         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs August 6, 2002

                 STATE OF TENNESSEE v. VINCENT HOWARD

                  Direct Appeal from the Criminal Court for Shelby County
                          Nos. 99-04351, -52   J. C. McLin, Judge



                    No. W2001-01904-CCA-R3-CD - Filed April 11, 2003


The defendant appeals his convictions of first degree felony murder and especially aggravated
robbery. He received a life sentence for the first degree felony murder conviction and an additional
twenty-one year sentence for his especially aggravated robbery conviction. The defendant contends
the evidence is insufficient to sustain his convictions. The defendant also argues his twenty-one-
year sentence for especially aggravated robbery is excessive. The defendant alleges the trial court
misapplied enhancement factors (1), (8), (13), and (16) and erred in finding him a dangerous
offender to support its consecutive sentence determination. We affirm the convictions, but remove
the presumption of correctness due to the misapplication of four enhancement factors and remand
for a new sentencing hearing on the especially aggravated robbery conviction only.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and
                              Remanded for Resentencing

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
THOMAS T. WOODA LL, JJ., joined.

A C Wharton, Jr., District Public Defender; W. Mark Ward, Robert Felkner, and Garland Ergüden,
Assistant Public Defenders, for the appellant, Vincent Howard.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Patience R. Branham, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        On April 22, 1999, a Shelby County Grand Jury returned a two-count indictment charging
the defendant, Vincent Howard, with (1) first degree felony murder and (2) first degree premeditated
murder. In a related, but separate, indictment, the Grand Jury charged the defendant with especially
aggravated robbery. The defendant was tried and found guilty by a jury of first degree felony murder
and the underlying felony of especially aggravated robbery. The defendant was sentenced to life
imprisonment for his felony murder conviction and twenty-one years for his especially aggravated
robbery conviction, to be served consecutive to his life sentence. In this appeal, the defendant
contends the evidence is insufficient to sustain his convictions, his sentence is excessive, and he
should not be deemed a dangerous offender.

                                                 Facts

        Jaclyn Marie Dunlap, an employee of Zeke’s Lounge, testified she was not working on
January 13, 1999. She went to Zeke’s Lounge to visit the victim, a fellow employee, to talk about
an argument she and her husband were having that night. She stated she and the victim were the
only people in the bar, and she swept the floors while the victim stocked a cooler. She said that
sometime after midnight she heard a scream and saw men enter the lounge. She crouched behind
the bar and could see that the taller perpetrator wore a ski mask and pointed a .22 rifle with a black
barrel at the victim. She said the man shouted at the victim to turn over all the money. She said she
heard a bell sound as the victim took money from the register and handed it to the man holding the
rifle. She said she noticed the other perpetrator did not wear a ski mask, was shorter than his
accomplice, and had a lighter complexion. She said the shorter man ran about screaming for the
victim to give him all the money. She stated the men would not leave after the victim handed over
the four hundred dollars ($400.00) contained in the lounge’s register. She stated she began to scream
at the men to leave since the victim gave them the money. She said the victim came toward her
when she began to scream and moved the man’s gun barrel with his arm. She said she then heard
two shots, the victim fell, gasping for air. She said the men were knocking bar stools down and fired
another shot. She said she did not hear the men leave, but she crawled to the phone to call 911. She
stated the police arrived as she spoke with the 911 operator.

       On cross-examination, Ms. Dunlap testified the men entered the front door of the lounge
because the other doors to the lounge were locked. She said the men entered the lounge with their
guns drawn. She stated she was crouched behind the bar, but she could see what was going on from
behind a video machine on the bar counter. She said the shorter man had a small pistol that
resembled a .38. She said she was not sure which man fired his gun and that she heard the shots as
she and the victim fell to the floor. She said that because the barrel of the rifle stayed pointed toward
him, the victim hit the barrel to move it out of his way. She said she was unable to identify the man
wearing the ski mask.

