        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                    FILED
                               AT KNOXVILLE                        July 14, 1999

                                                                 Cecil Crowson, Jr.
                          APRIL SESSION, 1999                    Appellate C ourt
                                                                     Clerk



STATE OF TENNESSEE,            )   C.C.A. NO. 03C01-9807-CR-00245
                               )
      Appellee,                )
                               )
                               )   KNOX COUNTY
VS.                            )
                               )   HON. MARY BETH LEIBOWITZ
ANTHONY T. JONES,              )   JUDGE
                               )
      Appe llant.              )   (Dire ct Ap pea l - Agg ravat ed R obb ery)




FOR THE APPELLANT:                 FOR THE APPELLEE:

THOMAS SLAUGHTER                   PAUL G. SUMMERS
501 Clinch Avenue, 3rd Floor       Attorney General & Reporter
Knoxville, TN 37902
                                   ERIK W. DAAB
                                   Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 337243

                                   RANDALL E. NICHOLS
                                   District Attorney General

                                   ROBERT JOLLEY
                                   Assistant District Attorney
                                   City-County Building
                                   Knoxville, TN 37902



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

       On October 1, 1997, the Knox County Grand Jury indicted Appellant

Anthony T. Jones for one count of aggravated robbery. After a jury trial on May

11, 1998, Appellant was convicted of aggravated robbery. After a sentencing

hearing on June 5, 1998, the trial court sentenced Appellant as a Range I

standard offender to a term of twelve years in the T ennesse e Department o f

Correction. Appellant challenges both his conviction and his sentence, raising

the following issues:

       1) whether the evidence was sufficient to support Appellant’s conviction;
       2) whether the trial court erre d when it refused to conso lidate this ca se with
       another case in which Appellant was charged with first degree murder; and
       3) whether the trial court erroneously imposed an excessive sentence.

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



                                      I. FACTS




       On August 23, 1997, at approximately 11:00 p.m., Matthew Miller walked

to his car after he com pleted a s hift at his place of employment. After Miller got

in his car and rolled down the window, James Mellon approached Miller and

asked whether he had a cigarette lighte r. W hen M iller beg an se archin g for his

cigarette lighter, M ellon p ulled o ut a ch rome hand gun a nd de man ded M iller’s

wallet and car keys.      Miller gave Mellon his car keys and his wallet which

contained $40.00. Mellon then got into a vehicle and drove away. Miller co uld

see tha t the vehicle was oc cupied by addition al individua ls.




                                           -2-
       On August 26, 19 97, Ap pellan t waived his righ t to rem ain silen t and h is

right to counsel and gave a statement to the police. In his statement to the

police, Appellant stated that he was driving around in a car with Mellon and some

other individuals when Mellon said that they needed to get some money so that

they could buy some marijuana. At some point, there was a discussion about

“ripping off a drug dealer, or a drug hou se or som ething.” When Appellant was

asked whether he knew wha t “everybody was talk ing abo ut going a nd doin g,”

Appellant responded, “everybody knew what w as go ing on . Ther e can ’t nobody

sit there and lie and s ay they didn’t, becau se, you know what I’m saying .”



       Appellant stated that the group then did some more driving around and

Mellon eventu ally got out of the car and robbed Miller with the gun that Appellant

had broug ht with h im tha t night. Appellant stated tha t he watched the robbery

from appro ximate ly one parking space away and believed at first that Mellon was

bluffing.



       Appellant stated tha t when M ellon return ed to the car, Mellon gave M iller’s

wallet to “E.” “E” then took the money out of the wallet, and the group spent

$20.00 to purchase marijuana and $20.00 to purchase something else.



       Appellant subsequently told the police that the gun used in the robbery

could be loc ated a t his girlfriend’s house, and the police later retrieved the gun

from tha t location.




                                         -3-
                      II. SUFFICIENCY OF THE EVIDENCE




       Appellant contends that the evidence was insufficient to support his

conviction for aggra vated robbe ry.



       When an appellant challenges the sufficie ncy of th e evide nce, th is Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s w itnesses and res olves all co nflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused

is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this

presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof re sts with Ap pellant to

demo nstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the

[S]tate is entitled to th e strong est legitimate view of th e evide nce a s well a s all

reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere

the sufficiency of the evidence is contested on appeal, the relevant question for

the reviewing court is whether any ra tional trier of fact could have found the

accused guilty of every element of the offens e beyon d a reas onable doubt.

