            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  FEBRUARY 2000 SESSION

            STATE OF TENNESSEE v. RONALD JEROME BUTLER

              Appeal as of Right from the Criminal Court for Davidson County
                           No. 96-A-1307    Seth Norman, Judge



                    No. M1999-01034-CCA-R3-CD - Filed August 11, 2000


Ronald Jerome Butler was convicted by a jury in the Davidson County Criminal Court of one count
of aggravated kidnapping and one count of aggravated robbery, both class B felonies. For the
offense of aggravated kidnapping, the trial court sentenced the appellant as a Range I offender to ten
years incarceration in the Tennessee Department of Correction, requiring him to serve one hundred
percent of his sentence in confinement. For the offense of aggravated robbery, the trial court
sentenced the appellant to ten years incarceration in the Tennessee Department of Correction,
requiring him to serve thirty percent of his sentence in confinement. The trial court further ordered
that the sentences be served consecutively. On appeal, the appellant raises the following issues for
review: (1) whether his conviction of aggravated kidnapping violates principles of due process; and
(2) whether the trial court erred in sentencing him. Upon review of the record and the parties’ briefs,
we affirm the judgments of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID H. WELLES and DAVID
G. HAYES, JJ., joined.

Jennifer Lynn Thompson, Nashville, Tennessee, and Calvin Turner, Nashville, Tennessee, for the
appellant, Ronald Jerome Butler.

Paul G. Summers, Attorney General and Reporter, Elizabeth T. Ryan, Assistant Attorney General,
Nicholas Bailey, Assistant District Attorney General, and Jon Seaborg, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION
                                        I. Factual Background
                 On the night of December 14, 1995, at approximately 9:30 p.m., Julie Nabors stopped
for dinner at the Sonic drive-in restaurant on Lebanon Road in Hermitage, Tennessee. The appellant
approached the open window of Ms. Nabors’ Lexus automobile, put a gun to her head, and ordered
her to “scoot over” to the passenger seat. Ms. Nabors pled with the appellant to take her car and her
purse but to let her go. The appellant, however, refused to release Ms. Nabors and again ordered her
to move to the passenger seat. When she complied, the appellant put his gun in his jacket pocket and
sat in the driver’s seat. His accomplice sat in the back seat.

              The appellant exited the Sonic and drove the Lexus through the parking lot of a
nearby Texaco gas station. At the gas station, a group of young people crowded around the car and
cheered the appellant. After a few minutes, the appellant left the gas station and drove down the
street. Ms. Nabors was still in the car, pleading to be released. The appellant assured her that she
would be released.

               While driving down the street, the appellant and his accomplice rummaged through
Ms. Nabors’ purse and found her automatic teller machine (ATM) card. They asked her how much
money she had in the bank. Ms. Nabors told them that she had about two hundred dollars in her
account. Accordingly, the appellant drove to the closest branch of Ms. Nabors’ bank and ordered
her to withdraw the entire two hundred dollars from her account. As Ms. Nabors followed the
appellant’s orders, the appellant and his accomplice watched her closely. When Ms. Nabors returned
to the car, she handed the money to the appellant. The appellant again refused to release Ms.
Nabors. Rather, after leaving the ATM, the appellant drove eight miles to a boat dock, where he
released Ms. Nabors and fled with his accomplice. The entire incident lasted about thirty or forty
minutes.

               The appellant was convicted by a jury in the Davidson County Criminal Court of one
count of aggravated kidnapping, a class B felony, and one count of aggravated robbery, a class B
felony.1 In determining the appropriate sentences, the trial court found that there were two
enhancement factors applicable to the appellant: (1) the appellant has a previous history of criminal
convictions or criminal behavior, and (8) the appellant has a previous history of unwillingness to
comply with the conditions of a sentence involving release in the community. Tenn. Code Ann. §
40-35-114 (1997). The trial court found no mitigating factors. Accordingly, for the offense of
aggravated kidnapping, the trial court imposed a Range I sentence of ten years incarceration in the
Tennessee Department of Correction and ordered the appellant to serve one hundred percent of his
sentence in confinement. For the offense of aggravated robbery, the trial court imposed a sentence
of ten years incarceration and ordered the appellant to serve thirty percent of his sentence in
confinement. The trial court further required the appellant to serve his sentences consecutively.