        Officer Edward Vidulich of the Memphis Police Department testified that on January 13,
1999, he was the first officer on the scene after receiving a call concerning a robbery and a shooting
at Zeke’s Lounge. He stated he walked through the door of the lounge and found Ms. Dunlap
screaming that the victim had been shot. He said he walked to the side of the bar and found the
victim, unresponsive, lying on the ground. He stated the victim did not have a weapon, although he
had personal knowledge that the owner of the lounge kept a black Derringer gun by the cash drawer.
Police found the derringer under a cigarette machine, adjacent to a beer cooler. On cross-
examination, Officer Vidulich testified he was the officer who entered the lounge while Ms. Dunlap
spoke with the 911 operator.


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        Officer Shan Allen Tracy of the Memphis Police Department testified he responded to a call
at Zeke’s Bar on January 13, 1999, as a member of the crime scene unit. He stated the crime scene
was secure upon his arrival, and the victim had been transported. He said he created a crime scene
diagram which reflected the measurements of the lounge and its backward L-shape. He stated his
diagram reflected the overturned bar stools, the victim’s blue shirt, a .22 caliber casing, a bullet hole
in the cooler, a two-shot Derringer, and blood smears. He said a bullet fragment was recovered from
the cooler, and a .22 caliber casing was found on the floor. He stated the Derringer found at the
crime scene had not been fired. He said the Derringer’s safety was still on, and it was loaded with
two rounds. He stated he photographed the crime scene and secured all of the evidence. He said
he recovered a ski mask and hooded shirt from a vacant wooded lot located less than a mile from
Zeke’s Lounge on the day following the crime. The prosecution asked Officer Tracy to identify the
aforementioned evidence by showing him crime scene photos and entered the photos into evidence
upon the completion of his testimony. The prosecution also asked Officer Tracy to identify a spent
.22 bullet and clothing. Officer Tracy recognized the spent bullet as one collected from the crime
scene and identified a ski mask and hooded shirt found in the wooded area outside of Zeke’s Lounge.
The prosecution entered the spent bullet and clothing into evidence. Officer Tracy testified to
engaging in the collection of evidence from the crime scene. He stated he photographed, measured,
and sealed the evidence. He stated that he placed the evidence into envelopes and tagged it before
taking it to the police property room. On cross-examination, he testified he was not the first officer
on the scene, and police were inside and outside the lounge on the night of the incident. He stated
the crime scene was secure when he photographed and sketched the crime scene.

        Dorothy Jean McRoberts, the victim’s sister-in-law, testified she had known her husband’s
brother for twenty years. She testified that the victim, Richard McRoberts, was known as Ricky
Mack. She stated she last saw the victim at his home a week before his death and received a call
later that he had been shot.

        Sergeant James Ryall of the Memphis Police Department testified that he assisted Sergeant
Shemwell with his investigation of the January 13, 1999, shooting and robbery at Zeke’s Lounge.
He stated he interviewed the defendant with Sergeant Greg Quinn. He said the defendant was
advised of his rights before questioning. He said the defendant, in his first interview, told the
officers a story that did not match information they had been given, which placed the defendant at
the crime scene. He said the first interview was not reduced to a formal statement because the
defendant became agitated. On cross-examination, Sergeant Ryall reiterated his testimony that the
defendant did not seem to have any problems reading or understanding his rights. He stated the
defendant said he understood his rights and signed the rights form. He said the defendant’s
statement had been typed.

        Sergeant Ryall testified that during two interviews with the defendant, the defendant read his
rights and seemed to understand what was asked of him. Sergeant Ryall read the defendant’s
statement given on January 16, 1999, to the jury. The defendant’s statement contained his own
admissions regarding his involvement in the crime. The defendant stated he wore a ski mask and
staked out Zeke’s Lounge with his accomplice, Trell. He stated that Trell fired a .38 pistol, and he


                                                  -3-
fired a semiautomatic .22 rifle loaded with two bullets. The defendant also stated that he robbed
Zeke’s Lounge to help Trell’s mother pay her bills and to have “a little pocket change.”

