             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE                   FILED
                           NOVEMBER 1998 SESSION
                                                                    February 5, 1999

                                                                   Cecil W. Crowson
                                                                  Appellate Court Clerk

STATE OF TENNESSEE,            )
                               )   C.C.A. No. 01C01-9710-CC-00480
      Appellee,                )
                               )   Montgomery County
                               )
v.                             )   Honorable Robert W. Wedemeyer, Judge
                               )
                               )   (Aggravated Robbery and
CRAIG MICAH LEAK,              )    Aggravated Kidnapping)
                               )
      Appellant.               )



FOR THE APPELLANT:                    FOR THE APPELLEE:

Gregory D. Smith                      John Knox Walkup
One Public Square, Suite 321          Attorney General & Reporter
Clarksville, TN 37040
(On Appeal)                           Douglas D. Himes
                                      Assistant Attorney General
Charles L. Johnson, II                425 Fifth Avenue North
508 Franklin Street                   Nashville, TN 37243-0493
Clarksville, TN 37040
(At Trial)                            John W. Carney, Jr.
                                      District Attorney General

                                      Steven Garrett
                                      Assistant District Attorney General
                                      204 Franklin Street, Suite 200
                                      Clarksville, TN 37040-3420




OPINION FILED: _____________________________


AFFIRMED IN PART, VACATED IN PART, REMANDED


L. T. LAFFERTY, SENIOR JUDGE
                                      OPINION

       The appellant, Craig Micah Leak, was convicted of two counts of aggravated

robbery and one count of aggravated kidnapping. The trial court imposed consecutive

twelve-year sentences on each count, with a release eligibility of thirty percent. The

appellant challenges these sentences, arguing that (1) the trial court misapplied certain

enhancement factors and his sentences are, therefore, excessive; and (2) the order of

consecutive service was not warranted. We affirm in part, vacate in part, and remand to

the trial court for further proceedings consistent with this opinion.



       This case involves two victims and two separate incidents. Under count one, the

appellant was convicted of the aggravated robbery of Regina Gray. The evidence at trial

revealed that, on the evening of July 10, 1995, Gray left a baseball game and returned to

her vehicle, which was parked in a bank parking lot. Immediately after Gray got in her car,

the appellant, brandishing a pistol, approached and ordered her to exit the vehicle. The

appellant then forced Gray into some weeds behind her vehicle and demanded money.

She gave him all that she had, approximately one dollar and seventy-five cents. Gray was

not seriously harmed.



       On counts two and three, respectively, the appellant was convicted of the

aggravated robbery and aggravated kidnapping of Kimberly Messina. On August 28, 1995,

Messina exited Interstate 24 at an off-ramp near Clarksville, Tennessee. When she

stopped her vehicle at the end of the off-ramp, the appellant opened her passenger-side

door and entered the vehicle. He was armed with a handgun. He first ordered Messina

out of the car, then changed his mind and ordered her to drive. While she drove, the

appellant rummaged through her purse and took eight dollars, a watch, and a bracelet. He

repeatedly threatened Messina, and, when she began to cry, he struck her in the head with

his pistol. Messina cried harder, and the appellant struck her again and told her to “shut

the f--- up.” A few minutes later, he hit her a third time. Messina told the appellant that

she was going to be sick, and he directed her to stop but not to get out of the car. Once

stopped, however, Messina opened her door and rolled out of the vehicle. She then ran

                                             -2-
to a nearby service station for help. Before fleeing, the appellant wrote “I’ll find you” on the

windshield of Messina’s vehicle with her lipstick.



       The appellant was sentenced as a Range I offender to twelve years’ incarceration

for each of the three offenses, with all sentences to run consecutively. His effective

sentence is, therefore, thirty-six years. Aggravated robbery and aggravated kidnapping are

both Class B felonies, see Tenn. Code Ann. §§ 39-13-304(b)(1), 39-13-402(b), and carry

a Range I sentence of eight to twelve years, see Tenn. Code Ann. § 40-35-112(2). The

presumptive sentence for a Class B felony is the minimum sentence in the range, absent

enhancement or mitigating factors. See Tenn. Code Ann. § 40-35-210(c).



       At the appellant’s sentencing hearing, the trial court found two enhancement factors

applicable to all counts: the appellant has a history of criminal convictions or criminal

behavior in addition to those necessary to establish the appropriate range and the

appellant has a history of unwillingness to comply with the conditions of a sentence

involving release in the community. See Tenn. Code Ann. § 40-35-114(1), (8). In addition,

the trial court found that the appellant treated Messina with exceptional cruelty and applied

that enhancement to counts two and three. See Tenn. Code Ann. § 40-35-114(5). The

trial court found no mitigating factors, and the appellant suggests none here. Finally, the

trial court found that the appellant has an extensive record of criminal activity and that he

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. See Tenn.