                                            II. Analysis
                 On appeal, the appellant first contends that the facts supporting his aggravated
kidnapping conviction were incidental to the facts supporting his aggravated robbery conviction;
therefore, his kidnapping conviction violates due process. The appellant also argues that the trial
court erred in sentencing him. Although somewhat unclear from his brief, the appellant is apparently
challenging the length of both his sentences. Moreover, he contends that the trial court erred in
requiring him to serve his sentences consecutively.


        1
         Judge Thomas H. Shriver presided over the appellant’s trial. Due to Judge Shriver’s untimely death, Judge
Seth Norman presided over the sentencing hearing.

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                                      A. Aggravated Kidnapping
                 The appellant argues that his aggravated kidnapping conviction violates his due
process rights, because the facts supporting that conviction, i.e., the confinement and detention of
Ms. Nabors, are incidental to those facts which support his aggravated robbery conviction. In State
v. Anthony, 817 S.W.2d 299, 306 (Tenn. 1991), our supreme court held that the relevant inquiry
under these circumstances is whether
        the confinement, movement or detention is essentially incidental to the [robbery] and
        is not, therefore, sufficient 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.
The court noted that “every robbery, by definition, involves some detention against the will of the
victim, if only long enough to take goods or money from the person of the victim.” Id. However,
because the “aggravated kidnapping statute does not require a particular distance of removal or any
particular duration or place of confinement,” “any restraint in addition to that which is necessary to
consummate . . . robbery may support a separate conviction for kidnapping.” State v. Dixon, 957
S.W.2d 532, 535 (Tenn. 1997). In Dixon, our supreme court further refined the Anthony test. The
court held that if the Anthony threshold is met, that is, if the confinement was beyond that necessary
to commit the robbery, a court must also inquire whether the additional confinement (1) prevented
the victim from summoning help; (2) lessened the appellant’s risk of detection; or (3) created a
significant danger or increased the victim’s risk of harm. Dixon, 957 S.W.2d at 535.

                In the present case, Ms. Nabors’ detention was not essential to the theft of her car.2
Ms. Nabors begged the appellant to take her car and her purse and release her. The appellant could
have easily complied, but he refused to release Ms. Nabors. Furthermore, the appellant only ordered
Ms. Nabors to give him money after he and his accomplice discovered her ATM card. In fact, even
after obtaining the additional two hundred dollars, the appellant took Ms. Nabors to a boat dock eight
miles away before releasing her, rather than leaving her at the ATM upon completion of the robbery.
The appellant’s restraint of Ms. Nabors was more than that required to commit the robbery.
Therefore, the first part of the Anthony-Dixon analysis is met.

               We must now determine if the appellant’s restriction of Ms. Nabors prevented her
from summoning help, lessened the appellant’s risk of detection, created a significant danger to Ms.
Nabors, or increased her risk of harm. Dixon, 957 S.W.2d at 535. Although only one of the
additional elements is needed, the facts of this case support all of the elements. It is clear that
detaining Ms. Nabors in the car prevented her from summoning help. She was unable to notify
anyone of the theft of her car or her money until the appellant released her. Further, because Ms.

         2
           See State v. Cunningham, No. 02C01-9801-CR-00022, 1999 WL 395415, at *4 (Tenn. Crim. App. at Jackson,
June 15, 1999)(it was unnecessary to force the victim to remain in her car in order to steal the veh icle); State v. Price,
No.0 1C01-9810-CR-00421, 1999 WL 1063414, at *2 (Tenn. Crim. App. at Nashville, November 24, 1999)(the
aggravated robbery could have been completed when the defendant first approa ched the car witho ut forcing the victim
to drive around to find a secluded area for comp letion).

                                                           -3-
Nabors was not free to notify anyone of the robbery, the appellant’s risk of detection was lessened.
Also, the reduced risk of detection increased Ms. Nabors’ risk of harm. See Dixon, 957 S.W.2d at
536. The appellant, while in possession of a gun, forced Ms. Nabors to remain in the car. Despite
his assurances to the contrary, the appellant could have shot Ms. Nabors at any time during her
confinement in the car. Therefore, both prongs of the Anthony-Dixon test are satisfied. The
appellant’s aggravated kidnapping conviction does not violate due process and must be upheld. This
issue is without merit.

