         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            APRIL 1998 SESSION
                                                      FILED
                                                          May 1, 1998

                                                      Cecil Crowson, Jr.
STATE OF TENNESSEE,                   )               Appellate C ourt Clerk
                                      )   NO. 02C01-9707-CC-00270
      Appellee,                       )
                                      )   MADISON COUNTY
VS.                                   )
                                      )   HON. FRANKLIN MURCHISON,
AARON BENARD GRAY,                    )   JUDGE
                                      )
      Appellant.                      )   (Aggravated Robbery and
                                      )   Aggravated Assault)



FOR THE APPELLANT:                        FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR.                   JOHN KNOX WALKUP
(On Appeal)                               Attorney General and Reporter
113 North Court Square, Ste. 204
P.O. Box 26                               DOUGLAS D. HIMES
Waverly, TN 37185-0026                    Assistant Attorney General
                                          Cordell Hull Building, 2nd Floor
GEORGE MORTON GOOGE                       425 Fifth Avenue North
(At Trial and Of Counsel on Appeal)       Nashville, TN 37243-0493
District Public Defender
                                          JAMES G. (JERRY) WOODALL
VANESSA D. KING                           District Attorney General
(At Trial)
Assistant Public Defender                 DONALD H. ALLEN
227 W. Baltimore Street                   Assistant District Attorney General
Jackson, TN 38301-6137                    225 Martin Luther King Drive
                                          P.O. Box 2825
                                          Jackson, TN 38302-2825




OPINION FILED:



AFFIRMED IN PART; REVERSED IN PART



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, Aaron Benard Gray, was convicted by a Madison County jury

of aggravated robbery and aggravated assault. The trial court sentenced him to

concurrent sentences of twelve (12) years as a Range I offender for aggravated

robbery and ten (10) years as a Range II offender for aggravated assault. These

sentences were ordered to run consecutively to a prior sentence. On appeal,

defendant raises four (4) issues for our review:

       (1) whether his dual convictions for aggravated robbery and
       aggravated assault violate due process under our Supreme Court’s
       ruling in State v. Anthony, 812 S.W.2d 299 (Tenn. 1991);

       (2) whether the evidence is sufficient to sustain his convictions for
       aggravated robbery and aggravated assault;

       (3) whether the trial court erred in ruling that the victim was competent
       to testify; and

       (4) whether the trial court erred in imposing the maximum sentence.

We find that the convictions for both aggravated robbery and aggravated assault

violate defendant’s constitutional protections against double jeopardy; therefore, his

conviction for aggravated assault is reversed and dismissed. In all other respects,

the judgment of the trial court is affirmed.



                                       FACTS



       The proof at trial showed that on September 5, 1996, Officer Rex Curry, Jr.

of the Jackson Police Department was dispatched to 10 Bronzewood Cove, where

an alleged robbery had taken place. The victim, Joe Hunt, resided there with his

brother, Edward. The defendant also lived at the residence occasionally with

Edward’s permission. When Officer Curry arrived, Joe Hunt was visibly upset.

Earlier that night, defendant put a knife to Hunt’s neck, threatened to kill Hunt and

demanded Hunt’s money. Hunt stated that defendant took $3 from Hunt’s wallet

and left the residence.

       While Curry was speaking with the victim, Investigator Michael Doran with the



                                          2
Madison County Sheriff’s Department located defendant approximately 300 yards

from the residence. Doran overheard a radio transmission concerning the robbery

and, because he knew defendant, began looking for him. Doran conducted a

“cursory frisk” of defendant’s person and found a “boxcutter.”

       Officer Curry, upon learning that defendant had been found, proceeded to

that location in order to further investigate the robbery. Defendant was handcuffed

and placed in the back seat of Curry’s patrol car. Curry drove defendant back to

Hunt’s residence, where Hunt confirmed that defendant was the man who robbed

him. Curry then took defendant to the police station. During the booking procedure,

officers found $3 on defendant’s person.

       The jury returned guilty verdicts for aggravated robbery and aggravated

assault. The trial court sentenced defendant as a Range I offender to twelve (12)

years for aggravated robbery and as a Range II offender to ten (10) years for

aggravated assault.1 These sentences were ordered to run concurrently to each

other but consecutively to a prior sentence. From these convictions and sentences,

defendant brings this appeal.



