        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 13, 2010

            STATE OF TENNESSEE v. CHRISTOPHER FIELDER

              Direct Appeal from the Criminal Court for Shelby County
                     No. 08-03221    John T. Fowlkes, Jr., Judge




                No. W2009-01663-CCA-R3-CD - Filed August 22, 2011


Defendant, Christopher Fielder, was indicted along with his co-defendants Korry Hernandez
and John Karcher for the class A felonies of especially aggravated robbery and especially
aggravated kidnapping of Jason Seitz. Defendant proceeded to be tried by a Shelby County
jury. His co-defendants testified against him pursuant to negotiated plea agreements. The
jury found Defendant guilty as charged. The trial court sentenced Defendant to serve twenty
years for each of the Class A felony convictions, and ordered the sentences to be served
concurrently with each other. Defendant appeals, arguing that the evidence was insufficient
to support his convictions and that the sentences are excessive because (1) the trial court
improperly applied enhancement factors; (2) the trial court erroneously failed to apply
appropriate mitigating factors; and (3) his sentences are excessive and disproportionate when
compared with the sentences received by his co-defendants. We find no error and affirm the
judgments of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Paul K. Guibao and Matthew S. Lyons, Memphis, Tennessee (on appeal); and Robert Wilson
Jones, District Public Defender; Glenda Adams, Assistant Public Defender; and Jennifer
Johnson, Assistant Public Defender, Memphis, Tennessee (at trial), for the appellant,
Christopher Fielder.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; William L. Gibbons, District Attorney General; Pamela Fleming, Assistant District
Attorney General; and Garland Erguden, Assistant District Attorney General, for the
appellee, the State of Tennessee.
                                         OPINION

I. Facts

        The victim, Jason Seitz, testified as follows. On December 28, 2007, Mr. Seitz went
to Korry Hernandez’s house in Memphis to sell cocaine to John Karcher a/k/a “Droopy.”
The sale occurred outside the house in Mr. Seitz’s car and he left. Approximately two hours
later, Mr. Karcher called the victim again and asked him to bring more cocaine. The victim
returned in about thirty minutes and honked the horn to have Mr. Karcher come outside for
the transaction. A woman came out and told the victim the men were gone but would return
soon, and invited the victim to come inside. Since he had known Mr. Karcher for some time,
the victim went inside and waited.

        Soon, Mr. Karcher, Defendant, and Korry Hernandez arrived. They went into the
kitchen. Mr. Hernandez stated he did not like the quality of the drugs previously brought,
and wanted a “tax” for allowing Mr. Seitz to use Mr. Hernandez’s scales for weighing the
cocaine. In order to avoid further confrontation, Mr. Seitz tossed some cocaine down and
started to leave the house. Defendant locked the door and blocked Mr. Seitz’s access to the
doorway. The victim made a statement to the effect of “what’s going on” and was struck by
an object in the back of his head. The victim went down on his knees, and all three of the
other men “jumped” on him and commenced to repeatedly kick and hit him. As the assault
continued to take place, the men threatened the victim, asked him where the rest of his money
was, threatened to kill his family, and took all of his money in his pockets plus his car keys,
drugs, wallet, identification, and his shoes. Despite the victim’s pleas to stop, Defendant and
the other two men continued the assault.

        At Mr. Hernandez’s instruction, Defendant brought an electric circular saw, referred
to by the witnesses by a brand name, “Skil” saw, to Mr. Hernandez. While Mr. Karcher was
on top of the victim on the floor, Defendant held down the victim’s arm. Mr. Hernandez
plugged the saw into an electrical outlet and turned it on. Mr. Hernandez then threatened to
cut off the victim’s hand. When the victim was able to pull his arm away from the saw, Mr.
Hernandez threatened to cut the victim’s face while holding the turned-on “Skil” saw near
the victim’s head.

       By this time, the victim was bleeding profusely. Someone put a pillowcase over his
head to keep the blood from spreading. This obstructed his vision, but the victim added that
“[m]y eyeball had already popped out [of] the socket and my whole ocular bone was broke.
I couldn’t see anyway.” With the pillowcase still on his head, the victim was taken outside
and put into the back seat of his own vehicle, a 2004 Jaguar. Mr. Karcher restrained the
victim in the car. The victim was then driven away. He complained that his ribs were broken

                                              -2-
and he could not breathe. Mr. Karcher continued to hit the victim on the head and told the
victim he was “about to die.” Eventually, the car stopped and the victim was thrown out.
The victim stated he could hear all three men talking. He was kicked and hit some more after
being thrown from his car, and then his car was driven away. The victim went to a house and
“banged” on the door and told the woman there to call an ambulance. The victim laid on the
porch until the ambulance arrived and took him to Methodist Hospital North where he was
treated for his injuries.

