         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs October 24, 2007

      STATE OF TENNESSEE v. KATIA LENEE HARRIS A/K/A FUZZY

                  Direct Appeal from the Circuit Court for Marshall County
                             No. 17290 Robert Crigler, Judge



                No. M2006-02611-CCA-R3-CD - Filed November 16, 2007



The Defendant, Katia Lenee Harris a/k/a Fuzzy, pled guilty to one count of aggravated robbery. The
trial court sentenced her to ten years confinement based on the application of three enhancement
factors. On appeal, the Defendant contends the trial court erred when sentencing her. We conclude
the trial court erred in enhancing the Defendant’s sentence based on enhancement factors (1) and
(10). Thus, we modify the Defendant’s sentence to nine years.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which J.C. MCLIN , J., joined.
JOSEPH M. TIPTON , P.J., filed a separate opinion, concurring in part and dissenting in part.

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the Appellant, Katia Lenee Harris a/k/a
Fuzzy.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Cameron L. Hyder, Assistant Attorney General; Charles F. Crawford, District Attorney General;
Weakley E. Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION
                                             I. Facts

       The Defendant pled guilty to aggravated robbery, a Class B felony, after she and three friends
robbed a pizza delivery man on July 25, 2006. Two individuals, the Defendant and Fasonia Radley
a/k/a Rudy, were adults and were processed through Marshall County Circuit Court. They acted as
“lookouts” while two other individuals, both juveniles, waited behind a house to commit the robbery.
We refer to the juveniles by their initials, P.F. and J.R., as is custom in this Court.

       P.F., Radley, and the Defendant decided to commit the robbery because, as the Defendant
stated, Radley “wanted some money for some drugs.” P.F. claimed he needed the money “so [he]
could go see his sick grandmother.” Radley said they decided to commit the robbery because the
Defendant’s “children needed some food.” It appears that P.F. was in possession of a gun, which
he planned to use in the robbery. Radley stated, P.F. “already had a pistol - it was black and an
automatic. I think it was a BB gun but I am not for sure. I don’t know where [P.F.] got the gun. The
whole time we were talking about it he kept saying, ‘I already have a gun.’” P.F. called the gun a
“toy gun.” Radley ultimately called Pizza Hut and ordered $60.03 worth of pizza, cheese sticks, hot
wings, and soda. Radley used another friend’s cell phone when ordering. She directed the pizza
man to a vacant house where they planned to wait.

        When the pizza man arrived to make his delivery, the Defendant and Radley were waiting
for him at the end of the driveway. They told the victim to proceed to the back of the house to
retrieve his money and drop off the pizza; P.F. and the additional juvenile, J.R., were waiting for the
victim there. The Defendant served as a lookout at the driveway to make “sure nothing happened
or that any police showed up.” As the Defendant further explained in her statement to the police,
“I heard [an accomplice] say, ‘Just lay it down, man, just lay it down.’ I heard the pizza man say,
‘Just don’t hurt me.’” Minutes later, the pizza man hurried to his car and drove away “real fast.”
Five minutes later, the four met up again at a friend’s house. J.R. brought the pizza, while P.F.
arrived with the money. When the group left the friend’s house, they left one pizza for the children
who were there. P.F. then gave the Defendant three dollars for cigarettes.

        At the sentencing hearing, Beth Flatt of the Tennessee Board of Probation and Parole testified
that the Defendant claimed she did not know a weapon would be used in the robbery. Flatt testified
that three of the individuals, including the Defendant, began the night by discussing how they could
obtain money. They somehow determined robbing the pizza delivery man would be the best option.
Flatt further testified that, although the Defendant claimed she wanted to return to her six children
if she were allowed to avoid jail, she was not actually responsible for any of her children at the time
of the crime. Flatt also described the Defendant’s employment at sporadic.

        On cross-examination, Flatt testified that there was no evidence that the Defendant ever
possessed the gun. However, Flatt stated that there were statements by the other individuals
indicating that the Defendant was present when the group hatched the plan and when they discussed
the need for a gun.

        The Defendant testified that she was twenty-four years old, with six children. She stated that,
prior to her arrest, she maintained custody of four of the six children. The Defendant stated that she
was involved in the initial discussion of the robbery. “At first I told them ‘no,’ and then, I was like,
‘well, yeah, why not? I will be the lookout.’” The Defendant stated that, when the pizza man
arrived, Radley escorted him around the house. She stated that she did not see the “BB gun” until
after the robbery. The Defendant testified she did not eat any of the food, and P.F. only gave her $3
for cigarettes. The Defendant next admitted she pled guilty to theft under $500 in Davidson County
in 2004. She stated she did not pay court costs because she did not have any money. The Defendant
stated, “I feel I could have been a better adult. I do have six kids. I could have thought before I did


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it, did anything wrong. I am sorry for doing it. I am sorry for ever being involved in it.”

