        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE           FILED
                           MAY SESSION, 1998        December 7, 1998

                                                   Cecil W. Crowson
STATE OF TENNESSEE,           )                  Appellate Court Clerk
                                  C.C.A. NO. 01C01-9705-CC-00193
                              )
      Appellee,               )
                              )
                              )   WILLIAMSON COUNTY
VS.                           )
                              )   HON . DON ALD P . HARR IS
DARRELL WENTZEL,              )   JUDGE
                              )
      Appe llant.             )   (Aggravated Robbery; Aggravated
                              )   Burglary; and Aggravated
                              )   Kidnapping)




FOR THE APPELLANT:                FOR THE APPELLEE:

EUGENE J. HONEA                   JOHN KNOX WALKUP
Assistant Public Defender         Attorney General and Reporter
407-C Main Street, P. O. Box 68
Franklin, TN 37065-0068           ELIZABETH B. MARNEY
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243-0493

                                  JOSEPH BAUGH
                                  District Attorney General
                                  P. O. Box 937
                                  Franklin, TN 37065-0937



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION


      On Decem ber 6, 19 96, a W illiamson Coun ty jury convicte d Appe llant,

Darre ll Wentzel, of two counts of agg ravated robbe ry, one count of aggravated

burglary, and one count of aggravated kidnapping. After a sentencing hearing

on January 31, 1997, Appellant was sentenced to twelve years for each count of

aggravated robbery, twelve years for aggravated kidnapping, and six years for

aggravated burglary, with all sentenc es to be serve d concurren tly. On Feb ruary

18, 1997, Appellant filed a motion for judgment of acquittal or, in the alternative,

a motion for a new trial, claiming that the evidence was insufficient for a

conviction, that the aggravating kidnapping conviction should be dismissed

because it was incidental to the robbery, th at seve ral of the trial cou rt’s

evidentiary rulings were e rrone ous, a nd tha t the trial c ourt had misapplied

enhancement factors to arrive at maximum sentences on all four convictions.

The trial court denied the mo tion. App ellant cha llenges b oth his convictions and

his sentence, raising the following issues:

      1) whether the trial court comm itted plain error by adm itting the in-court
      identification of the Appellant by Mary Ethel Veach;
      2) whether there was sufficient evidence to corroborate the accomplice
      testimony of Edward Mitchem;
      3) whether Appellant’s convictions for two counts of aggravated robbery
      constituted dou ble jeopardy;
      4) whether the trial court correctly rejected Appellant’s argument that he
      could not be co nvicted of aggrav ated k idnap ping b ecau se it wa s only
      incidental to the robb ery;
      5) wheth er the trial co urt correc tly sentenc ed the A ppellant.


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




                                         -2-
                                       I. FACTS




       On May 6, 1996, the home of Logan and Mary Ethel Veach was

burglarized by two armed men who bound and robbed them. In addition, the two

men also bound Ruth Poteete, a friend who was visiting the Veaches. One of the

two m en, Ed ward M itchem , later co nfess ed an d testifie d for the State a t trial.



       Mitchem testified that he received a phone call from Appellant in October

or November 1995, while Mitchem was living in V irginia. A ppella nt told Mitchem

that he knew someone with a safe in his home that contained $500,000 and he

wanted Mitchem to help bre ak into the safe. Mitch em tes tified that Appellant

called him three or four times and Mitchem agreed to co me to Ten ness ee in

March 1996. Mitchem testified that he stayed at the ho me o f Appe llant an d his

wife whe n he ca me to T ennes see.



       Mitchem testified that he and Appellant discussed robbing Mr. Veach, the

man Appe llant ide ntified a s the o wner o f the ho me w ith the s afe. Ap pellan t told

Mitchem that he learned about Mr. Veach from someone named Dudley who

worked at the C oca C ola pla nt.      App ellant a nd Mit chem later drove by the

Veaches’ hom e app roxim ately ten to fifte en tim es to o btain information about the

home. Approximately two weeks before the robbery, Mitchem and Appellant

drove to the Veaches’ home, pulled into the driveway, and Mitchem, disguised

with a ski ma sk, appro ached the doo r. When Mrs. Veach came to the door and

a dog began barking, Mitchem returned to the vehicle and the two men fled the

scene .




                                           -3-
      Mitchem testified that on May 6, 1996, he and Appellant drove to the

Veaches’ hom e in a p lain white car that belonged to Appellant’s mother-in-law.

