            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                         FEBRUARY 1998 SESSION
                                                    FILED
                                                       April 24, 1998

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 02C01-9705-CR-00179
            Appellee,            )
                                 )    SHELBY COUNTY
VS.                              )
                                 )    HON. L.T. LAFFERTY,
IVORY THOMAS,                    )    JUDGE
                                 )
            Appellant.           )    (Especially aggravated robbery)



FOR THE APPELLANT:                    FOR THE APPELLEE:


A C WHARTON, JR.                      JOHN KNOX WALKUP
Public Defender                       Attorney General & Reporter

TONY N. BRAYTON                       JANIS L. TURNER
Asst. Public Defender                 Counsel for the State
201 Poplar, Suite 201                 425 Fifth Ave., North
Memphis, TN 38103                     Cordell Hull Bldg., Second Fl.
                                      Nashville, TN 37243-0493

                                      JOHN W. PIEROTTI
                                      District Attorney General

                                      CHARLES BELL
                                      Asst. District Attorney General
                                      201 Poplar, Suite 301
                                      Memphis, TN 38103




OPINION FILED:____________________



CONVICTION AFFIRMED;
SENTENCE MODIFIED


JOHN H. PEAY,
Judge
                                                OPINION



                  The defendant was indicted in August 1995 on one count of especially

aggravated robbery.1 A jury found him guilty of the charged offense and the trial court

sentenced him as a Range I standard offender to twenty-five years. In this appeal as of

right, the defendant argues that the trial court erred in allowing testimony explaining the

absence of a State witness. He further argues that his sentence is excessive. After a

review of the record and applicable law, we affirm the defendant’s conviction but modify

his sentence to seventeen years.



                  Since the defendant does not challenge his conviction on a sufficiency

basis, we will only briefly discuss the facts of this case. On May 2, 1995, the defendant

and three other young men were riding in a stolen vehicle when they spotted the victim

in this case, Adele Hall. Hall had been on her way home from a nearby grocery store.

She parked her car in her driveway and as she was exiting her car, she was confronted

by a young man with a gun. She was struck one time on the head with the gun, and her

purse and car were stolen. At least one gun shot was fired at Hall’s neighbors who were

attempting to come to her aid. One of the other persons actually struck the victim and

fired the shot.



                  On appeal, the defendant argues that the trial court erred in allowing Officer

Eddie L. Perry to testify about a missing State witness. The State had planned to call

Travis Young to testify about certain facts related to the defendant’s flight from the police.

Perry, a transportation officer with John S. Wilder Youth Center, testified that Young was


         1
          The defe nda nt wa s also indict ed on char ges of ag grav ated ass ault a nd th eft of prop erty. W hile
the record does not include a copy of these indictments, the jury instructions reflect the additional
charge s. Thes e charg es were in conne ction with the one fac tual inciden t describe d in this opinio n.
Ultima tely, the defen dant wa s convic ted of on ly one coun t, espec ially aggravate d robbe ry.

                                                        2
being held at the center, which is a developmental facility for juvenile delinquents. Perry

had been in charge of transporting Young to the courthouse to testify. When Perry and

Young arrived at the courthouse, Perry opened the door of the vehicle, and Young

jumped out of the vehicle and fled. Perry testified that Young had not been seen since

despite the fact that Young had been wearing leg irons and a “belly chain” with handcuffs.



              At trial, the State argued that Perry should be allowed to testify and explain

the absence of Young.       The State contended that in its opening argument it had

referenced Young’s expected testimony, and that without an explanation, the jury would

be confused about Young’s failure to testify. The trial court allowed the testimony under

what the trial judge termed the “do-right rule for the benefit of the Court of Appeals.” The

defendant now argues that Perry’s testimony was not relevant to the issues before the

trial court and that allowing such testimony essentially denied the defendant his right to

confront a witness called against him.



              While we were unable to locate the specific terms of the “do-right” rule, we

can find no harm suffered by the defendant in connection with this issue. Young had

been expected to identify the defendant as one of the four men who fled on foot from the

police. This testimony was related to a count of the indictment on which the defendant

was ultimately acquitted. While the better course might have been for the trial court to

simply inform the jury that Young was not available to testify due to no fault of the State,

we cannot say that the defendant was harmed by allowing the jury to hear testimony

about Young’s escape. We further note that after hearing testimony about the escape,

the jury was informed by the trial court that such testimony was only offered in order to

explain why Young was not present. The court further instructed the jury not to draw an

inference of guilt on behalf of the defendant due to Young’s absence. In light of the fact



                                             3
that the defendant was acquitted on the charge related to Young’s testimony, we are at

a loss to find any prejudice suffered by the defendant. While we are not convinced that

the trial court erred in allowing testimony about Young’s escape, we are entirely

convinced that if error, it was most certainly harmless. Thus, we find this issue is without

merit and affirm the conviction of the defendant.