        The victim testified that as a result of the attack upon him by Defendant, Mr.
Hernandez, and Mr. Karcher, he received twenty-two staples in his head, he had a dislocated
jaw, a broken ocular bone, (his eye actually “came out”), a broken rib, and he passed blood
in his urine for approximately one month. Regarding pain, the victim said that for the first
week after the incident, he was confined to the couch; “everything” was sore - his head,
chest, neck, back, ribs, and he also hurt internally.

        Because Defendant and the co-defendants threatened the victim and his family, and
because the victim was scared that he might be prosecuted for selling drugs, he initially lied
to police officers about how he was injured. When confronted by officers that his story did
not “add up,” the victim then told the truth. He identified Defendant and the co-defendants
from photograph line-ups presented to him, and identified Defendant at trial.

        Heather Bierbrodt, keeper of the patient records for Methodist Hospitals in Memphis,
brought a copy of the victim’s medical records which was made an exhibit at trial. She
testified, concerning injuries noted in the records, that the victim had a contusion of the face,
an orbital fracture, a laceration to his scalp, and a contusion to his scalp.

       Officer Tyont Shabazz of the Memphis Police Department testified that he and his
partner pulled over, and then chased, two individuals who were in the victim’s Jaguar vehicle
on the night of December 28, 2007. After receiving a dispatched broadcast of the stolen
vehicle and general direction it was believed to be traveling, Officer Shabazz parked and
waited. They saw the vehicle, pulled in behind it, and confirmed through the license plate
number that it was the vehicle reported as stolen. They turned on the blue lights and the
Jaguar, with two occupants, came to a stop. However, just after Officer Shabazz exited his
patrol car, the Jaguar took off. An ensuing chase resulted in the Jaguar wrecking through a
fence at an apartment complex. The two occupants, including Defendant, ran off in different
directions. The officers gave chase and momentarily lost sight of Defendant, but ultimately
found him out of breath in a stairwell to a basement door at a church. Defendant was taken
into custody. No money or drugs were found in Defendant’s possession.




                                               -3-
        John Karcher, one of the co-defendants, testified that he was guilty of especially
aggravated robbery and especially aggravated kidnapping of the victim. Mr. Karcher stated
that he had accepted an effective sentence of “13.5 years at 100%” for his truthful testimony
in Defendant’s trial. Mr. Karcher had known the victim for about a year prior to the crimes,
and had previously bought cocaine from the victim. Mr. Karcher called the victim both times
on the day of the incident. After the victim came inside the house on his second trip there
to sell cocaine, Defendant and Mr. Hernandez returned to the house. The victim and Mr.
Hernandez went into the kitchen. They were arguing about the cocaine previously supplied
and Mr. Hernandez said he wanted the victim to pay a “tax” on the use of Mr. Hernandez’s
scales. The victim threw a bag of cocaine and started to leave. Defendant then locked the
door and Mr. Hernandez hit the victim in the back of his head. All three men then started
punching and kicking the victim while he was down on the floor.

        Defendant took money and keys out of the victim’s pockets. Mr. Hernandez grabbed
a “circular saw” and instructed Defendant to hold down the victim’s hand. Mr. Hernandez
turned on the electric saw and held it in a threatening manner toward the victim. Someone
put a pillowcase over the victim’s head and placed the victim into the back seat of his car.
Mr. Karcher and Mr. Hernandez left with the victim in the victim’s car. Defendant followed
as a passenger in a car driven by Mr. Hernandez’s sister, who was also at the house. Mr.
Hernandez was driving the victim’s car and Mr. Karcher was in the back seat with the victim.
After driving for a while, they stopped and put the victim out of his vehicle. Then Defendant
and Mr. Karcher swapped vehicles they were riding in, so that Defendant left as a passenger
in the victim’s vehicle. Mr. Karcher stated that he saw “a lot of [the victim’s] blood” on the
floor at the house. He reiterated that all three men were kicking and punching the victim at
the house.