Mitchem, who was c arrying a clipboard and a scanner that Appellant had

purchased from R adio Shack, gained entry to the Veaches’ home by identifying

hims elf as being from the William son Co unty Sheriff’s Department. After he

entered the home, Mitchem drew a gun and ordered Mr. Veach, Mrs. Veach, and

Mrs. Poteete to get down on the floor with the ir faces toward the floor. Appellant

then entered the home and taped Mr. Veach’s and Mrs. Poteete’s hands behind

their backs, taped their feet, and placed tape over their eyes. After she was

bound with duct tape, Mrs. Poteete became ill and indicated that she was out of

breath.



      Mitchem testified that while Mr. Veach was on the floor, Appellant took

money from his p ocket. While Appellant was looking for a safe in another room,

Mitchem took Mrs. Veach to a back be droom. W hen Mrs. V each said tha t there

was no safe in the house, Mitchem and Appellant took some coins and jewelry

and left the Veaches’ home. Appellant and Mitchem then split up the coins and

money between them. Mitchem later became frightened that he would be caught

and he threw his half of the coins into a pon d on Ap pellant’s fath er’s prop erty

located approximately 150 yards from App ellant’s home . Detective David B eard

of the W illiamson Cou nty Sheriff’s Depa rtment testified that coins were found in

this pond and they were identified as those stolen from the Veach home on May

6, 1996 .



      Mr. Veach tes tified that on May 6 , 1996, he saw tw o me n pull u p to his

home in a white fo ur-door car. Mr. Veach then saw Mitchem enter his home

                                        -4-
carrying a note pad and what appeared to be a “walkie-talkie.”          Mr. Veach

testified that Mitchem then spoke into the “walkie-talkie” and shortly therea fter a

second man entered the home. Mr. Veach never saw the second man and he

could not identify the Appellant. Mr. Veach testified that he had approxim ately

$5,900 in his pock et on the d ay of the ro bbery.



      Mrs. Poteete testified that she became ill while she was bound and that

she was taped for approximately twenty minutes. She also testified that she d id

not see the man who taped her. Neither man took anything from Mrs. Poteete.



      Mrs. Veach testified that on May 6, 1996, she let Mitchem into her home

because she thought that he was th ere fro m the Sher iff’s Department in response

to her rep ort that a n individ ual wearing a ski mask had previously been at the

Veaches’ hom e. Mrs . Veac h testifie d that she was never blindfolded, that she

saw the Appellant when he came in, and “got a long look” at him two or three

times. When M itchem asked her were the safe was, Mrs. Veach told him that

there was no safe and said “Do n’t hurt us. Logan has some money, and my son

has some coins in there--take the money, just don’t hurt us.” Mitchem then took

coins from the back room a nd jewe lry from M rs. Veac h’s bedro om.



      Mrs. Veach testified that she was unable to identify Appellant at the pre-

trial line-up because th ere was something different about him. She explained

that Appe llant’s hair was shorter and styled differently from when she had seen

him during the robbery. Mrs. Veach also testified:




                                         -5-
      I was under the impression when [Detective ] Fred Be nnett called me to the
      jail that they was [sic] holding the other guy there with Mr. M itchem . And
      I said, “Now Fred, I’m not going to tell that this is the man because I’m not
      for sure.” And he said, “Well, if you’re not sure th en you ’re not g oing to tell
      me tha t.” I asked Fred Bennett where my husband was and he said “Up
      in the courtroom.” As I walked into the courtroom, my family was sitting on
      the right; my h usban d was o n the witne ss stand ; Mr. Wentzel and some
      peop le sitting on the left. I says [sic] to my sis ter-in-la w, “W ell I’m glad that
      I did not identify that man they’ve got in jail out there bec ause there sits the
      man that came in my house.” And it was Mr. Mitchem.


Although she said “Mr. Mitchem,” Mrs. Veach was apparently referring to

Appe llant. Mrs. Veach also testified that she thought she had been looking at

some kind of pictu res at the pre-trial line-up rather than at live persons. She

stated that Appellant c ould n ot have been at the lin e-up “b ecau se I ca me s trait

to the co urthou se an d Dar rell W entze l was s itting with a group of people and

there’s no way h e could have gotten there be fore I got there.”



      Gary Beasley testified that he picked Mitchem up at the W illiamson Coun ty

jail abou t a wee k befo re the ro bbery and to ok him to the Appellant’s home at

Mitchem ’s request. Beasley testified that no one was home, but when he later

brought Mitchem back to the house, Mitchem got out of the car an d Beas ley left

him the re.



      Teresa Walker, custodian of records at First Farmers and Merchants Bank

in Columbia, Tennessee, testified that Appellant made a deposit of $1,000 cash

to his acc ount o n May 7, 199 6. She also te stified th at App ellant had written a

check to Radio S hack in M arch of 1 996.



