        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 19, 2011 Session

                 STATE OF TENNESSEE v. ROBERT L. ADAMS

             Direct Appeal from the Circuit Court for Rutherford County
                        No. F-61909B     David Bragg, Judge


               No. M2010-00916-CCA-R3-CD - Filed November 8, 2011


The defendant, Robert Lee Adams, fled justice while the jury was deliberating numerous
charges against him stemming from his participation in a drug-related shooting in 2007. The
jury found the defendant guilty of attempted first degree murder, a Class A felony; especially
aggravated kidnapping, a Class A felony; aggravated robbery, a Class B felony; and
conspiracy to commit kidnapping, a Class D felony. The defendant was sentenced in
absentia to an effective sentence of life without the possibility of parole plus twenty years.
The defendant’s trial counsel filed a timely motion for new trial. In response, the State
moved to dismiss the defendant’s motion on the grounds that the defendant had abandoned
his right to proceed by absconding from the court’s jurisdiction. After a hearing held while
the defendant was still in absentia, the trial court dismissed the defendant’s motion for a new
trial pursuant to the fugitive disentitlement doctrine and allowed the defendant’s trial counsel
to withdraw soon thereafter. Weeks later, the defendant was returned to custody, filed a pro
se notice of appeal, and was appointed new counsel. On appeal, the defendant argues that:
(1) the trial court erred by dismissing his motion for a new trial; (2) the evidence was
insufficient to support his convictions; (3) the trial court erred by denying his trial counsel’s
motion for a continuance; and (4) the trial court applied improper enhancement factors when
it sentenced him for his conspiracy and aggravated robbery convictions. The State argues
that we must dismiss the defendant’s appeal for lack of jurisdiction. We conclude that the
trial court properly dismissed the defendant’s motion for a new trial on the grounds that he
was a fugitive from justice but that, nonetheless, we have jurisdiction to review his appeal
now that he has been returned to custody. The absence of a motion for new trial, however,
limits our appellate review to considering the sufficiency of the evidence to support his
convictions and his sentencing. After thorough review, we conclude that sufficient evidence
supports the defendant’s convictions and that the trial court committed no error in sentencing
the defendant for conspiracy to commit kidnapping. While we conclude that the trial court
may have erroneously applied one of the several enhancement factors it used when it
sentenced the defendant for aggravated robbery, in light of the applicable sentencing
principles, remaining enhancement factors, and the particular facts of this case, we conclude
that the sentence imposed by the trial judge was appropriate. Accordingly, the judgments of
the trial court are affirmed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and D. K ELLY T HOMAS, J R., JJ., joined.

T. E. “Ned” Williams, III, Franklin, Tennessee (on appeal), and Kirk D. Catron,
Murfreesboro, Tennessee (at trial), for the appellant, Robert L. Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel;
William C. Whitesell, Jr., District Attorney General; and J. Paul Newman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        The victim in this case, Ms. Darice Brown, was shot numerous times and left for dead
near an abandoned construction site during the late evening hours of December 15, 2007,
after she arranged a drug transaction on the defendant’s behalf. The defendant and three co-
defendants were indicted on August 6, 2008, by the Rutherford County Grand Jury on four
counts: attempted first degree murder in violation of Tennessee Code Annotated section 39-
13-202, a Class A felony; especially aggravated kidnapping in violation of Tennessee Code
Annotated section 39-13-305, a Class A felony; especially aggravated robbery in violation
of Tennessee Code Annotated section 39-13-403, a Class A felony; and conspiracy to commit
kidnapping in violation of Tennessee Code Annotated section 39-12-103, a Class D felony.
At the defendant’s trial on December 16-17, 2009, the victim took the stand and as testified
to the following:

       On December 15, 2007, the defendant, whom she knew as “P.T.,” called her several
times to request that she find him some cocaine. The victim was aware of an individual,
whom she knew as “B.I.,” who lived in Murfreesboro and dealt in cocaine, from some prior
dealings with her cousin. Although she had not previously dealt with B.I., the victim called
B.I. on the defendant’s behalf and arranged to purchase some cocaine. B.I. told the victim
to meet him at the local Walmart. The victim passed along the location of the transaction to
the defendant.

      The defendant arrived at the victim’s house in a car that also contained a large black
man and two white women. The victim had previously met one of the white women, Kristi
Ray (known to her as Michelle), through her cousin. The victim had also met the large black

                                            -2-
man, Bryant Overton (known to the victim under his alias “Debo”), on one occasion at the
defendant’s house. The remaining white woman, Kesha Adams (the defendant’s wife), was
a stranger to the victim and was introduced to her as “Cash.”

       The victim initially refused to get into the vehicle with the defendant and the others,
explaining that she was uncomfortable traveling to Walmart accompanied by so many people.
However, the defendant assured her that “nobody’s not going to do anything to you,” and the
victim eventually got into the back seat of car, with the defendant sitting on one side of her
and Debo on the other.

       When they arrived at the Walmart, the defendant, Debo, and the victim got out of the
car. The defendant and Debo stood against a wall while the victim went into the store and
had a conversation with B.I. B.I. inquired as to whom was with the victim, and when the
victim informed him, he refused to complete the deal. The victim exited the Walmart, and
the defendant and Debo followed her back to their car.

        The defendant insisted that the victim continue to press B.I. to complete the deal. The
defendant told her to call B.I. back and inform him that “nothing was going to go wrong” and
that the defendant would send in his wife, Cash, along with the victim to complete the deal.
B.I. agreed, and the victim and Cash reentered the Walmart and exited from the other side,
where they met B.I. in the parking lot. Cash gave B.I. money in return for what appeared to
be cocaine. The two women then returned to the car.

       The victim was again seated in the backseat of the vehicle between Debo and the
defendant. Debo suddenly exclaimed, “I know him [B.I.] from somewhere.” Debo went on
to indicate that he “had a beef with [B.I.].” According to the victim’s testimony, Cash then
informed the group that B.I. used to hang out with another unnamed individual, with whom
Cash and Debo were having a dispute. Immediately upon learning this, Debo asked the
defendant to give him a gun. The defendant passed a gun to Debo in front of the victim. The
victim immediately became frightened, as up until that point she had been unaware that there
was a gun in the car. The victim immediately told the defendant and Debo, “I don’t know
what this is about, but if you have a problem with [B.I.,] he’s two parking spots over.”

