            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE               FILED
                           APRIL 1998 SESSION
                                                            June 1, 1998

                                                      Cecil W. Crowson
STATE OF TENNESSEE,                 *                Appellate Court Clerk
                                          C.C.A. # 01C01-9704-CR-00162

             Appellee,              *     DAVIDSON COUNTY

VS.                                 *     Hon. J. Randall W yatt, Jr., Judge

JOHN CHRISTOPHER JACKSON,           *     (Sentencing)

             Appellant.             *




For Appellant:                      For Appellee:

Lionel R. Barrett, Jr.              John Knox Walkup
Attorney                            Attorney General and Reporter
Washington Square Two - Suite 417
222 Second Avenue North             Lisa A. Naylor
Nashville, TN 37201                 Assistant Attorney General
                                    Cordell Hull Building, Second Floor
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    Katrin Miller
                                    Assistant District Attorney General
                                    Washington Square, Suite 500
                                    222 Second Avenue North
                                    Nashville, TN 37201



OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                      OPINION

             The defendant, John Christopher Jackson, entered guilty pleas to six

counts of aggravated robbery accomplished with a deadly weapon and one count of

robbery. Tenn. Code Ann. §§ 39-13-401, -402. A forgery count was dismissed.

The trial court imposed a Range I sentence of nine years for three of the aggravated

robberies; these sentences were ordered to be served consecutively. Range I,

eight-year sentences were imposed on each of the remaining aggravated robberies

and a three-year sentence was imposed for the simple robbery; all of these

sentences were ordered to be served concurrently. The effective sentence is

twenty-seven years.



             In this appeal of right, the single issue presented for our review is

whether the trial court erred by ordering all three sentences to be served

consecutively. We affirm the judgment of the trial court.



             In early November of 1995, the defendant was involved in a series of

armed robberies. Mary Sneed, a seventy-year-old victim, was robbed of her purse

at gunpoint near Steven's Market on Franklin Road. Several checks, credit cards,

and the victim's driver's license were among the things taken. The defendant also

used a weapon to rob Mary Branum, age eighty-nine, and Dorothy Roberts, who

was eighty-two years of age, of their purses. The Branum robbery was at the One

Hundred Oaks Shopping Center and the Roberts robbery was on Donelson Pike.



             The defendant also robbed several other females of their purses:

Deborah Ray, Rickie Cedzek, Barsha Nichols, and Rose Marie Shuler. The

defendant was armed on each occasion and knocked Ms. Shuler to the ground.

Each of these robberies also occurred in the Nashville area.


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             Ms. Sneed and Ms. Roberts testified at the sentencing hearing. Ms.

Roberts stated that she never recovered the contents of her purse which included

her driver's license, Medicare card, and Social Security card. She claimed to be in

constant fear for several weeks after the robbery. Ms. Sneed testified that the

defendant had passed one of her checks shortly after the robbery. She was also

unable to recover any of the contents of her purse.



             The defendant, twenty-four years of age at the time the sentence was

imposed, had a tenth grade education. W hile he had no prior criminal convictions,

he acknowledged that he was using alcohol and marijuana at the time he quit high

school and had later committed these robberies in order to acquire crack cocaine.

He contended that he did not have a weapon at the time of the robberies but had

merely pretended that he was armed. While the defendant admitted that he

threatened to kill some of the victims, he denied pointing a gun at Ms. Roberts and

claimed that she had been untruthful about using a walking cane on the date of that

offense. The defendant claimed his co-defendant, Joe Covington, showed him how

to commit the robberies. He said that Covington was the driver of the getaway

vehicle and was entitled to a even division of the $390.00 stolen in the robberies.



             The defendant, married and with a four-year-old son, testified that he

had been addicted to cocaine since the birth of his son. He claimed that he smoked

about nine grams per day, an amount he originally testified had a street value of

$200.00 and then conceded was actually between $800.00 and $900.00 per day.

While incarcerated prior to trial, the defendant completed a five-step drug treatment

program and had regularly attended meetings of both Alcoholics Anonymous and

Narcotics Anonymous. He also received his Graduate Equivalent Diploma during

this period of time. He stated a desire to attend Nashville Tech and study to


                                          3
become an auto mechanic.



              The defendant's mother, Patricia Jackson, a sales executive at the

Nashville Tennessean, testified that the defendant had been born prematurely,

weighing only a pound at the time, and had a variety of physical disabilities during

the first few months of his life. She explained that she had turned her son in to

police for these crimes after finding two purses in his car. Ms. Jackson testified that

the defendant had matured and become more responsible as a result of his pretrial

incarceration. She said that her son had considered suicide before his

incarceration. She was not aware of his cocaine problem until after his arrest.



              Wanda Jackson, the defendant's wife, testified that she had perceived

a drastic change for the better in the defendant since his period of confinement.

She did, however, acknowledge having recommended drug treatment to the

defendant on an earlier occasion, which he refused.



