IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 2, 2001

STATE OF TENNESSEE v. ANTHONY LEON MOORE

 Appeal from the Circuit Court for Madison County

No. 00-134 Donald H. Allen, Judge

No. W2000-02862-CCA-R3-CD - Filed February 11, 2002

A Madison County Circuit Court jury convicted the defendant, Anthony Leon Moore, of aggravated

robbery, a Class B felony, and aggravated burglary, a Class C felony. The trial court sentenced him

as a Range II, multiple offender to consecutive sentences of fifteen years in the Tennessee

Department of Correction for the aggravated robbery conviction and ten years for the aggravated

burglary conviction. The defendant appeals, claiming that (1) the evidence is insufficient to support

his aggravated robbery conviction; (2) the trial court improperly enhanced his sentence for

aggravated burglary; and (3) the trial court improperly found him to be a dangerous offender and

ordered consecutive sentencing. We affirm the judgments of the trial court.

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

JOSEPH M.TIPTON,J., delivered the opinion of the court, in which GARY R.WADE,P.J., and ROBERT

W. WEDEMEYER, J., joined.

C. Michael Robbins, Memphis, Tennessee; George Morton Googe, District Public Defender; and

Vanessa D. King, Assistant Public Defender, for the appellant, Anthony Leon Moore.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;

James G. Woodall, District Attorney General; and Shaun Alan Brown, Assistant District Attorney

General for the appellee, State of Tennessee.

OPINION

This case relates to the robbery of Larry Felts. The victim testified that he was an art broker

and that on November 4, 1999, he was in Madison County on a business trip. He said that he was

staying in a first-floor room at the Comfort Inn in Jackson and that about 9:30 p.m., he was talking

on the telephone to a client. He said that he was smoking a cigarette and that he opened the room’s

sliding glass door to let in fresh air. He said that suddenly, the glass door slammed open. He said

that the defendant ran into his room and put a black handgun, with clear tape on its handle, to his

head. 
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The victim testified that he put the telephone down and told the defendant to take his money

and leave. He said that the defendant told him repeatedly that the defendant was going to kill him.

He said that the defendant picked up the telephone and that the client, who was still on the line, told

the defendant that the client was going to call the police. He said that the defendant told the client,

“I don’t give a damn. I don’t care if you call the f***ing police because this is -- I’m going to kill

this mother f***er.” He said that the defendant stayed on the telephone with the client for about ten

minutes. He said that one time, the defendant dropped the gun and then challenged the victim to try

to get it. He said that otherwise, the defendant kept the gun pointed at the victim’s head during the

robbery.

The victim testified that after the defendant hung up the telephone, the defendant went

through the victim’s wallet, briefcase, and suitcase. He said that the defendant took one hundred

twenty dollars, a pack of cigarettes, and a red cigarette lighter. He said that the defendant used the

telephone to call someone to come and get the defendant. He said that the defendant smoked a

couple of cigarettes and that the defendant stayed in his hotel room for thirty to forty-five minutes.

The victim said that he was not physically injured but that the defendant kissed him on his right

cheek before the defendant left the room. He said that as soon as the defendant left the room, he shut

the sliding glass door, locked it, and called the police.

The victim testified that the defendant was wearing a Dallas Cowboys jacket and a stocking

over his hair. He said that he could see the defendant’s face clearly. He said that the day after the

robbery, Investigator Jeff Austin showed him a photograph array and that he identified the robber’s

picture.

Terri Wallace testified that she knew the defendant and that he used to stay at her house

occasionally. She acknowledged that about November 5, 1999, Investigators Austin and Golden

came to her home and asked if they could search it. Ms. Wallace gave them permission to search,

and the investigators took a Dallas Cowboys jacket that belonged to the defendant and a pellet gun

from the house. At the time of the search, the defendant was not at Ms. Wallace’s house, and she

had not seen him for a couple of days. She said that her child had found the pellet gun outside and

that it did not belong to anyone. 