        Rather than follow up on the victim’s implicit suggestion, Debo held the gun in his
lap while the defendant instructed the victim to call B.I. and attempt to lure him to a nearby
Baskin-Robbins. B.I. did not answer his phone. The car’s driver, Michelle, volunteered that
she thought she knew where B.I. lived. She proceeded to drive the group around the
Murfreesboro area for about 30 to 45 minutes, ostensibly in search of B.I.’s house. The
victim remained continuously trapped between Debo and the defendant in the back seat of
the car throughout the entire trip. All of the car’s occupants remained very quiet except for

                                              -3-
Debo, who kept accusing the victim of lying and of knowing B.I.’s whereabouts.

        At some point during their vain attempt to locate B.I.’s residence, the defendant tried
some of the cocaine that Cash had purchased and announced that the narcotic at issue was
dissatisfactory. The defendant then handed the cocaine to Cash, who also tried some and
concurred in his assessment. Upon hearing this, Debo announced, “I know exactly where
we’re going to go.” Debo then began giving Michelle meticulous instructions as to where
to drive the vehicle. The victim looked to the defendant for some sign of solace, but the
defendant simply lowered his head and stated “somebody’s going to die tonight.”

        After witnessing these events, the victim panicked. She offered the group money and
begged for them not to shoot her. She hid her cell phone between her legs and surreptitiously
tried to call for help. However, Debo detected these efforts and took her phone away from
her. The car continued along various back roads in the dark for some distance, until the
victim could not see any more houses. Then Debo told Michelle to stop the car and then to
back the vehicle up. Debo exited one side of the vehicle and told the victim to get out as
well. When she failed to move, he grabbed her and pulled her out. While still holding the
gun, he took her purse and jacket.

        After she had been taken out of the car and deprived of her personal belongings, the
victim heard the gun go off and felt herself being shot in the leg. She fell over and tried to
play dead. As the victim did her best to hold herself both completely still and absolutely
quiet, Debo shot her repeatedly. Finally, the victim heard a click emanate from the gun,
indicating to her that its last bullet had been fired. The victim testified that she had been
frozen staring at Debo’s feet throughout the entire ordeal and that she saw Debo re-enter the
vehicle afterward. Then she heard someone yell “go” and the car sped off – coming so near
to hitting her in the process that she could feel the gravel kicked up by its tires landing on her
bleeding body as the vehicle bolted away.

        For some time afterward, the victim lay in the dark and prayed. After a time, she
realized that she could hear traffic but knew that she was nowhere near a road. The victim
testified that although her legs were no longer working, she managed to crawl on her elbows
through the mud until she reached the highway. Once there, she crawled into the middle of
the pavement and collapsed across the yellow lines in the center of the thoroughfare. Soon
thereafter, she heard a car approach and attempted to signal it with her arms. The car came
perilously near to her body before stopping. A man and a woman got out of the vehicle, and
she heard them call the police and an ambulance.

       The victim testified that she was life-flown to Vanderbilt Hospital and was treated
there for several weeks. She had liver damage and a fractured pelvis. She underwent

                                               -4-
operations to place screws in her left knee, to place a rod from her hip down to her knee, and
to reverse a colostomy. The victim was required to wear a colostomy bag for many months.
She also had numerous surgeries to remove hernias and scar tissue. The victim testified that
at the present time, she was still undergoing physical and mental therapy as a result of the
incident and had been unable to return to work.

        Before leaving the stand, the victim discussed her prior criminal record, which
included a conviction for conspiracy to sell drugs. The victim also identified the defendant,
Robert Adams, as the person who had accompanied Debo on the night that she was shot and
as the person to whom she had referred to variously as “P.T.” and “Tracy” during the ensuing
investigation and court proceedings. The victim stated that she had never recovered either
her cell phone or her purse after the night that she was shot.

        Following the victim’s testimony, the State presented the testimony of Officer Ty
Downing of the Rutherford County Sheriff’s Department, who responded to a call on Beasley
Road the night of December 16, 2007, concerning a female that had been found in the middle
of the roadway and had been shot multiple times. Officer Downing testified that upon his
arrival, the victim had already been transported from the scene by medical personnel. Officer
Downing was informed on the scene that the victim had told other officers that, prior to being
shot, she was in the company of two black males named “P.T.” and “Debo” and two white
females named “Cash” and “Michelle,” and that they were driving a green car. He was
further informed that the shooting was related to a drug deal and that the victim had been
shot by a man named Debo. Officer Downing testified that he interviewed the individuals
who had found the victim in the road: Alissa Phillips, Ryan Trotter, and Stevie Trotter. In
addition, Officer Downing secured and processed the crime scene, which was near a
construction site. During this process, Officer Downing testified that he recovered five .380
caliber shell casings from the scene, as well as a woman’s purse containing no money.

       Later that same day, Officer Downing testified that he contacted the victim at
Vanderbilt Hospital. Although the victim was unable to talk, she was able to write down
answers to certain questions on a notepad. The victim identified “Debo” and the defendant
(under his alias “Tracy”) as her shooters. Officer Downing prepared two separate photo
lineups, one containing the defendant Robert Adams’ photo and one containing Kesha
Adams’ photo. The officer testified that the victim identified the defendant Robert Adams
as “P. T.” and Kesha Adams as “Cash.” Soon afterward, Officer Downing testified that he
called the defendant and spoke with him briefly by phone. Together, they scheduled an
appointment for the defendant to come in for questioning. When the defendant failed to keep
that appointment, Officer Downing obtained a warrant for his arrest.

       Following his arrest, the defendant was given his Miranda warnings, after which he

                                             -5-
consented to give a videotaped statement to police. In that statement, the defendant admitted
to being one of the people in the car with the victim on the night that she was shot and
admitted that he had gotten out of the car in order to let the victim out before Debo shot her.
After giving this testimony concerning the defendant’s police interview, Officer Downing
authenticated a number of photographs of the crime scene and identified the defendant as
Robert Adams, also known as “P.T.” and “Tracy.”

        Next, the State presented the testimony of Ms. Stevie Trotter, Mr. Ryan Trotter, Mr.
Michael Glossup, and Ms. Alissa Phillips, who generally testified that they were all returning
home from a Christmas party around midnight when they discovered the victim lying in the
middle of the road. They testified that they initially thought that some trash had blown into
the road, until the victim raised up her hand in an attempt to flag them down. They testified
that they quickly swerved their vehicle and barely avoided hitting her. They further testified
that the victim was shivering with cold and was having difficulty speaking when they found
her but that she did manage to inform one of them that someone named “Debo” had shot her.

        Thereafter, the State presented the testimony of Officer Philip Martin of the
Rutherford County Sheriff’s Department, who testified that he photographed the crime scene
on the night in question and secured certain evidence, including pieces of the victim’s
clothing. These were later admitted into evidence. On cross-examination, Officer Martin
testified that no gun was ever recovered from the crime scene and that no fingerprints were
found on any of the shell casings that were found that night.

