         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs June 19, 2002

              STATE OF TENNESSEE v. JOHN LESLIE GEORGE

                Direct Appeal from the Circuit Court for Williamson County
                       No. II-500-166-C    Timothy L. Easter, Judge


                   No. M2001-01213-CCA-R3-CD - Filed February 3, 2003


The Defendant was indicted for aggravated rape, aggravated robbery, and theft of property valued
over $500. The Defendant pled guilty to facilitation of aggravated rape and to aggravated robbery.
Following a hearing, the trial court sentenced the Defendant to eleven years for facilitation of
aggravated rape and to eleven years for aggravated robbery. Pursuant to the plea agreement, the trial
court ordered that the two sentences run concurrently. However, the trial court ordered that the
sentences run consecutively to prior sentences in Humphreys and Dickson Counties. The Defendant
now appeals, arguing that the trial court erred by imposing an excessive sentence. Finding no error,
we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN, JJ., joined.

John H. Henderson, Jr., District Public Defender (on appeal), and C. Diane Crosier, Assistant
District Public Defender, Franklin, Tennessee (at trial), for the appellant, John Leslie George.

Paul G. Summers, Attorney General; Elizabeth B. Marney, Assistant Attorney General; Ronald L.
Davis, District Attorney General; and Mary Katharine Harvey, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

                                 I. FACTUAL BACKGROUND

        The following evidence was presented at the sentencing hearing: Amanda Acey testified that
she worked as a cashier at the Highway 96 Market in Williamson County from March of 1999 until
the offenses in this case. She stated that she normally worked from 2:30 p.m. until 10:00 p.m. and
that she usually left the store around 10:30 p.m. Acey recalled that on January 10, 2000, her
boyfriend, Frank Powell, came to the store around 9:30 p.m. to keep her company until closing. She
reported that the business at the store was “real slow” that evening and that she and Powell were
sitting at a table in the store.

        According to Acey, just before closing time, the Defendant and a man named Chris Smith
entered the store to buy power steering fluid. Acey testified that Smith pointed a gun at them and
asked who was the cashier. She stated that the Defendant tried without success to open the cash
register. Acey testified that with Smith behind her, she stood up and opened the register. She
reported that Smith then told her and Powell to follow him, and he would not hurt them. Smith took
Acey and Powell to the back of the store. Acey testified that Smith motioned for Powell to go into
the women’s restroom, but Smith would not let Acey follow. She stated that Smith had his arm
around her throat.

        Acey testified that Smith took her into the men’s restroom, and the door automatically closed.
She recalled that once inside the restroom, Smith pointed the gun at her and told her that if she
screamed, he would kill her. Acey testified, “All I could do was beg him not to hurt me.” She
reported that Smith told her to get undressed. Acey testified that she eventually started to take off
her shirt and that by that time, Smith had already removed her pants. She stated that Smith pushed
her to the floor and removed his “hunter jumpsuit” down to his knees or ankles. Smith had placed
the gun on the sink. Acey testified, “He raped me.”

       Acey stated that it “seemed like an eternity” that they were in the restroom. She recalled
hearing someone outside the restroom beating on the door and telling Smith to hurry. Acey testified
that Smith put on his clothes and left the restroom. She reported that after Smith left, she heard Sgt.
Jerome Holt in the hallway. Acey stated that she put on her clothes and told Holt that Smith had
raped her. She recalled that Powell then called 911.

         Acey testified that the Defendant and Smith took approximately $600 and possibly some
cigarettes from the store. She stated that she never saw Timothy Moore, who was also indicted in
this case. Acey testified that her head and back were bruised from Smith pushing her to the floor
in the restroom. She further testified regarding the effects of the rape, “I’m afraid to walk out my
own door because I’m afraid that someone else is going to hurt me that way.” Acey stated that she
could not go back to work and that it was “hard to even go in a grocery store by [herself].” She
testified that she did not believe she would ever “get over” what happened to her. Acey stated that
rape is “the worst thing that can happen to any woman.” Finally, she testified that because she and
Powell complied with all the perpetrator’s instructions, Smith and the Defendant could have left the
store without hurting anyone.

        Captain Ricky Headley of the Fairview Police Department testified that he was the chief
investigator in this case. He stated that he took a written statement from the Defendant on January
14, 2000. In the statement, the Defendant admitted robbing the store. Headley testified that the
Defendant acknowledged that Smith went into the bathroom with Acey, but maintained that he did
not know about the rape until later. According to Headley, the Defendant knocked on the bathroom
door, but Smith did not immediately come out.


