            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON             FILED
                                MAY 1997 SESSION
                                                              August 5, 1997

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
STATE OF TENNESSEE,              *      C.C.A. # 02C01-9605-CR-00182

             Appellee,           *      SHELBY COUNTY

VS.                              *      Hon. Chris Craft, Judge

KENDRICK M. FORD,                *      (Especially Aggravated Kidnapping,
                                        Aggravated Robbery, Attempted
             Appellant.          *      Aggravated Robbery, and
                                        Aggravated Assault)




For Appellant:                          For Appellee:

A.C. Wharton                            Charles W. Burson
Shelby County Public Defender           Attorney General & Reporter

Edward G. Thompson                      William David Bridgers
Assistant Public Defender               Assistant Attorney General
212 Adams Avenue                               450 James Robertson Parkway
Memphis, TN 38103                       Nashville, TN 37243-0493
(on appeal)
                                        Amy P. Werich
William C. Moore                        Asst. District Attorney General
Assistant Public Defender               201 Poplar Avenue, Third Floor
201 Poplar Avenue, Second Floor         Memphis, TN 38103
Memphis, TN 38103
(at trial)




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

              The defendant, Kendrick M. Ford, was convicted of the especially

aggravated kidnapping and aggravated robbery of Walter Lee Mitchell for which he

received concurrent, Range I sentences of nineteen years and eight years,

respectively. He was also convicted of the attempted aggravated robbery and

aggravated assault of Charles Moore. The trial court imposed concurrent, Range I

sentences of four and three years, to be served concurrently. Because the offenses

against each of the two victims were ordered to be served consecutively, the

effective sentence is twenty-three years.



              In this appeal of right, the defendant challenges the sufficiency of the

evidence and claims that the sentences are excessive. We find no error and affirm

the judgment of the trial court.



              On the evening of November 1, 1994, the victim, Walter Lee Mitchell,

after having delivered a package to a friend at an apartment complex in Memphis,

was assaulted as he returned to his vehicle. The first assailant, later identified as

Michael Mosby, was dressed in a turquoise hooded jacket. Mosby forced the victim

into his backseat as a second man, who wore a black sweater and pants and a gold

chain around his neck, stood by the passenger side door. The second man, later

identified as the defendant, drove the vehicle away as Mosby held a gun on the

victim. The victim overheard one of the men say that the car would be used to "kill

some white boys"; the victim was told that if he tried anything, he would be shot.

The two assailants spoke in pig Latin and referred to each other by number; the

defendant was referred to as number one. Twenty or twenty-five minutes later,

Mosby asked the defendant where "three" and "four" were and then said, "We can't

leave any evidence." Eventually, the victim was forced from the vehicle, had his


                                            2
head covered with a jacket, and was lead into a wooded area where he was tied to a

tree and gagged with a sock. Afterward, he freed his mouth of the sock and called

for help. Within two hours, officers found the victim bound to the tree. Just as the

victim provided officers with a statement, there was a radio report of gunshots and

the description of a vehicle matching that of the defendant.



             Later on the same evening, the victim's car was used to block a

vehicle driven by Charles Moore. The defendant got out of the victim's vehicle and

pointed a pistol at Moore. Moore then startled the defendant by kicking the

windshield and the defendant drove away. Moore called 911 on his cellular phone

and then followed the car driven by the defendant to a dead-end street. The

defendant then fired several shots at Moore; later, four .80 caliber casings were

found at the scene. Moore, who testified that there were street lights in the area,

described the defendant as "dressed in dark clothing."



             Officer Robert J. Honore of the Memphis Police Department, who

heard several of the shots, stopped Moore's vehicle as he sped from the scene.

While Moore was explaining the nature of the incident, he saw Mitchell's car being

driven from the scene. Officer Honore reported by radio the location of the fleeing

vehicle. Officer Eddie B. Bass, Jr., responding to the report, was unable to get the

defendant to stop but did see two men jump from the Mitchell car as it crashed into

a pole. Officer T.J. Griffin, who had also responded to the call, chased the

defendant and Mosby into the Brookwood Apartments where Officer Bass

discovered the defendant knocking at the door of an aunt, Coreen Ford. The officer

then chased and tackled the defendant. Officer Griffin made the arrest while Bass

chased after Mosby. Both Mitchell and Moore were later able to identify the

defendant as their assailant when he was brought by police to their location.