        The State’s next witness was Officer Duane Jackson of the Rutherford County
Sheriff’s Department, who testified that he assisted Officer Downing in the investigation and
participated in a number of witness interviews. Officer Jackson confirmed that the victim
identified the defendant from a photo lineup soon after the shooting. Officer Jackson also
confirmed that after having been given his Miranda warnings the defendant told detectives
a number of different stories concerning the events on the night of the shooting – but that he
admitted to being in the vehicle with the victim on the night that she had been shot. Officer
Martin testified that in the defendant’s final version of the events, the defendant maintained
that he had dropped off Debo and the victim at the construction site and that as he was
driving off, he heard shots being fired. He then returned to pick up Debo alone. Officer
Jackson identified a digital video disk (DVD) containing the defendant’s recorded police
interview, and this DVD was entered in the evidence.

        Finally, the State presented the testimony of Dr. Richard Miller, the medical director
of the trauma unit at Vanderbilt University Medical Center, who gave extensive testimony
concerning the wounds suffered by the victim on the night in question. Dr. Miller testified
that the victim underwent numerous operations, developed multiple complications, and

                                              -6-
would probably suffer from permanent disabilities from her injuries. Dr. Miller also testified
that, in his expert opinion, the victim would have died had she not received timely medical
treatment. Following this testimony, the State rested.

       The defense promptly moved for a judgment of acquittal on the grounds that there was
insufficient evidence that the defendant, as opposed to Debo, had attempted to kill the victim,
kept her in the vehicle against her will, or deprived her of her property. After the court
denied this motion, the defendant was advised of and waived his right to testify in his own
defense pursuant to the procedures described in Momon v. State, 18 S.W.3d 152, 162-64
(Tenn. 1999).

        Following the usual Momon soliloquy, the defendant’s trial counsel made an oral
motion for a continuance on the unusual grounds that “at [one] a.m. this morning I received
a phone call from my client who left me a message about a witness we just learned about.
He’s not listed in the court documents or anything like that,” and “we’d ask you for an
opportunity to subpoena this gentleman to get him here to testify.” The trial court held a
brief hearing and took testimony from the defendant concerning this alleged witness, who
was supposedly named “Jeremy Jenkins.” According to the defendant, “Mr. Jenkins” had
been reluctant to come forward previously because he was married and was having an affair
with the victim. According to the defendant, “Mr. Jenkins” had called him the night before
and had promised him that he would testify in the defendant’s defense. The defendant
claimed that “Mr. Jenkins” would testify that the victim had stated to him during their affair
that “she knew that I didn’t have anything to do with this . . . [a]nd the only reason that she
was upset with me is because I did not stop it.” On cross-examination, the defendant testified
that “Mr. Jenkins” would not come to court without receiving a subpoena, that he did not
know the location where “Mr. Jenkins” worked, that “Mr. Jenkins” refilled snack machines
for a living, and that “Mr. Jenkins” was not allowed to bring a phone with him into the
building where he worked.

        After hearing this testimony, the trial judge stated that the issue of this surprise
witness should have been brought to his attention earlier in the morning. Nonetheless, the
trial court granted the defense a two-hour continuance in order to afford the defendant the
opportunity to secure this alleged witness. When this continuance had expired, the
defendant’s trial attorney rested his case, and both sides made their closing arguments. The
court instructed the jury, and the jury retired. At some point after receiving the continuance
and while the jury was deliberating, the defendant, who was out on bond during the trial,
absconded from the building and fled the area.

      The jury returned after deliberating and found the defendant guilty of attempted first
degree murder, a Class A felony; especially aggravated kidnapping, a Class A felony;

                                              -7-
aggravated robbery, a Class B felony; and conspiracy to commit kidnapping, a Class D
felony. After the verdict was announced, the trial judge queried the defendant’s trial counsel
concerning the defendant’s whereabouts, and the defendant’s counsel informed the court that
the defendant had sent him a text message claiming that he was on his way to the hospital.
The defendant’s trial counsel suggested that the defendant may have intended to visit a
brother there who allegedly suffered from multiple sclerosis.

        The record reveals that the defendant remained at large for many weeks. On February
12, 2010, a sentencing hearing was held while the defendant was still in absentia. At this
hearing, the trial court heard testimony from Ms. Candace Whizman, the director of
Management Services at the Tennessee Department of Correction, who testified that she had
compared the department records of the defendant Robert Adams with an individual known
as Tracy Greer and, based on a comparison of their photographs and their matching date of
birth, concluded that they were the same individual. She further testified that the defendant,
under the name Tracy Greer, had a criminal record including a conviction for second degree
murder. The department records under both names were entered into evidence.

        The State also presented the testimony of Agent Suzann Lafferty of the Tennessee
Bureau of Investigation, who testified that she was a forensic scientist specializing in
fingerprints. Agent Lafferty testified that she had conducted a fingerprint analysis of Mr.
Tracy Greer and the defendant Robert Adams and determined that the two sets of fingerprints
matched. A report summarizing her finding was entered into evidence. Finally, the State
presented the testimony of Merilynn Raney, a presentence investigator for the Tennessee
Board of Probation and Parole. Ms. Raney testified that she had investigated and determined
that the defendant had an alias, Tracy Greer, and that he had an alternate social security
number associated with that alias. She testified that she had prepared a presentence report
for the defendant including information pertaining to his alias, and this report was entered
into evidence.

       Following this testimony, the trial court found that the defendant Robert Adams and
Tracy Greer were the same individual. Based on the defendant’s criminal history, the trial
court applied Tennessee’s three strikes law, Tennessee Code Annotated section 40-35-120,
and found beyond a reasonable doubt that the defendant was a repeat violent offender –
thereby sentencing him to mandatory sentences of life without the possibility of parole for
the attempted first degree murder conviction and the especially aggravated kidnapping
conviction, with these sentences to be served concurrently.

       In addition, the court sentenced the defendant as a Range II, multiple offender on the
two remaining counts, finding as enhancing factors that the defendant had a previous history
of criminal convictions and behavior above that necessary to establish his range; the

                                             -8-
defendant was the leader in the commission of an offense involving two or more actors; the
defendant allowed the victim to be treated with exceptional cruelty; the damage to the victim
was particularly great; the defendant employed a firearm during the commission of the
offense; and the defendant had no hesitation about committing a crime where the risk to
human life was high. The trial court found no mitigating factors. After duly considering and
weighing these factors, the court sentenced the defendant to twenty years to be served at
thirty-five percent for the aggravated robbery and to eight years to be served at thirty-five
percent for the conspiracy to commit kidnapping, with these two sentences to be served
concurrently. However, because the trial court found that the defendant was a career
criminal, a dangerous offender, and an offender whose record of criminal activity was
extensive, the trial court ordered the latter two concurrent sentences to be served
consecutively to his concurrent sentences of life without the possibility of parole.

