        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                       NOVEMB ER SESSION, 1998           March 10, 1999

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,     )          C.C.A. NO. 03C01-9803-CR-00120
                        )
     Appellee,          )
                        )
                        )          HAMILTON COUNTY
VS.                     )
                        )          HON. GARY D. GERBITZ,
DELIVETRICK D. BLOCKER, )          JUDGE
                        )
     Appe llant.        )          (Felon y Murd er, Esp ecially
                        )          Aggravated Robbery)

               ON APPEAL FROM THE JUDGMENT OF THE
               CRIMINAL COURT OF HAMILTON COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

PHILIP L. DUVAL                    JOHN KNOX WALKUP
537 Market Street, Suite 204       Attorney General and Reporter
Chattanooga, TN 37402
                                   R. STEPHEN JOBE
                                   Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243-0493

                                   BILL COX
                                   District Attorney General

                                   RODNEY STRONG
                                   Assistant District Attorney General
                                   Suite 300, Courts Building
                                   Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED IN PART; MODIFIED IN PART; REMANDED

DAVID H. WELLES, JUDGE
                                   OPINION

       The Defen dant, Delivetrick D. Blocker, appeals as of right his convictions

and sentences for especially aggravated robbery and first degree murder

committed during the pe rpetra tion of e spec ially aggravated robbery. Following

sentencing hearings, the jury sen tenced Defen dant to life imprisonment without

the possibility of p arole for his murder conviction; and the trial court sentenced

him to twenty-two years for especially aggravated robbery, to be served

consecutive to his life sentence. We affirm Defendant’s conviction for felony

murder and m odify his conviction for especially aggravated robbery to attempted

especially aggra vated robbe ry.



       In this appe al, Defen dant pre sents seven issues for review: (1) whether the

trial court erred by denying his motion to suppress his pretrial statement to police,

(2) wheth er the tr ial cou rt erred by allow ing a witnes s to tes tify that th e victim

carried a wallet, (3) whether the trial court erred by failing to grant his motion for

judgment of acquittal and whether the evidence was sufficient to s ustain his

convictions, (4) whether the trial court abused its discretion by ordering the

sentence for especially aggra vated robbe ry to be served co nsec utive to h is

sentence of life imprisonment without parole, (5) whether a juvenile may be

senten ced to life w ithout the p ossibility of parole, and (6) whether the trial cou rt

erred by permitting the jury to sente nce h im to life withou t the po ssibility o f parole

based up on the single ag gravating factor of felon y murder.




                                           -2-
       In this case, the proof at trial showed that Defendant and his severed co-

defendants, cous in Rob ert Blo cker a nd Ca lvin Tra mm ell, who w ere all juveniles

at the time of this crime,1 called for a taxicab from a Hamilton County

convenience store. When it arrived, they instructed the driver to take them

appro ximate ly one-ha lf mile, to a location that the State characterized as wooded

and secluded, along a street with several vaca nt homes . As the perpe trators

exited the car, Defen dant heard Robert Bloc ker dema nd mon ey from the driver,

who reache d over be tween th e seats. Defendant told police that he believed the

driver was reaching for a gun, so he pulled a saw ed-off s hotgu n from his pants

and po inted it at the d river. He the n shot the driver at a range between six and

twelve inches fro m his he ad. All three perpetrators fled the scene, and an area

home owner d iscovere d the victim when th e taxicab c rashed into her pa tio.



                               I. MOTION TO SUPPRESS

       Defendant contends that the trial court erred by failing to suppress the

statement he made to police on the night he was arrested. He argues (1) that

officers did not advise him of his Miranda rights u ntil after he m ade his s tateme nt,

and (2) that waiver of his rights was not voluntary, knowing, and intelligent, but

rather the product of coercion and intimidation. Both the juvenile court, prior to

Defe ndan t’s transfer, and the Hamilton County Criminal Court held hearings on

this matter, and b oth denied the motion to sup press. W e affirm this decision,

concluding that the evid ence d oes no t prepon derate against finding that officers

did not que stion De fendan t prior to informing him of his Miranda rights and that

his waiver was volu ntary, kno wing, an d intelligent.




       1
           Defendant was seventeen years old at the time of this crime.

                                             -3-
                              Juvenile Court Hearing

      At Defendant’s suppression hearing in the Juvenile Court for Hamilton

County, the judge hea rd testimony for the State from D etective Tim Carroll, who

stated that he read D efend ant his Miranda rights in the presence of Def enda nt’s

mother prior to any questioning about the murder. Carroll denied having any

discussions regarding the outcome of the case, and he denied making any

promises in exchange for a statement. Carroll also denied threatening Defendant

to induce him to provide a statement. The detective testified that Defendant and

his mother signed the waiver of rights form, and that Detective Tommy W oods

and Ke n McC rary, a juven ile officer, also witnesse d Defe ndant’s s ignature .