Jackson v. Virgin ia, 443 U.S . 307, 319 , 99 S. C t. 2781, 2 789, 61 L. Ed. 2d 560

(1979). In conducting o ur evaluation of the c onvicting evidence, this Cour t is

precluded from reweighing or reconsidering the evide nce. State v. Morgan, 929

S.W.2d 380, 38 3 (Ten n. Crim. A pp. 1996).          More over, this Court may not

substitute its own infe rences “for those d rawn by the trier of fact from

circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure

                                           -4-
provides, “findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.”



      Under Tenn essee law, “[r]obbe ry is the intentiona l or knowing theft of

property from th e pers on of a nothe r by viole nce or putting th e perso n in fear.”

Tenn. Code Ann. § 39-13-4 01(a) (1997).          Further, aggravated robbery is a

robbery which is “[a]ccomplished with a deadly weapon or by display of any

article used or fashioned to lead the victim to reasonably believe it to be a dead ly

weapo n.” Tenn . Code Ann. § 3 9-13-40 2(a)(1) (19 97). In add ition, “[a] p erson is

crimin ally respo nsible for an offense committed by the co nduct o f anothe r if . . .

[a]cting with intent to p romote or assist the comm ission of the offense, o r to

bene fit in the proceeds or results of the offense, the person solicits, directs, aids,

or attempts to aid a nother perso n to comm it the offense.” Tenn. Code Ann. § 39-

11-402(2) (19 97).



      In this case, there is no dispute that Mellon committed the offense of

aggravated robbery by using a deadly weapon to take property from Miller by

putting him in fear for his safety. Essentially, the only dispute is whether the

evidence was sufficient to establish beyond a reasonable doubt that A ppellant

was guilty of aggravated robbery because he was criminally responsible for the

conduct of Mellon.



      Initially, Appellant contends that the evidence w as insufficient to supp ort

his conviction because there was no proof that he ever put Miller in fear, that he

took anythin g directly from Miller, or that he exercised direct control over the

                                          -5-
property that was taken from Miller.         Howe ver, this argumen t is com pletely

irrelevant in the situation presented sub judice. In orde r to esta blish A ppella nt’s

guilt, the State had to prove that Appellant “solicit[ed], direct[ed], aid[ed], or

attempt[ed] to aid” Mellon in the co mmissio n of the aggra vated robbery “w ith

intent to promote or assist the comm ission of the offense, or to benefit in the

proceeds or results of the offense .” See Tenn. Code Ann. § 39-11-402(2) (1997).

Contrary to Appellant’s assertion, nothing in the crim inal respo nsibility statute

required the State to prove that Appellant had committed the offense of

aggravated robbery himself by threatening Miller and taking property directly from

Miller.



          Appellant also contends that the evidence was insufficient becaus e there

was no proof about how Mellon obtained possession of Appellant’s gun.

Howeve r, Appellant’s own statement showed that when A ppellant in itially got into

the car with Mellon and the other individuals, Mellon did not know that Appellant

had a gun. Then, sometime after the discussion about the need to obtain money

for marijuana and the proposal to rob a drug dealer, Mellon used Appellant’s gun

to rob Miller. The police subsequently located the gun at App ellant’s girlfriend ’s

house. A rational jury could infer from this evidence that Appellant gave his gun

to Mellon before the robbery and took possession of the gun again sometime

after the robbery.



          Appe llant further contends that the evidence was insufficient becaus e there

was no proof that he knew that Mellon was going to com mit a robbery. H owever,

when Appellant was asked whether everyone knew what was going to happen

after the discussion about obtaining money for marijuana and the proposal to rob

                                           -6-
a drug dealer, Appellant expressly stated “everybody knew what was going on.

There can’t n obod y sit there and lie and s ay they didn’t.” T his evid ence is clear ly

sufficient for a rational jury to conclude that Appellant knew that Mellon was going

to comm it a robbery.



       Finally, Appellant contends that the evidence was insufficient because

there was no proof tha t he directe d or instruc ted Mello n to commit the aggravated

robbery. Howe ver, the crim inal respo nsibility statute express ly states tha t a

person is criminally responsible for the conduct of another if that person “aids, or

attempts to aid” the other in the commission of an offense. Tenn. Code Ann. §

39-11-402(2) (1997). Thus, the State was not required to prove that Appellant

directed or instructed Mellon to commit the offense.



       W e conc lude th at whe n the e videnc e in this case is viewed in the light most

favora ble to the State, as it must be, the evidence was sufficient for a rational jury

to conclude beyond a reas onab le dou bt that A ppella nt was crimin ally resp onsib le

for the aggravated robbery of Miller. The eviden ce sh ows th at App ellant to ok his

handgun with him and got into the car with Mellon and the other individuals.