       Officer Alvin Peppers of the Memphis Police Department testified he received a call on
January 13, 1999, to procure homicide evidence from the morgue. He stated he collected and
secured a full set of prints and a bullet fragment from the victim. He said he collected the bullet
fragment and took it to the property and evidence room where it was logged in and preserved.

        Sergeant Robert Shemwell of the Memphis Police Department testified he was assigned as
the lead investigator of the robbery and homicide occurring at Zeke’s Lounge. He stated he received
two Crime Stoppers tips and a call from a field lieutenant naming the two suspects as responsible.
He said Coach Hopkins at Frayser High School gave him the name and address of the defendant and
Tavarsity Childers, who was called Trell. Sergeant Shemwell stated Tavarsity Childers, who was
taken into custody, named the defendant as his accomplice for the robbery of Zeke’s Lounge on
January 13, 1999. He said Childers told police the defendant used a rifle, and it could be found in
a dumpster in the rear of an apartment complex. He said Childers admitted he got his weapon, a .38
caliber revolver, from a fellow gang member. On cross-examination, Sergeant Shemwell testified
he was not in the room where the defendant made his statement to police, but was present at the
interview and reviewed the defendant’s statement.

        Officer D. H. Rowe of the Memphis Police Department testified that on January 17, 1999,
he was called to 2605 North Watkins to investigate the contents of a dumpster in connection with
a homicide investigation. He stated he climbed inside the dumpster and found a rifle wrapped in an
old rug. He said the rifle contained one live round. He said he photographed the rifle and tagged
the weapon and the round into evidence. On cross-examination, Officer Rowe reiterated his
testimony that he secured the round found in the rifle. He said he did not search the immediate area
and did not secure anything else from inside the dumpster.

        Special Agent Steve Scott of the Tennessee Bureau of Investigation (TBI) testified he was
assigned to review evidence submitted to the TBI regarding the victim’s homicide. He stated he
examined a rifle, a .22 caliber bullet, a bullet fragment, and a shell casing. He stated the
semiautomatic rifle was missing its magazine follower, in which .22 caliber ammunition is pushed
to form the spring pressure, but was in working order as a single-shot .22 rifle. He stated the trigger
must be pulled with approximately seven pounds of pressure in order for the gun to fire. He stated
it was his opinion that the .22 caliber cartridge case, he examined, had been fired from the rifle and
“no other gun in the world.” He stated he knew the rifle fired the .22 case recovered from the scene,
because the shell and rifle have the same “mechanical fingerprint.” He said he examined a bullet
fragment from the victim’s body and was unable to conclusively match the fragment to the gun.
Because the fragment was so small, he stated he could not say that the fragment was from a bullet
fired from the rifle, despite it being of the same caliber as the bullet fired from the rifle. He stated
he examined one unfired .22 caliber cartridge to determine whether the live cartridge was consistent
with the fired ammunition. He said he determined the unfired cartridge and fired ammunition were
similar in shape and design, were made by the same company, and were composed of the same


                                                  -4-
material. He also stated the live cartridge is consistent with the two fired ammunition components
that he examined. He stated he concluded the live cartridge and the spent cartridge had been together
inside the rifle at one time. He stated that he attempted to find any markings present on the unfired
cartridge indicating it had been run through the action of the gun without having been fired, but he
could not find any identifying marks.

        On cross-examination, Agent Scott reiterated his previous testimony that he could not
conclusively state that the rifle fired the tip of the .22 bullet he examined. He stated he could not
match the unfired cartridge to the rifle. He stated the .22 cartridge case found at the crime scene was
fired from the rifle he examined and from that gun only. He said he could not say the bullet came
from the case, but he said the casing was from the same ammunition manufacturer. He said the rifle
could be up to thirty-three years old, but was in working order. He stated that he did not perform any
tests to examine the wear and tear on the trigger mechanism and did not know if the magazine
follower was on the gun at the time of the crime. He said he did not know if the gun was in working
order in semiautomatic mode at the time of the robbery.