      Dudley Delffs testified that he works for Coca Cola and that in October or

Novem ber, 1995, he had a conversation with Appellant about people in the area

                                           -6-
who “had money,” including Logan Veach. Delffs testified that although Brad

Thompson, a relative of the Veac hes, to ld him that they had a safe in their home,

Delffs did not recall telling Appellant that the Veaches had a safe with $500,000

in it. Delffs testified that Appellant told him that he needed money because of

financial los ses in C hattano oga an d severa l family illnesse s.



       Appellant testified and denied all involvemen t in the crim es and with

Mitchem. Appe llant, his wife, and his mother all testified that Mitchem did not

stay at Appellant’s home as he claimed.



               II. IN-COURT IDENTIFICATION BY MRS. VEACH




       Appellant conte nds th at it was plain error for the trial court to allow the in-

court identification of Appe llant by Mrs . Veach . Appellan t conc edes that this

issue was not raised below either in the form of an objection to her testimony or

in his motio n for judgm ent of a cquitta l or a ne w trial. Ac cordin gly, Ap pellan t’s

attack on Mrs. Veach’s testimony has been waived under Rule 3(e) of the

Tennessee Rules of Appellate Procedure. Rule 3(e) states:



       [I]n all cases tried by a jury, no issue presented for review shall be
       predicated upon error in the admission or exclusion of eviden ce, jury
       instructions granted or refused, misconduct of jurors, parties or counsel,
       or other ground upon which a new trial is sought, unless the same was
       spec ifically stated in a motion for a new trial; otherwise, such issues will be
       treated as waived.


Tenn. R. App. P. 3(e). Appe llant atte mpts to circu mven t this failu re to co mply

with Rule 3 (e) by a rguing that the trial c ourt co mm itted pla in error unde r Rule

52(b) of the Tennessee Rules of Criminal Procedure, which states:

                                           -7-
         An error which has affected the substantial rights of an accused may be
         noticed at any time, even though not raised in the motion for a new trial or
         assigned as error on appeal, in the discretion of the app ellate court where
         necessary to do substantial justice.


Tenn . R. Crim . P. 52(b).



         In State v. Adkisson, this Cou rt stated that the language of Rule 52(b)

“makes it clear that appellate cou rts are to use it ‘sparingly’ in recog nizing errors

that have n ot bee n raise d by the parties . . . . The p lain erro r rule is not a run -of-

the-m ill remedy.” 899 S.W.2d 626, 639 (Tenn. Crim. App. 1994). This Court

then set out five factors to determine w hether an erro r is plain error:



         a) the rec ord mu st clearly es tablish wh at occurr ed in the tria l court;
         b) a clear and unequivocal rule of law must have been breached;
         c) a substantial right of the accused must have been adversely affected;
         d) the accused did not waive the issue for tactical reasons; and
         e) cons ideration o f the error is “n ecessa ry to do su bstantial jus tice.”


Id. at 641–42. Mrs. Veach’s tes timony does n ot satisfy this test. The reco rd

establishes what happened in the trial court, and it is dou btful tha t Appe llant’s

failure to raise this issue at any time before appeal was a tactical ploy, but none

of the other factors is applicab le. Mrs. Ve ach’s tes timony d oes no t represe nt a

breach of a clear and unequivocal rule of law. Indeed, this is likely the reason

why Appella nt’s coun sel did no t object to the testimony at trial. Furt her, the re is

no indica tion tha t a sub stantia l right of the Appellant was adversely affected

because, as explained in Section III, there was other evid ence s ufficient to

corrobo rate Mitche m’s      ac com plice te stimo ny.   Fina lly, cons ideratio n of this

alleged error is not required to do substantial justice. Thus, this issue has no

merit.



                                            -8-
                        III. CORROBORATING EVIDENCE




       Appellant contends tha t the trial court erred w hen it d enied his motion for

judgment of acquittal because the evidence was insufficient as a matter of law to

corrobo rate Mitchem’s accomplice testimony.          This Court stated in State v.