        The other co-defendant, Korry Hernandez, also testified under the same plea
agreement terms and conditions as Mr. Karcher. Mr. Hernandez also admitted that he was
guilty of the crimes. Mr. Hernandez’s testimony was very similar to the testimony by Mr.
Karcher. Mr. Hernandez admitted hitting the victim in the back of the head with brass
knuckles after the victim pushed Defendant when Defendant had locked the door and was
blocking the victim’s access to the door. Mr. Hernandez confirmed that all three men were
kicking and punching the victim while he was down on the floor. He stated that there was
a lot of blood on the floor and he got a towel to clean it up. Mr. Hernandez admitted that he
turned on the electric Skil saw to frighten and threaten the victim while Mr. Karcher lay on
top of the victim and Defendant stepped on the victim’s hand to hold it down. Mr.
Hernandez acknowledged that they took the victim’s money, cocaine, keys, and his cell
phone. Mr. Hernandez also confirmed the other witnesses’ testimony about taking the victim
away, putting him out of his car, leaving in the car, the police chase, and the wreck.



                                             -4-
         John Poindexter, an officer with the Memphis Police Department, testified that he was
the case investigator in the victim’s case. In the course of the investigation, he interviewed
the victim. In particular regard to the victim’s injuries, Officer Poindexter testified that when
the victim had to sneeze, he covered his injured eye because the medical staff had advised
him that the action of sneezing could cause his eye to come out again. He also observed that
the victim had “twenty-four [sic] staples that closed the wounds to his jaw which was also
dislocated below his left eye.” Officer Poindexter stated that the victim picked out
Defendant and the co-defendants from three separate photo line-ups (one for each
perpetrator). He also interviewed Defendant and took a written statement from him.
Defendant admitted in the statement that he was present when the victim was robbed and
kidnapped, but denied any involvement in the incident. In Defendant’s words, “I witnessed
it, but I didn’t participate.” Defendant did not mention Mr. Hernandez in his statement to
police. Defendant told police that “Droopy” (Mr. Karcher) was the only person who hit the
victim. Defendant stated that Mr. Karcher hit the victim in the back of his head with brass
knuckles, and also kicked him a few times. Defendant stated that Mr. Karcher took the stuff
out of the victim’s pockets, put a pillowcase over the victim’s head and shoved the victim
into the back seat of the victim’s car, and drove off. He told the police about getting into the
victim’s vehicle after the victim had already been tossed out, the police chase, and being
apprehended by the police. Defendant acknowledged that at the house, “[a]t one point I was
standing in front of the door. I think I checked to see if it was locked and natural instinct to
block it so the guy [the victim] couldn’t get out.”

        The State rested its case at the conclusion of Officer Poindexter’s testimony.
Defendant testified in his defense as follows. He was at Korry Hernandez’s house on the day
the victim was robbed. Defendant had been there since spending the previous night at the
house. Also present was Mr. Hernandez, Mr. Hernandez’s sister, and Mr. Karcher. They had
been “partying,” consuming beer, whiskey, marijuana, and cocaine. Defendant had known
Mr. Hernandez for quite a few years, and had met Mr. Karcher a week or so before the
incident involving the victim. The victim brought cocaine, left, and some time later was
called and asked to bring more cocaine. Defendant was temporarily away from the house
when the victim came the second time. He locked the door because there was “drugs in the
house.” He heard Mr. Hernandez and the victim arguing. Defendant testified that he walked
to the front door as the victim was headed toward the door. Defendant stated that he was
planning to unlock the door for the victim, but the victim became aggressive and pushed
Defendant. Mr. Hernandez then came running toward the victim. The victim hit the ground,
and Mr. Karcher and Mr. Hernandez kicked and beat the victim. Defendant added that “I
don’t remember exactly whether I physically beat him or not.” Defendant did not deny
beating the victim, and he did acknowledge that he “might” have beat the victim.




                                               -5-
        Defendant admitted in his testimony that he stepped on the victim’s hand while the
Skil saw was being used. Defendant denied taking any property from the victim. Defendant
confirmed that the victim was placed into the back seat of his own car, and Mr. Karcher also
got into the back seat and Mr. Hernandez drove the victim’s car. Mr. Hernandez told his
sister to follow them. Defendant testified that he got into the car with Mr. Hernandez’s sister
because “[i]t’s not really my house. I wasn’t really supposed to stay there. I suppose I could
have taken off walking or something.”