      On cross -exam ination at the ju venile cou rt hear ing, De tective C arroll

acknowledged that four o r five oth er office rs acc omp anied him to Defe ndan t’s

home at the time of the arrest, that Defe ndan t was ta ken s epara tely from his

mother to the police service ce nter, and that Defe ndant d id not have an

opportu nity to confer in private with his mother prior to his interview.

Furthermore, the detective stated that he had a conversation with Defendant

before he turned on the tape recorder to record the statement, but not before he

read Defendant his Miranda rights.



      Defe ndan t’s mother testified that on the day of his a rrest, her son opened

the door, s aw the officers , and s aid he would get his m other. Ac cording to Ms.

Blocker, officers followed Defendant back into the house and told Defendant that

they were ta king h im in for questioning a bout a mu rder. They told Ms . Blocker,

while in her son’s presence, that she needed to come to the police service center

because she “knew about” the crim e and “cou ld also be arreste d.”

                                         -4-
       When asked “at what point [Defendant] was read his Miranda rights in the

interview ro om,” Ms. Blocker replied, “After Tim Carroll told him if he bullshitted

him, he’d make sure he’d g et the g __d_ __ ch air and my so n said , okay, I’ll te ll

you what you want to kn ow.” Ms. Blocker also testified, “In my presence the man

just kept saying that he know [sic] what happened and that I knew what

happened and if he kept—if he kept—if my son bullshitted him, he’d m ake sure

he got the chair a nd he k ept cursin g my so n.” She stated that the Miranda rights

waiver form “was read as the man was signing it, as the man was writing out the

thing,” and she affirmed that Defendant acknowledged on tape that he had

signed the waiver. When asked on tape whether they had been threatened,

neither Defendant nor his mother stated that threats had been made.



       Defendant also testified at the juvenile suppression hearing. He stated,

       When we came ou t of the house [on the night of arrest], Dete ctive
       Tim Carroll pu lled me a way from a fe male officer and took me
       across the street and he said what do you know about the cab driver
       murder. I said I d on’t kn ow no thing. H e said before this nig ht is
       over your g__d___ ass is going to know something and he took me
       back o ver there to her, to the fe male o fficer.

He affirmed that officers told his mother “she could be arrested for knowing

something about the mu rder.” De fendan t stated tha t he signe d the rights waiver

“[a]fter Tim C arroll kept like makin g his little threa ts abou t the electric c hair.” He

stated that no one read the form to him, that the threats scared him, and that he

would not have made a statement to police had he not been threatened with the

electric ch air.



       Defendant testified , “First, [C arroll] asked me, asked me my story. After

he wrote a ll of that d own, h e told me— had m e to sig n it and he did n’t read it off



                                           -5-
to me or nothing, asked m e to sign it.” He claimed that his Miranda rights were

read to him for the first time on the tape recording, after he had given his version

of events and signed the waiver. He admitted that he had an opportunity to read

the waiver be fore he s igned it, bu t stated tha t he did no t because he was “too

busy” and “thinking about the threats [Carroll] made and thinking about [his]

mama and [his] sisters.” Finally, Defendant acknowledged that he stated on the

tape recording that he understood his rights, waived his right to a lawyer, and

waived h is right to rem ain silent.



       The juvenile court judge ruled in favor of the State, denying D efend ant’s

motion to suppress. She stated that she did not find evidence of coercion and

force so as to render the waiver of rights involuntary. Furthermore, she stated,

       I think there is a logical time frame laid out in this that supports the
       testimony of the offic er and [is] also supportive of the testimony of
       these paren ts over here. . . . I d on’t find anythin g inconsistent with
       the State’s testimony and I find nothing offered by the defen dants on
       this through their witnesses to believe that these were anything
       other than voluntarily obtained by the o fficers in the co urse o f this
       investigatio n that nigh t.




                               Criminal Court Hearing

       After Defendant was tran sferred to the Ham ilton Cou nty Crimina l Court to

be tried as an adult, that court held another suppression hearing, in which the

juvenile hearing transcript was entered into evidence. Detective Carroll and

Defendant testified consistently with the prior hearing. Defendant’s mother, Ms.