Mellon subsequently stated that the group needed to obtain some money in order

to purchase marijuana. T he group the n discussed robbing a dru g dealer or a

drug house and by Appellant’s own admission, “everybody knew what was going

on.” Mellon su bsequ ently got ou t of the car and used Appellant’s gun to rob

Miller. Appellant and the rest of the group th en use d $20.0 0 of the m oney to

purchase marijuana and they then spent the remaining $20.00 on something

else. The police later retrieved the gun from Appellant’s girlfriend’s house. This

evidence was clearly sufficie nt for a ration al jury to conclude tha t Appellant gave

                                           -7-
Mellon his gun so that Mellon could commit the aggravated robbery and Appellant

and the rest of the group could then use the proceeds to buy marijuana. Thus,

a rational jury could clearly find that A ppellant was c riminally responsible for

Mellon ’s conduct because Appellant aided the commission of the aggravated

robbery with the intent of sharing in the proceeds.



      In this cas e, App ellant e ssen tially asks us to reconsider the evidence and

substitute a verdict of not guilty in place of the verdict found by the jury. Th at is

not our function. Instead, we conclude that a rational jury could have found

beyond a reasonable doubt that Appellant was gu ilty of the offense of aggravated

robbery because he was criminally responsible for the conduct of Mellon. This

issue ha s no m erit.



                        III. FAILURE TO CONSOLIDATE




      Appellant conte nds th at the tria l court e rred w hen it re fused to gran t his

motion to conso lidate this cas e with a nothe r case in which he was ch arged w ith

first degree m urder beca use it prevented him from b eing a ble to s how th at his

statement that “everybody knew what was going on” only applied to the murder

charge.



       Rule 13(a) of the Tennessee Rules of Criminal Procedure provides:


       The court may order consolidation of two or more indictments,
       presentments, or informations for trial if the offenses and all defendants
       could have b een jo ined in a single ind ictmen t, presentment, or information
       pursuant to Rule 8.




                                         -8-
Tenn. R. Crim. P. 13(a). In addition, Rule 8(a) of the Tennessee Rules of

Criminal Procedure provides:


      Two or more offenses shall be joined in the same indictme nt, prese ntmen t,
      or information, with each offense stated in a separate count, or
      consolidated pursuant to Rule 13 if the offenses are based upon the same
      conduct or arise from the s ame crim inal episode an d if such offenses are
      known to the app ropriate prosecuting official at the time of the return of the
      indictment(s), presentment(s), or information(s) and if they are with in the
      jurisdiction of a single court. A defen dant sh all not be s ubject to s eparate
      trials for multiple offenses falling within this s ubsection un less they are
      severed pursuant to Rule 14.

Tenn. R. Crim. P. 8(a). Essentially, Appellant contends that the trial court was

required to consolidate the two trials under 13(a) because joinder of the two

charged o ffenses in the sam e indictment w as man datory unde r Rule 8(a).



      Appellant contends that consolidation was mandatory under Rule 8(a)

because the alleged offenses were committed within one hour of each other and

occurred at locations that were only a few miles a part. Howeve r, Appellant has

failed to support this conclusory allegation with any further information. Indeed,

Appellant has failed to specify what time the events in the murder case took place

and has failed to spe cify where they occurred. In addition, Appellant has failed

to provide any information about the victim of the murder, has failed to spec ify

how the murder occurred, and has failed to specify the alleged motive for the

murder. In addition, the indictment for the murder case is not in the record, and

there is nothing else in the record that contains any specific information about the

murder case. In fa ct, the record indicates that Appellant failed to introduce any

proof at the hearing on his motion to consolidate.




                                         -9-
        In short, Ap pellant ha s failed to provide u s with any information about the

murder case up on whic h we ca n determine whether the tw o offenses w ere

“based upon the sa me con duct or ar[o]se from the s ame c riminal ep isode.”

Therefore, we have no basis for determining whether Rule 8(a) mandated

consolidation of this case with the murder case. The mere fact that two offenses

were committed by the same person within a re latively short time a t two rela tively

close locations, without more, is insufficient to establish that Rule 8(a) applies.

Because Appellant has provided us with no information upon which we could

reach a contrary conclusion, we must presume that the trial court was correct

when it determined that the mandatory joinder provisions of Rule 8(a) did not

require the consolidation of Appellant’s two cases.1 This issu e has n o merit.



                               IV. LENGTH OF SENTENCE




        Appellant contends that the trial court erroneously sentenced him to a

longer term than he deserves.