       Defendant described how Mr. Karcher dropped the victim out of the victim’s car and
then the car was driven away with only Mr. Hernandez and Mr. Karcher inside. The two
vehicles went to a gas station, and Defendant got into the victim’s car along with Mr.
Hernandez, and Mr. Karcher got into the other vehicle. He then testified that he did not tell
the police about Mr. Hernandez’s involvement in his (Defendant’s) statement to the police
because the police did not already know about Mr. Hernandez being involved. During cross-
examination, Defendant admitted the he had made sure the front door of the house was
locked and stood at the door to make sure the victim could not escape. Defendant also
admitted holding down the victim’s hand so Mr. Hernandez “could scare him” with the Skil
saw. Defendant confirmed that money (at least $100.00), keys, and “maybe” a cell phone
were taken from the victim.

II. Analysis

                               A. Sufficiency of the Evidence

       Although phrased as trial court error by failing to grant a motion for judgment of
acquittal, Defendant in essence challenges in his first two issues the legal sufficiency of the
evidence to support his convictions for especially aggravated robbery and especially
aggravated kidnapping. Defendant chose to present evidence in his defense, and therefore
has waived the right to specifically appeal the denial of his motion for judgment of acquittal.
Finch v. State, 226 S.W.3d 307, 317 (Tenn. 2007); State v. Mathis, 590 S.W.2d 449, 453
(Tenn. 1979). However, this does not affect Defendant’s ability to challenge the sufficiency
of the evidence on appeal – it does, however, mandate that all of the evidence at trial is
considered, not just the evidence introduced up to the close of the State’s case-in-chief.
Specifically, as to the especially aggravated robbery conviction, Defendant asserts:

       (i)     There was insufficient evidence that the victim suffered “serious bodily
               injury;” and

       (ii)    There was no proof that Defendant used or displayed any of the
               weapons allegedly used in the incident.

                                              -6-
       Specifically as to the especially aggravated kidnapping conviction, Defendant asserts:

       (i)    there was insufficient evidence that the victim suffered “serious bodily
              injury;” and

       (ii)   there was insufficient evidence that Defendant participated in the
              kidnapping of the victim.

       Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

       The elements of especially aggravated robbery are:

       (1)    Robbery as defined in Tennessee Code Annotated section 39-13-401;

       (2)    Accomplished with a deadly weapon; and

       (3)    Where the victim suffers serious bodily injury.

                                               -7-
T.C.A. § 39-13-403

       Robbery is defined in Tennessee Code Annotated section 39-13-401 as “the
intentional or knowing theft of property from the person of another by violence or putting the
person in fear.”

       As charged in the indictment, the elements of especially aggravated kidnapping are:

       (1)     false imprisonment as defined in Tennessee Code Annotated section
               39-13-302,

       (2)     where the victim suffers serious bodily injury.

T.C.A. § 39-13-305(a)(4)

      Tennessee Code Annotated section 39-13-302 defines false imprisonment as follows:
“(a) A person commits the offense of false imprisonment who knowingly removes or
confines another unlawfully so as to interfere substantially with the other’s liberty.”

       A “deadly weapon” is defined as “[a] firearm or anything manifestly designed, made
or adapted for the purpose of inflicting death or serious bodily injury” or “[a]nything that in
the manner of its use or intended use is capable of causing death or serious bodily injury.”
T.C.A. § 39-11-106(a)(5)(A) and (B).

        Our legislature has stated that “‘[b]odily injury’ includes a cut, abrasion, bruise, burn,
or disfigurement, and physical pain or temporary illness or impairment of the function of a
bodily member, organ, or mental faculty.” T.C.A. § 39-11-106(a)(2). Relevant to the time
of the incident here, the General Assembly limited the injuries to victims which can be
classified as “serious bodily injury” to those examples of bodily injury defined in Tennessee
Code Annotated section 39-11-106(a)(2) which involve:

       (A)     A substantial risk of death;
       (B)     Protracted unconsciousness;
       (C)     Extreme physical pain;
       (D)     Protracted or obvious disfigurement;
       (E)     Protracted loss or substantial impairment of a function of a bodily
               member, organ, or mental faculty; or

T.C.A. § 39-11-106(a)(34)(A)-(E) (2006)