Investigator Jeff Austin of the Jackson Police Department testified that at 11:10 p.m. on

November 4, 1999, he got a telephone call at his home. He said that in response to the call, he went

to the Comfort Inn and that other officers were already present. He said that he took the victim to

the police department and that the victim gave a formal statement. He said that after the victim gave

a statement, he gave the victim a chance to calm down and took the victim back to the Comfort Inn.

He said that the victim got a different room and spent the night at the hotel. He said that when he

returned to work the next morning, Crime Stoppers had gotten a tip that the defendant robbed the

victim. He said that based on the tip, he put together a photograph array, took the array to the

Comfort Inn, and showed the array to the victim. He said that the victim identified the defendant

as the robber. 
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Investigator Austin testified that he got a warrant to arrest the defendant. He said that while

he was obtaining the warrant, Crime Stoppers got another tip that the defendant could be found at

Terri Wallace’s house. He said he and Investigator Rodney Golden went to Ms. Wallace’s residence

and asked her if they could search her home for any clothing or weapons that the defendant used in

the robbery. He said that Ms. Wallace gave them permission to search and that they found a Dallas

Cowboys jacket with a red lighter in one of the pockets. He said that they also found a Marksman

BB gun upstairs in a chest of drawers. He said that the lighter and the gun were tested for

fingerprints but that no usable prints were obtained. He said that the victim’s hotel room was also

tested for fingerprints but that no usable prints were found on the room’s telephone or sliding glass

door.

The prosecution showed Investigator Austin an evidence bag containing a Marksman BB

gun, and he identified it as the gun that was found in Ms. Wallace’s residence. When the prosecution

asked Investigator Austin if the gun was secured in order that it could not be fired, he answered that

it did not have a trigger housing in it. On cross-examination, Investigator Austin testified that when

he and Investigator Golden found the gun, the gun’s top slide would fall off and that the gun had

clear tape on its slide and body. 

Sergeant Jim Collum of the Jackson Police Department testified that on November 7, 1999,

the police department received information that the defendant was at an apartment complex. He said

that he went to the complex and found the defendant hiding in some shrubbery. He said that he

arrested the defendant and escorted him to a police car. He said that without being asked any

questions, the defendant stated, “I didn’t do all these by myself” and “How many have ya’ll charged

me with?” 

The defendant testified that about 9:00 or 9:30 p.m. on November 4, 1999, he was buying

a pack of cigarettes at a store. He said that when he left the store, the victim confronted him and

asked him about restaurants or nightclubs where the victim could get a drink. He said that he offered

to show the victim some nightclubs and that the two of them walked in the direction of the clubs.

He said that he asked the victim if the victim wanted to smoke marijuana and that the victim said

yes. He said that he and the victim smoked a marijuana cigarette and then went back to the victim’s

hotel room to have a drink. He said that they drank whiskey and smoked another marijuana

cigarette. The defendant testified that he left the hotel to buy a can of beer at a nearby gas station.

The defendant testified that when he returned to the victim’s hotel room, the sliding glass

door was open and that he walked into the room. He said that the victim was on the telephone. He

said that the victim hung up the telephone and asked the defendant if the defendant could get more

marijuana. The defendant said that he told the victim that he could get more marijuana for eighty

dollars. He said that the victim gave him the money and that he left the victim’s room. He said that

he kept the eighty dollars and did not get the drugs for the victim.

The defendant denied having a gun on November 4, taking the victim’s red lighter, or making

any statements to Sergeant Collum. He acknowledged that the Dallas Cowboys jacket that the police

found at Ms. Wallace’s home belonged to him. On cross-examination, he said that he owned the red
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lighter. The defendant said that after Sergeant Collum arrested him, Sergeant Collum read him his

rights and that he elected to remain silent and did not say anything to Sergeant Collum. He said that

Sergeant Collum and the victim were lying. He said that the victim was mad at him for taking the

victim’s money. He acknowledged being convicted in 1993 for theft of property valued over one

thousand dollars.

The victim was called as a rebuttal witness and testified that he had never seen the defendant

before the robbery. He denied going to clubs with the defendant or having a drink with him. He said

that the defendant took one hundred twenty dollars, a pack of cigarettes, and a red lighter from him.

