         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 6, 2007
  STATE OF TENNESSEE v. DEDDRICK PARKER, TAURUS DRIVER,
                 and TREMAINE ROBERSON
                  Direct Appeal from the Criminal Court for Shelby County
                          No. 04-02632   John P. Colton, Jr., Judge



                     No. W2006-00876-CCA-R3-CD - Filed July 30, 2007


The defendants, Deddrick Parker, Taurus Driver, and Tremaine Roberson, were indicted for two
counts of aggravated robbery, a Class B felony, and five counts of aggravated assault, a Class C
felony. Each defendant was convicted of both counts of aggravated robbery, and Roberson was also
convicted of all five counts of aggravated assault, Parker of two counts, and Driver of two counts
of the lesser-included offense of facilitation of aggravated assault. Roberson, Parker, and Driver
were sentenced as Range I, standard offenders to consecutive sentences totaling thirty-five, twenty-
four, and twenty years, respectively. In this consolidated appeal, they raise three issues: (1) the
evidence is insufficient; (2) the trial court erred in its application of enhancement factors and in
imposing consecutive sentencing; and (3) the trial court erred by not timely disclosing its prior
relationship with an assault victim. Following our review, we remand for resentencing as to those
sentences imposed on each defendant which exceed the minimum, affirm the remaining judgments,
and remand to the trial court for a determination as to whether the sentences should be served
concurrently or consecutively.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part,
                                    Reversed in Part
ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH , JJ., joined.
Paul K. Guibao, Memphis, Tennessee, for the appellant, Deddrick Parker; Charles Edgar Waldman,
Memphis, Tennessee, for the appellant, Taurus Driver; and Gregory Thomas Carman (on appeal) and
Matthew John (at trial), Memphis, Tennessee, for the appellant, Tremaine Roberson.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Dennis Johnson and Muriel Conner, Assistant
District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

                                             FACTS
       The defendants were tried jointly for the January 17, 2004, aggravated robbery of John
Carruthers, an employee of the Cash America Pawnshop in South Memphis, and of one of the
pawnshop’s customers, Ingre Calvin; for the aggravated assault of two persons in the pawnshop,
Darrick Bowden, a cashier, and eight-year-old customer Jeffrey Calvin; and for the aggravated
assaults of motorist Stanley Kline; his wife, Sandra Kline; and their adult, handicapped son, Louis
Kline.

                                            State’s Proof
        At the defendants’ trial, Darrick Bowden testified that he was working behind the counter
of the pawnshop on January 17, 2004. Between noon and 1:00 p.m., two men with guns, wearing
masks, gloves, and dark clothing, entered the store and yelled for everyone to “get down.” Bowden
laid down on the floor behind the counter and heard the men running past him, the cash registers
being “popped,” the store’s glass jewelry-display cases being broken, and one of the robbers yelling,
“Where’s the safe? Where’s the safe?” When the alarms on the display cases went off, the robbers
fled. Bowden described one of the robbers as a “heavy-set guy” and the other as “slim.” He said that
money and jewelry were taken during the robbery. Bowden said that during the robbery, he was “just
hoping, you know nobody get agitated [sic] and things go wrong,” saying that he was afraid
“somebody [would] get shot” and that “it could have been” him. Another of the victims, John
Carruthers, was wo rking with Bowden that day and operating a cash register when the robbery
occurred.
        Shaun Bridgeforth, also an employee of Cash America Pawnshop, testified that he saw one
of the robbers enter the store carrying a gun and wearing a black mask and described the robber as
being of “regular height” and a “little chubby.” He knew there was more than one robber in the store
but remained face-down on the floor until they left.

        Ingre Calvin testified that she and her young son and daughter were at the checkout counter
of the pawnshop when a man approached her from behind and said, “Get down.” She described the
man as “kind of stocky” and said he was wearing a tan lumber jacket, a blue “skull cap,” and “a
green, homemade face mask.” Ms. Calvin said she was scared and “thought [she] was going to get
shot or something.” Her purse, which had been on the counter, was missing after the robbery. She
said she had approximately $1500 cash, her checkbook, and two credit cards in her purse.