Blocker, reiterated her previous testim ony bu t adde d that D etective Carro ll told

her at least three times tha t “they were going to try to have [D efenda nt]

                                         -6-
electrocu ted.” At the same time, she testified that Carroll told Defendant, “[I]f you

tell me what I want to know, I’ll go to the Judge and I’ll talk to the Judge and te ll

him that you coope rated and I’ll do . . . what I can for you.” In addition, she

testified that her son could read only at a third-grade level—not well enough to

understand the Miranda waiver form— and th at he h ad alre ady told officers his

story twice before ever being read those rights (during the tape recorded portion

of the state ment).



      The trial court denied the motion to suppress, making several findings: (1)

the defendants were properly arrested; (2) the requests made of the parents and

guardians to be present were proper; (3) statements made to Ms. Blocker

regarding her possible knowledge of the facts were not coercive in nature; (4) the

procedure in the interview room and police se rvice center hallways was extre mely

reasonable, timely, and no t coercive; (5 ) no que stioning to ok place prior to proper

admonitions under Miranda; (6) the time s equen ce betw een the rights offerings

and the actual taping of the statements was extremely reasonable; (7) the

interviewing between individuals was rea sonable an d very understandable; and

(8) the officers were not required to inform the parents of their function to advise

their children during the interviewing process.



      Our supreme court very recently discussed the manner of analysis for

waiver of constitution al rights by ju venile crim inal defen dants.    See State v.

Callahan, 979 S.W.2d 577 (Tenn. 1998). In Callahan, the court h eld,

      [J]uven ile waivers shall be analyzed under a totality-of-the-
      circumstances test that requires consideration of the following
      factors:
      (1) consideration of all circumstances surrounding the interrogation
      including the juve nile’s age, experience, education, and intelligence;

                                         -7-
       (2) the juvenile’s capacity to understand the Miranda warnings and
       the consequences of the waiver;
       (3) the juvenile’s familiarity with Miranda warning s or the ab ility to
       read and write in the langua ge use d to give the warning s;
       (4) any intoxica tion;
       (5) any mental disease, disorder, or retardation; and
       (6) the pre sence of a pare nt, guard ian, or intere sted ad ult.

Id. at 583.



       Regarding appellate review of a trial court’s denial of motions to suppress

evidence, our supreme court advised,

       Questions of credibility of the witnesses, the weight and value of the
       evidence, and resolution of conflicts in the evidence are matters
       entruste d to the trial judge as the trier of fact. The party prevailing
       in the trial c ourt is e ntitled to the strongest legitimate view of the
       evidence addu ced a t the su ppres sion h earing as we ll as all
       reaso nable and legitimate inferences that may be drawn from that
       evidence. So long as the greater weight of the evide nce su pports
       the trial cou rt's findin gs, tho se find ings shall be upheld. In other
       words, a trial court's findings of fact in a suppression hearing will be
       uphe ld unless th e eviden ce prep ondera tes other wise. . . .
       Hereafter, the prop er standard to be applied in reviewing
       suppression issues is the “preponderance of the evidence”
       standard.

State v. Odom, 928 S.W .2d 18, 23 (Tenn . 1996). F rom the above re citation of

the facts, we find that the trial court properly considered the totality of the

circumstances surrounding the interrogation when making the decision to deny

Defe ndan t’s motion to suppr ess. Fur thermo re, we co nclude that the evidence

does not preponderate against the trial court’s denial. Where the trial judge

found c onflicts among the statements by Detective Carroll, Defendant, and Ms.

Blocker, he appeared to resolve them in favor of Detective Carroll, which was

reaso nable and n ot imp roper in his role as the trier of fact. This issue lack s merit.



                               II. HABIT TESTIMONY




                                           -8-
      Defe ndan t’s second assignment of error involves the testimony at trial by

the victim’s niece, Terry Smith . Smith , a sub stitute w itness who a ppare ntly

provided substantially the same testimony as the anticipated witness, another

member of the victim’s family, responded to direct examination as follows:

      Q.    How well did you know your uncle?
      A.    Very w ell.
      Q.    Prior to Octobe r 8, 1995, how often would you see your
      uncle?
      A.    Everyday.
      Q.    Are you familiar with items that he may have c arried on his
      person?
      A.    Yes, sir.
      Q.    Wo uld he ev er carry a w allet?
      A.    Yes, sir.
      Q.    Did you often see that wallet?
      A.    Yes, sir.
      Q.    Wh at type of w allet was it?
      A.    It was a brown trifold.
      Q.    Wh at did he h ave in tha t wallet?
      A.    He would carry picture s and large— his larg e bills he would
      keep in h is wallet.

