           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                            APRIL SESSION, 1998           June 10, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TE NNE SSE E,             )    C.C.A. NO. 01C01-9708-CR-00349
                                   )
             Appellee,             )
                                   )    DAVIDSON COUNTY
V.                                 )
                                   )
                                   )    HON. J. RANDALL WYATT, JUDGE
JACK KEVIN SUTTON,                 )
                                   )
             Appe llant.           )    (AGGR AVATED BURG LARY)



FOR THE APPELLANT:                      FOR THE APPELLEE:

KARL DEAN                               JOHN KNOX WALKUP
District Public Defe nder               Attorney General & Reporter

JEFFREY A. DeVASHER                     LISA A. NAYLOR
Assistant Public Defender               Assistant Attorney General
(On A ppea l)                           2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
DAVID BAKER                             Nashville, TN 37243
Senior Assistant Public Defender
1202 Stahlman Building                  VICTO R S. JO HNS ON, III
Nashville, TN 37201                     District Attorney General
(At Tr ial)
                                        KATRIN MILLER
                                        Assistant District Attorney General
                                        Washington Square, Suite 500
                                        222 Second Avenue North
                                        Nashville, TN 37201-1649




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION
       The Defendant, Jack Kevin Sutton, appeals as of right the sentences imposed

by the Davidson County Criminal Court. Defendant pled guilty to two counts of

simp le robbery, one count of aggravated burglary, one count of assault, and one

count of theft o f prope rty.   The trial court sentenced Defendant as a Range I

Standard Offender to three consecutive five-year sentences for the robbery and

burglary convictions, and two eleven month and 29-day senten ces fo r the as sault

and theft convictions. The latter two sente nces were o rdere d to run conc urren tly to

the others. In this appeal, Defendant arg ues that the se ntences im posed we re

excessive and that consecutive sentences were not prop er. Although we disagree

with the trial court’s application of two enhancement factors, we affirm the judgment

of the trial cou rt.



          At the sentencing hearing, sixty-two-year-old Leland Stalcup testified that

on March 1, 1996, he was coming out of a tobacco shop on Gallatin Road with a

carton of ciga rettes in his ha nd, wh en De fenda nt app roach ed an d ask ed him if he

would like to purchase more cigarettes at $5.00 a carton. Mr. Stalcup agreed and

then allowed Defendant into his car. Defend ant told Stalcup to g ive him the money

for the cigarettes an d that he wou ld purchase them for Stalcu p at a grocery sto re

where his father allegedly w orked. Mr. Stalcu p gave D efenda nt $35 w ith which to

purchase the cigarettes. However Defendant began “mumbling and looking down

at the place and back up again” so Mr. Stalcup asked Defendant for his money back

and told him “we’ll just forget the whole thing here.” According to Mr. Stalcup,

Defendant then grabbed the money from him. Stalcup attempted to catch Defendant

at which point they began to scuffle. Defendant pushed Stalcup to the ground on the

                                          -2-
gravel and Mr. Stalcup skinned his knee . Defend ant pled g uilty to assa ult and the ft

pertaining to Mr. Stalc up (Co unts Fo ur and F ive).



      Mrs. Clara Sutton, of no relatio n to Defe ndant, testified that on March 1, 1996,

Defendant began hollering outside her ho use a t 1802 Merid ian Str eet, to le t him

come in. Mrs. Su tton, who is 80-yea rs-old, had just had open heart surgery two

weeks before th is incident. M rs. Sutton testified that s he reco gnized Defen dant’s

voice as being the nephew of one of her neighbors. She told Defendant tha t she

does not allow anyone into her home because she lives by herself. Defendant told

her that a man was bleeding to death in the street and he needed to use her

teleph one to call for h elp. Mr s. Sutto n told h im to go use his aunt’s telephone, but

he told her that his aunt was not at home. Sutton then told him to use another

neigh bor’s phone because she was sure that that person was at home. Defendant

told Mrs. Sutton that her neighbo rs were in fact not at ho me. Believing h er storm

door to be latched, she then went to open the glass door to talk further w ith

Defen dant. Wh en she began to open the glass door, De fendan t pushe d his way

inside. She testified that h e came in “wild as a deer.”



      At this point he told her he needed a glass of water. Sh e told h im to g et it

hims elf becau se she had just h ad surg ery and w as not ab le to freely m ove abo ut.