         Dr. O’Brien Cleary Smith, Shelby County Medical Examiner, testified he conducted an
autopsy of the victim. He stated the victim died as a result of a gunshot wound to his chest. He said
it was his opinion the victim died as a result of the passage of one bullet through the victim’s body.
He said the bullet would have entered the victim’s body and fractured as it hit the rib bone. He said
he photographed the victim’s wounds to the chest and a grazing gunshot wound to the victim’s arm.
He said the bullet struck the right side of his chest at fifty-five inches above the heal and eight inches
to the right of the midline. He said the bullet entered the victim’s heart, struck and fractured the fifth
rib on the victim’s right side, and bruised his right lung. He said the bullet went through the victim’s
diaphragm and injured his liver. He said the victim sustained internal bleeding as a result of his
wounds. He said the internal bleeding would have resulted in the victim’s windpipe filling with
blood and blocking his airways. He stated the victim sustained contusions to his knees as a result
of falling to the ground.

       The defense offered no proof after the State rested its case against the defendant. The jury
returned and announced that they had reached a verdict as to first degree felony murder and
especially aggravated robbery, but were unable to reach a verdict as to first degree premeditated
murder. The trial court accepted the jury’s verdict of guilty of first degree felony murder and guilty
of especially aggravated robbery and dismissed the jury.

       At the sentencing hearing, the trial court imposed a sentence of life for the first degree felony
murder conviction, a life sentence being the only available sentence. The trial court applied
enhancement factors (1), (8), (13), (16), and (20), and four mitigating factors in making its
sentencing determination for the especially aggravated robbery conviction. The trial court imposed
a twenty-one-year sentence on the especially aggravated robbery conviction, to be served
consecutively with the defendant’s life sentence.




                                                   -5-
                                              Analysis

I. Sufficiency of the Evidence

         The defendant asserts the evidence is insufficient to support his convictions, because the
State failed to prove beyond a reasonable doubt his identity as the perpetrator of the crimes. The
proper inquiry for this Court to review the defendant’s challenge to the sufficiency of the evidence
to support a conviction is whether, considering the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). A guilty verdict accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the prosecution. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). 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). This
Court may not substitute its inferences for those drawn by the trier of fact from circumstantial
evidence. Liakas v. State, 199 Tenn. 298, 305 286 S.W.2d 856, 859 (1956). In fact, this Court is
required to afford the State the strongest legitimate view of the evidence contained in the record, as
well as all reasonable and legitimate inferences which may be drawn from the evidence. State v.
Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). A conviction may be based entirely on
circumstantial evidence where the facts are “so clearly interwoven and connected that the finger of
guilt is pointed unerringly at the Defendant and the Defendant alone.” State v. Smith, 868 S.W.2d
561, 569 (Tenn. 1993) (quoting State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985)). Questions
regarding credibility of the witnesses, the weight to be given the evidence, and any factual issues
raised by the evidence are resolved by the trier of fact. See State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). A verdict of guilt removes the presumption of innocence from the defendant and
replaces it with a presumption of guilt and, on appeal, the defendant’s burden is to demonstrate why
the evidence is insufficient to support his guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-
58; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        The defendant was convicted of first degree felony murder, in violation of Tennessee
Annotated Code section 39-13-202. Our statute defines first degree murder, in part, as “[a] killing
of another committed in the perpetration of or attempt to perpetrate any . . . robbery . . . .” Tenn.
Code Ann. § 39-13-202(a)(2). The Code further states “no culpable mental state is required . . .
except the intent to commit the enumerated offenses or acts . . . .” Id. at (b). The death occurring
under these circumstances must occur “in the perpetration of” the enumerated felony. State v.
Hinton, 42 S.W.3d 113, 119 (Tenn. Crim. App. 2000). Proof of the intention to commit the
underlying felony and at what point it existed is a question of fact to be decided by the jury after
consideration of all the facts and circumstances. State v. Buggs, 995 S.W.2d 102, 106 (Tenn. 1999).

