        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs May 26, 2010

              STATE OF TENNESSEE v. DEBORAH N. COTTER

             Direct Appeal from the Criminal Court for Hamblen County
                     No. 08CR221     John F. Dugger, Jr., Judge




               No. E2009-01849-CCA-R3-CD - Filed February 15, 2011


The appellant, Deborah N. Cotter, was convicted by a jury in the Hamblen County Criminal
Court of aggravated robbery and was sentenced to ten years in the Tennessee Department of
Correction. On appeal, she argues that the evidence is insufficient to support her conviction,
particularly because no witness identified her in court as the robber. She also contends that
the trial court erred in arriving at her sentence. Upon review, we affirm the judgment of the
trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

John S. Anderson, Rogersville, Tennessee, for the appellant, Deborah N. Cotter.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; C. Berkeley Bell, District Attorney General; and Kimberly Morrison, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       This case arises out of a robbery at a Morristown gas station. Edna Valez testified that
she had been a clerk at the Sunoco gas station on Buffalo Road for about four years. Around
3:45 a.m. on March 17, 2008, a woman came into the store and asked for a pack of cigarettes.
When Valez asked the woman for identification, she returned to her car. Valez presumed
that she was going to get her identification or a credit card.
        Valez testified that the woman returned with a sweatshirt partially covering her head
and carrying what appeared to be a gun under her shirt. The woman told Valez, “[W]e can
do this the easy way or the hard way.” Valez thought that the woman, whom she had never
seen before, had a gun. Valez testified she was afraid. Therefore, she gave the woman
approximately fifty dollars from the cash register. The woman left, and Valez immediately
called the store’s security company and the police.

       When the police arrived, Valez told them what had occurred. Four video cameras
recorded the events that night, but Valez was not shown the videos. The next day, Valez
went to the police station and identified in a photographic line-up the woman who robbed
her. She was “absolutely certain” that the person she identified was the robber. On cross-
examination, Valez testified that she did not recall the woman having any scars or tattoos on
her hands or face.

        Norma Caudill, the manager of the Sunoco, testified that she had worked at the gas
station for nearly fifteen years. The store’s security company called Caudill to inform her
of the robbery shortly after it occurred, and she went to the store.

       Caudill testified that the police officers had already arrived when she got there. She
watched the security camera videos with the officers and printed still photographs from the
videos. Caudill gave the officers the videos. She counted the money in the cash register and
discovered that there was approximately fifty dollars missing. She also allowed the officers
to investigate the counter for fingerprints.

       Chris Hall, an officer with the Morristown Police Department, testified that early on
March 17, he was dispatched to the Sunoco to investigate the robbery. Sergeant Hall
watched the footage from the security cameras. After viewing the videos, he told Detective
Mark McElhaney, who was in charge of the investigation, that he suspected the appellant was
the robber. On cross-examination, Sergeant Hall admitted that he did not compare the
appellant’s height to the height of the robber shown in the video.

        Lieutenant Tony Belisle testified that he had been with the Morristown Police
Department for about twenty-three years and that he supervised the department’s activities
at the Sunoco on the night of the offense. He watched the security camera videos and told
Detective McElhaney that he thought the robber was the appellant. Lieutenant Belisle had
seen the appellant a few weeks earlier. On cross-examination, Lieutenant Belisle said he was
aware that fingerprints were found at the scene, but he did not know if any of them matched
the appellant’s fingerprints.




                                             -2-
       Detective McElhaney testified that he was called to the Sunoco around 3:45 a.m. on
March 17 to investigate an armed robbery. When he arrived, he and other officers watched
the security camera videos. While Detective McElhaney was not familiar with the appellant,
Lieutenant Belisle and Sergeant Hall told him they thought she was the robber. Detective
McElhaney also spoke with Valez and Caudill about the incident. Caudill sent the security
camera videos to Detective McElhaney the next day.

        Detective McElhaney prepared a photographic line-up for Valez to examine. The day
after the robbery, Valez reviewed the line-up and identified the appellant as the robber.
Detective McElhaney testified that he did not tell Valez who to look for in the line-up or
pressure her to select anyone in the line-up. After Valez picked out the appellant’s
photograph, Valez and Detective McElhaney initialed and dated the photograph.

