### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 10, 200 7

STA TE OF TEN NES SEE v. SHA WN M cC OBB and MA RC US WAL KER

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. 04-08452 P aula S kahan , Judge

No. W2006-01517-C CA-R 3-CD - F iled Septem ber 26, 2007

Th e de fe nd a nts , Sh awn

Mc Cob b and Ma

rc us Wal ke r, we re c on vic te d of a g g ra vate d ro bb e ry , a

Cla ss B f elony , and sente nced a s Rang e I , standard of fende rs to te n y ear s in the Depa rtment of Corre ction. I n their consolidated a

ppeal, they

argue that the e vidence was insuffic ie nt t o s u p p ort their convic tions and the tria l court er

red in imposing ten-y ear sentenc es. Def endant Walker

additionally

asser ts that it was err or for

the trial cour

t to imp o s e a fi n e over $50 and a llow his im peac hment with a prior conviction. Following our re view, we aff irm the convictions an d sentenc es of the tr ial court but modify the fines imposed to $50 ea ch.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Cr im inal Cou rt A ff irm ed as Modif ied

A L AN E. G L EN N , J ., delivere d the opinion of the court, in which J OS EP H M. T I PTON , P.J ., and D A V ID G. H AYES , J ., joined.

Kar en Masse y , Assistant Public Def ender
, Memphis, T ennesse e, for the appellant, Shawn McCobb; and L aure n Pasley -Ward, Memphis, Tenne ssee, f or the a ppellant, Marc us Walker.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Ra c he l E. Willi s, As sis tant Attor ne y Ge ne ra l; Wil liam L . Gi b b o n s, District Attorney Gene ral; and A nita Spinetta, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

At the def

endants’ tr ial, the victim, Marcus Wilson, testified that on Aug ust 29, 2004, he worke d at a Pa

p a Jo h n ’ s Pi zza in M e mp h is d e li v e r in g p iz za s an d ma d e h is la s t d e li v e r y at

a pp ro xima te ly

1:4 5 a .m. to 6 35 0 Win dr idg e Cov e . Ay oungman o pen ed th e do or and a sk e d h im to wait there . The same man later returne d, told the victim that he had mistak en l y broug ht a tenM cC o b b t est i f i ed at t ri al t hat B

. J. ’ s t rue name was T aurus P o i nt er, II

. 1

-2- rathe r t han a twenty -dollar bill, and ag ain aske d that the victim wait at the fr ont door. Whil e he w as waiting , the victim was struck in the back of the head with a metal base ball bat. He de scribed the blo w b y say ing , “ I t f

e lt l ike y ou

g ot r an o ve r b y an 18 -w he e le r. He a da c he s, y ou kn ow , pa in i n my head. . . . I

think he hit me with a ll of his mig ht.” The victim said that he then r an for his truck but collided with McCobb and fe ll in the front y ard. H e wa s hit in the arm and bega n cra wling towa

rd his tr uc k. He sa id that tw o mor e me n c a me fr om the c arp or t, and on e of

the m and Mc Cob b to ld h im “to g et down on the g round and stay down on the g round.” McCobb stood over him “with the bat up in the air like he was g etting rea dy to sw ing it a g ain” and demande d the victim give him what he ha d. Th e vic timha

nd e d o ve r s ome c he c ks and c a sh , b ut Mc Cob b c on tin ue d to ho ld u

p th e bat,

a sk ingfo r m or e mon e y . T he vic timg a ve him tw o d oll ars tha

t he ha d in

his oth e r p oc ke t.
Seeing that his assailants had g one bac k into the house, the vic tim ran to his truck and drove to h is p la c e of

e mpl oy me nt, wh e re his mana g e r c a lle d a n ambu lanc e wh ic h to ok

him to t he ho sp ita l. Severa l day s later, he viewed a photogr aphic lineup a

nd identified Walker as the ma n who “stalled” him a t th e do or

jus t be fo re the ro bb e ry

and Mc Cob b a s th e man w ho hit him in t he he a d w iththe bat. The victim also made a courtroom identification of McCobb as the man who struck him with the bat and Walker a s the one who a sked him to wait at the door.

Offic er Ch ar m el l S m i t h o f t h e M em p h i s P o l i ce De p ar t m en tt es t i fi edt h at o nAu gu s t2 9
, 2 0 0 4, she went to the addre ss w here the robber y occur red and rec overe d the victim’s gla sses from the f ront y ard a nd his Papa J ohn’s ca

p from the f

ront porch.

Detec tive Walter Davidson of the Memphis Poli ce D epar tment Robbe ry Squad testified that Walker wa s i d en t ified as a suspect and w as located at the a partment c omplex wher e he r esided. Aft e r b e in g a d v is e d o f an d w a iv in g h is M ir an d a r ig h ts , Wa lk e r g a v e a s ig n e d s ta tement on Se pte mbe r 3 , 2 00 4, a dmi tti ngthat he ha d p art ic ipate d in the ro bb e ry wi th “Sh awn Mc Cob b an d h is cousin B.J.” and say

ing that he was a

rmed with “a

brown stick like a nig htstick” and that McCobb 1 also had a stick. He said that two pizzas and some money wer e take n in the robber

y , with McCobb g e t t i n g a l l o f

t h e m o n e y.