Smith also testified that, to her knowledge, members of her family had not

received this wallet from the hospital, the police, or the Mercury Cab Co mpany,

the victim’s emplo yer. Upo n cross- exam ination, Sm ith testified that sh e hers elf

had not been the recipient of her uncle’s personal items returned from the

hosp ital, police, and cab company. In addition, she confirmed that some other

items, such as a shoe and sock, were never recovered.



      Defendant charge s, in esse nce, that S mith’s sta temen ts should have been

excluded because the testimony is so speculative that it lacks relevance to the

issue of whether the victim carried the wallet on the day of his death. The issue




                                         -9-
is significant because no other evidence of theft exists in the reco rd to sup port a

conviction for espe cially aggravated rob bery. 2



      The State responds by arguing that Smith’s testimony was admissible as

evidence that the victim h ad a h abit of carry ing a wallet, introduced for the

purpose of inferring conduct in conformity therewith on the day at issue—in other

words, that because the victim had been seen carrying a wallet in the p ast, and

because no wallet had been returned to the victim’s family, Defendant or one of

his co-pe rpetrators must h ave take n the wa llet.



      Tennessee Rule of Evidence 406 states:

             (a) Evidence of the habit of a person, an animal, or of the
      routine practice of an organization, whether corroborated or not and
      regardless of the presence of eye-witnes ses, is relevant to prove
      that the conduct of the person, animal, or organization on a
      particular occasion was in conformity with the habit or routine
      practice.
             (b) A habit is a regular respo nse to a repe ated s pecific
      situation. A routine practice is a regular course of conduct of an
      organization.

Hab it evidence must be distinguished from character evidence governed by

Tennessee Rule of Eviden ce 404. W hereas un der Rule 40 4(b), evidence of prior

acts may not be introdu ced “to prove the character of a person in order to show

action in conformity with the c haracter trait,” there is no such limitation on

evidence not introduced to prove a trait of character. One commentator has

remarked, “Since Rule 406 adm its evidence that would probably be admitted

anyway unde r the ge neral re levanc e princ iples e mbra ced in Rule 4 01, it is




      2
          See supra Part III.

                                        -10-
argua ble that Rule 406 adds little new to modern evidence law.” Neil P. Cohen

et al., Tennessee Law of Evidence 200 (3d ed. 199 5).



       W e agree with Defendant that the State did not demonstrate through

witness Terry Smith that the victim habitu ally carried a wallet, as a regular

response to a repe ated specific situa tion. How ever, bec ause th e tende ncy to

carry a wallet daily cannot be construed as proof of the “character of a person in

order to show action in conformity with a ch aracter trait,” there are no limitations

placed by Rule 404(b) on the admissibility of the evidence. Therefore, so long

as the testimony was “relevant” within the meaning of Rule 401,3 it need not rise

to the level of habit evidence under R ule 406 —to be evid ence of hab it would only

supple ment its a dmiss ibility.



       Accord ing to Te nness ee Ru le of Evide nce 10 3,

       [e]rror may not be predicated upon a ruling which admits or excludes
       evidence unless a substantial right of the party is affected, and . . .
       [i]n case the ruling is one admitting evidence, a timely objection or
       motion to strike appears of record, stating the specific ground of
       objection if the specific ground was not apparent from the context. 4


Tenn. R. Evid. 103(a)(1). Furthermore, the general “standard of review where the

decis ion of the trial judge is based on the relevanc e of the proffered e vidence

under Rules 401 a nd 40 2 is abuse of disc retion.” State v. DuBose, 953 S.W.2d

649, 652 (Tenn . 1997); State v. West, 737 S.W.2d 790, 793-94 (Tenn. Crim. App.




       3
          “‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable than it would
be without the evidence.” Tenn. R. Evid. 401.
       4
         This matter was addressed by counsel for Defendant in a jury-out hearing prior to the
witness’s testimony.

                                            -11-
1987) (citing Strickland v. City of Lawrence burg, 611 S.W .2d 832 , 835 (T enn. C t.

App. 19 80)).



       In this case, we find both (1) that no substantial right has been affected

within the meaning of Rule 103, and (2) that the trial court did not abuse

discretion by adm itting the testim ony of T erry Sm ith. This issu e lacks m erit.



         III. MOTION FOR ACQUITTAL/SUFFICIENCY OF EVIDENCE

       At the conclusion of the State’s proof, Defendant moved for judgment of

acquittal on the basis of the sufficiency of the proo f, and his motion was denied.