       On March 2, 2010, the defendant’s trial counsel filed a timely motion for a new trial.
On March 12, 2010, the trial court held a hearing on that motion. The State moved to dismiss
the motion on the grounds that the defendant was a fugitive from justice. The trial court
ruled that the defendant had waived his opportunity to present a motion for new trial and
dismissed the motion; a written order to that effect was signed by the trial judge on March
22, 2010, and stamped as filed by the clerk on March 23, 2010.

       Also on March 12, 2010, the defendant’s trial counsel moved to withdraw from
representation on the grounds that the defendant had made himself unavailable to assist in
his own defense. This motion was granted on March 24, 2010.

       On April 15, 2010, under circumstances that do not appear in the record, the defendant
was returned to the custody of the State. The defendant, acting pro se, filed a notice of
appeal, and what appears to be the original copy of that notice has been included in the
record. The seemingly-original copy bears a color-ink “filed” date stamp reflecting that it
was filed with the deputy clerk on April 21, 2010 – meaning that the notice appeal was filed
within thirty days following the filing of the trial court’s written order dismissing the
defendant’s motion for a new trial, and was therefore timely under Rule 4(a) of the
Tennessee Rules of Appellate Procedure.1 This court appointed new counsel to represent the

        1
           Whether the defendant filed a timely notice of appeal has become a matter of considerable
confusion to the parties and this court. The defendant’s appellate counsel filed a “Motion for Waiver of
Untimely Notice of Appeal” on December 28, 2010, which was granted by this court on January 18, 2011.
Following this motion, both sides appear to have proceeded under the erroneous assumption that the
defendant’s notice of appeal was untimely. The State’s brief on appeal states in its Statement of the Case
that the defendant’s notice of appeal was untimely, and both sides state in their briefs that it was filed on
April 22, 2010. In addition, the actual text of the defendant’s notice of appeal states that he was intending
                                                                                                (continued...)

                                                     -9-
defendant on September 28, 2010, and granted multiple extensions of time to the parties in
which to file their briefs. Oral argument concerning this matter occurred on July 11, 2011,
in Nashville before a panel of this court. Our decision follows.

                                                       I.

        The defendant’s first claim is that the trial court erred in dismissing his motion for a
new trial on the grounds that he was a fugitive from justice. The defendant’s claim of error
is based on his assertions that (1) the Tennessee Supreme Court’s decision establishing the
fugitive disentitlement doctrine, Bradford v. State, 202 S.W.2d 647, 648-49 (1947), should
not be applied on the facts of this case and was, in essence, wrongly decided, and (2) there
is no evidence in the record that the defendant’s absence from the trial court’s hearing on his
motion for a new trial was voluntary. We conclude that the defendant’s motion for a new
trial was properly dismissed because the defendant remained a fugitive from justice while his
motion was pending in the trial court.

      The State argues that in light of the fact that the defendant’s motion for a new trial
was properly dismissed, this court lacks jurisdiction to review the defendant’s appeal. We
conclude that we have jurisdiction to review this particular defendant’s appeal for limited
purposes, as explained more fully below.

                                                       A.

       With respect to the defendant’s first argument – that Bradford should not be applied
because its rationale is inapplicable to the facts of this case and because the defendant’s trial
counsel stood ready, willing, and able to pursue the defendant’s motion for a new trial on his
behalf – the picayune distinctions drawn by the defendant between the facts of his situation


        1
          (...continued)
to notify the courts of his intent to appeal on April 22, 2010. Finally, a photocopy of the defendant’s notice
of appeal, attached to Volume III of the technical record of this case, bears an image of a date stamp from
the deputy clerk that appears to have been altered with a felt-tip pen. The date on the copy of that notice,
as altered, is April 22, 2010. The confusion appearing in the record concerning the date on which the
defendant’s notice of appeal was filed and the date on which his motion for new trial was denied is especially
unfortunate in light of the fact that the timeliness of the defendant’s notice of appeal in this case is a matter
of crucial importance to the proper resolution of the applicability of the fugitive disentitlement doctrine, one
of key legal issues raised in the appeal. However, our comparison of the “filed” date stamp on what appears
to be the defendant’s original notice of appeal with the “filed” date stamped on the copy of the trial court’s
order dismissing the defendant’s motion for new trial included in the record leads us to the conclusion that
the defendant’s notice of appeal was filed in a timely fashion; any confusion over this issue should not inure
to the detriment of the defendant.

                                                      -10-
and the facts confronting the court in Bradford render his argument tantamount to a plea that
Bradford was wrongly decided and should be overturned. This court is without power to
overrule the Tennessee Supreme Court’s Bradford decision, which held that “a defendant
who escapes and becomes a fugitive from justice while his motion for a new trial is pending”
has “by his own act . . . waived the right to have his motion for a new trial considered and
determined.” Id. at 648. The “fugitive disentitlement doctrine,” as this principle has become
known, is “long-established in the federal and state courts, trial and appellate,” and has
recently been reaffirmed by our supreme court. Searle v. Juvenile Court for Williamson
County, 188 S.W.3d 547, 550 (Tenn. 2006). Legally, this court cannot accept the defendant’s
invitation to alter or amend the fugitive disentitlement doctrine as expounded by our supreme
court.

        Nor would we be inclined to dispense with such an important bedrock doctrine of law
even had we the authority to do so. As the Bradford court eloquently reasoned, “the
proceedings [concerning a motion for new trial] are commenced and prosecuted by the
defendant,” not the State, and consequently the defendant’s act of fleeing the jurisdiction
“[i]s in legal effect an abandonment of the prosecution of his motion.” Bradford, 202
S.W.2d at 647-49. Moreover, if an absconded defendant’s motion for new trial is denied, he
“cannot be made to respond to any judgment which may be rendered,” and any “order and
judgment based thereon may never be enforced because the defendant by escaping has placed
himself beyond the control of the court.” Id. at 648. As a matter of policy, courts should not
“give their time to proceedings which, for their effectiveness, must depend upon the consent
of an escaped convict.” Id. at 648. All of this reasoning applies with full force to the facts
presented by the case at bar.