        Ingre Calvin’s son, Jeffrey Calvin, a fifth grader, testified that he was at the counter in the
pawnshop when three men came in and told him to “get down.” He complied but “peeked a little”
and saw one of the men pull up his black mask and use a hammer to “bust the glass” in the jewelry
cases. Calvin saw the robber’s face and looked up at him until the alarm sounded and the robbers
left. He later viewed photographic lineups at the police station and identified Roberson as the man
he saw breaking the glass. Asked how he felt during the robbery, Calvin said that he “thought they
[were] going to hurt somebody” because they had a “hammer and all that.” He said that he was
scared and that his sister was crying after the robbers left.

       Lieutenant Terry Lyons of the Memphis Police Department testified that approximately
$1,550.23 was stolen from the pawnshop and $1,588.00 from Ingre Calvin. He said that the robbers
wrecked their getaway vehicle, a white Chevrolet Caprice, at the intersection of South Third Street
and East Mitchell Road, approximately 100 yards from the pawnshop. Inside the car, the police
discovered felt jewelry displays, loose pieces of jewelry, and cash. The police also recovered a pistol
and a bag containing $520 on the sidewalk of Meadowbrook Road.

       Lieutenant Lyons said that a witness, Mr. Hughes, told police he followed a man who fled
from the scene of the automobile accident to a nearby house located at 49 West Belle Haven Road.
Lyons said that he and three other officers went to the house where they found three males, whom
he identified as the defendants, matching the physical descriptions of the robbery suspects. They
were taken into custody and transported to the police station where Lieutenant Lyons watched the
pawnshop’s surveillance videotape of the robbery and noted that, like the perpetrators shown on the

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tape, Parker was wearing white tennis shoes, Driver was wearing black tennis shoes, and Roberson
was wearing blue tennis shoes. Lieutenant Lyons said that he showed a photospread to Mr. Hughes,
who identified Driver as one of the men he saw get out of the backseat of the Caprice at the
intersection of Third and Mitchell.

       The pawnshop’s market manager, John Louis Griffin, testified that the jewelry displays and
jewelry found in the wrecked, white Chevrolet had been taken from the pawnshop.

        Ronald McKinney testified that on January 17, 2004, he was traveling south on Third Street
when a four-door, white Chevrolet hit his vehicle and spun it out of control at the intersection of
Mitchell Road. Three men got out of the Chevrolet and started walking down Mitchell Road. When
McKinney approached the driver of the Chevrolet, whom he described as “heavier than the other
two,” the man “raised up his shirt to let [him] know he had a gun.” McKinney immediately stopped
following them. On February 20, 2004, McKinney viewed photographic lineups at the police station
and identified Parker as the man who flashed the gun. At trial, he testified that there was “no doubt
in my mind was the heavyset guy that had the gun [sic].”
        Claudell Hughes testified that he witnessed the automobile accident at Third Street and
Mitchell Road involving an older model white car and a sports utility vehicle. Three young men got
out of the white car and walked over to the sidewalk. Two of the men returned to the car and
retrieved some plastic bags. All three then started walking west on Mitchell Road, and Hughes
followed them in his car because they were leaving the scene of the accident. At one point, as he
passed the three men, one of them approached him with a gun in hand. Hughes then sped up, drove
around the block, and “came back up behind them” so they would not know he was still following
them. He observed the men split up and continued following one of them who was “going down
between the houses.” He watched the man stop at a house on West Belle Haven Road and talk to
another man. Later, he showed a police officer the house where the man had stopped. Hughes
viewed a photographic lineup and identified Driver as the backseat passenger who got out of the
white car. However, Driver was not the one whom Hughes ultimately followed. Hughes was not
able to identify any of the defendants in the courtroom.

        Stanley J. Kline, a Memphis attorney, testified that he was in his car with his wife and adult,
handicapped son, stopped behind a bus on Third Street, when he heard a “[v]ery loud, violent”
automobile collision and saw an older model, white car roll to a stop on Mitchell Road. Three black
males got out of the car and began running westbound down Mitchell Road. Kline called 9-1-1 and
then followed the men at a distance. When he turned northbound on Meadowbrook, the men had
stopped running and Kline slowly came to a stop next to one of them. The other two men were
standing near his car, and one of them “had a silver pistol in his right hand and whirled around and
fired a shot” directly at Kline’s car. The bullet struck the hood, ricocheted off, and missed the
windshield.

