         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs May 18, 2005

                  STATE OF TENNESSEE v. RODNEY BUFORD

                    Appeal from the Criminal Court for Davidson County
                       No. 2003-C-2109    Mark J. Fishburn, Judge



                  No. M2004-01568-CCA-R3-CD - Filed September 22, 2005


The Appellant, Rodney Buford, was convicted by a Davidson County jury of especially aggravated
robbery and aggravated burglary. He was sentenced to consecutive sentences of twenty-five years
for especially aggravated burglary and six years for aggravated burglary for an effective thirty-one
year sentence. On appeal, Buford argues: (1) that the trial court erred in denying his motion for a
bill of particulars; and (2) that his sentences are excessive, and the trial court erred in imposing
consecutive sentences. After review of the record, we affirm the judgments of conviction and
resulting sentences.

               Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Emma Rae Tennet (on appeal), Assistant Public Defender; and Allegra Montgomery (at trial),
Assistant Public Defender, Nashville, Tennessee, for the Appellant, Rodney Buford.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Victor S. Johnson III, District Attorney General; and James Todd, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                                      Factual Background

        At approximately 1:30 a.m. on May 25, 2003, the victim, seventy-seven year old Mildred
Holmes, awoke and realized that she had forgotten to take her medicine. After taking her medicine,
the victim turned off the lights and was returning to bed when her doorbell rang. Ms. Holmes looked
through the peephole and recognized the Appellant, whom she had known for several years through
her close friendship with the Appellant’s grandmother. Ms. Holmes agreed to let the Appellant
inside to use the telephone to call his grandmother who he claimed had accidentally locked him out
of the house. Upon entering, the Appellant went to the kitchen, under the pretense of making a
phone call, while the victim waited in the dining room. Afterwards, Ms. Holmes followed the
Appellant to the front door, intending to lock the door behind him. When the Appellant was almost
to the front door, he turned to the victim and put her in a “bear-hug,” telling her that he wanted her
money and car keys. When the victim began to struggle, the Appellant told her “don’t make me kill
you.” The victim testified that at one point the Appellant reached underneath her nightgown and
began to remove her underwear but stopped after she told him she had recently undergone surgery.

        The two returned to the dining room area, and the victim gave the Appellant approximately
$50 in cash and her car keys. The Appellant then picked up a glass ornament in the shape of an
apple and began hitting the victim in the head. The victim lost consciousness a couple of times
during the assault. At one point, the victim regained consciousness and saw the Appellant washing
his hands. When he realized that she was conscious, he returned to her, picked up the glass apple,
and resumed hitting her in the head. At some point during the attack, the Appellant tied the victim
up with ribbon and a calculator cord. The Appellant eventually left the residence, taking the victim’s
1994 Honda.

        When the victim discovered that the Appellant was gone, she freed herself from the bindings
and called 911. She was conscious and alert when the officer arrived and was able to give the
Appellant’s name and relate the events. Emergency personnel arrived and began treatment of the
victim’s gushing head wound. She was transported to the hospital by ambulance where it was
discovered that, in addition to multiple contusions and lacerations, she had sustained a torn artery
in her head, which required immediate suturing in order to stop the bleeding. Had the bleeding not
been stopped immediately, the victim’s life would have been in danger. The victim also received
additional stitches, sutures, and staples to her other various injuries. Two days later, she returned
to the emergency room, complaining of severe pain in her wrist and hand. A medical examination
revealed that she had cellutitis, an infection of the skin, which developed from the assault.

         The Appellant was later arrested in a motel after pawning the victim’s car for crack cocaine.
Following his arrest, the Appellant gave a statement to the police confessing his involvement in the
crimes. The Appellant explained that, at the time of the crimes, he had been smoking crack cocaine.
On September 5, 2003, a Davidson County grand jury returned a three-count indictment against the
Appellant charging him with especially aggravated burglary, especially aggravated robbery, and
attempted aggravated rape. Following a jury trial, the Appellant was convicted of the burglary and
robbery charges but acquitted of the attempted rape. At the March 26, 2004 sentencing hearing, the
trial court reduced the Appellant’s conviction for especially aggravated burglary to that of aggravated
burglary and entered judgment accordingly.1 Applying several enhancement but no mitigating
factors, the trial court sentenced the Appellant to twenty-five years for especially aggravated robbery

