### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs O ctober 2, 2001
STATE OF TENNESSEE v. ANTHONY LEO N 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 Co unty Circu

it Courtjury convicted the defendant, Anthony Leon Moore, of a ggravated robbery, a Class B felony, and aggrava ted burgl ary, a Cla ss C felony. T he trial c ourt sent

enced h im
as a Range II, multiple offender to consecutive sentence s of fifteen years in the Tenness e e Department

of Correction for the aggravated robbe ry convict ion and te n years for the aggravated burglary conviction. The defendant appeals, claiming that (1) the evidenc e is insufficient to support his aggravated robbery conviction; (2) the trial cour t improperly enh anced his sentence for aggravated

burglary; and (3) the trial court improperly found him to be a danger ous off ende r and ordere d consecutive sen

tencing. We aff

irm the jud

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

J OSEPH M. T IPT ON , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined.

C

. Michael Robbins, Memphis, Tennessee; George Morton Googe, District Public Defen der; an d Vanessa D. King, Assistant Public Defender, for the appe llant, Anthony Leon Moore.

Paul G. Summers, Attorney Generaland Repor ter; Ange le M. Grego

ry, Assist ant Attor ney Gene ral; James G. Woodall, District Attorney General; and Shaun Alan Brown, Assistant District Attorney General for the appellee, State of Te nnessee.
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 ro om at the Co mfort 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. Hesaid that suddenly, the glass door slammed op en. He sa

id that the defendant ran into his room and put a black handgun, with clear tape on it s handle, t o his head.-2-

The victim testified that he put the telephone d own and to ld the def

endant to take his money and leave. H e said tha

t the def endant to ld him repeatedly that the defe ndant wa s going to ki ll him. He said that the defendant picked up the telephone and that the c lient, who

was still on

the line, told the defendant that

the client was going to call the police. He said that t

he defe ndant told the clien t, “I don’t give a

damn. I do n’t car

e if you c all the f* **ing polic e becau se this is - - I’m goin g 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 defe

ndant dro pped the g

un and the

n challe nged the v

ictim 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 aft er the d efendant hung up the telephone, the defendant we nt through the victim’s wallet, brief case, and suitcase. He said that the defendant took one hundred twenty dollars, a pack o f cigar

ettes, a nd a red c igarette

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

defenda nt stayed in his hotel roo m for thir

ty to forty -five min

utes. The victim said that he was not physically injured b ut 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 jac ket and a stocking over his hair. He said th at he cou ld see the defenda nt’s fac e clear

ly. He sa id that the day after the robbery, Investigator Jeff Austin showed him a photograph array and tha t he identified the robber’s picture.

Terri Wal l ace tes tified tha t she knew

the defe ndant and that he us ed to stay

at her house occasionally. She acknowledged that about November 5, 1999, Investigators Austin and Golden
came to her hom

e and ask ed if the y could se arch it. Ms. Walla ce gave them per mission tosearch, 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 Aus tin of the J ackson Po lice Dep artme nt 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 Comf

ort Inn a nd that other offic ers wer e alrea dy prese nt. 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 do wn and too

k the vict im 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 d efe ndant robbed the victim. He said th at based on the tip , he put together a photograph array, took the arra y to the ComfortInn, and showed the array to the victim. He said that the victim identified the defe nd an t as the robber.-3-

Investigator

Austin tes tified tha

t he got a w arrant

to arre st the defendant. He said that while he was ob taining the

warran t, Crime Stoppers gotanother tip that the defendant could be found at Terri Wallac e’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 c lothing or

weaponsthat the d

efenda nt used in the robbery. He said that Ms. Wallace gave them pe rmission to search and that they found a Dallas Cowboys jacket w ith 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 fingerp rints but that no usable prints were obtained. He said th at the vic tim’s hotel room wasalso tested for fing erprintsbut that no usable pr ints were found on

the room’ s telepho ne or slid ing glass door.

