         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs August 6, 2002

               STATE OF TENNESSEE v. LARRY D. ANDERSON

                Direct Appeal from the Circuit Court for Lauderdale County
                           No. 6938    Joseph H. Walker, Judge



                    No. W2001-02371-CCA-R3-CD - Filed April 11, 2003


The defendant was found guilty by a jury of first degree felony murder and especially aggravated
burglary. He was sentenced to life plus twelve years, respectively, in the Department of Correction.
The defendant contends that he was mentally incompetent to stand trial or to give a knowing,
intelligent, and voluntary waiver of his Miranda rights and that his sentences were in error. We
affirm the judgments from the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
THOMAS T. WOODA LL, JJ., joined.

Gary F. Antrican, District Public Defender, and Julie K. Pillow, Assistant Public Defender, for the
appellant, Larry D. Anderson.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and James Walter Freeland, Jr., and Tracey A. Brewer,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

       The defendant, Larry D. Anderson, raises four issues:
       (1)    Whether the trial court erred in finding the defendant to be mentally
              competent to stand trial,
       (2)    Whether the trial court erred in finding the defendant mentally competent to
              give a knowing, intelligent and voluntary waiver of his Miranda rights,
       (3)    Whether the trial court erred in imposing the maximum sentence for
              especially aggravated burglary, and
       (4)    Whether the trial court erred in ordering the sentences for first degree murder
              and especially aggravated burglary to run consecutively.
                                            Background

        Rubye Thompson, the victim, eighty-eight years old, was found badly beaten in her home in
Henning, Tennessee, on the morning of March 22, 2000. Her caretaker found the victim in her bed
with some of her clothes removed. The victim was bloodied and had a swollen neck and a bruised
face. She was unable to speak. She was transported to the Regional Medical Center (“the Med”)
in Memphis. She never regained consciousness and died as a result of those injuries on April 1,
2000. Prior to the beating, the victim had difficulty both walking and hearing. There were blood
stains and semen found on the victim’s sheets.

        DNA testing identified the semen as the defendant’s, and the defendant confessed to breaking
into the victim’s home in the middle of the night and hitting her when she woke up. Additionally,
the defendant’s shoe print and fingerprints were found at the crime scene. The defendant was tried
and convicted of first degree felony murder and especially aggravated burglary.

         The Lauderdale County Sheriff’s office initially identified a number of individuals, including
the defendant, who “hung around” the streets of Henning at night, as suspects. The Sheriff’s office
identified the defendant as a suspect when he attempted to sell a package of Snickers candy bars to
a local resident. Snickers bars were missing from the victim’s home. The defendant also obtained
change for a two-dollar bill, and there was a two-dollar bill missing from the victim’s home as well.

       On March 23, 2000, Lucian Herron, an investigator with the Lauderdale County Sheriff’s
Department, questioned the defendant. Officer Herron stated the defendant was advised of his rights,
was not coerced, was not denied any comforts during the questioning, and appeared to understand
the process. Additionally, the defendant signed a waiver and admonition form indicating he
understood and waived his rights. The defendant said he spent the night in question in an abandoned
home, after having a misunderstanding with his girlfriend. He did not indicate at this time that he
had been in the victim’s home.

       The Lauderdale County Sheriff’s office collected blood from the defendant on March 24,
2000. Terry Davis, an investigator with the Sheriff’s office, produced a consent form with the
defendant’s signature, indicating that the defendant consented to the blood drawing. DNA taken
from the semen found on the victim’s bed matched that of the defendant.

        Kenny Nelson, a criminal investigator with the Lauderdale County Sheriff’s Department,
interviewed the defendant on March 24, 2000. He stated he read the defendant his rights and that
the defendant appeared to understand what was being said. He stated the defendant did not appear
to be intoxicated nor was the defendant denied any comforts. The defendant signed a waiver and
admonition form, which had been read and explained to him moments before by Scott Wally,
another investigative agent. The defendant gave a statement that was similar to the one he gave the
day before, indicating he had spent the evening in question in an abandoned home.



                                                 -2-
        On April 18, 2000, Officer Nelson again questioned the defendant. Officer Nelson indicated
the circumstances surrounding this questioning were similar to the ones of the prior questioning.
The defendant had been advised of his rights, had not been denied any creature comforts, and had
signed a waiver and admonition form after having the contents of that form explained to him. The
defendant then gave a statement indicating that he had broken into the victim’s house in the early
morning of March 22, 2000, and, as he was going through some drawers in the bedroom, the victim
awoke. He said her waking up had scared him, and he hit her twice with an open hand. He then left
the house, taking a two dollar bill and some Snicker’s candy bars.