         1
          At the close of the State’s proof, the Appellant moved for judgment of acquittal with regard to the charge of
especially aggravated burglary. The trial court properly noted that under the provision of Tennessee Code Annotated
section 39-14-404(b) (2003), a defendant may not be prosecuted for especially aggravated burglary, resulting in serious
bodily injury, and especially aggravated robbery, also resulting in serious bodily injury, when the infliction of serious
bodily injury results from a single act. See State v. Oller, 851 S.W .2d 841, 843 (Tenn. Crim. App. 1992).

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and to six years for aggravated burglary. The court ordered that the sentences be served
consecutively to one another as well as consecutively to an unserved four-year sentence for theft.2
Following the denial of the his motion for new trial, the Appellant filed the instant timely appeal.

                                                      Analysis

        On appeal, the Appellant raises two issues for our review. First, he asserts that the trial court
erred in denying his motion for a bill of particulars regarding the element of serious bodily injury,
as alleged in both charged crimes. Second, he asserts that the trial court erred in imposing excessive
sentences and in ordering that the sentences be served consecutively.

I. Bill of Particulars

        On the morning of trial, the Appellant orally moved for a bill of particulars regarding the
specific nature of the alleged serious bodily injury. Specifically, the Appellant requested notice of
which of the five statutory definitions of serious bodily injury the State intended to rely upon in their
prosecution of especially aggravated robbery and especially aggravated burglary. The trial court
denied the motion, noting that the Appellant had been afforded open file discovery, which included
all the victim’s medical reports that the State was relying upon. The Appellant alleges that this
ruling was error and “deprived him of specific and necessary information about the charges against
him, thereby impairing the preparation of his defense.”

        The Appellant was charged with especially aggravated robbery and especially aggravated
burglary, both of which require proof of serious bodily injury. Serious bodily injury is defined as
bodily injury which involves:

         (A) A substantial risk of death;

         (B) Protracted unconsciousness;

         (C) Extreme physical pain;

         (D) Protracted or obvious disfigurement; or

         (E) Protracted loss or substantial impairment of a function of a bodily member, organ, or
         mental faculty.

Tenn. Code Ann. § 39-11-106(a)(34) (2003).



         2
          Approximately ninety days prior to the commission of the instant crimes, the Appellant pled guilty to theft and
evading arrest in the Davidson County Criminal Court and received a four-year suspended sentence with supervised
probation.

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        Tennessee Rule of Criminal Procedure 7(c) provides that, "upon motion of the defendant the
court may direct the filing of a bill of particulars so as to adequately identify the offense charged."
The function of a bill of particulars is to provide the defendant with the details of the charge he faces,
to avoid his prejudicial surprise at trial, and to allow him to preserve any claim of double jeopardy.
State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991); State v. Hicks, 666 S.W.2d 54, 56 (Tenn. 1984).
A defendant should be given enough information about the events charged so that he may, with
diligence, adequately prepare for trial. If the needed information is in the indictment or has been
provided by the State in some other satisfactory form, no bill of particulars is required. The bill of
particulars is not properly utilized for the purposes of broad discovery; rather, it is sufficient if it
provides the defendant with the information necessary to prepare a defense and avoid prejudicial
surprise. See State v. Stephenson, 878 S.W.2d 530, 539 (Tenn. 1994). Specifically, the bill of
particulars is not a device which requires the State to reveal its evidence or theories, except to the
extent that those things are revealed via disclosure of the necessary information to fulfill the
purposes of the bill of particulars. Id. An abuse of discretion must be shown to demonstrate error
in denying a bill of particulars. Id.

        As the State points out, there is no allegation that the Appellant was not fully apprised of and
given access to all discoverable information concerning the case, including all medical records of
the victim. It appears that the Appellant was trying to compel the State to commit itself to a
particular theory of the case. Under these circumstances, the trial court did not abuse its discretion
in denying a bill of particulars. Moreover, there is no showing that the defendant was prejudiced in
the preparation of his defense by the lack of the specific information which was requested on the
morning of trial. The Appellant has provided no specific evidence withheld by the State which
resulted in surprise, nor has the Appellant shown how he was prejudiced. To the contrary, the record
reflects that the Appellant was familiar with the State's evidence and theory of the case. The
Appellant thoroughly cross-examined the doctors regarding the extent of the victim’s injuries.
Nothing indicates that the Appellant was unable to adequately prepare his defense or that he was
hampered by the lack of specificity. See Byrd, 820 S.W.2d at 742. This issue is without merit.

