            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE
                                                         FILED
                                                          January 6, 1999
                            OCTOBER 1998 SESSION
                                                        Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk

STATE OF TENNESSEE,             *   C.C.A. NO. 03C01-9710-CC-00447

      APPELLEE,                 *   BLOUNT COUNTY

VS.                             *   Hon. D. Kelly Thomas, Jr., Judge

TYRIS HARVEY,                   *   (Robbery)

      APPELLANT.                *




For Appellant:                      For Appellee:

Mack Garner                         John Knox Walkup
Office of the Public Defender       Attorney General and Reporter
Fifth Judicial Circuit              450 James Robertson Parkway
421 High Street                     Nashville, TN 37243-0493
Maryville, TN 37804
                                    Elizabeth B. Marney
Gerald L. Gulley, Jr.               Assistant Attorney General
Contract Appellate Defender         425 Fifth Avenue North
P.O. Box 1708                       Nashville, TN 37243-0493
Knoxville, TN 37901-1708
                                    Kirk Andrews and Lisa McKenzie
                                    Assistant District Attorneys General
                                    363 Court Street
                                    Maryville, TN 37804



OPINION FILED: ____________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Tyris Harvey, was charged with one count of robbery,

one count of theft, and five counts of delivery of cocaine of various amounts. After

pleading guilty to all charges except the robbery, he was convicted of that offense in

a jury trial. The trial court imposed a three year sentence for robbery. The trial court

also imposed an eleven month, twenty-nine day sentence for theft of property, four

years at Range I for three Class C felony cocaine convictions, and eight years at

Range I for two Class B felony cocaine convictions. The sentences for the Class B

felony cocaine convictions were consecutive to the sentences for the Class C felony

cocaine convictions and the robbery and theft sentences were to be consecutive to

the Class B felony sentences. The effective sentence is, therefore, fifteen years.

The defendant was fined fourteen thousand five-hundred dollars.



              In this appeal of right, the defendant presents the following issues for

review:

              (I) whether the evidence was sufficient to sustain the
              jury's conviction for robbery;

              (II) whether the trial court erred by imposing consecutive
              sentences; and

              (III) whether the trial court erred by failing to sentence the
              defendant to a community corrections program.



              We affirm the judgment of the trial court.



              In July 1996, the defendant, Tyris Harvey, while at the residence of

Betty Jean Allen, robbed the victim, Ed Blair, of his billfold. Blair, who was there to

purchase a vacuum cleaner from Ms. Allen, had paid Ms. Allen and was returning

his billfold to his pocket when the defendant struggled to take the billfold. Ms. Allen

testified that the struggle ensued for two to three minutes.

                                            2
              The victim, who was seventy-eight when the robbery occurred, testified

that the defendant grabbed his billfold from behind. Sometime after the struggle,

the victim noticed his left arm was bleeding. The victim could not remember how his

arm was injured and did not seek medical attention.



              Billy Radford testified that the victim had stopped his vehicle to ask if

he had seen someone running down the road. Radford described the victim as

having labored breathing; he recalled the victim saying he had emphysema.

Radford, who also noticed blood on the victim's arm, pointed out to the victim where

he had seen someone running along the roadway.



              Larry Stevens testified that he saw the defendant run across several

yards. He also saw the victim drive to a stop sign and then slump over his steering

wheel. When Stevens approached the car, he noticed that the victim's arm was

bleeding profusely. The victim stated that he had just been robbed and that he

thought he was having a heart attack.



                                            I

              The defendant first complains that there was insufficient evidence to

sustain a conviction for robbery. He contends that no robbery was committed

because violence was not part of the crime. Moreover, he contends that no robbery

was committed because the victim was not in fear.



              On appeal, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are


                                            3
matters entrusted to the jury as triers of fact. Byrge v. State, 575 S.W.2d 292, 295

(Tenn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the

relevant question is whether, after reviewing 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. State v. Williams, 657 S.W.2d 405, 410 (Tenn.

