        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                   Assigned on Briefs October 30, 2001 at Knoxville

                   STATE OF TENNESSEE v. PERDIDO COOK

                 Direct Appeal from the Criminal Court for Shelby County
                   Nos. 00-02085,00-12318,20   Bernie Weinman, Judge



                   No. W2001-00381-CCA-R3-CD - Filed January 9, 2002


The Appellant, Perdido Cook, was convicted by a Shelby County jury of especially aggravated
robbery, aggravated robbery, and attempted aggravated robbery. The trial court sentenced Cook to
serve 25 years for the especially aggravated robbery conviction, 8 years for the aggravated robbery
conviction, and 3 years for the attempted aggravated robbery conviction. All sentences were to be
served concurrently. On appeal, Cook raises the following issues for our review: (1) Whether the
evidence is sufficient to support the convictions; and (2) whether the imposition of the maximum
sentence of 25 years for especially aggravated robbery is justified in view of the trial court’s
misapplication of certain enhancement factors. After review, we find no reversible error and affirm
the judgment of the trial court.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J.,
joined; JAMES CURWOOD WITT, JR, J., concurred in results only.

AC Wharton, Jr., Public Defender; Garland Erguden, Assistant Public Defender, Memphis,
Tennessee, for the Appellant, Perdido Cook.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney General; and Rosemary Andrews,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                           OPINION

                                      Factual Background

        During the early morning hours of October 14, 1999, Hillard Grayson, David Shorter, Sarah
Collier, and a person identified only as “a white girl named Sasha” were at Collier’s apartment in
Memphis. Grayson and Shorter were playing cards in the living room while Collier and Sasha were
smoking crack in the back bedroom. Eventually Shorter and Grayson took a break from playing
cards so that Shorter could get something to drink and go to the bathroom. At approximately 4:00
a.m., and while Shorter was still in the bathroom, someone knocked on Collier’s door and asked to
speak with her. When Grayson cracked the door to see who was outside, the Appellant and his
accomplice, Henry Johnson, kicked in the door and knocked Grayson to the floor.

        Once inside, the Appellant placed a gun in Grayson’s mouth and took $40 from his person.
Although partially disguised, Grayson immediately recognized the Appellant, who he was acquainted
with, and later conveyed this identification to law enforcement officers. As the Appellant held the
gun on Grayson, Johnson made his way to the back bedroom where he ordered Collier and Sasha to
lay across the bed. Johnson took Sasha’s jewelry and threatened to kill Collier unless she gave him
money. Before Collier was able to comply with Johnson’s request, Johnson heard the toilet flush.
Johnson immediately “busted into the bathroom,” where he encountered Shorter. Johnson and
Shorter began to struggle for possession of Johnson’s weapon. The scuffle continued into the living
room, where Johnson told the Appellant, “Shoot him, man, shoot him. Get him off of me, man.”
The Appellant approached the two men and shot Shorter in the back. Shorter’s wallet and pager
were then taken from his pockets. As a result of the gunshot wound, Shorter is now paralyzed from
the waist down.

         When arresting the Appellant, Officer Stephen Sloan inquired into the whereabouts of the
Appellant’s gun for purposes of officer safety. The Appellant replied, “I don’t have it. I got rid of
it. I got rid of it, threw it.” While transporting the Appellant to the police station, the Appellant also
“made several statements,” including, “You need to find Donny. Donny is the one who shot the guy
. . . Donny is the one who did it.” After his arrest, the Appellant gave the following statement to
police concerning his involvement in this case:

         Q:       Were you involved in a robbery that occurred at 1006 Peabody #1, where a
                  man was shot in the back?
         A:       Yeah.

         Q:       Can you tell me who else was involved in this robbery with you?
         A:       Donny and his younger brother. 1

         Q:       Do you know Donny’s and his younger brother’s full names?
         A:       No, but Donny stay down the street on Peabody from where this happened.
                  He stays in the apartments next to the rooming house where I stay at 1162
                  Peabody. They momma, her name Keva, stay upstairs from where this
                  incident happened at.
                                                 ***


         1
            The testimony at trial by the crime victims contradicts the presence of three assailants, as alleged in the
App ellant’s confession. The victims testified that only two robbers entered the residence, with Grayson identifying one
of the two intruders as being the Appellant. Furthermore, the “Donny” m entioned in the Appellant’s statement to police
is Donny Johnson, the older brother of Henry Johnson.