        During the April 18, 2000, questioning, Agent Wally reviewed with the defendant what
happened on the night in question. The defendant then began to write out a statement. Because the
defendant was having trouble writing, Officer Nelson took over the actual writing. The process used
was to go over the statements the defendant had given to Agent Wally and then ask the defendant
if each one was correct. As the defendant indicated the statement was correct, Officer Nelson
physically wrote what the defendant was confirming. As a result, Officer Nelson wrote the actual
incriminating statements.

        Dr. Cynthia Gardner, the medical examiner in Shelby County who performed the autopsy of
the victim, indicated the victim died as a result of at least nine blunt traumas to the head. The victim
had extensive bruising and lacerations of the head and neck. She stated the victim had bleeding in
deep tissues and that such bleeding would be produced by a good deal of force.

                                               Pretrial

        The defendant claimed he was mentally incompetent to stand trial and that he gave an
unknowing waiver of his rights prior to giving the incriminating statement on April 18, 2000. A pre-
trial hearing was held on December 8, 2000, to address those claims.

                            Motion to Suppress/Competency Hearing

        Dr. John McCoy, a clinical psychologist, testified that the defendant was competent to stand
trial. Along with Dr. William W. Daniels, Jr., another psychologist in his office, Dr. McCoy
interviewed and observed the defendant for one hour and fifty minutes. Dr. McCoy testified he had
conducted more than 250 competency evaluations. He stated the defendant would be able to assist
his attorney; understood the roles of the judge, the district attorney, and the jury; and, essentially,
understood a lot about the whole process. His opinion was that the defendant was manipulative and
understood a lot more than would be indicated through a battery of tests. Based on his interview
with the defendant and his professional expertise, Dr. McCoy concluded this defendant was
competent to stand trial.

        Dr. Michael Guinle, a psychologist health service provider, testified the defendant was not
competent to stand trial. He indicated the defendant was mildly mentally retarded, had an IQ of fifty-
eight (58), and would not be able to participate appropriately in a trial. Dr. Guinle spent more than


                                                  -3-
eight hours with the defendant, examined his past school records, and administered a number of
tests. Based on his research, he concluded the defendant was not manipulative but had an impaired
ability to learn and understand. The trial court found the defendant competent to stand trial.

       The trial court also found that the incriminating statements made by the defendant should not
be suppressed. Considering the totality of the circumstances, the trial court determined that the
defendant had been advised of his rights, understood what he was doing, and made a voluntary,
uncoerced statement. Additionally, the trial court determined the statements given by the defendant
on March 23 and March 24, 2000, were admissible.

                                               Trial

        On May 23, 2001, after a two-day trial, a jury found the defendant guilty of first degree
felony murder and especially aggravated burglary. The jury sentenced the defendant to life
imprisonment for the felony murder, finding two statutory aggravating factors: (1) “The murder was
knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a
substantial role in committing or attempting to commit, or was fleeing after having a substantial role
in committing or attempting to commit, any first degree murder, arson, rape robbery, burglary, theft,
kidnaping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or
bomb,” Tenn. Code Ann. § 39-13-204(i)(7); and (2) “The victim of the murder was particularly
vulnerable due to a significant handicap or significant disability, whether mental or physical, and at
the time of the murder, the defendant knew or reasonably should have known of such handicap or
disability,” Tenn. Code Ann. § 39-23-204(i)(14).

                                            Sentencing

       On June 6, 2001, the trial court approved the jury-imposed sentence of life imprisonment.
The defendant submitted the following non-statutory mitigating factors:
       (1)    The defendant is mentally retarded,
       (2)    At the time of the offense, defendant’s mental and emotional development
              was significantly below that of persons his chronological age,
       (3)    The defendant can barely read or write,
       (4)    The defendant experienced difficulties learning,
       (5)    The defendant has never developed the ability to live independently,
       (6)    The defendant’s criminal activity was caused by various psychological factors
              and alcohol-related problems that can be treated and will diminish with age,
       (7)    The defendant’s capacity to appreciate the criminality of his conduct or to
              conform his conduct with the requirements of the law was impaired,
       (8)    The defendant’s ability to remember the events of the crime is impaired,
       (9)    The defendant has a history of alcohol and drug addiction,
       (10) The defendant has expressed remorse and regret for the death of the victim,
       (11) The defendant can be treated and rehabilitated, and
       (12) The defendant has no prior felony convictions.


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See Tenn. Code Ann. § 40-35-113(13).