Anderson, 880 S.W .2d 720 (Te nn. Crim. Ap p. 1994):



       The standard by which the trial court determines a motion for judgment of
       acquittal at the end of all the proof is, in essence, the same standard which
       applies when determining the sufficiency of the evidence after a conviction.
       A jury verdict, approved by the trial judge, acc redits the testimony of the
       witnesses for the s tate an d reso lves all c onflicts in favor o f the sta te's
       theory. On ap peal, the state is entitled to the strongest legitimate view of
       the evidence and any reasonable inferences which might be drawn
       therefrom. The credib ility of the w itness es, the weigh t to be g iven the ir
       testimony, and the reco nciliation of conflicts in the evidence are matters
       entrusted exclus ively to the jury as the triers of fact. This court may neither
       reevalua te the evidence nor substitute its inferences for those drawn by the
       jury. A conviction may be set aside only when the reviewing court finds
       that the evide nce is insu fficient to support the finding by the trier of fact of
       guilt beyon d a reas onable doubt.


Id. at 726 (cita tions om itted).



       The appellate courts have addressed the nature, quality, and sufficiency

of the evidence required to corroborate the testimony of an accomplice on

numerous occasio ns.       In State v. G riffis, 964 S.W.2d 577 (Tenn. Crim. App.

1997), this Court stated:



              The rule of corroboration as applied and used in this State is that
       there must be some evidence independent of the testimony of the
       accomplice. The corroborating evidence must connect, or tend to connect
       the defendant with the commission of the crime charged;              and,
       furthermore, the tendency of the corroborative evidence to connect the
       defendant must be independent of any testimony of the accomplice. The
       corroborative evidenc e mus t of its own for ce, indep enden tly of the

                                           -9-
      acco mplic e’s testimony, tend to connect the defendant with the
      comm ission of the crime.
            ....

             The evidence corroborating the testimony of an accomplice may
      consist of direct evidence, circumstantial evidence, or a combination of
      direct and circum stantial evidence. T he quantu m of evidenc e necessa ry
      to corroborate an accomplice’s testimony is not required to be sufficient
      enough to support the accused’s conviction independent of the
      acco mplic e’s testimony nor is it required to extend to every portion of the
      acco mplic e’s testimony. To the contrary, only slight circumstan ces are
      required to corroborate an accomplice’s testimony. The corroborating
      evidence is sufficient if it con nects the accused with the crime in question.


Id. at 588–89 (citations omitted). “Whether a witness’ testimony has been

sufficie ntly corroborated is a matter entrus ted to the jury as trier of fact.” State

v. Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992) (citing Stanley v. S tate,

189 Ten n. 110, 222 S .W.2d 384 (1949 )).



      The evidence in this case clearly established at least the “slight

circumstances” required to corroborate Mitchem’s accomplice testimony. Most

obvious, of course, was the testimony of Mrs. Veach that she clearly saw

Appellant participate in the robb ery. Howeve r, even without this identification,

there was s till enough e vidence to sufficiently corro borate Mitche m’s testimon y.

First, Dudley Delffs testified that in October 1995, he and Appellant had a

conversation about various individuals in the area who had money and that

Appellant mentioned the name of Logan Veach. Delffs also testified that

Appellant told him that he had lost a lot of m oney. Second, Mr. Veach testified

that a white car had been used in the crimes, corroborating Mitchem’s testimony

that he and Appellant used a white car ow ned by A ppellant’s mothe r-in-law to

drive to the Veaches’ home. Further, Mitchem’s testimony that he lived in the

Appe llant’s home while they were planning the robbery was corroborated by the



                                         -10-
testimony of Gary Beasley that he took Mitchem to the Appellant’s house.

Mitche m’s testimony that he stayed with Appellant was also buttressed by the fact

that the police found some of the stolen coins in Appellant’s father’s pond about

150 yards fr om A ppella nt’s house . In addition, Mitchem’s statement that he and

Appellant used a scanner in the robbery that Appellant pu rchas ed from Radio

Shack in March 1996, was corroborated by Teresa Walker’s testimony that

Appellant had written a check to Radio Shack in March 1996. Finally, the

evidence showe d that Ap pellant m ade a $1,000 cash deposit into has bank

accou nt on the d ay after the robbery.



         In short, there was sufficient evidence before the jury as th e trier of fact to

determine that Mitchem’s testimony was sufficiently corroborated. This issue is

without m erit.



    IV. CONVICTIONS ON TWO COUNTS OF AGGRAVATED ROBBERY




         Appellant contends that his convictions for two counts of aggravated

robbery violate his rights under the United States and Tennessee Constitutions

not to be convicted twice for the same offense.1 This issue was not raised in the

trial court. Nevertheless, we address this issue in order to review an alleged error

of constitutional dimension. See State v. Lewis , 958 S.W.2d 736, 738 (Tenn.

1997) (reviewing double jeopa rdy issue even th ough not raise d below).