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Q:   Can you describe what you, Donny, and his younger brother were
     wearing during this robbery?
A:   I had on all black with a dark flannel shirt and a white T-shirt over my face.
     Donny had on a black hooded jacket. Donny’s little brother had on black
     with a skull cap over his face.

Q:   Were any of you armed with any kind of weapons, and if so, describe them?
A:   I had a big black revolver with a wood grain handle. Most likely, it was a
     .38. Donny and his little brother both had black handguns. They was
     automatics, either .380s or 9mms, they looked kind of alike.

Q:   In your own words, can you explain what happened during this robbery?
A:   Sarah [Collier] had sent some Vice-Lords at Donny, cause she didn’t want
     him serving crack on that spot. Donny’s mamma stay right up above Sarah.
     Sarah is a Vice-Lord and Donny is a GD. He was gonna rob her to scare her
     off the spot. That’s how it all started. We talked about it earlier that day.
     Later on that night we went on and took care of it. Me and Donny went up
     to the door. [Grayson] was at the door. We pulled our pistols on him. I had
     [Grayson] hemmed up in the hallway. I put my pistol in his mouth and made
     him get on the floor. Donny and his brother ran up in the house and was
     laying everybody down. That’s when a scuffle started between Donny and
     the old man, I think his name is “Bud” [Shorter]. I heard one shot fired. And
     when I looked to see what had happened, that’s when [Grayson] ran out the
     door. I heard someone saying “Come on, man,” and we ran out. Later on,
     when I asked them if anything was got they told me they didn’t get anything.

Q:   Did Donny tell you what happened with the man getting shot?
A:   He told me they got in a scuffle, that’s all he told me. But I heard the gun.

Q:   Can you describe Sarah and how long you have known her?
A:   She’s fat, dark skinned, and kind of short hair. I’ve known her for about 3 or
     4 years. I have pulled a gun on her once before, because I heard through the
     streets that she was talking about sending someone to kill me over my gal.

Q:   Have you heard anything about the man who was shot?
A:   I just heard through the street that some detectives were looking for me. At
     first they was saying that the guy had been murdered, but I found out that he
     was paralyzed.

Q:   At any time during this robbery, did you ever go into [Grayson’s] pocket and
     take any money from him?




                                      -3-
         A:       Nope, I never took anything from anyone in that apartment. I didn’t even get
                  anything out of the deal if Donny or his brother got anything. They didn’t
                  give me anything.
                                                  ***
         Q:       Is there anything else you would like to add to your statement at this time,
                  which might aid in this investigation?
         A:       No, except Donny was the main one. It was his idea. It was all over a rivalry
                  between Donny and Sarah.
                                                  ***
         Q:       Did you give this statement of your own free will, without any threats,
                  promises, or coercion from anyone?
         A:       Yes.

At trial, however, the Appellant denied any involvement in the crime. Although he acknowledged
that he gave the above statement to police admitting his involvement, he now insists that he did so
only because law enforcement officers threatened to arrest his mother if he did not confess.2

       At trial, the defense was permitted to introduce, through the testimony of Memphis Police
Department Sergeant R.B. Ragland, the confession taken from the Appellant’s alleged accomplice,
Henry Johnson. In Johnson’s confession, Johnson admits that he was involved in the crime, but
implicates another participant, “Hazel” [Quinton Perkins], as his only accomplice. According to
Johnson’s confession, it was Hazel who shot Shorter in the back.3

                                         I. Sufficiency of the Evidence

         The Appellant argues that the evidence introduced at trial is insufficient to support his
convictions for especially aggravated robbery, aggravated robbery, and attempted aggravated
robbery. Specifically, he asserts that the convictions “rest essentially upon the eyewitness
identification by Hillard Grayson and [the Appellant’s] confession.” The Appellant further contends
that his confession was “offered in the misguided and simplistic belief that everything would work
itself out, i.e., his mother would not be arrested for her ‘situation’ . . . if he just admitted his presence
at the robbery.” In support of the latter argument, the Appellant maintains that his confession,
implicating three robbers instead of two robbers, does not track the events as described by everyone
else involved.