        We fundamentally agree that the fugitive disentitlement doctrine “is sound public
policy to discourage the absence and flight of those individuals who disagree with court
orders and judgments but still seek [judicial] relief.” Searle, 188 S.W.3d at 551. As Searle
indicates, it is contrary to public policy to allow a fugitive from justice to be placed in a
better legal position than a defendant who has continuously submitted to judicial authority,
by affording the former the privilege of taking advantage of any favorable ruling while
avoiding all consequences of any adverse one. Given that this defendant chose to evade the
trial court’s power while his motion for new trial was pending, the trial court did not err in
dismissing his motion.

                                             B.

        Nor did the trial court err by finding that the defendant was voluntarily absent from
his hearing on his motion for a new trial. In its order dismissing the defendant’s motion, the
trial court found that “the defendant left the jurisdiction by his own actions” and “has not

                                             -11-
been located since his trial.” This conclusion is amply supported by the record evidence,
which reflects that the defendant was absent from the conclusion of his trial, his sentencing
hearing, and the hearing on his motion for a new trial. Presiding over the proceedings at
issue, the trial court was free to take judicial notice of the defendant’s absence. Tenn. R.
Evid. 201 (2007).

       Once a defendant’s absence from the relevant court proceedings has been established,
the defendant, to avoid application of the fugitive disentitlement doctrine, is obliged to
establish that his absence was involuntary. In this sense, application of the fugitive
disentitlement doctrine can be compared to the crime of failing to appear in court, see T.C.A.
§ 39-16-609 (2011), in that once it has been established that a defendant has failed to appear
in court on the required date, the defendant bears the burden of establishing that there was
a reasonable excuse for his absence (viz., that his absence from court was involuntary).

        In this case, the record fully establishes that the defendant was not in court and that
he did not attend his hearing on the relevant date. The defendant made no attempt in the
court below and has made no attempt on appeal to advance any theory under which his
absence could be deemed involuntary – much less directed us toward any record evidence
that might support such a theory. Under these circumstances, the trial court committed no
error in finding that the defendant was voluntarily absent from the proceedings.

                                              C.

        In light of our rejection of the defendant’s arguments as described above, the State
argues the consequence should be the dismissal of the defendant’s appeal. Because the
defendant’s motion for a new trial was dismissed, rather than denied, the State claims that
the defendant does not have the right to appeal the order under Rule 3 of the Rules of
Appellate Procedure, and therefore this court is without power to hear the appeal. The State
quotes the Tennessee Supreme Court’s decision in Byington in support of this position: “Rule
4 dictates that after the defendant filed his motion for new trial, the Court of Criminal
Appeals did not have jurisdiction to hear the defendant’s appeal until the trial court entered
an order denying the motion for new trial.” State v. Byington 284 S.W.3d 220, 225 (Tenn.
2009) (emphasis supplied). Because the trial court entered an order dismissing – not denying
– the defendant’s motion as abandoned, the State urges that Byington precludes our exercise
of jurisdiction.

       The plain implication to be drawn from the State’s argument is that any order by a trial
court dismissing a motion for new trial is essentially insulated from ordinary review by this
court. In reaching this conclusion, the State misapprehends the language it has quoted from
Byington. The Byington court was deciding an entirely unrelated issue: whether minute

                                             -12-
entries would satisfy the requirement that there be an “entry of [an] order denying a new
trial” for purposes of commencing the thirty-day deadline for filing a notice of appeal
pursuant to Tennessee Rule of Appellate Procedure 4, or whether a separate written order
denying the motion was required. See Byington, 284 S.W.3d at 224-25. In other words, the
issue was “what action a trial court must take to demonstrate that the trial court has denied
a motion for new trial.” Id. at 224. The jurisdictional quandary facing the appellate court
was whether the trial court had finally disposed of a timely motion for new trial. In this case,
the record reflects that the trial court disposed of the defendant’s motion for a new trial by
entering a written order dismissing the motion on March 23, 2010. There is no issue as to
whether the lower court has entered an order disposing of the defendant’s motion; the trial
court’s final decision has been amply evidenced.

         Although Byington speaks in terms of an order denying, rather than dismissing, a
motion for new trial, the mere fact that a motion for new trial was dismissed rather than
denied in the trial court has not been held to bar to this court’s jurisdiction. See, e.g., State
v. Wayne Miller, No. W2005-00678-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 1281, at
**9-10 (Tenn. Crim. App. Dec. 16, 2005). What matters for jurisdictional purposes under
Tennessee Rule of Appellate Procedure 4 is whether there is still a pending motion for new
trial in the trial court, i.e., whether the trial court retains jurisdiction over the case. This court
may not assume appellate jurisdiction over a case pursuant to that rule while jurisdiction
properly remains in the court below, meaning that either (1) no final judgment has been
entered or (2) any pending motion listed in Rule 4(c), such as a motion for new trial, has not
been disposed of with finality. See Hutchison v. ARO Corp., 653 S.W.2d 738, 740 (Tenn.
Ct. App. 1983) (holding this court lacks jurisdiction to review an appeal “filed prior to the
disposition of [a] motion for a new trial” because “[t]here has been no final disposition
below”). In this case, the record is clear that there is no pending motion for a new trial in the
lower court. Consequently, this court has the power to assume appellate jurisdiction
consistent with the Tennessee Rules of Appellate Procedure.

        Nor is this court required to dismiss the defendant’s appeal itself under the fugitive
disentitlement doctrine. While it is established that a defendant “waive[s] his right to pursue
a direct appeal from his convictions and sentences [if] he escaped and remained on escape
status during the time in which a direct appeal should have been pursued,” see Curtis v. State,
909 S.W.2d 465, 468 (Tenn. Crim. App. 1995), we have determined that this defendant was
returned to justice and filed a timely notice of appeal prior to the expiry of the time permitted
by Tennessee Rule of Appellate Procedure 4. Precedent establishes that if a defendant
perfects an appeal, temporarily escapes, but is returned to custody by the time of the appeal’s
consideration, his appeal should not be dismissed. See Knight v. State, 229 S.W.2d 501, 501
(1950). The present defendant’s situation – escaping, but returning in time to perfect his
appeal and remaining in custody thereafter, is analytically similar: “the defendant is in

                                                -13-
custody and the judgment of the Court can be enforced.” Id. Consequently, while Searle,
Bradford, and Curtis would dictate dismissal of the defendant’s appeal if he had remained
a fugitive (1) past the deadline for filing a notice of appeal or (2) at the time of his appeal’s
consideration; this defendant was returned to custody in time to file a timely notice of appeal,
did so, and has remained in custody throughout the consideration of this appeal. Under these
circumstances, this court will not dismiss his appeal pursuant to the fugitive disentitlement
doctrine.