The prose cut ion showe d Investi gator Au stin an evidence b ag conta ining a Ma

rksman BB gun, and he identified it as the gun that was found in Ms. Wallace’s residence. W hen the prosecution asked Investig ator Aust

in if the gun

was sec ured 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, t he gu n’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 apa rtment co mplex. He

said that he went to the complex and found the defendant hiding in s ome shrubbery. He said that he arrested the defendant and escorted him to a police car . He said that without being a sked any questions , the defendant stated, “I didn’t do all these by myself” and “How manyhave 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 th at when he left the store, the victim confronted him and asked him about restaurants or nightclub s where

the victim

could get a drink. He said that he offered to show the vict im some nigh tclubs an d that the

two of the

m walked in the dire ction of th e clubs. He said that h

e asked t he victim if the victim wa

nted to smoke mariju ana and that the victim said yes. He said that h

e and the victim smok

ed a mar ijuana c igarette

and then w ent back

to the victim’s hotel room to have a drink. He sa id 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 ga s station.

The defendant testified that when he returned to the victim’s hotel room, the sliding gla ss door was open and that h

e walke d into the r

oom. He said that the victim was on the telephone. He said that the victim hung up the telephone and asked the defendant if the def endant could get

more marijuana. The defendant said that he told the victim that he could get more marijuan a for ei ghty dollars. He said that t

he victim g ave him

the money and that he left the victim’s room. He said that he kept th e eighty d ollars and did not ge

t the drug s 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. Wallac e’s home belonged to him. On cross-examination, he said that he owned the red-4-

lighter. The defendant said that after Se rgeant Co llum arre sted him, Se rgeant Co llum read

him his rights and that h

e elect ed to rem ain 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 d

ollars.

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 sa

id that the defendant took one hundred twenty do llars, a p ack of c igarette s, and a r ed lighte r 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 robber y and ag gravated bur glary. It assessed fines of fifteen thousand dollars and five thousand dollars r espectively.
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 alle ged that h

e robbed the victim witha 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 ther e is no eviden ce th at he displayed the gun in a manner to lead the victim reasonably to believe that it was a deadly weapon. The defenda

nt conten ds that the

evidenc e only supp orts 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 eviden ce in th e light most favorable to the prosecution, any rational tr ier of fa

ct could hav e found th

e essent ial eleme nts of the crime be yond a re asonable doubt.” Jackson v . Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the e vidence bu t presume that the ju

ry has re solved all conflic ts in the te stimony an d drawn a ll
reasona ble infere nces fr om the evidence in favor of the state. See State v. She ffield , 676 S.W.2d 542, 547 (Ten

n. 1984); State v. Ca

bbag e , 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 6 5 1, 659 (Tenn. 1997).

Rob bery is defined as “the intentional or knowing theft of property from the pe rson of another by violence or

putting the person in fear.” Tenn. Cod e Ann. § 39 -13-401( a). A ro bbery is aggravated

if it is “[a]ccomplished with a deadly weapon or by display of any a rticle used or fashionedto lead the victim to reasona bly believe it to be a deadly weapon.” Tenn. Code Ann. § 39- 13-402(a)(1).-5-

Taken in the light

most favo

rable to the state , we belie

ve that the evidence is suf fic ient to support the defendant’s conviction for aggravated robbery. The victim testified that the defendant stormed into his hote

l room and

put a hand

gun to the v

ictim’s he ad. The d

efenda nt repea tedly told the victim tha

t he was g oing to kill the victim. The victim testified that he was terrified and that he didnot know what kind of gun the d efenda nt held on him, just that it was a gun to his head. We believe that this evidence

is suffic ient 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 defenda

nt conten ds that t

he tri al court improperly enhanced his aggravated bur glary sentence and improperly ordered consecutive sentenc ing by finding him to be a dangerous offender. The state contends that the trial court properly sentenced the de fendant. We believe that the defendant’s sentence was proper

. At the sentencing hearing, the victim testified that he relived the robbery

every da y. He sai d that the defenda

nt took aw ay his fe eling of p ersonal freedo m. He said

that the c rime cau sed him

to purchas e guns to protect himself and his family and that he wa s unable t

o work for two weeks after the robbery . He said

that the r obbery ma

de him una

ble to trust people and that the defendant should be incarcerated for as long as possible.

The defenda nt testifie d 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 cou rt to set a side his convictions because the Jackson police officer s lied in the ir testimony and prod uced fa lse evidence against him. The defendant said that his family had bee n supportive and that he would live with his mother if he were released f rom custody. On crossexamination, the defendant acknowledged having a 1993 fe lon y con viction fo

r theft of propert y valued over one thousand dollars and a 1991 felony conviction for r obbery.