        After being shot at, Kline retrieved his own handgun from his glove compartment and got
out of his car. Kline was “about to shoot” the man closest to him, whom he described as
“overweight,” but did not because the man dropped the bag he was carrying and “a lot of cash flew
out and a pistol.” The other two men ran, but, when the larger man tried to run, he “hit some mud
or wet stuff on the yard and fell flat on his face spread-eagled.” Weapon leveled, Kline stood one
foot behind the man and told him not to get up, but the man pushed himself up, looked at Kline,
grinned, and “ran off.” Kline testified that the man had “crossed” front teeth and identified him as
Parker after looking at his teeth in the courtroom.

        Kline viewed photographic lineups at the police station the day after the incident but would
not identify anyone because he wanted to see them “live.” However, Kline testified that he got “a

                                                 -3-
good look” at all three men, and, according to him, the defendants were seated in the courtroom in
the same order as they had been standing on the sidewalk when the shot was fired. He identified
Roberson as the shooter. According to Kline, the defendants had altered their appearance
“considerably” since the day of the incident, especially Parker, who appeared to have lost fifty or
more pounds.

        Kline’s wife, Sandra Kline, testified that, after being shot at, she was “screaming at [her
husband] to get out of there.” She said that after he exited their car, she was “looking straight into
the face of the heavyset guy with a gun and a bag.” The day after the incident, reviewing
photographic lineups at the police station, Mrs. Kline identified Driver as the man standing on the
corner, Roberson as the man who shot at them, and Parker as the heavyset man. Mrs. Kline
confirmed that the same men were the defendants on trial in the courtroom.

        Sergeant Robert Scoggins of the Memphis Police Department testified that there were no
positive results when fingerprint analysis was conducted on the car or the pistol recovered from the
sidewalk on Meadowbrook Road. On the night of the offense, he executed a search warrant at the
house where the defendants were apprehended, but no evidence relevant to the robbery was
discovered. He also took statements from the defendants who identified alibi witnesses, but none
of those named cooperated when he requested them to come to the police station to give statements.

        Sergeant James T. Max of the Memphis Police Department testified that he interviewed
Roberson on the day of the robbery. Roberson told him that he and Parker walked from the Valley
Forge Apartments to the Corner Foods Store near Mitchell Road and Third Street, purchased two
beers and a bag of potato chips, walked to a friend’s house “on Rollins and then from there they went
to his aunt’s house where they were arrested.” Roberson denied any involvement in the robbery.
Sergeant Max later spoke with the Corner Foods Store employee who was working the afternoon of
the robbery, and she could not confirm that Roberson or Parker had been in the store that day.

                                           Defense Proof
       Roxie Lewis testified that she was working as a cook at the Corner Foods Store on January
17, 2004, and that Parker, whom she knew as “Lasagna Man,” came to the store at “lunchtime.” She
could not remember if anyone else was with Parker that day.

        Antonio Smith testified that all three defendants are his cousins and that on January 17, 2004,
he picked up Driver and another cousin, Cory Parker, at about 12:30 p.m. and they went to the
Southland Mall. He said they went to three stores before leaving the mall around 1:00 p.m. Smith
said that, on their way home, they passed the pawnshop, saw “a whole bunch of police,” and were
laughing because they thought “somebody must have robbed the pawnshop or something.” Smith
then took Driver to his aunt’s house at 49 West Belle Haven.

        Cory Parker testified that Smith picked up him and Driver at about 12:40 p.m. on the day of
the crime and took them to the mall. Afterwards, at about 1:30 p.m., they dropped Driver off at 49
West Belle Haven so he could watch a basketball game. Parker said that, later that day, he returned
to the mall and viewed a surveillance videotape at one of the stores they had visited and identified
Driver on the videotape. On cross-examination, he acknowledged that he is Defendant Parker’s
brother and the cousin of Driver and Roberson.