He argues now be fore this C ourt that the evidenc e was ins ufficient to susta in his

convictions. We conclud e that the e vidence was insu fficient to supp ort his

conviction for especially aggravated robbery and that this conviction should be

modified to attempted especially aggra vated robbe ry. However, despite this lack

of eviden ce, De fenda nt’s felo ny mu rder co nviction is well supported by proof that

he committed an attempted especially aggra vated robbe ry. We the refore affirm

his conviction for first degree felony murde r.



       Tennessee Rule of App ellate Procedu re 13(e) presc ribes that “[f]indings

of guilt in criminal actions wh ether by the trial court or jury shall be set aside if the

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

reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because conviction by

a trier of fact destroys the presumption of innocence and imposes a presumption

of guilt, a convicted criminal defendant bears the burden of showing that the

evidence was insu fficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963);

see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v.

                                          -12-
Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown, 551 S.W.2d 329,

331 (T enn. 19 77)); State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); Holt v.

State, 357 S.W .2d 57, 61 (T enn. 1962 ).



       In its review of the eviden ce, an appe llate court must afford the State “the

strongest legitim ate view of the e videnc e as w ell as all reasonable and legitimate

inferences that may be drawn the refrom.” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “re-

weigh or re-evaluate the evidence” in the reco rd below . Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particular conflicts in the trial testimony, the court must resolve them in favor

of the jury ve rdict or trial cou rt judgm ent. Tug gle, 639 S.W.2d at 914.



       The offens e of es pecia lly aggrava ted robbery is “robbery as defined in §

39-13-4 01 . . . [a]ccomplished with a deadly weapon . . . [and w ]here th e victim

suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403. Tennessee Code

Annotated § 39-13-401 defines robbery as “the intentional or knowing theft of

property from the person of ano ther by violenc e or pu tting the perso n in fear.” Id.

§ 39-13-4 01. Fina lly, “[a] person com mits theft o f property if, with intent to

deprive the owner of property, the person knowingly obtains or exercises control

over the prope rty without the owne r’s effective consent.” Id. § 39-14-103.



       As noted above in Part II, the on ly evidenc e in the rec ord tend ing to show

that the victim carried a wallet a t the tim e of his death cons isted o f Terry Smith ’s

one-word affirmations in response to “Would he ever carry a wallet?” and “D id

you often see that wallet?” In addition, the only proof that the victim carried

                                          -13-
money on the night of his death was Smith’s statement that he sometimes carried

large bills in his wallet. 5 No other p roof of a theft of p roper ty is con tained in this

record.



       W e find Sm ith’s testimony, and the statements by Smith and an

investigative officer that no wallet was recovered during the investigation, to be

insufficient to permit the jury to find a theft had occurred. To hold otherwise, this

Court would have to determine that the jury properly inferred one of two

scenarios. First, because the victim drove a taxicab, he must have possessed

more money at the time of his death than was returned to his fa mily, an d this

money must have been taken by the p erpetr ators. S econ d, bec ause the victim ’s

niece had often seen him carry a wallet, he must have carried one that night

(even though Smith never stated ho w often sh e had s een the wallet, nor did she

testify to a time frame prior to the murder during which she saw it); and because

no wallet was recove red, the perpe trators must have taken the wallet. We reject

both scenarios as impermissible leaps of faith for the jury. Therefore, we must

modify Defen dant’s co nviction for especially aggravated robbery to one for

attemp ted esp ecially agg ravated ro bbery.



       Conviction by a jury for the greate r offens e nec essa rily includes a finding

of guilt on eac h elem ent of a les ser includ ed offen se. Even though we mo dify

Defe ndan t’s conviction for especially aggravated robbe ry to atte mpte d esp ecially

aggravated robbery, we nevertheless uphold his conviction for first degree felony

murder by finding that the evidence was more than sufficient to find that the


       5
            Although the State introduced proof that the victim had been paid approximately two
dollars for his last fare before his death, the record reflects that the hospital returned “small
bills” to the deceased’s family.

                                              -14-
murder was com mitted during the pe rpetra tion of a ttemp ted es pecia lly

aggrava ted robb ery.



       For the indicted count of felony murder, the jury was charged in part as

follows:

             For you to find the defendant guilty of murder in the first
       degree under this count of the indictmen t, the State mus t have
       proven beyond a reasonable doubt the following:
              1. Th e defe ndan t unlaw fully killed the victim ;
              2. The de fendant acted recklessly; 6
              3. The killing was committed in the perpetration of or the
       attempted [sic] to perpetrate the allegedly especially aggravated
       robbery. That is that the killing was closely connected to the alleged
       espe cially aggravated robbery and was not a separate, distinct and
       indepe ndent e vent;
       And
              4. That the defendant intended to commit the alleged
              especially aggra vated robbe ry.

