           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                         SEPTEMBER SESSION, 1996


STATE OF TENNESSEE,           )      C.C.A. NO. 02C01-9602-CC-00053
                                                                   FILED
                              )                                     August 22, 1997
      Appellee,               )
                              )                                  Cecil Crowson, Jr.
                              )      MADISON COUNTY                Appellate C ourt Clerk
VS.                           )
                              )      HON. JOHN FRANKLIN MURCHISON
WILLIAM HERBERT STITTS,       )      JUDGE
                              )
      Appellant.              )      (Direct Appeal)




FOR THE APPELLANT:                   FOR THE APPELLEE:

THOMAS T. WOODALL                    JOHN KNOX WALKUP
203 Murrell Street                   Attorney General and Reporter
Dickson, TN 37056-1075
                                     ELLEN H. POLLACK
GEORGE MORTON GOOGE                  Assistant Attorney General
District Public Defender             450 James Robertson Parkway
227 West Baltimore Street            Nashville, TN 37243
Jackson, TN 38301
                                     JERRY WOODALL
                                     District Attorney General

                                     DON ALLEN
                                     Assistant District Attorney
                                     P. O. Box 2825
                                     Jackson, TN 38301


OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION

       A Madison County Circuit Court jury found Appellant William Herbert Stitts guilty

of aggravated robbery. As a Range I standard offender, he received a sentence of

twelve years in the Tennessee Department of Correction. The trial court ordered the

sentence served concurrent with another Madison County sentence for aggravated

robbery but consecutive to a Georgia sentence for theft by deception and false report

of a crime. Both Appellant and the State have appealed as of right. Appellant presents

the following issues: (1) whether the evidence presented at trial is sufficient as a matter

of law to sustain a conviction for aggravated robbery; and (2) whether the length of the

sentence is excessive. Additionally, the State presents the following issue: whether the

trial court erred in failing to order the sentence served consecutive to the other Madison

County aggravated robbery sentence.



       After a review of the record, we affirm judgment of the trial court.



                             I. FACTUAL BACKGROUND

       As accredited by the jury’s verdict, the proof shows that, at approximately 6:30

a.m. on December 24, 1992, roughly five hours after committing another aggravated

robbery, Appellant entered Ideal Cleaners in Jackson, approached the sole employee

Diane Carter, and mumbled “give me the money.”           When Ms. Carter attempted to

clarify what was said, Appellant struck her on the head with a hard object wrapped in

a cloth. Appellant then pulled Ms. Carter out of her chair by her hair, struck her on the

head again, and forced her to open the cash register. Once he had taken the cash

from the register and the bank deposit bag, totaling approximately $600.00, Appellant

struck Ms. Carter on the head one final time and left.




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       On March 1, 1993, the Madison County Grand Jury indicted Appellant for

aggravated robbery in violation of Tennessee Code Annotated Section 39-13-402. On

October 3, 1994, Appellant was tried before a jury in the Madison County Circuit Court.

At the conclusion of the trial, the jury found him guilty of the offense as charged in the

indictment.



       At the original sentencing hearing on November 15, 1994, the trial court found

Appellant to be a Range II multiple offender and imposed a sentence of twenty years.

However, on September 22, 1995, the trial court resentenced Appellant as a Range I

standard offender to twelve years.       The trial court ordered the sentence served

concurrent with another Madison County sentence for aggravated robbery but

consecutive to a Georgia sentence for theft by deception and false report of a crime.




                        II. SUFFICIENCY OF THE EVIDENCE

       Appellant alleges that the evidence presented at trial is insufficient as a matter

of law to sustain a conviction for aggravated robbery. Specifically, he argues that the

State failed to establish that the weapon used during the robbery was a rock, as set out

in the indictment.



       When an appeal challenges the sufficiency of the evidence, the standard of

review is whether, after viewing the evidence in the light most favorable to the State,

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, 318 (1979); State v. Evans, 838

S.W.2d 185, 190-91 (Tenn. 1992); Tenn. R. App. P. 13(e). On appeal, the State is

entitled to the strongest legitimate view of the evidence and all reasonable or legitimate

inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). This Court will not reweigh the evidence, re-evaluate the evidence, or

                                           -3-
substitute its evidentiary inferences for those reached by the jury. State v. Carey, 914

S.W.2d 93, 95 (Tenn. Crim. App. 1995). Furthermore, in a criminal trial, great weight

is given to the result reached by the jury. State v. Johnson, 910 S.W.2d 897, 899

(Tenn. Crim. App. 1995).