II. Sentencing

        Next, the Appellant challenges the sentences imposed by the trial court. Specifically, he
argues that the court erred in imposing the maximum sentence for each conviction based upon
erroneous application of enhancement factors and non-application of a mitigating factor, as well as
by ordering consecutive sentencing. When an accused challenges the length, range, or manner of
service of a sentence, this court has a duty to conduct a de novo review of the sentence with a
presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-
401(d) (2003); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 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.” Ashby, 823 S.W.2d at 169. When conducting a de novo
review of a sentence, this court must consider: (a) the evidence, if any, received at trial and the
sentencing hearing; (b) the pre-sentence report; (c) the principles of sentencing and arguments as to
sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any


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statutory mitigating or enhancement factors; (f) any statement that the Appellant made on his own
behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§
40-35-102, -103, -210 (2003); Ashby, 823 S.W.2d at 168. Furthermore, we emphasize that facts
relevant to sentencing must be established by a preponderance of the evidence and not beyond a
reasonable doubt. State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000).

         If our review reflects that the trial court, following the statutory sentencing procedure,
imposed a lawful sentence after having given due consideration and proper weight to the factors and
principles set out under the sentencing law, and made findings of fact that are adequately supported
by the record, then we may not modify the sentence even if we would have preferred a different
result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, where the trial
court fails to comply with the statutory provisions of sentencing, appellate review is de novo without
a presumption of correctness. In the present case, the Appellant asserts that the trial court’s
sentencing decisions are not entitled to the presumption of correctness because the court misapplied
at least one enhancement factor, failed to apply one mitigating factor, and erroneously found that
Tennessee Code Annotated section 40-35-115(b)(4) was applicable in consecutive sentencing.

        The Appellant was sentenced, as a standard Range I offender, to serve twenty-five years for
the especially aggravated robbery conviction, a Class A felony, and six years for the aggravated
burglary conviction, a Class C felony. For standard offenders, the appropriate sentence range for a
Class A felony is fifteen to twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1) (2003). The
presumptive sentence is the midpoint within the range if there are no enhancement or mitigating
factors. Tenn. Code Ann. § 40-35-210(c). For standard offenders, the appropriate sentencing range
for a Class C felony is three to six years. Tenn. Code Ann. § 40-35-112(3). The presumptive
sentence for a Class C felony is the minimum sentence within the range absent enhancement or
mitigating factors. Id. The presumptive sentence is then increased for applicable enhancing factors
and decreased for applicable mitigating factors. Id. at (d), (e).

       a. Enhancement Factors

         With regard to the especially aggravated robbery conviction, the trial court applied the
following enhancement factors: (2) that the Appellant had a previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range; (5) that the
victim of the offense was particularly vulnerable because of age; (9) that the defendant has a previous
history of unwillingness to comply with the conditions of a sentence involving release in the
community; (11) that the defendant has no hesitation about committing a crime when the risk to
human life was high; and (14) that the felony was committed while the defendant was on probation
for a felony. See Tenn. Code Ann. § 40-35-114(2), (5), (9), (11), (14). In addition to applying the
same factors to the aggravated burglary conviction, the court also applied: (6) that the defendant
treated or allowed the victim to be treated with exceptional cruelty during the commission of the
offense; (7) the personal injuries inflicted upon the victim were particularly great; and (17) that the
crime was committed under circumstances under which the potential for bodily injury was
particularly great. Id. at (6), (7), (17).


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        The Appellant challenges only the application of enhancement factor (5), that the victim was
particularly vulnerable because of age or physical or mental disability. Additionally, the Appellant
asserts that the sentences imposed are in conflict with Blakely v. Washington, 542 U.S. 296, 124 S.
Ct. 2531 (2004), based upon the application of certain enhancement factors without jury findings or
admissions.