        However, as Searle and Bradford indicate, a fugitive from justice who has been
returned to state custody should not be placed in any better position than a defendant who has
remained in consistent submission to the court’s authority. Consequently, as the defendant’s
motion for a new trial was properly dismissed as abandoned in the court below, we will place
the defendant in the same position as a defendant who has appealed after neglecting to file
a motion for a new trial. Under these circumstances, it is well established that this court’s
review is limited to considering the sufficiency of the evidence to support his convictions and
his sentences. See, e.g., State v. Vaughn, 279 S.W.3d 584, 593 (Tenn. Crim. App. 2008);
State v. Boxley, 76 S.W.3d 381, 390 (Tenn. Crim. App. 2001); State v. Patterson, 966 S.W.2d
435, 440 (Tenn. Crim. App. 1997).

        All other claims are deemed waived pursuant to Rule 3(e) of the Tennessee Rules of
Appellate Procedure, including, for purposes of this appeal, the defendant’s claim that the
trial court erred by denying his last-minute motion for an extended continuance to secure the
testimony of “Mr. Jenkins.” We decline to engage in plain error review of this claim under
Rule 13(b) of the Tennessee Rules of Appellate Procedure on the grounds that such review
is not necessary to prevent needless litigation, prejudice to the judicial process, or injury to
public interest. The defendant raises no colorable claim that the trial court’s failure to grant
an extended continuance struck at the fairness or integrity of his judicial proceedings – a
prerequisite that must be satisfied before this court will engage in plain error review in light
of the defendant’s waiver. See, e.g. State v. Wooden, 658 S.W.2d 553, 559 (Tenn. Crim.
App. 1983).

                                               II.

       The defendant claims that the evidence was insufficient to support his conviction for
conspiracy to commit kidnapping and that the State failed to establish by sufficient evidence
that the defendant was criminally responsible for Debo’s actions when he committed the
attempted first degree murder, especially aggravated kidnapping, and aggravated robbery of
the victim. These claims have no merit.

       With respect to sufficiency of evidence challenges, a jury’s guilty verdict strips a

                                              -14-
defendant of the presumption of innocence and replaces it with a presumption of guilt. State
v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Defendants must strive to overcome this
presumption on appeal. Id. The defendant has not met this burden. The defendant generally
claims, as he did at trial, that he did not do anything but try to arrange a drug transaction and
sit in a car. He claims he should not be held responsible for the criminal actions that were
committed by Debo and that Debo alone should be held responsible for the victim’s
kidnapping, robbery, and shooting. However, “[w]hen the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light most
favorable to the State, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Dorantes, 331 S.W.3d at 379; see also Tenn. R. App. P.
13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). In this case, a jury listened to the
defendant’s arguments and roundly rejected them. Record evidence amply supports the
jury’s conclusion.

       The defendant first argues that the evidence was insufficient to support his conviction
for conspiracy to commit kidnapping. Conspiracy “is committed if two (2) or more people,
each having the culpable mental state required for the offense that is the object of the
conspiracy, and each acting for the purpose of promoting or facilitating commission of an
offense, agree that one (1) or more of them will engage in conduct that constitutes the
offense.” T.C.A. § 39-12-103(a) (2007). The defendant claims that there is no evidence of
any “concert of design” among the group on the night in question, and that there is also no
evidence that the defendant was aware that the object of the group’s conspiracy on the night
in question was to kidnap the victim, rather than merely to obtain illegal drugs.

        However, circumstantial evidence abounds in the record in support of the jury’s
conclusion that the defendant participated in a group conspiracy to kidnap the victim and that
this conspiracy was separate and apart from any conspiracy to purchase illegal drugs. The
victim’s testimony, alone, to the effect that the defendant (1) urged her to get into a vehicle
occupied by the group to facilitate a drug transaction, (2) handed a weapon to Debo after that
drug transaction had been completed, (3) stated after sampling the drugs – well after the
completion of the drug transaction – that “somebody’s gonna die tonight,” (4) remained quiet
in the car, with his body in a position blocking the victim’s only means of egress, as Debo
directed the group to a remote location, and (5) sped off in the car with the group after
someone yelled “go” following the shooting fully suffices to support the jury’s determination
that the defendant was part of a group agreement whose purpose was to kidnap the victim
and that this conspiracy was separate and apart from any uncharged conspiracy to purchase
illegal drugs.

      Next, the defendant argues that the evidence was insufficient to establish that he was
criminally responsible for the crimes committed by Debo. An individual may be found guilty

                                              -15-
of crimes committed by another “if the offense is committed by . . . the conduct of another
for which the person is criminally responsible.” T.C.A. § 39-11-401. An individual is
criminally responsible for the conduct of another when “[a]cting with intent to promote or
assist the commission of the offense, or to benefit in the proceeds or results of the offense,
the person solicits, directs, aids, or attempts to aid another person to commit the offense. .
. .” T.C.A. § 39-11-402(2). The evidence adduced at trial suffices to support the jury’s
conclusion that the defendant was criminally responsible for Debo’s conduct when Debo
committed the especially aggravated kidnapping, aggravated robbery, and attempted murder
of the victim.

        Concerning the defendant’s criminal responsibility for Debo’s commission of the
especially aggravated kidnapping, the victim’s testimony establishes that the defendant
brought a firearm with him to the victim’s house; enticed the victim into a vehicle; blocked
the victim’s means of egress from one side of the vehicle while she was driven around town,
and ultimately to the construction site, against her will; and handed Debo the firearm which
was used to intimidate the victim. The defendant’s tape-recorded interview with police
further reveals that he exited the vehicle in order to allow Debo to remove the victim from
the car prior to shooting her. This evidence was more than sufficient for a reasonable jury
to conclude that the defendant intended to assist, and in fact assisted, in the especially
aggravated kidnapping of the victim.

        Concerning the attempted first degree murder, in addition to the evidence discussed
above, the victim testified that prior to being driven to the location where she was shot, the
defendant stated that “somebody’s gonna die tonight.” Given the fact that he had previously
supplied Debo with a weapon and in light of the victim’s testimony concerning the events
that followed, a reasonable jury was free to conclude that the defendant directed, or at least
assisted, in Debo’s attempt to murder the victim and that he fully intended to do so.

        Concerning the aggravated robbery, the victim testified that the defendant was upset
after discovering that he had purchased bad cocaine and spent considerable time in hushed
discussions with his wife, Cash, after discovering the drugs were unsatisfactory. The victim
testified that the defendant kept her trapped in the car next to Debo and that he permitted
Debo to take her cell phone while she was being driven to a remote location. Once there, he
permitted Debo to remove her purse and jacket, and drove away with him following her
shooting. Investigating officers testified that neither the money from the victim’s purse nor
her cell phone were ever recovered. This testimony, combined with the testimony discussed
previously, supports a conclusion that the defendant intended to assist Debo in the aggravated
robbery of the victim.