I n his state ment, Walker descr ibed how he, McCobb, and “B .J .” planned and executed the

r o b b e r y:

Me and

[Mc Cob b] were at h ome and he wa nte d to g o o ve r t o B .J.’ s h ou se beca use we did not have any food and he wanted to g o over the re a nd g et something to e a t. We w a lk e d o v e r to B

. J. ’ s h o u s e

. Wh e n w e g o t t h e r e , B

. J. f

ixe d [M c Co b b ] a sandwich a

nd fix ed me a

corn dog. I told them I was still hungr y and he did not wa

nt to f ix any thi nge lse . [Mc Cob b] sug g e ste d tha t he buy so me pizza s. Th e n B .J. to ld them that he only

had $10 and [ McCobb] was try ing to make B.J. go a nd g et one of his uncle’s pistols. He has a couple of pistols t here in his house.-3- So B.J. called and orde red the pizz a. He asked me what kind Iwanted a nd Itol d h im h a mbu

rg e r. An d s o w e c a lle d an d ord e re d the pizza s. We t a lke d a bo ut i t and said let’s c atch him bef ore he g ets to the door. [McCobb] was g oing to do it by my se lf [sic ] at fi rs t w hil e B .J. st a lle d h im at th e do or

. Th e n the y br ou g ht m e int o it saying that I had to hit him a nd knock him out. [McCobb] and my self ar e standing out under the c arpor

t and it is real dar

k.

Be fore he g ot there I

had to g o in and us e the bathroom and w hen I came back out he was alre ady there . And I tried to tell them to forg et it. [ McCobb] kept say ing that we wer en’t g oing to ha ve nothing to eat. I

walked to the bushe s and [McCobb] was be hind me and I

tried to turn ar ound becaus e I did not want to do it. And [McCobb] was like we g ot to do this. And [ McCobb] was holding on to my back a nd pushed me forwar d. Ijumped out of the bushes be hind the delivery man and I

stood there and he did not know that I was ther e behind him. I was g oing to wa it until he turned a round and te ll him j ust to g ive me the money . Iraised the stick up and wa s g oi n g t o wa i t until he turned ar ound. And he turne d around a nd Iacte d like Iwas g o i n g t o h i th i m an d

s a i d g i v e m e t h e m o n e y.

When Iswung the stick he wa s starting to ru n an d h e ra n into the stick and he fe ll a nd Ijus t st oo d th e re . H e g ot u p a nd sta rt e d to ru n a nd [Mc Cob b] c ha se d h im into the next -door ne ighbor ’s y ard an d the pizz a man f ell and [McCobb] was standing over him with the stick asking him f or the money . [McCobb] told him t hat if h e we n t i n to his pockets and found some mor e money that he wa s g oing to be at him. The pizz a man pulled out some more money and g av e i t to him. [ McCobb]
t h r e w t h e p i z z a

b o x i nt h e b a c k

yar d an d s a i d h e w a s g o i n g t o t h r o w t h e p i z z a aw ay.
Serg eant Micha el B rown, a lso of the M emphis Poli ce D epar tment, testified that Walker fled as off icer s were trying to a

rre st him but was a

pprehe nded about te n m i nutes later. B rown took a statement fr om McCobb on September 3, 2004, wher ein he a dmitted his i nvolvement in the robbe ry and conf irmed that Walker a

nd “Ta urus Pointer, J r.” pa

rticipated a s well. McCobb said that he wa s
arme d with a pool stick and that Walker had a nightstick. McCobb explained how the robbe ry

had

occur red:

We went over to my cousin’s house. We ca

me over there to rap. When we g ot t hr ou g h r a pp ing , w e sta

rt e d ta lki nga

bo ut h owwe c an g e t so me mon e y if we hit
t h e p i z z a man. We we ren’ t rea lly just serious about it then. We ended up ca llin g. Wh e n h e c a me , me an d

[Wa lk e r ] s to o d

o u ts id e an d

w a it e d

. We w a it e d

o nh im

. We tho ug ht h e wa s g oin g to p ark in the dr ive wa y bu t he pa

rk e d in the str e e t. H e c a me up the drivewa

y and he stood at the door. [W alker ] wa ited until he g ave him the drinks and hit him with the nightstick in the back of his head. When he hit him, the pizz a man trie d to run so Icaug ht him halfwa y throug h the y ard. H e wa s cra wling
t h r o u g h t h e yar d

. I s t o o d o v e r h i m w i t h t h e p o o l s t i c k

an d h e g a v e m e t h e m o n e y, like two or three chec ks. I t was balled up in the money

. Then the g uy g ot up a nd he-4-

g ot in his car and le ft. We went back in the house. I took the chec ks out of the money , then we le ft and we nt home. That’s it.

Def endant Walker

testified that he answe red the door when the vi ctim arrive d with the pizz as and g ave him a coupon for their orde r. When the victim told W alker that the coupon wa s expi red, Walker aske d him to acce pt it any way , but the vi ctim ref

used t o do so and, ac cordingto Walker, “g ot

re a l lo ud and pu t hi s fin g e r in [Walk e r’ s] f a c e .” Mc Cob b th e n c a me to t he do or and tol d th e vic tim
, “You a in’t coming over he re w ith that disrespect.” McCobb struck the victim, and the vic tim then hit McCobb. The victim then g ot in his t ruck a nd left but dropped the pizz as and soda s in the y ard.

Wal ke r a c kn ow le dg e d th a t he g a ve a dif fe re nt, inc ulp a tor

y state me nt to t

he po lic e bu t sa id he only did so beca

use they “told me if Ididn’t own up to robbing the man that I would never

see my son ag ain.” He further

testified that the police pr omised to relea se him if he conf essed.