                                               -8-
       We will first address Defendant’s argument that the State failed to prove that the
victim suffered “serious bodily injury,” an essential element of both especially aggravated
robbery and especially aggravated kidnapping. Defendant relies upon this Court’s decision
in State v. Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995) to support his argument that the
State failed to prove that the victim’s bodily injury was “serious bodily injury.” In Sims the
defendant appealed his conviction for especially aggravated robbery. He challenged the
sufficiency of the evidence to support his conviction. Specifically, the defendant argued that
the State failed to prove that the victim sustained “serious bodily injury.” The proof at trial
was that the victim was the hostess and cashier at an International House of Pancakes
restaurant in Nashville. The defendant bought a cup of coffee and then requested change for
a dollar after the victim had closed the cash register. When the victim opened the cash
drawer to make change, the defendant put his left had into the cash drawer. The victim
closed the drawer and held it shut with both hands. The defendant pulled out a gun and
pointed it at the victim’s face. She jumped back. Defendant stated that he struck the victim
and the gun accidently discharged. The victim testified that she was not sure whether she
was struck in the face by the bullet or by the gun. In any event, she fell to the floor and the
defendant emptied the cash drawer, took the money, and left the restaurant. The victim was
treated at Vanderbilt Hospital. She suffered a bruised cheekbone and a broken nose. Sims,
909 S.W.2d at 47-48.

        The victim testified that on the day after the incident, her nose was swollen and her
eyes were “black and blue.” She had a laceration on the bridge of her nose, and she saw a
plastic surgeon twice but never received plastic surgery. She testified that her two bottom
front teeth began to hurt “a few days after” the incident. A dentist removed those teeth and
she had a partial plate at the time of the trial. The dentist did not testify at trial. The victim
testified that she missed five weeks of work and “experienced extreme physical pain over her
whole face, but especially to her nose.” Id. at 48.

        A paramedic who treated the victim testified that the victim’s blood pressure, heart
rate, and pulse rate were normal and that she was alert, oriented, and that she had not been
unconscious. Id. at 49. The physician who treated the victim at the hospital testified that she
came to the emergency room with a small laceration on the bridge of her nose and with
“significant” swelling and bruising, indicating a fractured nose. He concluded that the victim
had not suffered a bullet injury. She was in the emergency room almost two hours before
being discharged.

        This court determined that the State had failed to prove beyond a reasonable doubt
that the victim had suffered serious bodily injury as a result of the defendant’s criminal acts,
and modified the conviction to aggravated robbery. After quoting the definition of “serious



                                               -9-
bodily injury” set forth in Tennessee Code Annotated section 39-11-106(a)(33), this court
in Sims stated as follows:

               The ejusdem generis canon of statutory construction is helpful when
       construing the enumerated definition of “serious bodily injury.” According to
       the Sixth Edition of Black’s Law Dictionary, ejusdem generis means when
       words follow an enumeration of classes of things the words should be
       construed to apply to things of the same general class as those enumerated.[ ]
       Therefore, the enumerated portions of the definition of serious bodily injury
       should be read as coming from the same class of injuries. We do not believe
       that the pain commonly associated with a broken nose is extreme enough to be
       in the same class as an injury which involves a substantial risk of death,
       protracted unconsciousness, protracted or permanent disfigurement or the loss
       or impairment of the use of a bodily member, organ or mental faculty. We
       admit to the difficulty of quantifying or measuring pain.

Id. at 49.

       The Sims court concluded that since the dentist did not testify, and the emergency
room doctor who did testify stated that the victim had no evidence of loose teeth or blood in
her mouth, and that he would be surprised if the incident caused her teeth to be extracted,
then there was not proof beyond a reasonable doubt of “protracted disfigurement” caused by
the criminal incident. Id. at 49-50.

        In the case sub judice, the victim testified that as a result of the criminal incident, he
received twenty-two staples in his head, he had a dislocated jaw and a broken ocular bone,
a broken rib, and he passed blood in his urine for about one month. The victim’s medical
records were admitted as an exhibit. The keeper of the records testified that the records
included notations that the victim had contusions of his face and scalp, a laceration of his
scalp, and an orbital fracture. In addition, the diagnosis of the attending physician reflects
that the victim had an abrasion of the face, contusions on the face, nose, and abdominal wall,
a concussion with brief loss of consciousness, left orbital floor fracture, abdominal pain, and
right parietal scalp laceration. The medical records also confirmed the use of staples to close
the scalp lacerations. The victim also testified that it took him five months to completely
recover from his injuries, and he described the pain he suffered as follows: “The first week
I couldn’t move. My mom had to help me with everything I did. I couldn’t even get off the
couch. Everything was sore. I couldn’t move.”

       Specifically, the victim listed the following parts of his body that hurt: ribs, chest,
back, neck, head, and internal organs. In light of the very limiting definition of “serious

                                              -10-
bodily injury” set forth by the General Assembly, and this court’s analysis in Sims, the case
sub judice is close on the issue of sufficient proof of “serious bodily injury.”

