         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE             FILED
                           DECEMB ER SESSION, 1998          May 14, 1999

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,    )             C.C.A. NO. 03C01-9802-CR-00056
                       )
     Appellee,         )
                       )
                       )             HAMILTON COUNTY
VS.                    )
                       )             HON. DOUGLAS A. MEYER
ERIC DEWAYNE MCELMORE, )             JUDGE
                       )
     Appe llant.       )             (Dire ct Ap pea l - Agg ravat ed R obb ery)




FOR THE APPELLANT:                   FOR THE APPELLEE:

ARDENA J. GARTH                      JOHN KNOX WALKUP
District Public Defender             Attorney General and Reporter

DONNA ROBINSON MILLER                ELLEN H. POLLACK
Assistant District Public Defender   Assistant Attorney General
Suite 30 0-701 C herry St.           425 Fifth Avenu e North
Chattanooga, TN 37402                Nashville, TN 37243

                                     BILL COX
                                     District Attorney General

                                     C. CALDWELL HUCKABAY
                                     Assistant District Attorney
                                     300 Market Street
                                     Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


       On January 14, 1997, Appellant Eric D. McElmore pled guilty to two counts

of aggra vated robbe ry. On A pril 3, 1997, Appellant pled guilty to another count

of aggravated robbery and a number of counts involving other charges. After a

sentencing hearing on May 29, 1997, the trial court sentenced Appellant as a

Range I standard offender to a term of ten years for the first agg ravated robbe ry

and twelve years for the seco nd aggrava ted robbery, with the sentences to run

concurren tly. The trial court also imposed a sentence of twelve years for the third

aggravated robbery, with this sentence to run consecutively to the other two

sentences. Appellant challenges all three of his aggravated robbery sentences,

raising the following issues:

       1) whether the trial court imposed excessive sentences; and

       2) whether the trial court erred when it imposed consecutive sentencing.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                      I. FACTS




       On January 21, 1996, Appellant and at least two other arme d individ uals

entered a Hooters Restaurant and took approximately $10,000 in cash from the

business.    One or m ore of the arm ed robbers then ordered some H ooters

emplo yees into a closet an d forced them to remov e their cloth es.



       On June 20, 1996, Appellant entered the offices of Dixie Stamp and

Machine and pointed a gun at Rodney Moore and Roy Covington. Appellant then



                                           -2-
robbed Moore and Covington of their wallets and fled through an alley. Moore

then retrieved a gun and gave chase. Appellant then shot Moore in the thigh and

Moore returned fire and sh ot Appe llant in the left ha nd, left leg, an d left foot.




                          II. LENGTH OF SENTENCES




       Appellant conte nds th at the tria l court e rrone ously s enten ced h im to a

longer term than he deserves for each of his three convictions. We disagree.



       “When reviewing sentencing issues . . . including the granting or denial of

probation and the length of sentence, the appellate cou rt shall conduct a d e novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determ inations mad e by the court from which the ap peal is

taken are correct.” Tenn. Code Ann. § 40-35-4 01(d) (1997). “However, the

presumption of corre ctnes s whic h acc omp anies the trial c ourt’s a ction is

conditioned upon the affirmative show ing in the record tha t the trial court

considered the sentencing principles and all relevant fa cts and c ircums tances .”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evide nce, the presentence report, the sentencing principles,

the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s

statements, the nature and character of the offense, and the defendant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169.                “The defendant has the burden of

demon strating that the sente nce is improp er.” Id.




                                          -3-
         In this case , Appella nt was co nvicted of th ree cou nts of aggravated

robbery, a Class B felony. See Tenn. Code Ann. § 39-13-402 (1997). The

sentence for a Range I offender convicted of a Class B felony is between eight

and twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (19 97). W hen bo th

enhancement and mitigating factors are applicable to a se ntenc e, the c ourt is

directed to begin with the minimum sentence, enhance the sentence within the

range as app ropriate for the enhancement factors, and then reduce the sentence

within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-

35-210(e) (19 97).