        Detective McElhaney then obtained a warrant for the appellant’s arrest, and officers
brought her to the police station. The appellant signed a waiver of her Miranda rights and
submitted to an interview. She denied involvement in the robbery and said she was at home
with her family, talking on the telephone around the time of the robbery. Because Valez had
told Detective McElhaney that the robber asked for a pack of Marlboro Red cigarettes when
she first entered the store, Detective McElhaney asked the appellant what brand of cigarettes
she smoked. She told him she smoked Marlboro Reds.

       Detective McElhaney testified that his interview with the appellant increased his
suspicion that she was the robber. In particular, Detective McElhaney thought it was
suspicious that the appellant admitted to being awake at the time of the offense, that she
smoked the same type of cigarettes requested by the robber, and that she wore shoes that
looked similar to those worn by the robber on the security videotapes.

       During his testimony, Detective McElhaney compared photographs of the appellant
to images of the robber obtained from the security cameras. However, on cross-examination
he admitted that he did not use the videos to estimate the robber’s height. He also
acknowledged that the shoes he obtained from the appellant had a large “N” on the side, but
no “N” was visible on the robber’s shoes in the videos. In addition, he testified that the
investigation revealed identifiable fingerprints on the counter near the cash register which
did not match the appellant’s fingerprints.

       On redirect examination, Detective McElhaney testified that he had been an officer
with the Morristown Police Department for approximately sixteen years. He testified that
he had been an evidence technician for several years and that he was familiar with searching
for fingerprints on gas station countertops. He explained that often the countertops were



                                             -3-
rarely cleaned, that the countertops usually contained numerous fingerprints, and that
fingerprints could remain on a countertop for several months.

       The defense called two witnesses. The first was the appellant’s mother, Rebecca
Cotter. She testified that she lived in a house with the appellant; the appellant’s six-year-old
son; and the appellant’s brother, Jason.1 The house was located approximately two miles
from the Sunoco.

        Rebecca testified that the appellant’s son was ill at the time of the offense and needed
attention throughout the night. She explained that he had enlarged tonsils that caused him
to “[lose] his breath at nighttime” and that family members took turns staying up to care for
him.

       Rebecca recalled that she was responsible for caring for the appellant’s son on the
night in question. She testified that the appellant and the appellant’s son, who shared a
bedroom, went to bed around 10:00 p.m. that night. She said Jason returned home from
socializing after evening church services around 12:30 a.m. Rebecca said that she went to
her bedroom around 1:00 a.m. to read and listen for her grandson. She tended to her
grandson around 2:00 a.m. and again at 3:15 a.m. The appellant was asleep in the room both
times. Rebecca returned to the appellant’s room around 4:45 a.m. to wake her. Rebecca was
not aware of the appellant ever leaving the house that night.

       On cross-examination, Rebecca admitted that she had been convicted of seven counts
of passing worthless checks in 2004.

       On redirect examination, Rebecca testified that the appellant had two scars on her
face. She also testified that Jason was the only family member who had a car at the time of
the offense.

       The appellant’s brother, Jason, testified that in March 2008 he was living with the
appellant and her son at Rebecca’s house. He said that he was the only person in the house
who had a car and that he kept the keys on the nightstand next to his bed.

        Jason testified that he returned from church and some post-church socializing around
11:00 p.m. that night As he walked to his room, he saw the appellant and her son asleep in
their room. Jason went into his room, shut the door, and read for a while. He recalled



       1
          Because the appellant, her mother, and her brother share the same surname, we refer to Rebecca
Cotter and Jason Cotter by their first names for clarity. We mean no disrespect to these individuals.

                                                  -4-
hearing Rebecca check on the appellant’s son during the night. Finally, Jason testified that
the appellant had two scars on her face.

       Based upon the foregoing, the jury found the appellant guilty of aggravated robbery.

       At the appellant’s sentencing hearing, the State submitted the appellant’s “Criminal
History Report” as an exhibit. The report revealed that the appellant committed two offenses
while on bond in the instant case. Additionally, the report revealed that she had numerous
prior convictions and that she had failed to complete previous probationary sentences.

       The appellant testified that she was twenty-eight years old and that she had a seven-
year-old son. She said that she had no prior felony convictions and that she had always
followed the rules for her prior probations. She asked the court to impose the minimum
sentence and said that she would abide by any rules imposed if she were given leniency.