        Examining the statutory definition of “serious bodily injury,” we note that the proof
at trial was void of evidence that the bodily injury sustained by the victim involved a
substantial risk of death. There was likewise, no proof that any of the bodily injuries suffered
by the victim caused protracted unconsciousness or protracted loss or
substantial impairment of a function of a bodily member, organ, or mental faculty. The
victim did testify that his eye “popped out” of its socket when his “whole ocular bone was
broke [sic].” He also testified that over twenty staples were required to close lacerations in
his head. However, there was no testimony or other evidence that the victim’s vision was
impaired by injury except for the period of time while the pillowcase was over his head, and
the victim never mentioned any scarring, or showed scars to the jury. No photographs of the
victim taken after the incident to show the extent of his injuries were introduced at trial.
Thus, there also was a void of evidence that the bodily injuries caused protracted or obvious
disfigurement.

       The issue depends upon whether the physical pain resulting from the victim’s bodily
injury was sufficiently “extreme” to constitute “serious bodily injury.” In Sims, this court
stated that pursuant to the ejusdem generis canon of statutory construction, “[w]e do not
believe that the pain commonly associated with a broken nose is extreme enough to be in the
same class as an injury which involves a substantial risk of death, protracted
unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use
of a bodily member, organ or mental faculty.” Sims, 909 S.W.2d at 49.

        However, we conclude that the total pain from the combined bodily injuries of (1)
lacerations of the head sufficient to require over twenty staples and caused in part by kicks
and being hit with brass knuckles; (2) a broken ocular bone and fractured rib; (3) contusions
to the face, nose, and abdominal wall; (4) abdominal pain; and (5) a concussion with a brief
loss of consciousness, along with the testimony of the victim establishing the extent of his
pain for a week following the incident, suffices to be “extreme” enough to constitute serious
bodily injury. Defendant is not entitled to relief in this particular challenge to the sufficiency
of the evidence.

        Defendant also challenges his conviction for especially aggravated robbery by arguing
that the state failed to prove that he ever used a weapon during the incident. He also asserts
that the State did not prove he participated in the theft of property from the victim, stating
in his brief, “[i]t is undisputed that [Defendant] never took possession of any items removed
from the victim’s pockets and did not ever exercise control over the victim’s car.” Defendant
does not contest the sufficiency of the evidence that deadly weapons (brass knuckles and the

                                              -11-
running Skil saw in the manner of its use) were used to accomplish a robbery of the victim.
He also asserts that his conviction for especially aggravated kidnapping must be reversed
because there was legally insufficient evidence that he participated in any kidnapping or false
imprisonment of the victim.

        Taking the evidence in the light most favorable to the State, as we are required to do,
the proof was that Defendant locked the door to the house and blocked the victim’s access
to the door at the beginning of the especially aggravated robbery. Defendant removed money
and other items from the victim’s pockets while all three perpetrators were kicking and
hitting the victim who was on the floor. The victim was forced into the back seat of his own
vehicle. Defendant left the house in the car following the victim’s vehicle, which had been
taken by the co-defendants with the victim forced inside with a pillowcase over his head.
Defendant became a passenger in the victim’s car shortly after the victim was “dumped”
from the vehicle and abandoned. While the victim was being beaten and threatened at the
house, Defendant held down the victim’s arm while the Skil saw was turned on and used in
a threatening manner.

       Tennessee Code Annotated section 39-11-401(a) provides:

       (a) A person is criminally responsible as a party to an offense, if the offense
       is committed by the person’s own conduct, by the conduct of another for which
       the person is criminally responsible, or by both.

      As applicable to the case sub judice, Tennessee Code Annotated section 39-11-402
provides in part as follows:

       A person is criminally responsible for an offense committed by the conduct of
       another if:

                                            ***
      (2) Acting 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)

       There was overwhelming proof presented at trial that Defendant participated by his
own conduct and also that Defendant was criminally responsible for the conduct of his co-
defendants. Defendant’s arguments rely primarily on interpretations of the evidence in a
light most favorable to him, rather than the State, and his assertions that his co-defendants’

                                              -12-
testimony was not credible. As noted above, we must view the evidence in a light most
favorable to the State, Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914; also, the
jury’s verdict of guilt accredits the testimony of the State’s witnesses and resolves all
conflicts in the testimony in favor of the State. Bland, 958 S.W.2d at 659.