1983); Tenn. R. App. P. 13(e).



              Robbery is defined as "the intentional or knowing theft of property from

the person of another by violence or putting the person in fear." Tenn. Code Ann. §

39-13-401. While the term "violence" is not defined in our criminal code, this court

has previously approved the definition set forth in Funk and W agnall's Standard

Desk Dictionary (1977): "physical force unlawfully exercised." See State v. Black,

745 S.W.2d 302, 304 (Tenn. Crim. App. 1987); see also Black's Law Dictionary

1570 (6th ed. 1990) (defining "violence" in part as the "[u]njust or unwarranted

exercise of force").



              In State v. Alonzo Tony Watson, the defendant snatched money and a

check back from a cashier. No. 01C01-9606-CC-00260, slip op. at 7 (Tenn. Crim.

App., at Nashville, Jan. 14, 1998). This court, applying the definition of violence set

out in the preceding paragraph, held that the defendant's actions constituted

robbery, because he used physical force to take the money. Id., slip op. at 7.



              In State v. Tony Fitz, the defendant pushed the victim backwards into

a wall and then grabbed money out of a cash register. No. 02C01-9712-CC-00486,

slip op. at 5 (Tenn. Crim. App., at Jackson, October 19, 1998). Using the

established definition of violence, this court ruled that there was the requisite

"violence" because the defendant's actions permitted him to grab money out of the


                                            4
open cash register. Id., slip op. at 5.



              Ms. Allen, the eye-witness to the crime, testified that the defendant

and the victim struggled over the control of the billfold. Although the victim could not

remember how he injured his arm, there is sufficient circumstantial evidence that the

injury occurred during the struggle. Thus, the theft involved violence ("physical force

unlawfully exercised") and, in our view, a rational trier of fact could have found the

essential elements of the crime of robbery beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307 (1979).



              Because the robbery statute is written in the disjunctive, requiring the

state to prove that the theft was accomplished either by violence or by putting the

person in fear, the evidence is sufficient to establish the robbery.



                                            II

              The defendant's second complaint is that the trial court erred by

imposing consecutive sentences. The defendant argues the trial court committed

error by considering improper criminal history of the defendant, by considering the

defendant to be a "dangerous offender," by considering the defendant to have

committed the offense while on probation, and by considering the defendant

satisfied any other criteria set forth in Tenn. Code Ann. § 40-35-115(b). We

disagree.



              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


                                            5
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.



              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


                                           6
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
                  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


        1
           The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.

                                                       7
              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.



              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).



              The trial court imposed consecutive sentences on the basis that the

defendant had a record of extensive criminal activity. In imposing consecutive

sentences, the trial judge stated as follows:


                                           8
                      I have considered all of the things that cases say
              you're supposed to consider in determining the sentence
              and the manner of service ... Mr. Tyris's statement, the
              presentence report, the testimony at trial, the sentencing
              principles and the code, likelihood or potential for
              rehabilitation ... and nothing of that suggests anything
              other than that the sentence should [not] be served out in
              the community. His criminal history starts back before
              age eighteen and continues, without ceasing, to now.
              He's been on ... violated parole and probation. The
              likelihood of rehabilitation is poor because of that. He's
              continued to break the law after being in prison for a long
              time, which is something I can't understand, but that's
              what he's done. Because I would think prison would be a
              pretty horrible experience.
                      These are serious offenses that would be greatly
              depreciated without confinement. What we're talking
              about here is five different incidents of delivering
              cocaine. His offenses involved ... he has a history of
              offenses that involve potential of personal injury to
              people.



               The defendant argues that the trial court improperly considered the

criminal history of the defendant in imposing consecutive sentences. While

conceding that it is unclear from the record, the defendant contends that the trial

judge improperly relied on the various charges in this case to which the defendant

plead guilty, including the five convictions for delivery of cocaine, in determining that

the defendant had a record of extensive criminal activity. The defendant argues that

none of the cocaine offenses can be counted because, by the words of the statute,

the defendant must have been convicted of the prior felonies before he committed

the crime for which he is being sentenced.