         Defendant Driver testified that, on January 17, 2004, he went to the Southland Mall at
approximately 1:00 p.m. with Cory Parker and Antonio Smith. Afterwards, they dropped him off
at his grandmother’s house at 49 West Belle Haven where he was arrested by detectives ten minutes
later. Driver denied any involvement in the robbery.

                                                 -4-
       Rose Parker testified that she lived at 49 West Belle Haven and that Roberson is her cousin
and the other two defendants are her nephews. She said that, on January 17, 2004, Parker and
Roberson arrived at her house at about 12:45 p.m. and Driver arrived at about 1:40 p.m. The
defendants were at her house until the police came at approximately 2:00 p.m. Earlier that day, she
had seen two men run across her front yard, one wearing a bright yellow jacket and the other a black,
hooded pullover.

         Chimarco Faulkner testified that Parker and Driver are his nephews and Roberson is his
cousin. On the day of the robbery, Faulkner and Charles Glover were with Parker and Roberson for
“a couple of hours” at Glover’s house before dropping them off in front of the Corner Foods Store
“a little after 1:00” p.m. Gaisha Faulkner testified that she was at 49 West Belle Haven when her
nephews, Driver and Parker, and her cousin, Roberson, were arrested.

         Defendant Parker testified that, on January 17, 2004, he left the Valley Forge Apartments
with Roberson at approximately 11:25 a.m. and walked to Charles Glover’s house where they stayed
until “probably about 12:50” p.m. Later, while riding in Glover’s car, he saw the woman who lived
at the corner of Belle Haven and Meadowbrook and stopped to talk to her and her daughter.
Afterwards, Glover took Parker and Roberson to the Corner Foods Store where Parker bought some
beer. Parker and Roberson then walked back to Glover’s house and then to his grandmother’s house
at 49 West Belle Haven, arriving at about 1:30 or 1:45 p.m. Parker testified that Driver arrived at
the house approximately twenty-five minutes later. Parker denied robbing the pawnshop. He
acknowledged he had lost some weight in the year preceding his trial because he found the food in
jail disagreeable, saying that he weighed approximately 210 pounds on January 17, 2004, and was
heavier than Roberson and Driver at that time.

       Defendant Roberson did not testify.

         Donell Powell testified that, at approximately 12:45 p.m. on January 17, 2004, as he was
sitting in his car on West Dunbar Road, he saw, from his rearview mirror, three men run behind his
car. The first two men were wearing hoods and looked like they were running from someone.
Powell estimated the third man’s weight at “about 300 pounds” and said he was carrying a long
screwdriver and lagging behind the other two men. At the time, Powell was not aware of the
pawnshop robbery and had not heard any gunshots but thought that the three men had been trying
to steal a car or “carjack” someone. Shortly after seeing the three men run by, he saw Parker and
Roberson, whom he knew from neighborhood barbecues as “Pooh Man” and “Huck,” respectively,
walking down East Dunbar Road. According to Powell, Parker and Roberson appeared to have “just
come from the store because they had a bag with them.” Powell testified that he was certain that the
three men who had run by him earlier were not the defendants.

                                           ANALYSIS

                                  I. Sufficiency of the Evidence
        As set out previously, the defendants each were indicted for two counts of aggravated robbery
and five counts of aggravated assault, with John Carruthers, an employee of Cash America
Pawnshop, as one of the aggravated robbery victims, and Ingre Calvin as the other. Darrick Bowden,
Jeffrey Calvin, Stanley Kline, Sandra Kline, and Louis Kline were the victims in the aggravated
assault charges. While the jury convicted each defendant of both aggravated robberies, only
Roberson was convicted of all five counts of aggravated assault. Parker was convicted of two
aggravated assaults, one against Darrick Bowden and one against Jeffrey Calvin, and Driver was
convicted of two counts of the lesser-included offense of facilitation of aggravated assault against


                                                -5-
Bowden and Jeffrey Calvin. The defendants argue that the evidence was insufficient as to their
respective convictions.

         In considering this issue, we apply the rule that where sufficiency of the convicting evidence
is challenged, the relevant question of the reviewing court is “whether, after viewing the evidence
in the 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 (1979); see also Tenn. R. App. P. 13(e); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). This rule applies
when the determination of guilt is based upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-
93 (Tenn. Crim. App. 1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)).