       The State filed a notice of intent to seek increased punishment as to the especially aggravated
burglary. In addition, the State submitted the statutory aggravating circumstances under Tennessee
Code Annotated sections 39-13-204(i)(7) and (14) in declaring its intent to seek a sentence of life
without parole.

        At the sentencing hearing, the trial court approved the jury’s life sentence for the first degree
murder. As to the especially aggravated burglary, the court determined the defendant should be
sentenced as a Range I standard offender. Tenn. Code Ann. § 40-35-105. The trial court found no
statutory mitigating factors under Tennessee Code Annotated section 40-35-113.1 The trial court
found the following enhancement factors under Tennessee Code Annotated section 40-35-114 (supp.
2001) (amended 2002):
        (1)     The defendant has a previous history of criminal convictions or criminal
                behavior in addition to those necessary to establish the appropriate range;
        (4)     (The) victim of the offense was particularly vulnerable because of age or
                physical or mental disability . . .;
        (5)     The defendant treated or allowed a victim to be treated with exceptional
                cruelty during the commission of the offense;
        (7)     The offense involved a victim and was committed to gratify the defendant’s
                desire for pleasure or excitement;
        (8)     The defendant has a previous history of unwillingness to comply with the
                conditions of a sentence involving release in the community;
        (10) The defendant had no hesitation about committing a crime when the risk to
                human life was high; and
        (16) The crime was committed under circumstances under which the potential for
                which bodily injury to a victim was great.

        The trial court found the enhancing factors greatly outweighed the mitigating factors and
sentenced the defendant to an enhanced sentence of twelve years for the especially aggravated
burglary. The trial court also sentenced the defendant, as a violent offender, to serve 100% of the
life sentence, pursuant to Tennessee Code Annotated section 40-35-501(i)(2)(A). The trial court
ordered the especially aggravated burglary sentence to run consecutively to the felony murder life
sentence, finding the defendant to be an offender whose record of criminal activity is extensive,
Tenn. Code Ann. § 40-35-115(b)(2), and to be a dangerous offender whose behavior indicates little
or no regard for human life. Tenn Code Ann. § 40-35-115(b)(4).

        In pronouncing sentence, the trial judge said the following:
               Mr. Anderson, the Court believes this is one of the most despicable acts
        imaginable, an 88-year-old widow in her own house, in her own bed, beaten so
        severely she soon died as a result. Her bedclothes were removed and your sperm and


        1
            The trial court did find the d efendant’s mild retardation as a non -statutory m itigating facto r. Infra. P. 22.

                                                             -5-
       semen were found on her bed sheets which the DNA expert says was yours to the
       exclusion of every other human on the planet.

               Summertime will soon be over. The crisp, cool air of fall with the red, yellow
       and orange leaves will be out for people to enjoy but not for you, for you won’t be
       able to see the trees. In winter, nature will blanket the land with snow for us to enjoy
       but not for you, Mr. Anderson, because you won’t be able to touch it. In spring, the
       daffodils will bloom but you won’t know it because you’re going to be incarcerated
       in the deepest, darkest dungeon hole available in the Tennessee Department of
       Corrections. I am sentencing you, Mr. Anderson, who broke into the home of an 88-
       year-old widow and beat her to death in her own bed where you deposited your sperm
       and semen on her bed sheets, I am sentencing you to serve your sentence in a
       dungeon without windows and without breaks. A sentence of life plus 12 years in
       the dungeon hole on bread and water and no sunshine.

              We stand in recess.
The defendant’s motion for a new trial was denied on August 29, 2001.

                                               Issues

       We now revisit and specifically address the issues raised by the defendant:
       (1)  Whether the trial court erred in finding the defendant to be mentally
            competent to stand trial;
       (2)  Whether the trial court erred in denying the defendant’s motion to suppress
            statements made by the defendant, finding the defendant competent to give
            a knowing, intelligent and voluntary waiver;
       (3)   Whether the trial court erred in imposing the maximum sentence for
             especially aggravated burglary; and
       (4)   Whether the trial court erred in ordering the sentences for first degree murder
             and especially aggravated burglary to run consecutively.

                                              Analysis

                                        Mental Competency

        The Fourteenth Amendment to the United States Constitution and Article I, section 8 of the
Tennessee Constitution prohibit the trial of a person who is mentally incompetent. Pate v. Robinson,
383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Berndt v. State,733 S.W.2d 119, 122 (Tenn.
Crim. App. 1987). The standard for determining competency to stand trial is whether the accused
has the “capacity to understand the nature and object of the proceedings against him, to consult with
counsel and to assist in preparing his defense.” State v. Black, 815 S.W.2d 166, 174 (Tenn. 1991)
(quoting Mackey v. State, 537 S.W.2d 704, 707 (Tenn. Crim. App. 1975)); see also Dusky v. United



                                                 -6-
States, 362 U.S. 402, 402 80 S. Ct. 788, 789, 4 L. Ed. 2d 824 (1960) (ability to consult with lawyer
and a “‘rational as well as factual understanding of the proceedings’”).