                                                 -2-
        Detective Michael Hooper of the Humphreys County Sheriff’s Department testified that he
was the lead investigator in a case in Humphreys County involving the Defendant, Smith, and
Moore. He testified that he had worked with investigators from Williamson, Dickson, and
Humphreys Counties to solve a series of robberies. Hooper stated that he interviewed the three men
after their arrests, and their statements were introduced into evidence. He testified that the crime
spree involving the Defendant, Smith, and Moore began on Thursday, January 6, 2000 when the
threesome robbed a store in Jackson, Tennessee. Hooper testified that the following night, the three
men robbed a store in Humphreys County and then robbed a store in Dickson County on Saturday
night. He testified that the robbery and rape in this case occurred on Monday, January 10, 2000.
Hooper testified that the three men were finally caught after they robbed a store in New Johnsonville
on Wednesday, January 12, 2000. Hooper reported that the same two men did not always go into
each store.

         Mary George, the Defendant’s mother, testified that she lived in Humphreys County. She
stated that she separated from the Defendant’s father when the Defendant was three or four years old
and that she never remarried. George testified that at some point, she was having “a hard time,” so
the Defendant went to live with her brother. George testified that while the Defendant was gone, she
tried to get a job. She testified that the Defendant had three brothers and one sister.

         George testified that the Defendant was a “good kid.” She stated that he generally behaved
and that he did well in school until he began skipping school in the ninth grade. George reported that
the Defendant was charged with truancy. She stated that the Defendant “just quit” school after the
ninth grade when he was seventeen years old. George maintained that there was no indication that
the Defendant had used drugs. She stated that she “couldn’t believe” what happened. George
testified that the Defendant was never violent and that he was seventeen years old at the time of four
out of five of the robberies. She stated that she thought the Defendant was sorry about what had
happened. On cross-examination, George testified that she was not aware that doctors who had
talked to the Defendant had stated that he had no remorse.

        Carolyn Reese, the Defendant’s aunt, stated that the Defendant had lived with her and her
husband for a period of time. She testified that the Defendant helped in her husband’s salvage yard
and that he did not cause any problems. Reese testified that the Defendant was remorseful for his
actions. On cross-examination, Reese acknowledged that she did not know about the Defendant’s
use of drugs and alcohol.

                                           II. ANALYSIS

        The Defendant argues that the trial court erred by sentencing him to eleven years for each
conviction and by ordering that the sentences run consecutively to prior sentences in Humphreys and
Dickson Counties. When a criminal defendant challenges the length, range, or manner of service
of a sentence, the reviewing court must 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). This
presumption, however, “is conditioned upon the affirmative showing in the record that the trial court


                                                 -3-
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). In the event that the record fails to show such consideration, the
review of the sentence is purely de novo. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App.
1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the
sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any
statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact 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). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

                                        A. Length of Sentence

        The Defendant argues that the trial court erred by sentencing the Defendant to eleven years
for each of his convictions. The presumptive sentence to be imposed by the trial court for a Class
B, C, D or E felony is the minimum within the applicable range unless there are enhancement or
mitigating factors present. Tenn. Code Ann. § 40-35-210(c). The presumptive sentence for a Class
A felony is the midpoint of the sentencing range unless there are enhancement or mitigating factors
present. Id. If there are enhancement or mitigating factors, the court must start at the presumptive
sentence, enhance the sentence as appropriate for the enhancement factors, and then reduce the
sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e). The weight to
be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d at 123.
However, the sentence must be adequately supported by the record and comply with the purposes
and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237 (Tenn.
1986).

      Enhancement factors must be “appropriate for the offense” and “not themselves essential
elements of the offense.” Tenn. Code Ann. § 40-35-114.
      The obvious purpose of these limitations is to exclude enhancement factors which
      are not relevant to the offense and those based on facts which are used to prove the
      offense. Facts which establish the elements of the offense charged may not also be


                                                  -4-
        the basis of an enhancement factor increasing punishment. The legislature, in
        determining the ranges of punishment within the classifications of offenses,
        necessarily took into account the culpability inherent in each offense.
State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994).

        When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the record in this
case indicates that the trial court adequately considered the enhancement and mitigating factors as
well as the underlying facts, our review is de novo with a presumption of correctness.

        In this case, because the Defendant pled guilty as a Range I, standard offender to two class
B felonies, the range of punishment is eight to twelve years for each offense. See Tenn. Code Ann.
§ 40-35-112(a)(2). The trial court found that the Defendant had “a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate range.”
Id. § 40-35-114(1). The trial court weighed this factor heavily and noted that the Defendant admitted
to using drugs since he was fifteen years old. Testimony at the sentencing hearing indicated that the
Defendant, Smith, and Moore used the proceeds from the robberies to buy drugs. In addition, the
offense in this case was part of a week-long crime spree involving four other robberies. We
conclude that the trial court properly applied this factor.