Code Ann. § 40-35-115(2), (4). Based on these findings, the trial court enhanced the

appellant’s sentences on each count to the Range I maximum of twelve years and ordered

all sentences to run consecutively. On this appeal, the appellant argues that these

sentences are excessive and that consecutive sentencing was not warranted.



       When an accused challenges the length or manner of service of a sentence, it is the

duty of this Court to conduct a de novo review on the record “with a presumption that the

determinations made by the court from which the appeal is taken are correct.” Tenn. Code



                                              -3-
Ann. § 40-35-401(d). This presumption “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).



       In conducting a de novo review of a sentence, this Court must consider (1) the

evidence, if any, received at the trial and the 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 involved; (5) any statutory mitigating or

enhancement factors; (6) any statement made by the accused in his own behalf; and (7)

the potential or lack or potential for rehabilitation or treatment. See Tenn. Code Ann. §§

40-35-102, -103, -210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The

appellant carries the burden of showing that his sentence is improper. See Tenn. Code

Ann. § 40-35-401(d) Sentencing Commission Comments; State v. Jernigan, 929 S.W.2d

391, 395 (Tenn. Crim. App. 1996).



                               SENTENCE ENHANCEMENT



       The appellant does not challenge the applicability of enhancement factors (1) or (8).

Instead, the appellant begins by vigorously arguing that enhancement factors (9) and (10)1

should not have applied. We agree; but then, so did the trial judge. Contrary to the

assertions of counsel, the trial court did not enhance the appellant’s sentence pursuant to

either factor (9) or (10). To the contrary, the trial judge specifically stated, “[i]t would be

error for me to consider them as enhancing factors.”



       Of the enhancement factors actually applied, the appellant challenges only the trial

court’s finding that the appellant treated the victim with exceptional cruelty. He argues that

that factor should not apply because (1) the evidence does not support that he in fact



       1
        See Tenn. Code Ann. § 40-35-114(9) (“The defendant possessed a firearm,
explosive device or other deadly weapon during the commission of the offense.”); Tenn.
Code Ann. § 40-35-114(10) (“The defendant had no hesitation about committing a crime
when the risk to human life was high.”).

                                              -4-
treated Messina with exceptional cruelty, and (2) “even if he did, said act would ‘terrorize

the victim,’ which is an element of the offense” of aggravated kidnapping.



       When reviewing the application of this enhancement factor, we began our analysis

with the “trial court should state what actions of the defendant, apart from the elements of

the offense, constituted ‘exceptional cruelty.’” State v. Poole, 945 S.W.2d 93, 98 (Tenn.

1997) (quoting State v. Goodwin, 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995)). In the

present case, the trial court found that the victim, Ms. Messina, was basically terrorized by

the appellant for thirty to forty-five minutes. For this factor to be appropriate, the record

must reflect cruelty “over and above” that inherently attendant to the crime of which the

defendant is convicted. State v. Embry, 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995),

per. app. denied (Tenn. 1996). This enhancement factor may be applicable in convictions

for aggravated robbery and aggravated kidnapping. Poole, 945 S.W.2d at 98-99 (holding

this factor applicable to especially aggravated robbery where elderly woman was beaten

unconscious with baseball bat); State v. Kern, 909 S.W.2d 5, 7 (Tenn. Crim. App. 1993),

per. app. denied (Tenn. 1994) (holding this factor applicable in especially aggravated

kidnapping and especially aggravated robbery case where victim was subjected to

repeated sexual remarks and forced to remove her clothing at knifepoint); State v. Carter,

908 S.W.2d 410, 412-13 (Tenn. Crim. App.), per. app. denied (Tenn. 1995) (holding this

factor applicable in especially aggravated kidnapping and aggravated robbery case where

the unclothed victim was left outside in freezing weather); but see Embry, 915 S.W.2d at

456 (rejecting this factor where rape victim was forced at knifepoint to remove her clothing

and subjected to sexual acts); Manning v. State, 883 S.W.2d 635, 639 (Tenn. Crim. App.

1994) (rejecting this factor where the victim was abducted in daylight and forced into four

separate acts of sexual activity while being held at knifepoint); State v. Ivory Thomas, No.

02C01-9705-CR-00179, 1998 WL 195953 at *3-4 (Tenn. Crim. App., Jackson, April 24,

1998) (rejecting this factor where elderly victim was struck in head with pistol and her car

was stolen).




                                             -5-
       We believe the facts in this record establish the appellant did treat Ms. Messina with

cruelty beyond any conduct requisite to his offenses. During this ten- to fifteen-minute ride,

the appellant repeatedly struck Messina in the head with his gun and repeatedly threatened

her both during the kidnapping and her subsequent escape, i.e., the note, I”ll find you,”

written by the appellant on the windshield of the victim’s car with the victim’s lipstick. The

appellant argues that the trial court’s finding of “terrorize the victim” was an element of the

offense of aggravated kidnapping. However, we note the indictment alleges the kidnapping

was aggravated by the use of a deadly weapon, Tenn. Code Ann. § 39-13-304(5), and not

by the intent to inflict serious bodily injury on or to terrorize the victim or another, Tenn.

Code Ann. § 39-13-304(3).



       Therefore, although our review is de novo, the decision of the trial court is presumed

correct, and the appellant has failed to carry his burden of showing that his sentences are

improper.



       The appellant’s second argument is likewise without merit. Although “the intent to

. . . terrorize the victim” can be an element of the offense, Tenn. Code Ann. § 39-13-304(3),

it was not relied upon in the instant case to charge and find aggravated kidnapping.

Rather, the element relied upon by the state was the appellant’s possession and

threatened use of a deadly weapon. See Tenn. Code Ann. § 39-13-304(5). Thus, the

appellant’s acts of cruelty were clearly not the “very facts” which constituted aggravated

kidnapping. See Manning, 883 S.W.2d at 639.2




       2
        Although we affirm the trial court’s application of enhancement factor (5), we also
note the trial court would presumably have imposed the maximum sentence on counts two
and three even in the absence of this factor. As noted above, the trial court enhanced the
appellant’s sentence to the maximum of the appellant’s range based solely on
enhancement factors (1) and (8), which also apply to counts two and three. The appellant
does not challenge the application of factors (1) or (8), and we notice no error.

                                              -6-
                              CONSECUTIVE SENTENCING



        The appellant next argues that the trial court erred in ordering his sentences to be

served consecutively.     Tennessee Code Annotated § 40-35-115(b) provides that a

sentencing court may order consecutive sentencing upon finding any one of several

enumerated criteria by a preponderance of the evidence. In the present case, the trial

court found two of these criteria: (1) the appellant is an offender whose record of criminal

activity is extensive and (2) he 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. See Tenn. Code Ann. § 40-35-115(b)(2), (4).



        The appellant challenges only the trial court’s finding that the appellant has an

extensive criminal record. Counsel for the appellant asserts that “[the appellant] has no

convictions.” (emphasis added).3 Counsel’s assertion is absurd. At his sentencing

hearing, the appellant admitted he had been convicted of several crimes, including theft

under $500; manufacturing, selling, or delivering cocaine; and other, albeit relatively minor,

offenses. The appellant’s presentence report lists additional convictions. Thus, we find

no error in the trial court’s finding that the appellant has an extensive record of criminal

activity.



        Moreover, as noted above, the appellant does not challenge the trial court’s finding

that he 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. See

Tenn. Code Ann. § 40-35-115(b)(4). Because a trial court need only find one of the

statutory alternatives in order to impose consecutive sentencing, even if the appellant had




        3
        Interestingly, counsel for the appellant does not dispute the appellant’s criminal
history for the purpose of sentence enhancement pursuant to Tenn. Code Ann. § 40-35-
114(1).

                                             -7-
no criminal history whatsoever, consecutive sentencing would be warranted. This issue

is without merit.



                                  RELEASE ELIGIBILITY



       Finally, both the state and the appellant call to our attention the trial court’s entry of

a thirty percent release eligibility for the appellant’s conviction on count three, aggravated

kidnapping. The Tennessee Legislature has mandated that sentences for aggravated

kidnappings committed on or after July 1, 1995 be served at one hundred percent. See

Tenn. Code Ann. § 40-35-501(I)(1), (I)(2)(D). The appellant’s kidnapping was committed

on August 28, 1995. Therefore, a thirty percent release eligibility is improper.



       We vacate the appellant’s sentence as to count three, aggravated kidnapping, and

remand this conviction for the trial court to enter an order reflecting the appellant’s release

eligibility at one hundred percent.




                                              ______________________________________
                                              L. T. LAFFERTY, Senior Judge


CONCUR:




     (Not Participating)
PAUL G. SUMMERS, Judge




__________________________________
JOE G. RILEY, JUDGE




                                              -8-