         After the sente ncing he aring, the tria l court imp osed a twelve year

senten ce for the a ggravate d robbe ry that occu rred at the restaura nt, a ten year

sentence for the aggravated robbery of Covington, and a twelve year sentence

for the aggravated robbery of Moore.1                         In determining the length of these

sentences, the trial cour t found tha t the following enhan ceme nt factors applied

to all three se ntence s: (1) that A ppellant h ad a pre vious histo ry of criminal

convictions or criminal behavior in addition to those necessary to establish the

approp riate sentencing range; (8) that Appellant had a previous history of

unwillingness to comply with the conditions of a sentence involving release into

the comm unity; (10) tha t Appella nt had n o hesitatio n abou t comm itting a crime


         1
          The judgment forms state that the sentences are twelve years for the aggravated robbery at the
restaurant, twelve years for the aggravated robbery of Covington, and ten years for the aggravated
robbery o f Moor e, with the se ntence for the ag gravate d robbe ry at the resta urant to ru n cons ecutively to
the aggravated robbery of Covington. However, the transcript of the sentencing hearing indicates that the
trial court actually imposed a twelve year sentence for the aggravated robbery of Moore and a ten year
sentence for the aggravated robbery of Covington and ordered the sentence for the aggravated robbery at
the restaurant to run consecutively to the sentence for the aggravated robbery of Moore. When there is a
conflict be tween th e court m inutes or ju dgm ent and th e transc ript, the trans cript contro ls. State v. Moore,
814 S.W .2d 381, 3 83 (Te nn. Crim . App. 199 1); State v. Da vis, 706 S.W.2d 96, 97 (Tenn. Crim. App.
1985). T herefo re, the trial cou rt’s judgm ent form s shall be m odified by this C ourt’s judg men t to reflect a
twelve year sentence for the aggravated robbery of Moore and a ten year sentence for the aggravated
robb ery of Cov ingto n, with the s ente nce for th e agg rava ted ro bbe ry at the resta uran t to run cons ecu tively
to the sentence for the aggravated robbery of Moore.

                                                       -4-
in which the risk to human life was high; and (20) that Appellant had been

adjudicated of a de linque nt act a s a juve nile tha t would have b een a felony if

committed by an adu lt. See Tenn. Code Ann. § 40-35-114(1), (8), (10), & (20)

(1997). The trial court also found that the following enhancement factors applied

only to the sentence for the aggravated robbery at the restaurant: (2) that

Appellant was the leader in an offense involving two or more criminal actors; (3)

that the offense involved more than one victim; and (7) that the offense involved

a victim a nd wa s com mitted to gratify Appe llant’s desire for pleasure or

excitem ent. See Tenn. C ode Ann . § 40-35-114 (2), (3), & (7) (1997). The trial

court also fo und th at the fo llowing enha ncem ent fac tor app lied on ly to the

sentence for the aggravated robbery of Moore: (6) that the personal injuries

inflicted on the victim were particularly g reat. See Tenn. Code Ann. § 40-35-

114(6) (1997). The trial court also found that mitigating factor (13) applied to all

three sentences because Appellant is mildly retarded and has experienced

emotional problems, he had cooperated with the police, he was s exually abused

as a child, and he had nu merou s family pro blems . See Tenn. Code Ann. § 40-

35-113(13) (1997). Finally, the trial court foun d that the enha nceme nt factors

outweig hed all of th e mitigatin g factors.



       Appellant does n ot challen ge the application of enhancement factor (1) and

we conclude that it was prop erly applied to all three sentences. Appellant has a

previous adult c rimina l record consisting of one conviction for cocaine

possession, one conviction for theft of property worth between $1,000 and

$10,000, two convictions for theft of property worth up to $500, and two

convictions for crimin al trespas s. W e conc lude that th is factor is en titled to

significant w eight.

                                           -5-
       Appellant likewise does not challenge the application of enhancement

factor (8) and we conclude that it was properly applied to all three sentences.

Appellant had received probation in a previous case and that probation was

revoked after he viola ted the term s of prob ation.



       Similarly, Appellant does not challenge the application of enhancement

factor (20) and we conclude that this factor was properly applied to all three

sentences. The record indicates that Appellant has a juvenile adjudication for

aggravated burglary. This would have been a felony if com mitted by an adu lt.

See Tenn. Code Ann. § 39-14-403(b) (1997) (“Aggravated burglary is a Class C

felony.”).



