         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 2, 2001

             STATE OF TENNESSEE v. ANTHONY LEON MOORE

                      Appeal from the Circuit Court for Madison County
                           No. 00-134     Donald H. Allen, Judge



                   No. W2000-02862-CCA-R3-CD - Filed February 11, 2002


A Madison County Circuit Court jury convicted the defendant, Anthony Leon Moore, of aggravated
robbery, a Class B felony, and aggravated burglary, a Class C felony. The trial court sentenced him
as a Range II, multiple offender to consecutive sentences of fifteen years in the Tennessee
Department of Correction for the aggravated robbery conviction and ten years for the aggravated
burglary conviction. The defendant appeals, claiming that (1) the evidence is insufficient to support
his aggravated robbery conviction; (2) the trial court improperly enhanced his sentence for
aggravated burglary; and (3) the trial court improperly found him to be a dangerous offender and
ordered consecutive sentencing. We affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT
W. WEDEMEYER , J., joined.

C. Michael Robbins, Memphis, Tennessee; George Morton Googe, District Public Defender; and
Vanessa D. King, Assistant Public Defender, for the appellant, Anthony Leon Moore.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
James G. Woodall, District Attorney General; and Shaun Alan Brown, Assistant District Attorney
General for the appellee, State of Tennessee.

                                             OPINION

        This case relates to the robbery of Larry Felts. The victim testified that he was an art broker
and that on November 4, 1999, he was in Madison County on a business trip. He said that he was
staying in a first-floor room at the Comfort Inn in Jackson and that about 9:30 p.m., he was talking
on the telephone to a client. He said that he was smoking a cigarette and that he opened the room’s
sliding glass door to let in fresh air. He said that suddenly, the glass door slammed open. He said
that the defendant ran into his room and put a black handgun, with clear tape on its handle, to his
head.
         The victim testified that he put the telephone down and told the defendant to take his money
and leave. He said that the defendant told him repeatedly that the defendant was going to kill him.
He said that the defendant picked up the telephone and that the client, who was still on the line, told
the defendant that the client was going to call the police. He said that the defendant told the client,
“I don’t give a damn. I don’t care if you call the f***ing police because this is -- I’m going to kill
this mother f***er.” He said that the defendant stayed on the telephone with the client for about ten
minutes. He said that one time, the defendant dropped the gun and then challenged the victim to try
to get it. He said that otherwise, the defendant kept the gun pointed at the victim’s head during the
robbery.

        The victim testified that after the defendant hung up the telephone, the defendant went
through the victim’s wallet, briefcase, and suitcase. He said that the defendant took one hundred
twenty dollars, a pack of cigarettes, and a red cigarette lighter. He said that the defendant used the
telephone to call someone to come and get the defendant. He said that the defendant smoked a
couple of cigarettes and that the defendant stayed in his hotel room for thirty to forty-five minutes.
The victim said that he was not physically injured but that the defendant kissed him on his right
cheek before the defendant left the room. He said that as soon as the defendant left the room, he shut
the sliding glass door, locked it, and called the police.

        The victim testified that the defendant was wearing a Dallas Cowboys jacket and a stocking
over his hair. He said that he could see the defendant’s face clearly. He said that the day after the
robbery, Investigator Jeff Austin showed him a photograph array and that he identified the robber’s
picture.

         Terri Wallace testified that she knew the defendant and that he used to stay at her house
occasionally. She acknowledged that about November 5, 1999, Investigators Austin and Golden
came to her home and asked if they could search it. Ms. Wallace gave them permission to search,
and the investigators took a Dallas Cowboys jacket that belonged to the defendant and a pellet gun
from the house. At the time of the search, the defendant was not at Ms. Wallace’s house, and she
had not seen him for a couple of days. She said that her child had found the pellet gun outside and
that it did not belong to anyone.