        Essentially, the competency issue for this defendant came down to a “battle of experts.” Dr.
McCoy testified, both at the competency hearing and at trial, that the defendant was competent to
stand trial. Dr. Michael Guinle testified, both at the competency hearing and at trial, that the
defendant was not competent to stand trial. The trial court was able to hear and weigh the
competency evidence as it was presented. The trial court found that the defendant was mildly
mentally retarded but able to function without difficulty. The trial court found the defendant had
worked, had a drug or alcohol dependence, was manipulative, and had antisocial behavior. The trial
court noted the defendant completed the tenth grade and had a fund of general information and
vocabulary use, along with other verbal skills, that made him capable of comprehending what was
going on. The trial court, therefore, found the defendant competent.

         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this Court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The defendant’s competence was a finding made at the
suppression hearing. The trial court, as the trier of fact, is able to assess the credibility of the
witnesses, determine the weight and value to be afforded the evidence, and resolve any conflicts in
the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party is entitled to
the strongest legitimate view of the evidence and all reasonable inferences drawn from that evidence.
State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, this Court is not bound by the trial
court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). The application
of the law to the facts found by the trial court is a question of law that this Court reviews de novo.
State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of establishing that
the evidence contained in the record preponderates against the findings of fact made by the trial
court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

         The defendant has not met his burden here. He argues the evidence should preponderate
against the finding of competency by the trial court, based on his conclusory determination that
because Dr. Guinle conducted a more extensive evaluation of the defendant than did Dr. McCoy, that
Dr. Guinle’s determination should control. The trial court weighed the credibility and the evidence
presented by both experts at the competency hearing and made the determination that the defendant
was competent. Dr. McCoy and Dr. Daniels spent nearly two hours with the defendant, and Dr.
McCoy had conducted more than 250 similar competency evaluations. The trial court was entitled
to rely upon Dr. McCoy’s determinations, despite the testimony of Dr. Guinle. Dr. McCoy
determined the defendant was competent, and we cannot agree the evidence compels a determination
that a longer examination necessarily means a more correct examination.

         We conclude the trial court did not err in finding the defendant mentally competent to stand
trial.




                                                  -7-
                                        Involuntary Waiver

        The trial court’s determination at the suppression hearing that a confession was voluntary is
presumptively correct on appeal. State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). This
determination is binding unless the evidence in the record preponderates against that finding. State
v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999).

         The fact that one suffers from certain mental deficiencies does not necessarily prevent that
person from understanding and waiving constitutional rights. See generally State v. Middlebrooks,
840 S.W.2d 317, 327 (Tenn. 1992); 4 Wharton’s Criminal Evidence § 643, p. 169 (14th ed. 1987).
A person with a mental deficiency may waive his Miranda rights if that waiver was knowingly and
voluntarily made. State v. Green, 613 S.W.2d 229, 233 (Tenn. Crim. App. 1980); Braziel v. State,
529 S.W.2d 501, 505-06 (Tenn. Crim. App. 1975). When determining whether an accused has
voluntarily, knowingly, and intelligently waived his Miranda rights, this Court must consider the
totality of the circumstances which existed when the accused waived these rights. Middlebrooks,
840 S.W.2d at 326; State v. Benton, 759 S.W.2d 427, 431 (Tenn. Crim. App. 1988). The “totality
of the circumstances must reveal ‘an uncoerced choice and the required level of comprehension.’”
State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000) (quoting State v. Stephenson, 878 S.W.2d
530, 545 (Tenn. 1994)). Where a defendant contends that his waiver of Miranda rights was not
voluntarily or understandingly made, the court must consider such factors as the defendant’s age,
level of functioning, prior criminal justice experience, demeanor, responsiveness to questioning,
possible malingering, and the manner in which the Miranda rights were explained. Blackstock, 19
S.W.3d at 208. However, no single factor is necessarily determinative. Id.