Mrs. Sutton testified that he then began talking about one of her daughters who had

some emotional problems. He then informed her that he needed money to which

she replied that all o f her m oney w as in th e ban k. He to ld her th at all of her

neighbors had told him that she kept money in her dresser drawers. She then

offered to write him a che ck if he would just leave her home. He refused and began

going through all her things in search of money. She then threatened to call the

                                           -3-
police to which he said, “[Y]ou’d better not call the police, I’ll stomp you.” Mrs. Sutton

then began moving toward th e front door and sta rted scre aming . At this poin t,

Defendant grabbed M rs. Sutton and threw her to the floor. She again told Defendant

to leave o r she w ould c all the p olice. D efend ant sa id “whe n you c all the p olice, I’m

going to stom p you and k ill you.”



       Defendant continued to search the house for money and he eventually found

a box that contained jewelry belonging to Mrs. Sutton’s deceased husband. He took

the box and ran out o f the hous e. A few moments later, Mrs. Sutton’s daughter and

granddaughter arrived and they notified the police. Mrs. Sutton testified that she was

still being treated by a ph ysician at the time of the sentencing hearing for a knee

injury she suffered when Defendant threw her to the floor on the day of the burglary.

Defendant pled guilty to aggravated burglary and robbery pertaining to these acts

on Mrs . Sutton (C ounts T wo and Three ).



       Chester Earl Co llins, who is 8 3-years-o ld, testified tha t on Marc h 5, 1996,

Defendant forced his way onto his prope rty by placing his foot insid e the pro perty

gate so that it cou ld not be c losed. Mr. Co llins said that D efend ant thre w him on his

back and that he landed on a lawnmower. Defendant demanded money from Collins

to which he told Defendant that he did not have any money. Defendant removed a

set of keys and a change purse which contained another key from Collins’ pants.

Defendant further sea rched th rough M r. Collins’ hip p ocket an d tore his p ants in the

process of searching for money. Defendant then left and a neighbor called the

police. Mr. Collins testified that his back continues to hurt him as a result of

Defendant pushing him down on top of the lawnmower. Defendant pled guilty to

robbery of Mr. C ollins (Count O ne).

                                             -4-
      Mary Ellen Hea, a licensed clinical social worker for the Pu blic De fende r’s

Office, was called by the defense to testify at the sentencing hearing. She said that

she had as sessed the Defe ndant a nd had conclud ed that D efenda nt was born

prem aturely and tested at the borderline intellectual functioning range. Ms. Hea

testified that D efend ant ha d bee n hos pitalized for mental illness on five prior

occasions. She also said that Defendant may suffer from visual hallucinations and

that his illness requires medication. On cross-examination she testified that she was

aware of Defendant’s daily crack cocaine addiction. Ms. Hea also said that she did

believe Defendant to be taking his medication when he committed the present

offenses.



      The 35-year-old Defendant testified that he is remorseful for his crimes and

that he was not taking his medications at the time he comm itted the crimes.

Defendant could recall his prior conviction for prostitution, but he could not

remember his prior convictions for fraud, attem pt to com mit a felon y, or forgery. He

also said that although he had been convicted of DUI, he did not commit that crime.

Defendant testified that he had been using crack cocaine for two to three years. He

denied that he com mitted the presen t crimes in an attem pt to get money for drugs.

In fact, he said th at he ask ed Ms. S utton for m oney to ride the bus and that he asked

Mr. Collins if he could work for him for money. He further said that he did not intend

to commit these crimes.



      When an accused challenges the length, range, or the manner of service of

a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with

a presumption that the determinations made by the trial court are correct. Tenn.

                                           -5-
Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative

showing in the record that the trial court considered the sentencing principles and

all relevant fac ts and circ umsta nces." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991).



         In conducting a de novo review of a sentence, this Court must consider the

evidence adduced at trial and the sentencing hearing, the presentence report, the

principles of senten cing, the a rgume nts of cou nsel relative to sente ncing

alternatives, the natur e of the offe nse, and the defendant’s potential for

rehabilitation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker, 932 S.W.2d 945, 955-

56 (Tenn . Crim App . 1996).



         If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and that

the trial court's findings of fact are adequately supported by the record, then we may

not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record,

we find that the trial court considered the proper sentencing principles and state d its

reasons and fin dings on the record . Ther efore, r eview by this c ourt is de novo with

a presumption of correctness.