         1
           The double jeopardy clause of the United States Constitution provides “nor shall any person be
sub ject f or the sam e off ens e to b e twic e put in jeo pard y of life o r limb .” U.S . Con st. am end . V. Sim ilarly,
the Tennessee Constitution provides “[t]hat no person shall, for the same offense, be twice put in jeopardy
of life or limb.” Tenn. Const. art I, § 10.

                                                        -11-
        In State v. Denton, 938 S.W.2d 373 (Tenn. 1996), the Tennessee Supreme

Court extended double jeopardy protection under the Tennessee Constitution

beyond that pro vided b y the U nited S tates C onstitu tion. Th us, wh ile mu ltiple

convictions for a single criminal a ction cou ld be per mitted by the United States

Constitution under Blockburger v. United States, 384 U.S. 299, 52 S. Ct. 180, 76

L. Ed. 306 (1932), the result may be different under the Tennessee Constitution.

Under Denton, resolution of a double jeopardy issue requires the following:



        (1) a Blockburger analysis of the statutory offenses; (2) an analysis guided
        by the princip les of Duch ac [v. State , 505 S.W.2d 237 (Tenn. 1973)], of the
        evidence used to prove the offenses; (3) a consideration o f whether there
        were multiple victims or discrete acts; and (4) a comparison of the
        purposes of the respective statutes. None of these steps is determinative;
        rather the res ults of e ach m ust be weigh ed an d con sidere d in rela tion to
        each other.


Denton, 938 S.W .2d at 381 .



        Thus, we beg in with the first Denton factor, an analysis under the

Blockburger test. Under this test, we ask “whether each offense contains an

element not conta ined in the other; if not, they are the ‘same offense’ and d ouble

jeopardy bars additional punishment and successive prosecution.” United States

v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856, 125 L. Ed. 556, 56 8 (1993).

In this case, both counts of aggravated robbery contain an element that is not

contained in the other. Count one required proof that property was taken from

the person of Loga n Veac h while co unt two re quired p roof that property was

taken from the person of Mary Ethel Veach.2 Because each robbery count

required proof of an element not required by the other count, the Blockburger test


        2
          Under the criminal responsibility provisions of Tennessee C ode Annotated § 39-11 -402 (1997),
it does not matter whether it was Appellant or Mitchem who actually took property from Mr. or Mrs. Veach.

                                                -12-
is satisfied and there is no violation of the federal double jeopardy clause.

However, under Denton, our analysis under the state double jeopardy clause

does not stop there.



         The next step in the inquiry is the Duchac analysis of the evidence used

to prove each offense. If the same evidenc e is not us ed to prove each offense,

“‘then the fact tha t both cha rges rela te to, and grow out of, one transaction, does

not mak e a sin gle offense whe re two are define d by the statutes.’” Denton, 938

S.W.2d at 380 (quoting Duchac, 505 S.W.2d at 239). Here, the evidence used

to prove each count was different, at least in part. Indeed, count one was

established by evidence that Appellant took money from M r. Vea ch’s pocket and

count two by evidence that Mitchem took Mrs. Veach away from Mr. Veach to a

back bedroom where he took possession of the coins.3 Count one did not require

proof that anything was taken from Mrs. Veach and coun t two did not require

proof that anything was taken from Mr. Veach. Thus, application of Duchac

indicates that the two offenses are different for double jeopardy purposes.



         W e now tu rn to the third do uble jeopard y factor of Denton, the

consideration of whether there were different victims or discrete acts. The two

counts of aggra vated rob bery in this c ase relate to two disc rete acts. F irst,

Appellant tied up Mr. Veach and took money from his pocket. A few minutes

later, Mitchem took Mrs. Veach out of the presence of Mr. Veach to a back room




         3
         It is wo rth no ting th at “a r obb ery m ay be a ctua l or co nstru ctive: it is act ual w hen the ta king is
imm ediately from the pers on; and c onstruc tive when in the pos sessio n or in the p resenc e of the pa rty
robbed.” State v. Edwards, 868 S.W .2d 6 82, 7 00 (T enn . Crim . App . 199 3). T he ta king of the coins clear ly
occurred in the presence of Mrs. Veach.

                                                      -13-
where he took th e coins.              These tw o actions were cle arly not a sin gle act. 4

Further, there were clearly two victims here. “The fact that differen t victims are

involved suggests that separate prosecutions would not violate double jeopardy

principles under the Tennessee Constitution.” State v. Winningham, 958 S.W.2d

740, 746 (T enn. 1997 ).



