# FILED July 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF CRI MINAL APPEA LS OF TENNESSEE AT NASHVI LLE JANUARY SESSION , 1997
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9602-CR-00076 ) Appell ee, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDA LL WYA TT, JR. CURTIS LE E MAJORS, ) JUDGE ) Ap pella nt. ) (Aggrav ated Robberyand Aggravat ed ) As sau lt)
ON AP PEA L FROM THE J UDGMENT OF THE CRIMINAL COURT OF DAVIDSON COUNTY FOR THE APP ELLA NT : FOR THE APPELLEE : JEFFREY A. DEVAS HER CHARL ES W. B URSON Senior Assist ant Publ ic Def ender Attor ney General and Reporter STEPHEN G. YOUNG MIC HA EL J. FA HE Y II Assist ant Publ ic Def ender Assist ant Attor ney General 1202 Stahl man Buildi ng 450 James Robertson Par kway Nashvil le, TN 37201 Nashvil le, TN 37243-0493 VI CTOR S. JOHN SON Dist ri ct Attor ney General KATRIN N. MIL LER Assist ant Di str ictAtto rney W ashingt on Square, Suit e 500 222 Se con d A ven ue N orth Nashvil le, TN 37201-1649

OPINION FILED ________________________ AFFI RMED AS MODIFI ED DAVI D H. WELLES, JUD GE-2- 

# OPINION

Th is is an appeal as of r ightpursuantto Rul e 3 of t he Tennessee Rules of Ap pella te Pro ced ure. The D efend ant, Cu rtis Lee M ajors, wa s con victed by a Davidson County j ury ofone count of aggravated robbery and two counts of aggravat ed assaul t. He was sentenced as a Range II , mul tiple offe nde r to sevent een years (17) forthe aggravated robbery convi cti on and nine ( 9) years for each convi cti on for

agg rava ted ass au lt, all to be ser ved con cu rren tly. In th is ap pe al, the D efen dan t raise s se vera l issue s for re view: (1) Thatthe trial court erred byfail ing t o suppress the t esti mony of eye wit nesses because of an im pe rm issib ly suggesti ve showup; (2) thatthe admissi on ofan audiot ape of an un ava ilab le wit ness was error; (3) tha t the spec ial jury i nstr ucti on requi ri ng the tri al courtto charge the l ength ofti me the Defendantwould ser ve bef ore bei ng parol ed is unconsti tut ional ; and ( 4) t hat t he sentencesimposed were ex cessi ve. W e affi rm the Defendant’s convi ctions, but modify t he sentences.

We begin w ith a sum ma ry of t he fac ts. At approxi mately9:00 p. m. on A ugust 21, 1994, at t he Mrs. W inner ’s restaurant on Nol ensvi ll e Roa d i n Na sh vill e, t hree e mp loyees, M arla Ka y Cox, W em i Ande leru, and Jam es B urt were preparing t o close the r estaurant. Business wa s slow a nd no custom ers were in t he rest aur ant atthatti me. Ms. Cox and Mr . Burtwere cl eaning i n the dini ng room. A man entered the restaura nt and i mm ediat elywent i nto t he ba t hroo m. Bot h Ms . C oxand Mr . Burtrec ogn ized the m an a s the De fend ant, Cu rtis Lee Majors. However , t he employees k new the Defe nda nt as a for mer coworkerand by an alias, Curtis Patt erson. They descr ibed t he rob ber as a-3-

lar ge man who was approxi mately5'11' ’ i n heightand who weighed ap pro xim ate ly 225 pounds and had a “pot be lly.” These d escriptions were ve ry similar to the Defendant’ s physical features.

Ms. Cox and Mr. Burt went behind t he serving counter and joined Ms. Andeleru . Anot her employ ee, t he dist ri ct manager, was in area r offic e a nd did not witness t he robbery. Ms. Cox testi fied t hat she knew no other cu s tom ers ca me in and t hat t he man in t he bathroom did no t lea ve b ec au se a ch im e w ou ld go offwhen anyon e ope ned the front do or to the res tauran t. All others exits we re locked. Aft er appr oxi mat elytwen ty mi nutes, the Def endant burst t hrough t he door l eading t o the employ ee area behind t he servi ng counter. He had a black r evol ver in one hand and a length of pi pe in the ot her. He was wearing black pants, a b lac k sh irt or s we ats hirt, p an tyho se ove r his face and a blackW hit e Sox ba se ba ll cap, w orn bac kwa rds. He d em and ed tha t the em ployee s lie on the floo r. He used the pipe to break open the “drop boxes ” u nde r t he cash regi sters and took the c ash . Th e rob ber th en fle d the resta uran t.