                             I. LENGTH OF SENTENCES



         The Defendant argues that the trial court erred by imposing the sentences of

five (5) years on each of his two robbery convictions (Counts One and Three), and

                                           -6-
on his aggravated burglary conviction (Count Two). Defendant does not challenge

the sentences for the misd eme anor c onvictio ns for a ssau lt and theft (Counts Four

and Five). The trial court found that four (4) enhan cemen t factors were a pplica ble

to the three felony convictions:

      (A) The D efenda nt has a p revious h istory of criminal convictions or
      criminal behavior in addition to those necessary to establish the
      appropriate ran ge. Tenn . Code An n. § 40-35-11 4(1).

      (B) A victim of the offense was particularly vulnerable because of age
      or physical or m ental disability. Tenn. C ode Ann . § 40-35-114 (4).

      (C) The Defendant treated or allowed the victims to b e treated with
      exceptional crue lty. Tenn. Code Ann. § 40-3 5-114(5).

      (D) The Defendant had no hesitation about committing a crime when
      the risk to hum an life was high. T enn. Cod e Ann. § 40 -35-114(10 ).

      (E) The crimes were committed under circumstances in which the
      potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-
      35-114(16 ).


The trial court found as mitigating factors the Defendant’s history of mental

problems, and the fact that Defendant was raised in a dysfunctional family. Tenn.

Code Ann. §§ 40-35-1 13(8) an d (13).



      First, the trial court conclude d that Defend ant had a prior c riminal history.

Tenn. Code Ann. § 40-35-114(1). Defendant does not contest the ap plicatio n of this

factor, but we will nevertheless review its significance. Although Defendant was

unab le to recall several of his convictions, the presentence report indicates that

Defendant had s ix prior misdemeanor convictions, including solicitation of an

undercover officer for pro stitution, fraud , DUI, attem pt to commit the felony of

larceny, attempt to comm it the felony o f forgery, an d mak ing false re ports. In

addition, Defenda nt admitted us ing crack coc aine for the past two to three years.




                                         -7-
Based on the se fac ts, the a pplica tion of th is enh ance men t factor is justified in

enhancing all three felony convictions (Counts O ne, Two a nd Three ).



       Defendant does challe nge th e trial co urt’s finding that one of the victims, Mr.

Chester Collins, was particularly vulnerable because of his age and physical

limitations. Tenn. Code Ann. § 40-35 -114( 4). De fenda nt only challenges this factor

as applied to Cheste r Collins (C ount O ne). Upo n care ful review of the record, we

find that this e nhanc emen t factor doe s not app ly as to Mr. C ollins.



       Our supreme court recently addressed the applicability of this factor in State

v. Poo le, 945 S.W.2d 93, 96-98 (Tenn. 1997). In Poole , the supreme court stated

that the trial c ourt m ust co nside r all of the facts a nd circ ums tance s of the offens e in

determining whether this factor is appropriate for the offe nse. T he ap plicatio n of this

factor is a factua l issue res olved on a case-b y-case b asis.           Id. at 96 (citation

omitted). The S tate bears the burden of proving the victim’s limitations which made

the victim partic ularly vulner able. Id. In determ ining whe ther the S tate has m et its

burden, the trial c ourt sh ould c onsid er whe ther ev idenc e perta ining to the victim ’s

age or physical a nd me ntal attribute s dem onstrate d an inab ility to resist the crime,

summon help, or tes tify at a later date. Id. The re mu st be e videnc e in the record in

addition to the victim ’s age. Id. at 97. T he co urt mu st also determ ine if the factor is

approp riate for the offense by considering the nature of the offense and the manner

in which it w as com mitted. Id.



       There is no qu estion that an 80-ye ar-old man migh t be pa rticularly vulner able

to the type of offense committed by Defendant. However, “[a] person’s age alone

may have little or no bearing on size, strength or vitality.” Id. at 98. Since the State

                                              -8-
produced no evidence of physical or mental limitations at the time of the offe nse, it

cannot be presumed that the victim w as pa rticularly vulner able b ased solely o n his

age. Therefore, there is not su fficient e videnc e to su pport th e app lication of this

factor to Def enda nt’s conviction for robbe ry of Mr. Collins (Count One). This factor

does how ever, apply to the two convictions pertaining to Mrs. Sutton (Counts Two

and Thre e), since her delicate physical condition made her particularly vulnerable.



      The trial court also found that Defendant treated or allowed the victims to be

treated with exceptional cruelty.     Tenn . Code Ann. § 4 0-35-11 4(5). Th e State

correc tly agrees with Defendant that the circumstances in this case do not supp ort

the finding of this enhancement factor as to any of the felony convictions.