        We note initially that the Blakely issue has been rendered moot by the Tennessee Supreme
Court’s recent decision in State v. Gomez, 163 S.W.3d 632, (Tenn. 2005). Our supreme court held
that the 1989 Sentencing Reform Act “authorizes a discretionary, non-mandatory sentencing
procedure . . . [which] sets out broad sentencing principles, enhancement and mitigating factors, and
a presumptive sentence, all of which serve to guide trial judges in exercising their discretion to select
an appropriate sentence within the range set by the Legislature. Under the Reform Act, the finding
of an enhancement factor does not mandate an increased sentence.” Id. at 661. Accordingly, the
court held that the Tennessee Sentencing Reform Act does not violate the Sixth Amendment
guarantee of a jury trial and is, thus, not affected by the Blakely decision. Id. Thus, the Appellant
is not entitled to relief under Blakely.

        With regard to the application of enhancement factor (5), the Appellant argues that the trial
court erred in applying this factor because the record established that the victim, though seventy-
seven years old, was very active, taking senior strength training, participating in water aerobics,
living alone, and caring for her grandchildren. The Appellant argues that age alone is insufficient
to permit application of the factor. Rather, the State must establish that because of age or disability,
the victim was particularly vulnerable.

         The Appellant has correctly stated the standard for application of this factor. In State v.
Adams, our supreme court held that the vulnerability enhancement factor relates more to the natural
physical and mental limitations of the victim than merely to the victim’s chronological age and that
the factor should be used if the circumstances show that the victim, because of age or physical or
mental condition, was in fact “particularly vulnerable,” i.e., incapable of resisting, summoning help,
or testifying against the perpetrator. 864 S.W.2d 31, 35 (Tenn. 1993). It is the State’s burden to
prove the victim’s limitations rendered her particularly vulnerable. Id. Where the victim’s age is
the asserted basis for particular vulnerability, our supreme court has held that “unless the State
produces evidence of physical or mental limitations at the time of the offense, alone with proof of
the victim’s age, it cannot be presumed that the victim was particularly vulnerable based solely on
her age.” State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997).

        The proof in the record is insufficient to establish that the victim’s age alone made her more
vulnerable to the Appellant. Based on the circumstances presented in this case and upon applicable
case law, we conclude that the trial court erred in considering enhancement factor (5) in determining
the length of Appellant’s sentences for especially aggravated robbery and aggravated burglary.

        The Appellant does not challenge the application of the remaining enhancement factors, but,
after review of the record, we conclude that the trial court also erred in applying enhancement factor


                                                  -6-
(11), that the defendant had no hesitation about committing a crime when the risk to human life was
high, to the conviction for especially aggravated robbery. As a general rule, enhancement factor (11)
is necessarily inherent in an especially aggravated robbery that is committed with a deadly weapon,
as was the case here. See State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim. App. 1994). After
review, we find no other error in the application of the remaining enhancement factors. Thus, we
find that the court erred in its application of two enhancement factors with regard to the conviction
for especially aggravated robbery and of one enhancement factor to the aggravated burglary
conviction.

        b. Mitigating Factors

        Next, the Appellant contends that the court erred in failing to apply mitigating factor 13,
based upon the Appellant’s expressed remorse. The Appellant argues that because he gave a full
statement to police admitting his involvement in the crimes and apologized at length to the victim
during the sentencing hearing, the trial court should have mitigated his sentence.

        We note that "genuine, sincere remorse is a proper mitigating factor." State v. Williamson,
919 S.W.2d 69, 83 (Tenn. Crim. App. 1995). However, a trial court must determine the credibility
of a defendant's claims of remorse before the mitigating factor may be properly applied. See State
v. Graylin Burton, No. M1999-01997-CCA-R3-PC (Tenn. Crim. App. at Nashville, Feb. 16, 2001).
Despite hearing the Appellant’s apologies, the trial court found that no mitigating factors were
applicable. The trial court, by observing the Appellant’s demeanor and assessing credibility, is in
a much better position to determine a defendant’s remorse than is this court. Upon review, it is clear
that the only proof in the record of the Appellant's remorse were his self-serving statements.
Accordingly, this issue is without merit.