                                DOUBLE JEOPARDY



       In his first issue, defendant contends that his convictions for both aggravated

robbery and aggravated assault violate his due process rights as delineated by our

Supreme Court in State v. Anthony, 812 S.W.2d 299 (Tenn. 1991). He argues that

because both convictions stem from the same incident, the aggravated assault is

incidental to the aggravated robbery pursuant to Anthony. At the hearing on the

motion for new trial, the trial court acknowledged that convictions for both offenses

would be improper.2 We agree. However, we base our ruling on double jeopardy

principles rather than due process.


       1
         Defendant was previously convicted of four (4) Class E felonies, thereby making
him ineligible for Range II on the aggravated robbery, a Class B felony.
       2
          However, the record does not indicate that the aggravated assault conviction was
set aside.

                                            3
                                        A.

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

fashioned a method by which courts should analyze a double jeopardy claim under

the Tennessee Constitution:

      (1) a Blockburger analysis of the statutory offenses; (2) an analysis,
      guided by the principles of Duchac[ v. State, 505 S.W.2d 237 (Tenn.
      1973)], of the evidence used to prove the offenses; (3) a
      consideration of whether there were multiple victims or discrete acts;
      and (4) a comparison of the purposes of the respective statutes. None
      of these steps is determinative; rather the results of each must be
      weighed and considered in relation to each other.

938 S.W.2d at 381.

                                        B.

      Initially, we must start with an analysis of the statutory offenses as provided

in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed.2d 306 (1932).

The Blockburger test states that “where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one is whether each provision requires proof

of an additional fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182.

A Blockburger violation is a violation of the double jeopardy provisions of the

constitutions of both the United States and Tennessee.

      In order to prove aggravated robbery, the state must show that the defendant

intentionally or knowingly committed a theft from the person of another by violence

or putting that person in fear while employing a deadly weapon. Tenn. Code Ann.

§§ 39-13-401(a), 39-13-402(1). An aggravated assault is committed where a

defendant intentionally or knowingly causes bodily injury or causes another to

reasonably fear imminent bodily injury while using or displaying a deadly weapon.

Tenn. Code Ann. §§ 39-13-101(a), 39-13-102(a)(1)(B). The offense of aggravated

robbery requires proof of a theft of property, whereas aggravated assault does not.

However, the offense of aggravated assault by causing another to reasonably fear

imminent bodily injury by the use of a deadly weapon does not require proof of any

additional element distinct from the elements of aggravated robbery accomplished

with a deadly weapon.



                                         4
       Aggravated assault causing another to reasonably fear imminent bodily injury

by the use of a deadly weapon is a lesser included offense of aggravated robbery

by the use of a deadly weapon. An offense is a lesser included offense “only if the

elements of the included offense are a subset of the elements of the charged

offense and only if the greater offense cannot be committed without also committing

the lesser offense.” State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996). By

committing the aggravated robbery, defendant, while using or displaying a deadly

weapon, necessarily caused the victim to “reasonably fear imminent bodily injury.”

See Tenn. Code Ann. § 39-13-101(a)(2). Thus, aggravated assault was a lesser

included offense of aggravated robbery. See State v. Michael Anthony Revlett a/k/a

Mike Revlett, C.C.A. No. 01C01-9604-CR-00141, Davidson County (Tenn. Crim.

App. filed July 30, 1997, at Nashville) (holding that trial court properly charged

aggravated assault by the use of a deadly weapon as a lesser included offense of

aggravated robbery by the use of a deadly weapon).

       Under the double jeopardy provisions of the constitutions of both the United

States and Tennessee, a defendant may not be convicted of two offenses if one is

a lesser included offense of another. Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct.

2221, 2226-27, 53 L.Ed.2d 187 (1977); State v. Black, 524 S.W.2d 913, 915 (Tenn.

1975); State v. Green, 947 S.W.2d 186, 189 (Tenn. Crim. App. 1997). Therefore,

only one conviction may stand.

                                         C.