       A jury conviction removes the presumption of innocence with which a defendant is cloaked
and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of

         2
           At the suppression hearing, the Appellant asserted that during his questioning, the police threatened to arrest
his mo ther in order to obtain information from her concerning a series of robbery charges allegedly committed by her
ex-boyfriend.
         3
           Henry Johnson and the Appellant were jointly indicted; however, Johnson’s case was severed and disposed
of “in later proceedings.”

                                                           -4-
demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this
court to revisit questions of witness credibility on appeal, that function being within the province of
the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison,
868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish that the
evidence presented at trial was so deficient that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, 513
U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113 S. Ct. 1368 (1993).

        Robbery is the “intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401. Robbery becomes aggravated
when it is “accomplished with a deadly weapon or by display of any article used or fashioned to lead
the victim to reasonably believe it to be a deadly weapon”or “where the victim suffers serious bodily
injury.” Tenn. Code Ann. § 39-13-402(a)(1) and (2). In order for the robbery to become especially
aggravated robbery, the robbery must be accomplished with a deadly weapon and the victim must
suffer serious bodily injury. Tenn. Code Ann. § 39-13-403. Furthermore, an attempt is committed
where:

       (a)     A person . . . acting with the kind of culpability otherwise required for
               the offense:

               (3)     Acts with intent to complete a course of action or
                       cause a result that would constitute the offense, under
                       the circumstances surrounding the conduct as the
                       person believes them to be, and the conduct
                       constitutes a substantial step toward the commission
                       of the offense.

       (b)     Conduct does not constitute a substantial step under subdivision
               (a)(3) unless the person’s entire course of action is corroborative of
               the intent to commit the offense.

Tenn. Code Ann. § 39-12-101(a)(3) & (b).

        In the present case, Grayson testified that two men forced their way into Collier’s apartment
on the night in question. Grayson further testified that he immediately recognized the Appellant who
placed a gun in his mouth as the Appellant's accomplice headed towards the bedroom. While in the
bedroom, the accomplice held the two women at gunpoint and demanded money from Collier.
Contemporaneous with these events, the Appellant was robbing Grayson of $40. When a struggle


                                                 -5-
ensued between the Appellant’s accomplice and Shorter, the Appellant shot Shorter in the back.
Shorter’s wallet and pager were then taken from his person. Grayson immediately identified the
Appellant in a photo line-up as being one of the participants in the robbery. It is without question
that a conviction may be supported by the testimony of the victim, as the sole witness identifying the
defendant as the perpetrator. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993); State
v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981).

        Moreover, the Appellant himself confessed to possessing a weapon and being present at the
scene on that particular night. Although the Appellant now contends that his confession to police
was false and a result of police coercion, the truth of the statement and its afforded weight lies within
the province of the jury. Accordingly, we find that the evidence presented at trial, viewed in the light
most favorable to the State, supports the Appellant’s convictions for especially aggravated robbery,
aggravated robbery, and attempted aggravated robbery based upon his conduct and through the
conduct of his accomplice. Tenn. Code Ann. § 39-11-401. This issue is without merit.

                                                     II. Sentencing

       The Appellant argues that the trial court erred in sentencing him to the maximum sentence
of 25 years for his especially aggravated robbery conviction. At sentencing, the trial court applied
enhancement factors (1), (3), (5), (10), (11), and (16). The trial court also noted application of
mitigating factor (13).4 Specifically, the Appellant contests the trial court’s application of the
following enhancement factors found in Tennessee Code Annotated § 40-35-114:

         (3)       The offense involved more than one (1) victim;

         (5)       The defendant treated or allowed a victim to be treated with
                   exceptional cruelty during the commission of the offense;

         (10)      The defendant had no hesitation about committing a crime when the
                   risk to human life was high;

         (11)      The felony resulted in death or bodily injury or involved the threat of
                   death or bodily injury to another person and the defendant has
                   previously been convicted of a felony that resulted in death or bodily
                   injury; and

         (16)      The crime was committed under circumstances under which the
                   potential for bodily injury to a victim was great.