                                               B. Sentencing
                The appellant also argues that the trial court erred in imposing his sentences. First,
the appellant contends that the trial court erred in enhancing his sentences for both aggravated
kidnapping and aggravated robbery two years above the minimum sentences of eight years. Second,
the appellant alleges that the trial court erred by requiring him to serve his sentences consecutively.3

                Generally, appellate review of the length of a sentence is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d) (1997). The presumption of correctness is
contingent upon the record revealing that the trial court adequately considered sentencing principles
and all relevant facts and circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The trial court’s failure to properly consider these factors removes the presumption of correctness.
See State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). In any event, the burden is on the appellant
to demonstrate the impropriety of his sentences. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments.

                In its de novo review, this court considers the following factors: (1) the evidence, if
any, received at the trial and the sentencing hearing; (2) the pre-sentence report; (3) the principles
of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the
criminal conduct involved; (5) evidence and information offered by the parties on enhancement and
mitigating factors; (6) any statement by the defendant in his own behalf; and (7) the potential for
rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210 (1997). See also Ashby, 823
S.W.2d at 168.

               The trial court must also consider these factors in sentencing a defendant. Tenn. Code
Ann. § 40-35-103(1). Moreover, in determining the appropriate sentence, the trial court must
determine the appropriate range of sentence. Tenn. Code Ann. § 40-35-210(a). The appellant in this
case is a standard offender, and aggravated kidnapping and aggravated robbery are both class B
felonies. Tenn. Code Ann. § 39-13-304(b)(1), -402(b)(1997). Therefore, the appropriate sentencing
range is from eight to twelve years incarceration. Tenn. Code Ann. § 40-35-112(a)(2)(1997). The
appellant’s sentence within the range depends upon the trial court’s application of enhancement and
mitigating factors. Tenn. Code Ann. § 40-35-210(b)(5). Because we conclude that the trial court


         3
           W e will examine these claims even though the appellant does not support his allegations by argument, citation
to authorities, or appropriate references to the record. Such bald assertions are generally treated as waive d by this co urt.
Tenn. R. Ct. Crim. App. 10(b).

                                                             -4-
improperly considered enhancement factors and failed to consider a statutorily mandated mitigating
factor, we review the appellant’s sentences without a presumption of correctness.

                                       1. Length of sentences
               First, the appellant challenges the trial court’s imposition of ten-year sentences for
his convictions of aggravated kidnapping and aggravated robbery, sentences that are in excess of the
statutory minimum for each offense. With regard to the sentence for aggravated kidnapping, the
appellant specifically claims that the trial court erred by failing to take into account his voluntary
release of the victim alive, a statutorily mandated mitigating factor. Tenn. Code Ann. § 39-13-
304(b)(2). The State conceded at oral argument that the trial court was required to consider the
appellant’s voluntary release of the victim, and we agree.

                With regard to both ten-year sentences, the trial court found that two enhancement
factors were applicable to the appellant: (1) the appellant has a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate range,
and (8) the appellant has a previous history of unwillingness to comply with the conditions of a
sentence involving release in the community. Tenn. Code Ann. § 40-35-114. In applying
enhancement factor (8) to the appellant, the trial court noted that “he was on probation, as I
understand it, out of the juvenile court at the time he committed these acts.” However, the mere fact
that the appellant committed the current offense while on probation does not indicate a previous
history of unwillingness to comply with conditions of a sentence involving release into the
community. See State v. Hayes, 899 S.W.2d 175, 185-186 (Tenn. Crim. App. 1995)(commission
of the offense for which a defendant is being sentenced should not make factor (8) applicable). But
see State v. Martin, No.03C01-9711-CR-00508, 1998 WL 707798, at *4 (Tenn. Crim. App. at
Knoxville, October 12, 1998) perm. app. denied (Tenn. 1999)(the accused was on probation when
the current offense was committed, which indicated unwillingness to comply with conditions of
release). The court also could not consider the appellant’s previous violation of parole as a juvenile
in applying enhancement factor (8). State v. Faulkner, No. 03C01-9806-CR-00217, 1999 WL
1039714, at *7 (Tenn. Crim. App. at Knoxville, November 12, 1999)(when imposing a sentence for
an offense committed after enactment of Tenn. Code Ann. § 40-35-114(20), the trial court could not
consider the defendant’s “probation revocation that occurred when he was a juvenile”). Thus, the
court improperly applied enhancement factor (8).