                                          3
                                             I

              The defendant first complains that the evidence is insufficient for the

failure of the state witnesses to make an adequate identification. The defendant

complains that the identification process was overly suggestive and that, in

consequence, the evidence was insufficient.



              A jury verdict, approved by the trial judge, accredits the testimony of

the witnesses for the state and resolves all conflicts in favor of the theory of the

state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). On appeal, the state is

entitled to the strongest legitimate view of the evidence and all reasonable

inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their

testimony, and the reconciliation of conflicts in the evidence are matters entrusted to

the jury as triers of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.

1978). This court may not reevaluate the evidence or substitute its inferences for

those drawn by the trier of fact. Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim.

App. 1978). A conviction may be set aside only when the reviewing court finds that

the "evidence is insufficient to support the finding by the trier of fact of guilt beyond a

reasonable doubt." Tenn. R. App. P. 13(e).



              Here, witnesses for the state identified the defendant as to each of the

four crimes. Each had an opportunity to observe the defendant. Their

identifications were expressed with certainty. There were no instances when those

witnesses misidentified the defendant. Their testimony about the identification of

the defendant was generally consistent. See State v. Dyle, 899 S.W.2d 607, 612

(Tenn. 1995). Thus, in our view, the evidence was sufficient.




                                            4
              To be admissible as evidence, an identification must not have been

conducted in such an impermissibly suggestive manner as to create a substantial

likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377

(1968). In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court held that a

reliable identification procedure, even though suggestive, will not negate an

identification of the defendant. The factors determining whether the procedure was

too suggestive to accept as reliable were determined to be the following:

              (1) the opportunity of the witness to view the criminal at
              the time of the crime;

              (2) the witness' degree of attention;

              (3) the accuracy of the witness' prior description of the
              criminal;

              (4) the level of certainty demonstrated by the witness at
              the confrontation; and

              (5) the length of time between the crime and the
              confrontation.

Id. at 199.



              Next, physical or photographic lineups are the preferred methods of

identification. Either procedure has been determined to be much less suggestive

than a "showup," where the victim is either presented with a suspect or a single

photograph of the suspect. State v. Terry M. Henderson, No. 01C01-9401-CR-

00012, slip. op. 5 (Tenn. Crim. App., at Nashville, Oct. 6, 1994). Beyond that, the

extent to which an identification procedure may suggest a single suspect, even with

the Neil v. Biggers factor, is largely subjective. While the procedure utilized here

was suggestive, it was not, by the use of the factors in Neil v. Biggers so suggestive

as to create any likelihood of a misidentification. The identifications were

independently made by each of the victims.




                                           5
               Each witness had an opportunity to view the defendant from close

range and under circumstances that would indicate attentiveness. Little time

elapsed between the crimes and the confrontation. The other factors also support

the position of the state. In consequence, we find no error by the admission of the

identifications.



                                             II

               During the imposition of sentence for the crimes against the victim

Mitchell, the trial court, which found no mitigating factors as described in Tenn. Code

Ann. § 40-35-113, found four enhancement factors applicable to the crime of

especially aggravated kidnapping:

               (1) history of criminal behavior (desertion from the
               military);

               (2) exceptionally cruel treatment (by blindfolding and
               threats to kill but not by use of the gun, which was
               considered an element of the offense);

               (3) gratification of the defendant's desire for pleasure
               (talk about white people and "having fun" by traumatizing
               the victim Mitchell); and

               (4) the potential for bodily injury (due to the
               victim'sexposure to the cold weather).

Tenn. Code Ann. § 40-35-114(1), (5), (7), and (16). The trial court found no other

enhancement factors nor mitigating factors for the robbery of Mitchell. The

sentence was enhanced from fifteen to nineteen years.



               As to the attempted aggravated robbery of victim Moore, the trial court

found no mitigating factors and no enhancement factors; the trial court did enhance

the sentence for the attempted aggravated robbery:

               (1) history of criminal behavior; and

               (2) leader in the commission of the offense.


                                             6
Tenn. Code Ann. § 40-35-114(1) and (2). The sentence was enhanced from three

to four years.