Sergeant Collum was called as a rebuttal witness and testified that he never Mirandized the

defendant. He said that investigators, not patrol officers, Mirandized suspects.

The jury found the defendant guilty of aggravated robbery and aggravated burglary. It

assessed fines of fifteen thousand dollars and five thousand dollars respectively. 

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his conviction for

aggravated robbery. He contends that because the indictment only alleged that he robbed the victim

with a deadly weapon and the gun used in the robbery was an inoperable pellet or BB gun, he cannot

be guilty of that offense. Alternatively, the defendant contends that there is no evidence that he

displayed the gun in a manner to lead the victim reasonably to believe that it was a deadly weapon.

The defendant contends that the evidence only supports a conviction for robbery. The state contends

that the evidence is sufficient. We agree with the state.

Our standard of review when the defendant questions the sufficiency of the evidence on

appeal is “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh

the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d

542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about

witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997).

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). A robbery is

aggravated if 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). 
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Taken in the light most favorable to the state, we believe that the evidence is sufficient to

support the defendant’s conviction for aggravated robbery. The victim testified that the defendant

stormed into his hotel room and put a handgun to the victim’s head. The defendant repeatedly told

the victim that he was going to kill the victim. The victim testified that he was terrified and that he

did not know what kind of gun the defendant held on him, just that it was a gun to his head. We

believe that this evidence is sufficient to show, at least, that the defendant displayed the gun to lead

the victim reasonably to believe it to be a deadly weapon. 

II. SENTENCING

The defendant contends that the trial court improperly enhanced his aggravated burglary

sentence and improperly ordered consecutive sentencing by finding him to be a dangerous offender.

The state contends that the trial court properly sentenced the defendant. We believe that the

defendant’s sentence was proper.

At the sentencing hearing, the victim testified that he relived the robbery every day. He said

that the defendant took away his feeling of personal freedom. He said that the crime caused him to

purchase guns to protect himself and his family and that he was unable to work for two weeks after

the robbery. He said that the robbery made him unable to trust people and that the defendant should

be incarcerated for as long as possible.

The defendant testified that he was thirty years old. He said that he was innocent and

accused the prosecutor of conspiring with the Jackson Police Department to convict him wrongfully.

He asked the trial court to set aside his convictions because the Jackson police officers lied in their

testimony and produced false evidence against him. The defendant said that his family had been

supportive and that he would live with his mother if he were released from custody. On crossexamination, the defendant acknowledged having a 1993 felony conviction for theft of property

valued over one thousand dollars and a 1991 felony conviction for robbery.

The defendant’s presentence report states that the defendant has a long history of alcohol and

drug abuse and that he has never completed any substance abuse programs. The defendant dropped

out of high school but obtained his GED. He has never been married, has no children, and has never

obtained permanent, full-time employment. The report reflects that in addition to the defendant’s

two prior felony convictions, he also has misdemeanor convictions for driving without a license,

possession of alcohol by a person under the age of twenty-one, and public intoxication. The

presentence report also reflects that in 1993, while the defendant was on probation for the 1991

robbery conviction, he committed theft of property valued over one thousand dollars. Moreover,

while the defendant was on parole for the 1993 theft of property conviction, he absconded, and his

parole was revoked. The defendant was returned to prison and was released from incarceration about

three and one-half months before committing the offenses in question.

The trial court held that the defendant’s two prior felony convictions justified sentencing him

as a Range II, multiple offender and ordered that the defendant serve fifteen years for the aggravated

robbery conviction and ten years for the aggravated burglary conviction. The trial court applied
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enhancement factors (1) and (8), that the defendant has a previous history of criminal convictions

or behavior in addition to those necessary to establish the range and that the defendant has a previous

history of unwillingness to comply with the conditions of a sentence involving release in the

community, to both offenses. Tenn. Code Ann. § 40-35-114(1), (8). For the aggravated burglary

conviction, the trial court also applied enhancement factors (10) and (16), that the defendant had no

hesitation about committing a crime when the risk to human life was high and that the crime was

committed under circumstances in which the potential for bodily injury to the victim was great.