              The trial court was particularly concerned that each of the victims was

a woman. Ms. Branum was eighty-nine years old. The victims, Roberts and Sneed,

were also elderly. The trial court imposed consecutive sentences on the basis that

the defendant qualified as a dangerous offender. See Tenn. Code Ann. § 40-35-

115(b)(4). The trial court found these three victims particularly vulnerable because

of their age or physical disability. Tenn. Code Ann. § 40-35-114(4). That the

defendant had no hesitation about committing a crime when the risk to human life

was high was a second enhancement factor. Tenn. Code Ann. § 40-35-114(10). A

mitigating factor was that the defendant lacked substantial judgment in committing

the offenses. Tenn. Code Ann. § 40-35-113(6).




                                           4
              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

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

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see

State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of

the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              In calculating the sentence for Class B, C, D, or E felony convictions at

the time of these offenses, the presumptive sentence is the minimum within the

range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-

210(c). If there are enhancement factors but no mitigating factors, the trial court

may set the sentence above the minimum. Tenn. Code Ann. § 40-35-210(d). A

sentence involving both enhancement and mitigating factors requires an assignment

of relative weight for the enhancement factors as a means of increasing the

sentence. Tenn. Code Ann. § 40-35-210. The sentence may then be reduced

within the range by any weight assigned to the mitigating factors present. Id.


                                           5
                  Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution:

                  [C]onsecutive sentences should not be routinely imposed
                  ... and ... the aggregate maximum of consecutive terms
                  must be reasonably related to the severity of the
                  offenses involved.

Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments adopted the

cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 Act is, in essence,

the codification of the holdings in Gray and Taylor; consecutive sentences may be

imposed in the discretion of the trial court only upon a determination that one or

more of the following criteria1 exist:

                  (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


   1
    The first four criteria are found in Gray. A fifth category in Gray, based on a specific number of prior felony
conviction s, may enhanc e the sentence range but is no longer a listed c riterion. See Tenn. Code Ann. § 40-35-
115, Se ntencing Co mmission C ommen ts.

                                                        6
             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).



             In Gray, our supreme court had ruled that before consecutive

sentencing could be imposed upon the dangerous offender, as now defined by

subsection (b)(4) in the statute, other conditions must be present: (a) that the

crimes involved aggravating circumstances; (b) that consecutive sentences are a

necessary means to protect the public from the defendant; and (c) that the term

reasonably relates to the severity of the offenses.



             More recently, in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995),

our high court reaffirmed those principles and ruled that consecutive sentences

cannot be required for any of the classifications "unless the terms reasonably relate

to the severity of the offenses committed and are necessary in order to protect the

public from further serious criminal conduct by the defendant." Id. at 938. The

Wilkerson decision, which modified guidelines adopted in State v. Woods, 814

S.W.2d 378, 380 (Tenn. Crim. App. 1991), governing the sentencing of dangerous

offenders, described sentencing as "a human process that neither can nor should

be reduced to a set of fixed and mechanical rules." Wilkerson, 905 S.W.2d at 938

(footnote omitted).


                                          7
              The defendant argues that the aggregate sentence for these seven

crimes is more than necessary to achieve the goals of the 1989 Act. While the

defendant has not challenged the application of the enhancement factors which had

the effect of increasing each of the sentences for the three armed robberies against

the elderly victims from eight to nine years, he does argue that three consecutive

nine-year sentences are excessive. Obviously, the defendant has made progress

during his incarceration. Acknowledging his drug addiction, undertaking a treatment

program, and acquiring a graduate equivalency diploma are all positive factors

indicating an amenability to rehabilitation. On the negative side, the defendant

abused alcohol and illegal drugs for eight or nine years prior to his arrest. While not

actually convicted of prior offenses, he nonetheless was guilty of criminal conduct

for a fairly significant period of time. A sporadic work record raises questions about

how the defendant acquired the means to support a cocaine addiction costing

hundreds of dollars per day. All of the victims were women. Three were elderly. At

least one was physically infirm.



              In close questions on sentencing issues, the judgment of the trial

judge, who saw and heard the defendant firsthand and properly considered the

statutory sentencing principles, is entitled to the presumption of correctness. See

Ashby, 823 S.W.2d at 169. Despite his claims of remorse, the defendant accused

one of the victims of lying about her use of a cane during one robbery. The

defendant contended that the victim was untruthful when she stated that she saw

the defendant in the possession of a gun. There was basis in fact for the trial court's

adjudication that the defendant qualified as a dangerous offender. The

circumstances of the crimes against the elderly victims created a risk to life and

indicated a disregard for the safety of the victims. Because the trial judge

considered the appropriate factors, which are adequately supported by the record,


                                           8
"we may not disturb the sentence even if we would have preferred a different result."

State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



             Accordingly, the judgment is affirmed.



                                        ________________________________
                                        Gary R. Wade, Judge

CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
L.T. Lafferty, Special Judge




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