The State concedes that the trial court’s imposition of factors (3), (5), (10), (11) and (16) was error.


         4
          Although the trial cou rt ma rked mitigating factor (13) on its “Finding s of Fa ct” form, no factual b asis for its
application was articulated, either written or oral, by the trial court at sentencing.

                                                             -6-
        The Appellant bears the burden of establishing that the sentence imposed by the trial court
was erroneous. State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Boggs, 932 S.W.2d 467,
473 (Tenn. Crim. App. 1996); State v. Fletcher, 805 S.W.2d 785, 786 (Tenn. Crim. App. 1991). In
determining whether the Appellant has carried his burden, this court must consider the evidence
received at the trial and the sentencing hearing, the pre-sentence report, the principles of sentencing,
the arguments of counsel, the nature and characteristics of the offenses, existing mitigating and
enhancing factors, and any statements made by the offender. Ashby, 823 S.W.2d at 169; Tenn. Code
Ann. § 40-35-210. Furthermore, when a defendant challenges the sentence imposed by the trial
court, this court conducts a de novo review with a presumption that the determinations made by the
trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is only applicable if the
record demonstrates that the trial court properly considered relevant sentencing principles. Ashby,
823 S.W.2d at 169. In this case, we have determined that the trial court erred in its application of
certain enhancement factors. Thus, we conduct our review without a presumption of correctness
pursuant to Tennessee Code Annotated § 40-35-401(d).

        The Appellant was convicted of especially aggravated robbery, a class A felony. Tenn. Code
Ann. § 39-13-403. Especially aggravated robbery occurs where a robbery, as defined in § 39-13-401,
is “accomplished with a deadly weapon; and where the victim suffers serious bodily injury.” Tenn.
Code Ann. § 39-13-403(a)(1) and (2). Because the Appellant is a Range I standard offender, the
range of punishment for a Class A felony is “not less than fifteen (15) years nor more than twenty-
five (25) years.” Tenn. Code Ann. § 40-35-112(a)(1). Furthermore, the presumptive sentence is the
midpoint of the range if no enhancing or mitigating factors are present. Tenn. Code Ann. § 40-35-
210(c). If there are enhancing factors present, the trial court must “enhance the sentence within the
range as appropriate for the enhancement factors.” Tenn. Code Ann. § 40-35-210(e).

         The Appellant's sentence is not determined by the mathematical process of adding the sum
total of enhancing factors present then subtracting from this figure the mitigating factors present for
a net number of years. Rather, the weight to be afforded an existing factor is left to the trial court's
discretion so long as the court complies with the purposes and principles of the 1989 Sentencing Act
and its findings are adequately supported by the record. Boggs, 932 S.W.2d at 475. The weight to
be afforded mitigating and enhancement factors derives from balancing relative degrees of
culpability within the totality of the circumstances of the case involved. Id. at 476.

         With respect to enhancement factor (1), Tennessee Code Annotated § 40-35-114(1), we find
that the trial court properly applied this factor to the Appellant’s conviction for especially aggravated
robbery. The twenty-year-old Appellant’s past criminal record includes three weapons convictions,
unlawful possession and distribution of an intoxicant, reckless driving, public intoxication, contempt
of court, and aggravated robbery. We find the Appellant’s past criminal history more than sufficient
to support the trial court’s application of this factor.

       With respect to enhancement factor (3), Tennessee Code Annotated § 40-35-114(3), this
court has previously held that enhancement factor (3) may not be applied when the defendant is
separately convicted of the offenses charged against each victim. State v. Williamson, 919 S.W.2d