Furtherm ore, Te nness ee Co de Ann otated § 39-12-1 01 states :

       A person commits criminal attempt who, acting with the kind of
       culpab ility otherwise required for the offense . . . [a]cts with inte nt to
       comp lete a course of action o r cause a result tha t would co nstitute
       the offense, under the circumstances surrounding the conduct as
       the person believes them to be, and the conduct constitutes a
       substa ntial step tow ard the c omm ission of the offense.

Tenn. C ode Ann . § 39-12-101 (a)(3).



       Defe ndan t’s own statement to police contains sufficient evidence to convict

him of felony murder based upon attempted especially aggravated robbery. The

group of men, who had been out walking throughout the evening, called a taxicab

and requested to b e taken a distan ce of appro ximately one-half mile.                  As

Defendant told police, “I get [sic] out of the car to go and knock on the door cause


       6
          Although this jury instruction was erroneous—a reckless mental state was no longer
required for the offense of felony murder at the time this crime occurred—we find that such
error was harmless because it heightened rather than lowered the level of proof necessary for
the jury to convict Defendant. Furthermore, the error was not preserved for review.

                                            -15-
I was going over to a friend [sic] house and by th at time I he ard Ca lvin, I turned

around and heard Calvin asking the cab driver for money, say did he have any

mone y.” Then , “Cab driver s tarted d igging in the side of his seat then I ran over

there, put the gun to his he ad.”       D efend ant’s s tatem ent late r reflects this

exchange:

       Carroll:      And what did you tell him.
       D. Blocker: Told him to start reaching.
       Carro ll:     Get his hands up.
       D. Blocker: No. Just . . He was reaching through his head and I
       say start reaching between, you know what I’m saying, I was saying
       just start reaching.

Defendant then admitted that he shot the vic tim and ran from the scen e. W e

conclude that the evidence was sufficient to permit the jury to find Defendant

guilty of first degree murder committed during the attempt to perpetrate an

especially aggra vated robbe ry.



       Because the jury con victed De fendan t of killing the victim during an

espe cially aggravated robbery (though no t supported by th e proof), we be lieve

its verdict c learly inc orpor ated a ll the ele men ts of a killing during an attempted

especially aggravated robbery, which the proof supports.



                        IV. MODIFICATION OF SENTENCE

       Following Defenda nt’s sentencing for first degree felony m urder, the trial

court held a sentencing hearing for Defendant’s conviction for especially

aggravated robbery and sentenced him to twenty-two years as a Range I

offender, to be served cons ecutive to his sentence of life imprisonment without

the pos sibility of parole .




                                         -16-
      When an accused challenges the length, range, o r mann er of service of a

sentence, this Court has a duty to conduct a de novo review of the sen tence w ith

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

Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirm ative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn . 1991).



      When conducting a de novo review of a sentence, this Court must

consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b)

the presentence report; (c) the principles of sentencing and arg umen ts as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. State v. S mith, 735 S.W.2d 859, 863

(Tenn. Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210. We use the

same criteria to determine the appropriate modification of Defendant’s sentence

in conjunction with our modification of his conviction from especially aggravated

robbery to attem pted espec ially aggravated rob bery.



      In this case, the trial court found that the range for especially aggravated

robbery was fifteen to twenty-five years, and that sentencing considerations for

this offense should begin at the mid-po int of the ran ge, twen ty years. See Tenn.

Code Ann. § 40-35-210(c).          In addition, the trial judge first found that

enhancement factor one—that “[t]he defendant has a previous history of criminal

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

                                        -17-
approp riate range”— was ap plicable.     See Tenn. C ode Ann . § 40-35-114 (1).

Although he did not consider Defendant’s prior crimes to be “major offenses,” he

found that the crimes were concentrated in a very short period of time—between

the ages of fourteen and eighteen. He therefore increased Defendant’s sentence

from the twenty-yea r mid-po int to twenty-tw o years.