         The fourth and final step u nder Denton require s an a nalysis of the

purposes of the statu tes involved . Becau se both counts of aggravated robbery

involved the same statute, the purposes are obviously the same: to prevent the

theft of prope rty from person s by force. How ever, no one fa ctor is determina tive

and when eac h factor is weighe d and con sidered in rela tion to the others, we

conclude that Appellant’s convictions for two counts of aggravated robbery do not

violate either the federal or state double jeopardy clauses. This issue is without

merit.



                    V. AGGRAVATED KIDNAPPING CONVICTION




         Appellant contends that his conviction for aggravated kidnapping violates

his right to due process because the kidnapping was only incidental to the

robbery. The Tennessee Supreme Court addressed the issue of whethe r both

robbery and kidnapping convictions can be upheld when each conviction arises

out of the same criminal episode in State v. Anthony, 817 S.W.2d 299 (Tenn.

1991 ). The court s tated th at the re levant in quiry is


         4
          Appellant contends that there were no discrete acts in this case because there was no proof that
the property taken from the Vea ches was own ed by them as individuals, rather than jointly. However,
nothing in th e aggra vated rob bery statute s require s proof o f owner ship. Te nn. Cod e. Ann. § 3 9-13-40 1 to
-402 (19 97). See also Elliot v. State , 2 Tenn. Crim. App. 418, 420, 454 S.W.2d 187, 188 (1970) (stating
that right to possession of property taken is not the issue in the crime of robbery).

                                                    -14-
       [W]hether the confinement, moveme nt, or de tention is esse ntially
       incidental to the a ccom panyin g felony and is not, there fore, sufficien t to
       support a separate conviction for kidnapping, or whether it is significant
       enough, in and of itself, to warrant independent prosecution and is,
       therefore, sufficient to support such a conviction.


Id. at 306. The court cited the following test, as taken from Faison v. State, 426

So.2d 963, 9 65 (Fla . 1983 ), with ap prova l:



       [I]f a taking o r confinem ent is allege d to have been d one to fa cilitate the
       commission of another crime, to be kidnapping the resulting movement or
       confinem ent:
               (a) Must not be slight, inconsequential and merely incidental to the
               other crime;
               (b) Must not be of the kind inherent in the nature of the other crime;
               and
               (c) Must have some significa nce in depe nden t of the o ther crim e in
               that it makes the other crime substantially easier of commission or
               substa ntially lessen s the risk o f detection .


Id. See also State v. Michael K. Christian, Jr., No. 03C01-9609-CR-00336, 1998

WL 125562, a t *8–9 (Tenn . Crim. App., Kn oxville, March 23, 19 98).



        It is clear that under this tes t, Appellant’s conviction fo r aggravated

kidnapping must be upheld . The bin ding of M rs. Potee te’s hand s and fee t with

duct tape was certainly not slight or inconsequential. Indeed, this action was

clearly a substantial interference with her liberty that increased the chance that

she would s uffer physical injury. Further, tying up the elderly Mrs. Poteete was

not the kind of action that was inherent in the crime of robbing the Veaches

because it was not necessary in order to commit the robberies. In addition,

although it was not necessary to bind Mrs. Poteete, it did make the robberies

easier by allowing both Appellant and Mitchem to search the house rather than

requiring that one of them watch Mrs. Poteete. Finally, binding Mrs. P oteete ’s



                                         -15-
hands and feet and taping over her eyes also lessened the risk of dete ction. T his

issue is, the refore, with out me rit.



                          VI. APPELLANT’S SENTENCE




       Appellant conte nds th at his se ntenc e is excessive because the trial court

misapplied enhancement factors and failed to follow the appropriate sentencing

guidelines. Under Tennessee law, “[w]hen reviewin g sente ncing iss ues . . .

including the granting or denial of probation and the length of sentence, the

appellate court shall conduct a de novo review on the record of such issues.

Such review shall be conducted with a presumption that the determinations made

by the court from w hich the appe al is taken are correct.” Tenn. Code Ann. § 40-

35-401(d) (1997). “How ever, the presu mptio n of correctness which accompanies

the trial court's action is conditioned upon the affirm ative showing in the record

that the trial court considered the sentencing principles and all relevant facts and

circum stance s.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). “The

defendan t has the burde n of demo nstrating that the sen tence is impro per.” Id.



       A portion of th e Sente ncing R eform A ct of 1989 , codified at Tennessee

Code Annotated § 40-35-210, established a number of specific procedures to be

followed in sentencing. This section mandates the court's consideration of the

following:



       (1) The eviden ce, if any, received at the trial and the sentencing hearing;
        (2) [t]he presentence report; (3) [t]he principles of sentencing and
       argum ents as to sentencing alternatives;             (4) [t]he nature and
       characteristics of the c riminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating

                                         -16-
       factors in §§ 40-35-113 and 40-35-114; and (6 ) [a]ny statement the
       defend ant wishe s to ma ke in his ow n beha lf about se ntencing .