              In State v. Blouvett, 904 S.W.2d 111 (Tenn. 1995), our supreme court

ruled that the legislature intended for a "prior conviction" to be a "conviction that has

already been adjudicated before the commission of the offense at issue." Id. at 113.

Thus, none of the five cocaine offenses could be considered. Yet, the record is

unclear whether the trial judge considered the other convictions in this case.


                                            9
               In questions on sentencing issues, the judgment of the trial judge, who

saw and heard the defendant firsthand and properly considered the statutory

principles, is entitled to the presumption of correctness. Ashby, 823 S.W.2d at 169.

The trial court found that the defendant had a criminal history that started before he

reached the age of eighteen and has continued until now. This included a first

degree criminal sexual conduct conviction in 1986 in Michigan for which the

defendant was sentenced to ten years incarceration. In 1992, the defendant was

released on parole. Soon after his release, the defendant was placed back in prison

because he violated his parole. In November 1995, the defendant was released

after serving his ten year sentence. In August 1996, the defendant was arrested for

the robbery of the victim. While released on bail on the robbery charge, the

defendant was convicted of domestic assault and shoplifting. Even without the

consideration of the five cocaine offenses and the theft, this record, in our view, is a

sufficient basis for the determination that the defendant has an extensive record of

criminal activity.



               When a defendant falls within the statutory classifications for eligibility

to be considered for consecutive sentencing, the only remaining considerations are

whether (1) the sentences are necessary in order to protect the public from further

misconduct by the defendant and (2) "the terms are reasonably related to the

severity of the offenses." Wilkerson, 905 S.W.2d at 938.



               We hold that trial court had a basis for concluding that consecutive

sentences are necessary to protect the public. The defendant has shown little

promise of rehabilitation, as these crimes were committed only about a year after he

was released from prison. "Further misconduct" by the defendant appears to be

likely, unless he is incarcerated. Due to his criminal record and his failure to


                                            10
demonstrate any rehabilitative qualities, we must also conclude that the effective

sentence is reasonably related to the severity of the offenses.



              The defendant also argues that the trial court erred by considering the

defendant to be a "dangerous offender" in imposing consecutive sentences. The

trial court, however, made no finding that the defendant was a "dangerous offender."

Instead, the trial court stated that the offenses for which the defendant was being

sentenced involved the potential of personal injury to others in the specific context of

denying the defendant sentencing under the Community Corrections Act. Thus, this

claim is without merit.



              The defendant also argues the trial court erred in the imposition of

consecutive sentencing by considering the offense to have been committed while on

probation. There is nothing in the record to support this contention. As the

transcript of the sentencing hearing clearly shows, the trial court merely noted the

extent of the defendant's criminal history and his violations of parole and probation

as reasons for denying community corrections as an alternative sentence. Thus,

this contention is without merit.



              The defendant argues the trial court erred by considering any other

criteria set forth in Tenn. Code Ann. § 40-35-115(b) in imposing consecutive

sentences. In our view, the trial court found the defendant had an extensive record

of criminal activity. Because there is nothing in the record to suggest the trial judge

considered any other criteria of Tenn. Code Ann. § 40-35-115(b), this issue is

without merit.




                                           11
                                           III

              The defendant's third complaint is that the trial court erred by failing to

sentence the defendant to a community corrections program. While the defendant

concedes that he would not be eligible for placement in a Community Corrections

program due to his robbery conviction, which under Tenn. Code Ann. § 40-36-

106(a)(2) is a "crime against the person as provided in title 39, chapter 13, parts 1-

5," he contends that he is eligible for consideration under Tenn. Code Ann. § 40-36-

106(c) providing consideration for persons with histories of drug or substance abuse

and for whom community placement and treatment would be a benefit.