Def endant Mc Cobb testif

i ed that Walker wa s g oing to pur chase the pizz as with a c oupon, bu t w he n th e vic timarr ive d, he y e lle d a t Wal ke r. Mc Cob b sa id that he the n hit the vic timbe c a us e he was being disrespec tful but denied havingany wea pons or taking any

thing f rom him. McCobb

a lso a c kn ow le dg e d th a t he pr e vio us ly ha d c on fe sse d to the ro bb e ry bu t sa id h e on ly

did so be c a us e the police “ told [ him] to lie” and that “ if [he] didn ’t s ay wh at they wanted [him] to say

that [he] wasn’t g oing to se e the stre ets ag ain.”

AN AL YSI S

I. Su ff iciency of the Evid ence

On a pp e a l, t he de fe ndant s argue tha

t th e e vid e nc e pr e se nte d at tr ia l w a s in su ff ic ie nt t o support their convic tions.

I n consid er at i o n of this issue, we apply the rule that where sufficie ncy of the c onvicting evidenc e is cha lleng ed, the r eleva nt question of the re viewing court is “whe ther, a fter viewing the evidenc e in the light most favor able to the pr osecution, any rational trier of fact could have found the essential e lements of the c rime beyond a reasonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979); see also Tenn. R

. Ap p . P. 13(e) ( 2006); State v. Evans, 838 S.W .2d 185, 190–92 (Tenn. 19 9 2 ); S t at e v. Ande rson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). This rule a

pplies w h en t h e d etermination of guilt is based upon dire ct evidenc e, circ umstan t i al ev idence , or a c ombination of both direct and c ircumstantial evidenc e. State v. Penderg rass, 13 S.W .3d 389, 392-93 (Tenn. Crim. App. 1999) (citing State v. Dy kes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990) ).

All questions involvi ng the cr edibility of witn esses, the weig ht and value to be g iven the evidenc e, and al l fac tual issues are resolved by the trier of

fac t. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . Our supre me cour t stated the rationale for this rule:-5- Thi s we l l -s ett led rule r ests on a sound foundation. The trial judg e and the jury see the witnesses fa ce to f ace , hear their t estimony

and obser

ve their de meanor
on the stand. Thus the trial judge and jury are the primary instrumentality

of justice
t o d e t e r m i n e t h e w e i g h tan d

c r e d i b i l i t y

t o b e g i v e n t o t h e t e s t i m o n y o f w i t n e s s e s

. In the trial forum alone is the re human atmosphere and the totality of t h e e v i d ence cannot be repr oduced w ith a written re cord in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn. 1 9 6 3 ) )

. A d d it io n a ll y , a ju r y c o n v ic ti o n r e mo v e s th e p r e s u mp ti o n o f inn o c e n c e with which a defe ndant is initi ally

cloake d and re place s it with o n e of guilt, so t hat on appe al, a c onvicted defe ndant has the bur den of de monstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

.

T h e d e f e n d an t s i nth i s c a s e w e r e c o n v i c t e d o f a g g r a v a t e d

r o b b e r y:
(a) Ag g ravated robbe ry

is robbery

as def ined in § 39-13-401:

(1) Ac complished with a deadly wea pon or by display of any article used or fashioned to lea d the victim to reasona bly believe it to be a

deadly wea pon; or
( 2 ) W h e r e t h e v i c t i m s u f

f e r s s e r i o u s b o d i l y i n

j u r y.
Tenn. Code Ann. § 39- 13-402(a ) (2006) ; see also Tenn. Code Ann. § 39-13-401( a) ( 2006) (de fining robber y as “the intentional or knowing theft of pr operty from the pe rson of a nother by violence or putting the pe rson in fea

r”)

.

“De adly wea pon” is also def

ined by statute:
(A) Afirea

rm or anything

manifestly

desig ned, made or ada

pted for the purpose of

inflicting de ath or ser ious bodily injury ; or
(B ) Anything

that in the manner

of its use or intended use is capa ble of causingdeath or

serious bodily

injury

. Tenn. Code Ann. § 39- 11-106(a )(5) (2006) ( emphasis adde d).

At the d e f

e n d an ts ’ tr ia l, th e v ic ti m te s ti f ie d th a t Wa lk e r “ s ta ll e d h im ” a t th e d o or bef ore Mc Cob b hit him with g re a t f or c e in t he ba c k o f t

he he a d w itha

me ta l ba se ba ll b a t, t

hat he tr ie d to

r u nb u tf e l l d o w n , a n d t h a tM c C o b b s t o o d o v e r h i m w i t h t h e b a tr a i s e d d e m an d i n g m o n e y. Additionally , in their statements to poli ce o ff icer s, the defe ndants admitted that, arme d with a nightstick an d a p o o l cue, they robbed the victim and took money and pizz as fr om him. More specific ally
, McCobb told investigators that Walker hit the victim “with the nightstick in the bac kB eca us e t he def endan t s wer e s ent enc ed af t er Jun e 7, 20 05
, f

or an of f ens e com mi t t ed bef

ore t hat dat e, but af

t er 2

J u ly 1 , 1 9 8 2 , t h e y c o u ld ha v e e le c te d to b e se n te n c e d u n d e r t h e C rim ina l S e n te n c ing R e fo rm A c t o f 1 9 8 9 a s re v ise d in 2 0 0 5 b y e x e c u ting a w a ive r o f th e ir e x p o st fa c to p ro te c tio n s, b u t th e y d id n o t. S e e 2 0 0 5 T e n n . P u b . A c ts, ch . 3 5 3 , § 18; s ee a l s o T en n

. Code An n

. §§ 40- 35- 114, - 210 ( 2006)
, Compi l er ’ s N ot es

. Ac cor di n g l y , t h e Act ’ s 2003 c odi f i ca t i on g o v e rn s. S e e 2 0 0 5 T e n n . P u b . A c ts, ch . 3 5 3 , § 1 8

.
-6- of his he a d, ” and , w hi le th e vic timwa s c ra wl inga c ro ss t

he y ard , h e “ sto od

ov e r [the vic tim ] wit

h the pool stick and he g ave me the money .”