        The trial court also found that “[t]he offense involved more than one (1) victim.” Id. § 40-
35-114(3). The trial court noted that Amanda Acey and her boyfriend, Frank Powell, were both in
the store during the robbery. Acey testified that Smith forced Powell into the women’s bathroom
while he took her into the men’s bathroom and raped her. We conclude that the trial court properly
applied this factor.

           Regarding mitigation, the trial court found that the Defendant had shown remorse and that
he was willing to take responsibility for his actions. See id. § 40-35-113(13). However, the
Defendant argues that the trial court erred by not considering that the Defendant, “because of youth
. . . , lacked substantial judgment in committing the offense.” Id. § 40-35-113(6). “In determining
whether this factor is to be applied, courts should consider the concept of youth in context, i.e., the
defendant’s age, education, maturity, experience, mental capacity or development, and any other
pertinent circumstance tending to demonstrate the defendant’s ability or inability to appreciate the
nature of his conduct.” State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993). The Defendant’s
circumstances do not demonstrate an inability to appreciate the nature of his criminal conduct due
to age, and the record does not support the contention that the Defendant lacked substantial judgment
to appreciate the nature of his conduct. The offenses in this case were committed one day prior to
the Defendant’s eighteenth birthday. We conclude that the trial court properly declined to consider



                                                 -5-
this factor. We also conclude that the trial court properly weighed the enhancement and mitigating
factors in determining that the Defendant be sentenced to eleven years for each conviction.

                                     B. Consecutive Sentencing

        The Defendant also argues that the trial court erred by ordering that his sentences run
consecutively to prior sentences imposed in Humphreys and Dickson Counties. It is within the
sound discretion of the trial court whether or not an offender should be sentenced consecutively or
concurrently. State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984). A court may order
multiple sentences to run consecutively if it finds by a preponderance of the evidence that
                (1) [t]he defendant is a professional criminal who has knowingly devoted
        such defendant’s life to criminal acts as a major source of livelihood;
                (2) [t]he defendant is an offender whose record of criminal activity is
        extensive;
                (3) [t]he 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) [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;
                (5) [t]he defendant is convicted of two (2) or more statutory offenses
        involving sexual abuse of a minor with consideration of the aggravating
        circumstances arising from the relationship between the defendant and victim or
        victims, the time span of the 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) [t]he defendant is sentenced for an offense committed while on probation;
        or
                (7) [t]he defendant is sentenced for criminal contempt.
Tenn. Code Ann. § 40-35-115(b)(1)-(7). In addition to these criteria, consecutive sentencing is
subject to the general sentencing principles providing that the length of a sentence should be “justly
deserved in relation to the seriousness of the offense,” id. § 40-35-102(1), and “no greater than that
deserved for the offense committed.” Id. § 40-35-103(2); see also State v. Imfeld, 70 S.W.3d 698,
708 (Tenn. 2002).

        In determining that the Defendant’s sentences in this case should run consecutively to prior
sentences in Dickson and Humphreys Counties, the trial court found that the Defendant’s “record
of criminal activity is extensive.” Id. § 40-35-115(b)(2). The trial court noted that the offense in this
case was one of a series of robberies spanning almost a week. In addition, the Defendant admitted
that he had used various illegal drugs since he was fifteen years old. We conclude that the trial court
properly found that the Defendant had an extensive criminal history.



                                                  -6-
         The trial court also found that the Defendant was “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.” Id. § 40-35-115(b)(4). However, if the court concludes that a defendant
is a dangerous offender under Tennessee Code Annotated § 40-35-115(b)(4), it must make two
further determinations in addition to applying general sentencing principles. Imfeld, 70 S.W.3d at
708. First, it must find an extended sentence is necessary to protect the public from further criminal
conduct by the defendant, and, second, it must find consecutive sentencing to be reasonably related
to the severity of the offenses. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

        The trial court found that an extended sentence was necessary to protect the public from
further criminal conduct. The trial court noted that the Defendant went on a crime spree that
continued for almost a week and spanned four different counties. Evidence was presented that the
proceeds of the robberies went to purchase drugs. The trial court also found that a consecutive
sentence was reasonably related to the severity of the offense. See id. The Defendant and two others
robbed a convenience store at gunpoint. In addition, one of the co-defendants raped the cashier of
the convenience store. Evidence was presented that the Defendant was aware that the co-defendant
was alone with the cashier in the men’s bathroom. We conclude, as did the trial court, that 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. See Tenn. Code Ann.
§ 40-35-115(b)(4). We find no error by the trial court in sentencing the Defendant.

       Accordingly, the judgment of the trial court is AFFIRMED.



                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




                                                 -7-