       The trial court sentenced the appellant as a standard Range I offender to ten years of
confinement, noting that because of the nature of the offense, aggravated robbery, probation
was not an option. Further, the court found no mitigating factors applicable but found three
enhancement factors, namely (1) that the appellant “has a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate
range,” (8) that the appellant “has a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community,” and (10) that the appellant
“had no hesitation about committing a crime when the risk to human life was high.” See
Tenn. Code Ann. § 40-35-114(1), (8), and (10).

       The court also considered the need for deterrence. Moreover, the court noted that the
appellant had “been in and out of court, to be 28 years old, several times.” The appellant’s
criminal history led the court to conclude that she lacked the potential for rehabilitation.
However, the court stated that it was not going to impose the maximum sentence, explaining:

              [I]t was an aggravated robbery but it wasn’t as bad as some. I’ve
              had cases where . . . defendants hold knives to clerks and tell
              them they’re going to gut them like a fish and things like that. .
              . . This offense, the clerk testified that you said that we can do
              this the easy way or the hard way and you had something under
              your shirt and that she just opened up the cash register and
              handed you the money and you walked out and she walked over
              to the telephone. It was an in-and-out type of situation. Pretty
              uneventful. The jury didn’t think it was too eventful because
              they didn’t . . . set a fine. [In m]any cases . . . jury[ies] will

                                             -5-
              come back with a maximum fine when they’re mad, which gives
              me the clue that they’re upset about it and they want a serious
              sentence, but you do have three enhancement factors. But I
              don’t think this aggravated robbery [deserves] the maximum
              sentence, okay? Just the facts and circumstances. I mean, the
              jury came back with no fine. But still, other people need to be
              deterred from doing aggravated robberies. You have committed
              an offense while on bond. You do have a criminal history. So
              I’m going to set your sentence at ten years.

      The appellant appeals, arguing that the evidence was insufficient to support her
conviction and that the trial court erred in setting her sentence.

                                        II. Analysis

                              A. Sufficiency of the Evidence

       On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

       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(a). As
was charged in the instant indictment, a robbery is aggravated when it is “[a]ccomplished
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.” Tenn. Code Ann. § 39-13-402(a)(1).

        The evidence in the record, when viewed in the light most favorable to the State,
satisfies these elements. The evidence revealed that the second time the appellant came into
the Sunoco, she had partially covered her face and had what appeared to the clerk to be gun

                                              -6-
under her shirt. The appellant told the clerk, “[W]e can do this the easy way or the hard
way.” Certain the appellant had a gun, the clerk gave her approximately fifty dollars from
the cash register, and the appellant fled. The security camera videos corroborate the clerk’s
testimony. The foregoing evidence demonstrates that the appellant intentionally or knowing
stole money from the Sunoco by placing the clerk in fear and that she did so by displaying
what the clerk reasonably believed was a gun. See Tenn. Code Ann. §§ 39-13-401(a), -
402(a)(1). While the appellant produced alibi witnesses, the jury obviously discredited their
testimony. Because there was an adequate basis to do so, we defer to the jury’s decision.

        The appellant also contends that the State did not prove that she was the robber,
asserting that the victim failed to identify her as the perpetrator in the courtroom. However,
“[t]he identity of the defendant[] is a question of fact solely for the jury.” State v. Phillips,
728 S.W.2d 21, 25 (Tenn. Crim. App. 1986). The record reflects that the State’s witnesses
routinely referred to “Deborah Cotter” or “Tasha,” one of the appellant’s nicknames, as the
person who committed the robbery. Additionally, there were multiple photographs of the
individual who robbed the store, the individual who Valez identified in the photographic line-
up, and the individual the police subsequently arrested. The jury was free to compare the
photographs to each other, to the appellant, and to the witnesses’ testimony. Finally,
Detective McElhaney specifically referred to the appellant as “the defendant” during his
testimony. Based on the identity evidence in the record, we conclude that the State
adequately established the appellant was the robber.