The defendant’s presentence re port 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 outof high school but obtained his GED. He has never been married, ha s 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 fo r drivi ng without a license, possession of alcohol by a pe rson under the age of twenty-one, and public intoxication. The presentencere port al so reflects that in 1993, while the defendant was on probation for the 1991
r obbery conviction, he committed theft of property valued over one thousand dollars. More ov er , while the defendant was on parole for the 1993 theft of p

roperty convicti on, he ab sconded , and his parole was revoked. The defendant was r eturned to prison and

was released from incarcera tion about three and one-half months before committing the offenses in que stion.

The trial court held that

the defendant’s two prior

felony c onviction s justifie d sentenc ing him
as a Range II, multiple offender and ordere d that the defendant serve fifteen yea rs for the aggravated robbery conviction an d ten years for the aggravated burglary conviction. The tria l court applied-6-

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 defe ndant has a previous history of unwillingness to comply with t he condition s 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 an d that the c rime was
co mmitte d under ci

rcumstan ces in wh ich the po tential f

or bodily i njury to the victim w as grea t. Tenn. Code Ann. § 40-35-114(10), (16). The trial court ordered that the defendant’s sente nces run consecutively, finding the defendant to be a dangerous offender whose behavior indicates little or
no regard for huma

n life an d who has n o hesitati on ab out committ ing a cri me when th

e risk to hu man life is high. Tenn. Code Ann. § 40-35-115(b)(4). Finally, the trial court imposed fine s 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
correc tness is “conditioned upon the affirmativeshowing in the record that the trial court considered the sentencing principles and all relevant facts and c ircumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the appea ling party. Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. How ever, if t he record shows that the tr

ial cour t f aile d to consider the sentencing principles and all relevant facts and circumst ances, then review of the sentence is purely de novo
. Ashby , 823 S.W.2d at 169. In conducti n g a de novo re view, we must consider (1) the evidence, if any, r eceived at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sente ncing and argumen ts as to sentencing alternatives, (4) the nature and char acteristics of the criminal conduct, (5) any mitigating
or statutory enhancement

factor s, (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.2 d at 168; State v. Mo ss , 727 S.W.2d 229 (Tenn. 1986).

A. Enhancement of Aggravated Burglary Sentenc e
The defendant

contends that the trial court improperly enhanced his sentence for aggravated burglary by finding that the defenda nt had no hesitation

about com

mitting a c

rime whe n the risk to human life was high. See Tenn. Code Ann. § 40-35-114(10). The state contends that the trial court properl y enhanc ed the defendant ’s sente nce bec ause

he robbe d the vict

imwith a pellet or BB gun, which is a deadly we apon, and be cause the defendant entered the hote l 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
m it igating factor s presen t. Tenn. Co de Ann. § 4 0-35-210 (c). Pro cedura lly, the tr ial cour t is to increa se the sentence within the range based upon the ex is tence of enhancement factors a nd then-7-

reduce the sentence as appropriate for a ny mitigating factors. Tenn. Code Ann. § 40-35-210(d), (e). The weight to be afforded an existing fa ctor is left to t he trial c ourt’s dis cretion so long as it complies with the purposes and principles of the 1989 Sentencing Act and its findings areadequa tely supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments ; 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 burglar y conviction. The defendant contests the application of enhanc ement 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 wi

th a dead ly weapon and forced his way into the hotel room, the defe ndant 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 factualbasis for sentencing within a range is the preponderance of the evidence standard. See State v. Carter , 908 S.W.2d 410, 413 (Tenn. Cr

im. App. 1995). For our review, though, we cannot reject such a f inding unless the evidence preponde ra tes against the finding. In this respect, we believe that the evidence does not prepon derate

again st the trial court’s finding that the defendant used a deadly wea pon 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 de termined tha t a pellet

gun is a deadly weapon. See Statev. 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 fa ctor (10) and found the defendant to be a dangero us offen der for

sentenc ing enhan

cement purposes. Moreover, even if the trial court erred by applying enhanc ement fa ctor (10 ), that fa