                                                  -7-
69, 82 (Tenn. Crim. App. 1995); State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim. App.), perm.
to appeal denied, (Tenn. 1994); State v. Lambert, 741 S.W.2d 127, 134 (Tenn. Crim. App. 1987).
In the present case, the Appellant was separately charged and convicted of especially aggravated
robbery involving the victim Shorter, aggravated robbery involving the victim Grayson, and
attempted aggravated robbery involving the victim Collier. In addition to these three victims, a
fourth victim, identified in the record as “a white girl name Sasha,” was also present. The Appellant
was indicted for the aggravated robbery of Sasha; however, the jury in this case acquitted him of this
offense. Sasha did not appear at trial. In State v. Winfield, 23 S.W.3d 279, 282-83 (Tenn. 2000),
our supreme court adopted the rationale of United States v. Watts, 519 U.S. 148, 117 S. Ct. 633
(1997), holding that “a sentencing court may apply an enhancement factor based on facts underlying
an offense for which the defendant has been acquitted, so long as the facts have been established in
the record by a preponderance of the evidence.” Thus, a jury’s verdict of acquittal does not prevent
a sentencing court from considering conduct underlying the acquitted charge if proven by a
preponderance of the evidence. Accordingly, we find application of enhancement factor (3) proper,
i.e., that the three offenses involved more than three victims.

        With respect to enhancement factor (5), Tennessee Code Annotated § 40-35-114(5), we
acknowledge that our supreme court has determined that proof of serious bodily injury does not
necessarily establish the enhancement factor of “exceptional cruelty.” State v. Poole, 945 S.W.2d
93, 98 (Tenn. 1997). Instead, our supreme court has found that before this factor may be applied,
the facts of the case must “support a finding of ‘exceptional cruelty’ that ‘demonstrates a culpability
distinct from and appreciably greater than that incident to’ the crime.” Poole, 945 S.W.2d at 98.
When the trial court applies enhancement factor (5), it should state what actions of the defendant,
apart from the elements of the offense, constituted exceptional cruelty. State v. Goodwin, 909
S.W.2d 35, 45 (Tenn. Crim. App. 1995). In this case, the trial court failed to articulate its reasons
for applying factor (5). After review, we are unable to conclude that the record supports application
of the “exceptional cruelty” enhancement factor. Thus, the trial court erred in applying factor (5).

         The Appellant next contends that the trial court erred in applying enhancement factor (10),
Tennessee Code Annotated § 40-35-114(10), because this factor is an essential element to the
offense of especially aggravated robbery. We agree. The focus of enhancing factor (10) centers upon
the question of whether the offender’s conduct created a high risk to human life. State v. Jones, 883
S.W.2d 597, 602 (Tenn. 1994). In this case, the Appellant’s use of a weapon created this high risk
of harm to human life. However, when an offense is committed with a deadly weapon, it is inherent
within the offense that there was a risk to human life and that the potential for injury was great. State
v. Hill, 885 S.W.2d 357, 363 (Tenn. Crim. App. 1994). Accordingly, factor (10) is inherent in the
offense of especially aggravated robbery which, requires use of a weapon. Thus, we conclude that
the trial court misapplied enhancement factor (10) to the Appellant’s conviction of especially
aggravated robbery.

       With respect to enhancement factor (11), Tennessee Code Annotated § 40-35-114(11), the
Appellant contends that there was no proof that a prior victim was injured by the Appellant. We



                                                  -8-
agree. We find nothing in the record which suggests that the Appellant’s past crimes “resulted in
death or bodily injury” as required by factor (11). Thus, the trial court erred by applying this factor.

         Lastly, the Appellant asserts that the trial court erred by applying enhancement factor (16),
Tennessee Code Annotated § 40-35-114(16), arguing that a crime committed under circumstances
where the potential for bodily injury to a victim is great is inherent to the offense of especially
aggravated robbery. We agree. See State v. Holly Lack Earls, No. 01C01-9612-CC-00506 (Tenn.
Crim. App. Jan. 16, 1998). Furthermore, we find that factor (16) applies only to the actual victim
of the crime and does not refer to “potential victims.” State v. Bingham, 910 S.W.2d 448, 452 (Tenn.
Crim. App. 1995), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9-10 (Tenn.
2000)(panel of this court refused to apply this factor based on a risk to others, finding that “victim”
referred to the victim of the crime and not other potential victims). Thus, the trial court erred by
applying factor (16) in this case.

                                          CONCLUSION

        Upon de novo review, we find that the trial court properly applied enhancement factors (1)
and (3) but erred in applying enhancement factors (5), (10), (11), and (16). Following de novo
review, we conclude that the application of enhancing factors (1) and (3) and the absence of any
mitigating factors justify the maximum sentence of 25 years in this case.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




                                                  -9-