        On cross-examination, the Defendant stated she had not worked in the year prior to the
robbery. She stated she was being supported by a boyfriend and food stamps. She did not ask her
boyfriend to give her money to buy cigarettes because “being in that robbery was just something I
wanted to do.” The Defendant stated the group discussed the robbery for about an hour prior to
executing it. When asked how she thought P.F. and J.R. were going to obtain the money and food,
the Defendant responded, “I thought he was going to use a weapon he found behind the house. I
didn’t know a gun or a BB gun, toy gun was going to be involved.” She understood there would be
a weapon involved, but she did not know the weapon would be a gun.

        The Defendant testified the previous conviction for theft under $500 stemmed from her friend
stealing clothes from a Nashville mall. The Defendant explained that the incident occurred in 2000,
but it was not disposed of until 2004. This was because the Defendant never returned to court after
being arrested. She was ultimately found in 2004 after a dispute where the police were called. The
Defendant further admitted that her children were in a nearby house during the robbery, and they
could have seen her had they looked out the window.

        The trial court determined the Defendant was not eligible for probation under Tennessee
Code Annotated section 40-35-303. Additionally, the Defendant was not eligible for community
corrections under Tennessee Code Annotated section 40-36-106(e)(3). The trial court gave “some
benefit” to mitigating factor thirteen – the “catch-all” mitigating factor – because the Defendant
confessed to the crime.

        In addressing enhancing factors, the trial court determined the Defendant had a previous
history of criminal convictions or criminal behavior – the Defendant was previously convicted of
theft under $500 and she confessed to using marijuana “once or twice.” The trial court also stated,
“I am going to consider this addendum about the juvenile,” but, because none of the acts committed
as a juvenile would constitute felonies if the Defendant was an adult, enhancement factor sixteen did
not apply. See T.C.A. § 40-35-116(16) (2006). However, the court stated, “I am going to place
some weight on that, on this addendum. It is lengthy.” The court considered this with regards to
enhancement factor one – a previous history of criminal convictions or criminal behavior. See
T.C.A. § 40-35-114(1) (2006). The trial court also enhanced the Defendant’s sentence because she
had no hesitation about committing a crime where the risk to human life was high. See T.C.A. § 40-
35-114(10) (2006). Finally, the trial court enhanced the Defendant’s sentence based on the fact that
it was committed to “gratify the defendant’s desire for pleasure or excitement,” because she stated,
“This was just something I wanted to do.” T.C.A. § 40-35-114(7). The trial court determined ten
years would be an appropriate sentence.

                                           II. Analysis

       On appeal, the Defendant alleges the trial court erred in sentencing her to ten years
confinement. When a defendant challenges the length, range or manner of service of a sentence, this


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Court must conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” T.C.A. § 40-35-401(d) (2006). As
the Sentencing Commission Comments to this section note, the burden is now on the appealing party
to show that the sentencing is improper. T.C.A. § 40-35-401, Sentencing Comm’n Cmts. This
means that if the trial court followed the statutory sentencing procedure, made findings of facts
which are adequately supported in the record and gave due consideration to the factors and principles
that are relevant to sentencing under the 1989 Sentencing Act, T.C.A. § 40-35-103 (2006), we may
not disturb the sentence even if a different result was preferred. State v. Ross, 49 S.W.3d 833, 847
(Tenn. 2001). The presumption does not apply to the legal conclusions reached by the trial court in
sentencing a defendant or to the determinations made by the trial court which are predicated upon
uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler,
900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim.
App. 1994). Because the trial court erroneously applied two of the three enhancement factors it
considered, we will review the sentence de novo without a presumption of correctness.

         In conducting a de novo review of a sentence, we must consider: (1) any evidence received
at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing, (4)
the arguments of counsel relative to sentencing alternatives, (5) the nature and characteristics of the
offense, (6) any mitigating or enhancement factors, (7) any statements made by the defendant on his
or her own behalf and (8) the defendant’s potential or lack of potential for rehabilitation or treatment.
See T.C.A. § 40-35-210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

        Specifically, the Defendant alleges the trial court erred in enhancing the Defendant’s sentence
based on juvenile offenses that would not constitute felonies if committed as an adult, based on the
Defendant having committed the robbery to gratify the Defendant’s desire for pleasure or excitement,
and because there was no risk to life other than the victim. See T.C.A. § 40-35-114(1), (7), & (10)
(2006).

         Enhancement factor (1) states, “The Defendant has a previous history of criminal convictions
or criminal behavior, in addition to those necessary to establish the appropriate range.” The trial
court took into account three things in enhancing based on this factor: (1) the Defendant’s conviction
of theft under $500; (2) the Defendant’s admitted use of marijuana; and (3) the Defendant’s juvenile
record. The Defendant addresses the trial court’s use of her juvenile record in her argument.