        Investigator Jeff Austin of the Jackson Police Department testified that at 11:10 p.m. on
November 4, 1999, he got a telephone call at his home. He said that in response to the call, he went
to the Comfort Inn and that other officers were already present. He said that he took the victim to
the police department and that the victim gave a formal statement. He said that after the victim gave
a statement, he gave the victim a chance to calm down and took the victim back to the Comfort Inn.
He said that the victim got a different room and spent the night at the hotel. He said that when he
returned to work the next morning, Crime Stoppers had gotten a tip that the defendant robbed the
victim. He said that based on the tip, he put together a photograph array, took the array to the
Comfort Inn, and showed the array to the victim. He said that the victim identified the defendant
as the robber.



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        Investigator Austin testified that he got a warrant to arrest the defendant. He said that while
he was obtaining the warrant, Crime Stoppers got another tip that the defendant could be found at
Terri Wallace’s house. He said he and Investigator Rodney Golden went to Ms. Wallace’s residence
and asked her if they could search her home for any clothing or weapons that the defendant used in
the robbery. He said that Ms. Wallace gave them permission to search and that they found a Dallas
Cowboys jacket with a red lighter in one of the pockets. He said that they also found a Marksman
BB gun upstairs in a chest of drawers. He said that the lighter and the gun were tested for
fingerprints but that no usable prints were obtained. He said that the victim’s hotel room was also
tested for fingerprints but that no usable prints were found on the room’s telephone or sliding glass
door.

         The prosecution showed Investigator Austin an evidence bag containing a Marksman BB
gun, and he identified it as the gun that was found in Ms. Wallace’s residence. When the prosecution
asked Investigator Austin if the gun was secured in order that it could not be fired, he answered that
it did not have a trigger housing in it. On cross-examination, Investigator Austin testified that when
he and Investigator Golden found the gun, the gun’s top slide would fall off and that the gun had
clear tape on its slide and body.

        Sergeant Jim Collum of the Jackson Police Department testified that on November 7, 1999,
the police department received information that the defendant was at an apartment complex. He said
that he went to the complex and found the defendant hiding in some shrubbery. He said that he
arrested the defendant and escorted him to a police car. He said that without being asked any
questions, the defendant stated, “I didn’t do all these by myself” and “How many have ya’ll charged
me with?”

        The defendant testified that about 9:00 or 9:30 p.m. on November 4, 1999, he was buying
a pack of cigarettes at a store. He said that when he left the store, the victim confronted him and
asked him about restaurants or nightclubs where the victim could get a drink. He said that he offered
to show the victim some nightclubs and that the two of them walked in the direction of the clubs.
He said that he asked the victim if the victim wanted to smoke marijuana and that the victim said
yes. He said that he and the victim smoked a marijuana cigarette and then went back to the victim’s
hotel room to have a drink. He said that they drank whiskey and smoked another marijuana
cigarette. The defendant testified that he left the hotel to buy a can of beer at a nearby gas station.

        The defendant testified that when he returned to the victim’s hotel room, the sliding glass
door was open and that he walked into the room. He said that the victim was on the telephone. He
said that the victim hung up the telephone and asked the defendant if the defendant could get more
marijuana. The defendant said that he told the victim that he could get more marijuana for eighty
dollars. He said that the victim gave him the money and that he left the victim’s room. He said that
he kept the eighty dollars and did not get the drugs for the victim.

        The defendant denied having a gun on November 4, taking the victim’s red lighter, or making
any statements to Sergeant Collum. He acknowledged that the Dallas Cowboys jacket that the police
found at Ms. Wallace’s home belonged to him. On cross-examination, he said that he owned the red

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lighter. The defendant said that after Sergeant Collum arrested him, Sergeant Collum read him his
rights and that he elected to remain silent and did not say anything to Sergeant Collum. He said that
Sergeant Collum and the victim were lying. He said that the victim was mad at him for taking the
victim’s money. He acknowledged being convicted in 1993 for theft of property valued over one
thousand dollars.

        The victim was called as a rebuttal witness and testified that he had never seen the defendant
before the robbery. He denied going to clubs with the defendant or having a drink with him. He said
that the defendant took one hundred twenty dollars, a pack of cigarettes, and a red lighter from him.

       Sergeant Collum was called as a rebuttal witness and testified that he never Mirandized the
defendant. He said that investigators, not patrol officers, Mirandized suspects.