Tenn. Code Ann. § 40-35-2 10 (199 7). In addition, this section provides that the

minimum sentence within the range is the presumptive sentence. If there are

enhancing and mitigating factors, the court must start at the minimum sentence

in the range an d enhanc e the senten ce as app ropriate for the enhancement

factors and the n reduc e the sen tence w ithin the range as appropriate for the

mitigating factors. If there are no mitigating factors, the court may set the

sentence above the minimum in that range but still within the range. The weight

to be give n eac h facto r is left to the discretion of the trial judge. State v. Shelton,

854 S.W .2d 11 6, 123 (Ten n. Crim . App. 1992). The Act further provides that

“[w]henever the court imposes a sentence, it shall place on the record either

orally or in writing, what enhancement or mitiga ting fac tors it fou nd, if any, as well

as findings of fact as requ ired by § 40-35-209 .” Tenn . Code Ann. § 4 0-35-21 0(f)

(1997). Because of the importance of enhancing and mitigating factors under the

sentencing guidelines, even the absence of these factors must be recorded if

none are found. Tenn. Code Ann. § 40-35-210 (1997) comment. These findings

by the trial judge mus t be recorded in order to allo w an adequate review on

appe al. In addition , “[w]hen imposing sentences for multiple offenses, the trial

court must make separate findings as to which enhancement and mitigating

factors apply to which co nvictions.” State v. Christopher B lockett, No. 02C01-

9509-CC-00258, 1996 W L 417659, at *4 (Tenn. Crim. App., Jackson, July 26,

1996) (citing State v. Chrisman, 885 S.W .2d 834, 839 (Tenn. Crim . App. 1994 ).

In this case, the trial court failed to make separate findings as to which

enhancement factors applied to which convictions. Thus, the sentences carry no

presumption of correctness.

                                           -17-
       The trial court stated that in making its sentencing decision, it had

considered the evidence presented during trial, during the sentencing hearing,

and in the presentence report. The trial court found that no mitigating factors

were applicab le. We agree that no evidence was presented to support a finding

that any of the enumerated factors of Tennessee Code Annotated § 40-35-113

were present. The trial court stated that it found that the following enhancement

factors of Tennessee Code Annotated § 40-35-114 applied: (1) that Appellant

had a previous history of criminal co nvictions in addition to those ne cessar y to

establish the ap propr iate ran ge; (2) that Ap pellan t was a leade r in the

commission of the offenses; (3) that the offense involved more than one victim;

(4) that the victims were particularly vulnerable because of age; (6) that the

amount of money taken from Mr. Veach was particularly great; and (16) that the

potential for bodily injury to a victim was great. For the following reasons, we

hold that en hanc eme nt facto rs (1) an d (2) ap ply to all four offenses, that (3) and

(6) apply to some of the offenses, but factors (4) and (16) do not apply to any of

the offenses.



       The trial cou rt was c orrect in applying factor (1). Indeed, Appellant has a

previous conviction in 1979 for attempt to commit a felony. This conviction was

not necessary to establish the appropriate range because other enhancement

factors exist.   See Tenn. Code Ann. §§ 40-35-105, -109 (1997). Appellant

contends that he does not have a prior history of criminal convictions or behavior

because one c onvictio n can not be a “histo ry.” How ever, th is Cou rt has p reviou sly

held that factor (1) applied even though there had been only one previous

conviction. State v. William Ray Rhodes, No. 02C01-9406-CC-00124, 1995 WL

425046, at *6 (Te nn. C rim. A pp. 19 95). T hus, fa ctor (1) could prope rly be used

                                          -18-
to enhance all four of Appellant’s co nviction s, altho ugh it d eserv es little

enhan ceme nt weigh t. See id.



       The trial court was correct in applying factor (2). Indeed, the evidence

showed that Appellant was the leader in all four offenses: Appellant came up

with the idea, planned the crimes, and enticed Mitchem to become involved.

Appe llant’s contention that this factor should not have been applied because he

was “a” leader rather than “the” leader has no merit. See State v. Hicks, 868

S.W.2d 729, 73 1 (Ten n. Crim. App. 1993) (“Our cases have established that

enhancement for being a leader in the co mmissio n of an offense does not req uire

that the de fendan t be the so le leader b ut only that h e be ‘a’ lea der.”).



       The trial court erred in applying fac tor (3) to the aggrava ted robbery and

aggravated kidnapping convictions because each of th ese o ffense s involve d only

one victim and there were separate convictions for each offense. See State v.