       All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). Our supreme court stated the rationale for this rule:
                This well-settled rule rests on a sound foundation. The trial judge and the
        jury see the witnesses face to face, hear their testimony and observe their demeanor
        on the stand. Thus the trial judge and jury are the primary instrumentality of justice
        to determine the weight and credibility to be given to the testimony of witnesses. In
        the trial forum alone is there human atmosphere and the totality of the evidence
        cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn.
1963)). Additionally, a jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

                               A. Aggravated Robbery Convictions
       Each defendant was convicted of two counts of aggravated robbery, and we first will consider
those convictions:

        Aggravated robbery is robbery as defined in § 39-13-401:

               (1) Accomplished with a deadly weapon or by display of any article used or
        fashioned to lead the victim to reasonably believe it to be a deadly weapon; or

                (2) Where the victim suffers serious bodily injury.

Tenn. Code Ann. § 39-13-402(a) (2003); see also Tenn. Code Ann. § 39-13-401(a) (defining robbery
as “the intentional or knowing theft of property from the person of another by violence or putting the
person in fear”).

        “Deadly weapon” is also defined by statute as:

               (A) A firearm or anything manifestly designed, made or adapted for the
        purpose of inflicting death or serious bodily injury; or



                                                  -6-
              (B) Anything that in the manner of its use or intended use is capable of
       causing death or serious bodily injury.

Tenn. Code Ann. § 39-11-106(a)(5) (2003) (emphasis added).

        As we will explain, we conclude that the evidence is sufficient as to the aggravated robbery
convictions of each defendant. Jeffrey Calvin identified Roberson as one of three men who entered
the pawnshop wearing masks and said that he used a hammer to break open jewelry-display cases.
Darrick Bowden testified that John Carruthers was operating a cash register on the day of the
robbery, that money and jewelry were taken, and that the two robbers he saw were armed with guns.
Ingre Calvin testified that she was ordered at gunpoint to get down on the floor and that her purse
was gone after the robbers left. Four additional witnesses, Ronald McKinney, Claudell Hughes,
Stanley Kline, and Sandra Kline, made positive identifications of the three defendants and testified
that they had handguns and wrecked their “getaway” car at Third and Mitchell before attempting to
run on foot. John Louis Griffin confirmed that jewelry recovered from the wrecked car came from
the pawnshop. The Klines also saw Parker drop a bag containing cash and a pistol that was later
recovered by police. Finally, all three defendants were discovered at the house where Hughes saw
one of the men run.

        Viewed in a light most favorable to the prosecution, jurors reasonably could conclude that
the defendants used deadly weapons to intentionally steal property from John Carruthers and Ingre
Calvin. See Tenn. Code Ann. § 39-13-402(a)(1) (2003). Accordingly, the proof is sufficient as to
the two aggravated robbery convictions of each defendant.

                               B. Aggravated Assault Convictions
       Next, we will consider the convictions for aggravated assault.

       A person commits aggravated assault who:

               (1) Intentionally or knowingly commits an assault as defined in § 39-13-101
       and:

               (A) Causes serious bodily injury to another; or

               (B) Uses or displays a deadly weapon[.]

Tenn. Code Ann. § 39-13-102(a)(1) (2003); see also Tenn. Code Ann. § 39-13-101(a)(2) (providing
in relevant part that a person commits assault by “[i]ntentionally or knowingly caus[ing] another to
reasonably fear imminent bodily injury”).

                                      1. Defendant Roberson
        Roberson argues that the evidence is insufficient to support his convictions for the aggravated
assaults of Darrick Bowden, Jeffrey Calvin, Stanley Kline, Sandra Kline, and Louis Kline.

        Darrick Bowden testified that the two men he saw enter the pawnshop were armed with guns
and, when ordered to the floor, he feared he would be shot. Jeffrey Calvin identified Roberson as
one of the robbers. He said that Roberson had a hammer and that he thought the men were “going
to hurt somebody.” Stanley and Sandra Kline testified that Louis was in the car with them, and, as
they followed the three defendants, Roberson quickly turned and fired his handgun at them, striking
the hood of their car.