       In addition, Appellant does not challenge the application of enhancement

factor (3) to the sentence for the aggravated robbery at the restaurant and we

conclude that this factor was properly applied to this sentence . The record

indicates that when Appellant and the other armed individuals entered the

restaura nt, some or all of them forced several emplo yees into a closet and then

forced th em to re move their clothe s.



       Appellant does challenge the application of enha ncem ent factor (2 ) to his

sentence for the aggravate d robbery at the re staurant. Specifically, Appellant

contends that there w as no e vidence that he w as a lead er in the offe nse. W e

agree with Appellant that the trial court erred when it applied enhancement factor

(2). Although the record indicates that at least two other individuals participated

with Ap pellan t in the commission of this crime, the record does not contain any

evidence about Appellant’s actions in the preparation for or during the

                                          -6-
com mission of the offense tha t demons trates that he was a leader in any w ay.

In fact, the trial court did not identify any basis for applying this factor and the

State ’s only argu ment fo r why this fa ctor ap plied was that Appellant was the

participant who had most recently worked at the restaurant. We cannot agree

that the me re fact that A ppellant h ad work ed at this re stauran t, without more ,

established that he was a leader in the commission of the offense.



        Appellant also challenges the application of enhancement factor (6) to his

sentence for the aggravate d robbery of M oore. W e agree that the trial court

erred when it applied factor (6) to this sentence. Although there is evidenc e in

the record that Appellant shot Moore in the leg, the record does not reflect the

seriousness of the wound. While it certainly may be true that Moore sustained

serious bodily injury when he was shot in the leg, there is no proo f in the record

that this was the case. Thus, the trial court erred when it applied factor (6).

Howeve r, because the record does reflect that Appellant shot Moore while fleeing

from the scene,2 we conclud e in our de no vo review that the trial court should

have applied enhancement factor (12) beca use A ppella nt willfully in flicted b odily

injury upon Moore during the commission of a felony. 3 See Tenn . Code Ann. §

40-35-114 (12) (1997). 4


         2
           Appellant maintains that he shot Moore in self-defense and he claims that a jury acquitted him of
the attempted first degree m urder of Moore bec ause it believed his theory of self-defense. However,
although the record indicates that Appellant was acquitted of the attempted first degree murder of Moore,
there is nothing in the record that indicates that the jury acquitted Appellant because it believed his theory
of self-defense.

        3
          Although Appellant apparently shot Moore after he had taken Moore’s wallet and was attempting
to flee, we note that “the crime of robbery is not completed the moment the stolen property is in the
possession of the robbers , but may be deem ed to continue during their attempt to escape.” Burgin v.
State , 217 Te nn. 682, 6 87–88 , 400 S.W .2d 539, 5 41 (196 6); W hite v. State , 533 S.W.2d 735, 738 (Tenn.
Crim . App. 197 5); State v. Larry Donald Smith & Jeffrey Sanford , No. 01C01-9201-CC-00021, 1992 WL
217751, at *2 (Tenn. Crim . App., Nashville, Nov. 30, 1992).

        4
          Appellant contends that under State v. Holman, 611 S.W.2d 411 (Tenn. 1981), evidence that he
shot M oore wa s inadm issible bec ause h e was a cquitted o f the attem pted first de gree m urder of Moore . It
is true that the Tennessee Supreme Court stated in Holman that in a trial on the issue of guilt, “evidence

                                                     -7-
        Appellant also challenges the application of enha ncem ent fac tor (7) to his

sentence for the agg ravated ro bbery at th e restau rant. W e agree . The S tate has

the burden of demon strating that the crime was com mitted to gratify a

defen dant’s desire for p leasure or excitem ent. State v. Adams, 864 S.W.2d 31,

35 (Tenn. 1993). In this case, the State failed to introduce any evidence that the

robbery itself was c omm itted for th e purp ose o f gratifyin g App ellant’s desire for

pleasure or excitement. There is evidence in the record that Appe llant an d/or his

companions forced some of the resta urant em ployees to remove their clothing.