         The defendant was convicted of the underlying felony of especially aggravated robbery, in
violation of Tennessee Code Annotated section 39-13-402(a). Our Code defines robbery as “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(a). Especially aggravated robbery is defined as robbery “(1)


                                                 -6-
[a]ccomplished with a deadly weapon; and (2) [w]here the victim suffers serious bodily injury.”
Tenn. Code Ann. § 39-13-403(a).

         Although the defendant argues the evidence presented is insufficient to justify a rational trier
of fact in finding him guilty beyond a reasonable doubt, he fails to make specific arguments as to the
insufficiency of the evidence as it relates to his identity. The record reflects several instances in
which the testimony establishes the defendant as the perpetrator of the crimes.

A. Eyewitness Testimony

         Jaclyn Dunlap witnessed the robbery and testified to the identity of the perpetrators. Dunlap
testified that she saw two men enter Zeke’s Lounge. She stated one of the men wore a ski mask and
pointed a .22 rifle at the victim. She stated the other perpetrator did not wear a ski mask and ran into
the bar screaming at the victim to hand over all of the money. She stated that the perpetrators would
not leave even after the victim gave them the money from the cash drawer. She said the perpetrator,
wearing the ski mask, pointed his rifle at the victim even after the victim gave them money from the
cash drawer. She stated she saw the victim knock the rifle with his arm and heard two gunshots.
She stated the victim then fell on top of her, gasping for air.

B. Physical Evidence

        The victim died as a result of a gunshot wound from a .22 caliber weapon. In the defendant’s
statement to police, he confessed to shooting a .22 rifle during his robbery of Zeke’s Lounge. Based
upon information from the co-defendant, the police found a discarded .22 rifle in a dumpster. This
rifle was directly connected to the robbery at Zeke’s Lounge after TBI Agent Steve Scott
conclusively matched a .22 cartridge case found at the crime scene with the discarded rifle found by
police. Agent Scott stated the cartridge case could have only been fired by that rifle and no other gun
in the world.

C. Defendant’s Statement

         The defendant confessed to committing the robbery, but was unsure as to whether his bullet
hit the victim. In his statement to police, the defendant stated that he and his accomplice staked out
Zeke’s Lounge with the intent to rob the victim. The defendant stated that he wore a ski mask as he
entered Zeke’s Lounge with his .22 rifle. In his statement, the defendant described how he shot at
the victim and took the money as “pocket change.”

       After viewing the evidence in the light most favorable to the prosecution, we conclude the
defendant has not met his burden of proving the evidence insufficient to sustain his convictions. The
evidence is legally sufficient for a jury to have found the defendant guilty of murder in the first
degree and the underlying felony of especially aggravated robbery.




                                                  -7-
II. Sentencing

        Next, the defendant contends his twenty-one-year sentence for his especially aggravated
robbery conviction is excessive, due to the trial court’s misapplication of enhancement factors (1),
(8), (13), and (16). The defendant also challenges the trial court’s decision to run his especially
aggravated robbery sentence consecutive to his life sentence for his felony murder conviction.

        This Court’s review of the sentences imposed is de novo with a presumption of correctness.
Tenn. Code Ann. § 40-35-401(d). A presumption in favor of the trial court is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with these principles, there is no presumption of correctness and our review is
de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). It is this defendant’s burden to show that
the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Comments.