                                                 -7-
         Viewed in a light most favorable to the State, this evidence is sufficient for a reasonable juror
to conclude that Roberson intentionally or knowingly used or displayed a deadly weapon to make
all five victims reasonably fear imminent bodily injury. See Tenn. Code Ann. § 39-13-102(a)(1)(B)
(2003).

                                        2. Defendant Parker
        Parker argues that the evidence is insufficient to support his convictions for aggravated
assault against Darrick Bowden and Jeffrey Calvin, asserting that because there was “no direct
singular threat” made against Jeffrey Calvin, who was a witness to the robbery, this conviction
cannot stand.

         Darrick Bowden and Shaun Bridgeforth both described one of the robbers as heavyset and
testified he had a gun. Three other witnesses, Stanley Kline, Sandra Kline, and Ronald McKinney,
identified Parker as one of the men fleeing the wrecked car, testified that he had a pistol, and
described him as heavyset. Jeffrey Calvin testified that he saw all three robbers and was afraid they
were going to hurt someone.

        Viewed in the light most favorable to the State, this evidence is sufficient for a reasonable
juror to conclude that Parker knowingly displayed a deadly weapon to make those in the pawnshop,
including Jeffrey Calvin and Darrick Bowden, fear imminent bodily injury. See Tenn. Code Ann.
§ 39-13-102(a)(1)(B) (2003).

            3. Defendant Driver’s Facilitation of Aggravated Assault Convictions
        Driver argues that the evidence does not support his convictions for facilitation of aggravated
assault against Darrick Bowden and Jeffrey Calvin.

         Facilitation of a felony is defined as follows: “A person is criminally responsible for the
facilitation of a felony, if, knowing that another intends to commit a specific felony, but without the
intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes
substantial assistance in the commission of the felony.” Tenn. Code Ann. § 39-11-403(a) (2003).

        As previously set out, we have concluded that the evidence was sufficient to support Driver’s
convictions for aggravated robbery of John Carruthers and Ingre Calvin. Accordingly, it is also
sufficient to support his convictions for facilitation of the aggravated assaults committed by his
codefendants during the robbery. A reasonable juror could conclude that Driver, if not armed
himself, knew that Parker and Roberson were armed with handguns which they brandished during
the robbery and that, by joining them, he provided substantial assistance in placing Bowden and
Jeffrey Calvin in fear of imminent bodily injury.

                                            II. Sentencing

       At the defendants’ sentencing hearing, no proof was presented by the defendants and each
was sentenced as a Range I, standard offender.




                                                   -8-
      Before sentencing, the trial court discussed, apparently as to all three defendants, which
enhancement and mitigating factors were applicable:1

         [The] Court finds after review here that he cannot find any mitigating circumstances.
         It’s been discussed during the trial and so forth that certain defenses were put up, but
         I have not been presented anything here in writing nor have I had any proof other
         than statements about possible mitigation.

                   The Court’s reviewing the enhancement factors and finds that there could be
         several. I’m going to list some that I’m going to include here. One being the offense
         involved more than one victim. And [an]other being number five, that a victim of
         the offense was particularly vulnerable. And the reason for that is because we have
         a young child of nine years of age2 and also another party in here who was a person
         who had a mental disability who was also a victim. And also that the . . . defendants
         employed firearms in the commission of these crimes, even though that was part of
         the . . . aggravated robbery charge. And also that these defendants seemed to have
         no hesitation about committing a crime when the risk of human life was high and
         people were threatened and people were in fear of their life. The crime also was
         committed under circumstances in which there was a potential for bodily injury to
         several of these victims. And that would be under enhancement number 17, I
         believe, under the 40-35-114.