       There are, admittedly, a modest number of conflicting inferences that a jury might

                                             -16-
have drawn from all the evidence adduced at the defendant’s trial. The defendant urges that
he gave the gun to Debo not to assist with the crimes that followed, but as protection against
some perceived danger posed by B.I. The defendant urges that he was merely sitting next
to the victim in the car, and not “blocking” her means of egress from the vehicle, as she was
being driven to the site of the shooting. The defendant argues that he failed to take any steps
to prevent Debo’s crimes because he was too frightened. The law is clear, however, that
“‘the State must be afforded the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn therefrom.’” Dorantes, 331 S.W.3d at 379 (quoting State v.
Vasques, 221 S.W.3d 514, 521 (Tenn. 2007)). Under no circumstances may an appellate
court “substitute its inferences for those drawn by the trier of fact.” Id. In this case, the jury
simply drew different conclusions from the evidence than those advanced by the defendant.
The defendant’s challenges to the sufficiency of the evidence to support his convictions are
therefore denied.

                                               III.

        The defendant makes several arguments concerning his sentencing. As a preliminary
matter, the defendant argues that the trial court erred by conducting the sentencing hearing
with the defendant remaining in absentia. We conclude that the record provides sufficient
evidence to support the sentencing judge’s conclusion that the defendant willfully waived his
right to be present at his sentencing. The sentencing judge was permitted to take judicial
notice of the defendant’s absence from the sentencing proceedings. Tenn. Rule Evid. 201.
Also, because the sentencing judge was present and sitting on the bench earlier when the
defendant disappeared during his trial, he had the authority to take judicial notice of the
circumstances surrounding that disappearance, including the statements made on the record
on the defendant’s behalf by the defendant’s trial counsel. Under these circumstances, it was
not necessary for the trial court to hold an evidentiary hearing or take any additional evidence
or testimony before concluding that the defendant had willfully waived his right to be present
at his sentencing.

        The defendant does not challenge the trial court’s imposition (pursuant to Tennessee’s
three strikes law, Tennessee Code Annotated section 40-35-120) of two concurrent sentences
of life without the possibility of parole for his convictions of attempted first degree murder
and especially aggravated kidnapping. The defendant argues that the trial court erred in
applying various enhancement factors when it sentenced him to a consecutive twenty years
for his aggravated robbery conviction, to be served concurrently with eight years for his
conviction for conspiracy to commit kidnapping. The burden of demonstrating that a
sentence is erroneous is placed upon the appealing party. State v. Carter, 254 S.W.3d 335,
344 (Tenn. 2008). This court’s review of a trial court’s sentence is de novo with a
presumption that the trial court’s determinations are correct. Id. This presumption “‘is

                                              -17-
conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.’” Id. at 344-45 (quoting State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If, however, the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails” and “‘our review is simply de novo.’”
Id. at 345 (quoting State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004) (italicization
supplied)).

       The defendant challenges three of the six enhancement factors applied by the trial
court in his sentencing for both conspiracy and aggravated robbery: that the defendant was
a leader of an offense involving two or more persons, see T.C.A. § 40-35-114(2); that the
defendant allowed the victim to be treated with exceptional cruelty, see T.C.A. § 40-35-
114(5); and that the defendant had no hesitation about committing a crime where the risk to
human life was high, see T.C.A. § 40-35-114(10). We believe that the trial court properly
applied all three of these three factors with respect to the defendant’s conspiracy conviction,
and two of these three factors with respect to the defendant’s aggravated robbery conviction.

        The trial judge properly applied section 40-35-114 enhancement factors (2) and (5)
with respect to the sentences imposed for both convictions. The defendant’s challenge
concerning the application of these factors is based on his assertion that he was merely a
passive participant in the conspiracy and robbery. However, the defendant had a full and fair
opportunity to be heard at trial concerning his alleged lack of participation in these offenses,
and the jury did not credit his story. Neither did the trial judge. The record is replete with
evidence that would support a finding that the defendant was a leader with respect to these
offenses, including the victim’s testimony that he (1) instigated the drug deal, (2) secured the
victim’s participation, (3) enticed the victim to get into a vehicle containing a group of four
individuals who later worked together throughout the evening to commit the criminal acts
at issue, (4) was the one in original possession of the firearm used to commit several of the
offenses, and (5) passed the firearm used to commit the kidnapping, robbery, and attempted
murder to his co-conspirator Debo. The record is also replete with evidence that, as a leader
of the offense, the defendant allowed the victim to be treated with exceptional cruelty –
including the victim’s testimony that after Debo had fired his initial shot and the victim had
fallen to the ground, the defendant allowed him to continue to fire at her motionless body
until he ran out of ammunition. Thereafter, the defendant either directed or permitted the
group to drive off (narrowly avoiding the victim in the process), leaving the victim to bleed
to death alone at night in cold weather. Under these circumstances, we conclude that the trial
judge committed no error by finding that both enhancement factors (2) and (5) were present.

      With respect to enhancement factor section 40-35-114(10) – that “[t]he defendant had
no hesitation about committing a crime when the risk to human life was high” – the

                                              -18-
defendant argues that this factor should not apply because the only individual whose life was
placed at risk by the defendant’s crimes was the victim, and factor (10) should not be applied
“when the only person subject to being injured is the victim.” State v. Makoka, 885 S.W.2d
366, 373 (Tenn. Crim. App. 1994). However, this bright-line rule is no longer the governing
law.

       In State v. Lavender, 967 S.W.2d 803, 807 (Tenn. 1998), our supreme court
established that application of enhancement factor (10), like other enhancement factors, must
be considered on a case-by-case basis. Rejecting “a rule that automatically would preclude
application of enhancement factor[] (10) . . . in every robbery case,”2 the supreme court
explained that a sentencing court should instead “consider the elements of the offense and
the evidence adduced at the trial and sentencing hearing.” Id. “If the facts which establish
the elements of the offense charged also establish the enhancement factor, then the
enhancement factor may not be used.” Id. “A court must, therefore, look to the specific facts
and circumstances surrounding a defendant’s crime to determine whether a particular
enhancement factor is applicable.” State v. Lewis, 44 S.W.3d 501, 506 (Tenn. 2001).