         The trial court considered the totality of the circumstances and found the defendant had made
a voluntary, uncoerced waiver of his rights when he made his incriminating statement on April 18,
2000. The trial court indicated it considered the circumstances surrounding the defendant’s
confession, including the testimony of the psychologists finding the defendant competent to stand
trial, and it found the defendant was able to appreciate the circumstances and consequences of giving
a statement to law enforcement officers. It determined that the defendant was advised of his rights
and signed a form indicating he understood those rights. Moreover, even if the trial court found the
defendant suffered from mental deficiencies, that does not necessarily prevent him from
understanding and waiving his constitutional rights. Middlebrooks, 840 S.W.2d at 327.

        This determination is presumptively correct and places the burden on the defendant to show
the evidence preponderates against it. The defendant has failed to meet this burden. The defendant
submits that the April 18, 2000 statement was in Officer Nelson’s handwriting and was obtained by
the officer going over oral statements made by the defendant, asking the defendant if “this is how
it went?,” and then writing down the responses. The defendant, however, does not show how the
evidence preponderates that a statement obtained in this manner is involuntary, and we cannot
conclude that it is. Additionally, the defendant argues that his limited mental state rendered him
incapable of making a knowing waiver of his rights. The defendant asks this Court for that
proposition to stand by itself. The trial court, however, was able to evaluate the credibility of the


                                                 -8-
evidence pertaining to the defendant’s mental state and determined the defendant was mentally
capable of making a voluntary waiver. The court found the circumstances surrounding the obtaining
of the April 18, 2000, statement to be non-coercive and that the defendant’s mental functioning was
adequate to make the waiver. The bare-bones declaration by the defendant that he was limited
mentally, standing for the proposition that the defendant was incapable of making a knowing waiver,
simply does not preponderate against the finding of the trial court. Indeed, our Supreme Court
recently reiterated this well-settled principle that “a trial court’s findings of fact in a suppression
hearing will be upheld unless the evidence preponderates otherwise”. State v. Christopher M. Flake,
No. W2000-01131-SC-R11-CD (Tenn. Oct. 24, 2002, at Jackson) (citing State v. Odom, 928 S.W.
2d 18, 23 (Tenn. 1996)).

       We conclude the trial court did not err in finding the defendant made a knowing and
voluntary waiver of his rights and, therefore, the statements made by the defendant on March 23,
2000, March 24, 2000, and April 18, 2000, were properly admitted.

                                 Maximum Sentence for Burglary

       The defendant claims the trial court erred in sentencing him to twelve years for the especially
aggravated burglary, which is beyond the presumptive sentence of eight years. He claims the court
improperly applied the enhancement factors.

        This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness, and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

       The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d) Sentencing Comm’n Comments. In conducting our review, we are required,
pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors in
sentencing:
       (1) [t]he evidence, if any, received at the trial and the sentencing 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
       to make in the defendant’s own behalf about sentencing.

       If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses shall be
the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn.
1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors


                                                 -9-
do exist, a trial court should enhance the minimum sentence within the range for enhancement
factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann.
§ 40-35-210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for each
factor is prescribed by the statute, as the weight given to each factor is left to the discretion of the
trial court as long as the trial court complies with the purposes and principles of the sentencing act
and its findings are supported by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State
v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000); see Tenn. Code Ann. § 40-35-210
Sentencing Comm’n Comments. Nevertheless, should there be no mitigating factors, but
enhancement factors are present, a trial court may set the sentence above the minimum within the
range. Tenn. Code Ann. § 40-35-210(d); Lavender, 967 S.W.2d at 806; Manning v. State, 883
S.W.2d 635, 638 (Tenn. Crim. App. 1994).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after giving due consideration and proper weight to the factors and principles set
out under sentencing law, and the trial court’s findings of fact are adequately supported by the
record, then we may not modify the sentence even if we would have preferred a different result.
State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

       We will review the enhanced sentence with the presumption of correctness, as the trial court
considered the sentencing principles as established in Tennessee Code Annotated section 40-35-
401(d). In our review, we will consider the following six factors as required by Tennessee Code
Annotated section 40-35-210(b):
       (1) The evidence, if any, received at the trial and the sentencing hearing: The
           evidence of the defendant’s guilt and the heinousness of the crime was
           overwhelming.
       (2) The presentence report: There is evidence in the record that the trial court
           considered the Tennessee Department of Correction (“TDOC”) investigation
           report in considering the sentence. The TDOC report stated the defendant was
           not an eligible candidate for probation.
       (3) The principles of sentencing and arguments as to sentencing alternatives:
           Tennessee Code Annotated section 40-35-103 designates three main principles
           to be considered upon sentencing: Tenn. Code Ann. § 40-35-103 (A):
           “Confinement is necessary to protect society by restraining a defendant who has
           a long history of criminal conduct;” (B): “Confinement is necessary to avoid
           depreciating the seriousness of the offense or confinement is particularly suited
           to provide an effective deterrent to others likely to commit similar offenses;” or
           (C): “Measures less restrictive than confinement have frequently or recently been
           applied unsuccessfully to the defendant.” This defendant had a history of past
           criminal activity, and anything less restrictive than confinement would certainly
           diminish the seriousness of beating to death a helpless eighty-eight-year old
           woman and then ejaculating into her bloody bed sheets.
       (4) The nature and characteristics of the criminal conduct involved: This was a
           heinous and violent crime. It involved the violent beating to death of an eighty-


