] fugitive warrant nor any other record
substantiating this allegation was introduced [at sentencing].” Contrary to the appellant’s argument,
the trial court is required to consider the presentence report in sentencing a defendant. Tenn. Code
Ann. § 40-35-210(b)(2). Moreover, the appellant had the right to challenge the information
contained in the presentence report at either of the two sentencing hearings by presenting evidence
to the contrary, but the appellant presented no such evidence. Tenn. Code Ann. § 40-35-209(b)
(Supp. 2002). Instead, at the initial sentencing hearing, the appellant through counsel merely
objected to the trial court’s application of enhancement factor (13), arguing that “[t]here’s no real
proof before the Court of what his status is. . . . They could have discharged him. He could have
earned enough sentencing credits somehow. We don’t know Illinois law.” Rather than speculate,


                                                    -9-
the appellant should have produced evidence demonstrating that he had served his sentence for the
prior conviction and, therefore, was not on parole at the time of his arrest in the instant case. See
State v. Johnny Benard Jones, No. 02C01-9801-CC-00026, 1998 Tenn. Crim. App. LEXIS 1292
(Jackson, Dec. 21, 1998). We find the trial court did not err in considering the only evidence before
it regarding enhancement factor (13).

                The appellant also contends that, if this court finds that the trial court erred in
applying enhancement factor (13), the presence of only two enhancement factors, (1) and (8), is not
sufficient to sentence the appellant to the maximum sentence. Because we have determined that the
trial court properly enhanced the appellant’s sentence in respect to factor (13), this argument is moot.

                  Next, the appellant asserts that “his cooperation was substantial in voluntarily
admitting to his involvement in the crime, which provided great assistance to the authorities.” The
appellant claims that, based on his voluntary confession, he is “entitled to a downward departure
from his sentence.” We disagree. As previously noted, “the weight to be afforded an existing factor
is left to the trial court’s discretion so long as the court complies with the purposes and principles
of the 1989 Sentencing Act and its findings are adequately supported by the record.” Boggs, 932
S.W.2d at 475-76. The trial court determined that it would not afford the appellant’s voluntary
confession enough weight to reduce his sentence because the appellant alleged that Detective
Blessing “made up” the part of the confession which stated that the appellant “kept [his] hands in
[his] coat as to make her believe [he] had a gun or something.” Additionally, the trial court noted
that the appellant had little to lose by confessing because the entire crime had been recorded by the
store’s security video camera. We find that the trial court properly exercised its discretion in
affording the mitigating factor little or no weight.

                Finally, the appellant argues that the trial court should have considered statutory
mitigating factor (1) in determining the appropriate sentence, i.e., that the appellant’s conduct neither
caused nor threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1). According to the
appellant, “[s]ince the proof was insubstantial that [the] appellant possessed a weapon, the verbal
threats alone should not constitute a threat of serious bodily injury.” However, the appellant cites
no authority in support of this argument. Even assuming that the trial court should have considered
this mitigating factor, the trial court was within its discretion in affording great weight to the
appellant’s criminal history, the appellant’s unwillingness to comply with sentences involving
release into the community, and the fact that the appellant committed the instant offense while on
parole. Boggs, 932 S.W.2d at 475-76. Thus, we cannot conclude that the trial court improperly
sentenced the appellant.

                                        III. Conclusion
                Based upon the foregoing, we affirm the judgment of the trial court.



                                                         ___________________________________


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       NORMA McGEE OGLE, JUDGE




-11-