        Under this test, it is clear that the trial court did not err in applying enhancement factor
(10) with respect to the defendant’s conspiracy conviction. As we have discussed more fully
during our consideration of the defendant’s challenge to the sufficiency of the evidence,
conspiracy is an inchoate crime whose primary element is the mere formation of an
agreement between persons to commit a crime, accompanied by the requisite mens rea. See
generally T.C.A. § 39-12-103. Considering the circumstances of this particular conspiracy,
the facts necessary to establish the defendant’s agreement to commit the kidnapping did not
necessarily involve a high risk to this victim’s life. It was not the defendant’s act of agreeing
with the group to drive the victim around the Murfreesboro area (and then on to a remote
location), forcibly and against her will, which posed a high risk to the victim’s life. It was
the defendant’s decision to permit the victim to be shot, and for that shooting to continue
until all ammunition was exhausted, that substantially increased her risk of death. These
facts are entirely separate and apart from those necessary to establish that the defendant
agreed with one or more other persons to kidnap the victim. Consequently, it was not error
for the trial judge to apply this enhancement factor to the defendant’s conspiracy sentence.

        The trial court’s use of factor (10) to enhance the defendant’s sentence for aggravated
robbery poses a different situation. As discussed above, our Supreme Court held in Lavender
that the applicability of enhancement factor (10) should be decided on a case-by-case basis,
and may be applied to robbery convictions where the person injured was the victim so long


       2
           All of this court’s existing case law to the contrary was overruled. See Lavender, 967 S.W.2d at
807 n.4.

                                                   -19-
as the evidentiary facts used to establish the elements of the offense are not the same
evidentiary facts used to establish the presence of factor (10). However, in State v. Reid, 91
S.W.3d 247, 288, 312 (2002), that same court affirmed a decision by this court stating that
enhancement factor (10) may not be used to enhance sentences for especially aggravated
robbery because having “no hesitation about committing a crime when the risk to human life
was high” was an inherent element of that offense. The crime of aggravated robbery falls
in between the extremes of robbery and especially aggravated robbery, and neither this court
nor our supreme court has spoken definitively on the issue of whether enhancement factor
(10) may be used to enhance a sentence for a conviction of aggravated robbery where the
only life that was placed at risk was that of the victim.

       The weight of the unpublished authority from this court on the issue appears to
support the view that, as a bright-line rule, enhancement factor (10) should not be applied to
aggravated robbery convictions where the only human life at risk was that of the victim,
reasoning that “this factor is inherent in the crime of aggravated robbery.” State v. Deborah
N. Cotter, No. E2009-01849-CCA-R3-CD, 2011 Tenn. Crim. App. LEXIS 115 at *18 (Tenn.
Crim. App. Feb. 15, 2011). We need not, however, diverge further from the supreme court’s
instruction in Lavender and Lewis that the applicability of enhancement factor (10) should
be determined on a case-by-case basis in order to resolve the case at bar. Whether
enhancement factor (10) may be applied in some cases during sentencing for an aggravated
robbery conviction when the only person whose life was placed at risk was the victim, the
fundamental principle remains the same: “Enhancement factors are not intended to allow
sentence adjustments based on the general nature of the offense.” State v. Kissinger, 922
S.W.2d 482, 488 (Tenn. 1996). Or as this court has explained, “in general, factor (10)
applies only where the facts that establish that the defendant created a high risk to human life
also demonstrate a greater culpability than that incident to the offense underlying the
enhancement.” State v. Lance Sandifer, No. M2008-02849-CCA-R3-CD, 2010 Tenn. Crim.
App. LEXIS 1075 *54 (Tenn. Crim. App. Dec. 21, 2010).

       Examining the evidentiary facts of this particular case, we cannot determine with any
degree of certainty whether the facts that establish the enhancement factor are separate from
the facts that establish an element of the defendant’s aggravated robbery conviction.
Although this defendant was charged with especially aggravated robbery, the jury found him
guilty only of the lesser included offense of aggravated robbery. A robbery is considered
aggravated if “[a]ccomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon” or “where the
victim suffers serious bodily injury.” T.C.A. § 39-13-402. On the facts of this case, we do
not know which of these two elements the jury used to find the defendant guilty; evidence
presented at trial would support a jury’s finding in favor of either element. If the jury relied
on either the defendant or Debo’s display of a deadly weapon to establish the aggravated

                                              -20-
robbery, then separate evidence would establish the elements of the offense and the trial
judge’s finding of enhancement factor (10), which was based on the fact that the victim was
repeatedly shot. If, however, the jury found the defendant guilty based on the fact that the
victim suffered serious bodily injury, then the same evidentiary facts – Debo’s repeated
shooting of the victim – would have established both an element of the crime and the
application of the enhancement factor, and application of this factor not be permissible under
Lavender. Consequently, on the facts of this case, we cannot be entirely sure that the trial
judge’s application of enhancement factor (10) was permissible.

       Assuming that the trial court misapplied this enhancement factor, this court would,
as a consequence, review the defendant’s aggravated robbery sentence de novo with no
presumption of correctness. See Carter, 254 S.W.3d at 345. However, after carefully
reviewing the record and the findings of the trial court de novo, we do not believe that a
remand to the trial court for re-sentencing is required, or that the defendant’s twenty-year
sentence should be reduced in any way. The trial court correctly found and applied numerous
other enhancement factors when it set the defendant’s sentence, and in light of those
enhancement factors and the particular facts of this case, we believe that the twenty year
sentence imposed for this aggravated robbery is fully consistent with the principles and
purposes of sentencing as set forth in the Sentencing Act. See id.; T.C.A. 40-35-210(d).

        Finally, the defendant argues that the sentences imposed by the trial court for
conspiracy and aggravated robbery his convictions were “excessive” given his “passive
participation” in the crimes. As discussed above, conducting a de novo review of the
defendant’s sentence for aggravated robbery with no presumption of correctness has led us
to the conclusion that the twenty-year sentence imposed by the trial court was appropriate.
With respect to the defendant’s concurrent eight-year sentence for conspiracy, further review
leads us to conclude that the trial court considered all of the appropriate principles and laws
in setting this sentence and that this sentence was not “excessive.” Any weighing of
applicable mitigating and enhancing factors rests within the discretion of the trial court. See
Carter, 254 S.W.3d at 345. Trial courts are free to select any sentence within the applicable
range so long as the length of the sentence is “‘consistent with the purposes and principles
of the Sentencing Act.’” Id. at 343 (quoting T.C.A. § 40-35-210(d)). There is no dispute that
the sentence at issue was within the applicable legal range in light of the defendant’s offenses
and his offender range. Consequently, the defendant’s claim that his sentence for conspiracy
was excessive is denied.




                                              -21-
                              CONCLUSION

For the foregoing reasons, the judgments of the trial court are affirmed.




                                            _________________________________
                                             JOHN EVERETT WILLIAMS, JUDGE




                                     -22-