                                                 -10-
            eight-year-old woman while she was helpless in her bed. In addition to
            ejaculating into the victim’s bed sheets, the defendant stole candy and a two-
            dollar bill.
The defendant contends the trial court misapplied enhancement factor (4), that the victim was an
eighty-eight-year-old woman, since age alone is not enough to warrant application of this factor. See
State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). The record, however, indicates the trial court did
more than just consider the victim’s age, but considered how the victim’s age and disability made
her particularly vulnerable in being unable to defend herself against a physical attack or to summon
help. The defendant further argues that there are some instances where no victim, regardless of their
physical or mental abilities, could resist an offense committed in a particular manner. State v. Poole,
945 S.W.2d 93, 97 (Tenn. 1997). He claims the victim’s vulnerability was irrelevant to the injuries
she suffered from the beating and that any victim would have suffered similarly. In support of this
proposition, the defendant submits State v. Butler, 900 S.W.2d 305 (Tenn. Crim. App. 1994), where
an elderly woman who had a physical disability was shot and killed, and since no person, regardless
of physical ability, could resist a bullet, this Court concluded her disability was an improper
enhancement factor. A more careful reading and application of Butler to the instant case renders the
opposite result. In Butler, this Court concluded:
        This Court is convinced that the victim’s age and physical disability were not a factor
        in the commission of the offense. If a weight lifter, football player, or any other
        person, male or female, who possessed adequate strength to resist a crime against the
        person, had entered the basement on the morning in question, that person’s strength
        and ability would not have permitted him or her to resist the crime committed by the
        appellant. He would have killed any person who entered the basement on the
        morning in question. In short, the person’s strength and ability to resist the
        commission of an offense would not have been a factor. No person can resist an
        unexpected firing of a weapon from a distance.
Butler, 900 S.W.2d at 313. In the instant case, had the victim been a weight lifter or a football
player, it is overwhelmingly likely they would have been more successful in resisting the physical
assault rendered by the defendant. The defendant likely would not have killed any person lying in
the victim’s bed using the manner of physical assault that he did. In short, in the instant case, the
victim’s strength and ability to resist the offense almost certainly would have been a factor in the
severity of the beating. Our victim was not shot, like the victim in Butler, but beaten. The trial court
heard evidence about the nature of the crime and the disability of the victim and concluded her
vulnerability was an enhancing factor to this beating.


         In State v. Anthony Murff, No. W2001-01459-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS
498, at *39-40 (June 11, 2002 at Jackson), the defendant beat a partially paralyzed, seventy-seven-
year- old man with a hammer, and the vulnerability enhancement factor was applied. The defendant
argued that the enhancement factor was misapplied because, referring to State v. Poole, no victim
could have resisted an offense in that manner. Determining that the first hammer blows would not
have rendered the victim incapable of defending himself, this Court disagreed, stating, “There can
be little doubt, however, that a young and able-bodied man would have been much better able to

                                                 -11-
defend himself from the defendant's attack than the partially paralyzed, seventy-seven-year-old
victim in this case. We conclude, therefore, that the trial court did not err in applying enhancement
factor (4) to increase the defendant’s punishment.” State v. Murff, at *39-40. The instant case is
more similar to Murff than Butler. There is no evidence in the instant case that the defendant used
a weapon in beating the victim, such that it would have made her physical vulnerability irrelevant
to the attack. In contrast, the evidence shows the beating was with the defendant’s bare hands. This
strongly embraces her vulnerability as an enhancing factor.