       The jury found the defendant guilty of aggravated robbery and aggravated burglary. It
assessed fines of fifteen thousand dollars and five thousand dollars respectively.

                            I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends that the evidence is insufficient to support his conviction for
aggravated robbery. He contends that because the indictment only alleged that he robbed the victim
with a deadly weapon and the gun used in the robbery was an inoperable pellet or BB gun, he cannot
be guilty of that offense. Alternatively, the defendant contends that there is no evidence that he
displayed the gun in a manner to lead the victim reasonably to believe that it was a deadly weapon.
The defendant contends that the evidence only supports a conviction for robbery. The state contends
that the evidence is sufficient. We agree with the state.

        Our standard of review when the defendant questions the sufficiency of the evidence on
appeal 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 beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997).

       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). A robbery is
aggravated if it is “[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).




                                                 -4-
        Taken in the light most favorable to the state, we believe that the evidence is sufficient to
support the defendant’s conviction for aggravated robbery. The victim testified that the defendant
stormed into his hotel room and put a handgun to the victim’s head. The defendant repeatedly told
the victim that he was going to kill the victim. The victim testified that he was terrified and that he
did not know what kind of gun the defendant held on him, just that it was a gun to his head. We
believe that this evidence is sufficient to show, at least, that the defendant displayed the gun to lead
the victim reasonably to believe it to be a deadly weapon.

                                         II. SENTENCING

       The defendant contends that the trial court improperly enhanced his aggravated burglary
sentence and improperly ordered consecutive sentencing by finding him to be a dangerous offender.
The state contends that the trial court properly sentenced the defendant. We believe that the
defendant’s sentence was proper.

        At the sentencing hearing, the victim testified that he relived the robbery every day. He said
that the defendant took away his feeling of personal freedom. He said that the crime caused him to
purchase guns to protect himself and his family and that he was unable to work for two weeks after
the robbery. He said that the robbery made him unable to trust people and that the defendant should
be incarcerated for as long as possible.

       The defendant testified that he was thirty years old. He said that he was innocent and
accused the prosecutor of conspiring with the Jackson Police Department to convict him wrongfully.
He asked the trial court to set aside his convictions because the Jackson police officers lied in their
testimony and produced false evidence against him. The defendant said that his family had been
supportive and that he would live with his mother if he were released from custody. On cross-
examination, the defendant acknowledged having a 1993 felony conviction for theft of property
valued over one thousand dollars and a 1991 felony conviction for robbery.

        The defendant’s presentence report states that the defendant has a long history of alcohol and
drug abuse and that he has never completed any substance abuse programs. The defendant dropped
out of high school but obtained his GED. He has never been married, has no children, and has never
obtained permanent, full-time employment. The report reflects that in addition to the defendant’s
two prior felony convictions, he also has misdemeanor convictions for driving without a license,
possession of alcohol by a person under the age of twenty-one, and public intoxication. The
presentence report also reflects that in 1993, while the defendant was on probation for the 1991
robbery conviction, he committed theft of property valued over one thousand dollars. Moreover,
while the defendant was on parole for the 1993 theft of property conviction, he absconded, and his
parole was revoked. The defendant was returned to prison and was released from incarceration about
three and one-half months before committing the offenses in question.

        The trial court held that the defendant’s two prior felony convictions justified sentencing him
as a Range II, multiple offender and ordered that the defendant serve fifteen years for the aggravated
robbery conviction and ten years for the aggravated burglary conviction. The trial court applied

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enhancement factors (1) and (8), that the defendant has a previous history of criminal convictions
or behavior in addition to those necessary to establish the range and that the defendant has a previous
history of unwillingness to comply with the conditions of a sentence involving release in the
community, to both offenses. Tenn. Code Ann. § 40-35-114(1), (8). For the aggravated burglary
conviction, the trial court also applied enhancement factors (10) and (16), that the defendant had no
hesitation about committing a crime when the risk to human life was high and that the crime was
committed under circumstances in which the potential for bodily injury to the victim was great.
Tenn. Code Ann. § 40-35-114(10), (16). The trial court ordered that the defendant’s sentences run
consecutively, finding the defendant to be a dangerous offender whose behavior indicates little or
no regard for human life and who has no hesitation about committing a crime when the risk to
human life is high. Tenn. Code Ann. § 40-35-115(b)(4). Finally, the trial court imposed fines
totaling twenty thousand dollars and ordered that the defendant pay one hundred twenty-four dollars
in restitution to the victim.