       Further analysis under State v. Denton also indicates that double jeopardy

under the Tennessee Constitution is violated by defendant’s dual convictions. The

evidence used to prove each offense is virtually identical. For aggravated robbery,

the state proved that defendant approached Hunt, put a knife to his neck,

threatened to kill him and took $3. The state’s proof for aggravated assault was that

defendant approached Hunt, put a knife to his neck and threatened to kill him.

       Additionally, the offenses arose out of the same incident and involved only

one victim. Moreover, the purposes of the statutes are similar in that both offenses

involve violence against the person with a deadly weapon. The harm sought to be



                                         5
punished in aggravated assault by the use of a deadly weapon is encompassed in

aggravated robbery, even though aggravated robbery also involves a theft and

aggravated assault does not.

                                          D.

       We find that aggravated assault is a lesser included offense of aggravated

robbery under the facts of this case. We conclude that defendant’s convictions for

both aggravated robbery and aggravated assault violate his protection against

double jeopardy under the United States Constitution and the Tennessee

Constitution. Only one conviction can, therefore, be sustained. Accordingly,

defendant’s conviction for aggravated assault is reversed and dismissed.



                        SUFFICIENCY OF THE EVIDENCE



       In his second issue, defendant contends that the evidence is insufficient to

support the jury’s verdict of guilt. When an accused challenges the sufficiency of

the convicting evidence, our standard of review is whether, after reviewing 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.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence as well as all factual issues raised by the evidence, are resolved

by the trier of fact, not this Court. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim.

App. 1995). Nor may this Court reweigh or reevaluate the evidence. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the state is entitled to the

strongest legitimate view of the evidence and all inferences therefrom. Id. Because

a verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this Court of illustrating why the

evidence is insufficient to support the verdict returned by the trier of fact. State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Because defendant’s conviction for aggravated assault is reversed, we will



                                          6
only address the sufficiency of the evidence for the aggravated robbery conviction.

Aggravated robbery is defined as “the intentional or knowing theft of property from

the person of another by violence or putting the person in fear” accomplished with

a deadly weapon or by the display of a deadly weapon. Tenn. Code Ann. §§39-13-

401(a), 39-13-402(a)(1). Theft of property is defined as knowingly obtaining or

exercising control over property “without the owner’s effective consent” and “with the

intent to deprive the owner” of the property. Tenn. Code Ann. § 39-14-103.

       The state’s proof at trial showed that the defendant placed a knife against the

victim’s neck, threatened to kill him and demanded his money. Defendant then took

$3 from the victim’s wallet and left the house. The evidence is clearly sufficient to

sustain the jury’s finding of guilt of aggravated robbery.

       This issue is without merit.



                     VICTIM’S COMPETENCY TO TESTIFY



       Defendant next argues that the trial court erred in allowing the victim, Joe

Hunt, to testify. He claims that Hunt was mentally incompetent and had been

receiving treatment for a mental disability for approximately twenty (20) years.

Therefore, he contends that the trial court should not have permitted him to testify.

       Hunt testified that he was receiving Supplemental Security Income at the

time of trial. He had been receiving medication at the Jackson Mental Health

Center for the past twenty (20) years. However, when asked whether he had a

mental disability, Hunt responded, “[n]ot as I know of, I don’t.” He testified that he

knew the difference between the truth and a lie and stated, “I don’t believe in going

around lying.” Furthermore, he stated that understood that he was under oath.

       In determining that Hunt was competent to testify, the trial court stated:

              All right. It appears to me -- the Motion is overruled. Mr. Hunt
       is elderly. He has little or no education. He is feeble and he is not
       sharp, but he’s a competent witness. He is very responsive to the
       questions.

....

       everything he has been asked, he has responded to it as he

                                          7
       understood the question. He’s competent.

       Tenn. R. Evid. 601 provides that “every person is presumed competent to be

a witness.” No one is automatically prohibited from testifying because of age or

mental status. State v. Caughron, 855 S.W.2d 526, 537-38 (Tenn. 1993). “So long

as a witness is of sufficient capacity to understand the obligation of an oath or

affirmation, and some rule does not provide otherwise, the witness is competent.”

Id. at 538. The question of competency is a matter within the discretion of the trial

court. Id. The trial court’s determination on competency will not be overturned

absent a showing of an abuse of discretion. State v. Howard, 926 S.W.2d 579, 584

(Tenn. Crim. App. 1996).