        Indeed, the State need not even prove the vulnerability was an actual motivating factor for
the crime. As our Supreme Court stated in State v. Lewis, 44 S.W.3d 501 (Tenn. 2001), “[a]
victim’s age or physical condition might make the victim ‘vulnerable’ in a general sense. That
particular vulnerability, however, may play no part in the crime. A vulnerability that is wholly
irrelevant to the crime is not ‘appropriate for the offense’ as required by Tenn. Code Ann. § 40-35-
114.” Id. at 505. The Supreme Court further stated, “Nothing in Poole should be read to place an
additional burden on the State to prove that a defendant actually evaluated the vulnerabilities of his
victims and then acted to capitalize on those perceived vulnerabilities.” Id. In the instant case, we
cannot conclude the victim’s vulnerability was “wholly irrelevant” to the crime. It is enough that
the defendant took advantage of the victim’s particular vulnerability. The victim’s age, weakness,
hearing difficulties, and walking difficulties certainly contributed to the severity of the beating she
suffered. Whether the defendant was aware of these vulnerabilities is irrelevant.

        Therefore we cannot, indeed need not, speculate whether the defendant recognized that the
victim was elderly and disabled, and that recognition motivated him to beat her. We can only base
our decision on whether the defendant shows that the evidence preponderates against the trial court’s
finding that the victim’s vulnerability contributed to the severity of the beating she suffered. We
conclude the record does not preponderate against the trial court’s findings and that enhancement
factor (4) was properly applied.
        (5) Evidence and information offered by the parties on the enhancement and
            mitigating factors in Tennessee Code Annotated sections 40-35-113 and 40-35-
            114:

        As previously indicated, the defendant submitted a list of twelve non-statutory mitigating
factors. The State offered two aggravating circumstances increasing the life sentence for the murder
to life without the possibility of parole. As noted, the trial court found the defendant’s mild
retardation to be a slight mitigating factor and found the following enhancement factors under
Tennessee Code Annotated section 40-35-114 (supp. 2001) (amended 2002):
        (1) The defendant has a previous history of criminal convictions or criminal behavior
            in addition to those necessary to establish the appropriate range;
        (4) (The) victim of the offense was particularly vulnerable because of age or physical
            or mental disability . . .;
        (5) The defendant treated or allowed a victim to be treated with exceptional cruelty
            during the commission of the offense;


                                                 -12-
       (7) The offense involved a victim and was committed to gratify the defendant’s
           desire for pleasure or excitement;
       (8) The defendant has a previous history of unwillingness to comply with the
           conditions of a sentence involving release in the community, Id. § 40-35-114(8);
       (10) The defendant had no hesitation about committing a crime when the risk to
           human life was high; and
       (16) The crime was committed under circumstances under which the potential for
           which bodily injury to a victim was great.

        The defendant is correct in pointing out that the use of enhancement factors that are essential
elements of the offense itself are prohibited and that enhancement factors must be proven by
evidence other than that necessary to establish the offense. State v. Jones, 883 S.W.2d 597, 601
(Tenn. 1994). The elements necessary to establish especially aggravated burglary are found in
Tennessee Code Annotated section 39-14-404(a):
        (1) Burglary of a habitation or building other than a habitation; and
        (2) Where the victim suffers serious bodily injury.
As such, the defendant argues that enhancement factor (5), treating a victim with exceptional cruelty,
was misapplied, because serious bodily injury is an element of especially aggravated burglary. We
conclude that this type of serious bodily injury, an elderly woman being beaten while helpless in her
bed and then having her bed ejaculated upon, is beyond the serious bodily injury required and does
indicate exceptional cruelty. Therefore, we conclude enhancement factor (5) was properly applied.

        The defendant also claims enhancement factors (10) and (16) were misapplied. The State
agrees. To apply factor (10), that the defendant had no hesitation about committing a crime where
the risk to human life was high, that risk needs to be to individuals other than the victim. See State
v. Imfeld, 70 S.W.3d 698, 707 (Tenn. 2002) (noting the distinction in Tennessee Code Annotated
section 40-35-114 factor (10) from factor (16). Factor (16) specifically restricts its application to
“the crime”, and “the victim”. The failure of the legislature to make similar restrictions in (10),
using “risk to human life” language, indicates a broader reading requiring a risk to human life in
addition to the victim)). In the present case, no one else was exposed to danger, so this factor was
inapplicable. As to factor (16), that the crime was committed under circumstances with great
potential for bodily harm, since serious bodily harm is an element of especially aggravated burglary,
this factor was indeed inapplicable.

        The defendant does not challenge the application of enhancement factors (1), (7), and (8).
Additionally, we hold that the trial court properly applied enhancement factors (4) and (5). As to
this factor under Tennessee Code Annotated section 210 (b), we hold it weighs heavily in favor of
sentencing beyond the minimum presumptive sentence.

       Finally, we will review Tennessee Code Annotated section 40-35-210(b)(6):
       (6) Any statement the defendant wishes to make in the defendant’s own behalf about
           sentencing: The defendant made no statement, so it was properly not considered.