        “When reviewing senten cing issu es . . . including the granting or denial of

probation and the length of sentence, the appellate cou rt shall conduct a d e novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the co urt from which the ap peal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presumption of correctness which accompa nies th e trial co urt’s ac tion is

        1
         The record indicates that the State was opposed to permissive consolidation of this case with the
murder case under Rule 8(b) because it intended to use a conviction in this case as a basis for seeking
the death penalty in the murder case. Regardless of the propriety of the prosecutor’s motivation for
opposing permissive consolidation, that motivation is simply not relevant to determining whether the
aggravated robbery and the murder offenses were “based upon the same conduct or ar[o]se from the
same crim inal episode” as is required for mandatory conso lidation under Rule 8(a).

                                                -10-
conditioned upon the affirmativ e showing in th e record that the trial cou rt

considered the sentencing principles and all rele vant facts a nd circum stance s.”

State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1). In conducting our review, we

must cons ider all th e evide nce, th e pres enten ce rep ort, the s enten cing p rinciples,

the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s

statem ents, the nature and character of the offense, and the defendant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W .2d at 169 .             “The de fendant has the burden of

demonstrating that the sentenc e is imprope r.” Id. Because the record in this

case indicates that the trial court failed to p roperly conside r the sentencing

principles and all relevant facts and circumstances, our review is de novo without

a presum ption of co rrectnes s. State v. Poo le, 945 S.W .2d 93, 96 (T enn. 1997 ).



       In this case, Appellant was convicted of aggravated robbery, a Class B

felony. See Tenn. Code Ann. § 39-13-402 (1997). The sentence for a Range I

offender convicted of a Class B felony is b etween eight and twelve yea rs. Tenn.

Code Ann. § 40-35-112(a)(2) (1997). The presumptive sentence for a Class B

felony is the minimum sentence in the range if there are no enhancement or

mitigating factors. Tenn. C ode Ann . § 40-35-210 (c) (1997). W hen there are

enhancement but no mitigating factors that apply to a sentence, the court may set

the sentence above the minimum in that range but still within the range. Tenn.

Code Ann. § 40-35-210(d) (1997). When both enhancement and mitigating

factors are applicable to a sentence, the court is directed to begin with the

minimum sentence, enhance the sentence within the range as appropriate for the

enhancement factors, and then reduce the sentence within the range as

appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210 (e) (1997).

                                           -11-
      In determining that Appellant should be sentenced to a twelve year term,

the trial court found that the following enhancement factors applied: (1) Appellant

had a previous history of criminal convictions or criminal behavior in addition to

those necessary to establish the app ropriate sentencing range, (2) Appellant was

a leader in the commission of an offense involving two or more criminal actors,

(7) the offens e involved a victim an d was c omm itted to gratify Appellant’s des ire

for pleasure or excitement, (8) Appellant had a history o f unwillin gnes s to co mply

with the conditions of a sentence involving release into the community, (10)

Appellant had no hesitation in committing an offense where the risk to human life

was high, and (20) App ellant had been a djudicate d to have committed delinquent

acts as a juven ile that wou ld be felon ies if com mitted by an adu lt. See Tenn.

Code Ann. § 40-35-114(1), (2), (7), (8), (10), (20) (1997).          The trial court

appare ntly found that no m itigating facto rs applied .



      Appellant does not challenge the application of enhancement factor (1),

however, we conclude that it was incorrectly applied. In 1995, the Tennessee

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 wo uld co nstitute a felon y if com mitted by an adult.” Tenn. Code

Ann. § 40-35-114(20) (1997). This Court has previously stated that for offenses

comm itted after the effective date of the amendment (July 1, 1995), only those

delinquent acts by a juvenile that would constitute a felony if committed by an

adult can be conside red to en hance a senten ce. State v. Ronald Shipley, No.

02C01-9601-CR-00031, 1997 WL 21190, at *7 n.1 (Tenn. Crim. App., Jackson,

Jan. 22, 199 7); State v. Timothy Adams, No. 02C01-9512-CC-00376, 1997 WL

                                         -12-
1821, at *4 n.4 (Tenn. Crim. App., Jackson, Jan. 3, 1997). Because the offense

in this case was committed after July 1, 1995, the trial court erred when it applied

enhancement factor (1 ) base d on A ppella nt’s pre vious re cord o f juvenile

adjudications.2



         Appellant contends that the trial cou rt erred when it applied enhancement

factor (2) because there was no evidence that he ha d any le aders hip role in the

commission of the aggrava ted robbery. W e agree that the record simply does

not contain a ny eviden ce that Appellant was a leader in the commission of the

offense.       Wh ile the evide nce indic ates that Appellant was present during

conversations about obtaining money for marijuana and about committing a

robbery, there is no evidence that Appellant initiated those conversations or

otherwise directed or planned the robbery. While the evidence shows that

Appellant knew that Mellon intended to commit a robbery when he gave Mellon

his gun, there is no evidence that Appellant instructed Mellon to commit the

robbery. We cannot agree with the State that the mere fact that Appellant

provided Mellon with a gun, without more, establishes that Appellant was a leader

in the commission of the offense.