      Defendant next contends that the trial court erred in finding that he had no

hesitation about committing a crime when the risk to hum an life w as hig h in regards

to his convictions for robbery of Mr. Collins and Mrs. Sutton (Counts One and

Three).   See Tenn . Cod e Ann . § 40-3 5-114 (10).      O ur sup reme court re cently

addressed this enhancement factor, as applied to the crime of robbery, in State v.

Mario A. Lavender and Eric L. Hobbs, No. 01-S01-9704-CR-00088, Davidson

Coun ty (Tenn., Nashville, Apr. 27, 1998) (for publication). In that opinion, the

supreme court stated that enhancement factor (10) is not an essential element of the

offense of robbery, and that it may be used “when imposing a sentence for ro bbery

so long as the facts which establish the elements of the offense are not also relied

upon to establish the enhancement factors. This determination is dependent upon

the particular facts of each case.” Id. at 14. Th e court a lso pointe d out that “[i]n

determining whether a particular enhancement factor may be applied in a specific




                                           -9-
case, the trial court must consider the elemen ts of the offense and the evidence

adduced at the trial and senten cing hearing.” Id. at 9.


      Robbe ry is defined 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). A person c omm its “theft of property” if, “with intent to deprive the owner

of property, the perso n knowingly ob tains or exercises con trol over the property

without the owner’s effective co nsent.” T enn. C ode An n. § 39-1 4-103 .

In this case, the proof shows that Defend ant forced his way onto Mr. Collins

property, pushed Mr. Collins to the groun d, and having placed the victim in fea r,

Defendant then sea rched th rough h is pocke ts for mo ney. Defendant took control of

the victim’s property and left the premises with it, without Mr. Collins effec tive

conse nt. Thes e facts su pport the eleme nts of the o ffense of ro bbery.



      However, in this particu lar case, th e State o ffered no additiona l proof as to

how the risk to Mr. Collins life was particularly high, other than his age. While we

find this crime to be utterly despicable, we cannot say that the evidence shows that

the risk to M r. Collin s’ life wa s high .   The tr ial court erred in app lying this

enhance ment factor a s to Mr. Collins (Co unt One).



      The Defendant fo rced his way into Mrs. Sutton’s home, pushed her to the

ground, and while she was placed in fear, Defendant searched her house for

anything that might be of value. Defendant then took control of the property (her

deceased husband’s belongings) and left the premises with them, without Mrs.

Sutto n’s effective con sent. A gain, th e elem ents o f robbe ry are m et. Ho weve r, in

regards to Mrs. Sutton, we find that the evidenc e supp orts the trial court’s application



                                           -10-
of enhancement factor (10), “[t]he defendant had no hesitation about committing a

crime when the risk to hum an life was high.” Tenn . Code An n. § 40-35-11 4(10).

Mrs. Sutton was recovering from open hea rt surgery and the chance that sh e cou ld

have died from Defendant’s actions wa s certa inly high . The tr ial cou rt corre ctly

applied this factor as to Mrs. Sutton (Count Three). Defendant does not contest the

application of enhancement factor (10) to the aggravated burglary conviction (Count

Two), but we note for the record that we agree with the trial court’s application of that

factor to the aggravated burglary conviction.



       Next, the trial court applied enhancement factor (16),             “[t]he crime was

committed under circumstances under which the po tential fo r bodily in jury to a v ictim

was great” to a ll three felony conviction s.        See § 40-35-11 4(16).       Defendant

contends that this enhancement factor was improperly applied to his three felony

convictions becau se it is an essen tial element of the offen ses. As to the rob bery

convictions, (Coun ts One and T hree) , the su prem e cou rt held in State v. Lavender

and Hobbs that enhancement factor (16) is also not an essential element of the

offense of robbery. No. 01-S01-9704-CR-00088, slip op. at 9. Again, we must

determine its applicab ility on a case -by-case basis. Id. In rega rds to th is facto r, this

Court finds th at the tria l court properly ap plied this factor as to the two robbery

convictions. As discussed above , all of the elem ents of rob bery we re clearly m et.

Furthermore, the proof at the sentencing hearing revealed that Mr. C ollins was eighty

years old and Mrs. S utton was eigh ty-three years old . Defend ant pus hed bo th

victims to the g round in an attem pt to rob them, so certainly it can be said that the

risk of bod ily injury to both o f these eld erly victims w as grea t.