Howeve r, while this act may well have been motivated by a desire for sexual

pleasure, this does not mean that the robbery itself was committed for that

purpose. In short, the State failed to introduce an y evidence that the robbery was

committed to gratify A ppella nt’s desire for sexual pleasure, rather than for some

other purpose such as obtaining money. The State has simply not met its burden

of showing that factor (7) applied.



        Appellant further contends that the trial court erred when it applied

enhancement factor (10) to all three of his sentences. Specifically, Appellant

contends that this was e rror be caus e a hig h risk to hum an life is inherent in the

crime of agg ravate d robb ery. Th is Court has previously stated that absent any

proof establishing risk to life other than the victim ’s, enh ance men t factor (1 0) is

inapp licable to sentences for aggravated robbery because a high risk to human

life is an eleme nt of the offe nse. State v. Hicks, 868 S.W.2d 729, 732 (Tenn.


that the defendant committed an alleged crime other than that for which he is on trial should not be
admitted when he h as been acquitted of such alleged other crim e.” Id. at 413. However, in State v.
Desirey, 909 S.W.2d 20 (Tenn. Crim. App. 1995), this Court noted that the concerns in a jury trial about
the introduction of other crimes evidence do not apply equally to a sentencing hearing conducted by a trial
court pursuant to the 1989 Sentencing Reform Act and suggested that even evidence of an offense for
which a d efenda nt was a cquitted m ight be co nsidere d in the se ntencing contex t. Id. at 31–32. In addition,
Appellant’s argument ignores the fact that Appellant himself introduced evidence during the sentencing
hearing that he ha d shot M oore in the leg.

                                                    -8-
Crim. App. 1993). Although there is no evidence in the record that Appellant

caused a risk to the life of anyone other than the victims during the aggravated

robbery at the restaurant or the aggravated robbery of Covington, the State

contends that this factor was applicable to the sentence for the aggravated

robbery of Moore because Appellant was firin g his g un in th e direc tion of a child

care center when he shot Moore. However, the only part of the record wh ich

indicates that Appellant fired towards a child care center is the transcript of the

two prose cutors ’ argum ents a t the se ntenc ing he aring.     It is a well known

princip le of law that “stateme nts made by counse l during a hearing or a trial are

not evidence.” State v. Dykes, 803 S.W .2d 250, 254 (Tenn. Crim . App. 1990 ).

In addition, n o stipulation to this fact is apparent on the face of the record. Thus,

the trial court erred whe n it applied factor (10).



      Finally, Appellant contends that the trial court failed to give proper weight

to the mitiga ting factors in this case. Th e record indicate s that the trial court

recognized the followin g mitigatin g eviden ce: App ellant has an I.Q. of between

64 and 68, Appellant was raped as a child, Appellant suffered emotional

problems after the death of his s ix-year-old brother, Appellant came from a

broken home, Appellant has speech and hearing difficulties, and Appellant had

some minor potential for rehabilitation. However, the trial court found that the

enhancement factors completely outweighed the mitigating factors for the

sentences for the aggravate d robbery at the restaurant and the aggravated

robbery of Moore and thu s, maxim um se ntence s were a ppropria te. W e conclude

that the trial court properly con sidered the ab ove evidence under mitigating factor

(13). See Tenn. Code Ann. § 40-35-11 3(13) (1997 ). Further, we agree with the

trial court that, under the circumstances of this cas e, this m itigating eviden ce is

                                          -9-
entitled to little weight, when balanced against the enha ncem ent fac tors in th is

case. As this Court has previously stated, “[e]ven if some evidence of mitigation

exists, the applicable enhancement factors [may] so strongly outweigh the

mitigating factors so that the maximum senten ce is warra nted.” State v. Ruane,

912 S.W .2d 766 , 785 (T enn. C rim. App . 1995).



       In short, we hold that because the four applicable enhance ment factors

com pletely outweigh the mitigating factors, a sentence of twelve years for the

aggravated robbery at the restaurant is appropriate in this case. In addition, we

hold that be caus e the fo ur app licable enhancement factors completely outweigh

the mitigating factors, a sentence of twelve years for the aggravated robbery of

Moo re is also appropriate in this case. Further, we hold that because the three

applic able enhan ceme nt factors o nly partially ou tweigh the mitigating factors, a

sentence of ten years for the a ggrav ated ro bbery of Cov ington is app ropria te in

this case .