       Once approved by the trial court, a jury verdict accredits the witnesses presented

by the State and resolves all conflicts in favor of the State. State v. Williams, 657

S.W.2d 405, 410 (Tenn. 1983). The credibility of witnesses, the weight to be given their

testimony, and the reconciliation of conflicts in the proof are matters entrusted

exclusively to the jury as trier of fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.

1984). A jury’s guilty verdict removes the presumption of innocence enjoyed by the

defendant at trial and raises a presumption of guilt. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982).      The defendant then bears the burden of overcoming this

presumption of guilt on appeal. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991).



       In order to sustain a conviction for aggravated robbery in this case, the evidence

must show that Appellant intentionally or knowingly took property from Ms. Carter by

violence and that this taking was accomplished with a deadly weapon. See Tenn. Code

Ann. §§ 40-13-401(a), 40-13-402(a)(1). The indictment alleges that the robbery was

“accomplished with a deadly weapon, to-wit: a rock, a more particular description to the

Grand Jurors aforesaid is unknown.” Appellant neither contests that property was

taken by violence nor that the object used to bludgeon Ms. Carter constitutes a deadly

weapon but instead contends only that the State failed to establish the exact nature of

the object -- that it was in fact a rock. At trial, Ms. Carter testified that, during the

robbery, Appellant struck her on the head a total of three times with what in her

estimation was a rock. She suffered a concussion as a result of the attack. During

cross-examination, Ms. Carter conceded that the object was wrapped in a cloth

throughout the robbery but opined that it was a rock of some kind based upon the

                                           -4-
impact of the blows and the fact that a rock matching the approximate size and shape

of the object was found outside the cleaners following the robbery. Even assuming

that the exact nature of the object is material, we believe that Ms. Carter’s testimony

constitutes sufficient circumstantial evidence to support the jury’s conclusion that

Appellant attacked her with a rock of some kind. Thus, we find that, when viewed in a

light most favorable to the State, the foregoing evidence is legally sufficient to sustain

Appellant’s conviction for aggravated robbery.



                                   III. SENTENCING

       Both parties allege that the sentence is erroneous. Specifically, Appellant

argues that the length of the sentence is excessive, while the State argues that the trial

court erred in failing to order the sentence served consecutive to the other Madison

County sentence.



       When an appeal 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 the

event that the record fails to demonstrate such consideration, review of the sentence

is purely de novo. Id. If appellate review reflects that the trial court properly considered

all relevant factors and its findings of fact are adequately supported by the record, this

Court must affirm the sentence. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 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

                                            -5-
S.W.2d 53, 60 (Tenn. Crim. App. 1993). The appealing party bears the burden of

showing the impropriety of the sentence imposed. State v. Gregory, 862 S.W.2d 574,

578 (Tenn. Crim. App. 1993).



       We note initially that, because the record demonstrates that the trial court

adequately considered the sentencing principles and all relevant facts and

circumstances, our review of Appellant’s sentence will be de novo with a presumption

of correctness.



       Appellant was convicted of aggravated robbery, a Class B felony. See Tenn.

Code Ann. § 39-13-402(b). As a Range I standard offender convicted of a Class B

felony, Appellant’s statutory sentencing range was eight to twelve years. See id. § 40-

35-112(a)(2). The trial court found the following applicable enhancement factors:

       (1) the defendant has a previous history of criminal convictions
       or criminal behavior in addition to those necessary to establish
       the appropriate range;

       (2) the felony resulted in death or bodily injury; and

       (3) the felony was committed while Appellant was on probation.

Id. § 40-35-114(1), (11), (13)(C). The trial court found no applicable mitigating factors.

Based on the foregoing, the trial court imposed a maximum sentence of twelve years,

ordering the sentence served concurrent with another Madison County sentence but

consecutive to a Georgia sentence. We will address the sentencing arguments of both

parties in turn.