      Next, the trial judge rejected enhancement factors two and eight—that

“[t]he defendant was a leader in the commission of an offense involving two (2)

or more criminal actors” and that “[t]he defendant has a previous history of

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

comm unity,” respectively. See id. § 40-35-114(2), (8). The judge noted that he

did not find “any significant basis” to support a determination that Defendant was

the leader in commission of the robbery, despite the fact that Defendant shot the

victim. Furthermore, he declined to find any significant history of unwillingness

to comply with conditions of release because Defendant committed the offense

as a juvenile, and all previous criminal conviction s were fro m the juv enile cou rt.



      The trial judge then considered and rejected the three mitigating factors

presented by Defe ndant. First, the judge found mitigating factor two—that “[t]he

defendant acted unde r strong provo cation ”—in applic able b ecau se this case did

not “involve a theft case where an individual is stealing food for his family,” and

because he found no other proof of pr ovocatio n in the rec ord. See id. § 40-35-

113(2).   Next, he rejected mitigating factor eight, that “[t]he defendant was

suffering from a mental or physical condition that significantly reduced the

defendant’s culpability for the offens e.” In supp ort, the trial judge noted that he

found nothing in the expert testimony presented to indicate a disability within the

                                        -18-
meaning of this mitigating factor. Finally, although he noted that Defendant was

seventeen years old at the time of the offense, he also found that the Defendant

was “streetw ise,” an d there fore “co nside rably older” than seventeen. Thus, he

rejected mitigating factor six, which states, “The defendant, because of youth or

old age, lacked substantial judgment in committing the offense.” See id. 40-35-

113(6).



       The range fo r a stand ard offen der con victed of atte mpted e spec ially

aggravated robbery, a Class B felony, is betw een eig ht and tw elve years . See

Tenn. Code Ann. §§ 39-12-107; 39-13-403. According to sentencing guidelines,

consideration shou ld begin at th e minim um for th e range . See id. § 40-35-21 0(c),

(d). W e therefore enhance Defendant’s sentence in accordance with the findings

of the trial cour t, and we sentence Defendant to nine years as a standard range

I offender for attem pted espec ially aggravated rob bery.



                        V. CONSECUTIVE SENTENCING

       After concluding that Defendant was a dangerous offender due to the

number and in creas ing se verity of h is prior convictions, the type of offenses in the

convictions at bar, the lack of indication that rehabilitation would be succe ssful,

and the nee d for the pu blic to be protected from these type of offenses; the trial

judge approved consecutive sentencing, with Defendant’s twenty-two year

senten ce to be s erved co nsecu tive to his sentence of life without th e poss ibility

of parole . See id. § 40-35 -115(a)( 4).



       Defendant contends in this appeal that consecutive sentencing is improper

because the proof does not support the trial court’s finding that he is a dangerous

                                           -19-
offender. We conclude that the trial court fulfilled its role in the sentencing

process such that its findings concerning consecutive sentencing should be

reviewed de novo with a pres umption of correctne ss. Afte r cond ucting this

review, we conclude that the trial court did not err by finding Defendant to be a

dange rous offe nder an d orderin g his sen tences served c onsec utively.



       Tennessee Code Annotated § 40-35-115 pro vides that if the trial court

finds a defendan t to be “a dangerous offender whose behavior indicates little or

no regard for human life, and no hesitation about committing a crime in which the

risk to huma n life is high,” it may order m ultiple sentences served cons ecutively.

Id. § 40-35 -115( a)(4). O ur sup reme court h as exp lained , “‘Lack of hes itation’ is

sem antica lly close to ‘reckless indifference’ and signifies a conscious lack of

concern for foreseeable c onseque nces.” State v. Wilkerson, 905 S.W.2d 933,

937 (Ten n. 199 5). In ad dition, “[t]h e proo f mus t also esta blish that the terms

imposed are reasonably related to the severity of the offenses comm itted and are

necessa ry in order to protect the public from furth er crimina l acts by the offende r.”

Id. at 938. Finally, the trial court must consider the general sentencing principles

contained in Tennessee Code Annotated §§ 40-35-102(1), 40-35-103(1), and 40-

35-103 (2). Id.



       The transcript o f Defend ant’s sen tencing h earing re flects that the trial court

considered these general sentencing principles as well as the other factors

enumerated above. Furthermore, we have reviewed the record and conclude

that it supports the trial court’s decision. W ith regard to the factor of protecting

society from further criminal acts by the offender, it has bee n posited that there

can be no n ecessity to further protect so ciety from an offend er sente nced to life

                                          -20-
imprisonment without parole, and that consecutive sentencing would therefore

never satisfy th is criteria in such a case . Wh ile this argume nt certainly bears

logic,7 we note that our supreme court has d eclined to give the claim merit,

denying permission to appeal in several cases in which an additional sentence

has been ordered served consecutive to a sentence of life imprisonment without

parole. See, e.g., State v. Robinson, 930 S.W.2d 78, 75 (Tenn. Crim. App.