                                             -11-
      As to the aggravated burglary conviction, this Court has held that

enhancement factor (16) should not be applied to an aggravated burglary conviction

absent extraordin ary circum stance s. State v. S mith, 891 S.W.2d 922, 930 (Tenn.

Crim. App., N ashville, July 21, 199 4), perm. to appeal denied (Tenn. 199 4).

However, the circumstances surrounding the aggravated burglary of Mrs. Sutton ’s

home does sup port the application o f this enhance ment factor. Mrs. Sutton was an

eighty-three year old w oman recupe rating in he r home from op en hea rt surgery.

Defendant forced his way into her home, threw Mrs. Sutton to the ground, ransacked

her home in search of money or anything else of value, a nd thre atene d to kill he r if

she tried to call for help.   The circumstances surrounding this horrifying event

certainly support the application of this enhancement factor to the aggravated

burglary conviction.      This Court finds that the trial court properly applied

enhancement factor (16) to all three felony convictions (Counts One, Two and

Three ).



      In summary, the trial court properly applied enhancement factor (1) and (16)

to all three felony convictions (Counts One, Two and Three).             We find that

enhancement factor (4) and (10) should only be applied to the two offenses against

Mrs. Sutton (Cou nts Two a nd Three ). We further find that enhancement factor (5)

does not apply to any of the felony c onvictio ns. W e agre e with th e trial co urt’s

application of the mitigating factors that D efendant ha s a history of mental problems

and that Defe ndant c omes from a d ysfunctional background to all three felony

conviction s. See Tenn. C ode Ann . § 40-35-113 (8) and (13).



      The trial court sentenced Defendant as a Range I Standard Offender for the

three Class C felonies. T enn. C ode An n. §§ 39-13-401(b); 39-14-403(b). The

                                          -12-
sentencing range for a R ange I Stand ard O ffende r convic ted of a Class C felon y is

not less than three years no r more than six years. Tenn. Code Ann. § 40-35-

112(a)(3). The presumptive sentence for a Class C fe lony shall be the minimum

sentence in the range if there are no enhancement or mitigating factors. Tenn. Code

Ann. § 40-35-21 0(c). Should the re be enha nceme nt and mitigating fa ctors, the court

must start at the minimum sentence in the range, enhance the sentence within the

range as app ropriate fo r the enhancement factors, and then reduce the sentence

within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-

210(e). The trial court in the case sub judice, imposed three five-year sentences for

the Class C felony con victions. As to Coun t One, w e find that tw o enhancement

factors and two mitigating factors ap ply.       As to C ount T wo, we find that f our

enhancement factors and two mitigating factors apply. As to Count Three, we find

that four enh ancem ent factors and two mitigating factors apply. The mitigating

factors in this cas e do n ot weig h hea vily against the enhancement factors. The great

weight attributable to the applicable enhancement factors more than justifies the five-

year sentences imposed as to all three felony convictions.




                             II. Consecutive Sentences


      The trial court ordered consecutive sentencing after making a finding that

Defe ndan t is a dangerous offender whose behavior indicated little or no regard for

human life, and no hesitation about committing a crime in which the risk to human

life is high. Tenn. Code Ann. § 40-35-115(b)(4). We agree. The Defendant, without

provocation, pushed two elderly people to the ground in an attempt to rob them.

Certa inly it can be said that Defendant’s behavior demonstrated a contemptible lack



                                          -13-
of conce rn for hum an life and an abs ence o f basic human decen cy. Our de novo

review further indicates that consecutive sentencing is necessary to protect the

public from further criminal conduct by Defendant and that the terms im posed are

reaso nably related to the severity of the offenses. State v. Wilkerson, 905 S.W.2d

933, 938-39 (Tenn. 1995). Although the trial court did not specifically make the

additional findings required b y Wilkerson, we find that these factors are pre sent in

our de novo review. See State v. Adams, 859 S.W.2d 359, 363 (Tenn. Crim. App.

1993), perm. to appeal denied (Tenn. 199 3) . Conse cutive sen tencing is approp riate

in this case .


       Based on all the foregoing, the judgment of the trial c ourt is a ccord ingly

affirmed.

                                 ____________________________________
                                 THOMAS T. W OODALL, Judge

CONCUR:


___________________________________
GARY R. WA DE, Presiding Judge

___________________________________
L. T. LAFFERTY, Special Judge




                                         -14-