Tenn. Code Ann. § 40-35-114(10), (16). The trial court ordered that the defendant’s sentences run

consecutively, finding the defendant to be a dangerous offender whose behavior indicates little or

no regard for human life and who has no hesitation about committing a crime when the risk to

human life is high. Tenn. Code Ann. § 40-35-115(b)(4). Finally, the trial court imposed fines

totaling twenty thousand dollars and ordered that the defendant pay one hundred twenty-four dollars

in restitution to the victim. 

When a defendant appeals the length, range, or manner of service of a sentence imposed by

the trial court, this court conducts a de novo review of the record with a presumption that the trial

court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The presumption of

correctness is “conditioned upon the affirmative showing 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). The burden of showing that the sentence is improper is upon the appealing party.

Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. However, if the record

shows that the trial court failed to consider the sentencing principles and all relevant facts and

circumstances, then review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169. In

conducting a de novo review, we must consider (1) the evidence, if any, received at the trial and

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, (5) any mitigating

or statutory enhancement factors, (6) any statement that the defendant made on his own behalf, and

(7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see

Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).

A. Enhancement of Aggravated Burglary Sentence

The defendant contends that the trial court improperly enhanced his sentence for aggravated

burglary by finding that the defendant had no hesitation about committing a crime when the risk to

human life was high. See Tenn. Code Ann. § 40-35-114(10). The state contends that the trial court

properly enhanced the defendant’s sentence because he robbed the victim with a pellet or BB gun,

which is a deadly weapon, and because the defendant entered the hotel room without caring who

occupied it. We believe that the defendant’s ten-year sentence for aggravated burglary was justified.

 The defendant was sentenced as a Range II, multiple offender for which the applicable range

for a Class C felony is six to ten years. Tenn. Code Ann. § 40-35-112(b)(3). The presumptive

sentence for a Class C felony is the minimum in the range when there are no enhancement or

mitigating factors present. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to

increase the sentence within the range based upon the existence of enhancement factors and then
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reduce the sentence as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d), (e).

The weight to be afforded an existing factor is left to the trial court’s discretion so long as it

complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately

supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing CommissionComments; Ashby,

823 S.W.2d at 169. 

The trial court started at the minimum sentence of six years but increased the sentence to ten

years after finding that four enhancement factors applied to the defendant’s aggravated burglary

conviction. The defendant contests the application of enhancement factor (10), that the defendant

had no hesitation about committing a crime when the risk to human life was high. Tenn. Code Ann.

§ 40-35-114(10). Although the trial court applied factor (10) because it found that the defendant

was armed with a deadly weapon and forced his way into the hotel room, the defendant contends that

his use of an inoperable gun resulted in no risk to human life.

Initially, we note that the standard of proof required for finding a factual basis for sentencing

within a range is the preponderance of the evidence standard. See State v. Carter, 908 S.W.2d 410,

413 (Tenn. Crim. App. 1995). For our review, though, we cannot reject such a finding unless the

evidence preponderates against the finding. In this respect, we believe that the evidence does not

preponderate against the trial court’s finding that the defendant used a deadly weapon to rob the

victim. Although Investigator Austin testified that the gun was inoperable when he found it at Ms.

Wallace’s house, it is not clear what the condition of the gun was at the time of the robbery. In

addition, while Investigator Austin testified that the gun found at Ms. Wallace’s home was a BB gun,

Ms. Wallace testified that it was a pellet gun, and this court has determined that a pellet gun is a

deadly weapon. See State v. Anthony Bowen, No. 1107, Knox County (Tenn. Crim. App. July 13,

1987). Thus, based on the trial court’s finding that the defendant used a deadly weapon to rob the

victim, the trial court properly applied enhancement factor (10) and found the defendant to be a

dangerous offender for sentencing enhancement purposes.

Moreover, even if the trial court erred by applying enhancement factor (10), that fact would

have no affect on the defendant’s sentence because our de novo review reveals that the application

of enhancement factors (1), (8), and (16) justified the trial court’s increasing the defendant’s sentence

from six to ten years. The defendant has failed to show that the sentence was improper.

