         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                       Assigned on Briefs October 3, 2000 Session

                   STATE OF TENNESSEE v. SHIRLEY DAVIS

               Appeal as of Right from the Criminal Court for Shelby County
                      No. 98-14215     Carolyn Wade Blackett, Judge



                     No. W2000-00084-CCA-R3-CD - Filed May 9, 2001


On December 3, 1998, a Shelby County Grand Jury indicted Shirley Davis, the Defendant and
Appellant, for aggravated robbery. Following a jury trial, the Defendant was convicted as charged.
After a subsequent sentencing hearing, the trial court sentenced the Defendant to serve nine years
incarceration. On appeal, the Defendant claims that the trial court erroneously enhanced her
sentence. Although we find that the trial court erroneously applied a statutory enhancing factor, our
de novo review reveals the existence of an applicable enhancing factor that was not applied by the
trial court. This enhancement factor amply justifies the sentence imposed. Accordingly, we affirm
the trial court’s judgment.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES, J., and ALAN E.
GLENN, J., joined.

John Sorrels, Memphis, Tennessee, for appellee, Shirley Davis.

Paul G. Summers, Attorney General & Reporter, Lucian D. Geise, Assistant Attorney General;
William L. Gibbons, District Attorney General; Janet L. Shipman, Assistant District Attorney, for
the appellee, State of Tennessee.

                                            OPINION

                                       Factual Background
         On July 31, 1998, Hoye Solomon drove a small truck to a neighborhood grocery store.
Before he got out of the truck, the Defendant approached him, put a chrome pistol to his head, and
demanded his wallet. Mr. Solomon gave the Defendant his wallet, and she started to walk away.
After a few steps, the Defendant realized that Mr. Solomon’s wallet was empty. The Defendant
turned back toward Mr. Solomon, yelled “give me your f**king money,” and fired three shots into
the air. She went back to Mr. Solomon and reached into his shirt pockets, where she found $122.00.
She took the money, got into a black car parked across the street, and fled.
        Mr. Solomon immediately called police and reported the robbery. Over the next few weeks,
Mr. Solomon occasionally saw the Defendant, but she would turn away from him or try to obscure
her face. On August 17, 1998, Mr. Solomon stopped Officer Adam Merritt, a patrol officer in the
same neighborhood, and told Officer Merritt that he had just seen the Defendant. He described the
Defendant, her location and her clothes. Officer Merritt saw a woman nearby who matched the
description provided by Mr. Solomon, and he picked her up. Mr. Solomon subsequently identified
the Defendant while she was sitting in the back of the patrol car. Officer Merritt then transported
the Defendant to the Shelby County Criminal Justice Complex, where the Defendant gave a
statement admitting that she robbed Mr. Solomon.
        The Defendant was indicted, tried and convicted for aggravated robbery. At a subsequent
sentencing hearing, the State argued that the Defendant’s sentence should be enhanced because the
pre-sentence report indicated that she had a previous history of criminal convictions in addition to
those necessary to establish that she was a Range I, standard offender. Specifically, the pre-sentence
report indicated that the Defendant had been convicted of misdemeanor possession of cocaine and
felony possession of marijuana with intent to sell. The Defendant did not attempt to persuade the
court that any mitigating factors applied. Following the hearing, the trial court found the existence
of one statutory enhancement factor: that the offense was committed under circumstances under
which the potential for bodily injury was great. The court found no mitigating factors. Accordingly,
the court sentenced the Defendant to serve nine years incarceration.

                                              Sentencing
        On appeal, the Defendant challenges the imposition of a nine-year sentence. When an
appellant challenges the length, range, or manner of service of a sentence, this Court conducts a de
novo review with a presumption that the determination of the trial court was correct. Tenn. Code
Ann. § 40-35-401(d). However, this presumption of correctness is "conditioned upon the affirmative
showing that the trial court in the record considered the sentencing principles and all relevant facts
and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting a review,
this Court must consider the evidence, the presentence report, the sentencing principles, the
arguments of counsel, the nature and character of the offense, mitigating and enhancement factors,
any statements made by the defendant, and the potential for rehabilitation or treatment. State v.
Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burden of showing
the impropriety of the sentence imposed. State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App.
1993).
        The Defendant contests the length of her nine-year sentence. The Defendant was convicted
of aggravated robbery, a Class B felony. Tenn. Code Ann. § 39-13-402(b). The sentencing range
for a Range I offender convicted of a Class B felony is between eight and twelve years. Id. §
40-35-112(a)(2). The sentence to be imposed by the trial court for a Class B felony is presumptively
the minimum in the range if neither enhancement nor mitigating factors are present. Id. §
40-35-210(c). The trial court is to increase the sentence within the range based upon the existence
of enhancement factors and, then, reduce the sentence as appropriate for any mitigating factors. Id.
§ 40-35-210(e).
        In this case, the court found the existence of one enhancement factor, that “[t]he crime was
committed under circumstances under which the potential for bodily injury to a victim was great.”


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Id. § 40-35-114(16). The court found no mitigating factors. On appeal, the Defendant claims, and
the State concedes, that the trial court erred when it enhanced the sentence, because the potential
for great bodily injury is an element of aggravated robbery. We agree. In State v. Claybrooks, this
Court found that because the offense of aggravated robbery necessarily entails a potential for great
bodily harm, application of this enhancement factor was erroneous. 910 S.W.2d 868, 872-73 (Tenn.
Crim. App. 1994). Thus, the trial court erred when it applied the statutory enhancement factor.
        However, this does not end the analysis, because the record indicates that another
enhancement factor was applicable. See State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993) (holding
that Court of Criminal Appeals, in conducting its de novo review, is authorized to consider any
enhancement factors supported by the record.); see also State v. Pearson, 858 S.W.2d 879, 885
(Tenn. 1993) (affirming Court of Criminal Appeals’ application of an enhancement factor not relied
upon by the trial court). The Defendant was sentenced as a standard, Range I offender. As stated
above, the pre-sentence report indicates that the Defendant had previously been convicted of
misdemeanor possession of cocaine in 1990 and felony possession of marijuana with intent to sell
in 1988. Accordingly, we find that the Defendant’s two prior convictions indicate that the Defendant
had a previous criminal history in addition to that necessary to establish the appropriate sentencing
range. See Tenn. Code Ann. § 40-35-114(1). We find no applicable mitigating factors. Having
found one applicable enhancing factor and no applicable mitigating factors, we find a nine-year
sentence appropriate for this Defendant.
        Accordingly, the judgment of the trial court is AFFIRMED.



                                                      ___________________________________
                                                      JERRY SMITH, JUDGE




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