                 The defendant complains that the sentence was excessive. More

particularly, he insists that his conviction for desertion while in the military should not

have been considered as an enhancement factor because the records presented in

the presentence report did not indicate a disposition on the charge. The defendant,

who had no prior felony record, complains that the trial court, which classified the act

as criminal behavior, should not have enhanced his sentence on this basis even

though it was given only "a little weight, but not much." The defendant also

complains that the trial court should not have found as an enhancement factor that

the victim was treated with exceptional cruelty. See Manning v. State, 883 S.W.2d

635, 639 (Tenn. Crim. App. 1994). Also, the defendant insists that the

enhancement factor of the potential for bodily injury, Tenn. Code Ann. § 40-35-

114(16), was an element of especially aggravated kidnapping and, therefore, could

not be used as a separate enhancement for that offense. See State v. Hill, 885

S.W.2d 357, 363-64 (Tenn. Crim. App. 1994). Finally, the defendant argues that he

should not have been classified as a dangerous offender and subjected to

consecutive sentencing. Tenn. Code Ann. § 40-35-115(b)(4).



                 When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). 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). See

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission


                                             7
Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

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



              In calculating the sentence on a felony conviction, the presumptive

sentence is the minimum within the range if there are no enhancement or mitigating

factors. Tenn. Code Ann. § 40-35-210(c) (amended in 1995 changing the

presumptive sentence for a Class A felony to the mid-point in the range). If there

are enhancement factors but no mitigating factors, the trial court may set the

sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A sentence

involving both enhancement and mitigating factors requires an assignment of

relative weight for the enhancement factors as a means of increasing the sentence.

Tenn. Code Ann. § 40-35-210. The sentence may then be reduced within the range

by any weight assigned to the mitigating factors present. Id.



              Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the


                                           8
court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution:

                 [C]onsecutive sentences should not be routinely imposed
                 ... and ... the aggregate maximum of consecutive terms
                 must be reasonably related to the severity of the
                 offenses involved.

739 S.W.2d at 230. The Sentencing Commission Comments adopted the

cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 act is, in essence,

the codification of the holdings in Gray and Taylor; consecutive sentences may be

imposed in the discretion of the trial court only upon a determination that one or

more of the following criteria1 exist:

                 (1) The defendant is a professional criminal who has
                 knowingly devoted himself to criminal acts as a major
                 source of livelihood;

                 (2) The 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) 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;

                 (5) The 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;


   1
     The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of
prior fe lony conviction s, m ay enh anc e the sen tenc e ran ge b ut is no longe r a listed criterion . See
Tenn. Code Ann. §40-35-115, Sentencing Com mission Comm ents.

                                                       9
             (6) The defendant is sentenced for an offense
             committed while on probation; or

             (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).



             In Gray, our supreme court had ruled that before consecutive

sentencing could be imposed upon the dangerous offender, as now defined by

subsection (b)(4) in the statute, other conditions must be present: (a) that the

crimes involved aggravating circumstances; (b) that consecutive sentences are a

necessary means to protect the public from the defendant; and (c) that the term

reasonably relates to the severity of the offenses.



             More recently, in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995) our

high court reaffirmed those principles, holding that consecutive sentences cannot be

required of the dangerous offender "unless the terms imposed are reasonably

related to the severity of the offenses committed and are necessary in order to

protect the public from further serious criminal acts by the offender." 905 S.W.2d at

938. The Wilkerson decision, which modified somewhat the strict, factual guidelines

for consecutive sentencing adopted in State v. Woods, 814 S.W.2d 378, 380 (Tenn.

Crim. App. 1991), described sentencing as "a human process that neither can nor

should be reduced to a set of fixed and mechanical rules." Id. (internal quotation

marks omitted).



             Especially aggravated kidnapping is a Class A felony with a sentence

of between fifteen and twenty-five years for the Range I offender. Tenn. Code Ann.

§ 40-35-112(a)(1). Aggravated robbery, a Class B felony, requires a sentence

between eight and twelve years. Tenn. Code Ann. § 40-35-112(a)(2). Attempted

aggravated robbery and aggravated assault require three- to six-year sentences.