         When a defendant appeals the length, range, or manner of service of a sentence imposed by
the trial court, this court conducts a de novo review of the record with a presumption that the trial
court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The 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 of showing that the sentence is improper is upon the appealing party.
Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. However, if the record
shows that the trial court failed to consider the sentencing principles and all relevant facts and
circumstances, then review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169. In
conducting a de novo review, we must consider (1) the evidence, if any, received at the trial and
sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct, (5) any mitigating
or statutory enhancement factors, (6) any statement that the defendant made on his own behalf, and
(7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see
Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

                        A. Enhancement of Aggravated Burglary Sentence

       The defendant contends that the trial court improperly enhanced his sentence for aggravated
burglary by finding that the defendant had no hesitation about committing a crime when the risk to
human life was high. See Tenn. Code Ann. § 40-35-114(10). The state contends that the trial court
properly enhanced the defendant’s sentence because he robbed the victim with a pellet or BB gun,
which is a deadly weapon, and because the defendant entered the hotel room without caring who
occupied it. We believe that the defendant’s ten-year sentence for aggravated burglary was justified.

        The defendant was sentenced as a Range II, multiple offender for which the applicable range
for a Class C felony is six to ten years. Tenn. Code Ann. § 40-35-112(b)(3). The presumptive
sentence for a Class C felony is the minimum in the range when there are no enhancement or
mitigating factors present. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to
increase the sentence within the range based upon the existence of enhancement factors and then

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reduce the sentence as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d), (e).
The weight to be afforded an existing factor is left to the trial court’s discretion so long as it
complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately
supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; Ashby,
823 S.W.2d at 169.

        The trial court started at the minimum sentence of six years but increased the sentence to ten
years after finding that four enhancement factors applied to the defendant’s aggravated burglary
conviction. The defendant contests the application of enhancement factor (10), that the defendant
had no hesitation about committing a crime when the risk to human life was high. Tenn. Code Ann.
§ 40-35-114(10). Although the trial court applied factor (10) because it found that the defendant
was armed with a deadly weapon and forced his way into the hotel room, the defendant contends that
his use of an inoperable gun resulted in no risk to human life.

        Initially, we note that the standard of proof required for finding a factual basis for sentencing
within a range is the preponderance of the evidence standard. See State v. Carter, 908 S.W.2d 410,
413 (Tenn. Crim. App. 1995). For our review, though, we cannot reject such a finding unless the
evidence preponderates against the finding. In this respect, we believe that the evidence does not
preponderate against the trial court’s finding that the defendant used a deadly weapon to rob the
victim. Although Investigator Austin testified that the gun was inoperable when he found it at Ms.
Wallace’s house, it is not clear what the condition of the gun was at the time of the robbery. In
addition, while Investigator Austin testified that the gun found at Ms. Wallace’s home was a BB gun,
Ms. Wallace testified that it was a pellet gun, and this court has determined that a pellet gun is a
deadly weapon. See State v. Anthony Bowen, No. 1107, Knox County (Tenn. Crim. App. July 13,
1987). Thus, based on the trial court’s finding that the defendant used a deadly weapon to rob the
victim, the trial court properly applied enhancement factor (10) and found the defendant to be a
dangerous offender for sentencing enhancement purposes.

       Moreover, even if the trial court erred by applying enhancement factor (10), that fact would
have no affect on the defendant’s sentence because our de novo review reveals that the application
of enhancement factors (1), (8), and (16) justified the trial court’s increasing the defendant’s sentence
from six to ten years. The defendant has failed to show that the sentence was improper.