       Hunt testified that he knew the difference between the truth and a lie and did

not believe in telling a lie. Moreover, he stated that he understood the oath that he

took. The trial court did not abuse its discretion in allowing Hunt to testify.

       This issue has no merit.



                                   SENTENCING



       In his final issue, defendant contends that the trial court erred in imposing the

maximum sentences for each offense. We will address only the sentence for

aggravated robbery since defendant’s conviction for aggravated assault is reversed.




                                          A.

       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

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. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.


                                           8
In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.

       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d

785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the minimum sentence, enhance the minimum 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). No particular weight for

each factor is prescribed by the statute, as 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 of the sentencing act and its findings are supported by the record.

State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,

848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.

App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.

Nevertheless, should there be no mitigating factors, but enhancement factors are

present, a trial court may set the sentence above the minimum within the range.

Tenn. Code Ann. § 40-35-210(d); see Manning v. State, 883 S.W.2d 635, 638

(Tenn. Crim. App. 1994).

                                          B.

       In imposing defendant’s sentence, the trial court applied three (3)

enhancement factors, namely: (1) defendant had a previous history of criminal

convictions or criminal behavior, Tenn. Code Ann. § 40-35-114(1); (2) the victim was

especially vulnerable because of age or physical or mental disability, Tenn. Code

Ann. § 40-35-114(4); and (3) defendant had a previous history of unwillingness to

comply with the conditions of a sentence involving release in the community, Tenn.



                                          9
Code Ann. § 40-35-114(8).         The trial court found no mitigating factors were

applicable.

         Although defendant does not specifically contest the applicability of any of

the above enhancement factors, we will briefly address each of them. According

to defendant’s pre-sentence report, he had twenty-three (23) prior misdemeanor

convictions and four (4) prior felony convictions. Because defendant was sentenced

as a Range I offender for the aggravated robbery, the trial court properly applied

Tenn. Code Ann. § 40-35-114(1), that defendant has a previous history of criminal

convictions or behavior in addition to those necessary to establish the appropriate

range.

         Secondly, the trial court found that the victim was particularly vulnerable due

to his age and mental condition. This factor can not be established by the showing

of age alone. State v. Walton, 958 S.W.2d 724, 729 (Tenn. 1997); State v. Adams,

864 S.W.2d 31, 35 (Tenn. 1993); State v. Hunter, 926 S.W.2d 744, 749 (Tenn.

Crim. App. 1995). There must be an independent showing that the victim was

particularly vulnerable because of his age or mental condition. State v. Walton, 958

S.W.2d at 729. State v. Adams, 864 S.W.2d at 35. While there is no definite

reference in the record to the victim’s age, all parties apparently agree that he is an

elderly man. Defendant testified at the sentencing hearing that Hunt is “mentally

incompetent.” Defendant also claimed that he was taking care of Hunt due to his

mental disability. While finding no specific evidence that Hunt was suffering from

a mental disability, the trial court found that Hunt’s mental state, combined with his

advanced age, would be sufficient to support the application of this factor. We

agree.

         Lastly, the trial court found that defendant has a previous unwillingness to

comply with the conditions of release in the community. Our review of the record

reveals that defendant committed several prior offenses while he was on probation

for other offenses. Therefore, we find that the trial court properly applied Tenn.

Code Ann. § 40-35-114(8).

         The trial court properly applied three (3) enhancement factors.           The



                                           10
defendant suggests no mitigating factors which should be applicable. Furthermore,

the trial court placed great emphasis on defendant’s lengthy criminal history. We

conclude that the trial court properly imposed the maximum sentence of twelve (12)

years for aggravated robbery.

       This issue is without merit.



                                  CONCLUSION



       We find that defendant’s conviction for aggravated assault violates the

double jeopardy provisions under the United States and the Tennessee

Constitutions. Therefore, defendant’s conviction for aggravated assault is reversed

and dismissed. In all other respects, the judgment of the trial court is affirmed.




                                                 JOE G. RILEY, JUDGE




CONCUR:




DAVID G. HAYES, JUDGE




WILLIAM M. BARKER, JUDGE




                                         11