                                        B. Sentencing

        The appellant next challenges the length of the sentence imposed by the trial court,
arguing she should have been sentenced to the minimum sentence of eight years. Appellate
review of the length, range, or manner of service of a sentence is de novo. See Tenn. Code
Ann. § 40-35-401(d). In conducting its de novo review, this court considers the following
factors: (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 enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in her own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-
102, -103, -210; see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is
on the appellant to demonstrate the impropriety of her sentence. See Tenn. Code Ann. §
40-35-401, Sentencing Comm’n Cmts. Moreover, if the record reveals that the trial court
adequately considered sentencing principles and all relevant facts and circumstances, this



                                               -7-
court will accord the trial court’s determinations a presumption of correctness. Id. at (d);
Ashby, 823 S.W.2d at 169.

       Although the trial court should consider statutory enhancement and mitigating factors,
they are advisory only. See Tenn. Code Ann. § 40-35-114; State v. Carter, 254 S.W.3d 335,
343-44 (Tenn. 2008). We note that “a trial court’s weighing of various mitigating and
enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable range
so long as the length of the sentence is ‘consistent with the purposes and principles of [the
Sentencing Act].’” Id. at 343. “[A]ppellate courts are therefore left with a narrower set of
circumstances in which they might find that a trial court has abused its discretion in setting
the length of a defendant’s sentence . . . [and are] bound by a trial court’s decision as to the
length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

        In the instant case, the trial court determined that the appellant was a standard Range
I offender. In determining the length of the sentence, the trial court applied three
enhancement factors and no mitigating factors. In particular, the court applied the following
enhancement factors: (1) that the appellant “has a previous history of criminal convictions
or criminal behavior, in addition to those necessary to establish the appropriate range,” (8)
that the appellant “before trial or sentencing[] failed to comply with the conditions of a
sentence involving release into the community,” and (10) that the appellant “had no
hesitation about committing a crime when the risk to human life was high.” Tenn. Code
Ann. § 40-35-114(1), (8), and (10).

       The record reflects that the appellant has a significant history of misdemeanor
convictions, including three convictions for fraudulent use of a credit card, two convictions
for theft of property less than $500, one conviction for driving under the influence, three
convictions for driving on a suspended license, and one conviction for possession of a
Schedule II drug. Therefore, we conclude that the trial court correctly found that the
appellant had a previous history of criminal convictions in addition to those necessary to
establish the sentencing range. Tenn. Code Ann. § 40-35-114(1).

       Additionally, the trial court found that the appellant had violated probation on at least
three prior occasions. Also, while on bond for the instant case, the appellant committed new
offenses for which she received a probationary sentence that was subsequently revoked.
Therefore, the record supports the trial court’s application of enhancement factor (8). Tenn.
Code Ann. § 40-35-114(8).




                                              -8-
        Regarding enhancement factor (10), the State concedes the trial court erred in finding
that the appellant “had no hesitation about committing a crime when the risk to human life
was high.” Tenn. Code Ann. § 40-35-114(10). The State acknowledges this factor is
inherent in the crime of aggravated robbery. We agree with the State and conclude the trial
court erred in applying this enhancement factor. See State v. Jones, 883 S.W.2d 597, 602
(Tenn. 1994).

       The appellant also argues that the trial court erred in not considering the following
mitigating factors:(1) that the appellant’s “criminal conduct neither caused nor threatened
serious bodily injury,” (6) that the appellant “because of youth . . . lacked substantial
judgment in committing the offense,” and (13) that the appellant had no history of violent
crime. Tenn. Code Ann. § 40-35-113(1), (6), and (13). We disagree. The trial court
considered the nature of the appellant’s conduct when arriving at the sentence imposed.
Further, the record does not reflect that the twenty-eight-year-old appellant lacked substantial
judgment because of her age. Moreover, although the appellant has no prior violent crimes,
she has a significant history of misdemeanor convictions.

        Although the trial court misapplied one enhancement factor, the court nevertheless
correctly found two enhancement factors applicable. The two other enhancement factors
justified a sentence increased beyond the minimum and, in fact, would have justified the
imposition of the maximum sentence. However, the trial court acknowledged the instant case
was not the most egregious case of aggravated robbery the court had seen and chose not to
impose the maximum sentence.

                                       III. Conclusion

       In sum, we conclude there is sufficient evidence to sustain the appellant’s conviction
and that the trial court did not err in imposing a sentence of ten years. Accordingly, we
affirm the judgment of the trial court.

                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




                                              -9-