        If no enhancement or mitigating factors are to be considered for sentencing, the presumptive
sentence for especially aggravated robbery, a Class A felony, shall be the midpoint within the
applicable range. Tenn. Code Ann. § 40-35-210(c). The range of punishment for especially
aggravated robbery is fifteen to twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1). Therefore,
the midpoint of the range for especially aggravated robbery sans enhancement or mitigating factors
is twenty years. If enhancement or mitigating factors exist, a trial court should enhance the sentence
within the range for enhancement factors and then reduce the sentence within the range for the
mitigating factors. Tenn. Code Ann. § 40-35-210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn.
2001). The weight given to each factor is left to the discretion of the trial court, as long as the trial
court complies with the purposes and principles set forth by the sentencing act and supported by the
record. State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000); see Tenn. Code Ann. § 40-35-
210, Sentencing Comm’n Comments. Based upon the foregoing discussion, we conclude the trial
court erred in sentencing the defendant and is not entitled to a presumption of correctness.

A. Misapplication of Enhancement Factor (1)

        The trial court found that the defendant had a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate sentencing range. See
Tenn. Code Ann. § 40-35-114(1) (Supp. 2001) (Amended 2002). At the time of trial, the defendant
was eighteen years old and had an extensive history of criminal behavior as a juvenile. The record
reflects the trial court applied enhancement factor (1) based upon the defendant’s juvenile court
record which was included in the presentencing report.

        The defendant correctly asserts the trial court should have not found enhancement factor (1)
upon his juvenile record. In 1995, the legislature amended Tennessee Code Annotated section 40-
35-114 by adding enhancement factor (20), which allows for enhancement of a sentence if “[t]he
defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would
constitute a felony if committed by an adult.” Tenn. Code Ann. § 40-35-40-35-114(20) (Supp. 2001)


                                                  -8-
(Amended 2002). Our supreme court has held factors (1) and (20) are mutually exclusive in that
factor (1) applies only to adult criminal conduct, as opposed to factor (20), which applies exclusively
to juvenile adjudications of delinquent acts. State v. Jackson, 60 S.W.3d 738, 742 (Tenn. 2001).
The defendant’s presentence report lists several delinquent acts committed by the defendant that
would have constituted felonies if committed by an adult. While the defendant’s record supports
application of factor (20), his juvenile record should not have been used to apply enhancement (1).
Therefore, the trial court correctly applied enhancement factor (20), but erred in its application of
enhancement factor (1).

B. Misapplication of Enhancement Factor (8)

         The trial court applied enhancement factor (8), which involves a defendant’s “previous
history of unwillingness to comply with the conditions of a sentence involving release in the
community.” Tenn. Code Ann. § 40-35-114(8) (Supp. 2001) (Amended 2002). The record reflects
the trial court based its determination to apply this factor on the fact the defendant was on supervised
probation as a juvenile on two occasions, as noted in the presentence report. Our supreme court has
held that juvenile probation violations may be properly considered to determine a history of
unwillingness to comply with the conditions of release into the community. Jackson, 60 S.W.3d at
740. However, the presentence report does not demonstrate the defendant’s failure to comply with
the conditions of his probation. Moreover, the trial court did not base its decision to apply this factor
on any evidence to the contrary. If a defendant had admitted using drugs during his probationary
period, a trial court could support its application of enhancement factor (8). See State v. George
Blake Kelly, 1998 Tenn. Crim. App. LEXIS 1085, *35, No. 01C01-9610-CC-00448 (Tenn. Crim.
App., Oct. 13, 1998, at Nashville). The trial court did not base its application of factor (8) on
anything other than the defendant’s juvenile probation record. The defendant argues that merely
being on probation does not warrant the application of enhancement factor (8). We agree with the
defendant and conclude the trial court erred in its application of factor (8) in determining the
defendant’s sentence.