ct would have no affect on the defendant’s sentenc e because our de novo review reveals that the application of enhancement factors (1), (8), a nd (16) justified the trial court’s increasing the defenda nt’s sentence from six to ten years. The defendant has failed to show that the se ntence was improper. B. Consecutive Sentencing
Next, the defendant co ntends t hat the trial court improperly found him to be a dangerous offender and imprope rly ordered that he serve his sentences consecutively. Specifically, the d efendant contendsthat the e

vidence does not su

pport the trial cou rt’s find ing that he

meets t h e statutory definition of a dangerous offender. See Tenn. Code Ann. § 40-35-115(b)(4). In addition, the d efenda

nt conten ds that the

trial cou rt order ed conse cutive se

ntencing without ma

king th e appropriate findings on the record.

Consecutive sentencing is guided by Tenn. Code Ann. § 40-35-115(b), which states in pertine nt part:-8- The court ma

y order s entence s to run co nsecutiv ely if the court finds by a prep onderan

ce of the evidenc e that:

. . . . (2) The def

endant is an offe

nder who se record

of crimin al activi

ty is extensive; [or]

. . . . (4) The defendant is a dangerous offender whose behavior indicates littleor 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 se ntenc es can not be impo sed unles s the term s reasona bly relate to the severity of the offenses committed and ar e 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. 1 995); see State v. Lane , 3 S.W.3d 456, 461 ( Tenn. 199 9). Rule 3 2(c)(1 ), Tenn. R. Crim. P., require s that the t

rial cou rt “spec ifically

recite t he reas ons” beh

ind its imposition of a consecutive sentence.

In sentencing the defenda nt, the trial

court held that the

defenda nt used a d

eadly we apon to rob the victim. In addition, the trial court imposed consecu tive sente nces bec ause it

found that the defendant was a dangerous offe nderunder Tenn. Code Ann. § 40-35-115(b)(4). The trial c ourt stated on the re cord tha

t it based i

ts finding o n the def

endant f orcing hi s way into the victim’s hotel room, repea tedly threatening to kill the victim with a gun, staying in the victim’s hotel room for thirty to forty-five minutes, and committing

these cr imes within

three a nd one-h alf

months of being released from incarceration for another f elony conviction. The trial court stated that the defendant’s crimes were very severe and that confinement of the de fendant for an

extended period of time was necessary to protect society.

As p reviously discussed, we cannot say that the evidence pre ponderates against the tria l court’s finding that the defendant used a deadl y weapon to rob the victim. Therefore, we do not agree with the defendant’s contention that he used an inoperable pe llet or BB gu n. T he 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 cour t’s ruling that consecutive sentencing reasonably relates to the se verity of the offe nses. The defendant stormed into the victim’s hotel room with a gun, repeatedly threatened to kill the victim, and remained in the victim’s roomfor thirty minutes. We also believe that the record reflects that consecutive se ntences
are necessa

ry to protect the public from further criminal conduct at the hands of the defendant. The defendant's criminal

record , which in clu des robb ery and the present offenses, exposes the defendant’s inability t

o conform

his behavior to the law. The defendant had bee n out of prison for
on ly three an d one-half months when he committed the present offenses; the pre sentence report-9-

reveal s that he committed the 1993 th eft of pr operty offense while he was on probation for the 1991
ro bbery convict ion; and the defen dant absc onded whi le on par ole for th e 1993 the

ft of pro perty conviction. Moreover, even assuming arguendo that the trial court e rred by finding that the defendant
was a dangerous offender under Te nn. Code Ann. § 40-35-115(b)(4), after our de novo review, we believe that the defe ndant’s extensive record of crim inal activity also justifies consecutive sentencing under Tenn. Code Ann. § 40-35-115(b)(2). At the time of sentencing, the defendant was thirty years oldand hadbeen 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 tha t nothi ng in the 19 89 Senten cing Act p rohibits consideration of prior criminal convictions and conduct for both enhanceme nt and consecutive sentencing purposes as long as those sentences comply with the purposes and principles of the 1989 Act. State v. D avis , 825 S.W.2d 109 (Tenn. Crim. App. 1991). Under the circumstances, we believe that the defe ndant als o qualifie d for con secutive sentenc es beca

use of his extensiv e h istory of criminal conduct.

Based upon the foregoing and the record as a whole, we af firm the judgments of

conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE