         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 14, 2004

          STATE OF TENNESSEE v. CHRISTOPHER KIRKENDALL

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 02-02070    W. Fred Axley, Judge



                  No. W2003-02393-CCA-R3-CD - Filed November 30, 2004


The appellant, Christopher Kirkendall, was convicted by a jury of aggravated robbery. Following
a hearing, the trial court sentenced the appellant to twelve years incarceration in the Tennessee
Department of Correction. The appellant now appeals, challenging the sufficiency of the evidence
and the sentence imposed by the trial court. Upon review of the record and the parties’ briefs, we
affirm the judgment of the trial court as modified.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed as
                                        Modified.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN , J., joined.
GARY R. WADE, P.J., filed a separate concurring opinion.

Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward, Assistant Public Defender
(on appeal); and Robert Trent Hall, Assistant Public Defender (at trial), for the appellant, Christopher
Kirkendall.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
William L. Gibbons, District Attorney General; and David Pritchard and Jennifer Nichols, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

        On the afternoon of November 21, 2001, the victim stopped at a “local . . . corner store” to
purchase a beverage. The victim testified at trial that as he got into his truck to leave, a man, later
identified as the appellant, approached and asked for a ride. The appellant told the victim that he
“wanted to catch up with his buddy just up the road.” The victim agreed to give the appellant a ride.
Although the victim did not know the appellant’s name, he recognized him from the neighborhood.
       The victim drove the appellant a short distance to a location indicated by the appellant.
However, the appellant’s friend was not at that location. The appellant asked the victim to “turn
around.” The victim complied and returned to the intersection where the “corner store” was located.
He stopped his truck at a bus stop across the street from the store and “suggested that [the appellant]
go ahead and get out there.” Instead, the appellant asked the victim to drive him to nearby Canfield,
where the victim assumed the appellant lived.

        As the victim drove to Canfield, the appellant told him to stop. The victim complied.
According to the victim, the appellant “turned to the right like he was going to get out and put his
back to me and then he turned around with the pistol in his hand. . . . He said give me your money
or I’m going to kill you.” The victim removed his money from his shirt pocket, “wadded it up,” and
threw it out of the truck window. The appellant remained seated in the truck and told the victim, “I
want your wallet too. . . . [G]ive me your wallet or I’m going to kill you.” When the victim informed
the appellant that he did not have a wallet, the appellant shot the victim in the right thigh. The
appellant then exited the truck, and the victim drove away.

        The victim drove home and told his mother to call 9-1-1. Shortly thereafter, the police and
an ambulance arrived. After providing the officers with a report of the incident, the victim was taken
to the hospital where he was treated and released.

        Several days later, the victim observed a photograph of the appellant with the appellant’s
name underneath. The victim telephoned the robbery squad and gave Sergeant Ralph Peperone the
appellant’s name. Sergeant Peperone asked the victim to come to the robbery squad to view a
photographic lineup. When the victim viewed the lineup, he immediately identified the appellant
as the man who robbed and shot him.

        Joe Stark, a crime scene investigator with the Memphis Police Department, testified that on
November 21, 2001, he was called to investigate the crime scene in the instant case. When he
arrived at the victim’s house, he was informed that the victim had been involved in a shooting in his
truck. Stark photographed the truck and dusted the passenger-side door for fingerprints. He was
able to lift two sets of prints from the interior and the exterior of the door. He also discovered a
spent casing on the floorboard. In the driver’s seat, Stark observed a hole with what appeared to be
blood around it. Believing it to be the bullet hole, he cut the hole open in an attempt to locate the
bullet. Stark observed an indentation where the bullet had struck the metal plate underneath the seat,
but he was unable to locate the bullet.

        Nathan Gathright, a latent print examiner with the Memphis Police Department, testified that
on December 11, 2001, he received a request from Sergeant Peperone to compare the prints lifted
from the victim’s truck with those of the appellant. Gathright found three matches. Bobby Spence,
a fingerprint technician with the Records and Identification Division of the Shelby County Sheriff’s
Department (R & I), testified at trial that at the State’s request he obtained prints of the appellant’s
fingers and compared them to the prints contained in R & I file number 305367, which file belonged
to the appellant. The prints were a match.


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       Sergeant Ralph Peperone testified that on December 11, 2001, the victim telephoned and
informed him that he had observed a photograph of the individual who had robbed and shot him.
The victim also provided Sergeant Peperone with the individual’s name. Sergeant Peperone
obtained the fingerprints lifted from the victim’s vehicle and asked the latent print examiners to
compare them with the appellant’s fingerprints. He was subsequently advised that the fingerprints
were a match.

        That same day, Sergeant Peperone telephoned the victim and asked him to come to the
robbery squad and view a photographic lineup. Sergeant Peperone prepared a photographic lineup
that included a photograph of the appellant. Upon viewing the photographs, the victim immediately
identified the appellant as the individual who robbed and shot him.

        Thereafter, the Shelby County Grand Jury returned an indictment, charging the appellant with
two counts of aggravated robbery. Based upon the evidence presented at trial, the jury convicted the
appellant as charged in count one of the indictment, but acquitted the appellant on count two.
Following a hearing, the trial court sentenced the appellant to twelve years incarceration. The
appellant now appeals challenging the sufficiency of the evidence and the sentence imposed by the
trial court.

                                             II. Analysis

                                   A. Sufficiency of the Evidence

         When an appellant challenges the sufficiency of the convicting evidence, the standard for
review is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P.
13(e). On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value
to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the
jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh
or reevaluate the evidence. Id. Because a jury conviction removes the presumption of innocence
with which a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a
convicted defendant has the burden of demonstrating to this court that the evidence is insufficient.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Aggravated robbery is defined in pertinent part as “the intentional or knowing theft of
property from the person of another by violence,” accomplished with a deadly weapon. Tenn. Code
Ann. §§ 39-13-401(a), -402(a)(1) (2003).

        In the instant case, the appellant’s sufficiency claim is based upon the victim’s identification
of the appellant. Specifically, the appellant asserts that the victim’s identification of the appellant


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as the perpetrator of the offense is insufficient to support the verdict beyond a reasonable doubt. The
identification of a defendant as the perpetrator of the offense for which he is on trial is a question of
fact for the jury upon consideration of all competent proof. State v. Strickland, 885 S.W.2d 85, 87
(Tenn. Crim. App. 1993). The testimony of a victim identifying the perpetrator is, alone, sufficient
to support a conviction. Id. at 87-88.

        The proof at trial reflected that as the victim drove away from a convenience store a man
asked him for a ride. The victim recognized the man from his neighborhood and agreed to give him
a ride. During the drive, the man ordered the victim to stop the truck. The appellant then robbed
and shot the victim. Several days later, the victim observed a photograph of the perpetrator of the
offense. The man’s name was located under the photograph. The victim reported the name to the
police and, upon viewing a photographic lineup, immediately identified the appellant as the man who
robbed and shot him. Moreover, latent prints lifted from the passenger-side door of the victim’s
truck matched those of the appellant. We conclude that this evidence is more than sufficient to
sustain the appellant’s conviction.

                                             B. Sentence

        Next, the appellant contends that the sentence imposed by the trial court was excessive
because the trial court misapplied certain enhancement factors. When an appellant challenges 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) (2003). However, this presumption of correctness is “conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the record
demonstrates that the trial court failed to consider the sentencing principles and the relevant facts and
circumstances, review of the sentence will be purely de novo. Id.

        In conducting our review, this court must consider (1) the evidence, if any, received at trial
and at the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the
arguments of counsel relative to the sentencing alternatives; (4) the nature and characteristics of the
offenses; (5) any mitigating or enhancement factors; (6) any statements made by the appellant on his
own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-
35-102, -103, -210 (2003); see also Ashby, 823 S.W.2d at 168. The burden is on the appellant to
show that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission
Comments.

        The appellant was sentenced as a Range I standard offender, for which the applicable range
for a Class B felony is eight to twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (2003). The
presumptive sentence for a Class B felony is the minimum within the applicable range if there are
no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If the trial court finds that
such factors do exist, the court must start at the presumptive sentence, enhance the sentence within
the range as appropriate for the enhancement factors, and then reduce the sentence within the range


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as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). There is no
mathematical formula for valuating factors to calculate the appropriate sentence. State v. Boggs, 932
S.W.2d 467, 475 (Tenn. Crim. App. 1996). “Rather, the weight to be afforded an existing factor is
left to the trial court’s discretion so long as the trial court complies with the purposes and principles
of the 1989 Sentencing Act and its findings are adequately supported by the record.” Id. at 475-76.

         At the sentencing hearing, defense counsel relied upon the presentence report. Defense
counsel acknowledged the appellant’s extensive juvenile record, but noted that this was the
appellant’s first conviction as an adult. The State submitted copies of the victim’s impact statement
and the appellant’s juvenile history. The State also presented the testimony of the victim, who
testified that the appellant had shattered his “sense of community” and that he now carried a pistol
for protection.

       Following the victim’s testimony and the arguments of counsel, the trial court sentenced the
appellant to twelve years incarceration, finding,

                          I know that you possessed or employed a firearm during the
                  commission of this offense and that you had no hesitation to commit
                  this crime when the risk to human life was high. You could have
                  killed him.

                          You knew when you pulled that trigger the potential for
                  bodily injury was great. And you pulled that trigger, oddly enough,
                  after he had given you the money, not to make him give you the
                  money because he had already done that. . . . Then I look at the fact
                  you were adjudicated to have committed a delinquent act or acts . . .
                  as a juvenile that would constitute a felony if it was committed as an
                  adult.

           Based upon these findings, it appears that the trial court applied the following enhancement
factors:

                  (10) The defendant possessed or employed a firearm, explosive
                  device or other deadly weapon during the commission of the offense;
                  (11) The defendant had no hesitation about committing a crime when
                  the risk to human life was high;
                  (17) The offense was committed under circumstances under which
                  the potential for bodily injury to a victim was great; and
                  (21) The defendant was adjudicated to have committed a delinquent
                  act or acts as a juvenile that would constitute a felony if committed
                  by an adult.

Tenn. Code Ann. § 40-35-114 (2003).


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        On appeal, the appellant challenges the application of enhancement factors (10), (11), and
     1
(17). We conclude, and the State concedes, that because the use of a firearm was an essential
element of the instant offense, enhancement factor (10) was applied in error. State v. Nix, 922
S.W.2d 894, 903 (Tenn. Crim. App. 1995). However, the State, without citing any authority,
contends that because the appellant shot and wounded the victim after the completion of the robbery,
application of factors (11) and (17) was warranted in the instant case. We disagree with the State’s
contention. This court has previously concluded that “[t]he offense of aggravated robbery
necessarily entails a high risk to human life and a potential for great bodily harm.” State v.
Claybrooks, 910 S.W.2d 868, 873 (Tenn. Crim. App. 1994). Thus, enhancement factors (11) and
(17) are inherent in the offense of aggravated robbery. Accordingly, we conclude that the trial court
improperly applied enhancement factors (10), (11), and (17).

        In his initial appellate brief, the appellant did not challenge the application of enhancement
factor (21). However, prior to our review on appeal, the appellant filed a motion requesting this
court to consider the impact on his sentence of the United States Supreme Court’s decision in
Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004). This court has recognized that Blakely
“calls into question the continuing validity of our current sentencing scheme.” State v. Julius E.
Smith, No. E2003-01059-CCA-R3-CD, 2004 WL 1606998, at *4 (Tenn. Crim. App. at Knoxville,
July 19, 2004); see also State v. Michael Wayne Poe, No. E2003-00417-CCA-R3-CD, 2004 WL
1607002, at *9 (Tenn. Crim. App. at Knoxville, July 19, 2004). In Blakely, __ U.S. __, 124 S. Ct.
at 2537 (citations omitted), the Supreme Court held that

                  the “statutory maximum” for Apprendi [v. New Jersey, 530 U.S. 466,
                  120 S. Ct. 2348 (2000)] purposes is the maximum sentence a judge
                  may impose solely on the basis of the facts reflected in the jury
                  verdict or admitted by the defendant. In other words, the relevant
                  “statutory maximum” is not the maximum sentence a judge may
                  impose after finding additional facts, but the maximum he may
                  impose without any additional findings. When a judge inflicts
                  punishment that the jury’s verdict alone does not allow, the jury has
                  not found all the facts “which the law makes essential to the
                  punishment,” and the judge exceeds his proper authority.

         In his Blakely argument, the appellant contends that his sentence should be reduced “because
the trial court imposed sentence based upon facts not reflected in the jury verdict or admitted by the
[appellant].” However, we note that at sentencing the appellant acknowledged that his juvenile
record was extensive. Accordingly, we conclude there was no error in the application of
enhancement factor (21). See State v. Tony O. Johnson, No. W2003-02098-CCA-R3-CD, 2004 WL

         1
          The appellant also argues that the trial court applied the improper presumptive minimum sentence, starting at
the midpoint in the range rather that the minimum. At sentencing, the trial court stated, “Now I considered at a midrange
10 years or 8 years as if I could go down from the 10 years and I couldn’t.” W e are unable to conclude from this
language that the trial court sentenced from the midpoint in the range. Rather, we believe that the trial court corrected
his misstatement that the presumptive minimum was the midpoint, ten years.

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2108234, at *6 (Tenn. Crim. App. at Jackson, Sept. 21, 2004); State v. Steven M. Stinson, No.
E2003-01720-CCA-R3-CD, 2004 WL 1698203, at *8 (Tenn. Crim. App. at Knoxville, July 29,
2004). Nevertheless, because only one enhancement factor is applicable, we conclude that the
appellant’s sentence should be modified to ten years.

                                        III. Conclusion

         Accordingly, the appellant’s sentence is modified to ten years confinement. The judgment
of the trial court is otherwise affirmed.



                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE




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