                                     B. Consecutive Sentencing

        Next, the defendant contends that the trial court improperly found him to be a dangerous
offender and improperly ordered that he serve his sentences consecutively. Specifically, the
defendant contends that the evidence does not support the trial court’s finding that he meets the
statutory definition of a dangerous offender. See Tenn. Code Ann. § 40-35-115(b)(4). In addition,
the defendant contends that the trial court ordered consecutive sentencing without making the
appropriate findings on the record.

       Consecutive sentencing is guided by Tenn. Code Ann. § 40-35-115(b), which states in
pertinent part:

                                                  -7-
                The court may order sentences to run consecutively if the court finds
                by a preponderance of the evidence that:

                ....

                (2) The defendant is an offender whose record of criminal activity is
                extensive; [or]

                ....

                (4) The defendant is a dangerous offender whose behavior indicates
                little or no regard for human life, and no hesitation about committing
                a crime in which the risk to human life is high . . . .

For dangerous offenders, though, “consecutive sentences cannot be imposed unless the terms
reasonably relate to the severity of the offenses committed and are necessary in order to protect the
public from further serious criminal conduct by the defendant.” State v. Wilkerson, 905 S.W.2d 933,
938 (Tenn. 1995); see State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). Rule 32(c)(1), Tenn. R. Crim.
P., requires that the trial court “specifically recite the reasons” behind its imposition of a consecutive
sentence.

         In sentencing the defendant, the trial court held that the defendant used a deadly weapon to
rob the victim. In addition, the trial court imposed consecutive sentences because it found that the
defendant was a dangerous offender under Tenn. Code Ann. § 40-35-115(b)(4). The trial court
stated on the record that it based its finding on the defendant forcing his way into the victim’s hotel
room, repeatedly threatening to kill the victim with a gun, staying in the victim’s hotel room for
thirty to forty-five minutes, and committing these crimes within three and one-half months of being
released from incarceration for another felony conviction. The trial court stated that the defendant’s
crimes were very severe and that confinement of the defendant for an extended period of time was
necessary to protect society.

         As previously discussed, we cannot say that the evidence preponderates against the trial
court’s finding that the defendant used a deadly weapon to rob the victim. Therefore, we do not
agree with the defendant’s contention that he used an inoperable pellet or BB gun. The record
supports the trial court’s ruling that the defendant’s behavior indicated little or no regard for human
life and that the defendant had no hesitation about committing a crime in which the risk to human
life is high. Furthermore, we believe that ample evidence exists to support the trial court’s ruling
that consecutive sentencing reasonably relates to the severity of the offenses. The defendant stormed
into the victim’s hotel room with a gun, repeatedly threatened to kill the victim, and remained in the
victim’s room for thirty minutes. We also believe that the record reflects that consecutive sentences
are necessary to protect the public from further criminal conduct at the hands of the defendant. The
defendant's criminal record, which includes robbery and the present offenses, exposes the
defendant’s inability to conform his behavior to the law. The defendant had been out of prison for
only three and one-half months when he committed the present offenses; the presentence report

                                                   -8-
reveals that he committed the 1993 theft of property offense while he was on probation for the 1991
robbery conviction; and the defendant absconded while on parole for the 1993 theft of property
conviction.

         Moreover, even assuming arguendo that the trial court erred by finding that the defendant
was a dangerous offender under Tenn. Code Ann. § 40-35-115(b)(4), after our de novo review, we
believe that the defendant’s extensive record of criminal activity also justifies consecutive sentencing
under Tenn. Code Ann. § 40-35-115(b)(2). At the time of sentencing, the defendant was thirty years
old and had been convicted of four felonies and three misdemeanors. He has displayed few signs
of rehabilitation or improvement over his criminal history, and his behavior has progressed to more
daring and more violent offenses. We note that nothing in the 1989 Sentencing Act prohibits
consideration of prior criminal convictions and conduct for both enhancement and consecutive
sentencing purposes as long as those sentences comply with the purposes and principles of the 1989
Act. State v. Davis, 825 S.W.2d 109 (Tenn. Crim. App. 1991). Under the circumstances, we believe
that the defendant also qualified for consecutive sentences because of his extensive history of
criminal conduct.

       Based upon the foregoing and the record as a whole, we affirm the judgments of conviction.


                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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