B a se d o n th is e vid e nc e , a re aso nab le jur

y c ou ld c on c lud e that th e de fe nd ants int e nti on a lly stole proper

ty (money and pizz as) f

rom the victim by

striking him forcef

ully in the back of the he ad wi th a ba se ba ll b a t. S e e Te nn . Co de Ann. §§ 39 -1 3- 40 2( a )( 1) , - 11 -1 06 (a )( 5) (2 00 6) . T his

a ssi g nme nt i s w ith ou t me ri t.

II. P ropriet y of the Defend ants’ Ten-YearSentences

The de fenda

nts arg ue that the tria l court misapplied ce rtain of the e nhance ment fac tors and imposed excessive sentenc es. In this reg ard, w e note that the defendants do not contest application of two enha

nceme nt fac tors, and this c ourt has noted that a pplication of a sing le fa ctor c an justify an enha nced se ntence . See State v. B olling, 75 S.W.3d 418, 421 (Tenn. Crim. App. 2001).

On J une 6, 2006, the t rial court held s epar ate sentencing hear ings for t he def endants, finding five statutory

enhanc ement fa ctors applied to bo t h d ef endants: (1) both had previous histories of criminal beha

vior, see T en n

. C o de Ann. § 40- 35-114(2) (2003); (2) both we re le ader s in the 2 commission of a n o ff

en s e i n volving two or

more c riminal actors, se e Te nn. Code Ann. § 40-35- 114(3) ( 2003); (3) the persona l injuries sustained by the victim were par t i cu l ar ly g reat, see Te nn. Code Ann. § 40-35- 114(7) ( 2003); (4) the y had no hesitation about committing a crime w here the risk to human l i fe wa s h i g h, see Te nn. Code Ann. § 40-35- 114(11) ( 2003); and (5) the cr ime was committed under c ircumstance s under whic h the potential for bodily injury to a victim was g reat, see Tenn. Code Ann. § 40- 35-114(17) (2003). As to De fenda n t W al k er, the trial court a pplied one

a dd iti on a l enh anc e me nt fa c tor , tha t the fe lony wa s com mit te d whi le he wa s on a for m of r e le a se int o the community

under supe rvision, see Te nn. Code Ann. § 40-35- 114(14)( E) (2003)

.

As fo r mit ig a tio n, the tr ia l c ourt fo un d that tw o statut or y fa c tor s a

pp lie d to e a c h d e fe nd a nt: (1) they lacke d substantial judgment in committing the of fense beca

use of their

y outh, s ee T enn. Code Ann. § 40-35-113( 6) (2003); and (2) they wer e motivated by a desire to provide nec essities for themse lves or their f

amilies, see Te nn. Code Ann. § 40-35- 113(7) ( 2003).

Both de fend a

nts w e re se ntence d as Rang e I , standard of fende rs to ten y ear s in the Depa rtment of Corre ction and orde red to pa y a fine of $1000.

When an acc used challeng es the leng th and manner of ser vice of a sente nce, it is the duty

of this court to conduct a de novo revie w on the rec ord “with a presumptio n t h at t h e d eter minations made by the cour t from wh i ch t h e appeal is taken a re c orre ct.” Te nn. Code Ann. § 40-35- 401(d)-7-

(2003). This pre sumption i s “conditioned upon the af firmative showingin the rec ord that the trial

c o u rtc o n s i d e r e d

t h e s e n t e n c i n g p r i n c i p l e s an d a l l r e l e v an t f a c t s an d c i r c u m s t an c e s

. ” S t a t e v

. A s h b y, 823 S.W .2d 166, 169 (Tenn. 1991) . Howeve r, the pre s u m p t i o n does not apply to the leg al conclusions rea ched by the trial court in se ntencingthe ac cused or to the deter

minations made by

the trial court whic h are p re d i cate d upon uncontrove rted fa cts. State v. Butler , 900 S.W .2d 305, 311 (Tenn. Crim. App. 1994) ; State v. Smi th, 891 S.W .2d 922, 929 (Tenn. Crim. App.1994) ; State v. Bone stel, 871 S.W .2d 163, 166 (Tenn. Crim. App. 1993), overr uled on other g rounds by State v. Hooper , 29 S.W .3d 1, 9 (Tenn. 2000)

.

B e c a us e , a s w e wi ll e xpla in, we c on c lud e tha t th e tr ia l c ourt

e rr e d in a pp lic a tio n o f c e rt a in of the e nh anc e me nt f

a c tor s, our r e vie w i s de novo
, without a presumption of cor

rec tness. State v. Shelton, 854 S.W .2d 116, 123 (Tenn. Crim. App. 1992) . I n conductinga d e novo re v i ew of a

s en t en ce , t h i s co u rt m u s tco n s i d er (a ) a n y ev i d en ce re ce i v ed at t h e t ri al an d / o r s en t en ci n g h ea ri n g, (b ) t he pr e se nte nc e re po rt , (c ) the pr inc ipl e s of se nte nc ing , ( d) the argume nts of c ouns e l r e la tiv e to sentenc ing a lternatives, ( e) the natur e and chara cter istics of the offe nse, (f ) any mitigating or enhance m en t fa ct ors, (g ) any statements made by

the ac cused in his own beha lf, and (h) the

acc used’s potential or l ac kof potential for reha bilitation or treatment. Tenn. Code A nn. §§ 4 0