                                          10
Tenn. Code Ann. § 40-35-112 (a) (3). Thus, only the Mitchell kidnapping and the

Moore attempted aggravated robbery convictions included enhanced sentences.



              The proof establishes that the victim Mitchell was treated or allowed to

be treated with exceptional cruelty. Tenn. Code Ann. § 40-35-114(5). There were

facts, in addition to those establishing the elements of the crime, which warranted

the application of the enhancement. The trial court pointed out that the victim,

whose face was covered during a portion of the ordeal, had his life threatened and

then was subjected to extremely cold weather after being bound to the tree. Had he

not been able to free himself of a gag, his cries for help may have been unheeded.

This factor, in our view, was entitled to significant weight. See State v. Carter, 908

S.W.2d 410, 413 (Tenn. Crim. App. 1995).



              A charge is not considered evidence of a crime when no disposition is

shown. State v. Marshall, 870 S.W.2d 532 (Tenn. Crim. App. 1993). Thus, the

prior criminal behavior factor, because the conviction for desertion was not

established by the proof (apparently by inadvertence), should not have been

applied, even for a little weight. Nonetheless, a mid-range sentence of nineteen

years is not inappropriate. The defendant indicated some pleasure in tormenting

Mitchell by suggesting the stolen vehicle was to be utilized in murders. Tenn. Code

Ann. § 40-35-114 (7).



              Finally, the trial court's determination that there was the potential for

bodily injury due to the victim's exposure to cold weather is supported by the record.

Tenn. Code Ann. § 40-35-114 (16). While enhancement factors that are inherent in

the offense may not be used to increase a sentence, this court has generally held

that factor (16) may not be used where an element of the offense involves the use


                                           11
of a weapon. See, e.g., State v. Hill, 885 S.W.2d 357, 363 (Tenn. Crim. App. 1994)

("It is difficult to discern a situation in which an offense committed with a deadly

weapon would not necessarily entail a risk to human life."). In State v. Jones, 883

S.W.2d 597, 603 (Tenn. 1994), however, our supreme court held that this factor

may be considered if the facts "demonstrate a culpability distinct from and

appreciably greater than that incident to the offense for which he was convicted."

We believe that rationale applies in this case. Proof that the defendant left the

victim tied to a tree on a cold night is not essential to establish the kidnapping. It

does, in our view, indicate a "culpability ... greater than that" necessary to commit

the offense. Thus, the trial court correctly applied this factor and the nineteen-year

sentence is sustainable.



              The four-year sentence for attempted aggravated robbery, one year

above the minimum, was based upon two factors. The defendant does not contest

the finding that he was a leader in the commission of the offenses. Tenn. Code

Ann. § 40-35-114(2). Thus, a reduction in the four-year sentence, only one year

above the minimum, would not be warranted even if a six-month court-martial did

not qualify as "previous criminal history or behavior." Tenn. Code Ann. § 40-35-

114(1).



              Moreover, consecutive sentencing was not improper in this case. We

must defer to the ruling made in the trial court. The defendant does not challenge

the trial court's conclusion that he qualified as a dangerous offender whose behavior

indicates little or no regard for human life and that he had no hesitation about

committing a crime where the risk to life was high. Tenn. Code Ann. § 40-30-

115(b)(4). Any reliance by the defendant for a different result based upon State v.

Woods would be misplaced in light of the ruling by the supreme court in Wilkerson.


                                           12
The trial court determined that consecutive sentencing is necessary to protect the

public from further criminal conduct on the part of the defendant. The threats the

defendant made to kill someone else during the commission of the Mitchell

kidnapping warranted a finding of dangerousness to the public. There was already

one victim of the crime spree when the defendant attempted to rob and then

participated in shooting at the second victim. The imposition of consecutive

sentencing, in our view, reasonably relates to the severity of these offenses.



             Finally, the trial court's use of the same consideration in imposing

consecutive sentencing as is used to enhance a conviction for especially aggravated

kidnapping is permissible. There in no prohibition against using the same facts and

circumstances to support the application of the enhancement factor and a

consecutive sentence. State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App.

1993).



             Accordingly, the judgment is affirmed.



                                         __________________________________
                                         Gary R. Wade, Judge

CONCUR:



______________________________
John H. Peay, Judge



_______________________________
Thomas T. Woodall, Judge




                                          13