         Appellant does not challenge the application of enh ancem ent factor (7),

however, we con clude tha t it was incorr ectly applie d. The S tate has the burden

of demonstrating that the crime was comm itted to gratify a defendant’s desire for

pleasure or excitem ent. State v. Adams, 864 S.W .2d 31 , 35 (T enn. 1 993). In this

case, while there was evidence that Appellant and the others committed the



         2
         W e not e tha t App ellant ’s rec ord c onta ins no prev ious conv iction s for offe nse s co mm itted w hile
Appellan t was an adult.

                                                       -13-
aggravated robbery in order to use the proceeds to obtain pleasure by

purchasing and then consuming marijuana, there was absolutely no evidence

that Appellant participated in the agg ravated ro bbery in o rder to obtain pleasu re

or excitem ent from the robb ery itself. Thus, the trial court erred when it applied

enhance ment factor (7).



          Appellant does not ch allenge the ap plication of enhan cemen t factor (8),

and we co nclud e that it w as co rrectly applied. Indeed , the record indicates that

Appellant has been placed on probation numerous times and has then violated

the terms of his probation by committing new offenses and failing to com ply with

court ord ered reg ulations.



          Appellant contends that the trial court erred when it applied enhancement

factor (10). W e agree that this facto r was inco rrectly app lied. This Court has

previo usly stated that absent any proof establishing a risk to a life other than the

victim’s, enhancement factor (10) is inapplicable to sentences for aggravated

robbery because a high risk to human life is an element of the offens e. State v.

Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993). There is no proof in the

record that the life of anyone other than the victim was endangered during the

aggravated robbery of Miller. Thus, the trial court erre d whe n it app lied this

factor.



          Appellant does not ch allenge the ap plication of enhan cemen t factor (20),

and we conclude that it was correctly applied because Appellant was adjudicated

as having com mitted offens es as a juven ile that w ould have been felonie s if




                                          -14-
committed by an adult.       Indeed, the record indicates that Appellant has

adjudica tions for ag gravated robbery a nd agg ravated a ssault.



      Appellant contends tha t the trial court should have applied mitigating factor

(6) because Appellant was only eighteen years old when he committed the

offense. See Tenn . Code Ann. § 40-35-1 13(6) (19 97). The Tennessee Supreme

Court has stated that when determining th e applicability of this mitigating facto r,

the sentencing court should consider “the defenda nt’s age, educ ation, maturity,

experience, mental capacity or development, and any other pertinent

circumstance tending to demo nstrate the defend ant’s ability or in ability to

appreciate the nature of h is conduct.”        State v. Adams, 864 S.W.2d at 33.

Besides referring to his age at the time of the offense, Appellant has fa iled to

indicate any reason for why this fac tor applied . Appellan t has failed to indicate

how his age or anything else affected his judgment when he participated in the

aggravated robbery.      In deed, th e record indicates that Appellan t is well-

acquainted with the criminal justice system and with the consequences of

violating the law. In fact, the record indicates that besides the two adjudications

for felonies, A ppellant h as had adjudica tions for approximately thirty-four

delinquent acts th at occ urred over a s ix year perio d. Thus, mitigating factor (6)

was not applicable.



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

enhancement factors, a finding tha t enha ncem ent fac tors we re erro neou sly

applied does not equate to a reduction in the sente nce. State v. Keel, 882

S.W.2d 410, 423 (Tenn. Crim. App. 1994). Given the number and severity of the

felony offenses in Appellant’s juvenile record, and the failure of lesser forms of

                                        -15-
punishment to curb Appellant’s criminal behavior, we conclude that the two

enhancement factors applicab le in this cas e warran t a sentence of twelve years.3



         Accordingly, the judgment of the trial court is AFFIRMED.



                                             ____________________________________
                                             JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




         3
          The reco rd ref lects that A ppe llant h as ju venile adju dica tions of de linque ncy fo r app roxim ately
eight felonies. These include aggravated robbery and aggravated assault. Appellant at the time of the
sentencing hearing was nineteen (19 ) years old and had been a perenn ial defendant in juvenile court
since the age of thirteen (13). It is apparent that none of the measures taken by juvenile court have been
effective in rehabilitating this young man.

                                                      -16-