- 3 5

- 1 0 3
, - 2 1 0 ( 2 0 0 6 ) ; S t a t e v

. T ayl o r , 6 3 S

. W

. 3 d 4 0 0
, 4 1 1 ( T e n n

. C r i m

. A p p

. 2 0 0 1 ) ( c i t i n g A s h b y, 823 S.W .2d at 168; State v. Moss, 7 2 7 S

. W

. 2 d 229 (Tenn. 1986) ). The a ppealingparty

bear s the burden of showing the s e nte n c e is improper. Te nn. Code Ann. § 40-35- 401, SentencingCommi ssion Cmts.; Ashby , 823 S.W .2d at 169.

A. Applicabl e Enhan cem ent and Mitigating Fac tors

As we have set out, ne ither defe ndant challeng es the trial court’s finding that fac tors (2) a nd (3), r eg ardingtheir histories of c riminal behavior a nd leade rship roles in t h e commission of the offe n s e , w e r e a

p p li c a b le

. H o w e v e r , th e y

ar g u e th a t t

h e tr ia l c o u rt e r

r e d in a p p ly in g e n h an c e me nt fac tors (7), ( 11), and ( 17). The State a g ree s that application of these three fa ctors wa s err oneous.
The victim’s testimony

reg ardinghis injuries was that his head, a rms, and side hurt a

nd that he ha d “ a hu g e kn ot” on

his he a d. Ac c or di ngly
, we con clud e that f a c tor (7 ) w a s n ot a

pp lic a ble beca use the victim did not suffe r “particular ly g reat” personal injury . See Te nn. Code Ann. § 40-35- 114(7) (2003); State v. Spratt, 31 S.W .3d 587, 607 (Tenn. Crim. App. 2000) (finding that application of this f a c to r w a s in a

p p r o p r iate w h e r e th e “ o n ly p h y s ic a l in ju r ie s [th e v ic ti m] te s ti f

ie d th at she sustained during the attack wer e cuts on her head, bruises and scr atche s on her ne ck, and he adac hes that lasted for

a fe w wee ks”). Howeve r, the victim a lso te stified that he wa s a kidney dialy sis patient

a t th e tim e of the ro bb e ry and wa s “ re a l w e a k” a s a

re su lt o f h is d a ily

dia ly sis tr e a tme nts . H e a lso said that his leg s and ankle s were swollen the morning o f t h e robbery and that he c ould not run wi tho ut h a vin g a ha

rd tim e br e a thi ng

. Th e se inf ir mit ie s ma de him

mor e vu lne ra

ble and le ss a ble to resist and e scape from being chase d and beaten, as occurr ed duringthe attac k. Acc ording ly , we f ind to b e a pp lic a ble to b oth

de fe nd ants e nh anc e me nt f a c tor (5 ), that the vic timwa s “ pa

rt ic ula rl y vulnera ble bec ause of

ag e or phy sical or menta l disabilit y .” See T enn. Code Ann. § 40-35-114( 5) (2003); see also State v. Bog g s, 932 S.W .2d 467, 473 (Tenn. Crim. App. 1996) (s t at i n g t hat “[a]-8-

vic timis p a rt ic ula

rl y vu lne ra ble wi thi n th e me anin g of thi s enh anceme nt f

a c tor wh e n th e vic tim lacks the a

bility to resist the commission of the cr ime due to ag e, a phy sical condition, or a me ntal condition”) (c iting State v. B utler, 900 S.W.2d 305, 313 (Tenn. Crim. App. 1994)).

Reg ardingfac tors (11) a

nd (17), “ [t ]h is [ c]ourt has previously held that ‘a

bsent any proof establishing r isk to li fe othe r than the vic tim’s .

. . these factors are essential eleme nts of [agg ravated robber y ]’ and, there fore , inappropriate.” State v. King , 905 S.W .2d 207, 213 (Tenn. Crim. App. 1995) (quoting State v. Hicks, 868 S.W .2d 729, 732 (Tenn. Crim. App. 1993)), overr uled on other g rounds by

State v. Wil liams, 977 S.W .2d 101 (Tenn. 1998); see State v. Clay brooks, 910 S.W.2d 868, 872 (Tenn. Crim. App. 1994) . As there is no evidence in the rec ord that any life other than the victim’s was put at risk by the defendants’ conduct, t he trial court’s application of fac tors (11) a nd (1 7) wa s e rr on e ou s.
Walker additionally

argues that it was er

ror f or the trial c ourt to apply fa ct o r (14) , that the offe nse wa s committed while on a for m of rele ase f

or a f elony conviction. See Te nn. Code Ann. § 40-35-114( 14) (2003) . The trial c ourt based a pplication of t his fac tor on the fact that Walker wa s on judicial diversion following his prior entry of a g uilty plea to attempted agg ravated burglar y . The d e f e n d an tar g u e s t h a th i s b e i n g p l a c e d o n j u d i c i a l d i v e r s i o n h a d n o t r e qu i r e d t h a th e f i r s tp l e a d g u i l t y. As we w ill ex plain, we disag ree with this vi ew.