Ms. Cox test if ied t hat t he man who robbed the s tore was t he D efen dan t, whom she knew as Cu rtis. She recalled tha t a wee k or two b efore the robbe ry, someone had stol en her pay check f rom herpurse while at wo rkand a meeti ng was he ld re ga rdin g t hi s. Th e D efe nd an t wa s pr es en t, bu t no on e w as dire ctly accused of the th ef t. Later , t he Defendantconfronted Ms. Cox and threatened to harm her i f any one said he had taken t he check. Ms. Coxreported t his t o the manager and the Def endant soon ther eaft er di sconti nued worki ng atM rs. W inn er’s . It is no t clea r wh eth er h e w as term ina ted or vo lun tarily r es ign ed
.-4- Ms. And eleru did notsee the Def endant ent er t he rest aurant , buttest if ied thatthe robber l ooked li ke him even t hough his face was obs cured. She reported thatthe robber’ s physi que was li ke the Defendant ’s and t hat he was “ huge” and thatshe recogni zed his voice. M r. Burt recognized the Defendant when he fi rst enter ed the re stau rant a nd id entified the ro bbe r as th e sa m e m an w ho w ent in to t he r es t au r an t ba t hroo m.

After the ro bbe r left, Mr. Burt wentnextdoor, call ed 911 and a pol ice offi cer arri ved at t he scene wi thi n a few minut es. A desc ri pti on of t he assai lantwas broa dca st. Anotheroff icer searched t he area near the restaurant. W hil e on a n earby str eet, thatoff icer saw a bla ck male wal king on the roadside. The man was weari ng a red T-sh irt, blue sh ort s and a W hite S ox ca p. Th e office rradi oed the off icer

on the s cen e an d as ked whe ther th e rob ber w as h eav yset. The off icer on the scene confir med this d escri pti on an d a lso sta ted tha t the De fen da nt’s nam e wa s C urtis. The offi cer drove al ong side the m an an d a ske d w he the r his na me was Curti s and the Defendantansw ered “ye s.” He arrest ed the Def endant and took hi m back to Mrs. W inner ’s f or a showup. The three wit nesses i denti fi ed the Defendant as the robber. The witnesses also noted t hat the Def endant was yel li ng from the poli ce crui ser “ W hat was t he robberweari ng?” The poli ce off icer te sti fi ed thatthe Def endant y ell ed “What was I weari ng? W hat was I suppo se d to be weari ng?” The Defendantlat er cl aimed thathe had been in t he rest aurant at app roxim ately 8 :30 to buy a dr ink. However, none of t he employees recal led see ing h im in the re stau rant e arlier tha t nigh t.

The pipe was left i n the res tau ran t. Oth er p olice offic ers rec ove red a p air ofblacksweatpant s and a ban k bag contain ing $77 0 in cas h, which were hidden1 Tenn. Code Ann. § 39-13-402.
2Tenn. Code Ann. § 39-13-102. -5- in a nearby fi eld. Pantyhos e wit h the l egs cutout w ere fo und in the p arkin g lot. No gun was recovered. No fi ngerprint s w ere obt ained fr om the pipe or t he restaurantbecause of a greasy fi lm on the counter and glass surfaces.

The Defendantwas charged with three c oun ts aggra vated ro bbe ry. 1 Aft er the St at e p r es en t ed i t s c as e- i n- ch i efatt r i al , de f en se co un se l mo ved fo r a judgmentof acqui tt al as to all co unts
. The tri al court gr anted t he motion ex cept forthe fi rstcountagainstMs. Cox becaus e she was t he assi stantmanager of t he rest aurantfrom whom the money was taken. As for the remaining c ounts, the tri al cou rt cha rged the jur y with ag gra vate d a ssa ult 2 as a lesser i ncluded offense ofaggravat ed robbery. The Defendant was c onvi cted ofone count ofaggravat ed robb ery a nd tw o co unts of ag grav ated ass ault.

I.

As his first iss ue, th e D efe n dant charges thatthe t ri al court er red by denyi ng his p ret ri al moti on to suppress any i n-court i denti fi cati on byt he v i ct i ms as tai nted bya pri or showup t hat was undu ly sug ges ti ve. An ident if icat ion proce dure that i s so impermissiblysuggestive “ as to giv e rise to a verysubstant ial li keli hood of i rreparable mis ident if icat ion”vi ol ates due proc ess . Sim mo ns v. Un it ed Stat es , 390 U.S . 377 , 384 , 88 S .Ct. 96 7, 97 1, 19 L.Ed .2d 1 247 (196 8). Alt hough itmay be suggestive, an i dentif icati on may satisfy due p rocess as relia ble and admissi ble i f t he tot ali ty o f t he circum stan ces so w arra nts. See Sta te
v. Brown , 79 5 S
. W.2d 68 9, 69 4 ( Ten n. Cr i m. App. 1990) . Fi ve f actors are t o be-6-