         The trial court then sentenced Roberson to eight years for each aggravated robbery
conviction, the minimum sentence for a Range I, standard offender convicted of a Class B felony.
See Tenn. Code Ann. § 40-35-112(a)(2) (2003). Likewise, the court imposed minimum sentences
of three years each for the aggravated assaults against Stanley Kline, Sandra Kline, and Darrick
Bowden. See Tenn. Code Ann. § 40-35-112(a)(3). Specifically applying enhancement factor (5),
see Tenn. Code Ann. § 40-35-114(5) (2003), the court enhanced the sentence for the aggravated
assault of Louis Kline because he was a “mental[ly] deficient person” and that for the aggravated
assault of Jeffrey Calvin because of his young age. This was the only enhancement factor mentioned
by the court during the sentencing of Roberson. However, on a sentencing checklist, included in the
record on appeal, the court checked the additional enhancement factors (4) and (11) as being
applicable. See Tenn. Code Ann. § 40-35-114(4), (11) (2003). The State’s analysis on appeal
assumes that the trial court additionally applied enhancement factors (10) and (17), which the court
mentioned before sentencing any of the defendants. All seven sentences were ordered to be served
consecutively because the defendant was a “dangerous person and . . . a danger to this society and
to this area.”

        Under factor (5), the only enhancement factor specifically discussed by the trial court during
the sentencing of Roberson, the court can enhance a defendant’s sentence when “a victim of the
offense was particularly vulnerable because of age or physical or mental disability.” Tenn. Code
Ann. § 40-35-114(5) (2003). Although it is undisputed that Jeffrey Calvin was eight years old at the
time of the offense and that Louis Kline had Down syndrome, factor (5) was not applicable because
the State did not present proof that these victims were in fact “‘particularly vulnerable,’ i.e.,

         1
          On June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-102(6), -210,
and -401. See 2005 Tenn. Pub. Acts ch. 353, §§ 1, 6, 8. The amended code sections, however, do not apply in this case
because the defendants’ offenses were committed prior to the enactment of the statute and they did not elect to be
sentenced under the 2005 amendment.
         2
          Ingre Calvin testified that her son, Jeffrey, would turn ten years old in August 2005. Accordingly, he was eight
years old at the time of the robbery and nine years old at the time of the defendants’ July 2005 trial.

                                                           -9-
incapable of resisting, summoning help, or testifying against the perpetrator.” State v. Adams, 864
S.W.2d 31, 35 (Tenn. 1993). We note that Jeffrey Calvin testified during the trial, and there is no
proof that he would have reacted differently during the robbery had he been an adult. As for Louis
Kline, the State has made no references to the record to show that his condition was such that he
could not testify, although he did not do so. Likewise, the State has not shown that Louis Kline
would have reacted differently to the shot being fired at the vehicle in which he was a passenger in
the backseat had he not had Down syndrome. Accordingly, we agree with the defendant and the
State and conclude that the State did not establish a basis for application of enhancement factor (5)
as to either of these victims.

        As we have set out, the sentencing checklist lists additional enhancement factors (4) and (11)
as being applicable and, in remarks made prior to sentencing any of the defendants, the court seemed
to suggest that enhancement factors (10) and (17) were applicable to at least some of the defendants
or offenses. This court previously has held that sentencing checklists used by the Shelby County
Criminal Court, with check marks being placed beside applicable enhancement and mitigating
factors and reasons for consecutive sentencing, do not satisfy the mandatory requirements of
Tennessee Rule of Criminal Procedure 32(c)(1). See State v. Christopher Campbell, No. W2001-
01916-CCA-R3-CD, 2002 WL 826076, at *1 (Tenn. Crim. App. Apr. 22, 2002).

        In view of the fact that the trial court erred in applying enhancement factor (5) and because
it is unclear which other factors, if any, were applied, we remand for resentencing of Roberson’s
convictions for the aggravated assaults of Jeffrey Calvin and Louis Kline.

         The court sentenced Parker to the minimum sentences for the two aggravated robbery
convictions and the aggravated assault in which Darrick Bowden was the victim. The only
conviction for which Parker received in excess of the minimum sentence was that for the aggravated
assault of Jeffrey Calvin, for which he was sentenced to five years. At the sentencing hearing, the
court did not identify any enhancement factors justifying the increased sentence, although factors (4),
(5), (10), and (11) were marked on the sentencing checklist as being applicable. The court ordered
that all sentences be served consecutively but did not give reasons why this was being done.