Tenne ssee Code A nnotated sec tion 40-35-114 s t at es t hat a de fenda nt’s sentenc e may

be enhanc ed whe n:
(14) The felony was commit ted while on any of the following

forms of r elea se status if su c h r e le a se is from a prior felony convic tion :
( A ) B a i l
, i f

t h e d e f e n d an ti s u l t i m a t e l y c o n v i c t e d o f s u c h p r i o r

f e l o n y;
(B ) Parole;

(C ) P ro batio n;
(D) Work re lease ; or
(E) An y oth e r ty pe of r e le as e into the community under the direc t or indirect

s u p e r v i s i o no f t h e d e p art m e n to f

c o r r e c t i o no r l o c a l g o v e r

n m e n t a l a u t h o r i t y.
Tenn. Code Ann. § 40- 35-114(14) (2003) ( emphasis adde d).

Although this cour

t has previously

held t h a t a p p lication of this fac tor is not appropriate wher e the def endant c ommitt ed the of

fense for whic h he is being sentenc ed while on pretrial diversion , see State v. L inda S ue Ka

y wo od and Ric ky Ha rb in, No s. 03 C01 -9 90 1- CC- 00 04 1, 03 C01 -9 90 1- CC00 04 2, 20 00 WL50 44 , at *5 (T e nn . Cr im. Ap p. , Jan . 5 , 2 00 0)
, pe rm

. to a pp e a l de nie d ( Te nn . JulyU nder t he 20 05 amendment , t hi s s ubs ect i on became 40- 35

- 11 4(13)( C )

. As we h ave s et out , t he s t at ut e, as 3

am end ed
, was not ap p l i cab l e t o t he d ef end ant s b ecause t hey d i d not execute wai vers al l o wi ng t hi s t o oc cur.

-9- 31, 2000), we conclude that application of this fa ctor may be appropriate when the defe ndant is on judicial diversion

. An important diffe renc e betwe en the two is that a defenda nt rele ased on the l atter ha s been found g uilty

of or pled guilty

to the offe nse for

which diver sion was soug ht. Compare Te nn. Code An n

. § 4 0 -1 5 -1 0 5 (a )( 1 )( A) (2 0 0 3 ) ( p er m i t t i n g pretrial diversion when a qualified defe ndant and the S t ate to ente r into a memora ndum of understa

nding that “prosec ution will be suspended for a specifie d period” ) (emphasis added) and Tenn. Code Ann. § 40-35-313(a)( 1)(A) (2003) ( allowing a trial c ourt to “def

er f urther pr ocee dings a g ainst a qualified de fenda nt and place suc h defendant on probation upon such re asonable conditions a s it may require without e ntering a judg ment of g uilty ”) (e mph a sis a dd e d) ; se e a lso Te nn . Co de Ann. § 4 0- 35 -3 13 (a )( 1) (B )( i) ( a) (2003) (defining “qualifie d defe ndant” f

or the purpose s of judicial diversion as someone who has be en found or pled g uilty ).

Since the g uilt of defenda

nts on judicial diversion is established, and non- entry of judg ment of c on vic tio n d e pe nd s u

po n s uc c e ssf

ul c omp le tio n o f the div e rs ion ary pe ri od , th e ir

c ir c ums tanc e is

su ff ic ie ntl y ana log ou s to be ingon

re le a se fo llo wi nga

fe lony c on vic tio n to wa

rr ant a pp lic a tio n o f t

his

e nh anc e me nt f

a c tor . M o r e o ve r, the jud ic ia l di ve rs ion statut e te rm s th e div e rs ion ary pe ri od of re le a se “probation,” which is a for m of rele ase spe cifica lly

mentioned by

the en h an ce m ent statute. See Tenn. Code Ann. §§ 40-35-313( a)( 1)(A)
, -114(14) (C) (2003). Acc ording ly
, we conclude that the 3 finding of g uilt that occur s with a n acc epted g uilty plea or g uilty verdic t neede d for judicial diver sion

c on sti tut e s the “ c on vic tio n” c on te mpl a te d in Te nn e sse e Cod e Anno ta te d s e c tio n 4 0- 35 -1 14 (1 4) (C ) (2003) a nd as conc luded in State v. Vasser , 870 S.W .2d 543, 545 (Tenn. Crim. App. 1993)

.

Ac c or din g ly , w e c on c lud e that e nh anc e me nt fa c tor s (2) , (3) , a nd (5 ) a re a pp lic a ble to b oth defe ndants and fa ctor (14) additionally applies in Walker’s case. We ag ree with the t rial cour t that mitigating fac tors (6) a

nd (7) should be applied in se ntencing the def endants. B eca

use, as we have set out, application of a

single enhanc ement fa ctor c an justify an enha nced se ntence , we c onclude that th e re c or d s up po rt s th e tr ia l c ourt ’s se nte nc ingde te rm inatio ns

. B. Length of

Sentences

The sente ncing rang e for

a Rang e I
, standard offende r convic ted of a Class B fe lony

is eig ht to twe lve y ear s. Tenn. Code Ann. § 40-35-112( a)( 2) (2003). As both enhanc ement and mitig ating fac tors apply

to the defe ndants in this case , the sentenc ing c ourt “must start at the minimum sentence in the rang e, enha

nce the sentenc e within the ra ng e as a ppropriate for the enhanc ement fac tors, then reduc e the sentenc e within the rang e as appropr iate for the mitigatingfac tors.” Te nn. Code Ann. § 40-35-210( e) ( 2003).

Acc ording ly , with a sentenc e of e ight y ear s as our star ting point, we c onclude that the

a pp lic a ble e nh anc e me nt f

a c tor s w arr ant i nc re a sin g the de fe nd ants ’ s e nte nc e s to te n y e ars

.-10- III. Unconstitution al F ines

Walker additionally

asser ts that the trial court violated his c onstitut ional rig ht to have a jur y imp os e any

fi ne in e xce ss o f f

if ty do lla rs

.