                 Additionally, because all of the appellant’s prior offenses were committed by him
as a juvenile, the court improperly considered enhancement factor (1). See State v. Brown, No.
02C01-9710-CC-00419, 1998 WL 742350, at *2 (Tenn. Crim. App. at Jackson, October 26,
1998)(factor (20) became the exclusive factor for enhancing a sentence based on an appellant’s
juvenile record after Tenn. Code Ann. § 40-35-114 was amended in 1995). Enhancement factor (20)
is the only appropriate factor to consider when a 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. § 40-35-114. The appellant’s juvenile convictions of theft of property over $500 and
attempted especially aggravated robbery would have been class E and class B felonies, respectively,
if committed by an adult. Tenn. Code Ann. § 39-14-105(2), 39-13-403(b), 39-12-107(a)(1997).
Accordingly, factor (20) is applicable to the appellant.

                                                 -5-
                 When there are enhancement and mitigating factors that apply to an appellant, the
trial court must start at the minimum sentence in the range, enhancing the sentence as appropriate
in light of any enhancement factors and reducing the sentence as appropriate upon consideration of
any mitigating factors. Tenn. Code Ann. § 40-35-210(e). The trial court, in its discretion,
determines the weight to be given to the enhancement and mitigating factors. See State v. Hayes,
899 S.W.2d 175,185 (Tenn. Crim. App. 1995); Price 1999 WL 1063414, at *6. This court has noted
that,
                 the mere number of existing enhancement factors is not relevant–the
                 important consideration being the weight to be given each factor in
                 light of its relevance to the [appellant’s] personal circumstances and
                 background and the circumstances surrounding his criminal conduct.
Hayes, 899 S.W.2d at 186. With regard to the appellant’s sentence for aggravated kidnapping, the
enhancement factor of the appellant’s violent, juvenile criminal history weighs heavily against the
mitigating factor of the voluntary release of Ms. Nabors. With regard to the appellant’s sentence for
aggravated robbery, the trial court correctly found that there are no applicable mitigating factors.
We conclude that the record supports the appellant’s ten year sentences for both the aggravated
kidnapping conviction and the aggravated robbery conviction.

                                      2. Consecutive Sentences
                Lastly, the appellant challenges the trial court’s imposition of consecutive sentences.
Tenn. Code Ann. § 40-35-115(a)(1997) governs the court’s ability to sentence an appellant who is
convicted of more than one criminal offense to consecutive or concurrent terms of incarceration.
See also Tenn. R. Crim. P. 32(c)(1). The trial court may order consecutive sentences if one or more
of the following factors is present: (1) the appellant is a professional criminal who has knowingly
devoted himself to criminal acts as a major source of livelihood; (2) the appellant is an offender
whose record of criminal activity is extensive; (3) the appellant is a dangerous mentally abnormal
person so declared by a competent psychiatrist who concludes as a result of an investigation prior
to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive
or compulsive behavior with heedless indifference to consequences; (4) the appellant is 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; (5) the appellant is convicted of two or
more statutory offenses involving sexual abuse of a minor with consideration of the aggravating
circumstances arising from the relationship between the appellant and victim or victims, the time
span of appellant’s undetected sexual activity, the nature and scope of the sexual acts and the extent
of the residual, physical and mental damage to the victim or victims; (6) the appellant is sentenced
for an offense committed while on probation; or (7) the appellant is sentenced for criminal
contempt. Id. at (b)(1)-(7).

                The presence of a single factor is enough to justify the imposition of consecutive
sentences. See State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995); Covington v. State,
No. 01C01-9401-CR-00010, 1994 WL 548751, at *1 (Tenn. Crim. App. at Nashville, October 6,
1994). In this case, the trial court found that the appellant committed the aggravated kidnapping and
aggravated robbery while on probation for offenses adjudicated in juvenile court. Tenn. Code Ann.
§ 40-35-115(b)(6). We affirm the trial court’s imposition of consecutive sentences.

                                                 -6-
                                         III. Conclusion.
              The appellant has failed to demonstrate that his aggravated kidnapping of Ms. Nabors
was incidental to the aggravated robbery. The appellant has also failed to carry his burden of
demonstrating the impropriety of his sentences. We affirm the judgments of the trial court.


                                             Norma McGee Ogle, Judge




                                               -7-