        Although we have determined that the court misapplied certain enhancement factors, this
does not necessarily lead to a reduction in the Appellant’s sentence length. Winfield, 23 S.W.3d at
284. Based on the presence of three enhancing factors for the especially aggravated robbery
conviction, seven enhancement factors for the aggravated burglary conviction, and no mitigating
factors, we find no error in the trial court’s determination of the length of the sentences. The
imposition of the maximum sentences within the appropriate range for these offenses based upon
the applicable enhancement factors is well within the discretion afforded to the trial court under
Tennessee’s sentencing scheme. See Gomez, 163 S.W.3d at 661. The Gomez court concluded that
“even after an enhancement factor is found, this statute affords the trial court the discretion to choose
an appropriate sentence anywhere within the statutory range.” Id. at 659. Thus, we affirm the
Appellant’s sentences of twenty-five years for the especially aggravated robbery conviction and six
years for his aggravated burglary conviction.

        c. Consecutive Sentencing

       Last, the Appellant asserts that the trial court erred in ordering that his sentences for
especially aggravated robbery and aggravated burglary be served consecutively, as well as


                                                  -7-
consecutively to an unserved four-year sentence for theft resulting from a probation violation. A trial
court may impose consecutive sentencing upon a determination that one or more of the criteria set
forth in Tennessee Code Annotated section 40-35-115(b) exists. This section permits the trial court
to impose consecutive sentences if the court finds, among other criteria, that “[t]he 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;” or “[t]he defendant is sentenced
for an offense committed while on probation.” Tenn. Code Ann. §§ 40-35-115(b)(4), (6) (2003).
The length of the sentence, when consecutive in nature, must be “justly deserved in relation to the
seriousness of the offense” and “no greater than that deserved” under the circumstances. Tenn. Code
Ann. § 40-35-102(1), –103(2).

        In Gray v. State, our supreme court held that before consecutive sentencing could be imposed
based upon classification as a dangerous offender, the following 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.
538 S.W.2d 391, 393-94 (Tenn. 1976). In State v. Wilkerson and State v. Imfeld, our supreme court
reaffirmed those principles, holding that before imposing consecutive sentences on the basis that a
defendant is a dangerous offender, the trial court must find that the resulting sentence is reasonably
related to the severity of the crimes and necessary to protect the public against further criminal
conduct. State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002); State v. Wilkerson, 905 S.W.2d 933, 938
(Tenn. 1995).

        Specifically, the Appellant argues that the State failed to establish that a thirty-one year
sentence is reasonably related to the severity of the offenses or that such a sentence is necessary to
protect the public from further criminal acts by the Appellant. Additionally, he argues that even if
he meets the criteria of Tennessee Code Annotated section 40-35-115, the sentence is unnecessary
and excessive.

       In ordering consecutive sentencing, the trial court found that the Appellant was on probation
when the instant offenses were committed, as well as finding the Appellant to be a dangerous
offender. The record supports both findings.

        It is necessary to find the presence of only one of the statutory categories listed in Tennessee
Code Annotated section 40-35-115(b) to support the imposition of consecutive sentencing. State
v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). Thus, the finding that the Appellant was
on probation when these offenses were committed would be a sufficient basis for ordering
consecutive sentencing. Nonetheless, after review, the trial court’s finding that the Appellant is a
dangerous offender is also supported by the record. The circumstances surrounding the commission
of the offense indicate that the Appellant has little regard for human life and had no hesitancy about
committing a crime where the risk to human life was high. The senseless brutality of these offenses
supports a finding that confinement is necessary to protect society from the Appellant’s conduct and
that consecutive sentencing reasonably relates to the severity of the offenses. The Appellant
committed vicious crimes against an elderly woman who had served as a positive influence in his


                                                  -8-
life. He had no hesitation about beating her severely and leaving her in a life threatening condition
in order to satisfy his own drug habits. Accordingly, we affirm the trial court’s imposition of
consecutive sentences.

                                         CONCLUSION

       Based upon the foregoing, the Appellant’s judgments of conviction for especially aggravated
robbery and aggravated burglary, as well as the resulting sentences imposed by the trial court, are
affirmed.


                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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