        In State v. Jackson, the Tennessee Supreme Court considered whether enhancement factors
(1) and (20) were mutually exclusive. 60 S.W.3d 738, 742 (2001). The Court stated, “Because the
legislature is not presumed to have passed or enacted useless legislation, factor (1) must necessarily
apply only to adult criminal conduct, and factor (20) [as amended, factor (16)] must apply
exclusively to juvenile adjudications of delinquent acts.” Id. (internal citation omitted). Because
enhancement factor (1) only applies to adult conduct, the trial court impermissibly considered the
Defendant’s juvenile record with respect to this factor.

        It may be possible to consider the Defendant’s juvenile record under the aforementioned


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enhancement factor (16) which states, “The defendant was adjudicated to have committed a
delinquent act or acts as a juvenile that would constitute a felony if committed by an adult.” T.C.A.
§ 40-35-114(16) (2006). However, our review of the Defendant’s juvenile record shows that none
of the nineteen counts would have resulted in a felony had she been an adult. Thus, the trial court
improperly considered the Defendant’s juvenile record in enhancing her sentence.

       Next, the Defendant challenges the trial court’s application of enhancement factor (7): “The
offense involved a victim and was committed to gratify the defendant’s desire for pleasure and
excitement.” T.C.A. § 40-35-114(7) (2006). The Defendant cites State v. Anthony T. Jones for the
following proposition:

        In this case, while there was evidence that Appellant and the others committed the
        aggravated robbery in order to use the proceeds to obtain pleasure by purchasing and
        then consuming marijuana, there was absolutely no evidence that Appellant
        participated in the aggravated robbery in order to obtain pleasure or excitement from
        the robbery itself.

No. 03C01-9807-CR-00245, 1999 WL 538389, at *6 (Tenn. Crim. App., at Knoxville, July 14,
1999), no Tenn. S. Ct. R. 11 application filed. We find the Jones case distinguishable in that the
Defendant testified that, “being in that robbery was just something I wanted to do.” Because the
Defendant’s statement expresses desire to commit the robbery, not simply reap the rewards of the
robbery, it was not error to apply this enhancement factor.

        Next, the Defendant alleges error in the trial court’s application of enhancement factor (10),
“The defendant had no hesitation about committing a crime when the risk to human life was high.”
At the sentencing hearing, the State argued in support of this factor, focusing on the Defendant’s lack
of hesitation. Even assuming the Defendant lacked hesitation in committing this offense, we find
that fact somewhat beside the point. This enhancement factor is inherent in the crime of aggravated
robbery, unless the crime put individuals in addition to the victim at risk. State v. King, 905 S.W.2d
207, 213 (Tenn. Crim. App. 1995) (“This Court has previously held that absent any proof
establishing risk to life other then [sic] the victim’s . . . [factor (10) is an] essential element[ ] of
[aggravated robbery] and, therefore, inappropriate.”) (quotations omitted), overruled on other
grounds by State v. Williams, 997 S.W.2d 101 (Tenn. 1998); State v. Hicks, 868 S.W.2d 729, 732
(Tenn. Crim. App. 1993), overruled on other grounds by State v. Williams, 997 S.W.2d 101 (Tenn.
1998).

        There is evidence in the record that at least one individual was outside his house when the
victim arrived to deliver his pizza. However, the victim was escorted behind the vacant house,
where he was robbed. There is no evidence anyone besides the victim saw the robbery or was
threatened by the robbery. Thus, we conclude the trial court inappropriately applied this
enhancement factor.

        In support of the trial court’s decision to enhance the Defendant’s sentence, the State


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presented evidence the Defendant had one conviction for theft under $500. The Defendant admitted
she used marijuana and, although not used in support of enhancement, the Defendant also admitted
she failed to appear in response to the theft charge for four years. She was ultimately arrested after
a verbal altercation where the police were called. All of these support enhancement factor (1) –
criminal convictions or criminal behavior. Additionally, as the trial court found, the Defendant
committed this crime for pleasure or excitement.

        The trial court determined that mitigating factor (13) applied – the “catch-all” mitigating
factor – because the Defendant confessed to committing the crime. We would set the Defendant’s
sentence at ten years, but for the applicable mitigating factor. Like the trial court, we find that factor
applies, and we give it slight weight, thus reducing the Defendant’s sentence from ten years to nine
years. See T.C.A. § 40-35-210(c) - (e) (2006).

                                           III. Conclusion

        In accordance with the foregoing authorities and reasoning, we affirm as modified the
judgment of the trial court. This case is remanded to the trial court for a judgment to be entered
reflecting the Defendant is sentenced to nine years of incarceration, as a Range I offender.


                                                               _______________________________
                                                               ROBERT W. WEDEMEYER, JUDGE




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