                                                 -13-
        Having gone through this analysis, we hold the trial court properly enhanced the defendant’s
sentence beyond the presumptive sentence. Especially aggravated burglary is a Class B felony. Tenn.
Code Ann. § 39-14-404(c). The sentencing range for a Class B felony is not less than eight (8) years
nor more than thirty (30) years. Tenn. Code Ann. § 40-35-111(b)(2). For a Range I sentence, the
range for a Class B felony is between eight (8) and twelve (12) years. Tenn. Code Ann. § 40-35-112
(a)(2). Having found enhancement factors, we conclude the trial court did not err in enhancing the
sentence beyond the minimum eight years. Tenn. Code Ann. § 40-35-210(e); Arnett, 49 S.W.3d at
257.

                                      Consecutive Sentencing

        The defendant contends the trial court erred in ordering the sentence for especially aggravated
burglary to run consecutively to the life sentence for the murder. The trial court ordered the
sentences to be served consecutively, finding it necessary to protect the public against further
criminal conduct by the defendant, and that consecutive sentences reasonably relate to the severity
of the offenses committed. The trial court determined the defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and he had no hesitation about committing a
crime in which the risk to human life is high. The court further found the defendant had an extensive
criminal history.

       A court may order sentences to run consecutively if the court finds by a preponderance of the
evidence that:
        (1) [t]he defendant is a professional criminal who has knowingly devoted such
           defendant’s life to criminal acts as a major source of livelihood;
       (2) [t]he defendant is an offender whose record of criminal activity is extensive;
       (3) [t]he defendant is a dangerous mentally abnormal person so declared by a
           competent psychiatrist who concludes as a result of an investigation prior to
           sentencing that the defendant’s criminal conduct has been characterized by a
           pattern of repetitive or compulsive behavior with heedless indifference to
           consequences;
       (4) [t]he 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;
       (5) [t]he defendant is convicted of two (2) or more statutory offenses involving
           sexual abuse of a minor with consideration of the aggravating circumstances
           arising from the relationship between the defendant and victim or victims, the
           time span of defendant’s undetected sexual activity, the nature and scope of the
           sexual acts and the extent of the residual, physical and mental damage to the
           victim or victims;
       (6) [t]he defendant is sentenced for an offense committed while on probation; or
       (7) [t]he defendant is sentenced for criminal contempt.




                                                 -14-
Tenn. Code Ann. § 40-35-115(b); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
Furthermore, in the event the trial court finds defendant is a “dangerous offender,” it must also
determine whether the consecutive sentences (1) are reasonably related to the severity of the offenses
committed; (2) serve to protect the public from further criminal conduct by the offender; and (3) are
congruent with general principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn.
1995).

         The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Comm’n Comments. The defendant has failed to meet his burden
here. We can find nothing in the record to indicate the trial court erred in determining the defendant
to be a dangerous offender. The particular facts of this case, especially the helplessness of the victim
and the brutality of the beating she suffered, strongly support the trial court’s finding that the
defendant is dangerous. Additionally, despite the defendant’s claims to the contrary, we agree with
the trial court that the defendant had an extensive criminal history. The defendant had been
convicted of simple assault, disorderly conduct and theft, as well as three public intoxications.

        Having determined the defendant to be a dangerous offender, we find nothing in the record
to preponderate against the trial court finding that consecutive sentences in this case (1) are
reasonably related to the severity of the offenses committed; (2) serve to protect the public from
further criminal conduct by the offender; and (3) are congruent with general principles of sentencing.
While the defendant is correct that, under the principles of sentencing in Tennessee Code Annotated
section 40-35-103(4), sentences imposed should be the least severe measure necessary to achieve
the purpose for which the sentence is imposed, that in no way leads us to ignore the principles under
Tennessee Code Annotated section 40-35-115(b), which clearly indicate the legislature’s intent that
occasionally crimes do merit more than the least severe punishment, and the entire principles behind
Tennessee Code Annotated section 40-35-114, which clearly indicate the legislature’s intent that
there are certain factors that should serve to enhance punishment for a crime. The Tennessee Code
is not to be read in a vacuum. If the least severe punishment was always to be given, consecutive
sentencing and enhancement factors would not exist.

       This was a heinous offense. The “dungeon speech” given to the defendant at his sentencing
encapsules the trial court’s determination that the crime was exceptionally cruel. We cannot
conclude the trial court erred in ordering the sentences for especially aggravated burglary to run
consecutively to the life sentence for the murder.

        Accordingly, we affirm all judgments of the trial court.




                                                        __________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE


                                                 -15-