       Defendant is not entitled to relief on his challenges to the sufficiency of the evidence
to support his convictions.

                                        B. Sentencing

        Defendant’s convictions were for two Class A felonies. The trial court correctly
determined that Defendant must be sentenced within Range I, which for a Class A felony is
fifteen to twenty-five years. T.C.A. § 40-35-112(a)(1).

       On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45.

       In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).



                                              -13-
        The Defendant’s conduct occurred subsequent to the enactment of the 2005
amendments to the Sentencing Act, which became effective June 7, 2005. The amended
statute no longer imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further
explained by our supreme court in Carter,

       the trial court is 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].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes
       and principles include “the imposition of a sentence justly deserved in relation
       to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a
       punishment sufficient “to prevent crime and promote respect for the law,”
       [Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s
       “potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §
       40-35-103(5).

Id. (footnote omitted).

       The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing
of the enhancement and mitigating factors, as it rendered these factors merely advisory, as
opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing
law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that
is relevant to the sentencing determination, including the application of enhancing and
mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing
factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to
Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court
exercises when imposing a sentencing term. Id. at 344.

      To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and
the method by which the mitigating and enhancement factors have been evaluated and
balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating
and/or enhancement factors or otherwise failed to follow the Sentencing Act, the
presumption of correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.

       Defendant asserts that the trial court erred by imposing a sentence of twenty years for
each conviction. He argues that the trial court should not have set either sentence above the
statutory minimum of fifteen years. In support of this argument Defendant states that the



                                              -14-
statutory enhancement factors applied by the trial court are inappropriate and not applicable
in his cases.

        The trial court applied to both convictions the enhancement factor that Defendant
“treated, or allowed a victim to be treated, with exceptional cruelty during the commission
of the offense.” T.C.A. § 40-35-114(5). The trial court applied to the especially aggravated
kidnapping conviction that Defendant “possessed or employed a firearm, explosive device
or other deadly weapon during the commission of the offense.” T.C.A. § 40-35-114(9).
Defendant argues that his co-defendants used the deadly weapons and there was no proof that
Defendant utilized or possessed any deadly weapon. Likewise, he asserts that the factors
cited by the trial court as constituting “exceptional cruelty” were the acts of only his co-
defendants. In support of his argument, Defendant relies upon State v. Ronald Eugene Hall
and Henry Lee Dixon, No. M2003-02326-CCA-R3-CD, 2005 WL 292432 (Tenn. Crim. App.
Feb. 8, 2005), no perm. app. filed. In Hall and Dixon, the defendant Hall was convicted of
second degree murder and the defendant Dixon was convicted of facilitation of second
degree murder in the same case. Id. at *1. In sentencing Dixon, the trial court applied the
enhancement factor that Dixon had possessed or employed a firearm in the commission of
the felony. Id. at *13. The victim was shot to death by defendant Hall, while he was in a
parked vehicle operated by someone else, and defendant Dixon, while facilitating the crime,
was not present when the victim was shot. Id. at *3-4.

        This court in Hall and Dixon, addressing the applicability of the statutory
enhancement factor based upon a defendant’s possession or employment of a firearm, stated
that this enhancement factor:

       requires a finding that the defendant possessed or employed a firearm during
       the commission of the offense. Although it is clear that Defendant Hall
       employed a firearm during the commission of the offense, there is no evidence
       in the record to support a finding that Defendant Dixon was armed. We cannot
       conclude that this enhancement factor can be applied vicariously under the
       facts presented. While the evidence is sufficient to support Defendant Dixon’s
       conviction of facilitation of second degree murder, it cannot be said that he
       “possessed or employed a firearm” during the commission of his offense.
       [citations omitted]

Id. at *14

       In its brief the State has failed to specifically address Defendant’s reliance on Hall and
Dixon; the State instead asserts that the two enhancement factors applied by the trial court
are “clearly applicable” and argues the following:

                                              -15-
       Given the nature of the new sentencing act, the trial court had the discretion
       to impose sentences anywhere in the applicable ranges. See T.C.A. § 40-35-
       210(c)(2). Based on all of the sentencing considerations, including the
       advisory enhancement factors, the trial court determined that the sentence
       imposed was warranted for each of the defendant’s convictions. Such a
       determination was within the trial court’s discretion under the new sentencing
       act. Therefore, the trial court abided by the new sentencing guidelines and did
       not abuse its discretion, and the defendant is entitled to no relief from his
       sentences.