I nitially , we note that neither de fenda nt argue d at s entencing or at their motions for a ne w tri al t h at t h e t rial cour

t was without authority

to impose their $1000 fines, and or dinarily , issues raised f or the fir st tim e on appe al ar e considered waived. See Tenn. R. Crim. P. 12(b)(2), (f ); Tenn. R. App. P. 3(e); State v. Maddin, 192 S.W.3d 558, 561 ( T en n

. Crim. App. 2005) (stating that “[w]hen an issue is raised for the first time on appe al, it is ty pically waived” ). Moreove r, McCobb has not eve n prese nted the issue on appe al.

No ne the le ss, we may

c on sid e r Wa lke r’ s argume nt u nd e r t he do c tr ine of

pla in e rr or . Ru le 52(b) of the T en n es s ee Rules of Criminal Procedure provides that “[w]hen nece ssary to do

su bs tanti a l ju sti c e , a

n a pp e llate c ourt

may c on sid e r an e rr or that ha s a ff e c te d th e su

bs tanti a l r ig hts of an a ccus e d a t an y ti me , e v e n th o u g h th e e r r o r w a s n o t r a is e d in th e mo ti o n f o r a n e w trial or assig ned as e rror

on appea l.” Tenn. R. Crim. P. 52(b).

When determining whether such a r eview is a

ppropriate , the following five factors must be established: “‘( a) the rec ord must c lear ly establish what occ urre d in the trial court; (b) a cle ar a nd unequivoca l rule of law

must have bee n brea ched; ( c) a substantial rig ht of the ac cused must have been a dverse ly

aff ecte d; (d) the a ccuse d [m ust not have waived] the issue for tactica l r easons; and (e) c o n s id e r a ti o n o f th e e r r o r [mu s t b e ] n e c e s s ar

y to d o s u b s ta n ti a l ju s ti c e

. ’ ” St a te v

. Terr y , 118 S.W. 3d 35 5, 36 0 ( Te nn . 2 00 3) (q uo tin g State v. Ad

kis so n, 89 9 S.W.2 d 626 , 641 -4 2 (T e nn . Cr im. App. 1994)).

We c on c lud e tha

t e a c h e le me nt n e c e ssa

ry to s up po rt

a fi nd ing of

pla in e rr or

is p re se nt i n th is

c a se . A rt ic le 6, Se c tio n 1 4 o f t he Te nn e sse e Con sti tut ion state s:

No fi ne sh a ll b e la id on any c iti zen of thi s State tha

t sh a ll e xce e d f

if ty do lla rs , un le ss i t sh a ll b e a sse sse d by a jur y of his pe e rs , wh o sh a ll a sse ss the fi ne a t th e tim e the y fi nd the fa c t, i f t

he y thi nk the fi ne sh ou ld b e mor e tha n f if ty do lla rs

.

I n light of this provision, our supre me cour t has ruled that ther e ar e only two circ umstances i nwh i ch a t ri al co u rt ac t i n g su a s po nte may impose a fine over fifty dollars: “(1) when the de fenda nt waives th e r ig h t f

o r ju r y d e te r mi n a ti o n o f th e f

in e , St a te v

. Sa

n d e r s , 7 3 5 S. W. 2 d 8 5 6
, 8 5 8 (Tenn. Cr im. Ap p. 19 87 ), and

(2 ) wh e n the fi ne is s ta tut or ily sp e c if ie d a nd a llo ws no jud ic ia l di sc re tio n in its im position, Franc e v. State, 65 Tenn. 478, 486 (1873).” State v. Martin, 940 S.W.2d 567, 570 (Tenn. 1997)

.

Her e, the r ecor d does not show that the def endants wa ived this right, nor is a rele vant fine delineate d by

statute. Rather, our

examination of the record makes it clea r that no mention of a f

ine

wa s ma de in t

he jur y c ha rg e or ve rd ic t, b ut t

he fi ne s w e re ind e pe nd e ntl y imp os e d b y

the tr ia l c ourt

.-11-

Acc ording ly , we r educe the def endants’ fines to $50 be cause it was constitutional error for the tr ial court to impose them on its own initi ative.

IV. Im peachm ent of Walk er with Pr ior Off ense that Re sulted in Judi cial Diversion

Walker ar g ues that it was er ror f or the trial c ourt to allow the State to impeach him with the fac t that “he ha d pled g uilty to another f

elony involving disho n es t y : criminal attempt ag g ravated burg lary .” In this reg ard, he makes thre e spec ific asse rtion s : (1 ) t h e t ri al cour t erre d by “utiliz ing Rul e 60 9 o f t

he Te nn e sse e Rul e s of Ev ide nc e rathe r tha n Rul e 60 8 to d e te rm ine the a pp ro pr ia te ne ss of the State ’s qu e sti on inga nd a dmi ssi bil ity

of the e vid e nc e ;” (2 ) t

he State fai led to giv e him adequate notice unde r Rule 608 of the Te nnessee Rules of E v i dence ; and (3) “ the scope of the questioning a

nd evidenc e allowe d went beyond that allowed unde r Rule 608.”