        On appeal, the State assumes that the trial court utilized these four enhancement factors, as
well as factors (10) and (17) which were mentioned in introductory remarks, in setting a five-year
sentence for the defendant’s aggravated assault of Jeffrey Calvin, agreeing then with the defense that
none of the five were applicable. We decline to determine whether any of these factors were
applicable since it is unclear what enhancement factors were applied in increasing this sentence.
Accordingly, we remand Parker’s conviction for the aggravated assault of Jeffrey Calvin for
resentencing.

        As to Driver, the trial court imposed the minimum sentence for each of his convictions except
that for facilitation of the aggravated assault of Jeffrey Calvin, for which the defendant received a
sentence of four years, two years in excess of the minimum. No separate explanation was given as
to why the sentence was enhanced. However, on a sentencing checklist, enhancement factors (4),
(5), (10), and (11) were checked as being applicable.3 As to factor (5), the additional explanation
was handwritten: “young child - mental.” The court ordered that all sentences be served
consecutively “due to the nature of the crime and the charges being involved here in the several
incidents that we had arising out of one set of facts.” In view of the fact that it is unclear which


        3
          On appeal, the State assumes that enhancement factors (10) and (17), mentioned by the court during
introductory remarks, were applied and agrees with the defendant that application of those factors was error.

                                                    -10-
enhancement factors were applied in the sentencing for facilitation of the aggravated assault of
Jeffrey Calvin, we remand this conviction for resentencing.

         In our review of the defendants’ claims that the trial court erred in ordering certain of the
sentences to be served consecutively, we note that the State agrees with the defendants’ view that
the trial court gave insufficient reasons for consecutive sentencing for any of the defendants. For
reasons which we will explain, we agree with the analysis of the parties. In sentencing, the court
found that Roberson was “a dangerous person and . . . a danger to this society and to this area” and
ordered that Driver’s sentences be served consecutively because of “the nature of the crime and the
charges being involved here in the several incidents that we had arising out of one set of facts.” No
reason was given for sentencing Parker to consecutive sentences. At the hearing on the defendants’
motion for a new trial, the court offered a further explanation for consecutive sentencing, stating that
all three defendants “were dangerous people and that they were in their capacity of being dangerous
people should be sentenced consecutively [sic].” Tennessee Code Annotated section 40-35-115
allows consecutive sentences to be imposed when the sentencing court finds by a preponderance of
the evidence 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.” Tenn. Code Ann. § 40-35-115(b)(4).

       We agree with the defendants and the State that the trial court did not make sufficient
findings to justify imposition of consecutive sentences. Accordingly, we remand to the trial court
for a determination as to whether the defendants’ sentences should be served concurrently or
consecutively.

                         III. Whether the Trial Court Erred by Not Timely
                         Disclosing its Prior Relationship with Stanley Kline
        Parker argues that his right to a fair trial was abridged because the court, after the trial had
begun, disclosed its prior relationship with witness-victim Stanley Kline, saying “this disclosure
should have been made prior to trial in order to give counsel for [Parker] the ability to file or even
consider a motion for the judge to have rescued [sic] himself.”4 See Tenn. Ct. Crim. App. R. 10(b)
(2006); State v. Maddin, 192 S.W.3d 558, 561 (Tenn. Crim. App. 2005) (stating that “[w]hen an
issue is raised for the first time on appeal, it is typically waived”). We note that, since Mr. Kline is
an attorney practicing in Memphis, it is not unexpected that the court was acquainted with him. No
reference is made to the record as to where in the lengthy trial this matter was discussed or argued
by counsel at the time. Accordingly, this issue is waived.

                                                CONCLUSION
         Based upon the foregoing authorities and reasoning, we remand to the trial court for
resentencing of Parker for the aggravated assault of Jeffery Calvin; for resentencing of Driver for
facilitation of the aggravated assault of Jeffrey Calvin; for resentencing of Roberson as to the
aggravated assaults of Jeffrey Calvin and Louis Kline; and for a determination as to whether the
defendants’ sentences should be served concurrently or consecutively and, if the latter, appropriate
findings of fact.

                                                               ___________________________________
                                                               ALAN E. GLENN, JUDGE

         4
          W e note that, at the hearing on the motion for new trial, the trial court acknowledged knowing Mr. Kline on
a professional basis but stated there had been no conversation about the case.

                                                        -11-