                             A. LENGTH OF SENTENCE

       First, Appellant argues that the length of his sentence is excessive. To support

this argument, Appellant relies exclusively on the following sentencing considerations:

“[t]he sentence imposed should be no greater than that deserved for the offense

                                           -6-
committed” and “[t]he sentence imposed should be the least severe measure

necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code

Ann. § 40-35-103(2), (4).



       In the absence of enhancement and mitigating factors, the presumptive length

of sentence for a Class B, C, D, and E felony is the minimum sentence in the statutory

range while the presumptive length of sentence for a Class A felony is the midpoint in

the statutory range.     Tenn. Code Ann. § 40-35-210(c).          Where one or more

enhancement factors apply but no mitigating factors exist, the trial court may sentence

above the presumptive sentence but still within the range. Id. § 40-35-210(d). Where

both enhancement and mitigating factors apply, the trial court must start at the

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

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

to the mitigating factors. Id. § 40-35-210(e). The weight afforded an enhancement or

mitigating factor is left to the discretion of the trial court so long as the trial court

complies with the purposes and principles of the Tennessee Criminal Sentencing

Reform Act of 1989 and its findings are supported by the record. State v. Hayes, 899

S.W.2d 175, 185 (Tenn. Crim. App. 1995).



       In light of three applicable and uncontested enhancement factors coupled with

the lack of any applicable mitigating factors, we find that the trial court was within its

discretion in imposing a maximum sentence of twelve years and that such a sentence

complies with the sentencing considerations set out in Section 40-35-103.



                          B. CONSECUTIVE SENTENCING

       The State argues that the trial court erred in failing to order the sentence served

consecutive to the other Madison County aggravated robbery sentence. The State

maintains that consecutive sentencing is appropriate both because Appellant is a

                                           -7-
dangerous offender as anticipated by Tennessee Code Annotated Section 40-35-

115(4) and because Appellant was on probation at the time of the robbery as provided

for by Tennessee Code Annotated Section 40-35-115(6).



       When imposing sentences for multiple offenses, the trial court has the discretion

to order the sentences served concurrently or consecutively. Tenn. Code Ann. § 40-20-

111(a). The imposition of consecutive sentences is appropriate if the defendant has

been convicted of more than one offense and the trial court finds, by a preponderance

of the evidence, one or more of the following criteria:

                (1) The defendant is a professional criminal who has
       knowingly devoted himself to criminal acts as a major source
       of livelihood;
                (2) The defendant is an offender whose record of
       criminal activity is extensive;
                (3) The defendant 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 defendant 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 defendant is convicted of two (2) or more
       statutory offenses involving sexual abuse of a minor with
       consideration of the aggravating circumstances arising from
       the relationship between the defendant and victim or victims,
       the time span of defendant’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 defendant is sentenced for an offense
       committed while on probation; or
            (7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).




                                          -8-
       At the original sentencing hearing, the trial court determined that Appellant’s

sentence should run concurrent with his other aggravated robbery sentence, stating as

follows:

       Under the circumstances of the case, I don’t think that
       consecutive sentences on these two robberies are appropriate.
       I am not going to impose consecutive sentences. I don’t think
       that would be appropriate, and I won’t go into all the details
       about that, but the different crimes were not separated by any
       apprehension of the defendant or anything like that.

At resentencing, the trial court emphasized that it was not imposing consecutive

sentences primarily because the two offenses occurred so close together in time. Even

though it is undisputed that the trial court could have imposed consecutive sentences

pursuant to subsection (4) or subsection (6) of Section 40-35-115, there is no

requirement that it do so; the Tennessee General Assembly has determined that such

a decision rests within the sound discretion of the trial court. See Tenn. Code Ann. §§

40-20-111(a), 40-35-115 sentencing commission comments. Given that we must

presume the sentencing determination of the trial court is correct, we find no abuse of

that discretion even though we might have preferred a different result. See Fletcher,

805 S.W.2d at 789.



       Accordingly, the judgment of the trial court is affirmed.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
DAVID H. WELLES, JUDGE

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