B. Consecutive Sentencing

Next, the defendant contends that the trial court improperly found him to be a dangerous

offender and improperly ordered that he serve his sentences consecutively. Specifically, the

defendant contends that the evidence does not support the trial court’s finding that he meets the

statutory definition of a dangerous offender. See Tenn. Code Ann. § 40-35-115(b)(4). In addition,

the defendant contends that the trial court ordered consecutive sentencing without making the

appropriate findings on the record. 

Consecutive sentencing is guided by Tenn. Code Ann. § 40-35-115(b), which states in

pertinent part:
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The court may order sentences to run consecutively if the court finds

by a preponderance of the evidence that:

. . . .

(2) The defendant is an offender whose record of criminal activity is

extensive; [or]

. . . .

(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 . . . . 

For dangerous offenders, though, “consecutive sentences cannot be imposed 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.” State v. Wilkerson, 905 S.W.2d 933,

938 (Tenn. 1995); see State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). Rule 32(c)(1), Tenn. R. Crim.

P., requires that the trial court “specifically recite the reasons” behind its imposition of a consecutive

sentence. 

In sentencing the defendant, the trial court held that the defendant used a deadly weapon to

rob the victim. In addition, the trial court imposed consecutive sentences because it found that the

defendant was a dangerous offender under Tenn. Code Ann. § 40-35-115(b)(4). The trial court

stated on the record that it based its finding on the defendant forcing his way into the victim’s hotel

room, repeatedly threatening to kill the victim with a gun, staying in the victim’s hotel room for

thirty to forty-five minutes, and committing these crimes within three and one-half months of being

released from incarceration for another felony conviction. The trial court stated that the defendant’s

crimes were very severe and that confinement of the defendant for an extended period of time was

necessary to protect society. 

As previously discussed, we cannot say that the evidence preponderates against the trial

court’s finding that the defendant used a deadly weapon to rob the victim. Therefore, we do not

agree with the defendant’s contention that he used an inoperable pellet or BB gun. The record

supports the trial court’s ruling that the defendant’s behavior indicated little or no regard for human

life and that the defendant had no hesitation about committing a crime in which the risk to human

life is high. Furthermore, we believe that ample evidence exists to support the trial court’s ruling

that consecutive sentencing reasonably relates to the severity of the offenses. The defendant stormed

into the victim’s hotel room with a gun, repeatedly threatened to kill the victim, and remained in the

victim’s room for thirty minutes. We also believe that the record reflects that consecutive sentences

are necessary to protect the public from further criminal conduct at the hands of the defendant. The

defendant's criminal record, which includes robbery and the present offenses, exposes the

defendant’s inability to conform his behavior to the law. The defendant had been out of prison for

only three and one-half months when he committed the present offenses; the presentence report
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reveals that he committed the 1993 theft of property offense while he was on probation for the 1991

robbery conviction; and the defendant absconded while on parole for the 1993 theft of property

conviction. 

 Moreover, even assuming arguendo that the trial court erred by finding that the defendant

was a dangerous offender under Tenn. Code Ann. § 40-35-115(b)(4), after our de novo review, we

believe that the defendant’s extensive record of criminal activity also justifies consecutive sentencing

under Tenn. Code Ann. § 40-35-115(b)(2). At the time of sentencing, the defendant was thirty years

old and had been convicted of four felonies and three misdemeanors. He has displayed few signs

of rehabilitation or improvement over his criminal history, and his behavior has progressed to more

daring and more violent offenses. We note that nothing in the 1989 Sentencing Act prohibits

consideration of prior criminal convictions and conduct for both enhancement and consecutive

sentencing purposes as long as those sentences comply with the purposes and principles of the 1989

Act. State v. Davis, 825 S.W.2d 109 (Tenn. Crim. App. 1991). Under the circumstances, we believe

that the defendant also qualified for consecutive sentences because of his extensive history of

criminal conduct.

Based upon the foregoing and the record as a whole, we affirm the judgments of conviction.

___________________________________ 

JOSEPH M. TIPTON, JUDGE