C. Misapplication of Enhancement Factor (13)

        The defendant argues the trial court misapplied factor (13) in its determination of his
sentence. According to Tennessee Code Annotated section 40-35-114(13), a sentence may be
enhanced if “[t]he felony was committed while on any of the following forms of release status if such
release is from a prior felony conviction:”
        (A)     Bail, if the defendant is ultimately convicted of such prior felony;
        (B)     Parole;
        (C)     Probation;
        (D)     Work release; or
        (E)     Any other type of release into the community under the direct or indirect
                supervision of the department of correction or local governmental authority.




                                                  -9-
       The record reflects the State did not know if factor (13) should have applied to the defendant,
and the trial court ultimately based its application of factor (13)(E) on the basis that the defendant
was on “escape status.” The presentence report indicates the defendant committed the crimes at
issue while on pre-trial release for offenses of which he had not yet been convicted. The record is
void of any evidence the defendant violated any terms of his pre-trial release. Although the
defendant had pending felony charges against him, there was no proof of a conviction on any of the
charges. Therefore, we find enhancement factor (13) was inapplicable to the defendant in this case.
See State v. Watson, 1999 Tenn. Crim. App. LEXIS 659, *12, No. 03C01-9809-CR-00325 (Tenn.
Crim. App., July 9, 1999, at Knoxville).

D. Misapplication of Enhancement Factor (16)

        The trial court applied factor (16) in that “[t]he crime was committed under circumstances
under which the potential for bodily injury to a victim was great,” Tenn. Code Ann. § 40-35-114(16)
(Supp. 2001) (Amended 2002). The defendant correctly asserts the trial court misapplied this factor
because the potential is inherent in the crime of especially aggravated robbery. The record indicates
that defense counsel objected to the trial court’s application of factor (16), and the trial court
responded to counsel’s objections by stating “okay.” The record also reflects the trial court
eventually applied factor (16), absent any reasons for its finding.

        Factor (16) specifically requires the risk or potential injury be to a victim. Tenn. Code Ann.
§ 40-35-114(16) (Supp. 2001) (Amended 2002) (emphasis added). This Court has held serious
bodily injury is an essential element of especially aggravated robbery, therefore, factor (16) may not
be applied on the basis of great potential for bodily injury to the victim of the offense. See State v.
Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). Our supreme court has held that factor (16)
may not be based on the risk of injury to individuals other than the victim of the crime. State v.
Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002). Therefore, the trial court erred by applying this
enhancement factor to the defendant’s sentence for especially aggravated robbery.

E. Consecutive Sentencing

         After applying the aforementioned factors and other uncontested enhancement factors, the
trial court applied several mitigating factors before its final determination to sentence the defendant
to a twenty-one-year sentence, to run consecutively with his life sentence for his felony murder
conviction. The defendant argues the trial court erred in ordering him to serve this sentence
consecutively, in that he should not receive dangerous offender status. The trial court based its
imposition of consecutive sentencing upon criterion set forth in Tennessee Code Annotated section
40-35-115(b). The trial court determined the defendant to be an offender with an extensive criminal
record. See Tenn. Code Ann. § 40-35-115(b)(2). The trial court also determined the defendant 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 human life is high. See Tenn. Code Ann. § 40-35-
115(b)(4). Our supreme court has held a trial court must find that an extended sentence is necessary
to protect the public against further criminal conduct by the defendant and that consecutive sentences


                                                 -10-
reasonably relate to the severity of the offenses committed. State v. Wilkerson, 905 S.W.2d 933, 939
(Tenn. 1995). The trial court utilized this exact language in determining that a consecutive sentence
was necessary to protect the public from future criminal conduct by the defendant. We conclude the
defendant has a lengthy criminal history for someone his age. Finally, the defendant robbed and shot
someone for no other reason than to have “pocket change.” These facts support the trial court’s
determination that the defendant is appropriately classified as a dangerous offender.

                                            Conclusion

       For the aforementioned reasons, we affirm the convictions, but remove the presumption of
correctness due to the misapplication of four enhancement factors and remand for a new sentencing
hearing on the especially aggravated robbery conviction only.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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