                        III. CONSECUTIVE SENTENCING




       Appellant contends that the trial court erred when it ordered his sentence

for the ag grava ted rob bery a t the res tauran t to run c onse cutively to the sentence

for the aggravated robbery of Moore. We disagree.



       Consec utive sentencing is g overned by T ennessee Code Annotated

section 40-35-115.      The trial court has the discretion to order co nsecutive

sentencing if it finds that o ne or m ore of the required statutory crite ria exist. State

v. Black, 924 S.W.2 d 912, 9 17 (T enn. C rim. A pp. 19 95). Fu rther, th e cou rt is

                                           -10-
required to determine whether the consecutive sentences (1) are reas onab ly

related to the severity of the offenses committed; (2) serve to protect the public

from further criminal con duct by the offend er; and (3) are congruent with general

principles of senten cing. State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5).



       In imposing consecutive sentences, the trial court found that Appellant was

an offender whose record of criminal activity was extensive and was a dangerous

offender whose behavio r indicates little or no rega rd for hum an life and who has

no hesitation in committing a crime in which the risk to huma n life is high. See

Tenn. Code A nn. § 40-35-1 15(2), (4) (1997). We agree with the trial court that

Appellant is an offend er who h as an e xtensive c riminal rec ord. Indeed, Appellant

has an adult criminal record consisting of one conviction for cocaine possession,

one conviction for th eft of prope rty worth be tween $ 1,000 a nd $10 ,000, two

convictions for theft of prope rty worth up to $500, and two convictions for criminal

trespass. In addition, Appellant’s record also consists of juvenile adjudications

for aggravated burglary, theft of property worth up to $500, assault, and three

adjudications for delinque nt acts tha t are not de fined. W e also agree with the trial

court that Appellant is a dangerous offender whose behavior indicates little or no

regard for huma n life and who has no hesitation in committing a crime in which

the risk to human life is high. Indeed, within a five month period, Appellant

committed three aggravated robberies by use of a deadly weapon and he fired

at least two shots at a victim, one of which hit the victim in the leg.



       In this case , the trial court made no express finding that the Wilkerson test

was satisfied. Howeve r, we conclud e that it is. First, consecutive sen tences are

reaso nably related to the seve rity of Appe llant’s offens es. Indeed, Appellant was

                                          -11-
convicted of three serious felony offenses that put the lives of several victims at

risk. Second, co nsecutive sen tences are require d in this case in order to protect

the public from further criminal conduct by Appellant. The record indicates that

Appe llant’s criminal condu ct has beco me m ore and m ore serious ove r time.

Further, the fact that Appellant continued to engage in criminal activity from age

twelve until he was arrested at age twenty for the o ffense s in this case indicates

that he poses a continuing threat to the public. Finally, consecutive sentencing

in this case is congruent with general principles of sentencing.5 This issue has

no me rit.



        Accordingly, the judgment of the trial court is AFFIRMED.



                                           ____________________________________
                                           JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR. JUDGE




        5
          Appellant contends that the trial court erred when it ordered the sentence for the aggravated
robbery at the restaurant to run consecutively to the sentence for the aggravated robbery of Mo ore
because the aggravated robbery at the restaurant occurred first in time. As authority for this proposition,
Appellant cites Tennessee Code Annotated section 40-20-111(a) and State v. Arn old, 824 S.W.2d 176
(Tenn. Crim. App. 1991). However, these authorities merely stand for the proposition that a sentence may
not be or dered to run con secutive ly to a senten ce that w ill be impos ed in the fu ture. See Tenn. Code Ann.
§ 40-20 -111(a) (1997); Arno ld, 824 S.W.2d at 178. In addition, this Court has previously held that when a
court imposes c onsecutive sentences, it is irrelevant whether the conviction for the first offense occurs
before the conv iction for the secon d offens e and it is im mate rial whethe r senten ce one is conse cutive to
senten ce two, o r vice vers a, beca use the senten ces are conse cutive in eithe r case. State v. Blanton, 926
S.W .2d 953, 961 (Tenn. Crim . App. 1996).

                                                   -12-