1995), perm. to appeal denied (Tenn . 1996); State v. Leon Barnett Collier, No.

03C01-9602-CR-00072, 1997 WL 9722 (Tenn. Crim. App., Knoxville, Jan. 13,

1997), perm. to appeal denied (Tenn . 1997); State v. Sammie Lee Taylor, No.

02C01-9501-CR-00029, 1996 WL 580997 (Tenn. Crim. App., Jackson, Oct. 10,

1996), perm. to appeal denied (Tenn. 1997). Furthe rmore, the su preme co urt

has upheld running a sentence consecutive to a sentence of death. State v.

Black, 815 S.W.2d 166, 191 (Tenn. 1991). Rather than attempting further

analysis, we defer to the guidance of our supreme court and to the discretion of

the trial judge and order the modified sentence of nine years for attempted

espe cially aggrava ted robb ery to be se rved co nsec utive to D efend ant’s sentence

for felony murde r.



                   VI. LIFE WITHOUT PAROLE FOR JUVENILES

       Defendant next contends that the trial court erred by permitting the jury to

sentence him to life imprisonment without parole when he committed these

crimes as a juvenile. He argues that our legislature has prohibited sentencing a

juvenile to death in order to g rant juven iles anoth er chan ce at life, see Tenn.

Code Ann. § 37-1-134(a)(1); and he asserts that the same rationa le sho uld ap ply



       7
          The legislature has provided that a person sentenced to life without parole shall never
be eligible to be released on parole. Tenn. Code Ann. § 40-35-501(h)(2).

                                              -21-
to a senten ce of life without parole. Furthermore, he suggests that while the

statute authorizing the penalty of life witho ut paro le does not specifically exclude

juvenile de fendan ts, neither d oes the statute de clare them eligible.



      Tennessee Code Annotated § 37-1-134 provides in part, “The district

attorney general may not seek, nor may any child transferred under the

provisions of this section [from the juvenile court] receive, a sentence of death for

the offense fo r which the child was transferre d.” Id. § 37-1-134(a)(1). We find

that the more appropriate rule of statutory construction would be to assume the

legislature would have also prohibited the penalty of life without parole in the

same code section, had it so intended. Therefore, we decline to depart from our

decision in State v. Antonio M . Byrd, No. 02C01-9508-CR-00232, 1997 WL 1235,

at *20 (Tenn. Crim. App., Jackson, Dec. 30, 199 6), perm. to appeal denied (Tenn.

1997), in which this Court ob served,

      The legislature has made a specific exception for the death pe nalty.
      If a specific exception were als o intende d for the pe nalty of life
      without the possibility of parole, the legislature would have made an
      exception for that as well. Moreover, the statutes providing for the
      sentence of life with out the poss ibility of pa role provide no exception
      for juveniles.

Id. This issu e lacks m erit.



               VII. FELONY MURDER AGGRAVATING FACTOR

      Finally, Defendant contends that the trial court erred by pe rmitting the jury

to sentence him to life imprisonment without the possibility of parole based upon

the single aggra vating facto r of felony m urder. See Tenn. Code Ann. § 39-13-

204(i)(7) (“The murder was knowingly committed, solicited, directed, or aided by

the defendant, while the defendant had a substantial role in comm itting or



                                        -22-
attempting to commit , or was fle eing a fter hav ing a s ubsta ntial role in committing

or attemp ting to com mit, any . . . robbery . . . .”). This issue w as sq uarely

resolved by our supreme court in State v. Butler, 980 S.W.2d 359 (Ten n. 1998),

in which the cou rt stated, “The felon y murder ag gravator (i)(7) can be use d to

enhance a sentence to life without the possibility of parole when the defendant

is convicte d of felony m urder.” T herefore , this issue is w ithout me rit.



                                 VIII. CONCLUSION

       Because we conclud e that the evidenc e was insufficient to pe rmit the jury

to conc lude D efend ant co mm itted an espe cially aggravated robbery, w e mod ify

this conviction and re mand to th e trial court for an entry of conviction for

attempted espe cially aggravated robbery. Having found no oth er error, we affirm

Defenda nt’s conviction for first degree murder in perpetration of attempted

especially aggra vated robbe ry.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JAMES CURWOOD WITT, JR., JUDGE


___________________________________
L.T. LAFFERTY, SENIOR JUDGE




                                          -23-