The State conce des, and we ag ree , that Rule 609 of the Te nnessee Rules of Evidence does not apply when a d e f e n d a nt-witness is impeache d with a cr iminal prosecution that re sulted in judicial diversion. See State v. Jesse Ross Tolbert, No. E1999-02326- CCA-R3-CD, 2000 WL 1172344, at *4 (Tenn. Crim. App. Aug . 18, 200 0 ) (c o ncluding that “whe n a def endant is g rante d judicial diversion there is no conviction within the meaningof Rule 609” a nd that the issue is g overne d by Rule 608) (c iting State v. Schindler, 986 S.W.2d 209, 211 (Tenn. 1999); S t at e v . Dishman, 915 S.W .2d 458, 463 (Tenn. Crim. App. 1995)). Whether a de fenda nt-witness should be impeac hed by pr ior c on du c t th a t r e su lte d in

jud ic ia l di ve rs ion
, and wh a t pr oc e dure s mus t be fo llo we d to do so is g overne d by

Rule 608. I d.

Acc ording ly , it was err or for the t rial court to conclude unde r Rule 609 that Walker c ould be qu e sti on e d o n cr os s- e xami natio n ab ou t his pri or g uil ty ple a that re su lte d in ju dic ia l di ve rs ion . Wh ile the trial cour

t analy zed this i ssue under

Rul e 609, the safeguards of the applica

ble rule, Rule 608,

wer e nonethe less fully

observe d, as we will ex plain.

Under Rule 608, a witness may be questione d on cross-e x amination about a pr ior bad a ct probative of

the witness’s cha

rac ter for untruthfulness if the trial c ourt holds “a he aringoutside the jur y ’s pr e se nc e [to] de te rm ine that the a lle g e d c on du c t ha s pr ob a tiv e va lue and that a re a so na ble fac tual basis exis ts for the inquiry .” Tenn. R. Evid. 608(b)( 1). I n this c ase, befor e Walker te stified, the trial cour

t held a hea

ring outside the prese nce of the jury to de termine if the State could question him on cross-examination reg arding his previous guilty plea. The court c oncluded that the pr obative value of the “c riminal conduct” outweig hed i t s p re j udicial ef

fec t. Conscious of the fac t that Wal ke r’ s p ri or

g uil ty ple a did no t r e su lt in a c on vic tio n, the tr ia l c ourt ru le d th a t th e State c ou ld o nly i n qu i r e o f h i m o nc r o s s

- e x a m i n a t i o ni f h e h a d p r e v i o u s l y pled guilty to the offense.

Secondly , Rule 60 8 requires that when “ the witness to be impeac hed is the ac cused in a criminal prose cution, the State must give the accuse d reasonable written notice of the impea ching conduct be fore trial, and the c ourt upon reque st must determine that the c onduct’s probative value

on cre dibilit y

outweig hs its unfair pre

judicial eff

ect on t h e substantive issues.” Te nn. R. Evid. 608(b)( 3) (e mphasis added)

. Her e, the State provided Walker w ith written notice five w eeks pr ior-12-

to trial that it int ended to impea ch him with his pr ior “convic tion” for attempted ag g ravated burg lary under Rule 609 if he took the stand to testify on his own behalf

. Although the State sty led the notice as being in compliance with Rule 609, when viewed in conjunction with the hea ring on this iss ue, it was ade quate to g ive Walker the r easona ble notice r equire d by

Rule 608.

As such, Walker’ s argument is untenable that ha d he “believe d the State would be allowe d to utili ze the matter despite its failure to file t he appropriate notice , the def ense ma y have f org one the rig ht to trial and pursued a nother manne r of disposition of the ca se.” B ased on the State’s wr itten notice and the trial court’ s hear ing on the matter, Walker w as fully awa re that if he went to trial and took the stand, he mig ht be questioned a bout the prior bad a ct.

Walker ar g ues that the “ scope of questioning allowed by the t rial j udg e was improper.” The
tr ia l c ourt ru le d th at th e State c ou ld a sk Wal ke r, “ [D]id

y ou e nte r a g uil ty ple a ,” ra the r t ha n a sk if he had previously been convicted of the offense. At trial, the following e x chang e occ urre d betwee n Walker and the State:

Q. And bac k in Marc h 30 of 2004 did y ou also plead guilty to a criminal attempt th

a g g r a v a t e d

b u r g l ar y?

A. Yes, ma ’am, but I

was plac ed on diver sion.

As thi s cou

rt ha s pre vio us ly state d, the te rm s o f t he div e rs ion

statut e “ pr e c lud e re fe re nc e to any criminal proc eeding s incident to the process, but do not prohibit questions about the under ly ing mis c on du c t. ” Di sh man, 91 5 S. W.2 d at 46 4. Ac c or din g ly , th e State sh ou ld h a ve be e n li mit e d to questioning Walker

about his involvement in the criminal act and restricted fr om asking about the leg al proc eeding s attendant ther eto. See id.

Howeve r, we conclude that this e rror does not ne cessitate se tting aside the judg ment of the trial co u rt b e c a

u s e , in c o n s id e r a ti o n o f th e r e c o r d a s a w h o le
, it is n o t p r o b a b le th a t Wa lker wa s prejudice d by

the er ro r. See Te nn. R. App. 36(b) (stating that a n otherwise a

ppropriate final judgme nt “shall not be set aside unless, consideringthe whole r ecor d, err or involving a substantial rig ht more pro b ab l y

than not aff

ecte d the judg ment or would re sult in prejudice to the judicial proce ss”).

CO NC LU SION

Ba sed on the for eg oing a

uthorities and re asoning , we a ffirm the judgments of the trial cour t but modify

the fines imposed to $50 ea ch.

___________________________________ AL AN E. GL ENN, JUDGE