              The defendant next argues that the trial court erred by sentencing him to

twenty-five years, the maximum sentence. He argues that the sentence is excessive and

that the trial court erroneously applied enhancement factors as well as failed to apply

certain mitigating factors.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A.

§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, “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).



              A portion of the Sentencing Reform Act of 1989, codified at T.C.A.

§ 40-35-210, established a number of specific procedures to be followed in sentencing.

This section mandates the court’s consideration of the following:


              (1) The evidence, if any, received at the trial and the sentenc-
              ing hearing; (2) [t]he presentence report; (3) [t]he principles of
              sentencing and arguments as to sentencing alternatives; (4)
              [t]he nature and characteristics of the criminal conduct
              involved; (5) [e]vidence and information offered by the parties
              on the enhancement and mitigating factors in §§ 40-35-113
              and 40-35-114; and (6) [a]ny statement the defendant wishes


                                              4
               to make in his own behalf about sentencing.


T.C.A. § 40-35-210.



              In addition, this section provides that the minimum sentence within the range

is the presumptive sentence. If there are enhancing and mitigating factors, the court must

start at the minimum sentence in the range and enhance the sentence as appropriate for

the enhancement factors and then reduce the sentence within the range as appropriate

for the mitigating factors. If there are no mitigating factors, the court may set the sentence

above the minimum in that range but still within the range. The weight to be given each

factor is left to the discretion of the trial judge. State v. Shelton, 854 S.W.2d 116, 123

(Tenn. Crim. App. 1992).



              The Act further provides that “[w]henever the court imposes a sentence, it

shall place on the record either orally or in writing, what enhancement or mitigating factors

it found, if any, as well as findings of fact as required by § 40-35-209.” T.C.A.

§ 40-35-210(f) (emphasis added). Because of the importance of enhancing and mitigating

factors under the sentencing guidelines, even the absence of these factors must be

recorded if none are found. T.C.A. § 40-35-210 comment. These findings by the trial

judge must be recorded in order to allow an adequate review on appeal.



              In this case, the trial court applied the following enhancement factors from

T.C.A. § 40-35-114: that the victim was particularly vulnerable because of age (4); that the

defendant treated or allowed the victim to be treated with exceptional cruelty during the

offense (5); and that the defendant possessed or employed a firearm during the offense




                                              5
(9).2 The defendant asserts that all three factors were applied in error and that his

sentence of twenty-five years is excessive. The State’s brief made little mention of how

the factors applied, rather it made a conclusory statement that the sentence was

appropriate.



                 First, the defendant argues that the trial court erred in applying factor four,

that the victim was particularly vulnerable. In State v. Adams, 864 S.W.2d 31 (Tenn.

1993), the Supreme Court analyzed enhancement factor four and concluded that “the

vulnerability enhancement relates more to the natural physical and mental limitations of

the victim than merely to the victim’s age.” The Court further explained that “particularly

vulnerable” victims would include those who were incapable of resisting, of summoning

help, or of testifying against the offender. Adams, 864 S.W.2d at 35. It is the burden of

the State to prove that the victim’s limitations made her particularly vulnerable.



                 The record in this case is absolutely devoid of any information regarding the

victim’s vulnerability. The State did not even question her as to her age. While the pre-

sentence report did reflect that the victim was seventy-six years old, the State presented

no evidence that she was particularly vulnerable. See State v. Poole, 945 S.W.2d 93

(Tenn. 1997)(finding that the State did not carry its burden in proving seventy-year-old

victim was particularly vulnerable). In fact, this victim did summon help from her neighbor

and she did testify against the defendant. We find nothing in the record to suggest that

this victim was particularly vulnerable. Thus, enhancement factor four should not have

been applied to enhance the defendant’s sentence.



                 The defendant next contends that factor five, that the defendant treated or


         2
          Actually it appears from the record that the trial judge only found factors 4 and 5 to be
applicab le but bec ause o f an error in the trans cript, there is a finding of fa ctors “fo ur and n ine.”

                                                         6
allowed the victim to be treated with exceptional cruelty, should not have been applied.

The defendant claims that this factor is an element of the offense of especially aggravated

robbery. The Supreme Court, however, has held otherwise. In State v. Poole, the Court

determined that “proof of serious bodily injury, which is an element of especially

aggravated robbery, does not necessarily establish the enhancement factor of ‘excep-

tional cruelty.’” 945 S.W.2d at 98. Exceptional cruelty may exist in cases where the

evidence “‘demonstrates a culpability distinct from and appreciably greater than that

incident to’ the crime of especially aggravated robbery.” Poole, 945 S.W.2d at 99, quoting

State v. Jones, 883 S.W.2d 597, 603 (Tenn. 1994). It is the duty of the trial court to state

what specific actions by the defendant, apart from the elements of the offense, constituted

exceptional cruelty. State v. Goodwin, 909 S.W.2d 35, 45-46 (Tenn. Crim. App. 1995).



                  In this case, the trial court failed to state what actions by the defendant

constituted this enhancement factor. Rather, the trial judge simply stated, “Now, I find

number five. Took a pistol up there and the woman was pistol-whipped. And I can’t be

divorced from the fact that pistol shots were fired at other individuals who were in the

vicinity.”



                  The “exceptional cruelty” factor has generally been applied in cases of

abuse or torture. State v. Davis, 825 S.W.2d 109, 113 (Tenn. Crim. App. 1991). While

we do not deny the serious nature of the injuries suffered by the victim as a result of being

hit over the head with a pistol by her attacker, we cannot conclude that such actions

constitute a case of abuse or torture.3 The entire incident lasted a very brief time; the

victim was hit one time on the head by someone other than the defendant, and her car

was stolen. She was not subjected to further abuse after being hit on the head, rather her


         3
          W e not e tha t the s eriou s bod ily injury s uffe red b y the vic tim h as alr ead y been acc oun ted fo r in
the c harg e of e spe cially ag grav ated robb ery.

                                                            7
attackers immediately fled the area. Nor was she left in such a state that she could not

summon help. As we noted earlier, the victim walked to her neighbor’s house in order to

obtain assistance. Furthermore, we fail to see the connection between the fact that a shot

was fired at a neighbor and the application of this enhancement factor. Thus, we

conclude that the trial court erred when it applied factor five to this defendant.



                The defendant next challenges the application of factor nine, that the

defendant possessed or employed a firearm. The State concedes that this factor is an

element of the offense of especially aggravated robbery, and thus, does not apply. State

v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). However, the State suggests the

application of factor ten, that the defendant had no hesitation about committing a crime

when the risk to human life was high. The State’s suggestion is misplaced. This Court

has previously held that factor ten is an element of especially aggravated robbery because

there is “necessarily a high risk to human life and the great potential for bodily injury

whenever a deadly weapon is used.” Nix, 922 S.W.2d at 903. Thus, factor ten is also

inapplicable.



                While we have determined that the above enhancement factors were

erroneously applied, we find that enhancement factor one does apply. This factor states

that the defendant has a previous history of criminal behavior or criminal convictions in

addition to that necessary to establish the appropriate range. As an adult, this defendant

has been convicted of criminal trespassing and possession of a controlled substance. As

a juvenile, he was arrested for at least three offenses which resulted in his being warned

and referred to a community service program. This previous history of criminal behavior,

including that while a juvenile, may be taken into account in determining an appropriate

sentence. State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993). Thus, the trial court should



                                             8
have considered this factor.



             Because the defendant committed this offense prior to the amendment of

T.C.A. § 40-35-210, the minimum sentence is the presumptive sentence. The amended

statute provides that for Class A felonies committed after July 1, 1995, the presumptive

sentence will be the midpoint in the range. The defendant committed the instant offense

on May 2, 1995, therefore, the presumptive sentence is the minimum. As noted above,

we have determined that one enhancement factor, the defendant’s history of criminal

behavior and convictions, applies. Furthermore, our review of the record affirms the trial

court’s refusal to apply any mitigating factors to this defendant. Thus, we feel it

appropriate to enhance the defendant’s sentence two years beyond the presumptive

sentence. The defendant’s sentence is modified to reflect a sentence of seventeen years.



             For the foregoing reasons, we affirm the conviction of the defendant but

modify his sentence to seventeen years.



                                                _______________________________
                                                JOHN H. PEAY, Judge


CONCUR:



______________________________
JOSEPH B. JONES, Judge



______________________________
THOMAS T. W OODALL, Judge




                                            9