              The purpose of the Community Corrections Act of 1985 was to provide

an alternative means of punishment for "selected, nonviolent felony offenders in

front-end community based alternatives to incarceration." Tenn. Code Ann. §

40-36-103(1). The Community Corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant

meets the minimum requirements of the Community Corrections Act of 1985,

however, does not mean that he is entitled to be sentenced under the act as a

matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App. 1987).



              The following offenders are eligible for Community Corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as
              provided in title 39, chapter 2 [repealed], parts 1-3 and
              5-7 or title 39, chapter 13, parts 1-5;

              (3) Persons who are convicted of non-violent felony
              offenses;


                                           12
              (4) Persons who are convicted of felony offenses in
              which the use or possession of a weapon was not
              involved;

              (5) Persons who do not demonstrate a present or past
              pattern of behavior indicating violence;

              (6) Persons who do not demonstrate a pattern of
              committing violent offenses; and

              (7) Persons who are sentenced to incarceration or on
              escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a).



              The defendant is not eligible for Community Corrections because

Tenn. Code Ann. § 40-36-106(2) precludes those convicted of crimes against a

person under title 39, chapter 13, parts 1-5 from participating in the program.

Robbery is a crime against a person. State v. Rhonda Lorraine Hanke, No. 03101-

9707-CC-00254, slip op. at 3 (Tenn. Crim. App., at Knoxville, Aug. 20), perm to app.

filed (October 19, 1998). Under the special needs provision of the Act, some

individuals who commit crimes against the person may be placed on Community

Corrections if they have special needs arising from alcohol or drug abuse for which

treatment is available. Tenn. Code Ann. § 40-36-106(c).



              The 1989 Act does provide that the record of the sentencing hearing

"shall include specific findings of fact upon which application of the sentencing

principles was based." Tenn. Code Ann. § 40-35-209(c). And, while we

acknowledge that de novo appellate review does not relieve the trial judge from

compliance with the provisions of Tenn. Code Ann. § 40-35-209(c), we are

nonetheless able to conclude that the record is adequate to support the denial of an

alternative sentence.



              In denying a Community Corrections sentence, the trial judge stated:

                                           13
              I have considered all of the things that cases say you're
              supposed to consider in determining the sentence and
              the manner of service ... Mr. Tyris's statement, the
              presentence report, the testimony at trial, the sentencing
              principles and the code, likelihood or potential for
              rehabilitation ... and nothing of that suggests anything
              other than that the sentence should [not] be served out in
              the community.



              The 1989 Act necessarily embodies the exercise of discretion at the

trial court level. See State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App.1991).

Sentencing requires an individualized, case-by-case approach. State v. Moss, 727

S.W.2d 229, 235 (Tenn. 1986). Confinement is often necessary to protect society

from a defendant with a lengthy history of criminal conduct and when alternative

sentences have been unsuccessful. Tenn. Code Ann. § 40-35-103(1)(A)-(C). In

Ashby, the supreme court held that it was "not the policy ... to place trial judges in a

judicial straight-jacket...." 823 S.W.2d at 171. The presumptive correctness

standard of appellate review has a sound basis. In matters of sentencing, so long

as the statutory guidelines have been met, our supreme court has expressed a

general reluctance "to interfere with [trial courts'] traditional discretionary powers."

Id.



              The defendant testified at the sentencing hearing that he desired help

with his drug and alcohol abuse problems. It is our view, however, that the record

fully supports the trial court's finding that the defendant had an extensive criminal

history and that past efforts to rehabilitate him by applying measures less restrictive

than confinement had been unsuccessful. The presumptive standard prevails here

on whether confinement, rather than sentencing under the Community Corrections

Act, is the better alternative.



              Accordingly, the judgment of the trial court is affirmed.

                                            14
                                 __________________________________
                                 Gary R. Wade, Presiding Judge

CONCUR:



______________________________
David H. Welles, Judge



______________________________
Thomas T. W oodall, Judge




                                 15