Clabo, 905 S.W.2d 197, 206 (Tenn. Crim. App. 1995) (holding that factor (3) was

an “improper enhancement factor, since there were separate convictions for each

victim”). Howe ver, the trial court c orrectly applied this factor to the aggravated

burglary convic tion be caus e both Mr. an d Mrs . Veac h were victims of this

offense. See State v. Derek Denton, No. 02C01-9409-CR-00186, 1996 WL

432338 (Tenn. Crim. App., Jackson, Aug. 2, 1996) (stating that factor (3) can be

applied to aggravated burglary convictions when m ore than one person is killed,

injured, has prop erty stolen, or has pro perty destroyed).



       The trial court erred in applying factor (4) because in committing the

offenses, Appellant did not take advantage of the victims’ ages or physical

                                          -19-
conditions. As stated by this court in State v. Butler, 900 S.W.2d 305 (Tenn.

Crim. A pp. 199 4),



          [A] victim is particu larly vuln erable within the m eanin g of this enhancement
          factor when the victim lacks the ability to resist the commission of the
          crime due to age, a physical cond ition, or a men tal con dition. A victim is
          also particularly vulnerable when his or her a bility to summons assistance
          is impaired; or the victim does not have the capacity to testify against the
          perpetrator of the c rime. H owev er, a find ing tha t one o f these cond itions
          exists does not, as a m atter of la w, me an tha t this fac tor is au toma tically
          considered. The appellant must have taken advantage of one or more of
          these conditions during the commission of the crime. The state had the
          burden of establishing the limitatio ns tha t rende r the victim “particu larly
          vulnerable.” The sta te also ha d the bu rden of e stablishing that the
          condition which rendered the victim “particularly vulnerable” was a factor
          in the commission of the offense.


Id. at 313 (citations omitted). Here, the state failed to meet its burd en. There

was no evidence at all that either of the Veaches was particularly vulnerable and

the only evidence that Mrs. Poteete was vulnerable was that she “had some kind

of spell” during the robbery and needed a glass of water. There was no evidence

that established that any vulner ability of the victims was a factor in the

commission of the offense. Thus, the trial court shou ld not h ave ap plied th is

factor.



          The trial court was correct in applying factor (6) to the convictions for

aggravated robbery of Mr. Veach and for aggravated burglary.                     Appellant

contends that the trial court’s determination that the approximately $6,000 taken

from Mr. Veach was particula rly great wa s “purely a rbitrary and capriciou s.”

Howeve r, the evidence s howed tha t Mr. Veach carries this amount of money on

his person because he cannot read well enough to use checks. Indeed, Mr.

Veach testified that h e only “de als with cash.” Clearly, Appellant’s argument that



                                             -20-
$6,000 is not a partic ularly great amount is without merit. However, this factor

cannot be applied to the other convictions because there was no evidence that

anything of particularly great value was taken from the other victims or that they

sustained pa rticularly great persona l injury.



      The trial court erre d in applyin g factor (16 ). As to the aggrava ted burglary

conviction, this Court has stated that for aggravated burglary convictions, “a trial

court shou ld not a pply this factor absent extra ordinary circum stances.” State v.

Smith , 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994).                  There are no

extraordinary circum stanc es in th is case which warra nt the a pplication of this

factor. As to the aggravated robbery convictions, this Court has also stated that

absent any proof establishing risk to life other than the victim’s, factor (16) is an

essential element of the offense and it cannot be used for enhan ceme nt. State

v. King, 905 S.W.2d 207, 213 (Tenn . Crim. A pp. 199 5). This C ourt ha s also h eld

that factor (16) cannot be used as an enhancement factor for the offense of

aggravated kidnapping as it is inherent in the offens e. State v. Kern, 909 S.W.2d

5, 7–8 (Ten n. Crim. App . 1993).



      Even though we hold that the trial court erred in applying some of the

enhancement factors , a findin g that e nhan cem ent fac tors we re erro neou sly

applied does n ot equa te to a redu ction in the se ntence . State v. Keel, 882

S.W.2d 410, 423 (Tenn. Crim. App. 1994). There are no mitigating factors and

at least two enhancement factors apply to each conviction. We place great

weight on each of these enhancemen t factors conside ring the type of robb ery

and burglary involved. Home invasions by armed hooligans are perhaps one of




                                         -21-
the most d etestab le and frigh tening forms of criminality.          Under these

circum stance s, we affirm the sente nces im posed by the trial co urt.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
DAVID G. HAYES, JUDGE




                                        -22-