       Defendant’s argument is straightforward, clear, and unambiguous, and he relies upon
case law of this Court which addresses analogous facts to Defendant’s case. In Hall and
Dixon, Defendant Hall shot the victim and the proof clearly showed that Defendant Dixon
never possessed or employed a firearm, and therefore, the subject enhancement factor was
not applicable. In Defendant’s case, one co-defendant operated the Skil saw, and another co-
defendant used the brass knuckles. Defendant did not operate the Skil saw or use or possess
the brass knuckles. The trial court also made a finding that the three perpetrators, including
Defendant, kicked the victim with boots that made these boots “deadly weapons.” Defendant
argues in his brief that there is nothing in the record that states what kind of footwear
Defendant was wearing. The State has also chosen to ignore this assertion by Defendant and
we have not found any evidence that Defendant wore boots. Thus, we accept Defendant’s
argument that the trial court erred by finding that boots were employed by Defendant as a
deadly weapon.

       However, we do distinguish Hall and Dixon from Defendant’s case. The proof
showed that Defendant picked up the Skil saw and handed it to his co-defendant, so that it
could be used as a deadly weapon. Accordingly, Defendant at the very least “possessed” a
device used as a deadly weapon during the perpetration of the offenses. Use of a deadly
weapon is an essential element of especially aggravated robbery, and the trial court properly
declined to apply enhancement factor (9) to that offense. See T.C.A. § 40-35-114. There is
no error in applying this enhancement factor to the sentence for especially aggravated
kidnapping.

       Defendant also asserts that the trial court erred applying enhancement factor (5) for
two reasons:

       (1) The facts found by the trial court to constitute exceptional cruelty were
       “focused on the perceived extent of the injuries sustained by the victim rather
       than on the specific cruel actions of [Defendant]; and



                                             -16-
       (2) The actions cited by the trial court that were exceptionally cruel were not
       attributable to Defendant.

       Among the facts found by the trial court to constitute exceptional cruelty to the victim
was the manner of use of the Skil saw to threaten amputation of the victim’s hand and cutting
his face, and the threats to the lives of the victim’s family. This mental torture was clearly
beyond the elements of the offenses. In addition, the enhancement factor states that “[t]he
defendant treated, or allowed a victim to be treated, with exceptional cruelty during the
commission of the offense.” T.C.A. § 40-35-114(5) (emphasis added). The proof showed
that Defendant immobilized the victim’s hand while the Skil saw was operated in the
threatening manner it was used. Furthermore, the proof supports the inference that
Defendant allowed the victim to be frightened by serious threats to his life and the lives of
his family.

        As to mitigation, Defendant argues that the trial court erred by not applying any of the
statutory mitigating factors in Tennessee Code Annotated section 40-35-113. We have
examined the record in light of Defendant’s argument and conclude that the trial court did
not err by not applying any mitigating factors. In addition, Defendant asserts that the trial
court should have reduced the sentence for especially aggravated kidnapping pursuant to the
following mitigation consideration in the statute defining especially aggravated kidnapping:
“[i]f the offender voluntarily releases the victim alive or voluntarily provides information
leading to the victim’s safe release, such actions shall be considered by the court as a
mitigating factor at the time of sentencing.” T.C.A. § 39-13-305(b)(2). We do not feel that
forcing a severely injured victim into the back of his own vehicle with a pillowcase over his
head, and continuing to beat him until arrival at a destination where he is “tossed” from the
vehicle and left alone, without a vehicle, meets the statutory definition of voluntary release
of the victim.

       Finally, Defendant argues that his total effective sentence of twenty years is excessive
because it is disproportionate to the sentences of 13.5 years received by each co-defendant
pursuant to negotiated plea agreements. Defendant argues that his co-defendants were the
leaders in the crimes and were much more culpable then Defendant. Defendant does not cite
to any part of the Sentencing Act in support of his argument and admits that “there [does] not
appear to be any Tennessee cases directly relevant to this issue.” Defendant does rely upon
the case of Berthoff v. U.S., 140 F. Supp. 2d 50 (Mass. 2001) in support of his argument that
he was punished for exercising his right to trial by jury. We are not persuaded by the
reasoning of the federal district court in Berthoff. Defendant is not entitled to relief on his
sentencing issue.




                                              -17-
                                 CONCLUSION
      After a thorough review of the record and briefs of the parties, we affirm the
judgments of the trial court.

                                               ___________________________________
                                               THOMAS T. WOODALL, JUDGE




                                        -18-