considered whe n evalua ting the pro priety of the id entifica tion p roce ss. Ne il v. Bigge rs , 409 U.S. 188, 199, 93 S.C t. 375 , 382 , 34 L .Ed .2d 4 01 (1 972 ); Be nne tt
v. State , 530 S. W .2d 511, 514 (T enn .), reh’ g. deni ed (Tenn. 1975) . These ar e: (1) The opportuni ty t he wit ness had t o vi ew the cr iminal at t he ti me of the c ri me; ( 2) the wi tness’ degree ofatt enti on; ( 3) t he accuracyof t he wit ness’ pri or descri pti on of th e cr im ina l; (4) th e le vel o f ce rtain ty of the wi tness atthe confrontat ion; and (5) the ti me between the c rime and the c onfro ntatio n. Brown , 795 S.W.2d at 694.

A sho wu p is a fo rm of i de ntific atio n o f a d efe nd an t tha t is inh ere ntly suggesti ve. The use of showupsto est abli sh the i denti fi cati on of a person suspecte d of co m m itting a c rimin al off ense ha s been repeat edlycondemned, Sto vall v. Denno , 388 U.S . 293 , 87 S .Ct. 19 67, 1 8 L.E d.2d 119 9 (19 67); W adley
v. State , 634 S. W .2d 658 ( Tenn. Cri m. App. 198 2); State v. Beal , 614 S.W .2d 77 (Tenn. Cr i m. Ap p. 19 81 ) ; un l es s ( a) t he r e a r e i mp e rati ve circumstances which nec ess itate a sh ow up, Stova ll v. Denno , 388 U.S . 293 , 87 S .Ct. 19 67; Forb es v. Sta te , 559 S.W.2d 318 (Tenn . 1 977 ); State v. M oore , 596 S. W .2d 841 ( Tenn. Cr i m. Ap p. 19 80) o r (b) the sho wu p oc curs as a n on -th e-scene investigatory proce dure sho rtly afte r the c om m ission of the crim e. State v. Thomas , 780 S .W.2d 379 , 381 (Te nn. C rim. A pp. 1 989 ); Joh nso n v. S tate , 596 S. W .2d 97 (Tenn. Crim . App . 197 9); Ru sse ll v. St ate , 489 S. W .2d 535 ( Tenn. Cri m. App. 197 2); Bra cke n v. S tate , 489 S .W .2d 26 1 (Te nn. C rim. Ap p.197 2).

In the case at bar , t he Defendantwas known to and had worked t ogether with all three vi ctims. Two of t hem clearl y saw t he Defendantenter the bat hroom ofthe rest aurantand did n ot see hi m leave t he rest aurantunti l he emerged i n the-7-

employee area. All were f amili arwith his b od y typ e a nd his voi ce. Al though t he De fen da nt’s face was covered by pantyhose, his other fea tures w ere ident ifyi ng. In addition, the Defe nda nt was appre hen ded not m ore than a few minut es aft er the robbery and on a s t reetjustbehind t he rest aurant . The wi tnesses tol d the police thatthe per petr ator ’s name was Curt is and a n off icer arres ted t he Defendantafter

he acknowledged that his name was indeed Curti s. The Defendantwas aski ng the v ict ims from the poli ce cruiser in which he was seat ed about the cl ot he s t he r ob be rwa s w ea r i ng . Fi na l l y, al l t hr ee v i ct i ms ident if ied t he De fenda nt accu rately and with certainty.

Alt hough we acknowle dge thatshowup iden ti fi cati ons are i nher ent ly suggesti ve, we believe thatthese on- the- scene i nvest igat ory c onfr ontat ions t hat occur red wit hin a reasonable ti me after the commissi on of t he off en se ar e permissi bl e. Theref or e, th e t ri al cou rtdi d no t e rr i n de ny i ng t he mo ti on. Th i s issu e is w ithou t me rit.

II.

As h is next issue , the De fenda nt argu es that trial cou rt erred byfailing to excl ude the preli minary hear ing test imo ny of a n un ava ilable w itnes s. Jam es B urt, one of the witne sses prese nt during the robb ery, could n ot be l ocated att he t i me ofthe t ri al. However, Burt t esti fi ed atthe preli minary heari ng. Hi s test imonywas au dio taped . The State m oved to introduc e Bu rt’s testimon y as a fo rmer test imonyhearsayexce pti on pursuantto Rul e 804, Tennessee Rul es of Evidence. The perti nent porti on of that rule st ates:-8- (b) Hearsay exceptions. The fol lowi ng are notexcl uded by t he hearsay rule i f the decl arant i s unavailabl e as a witness: (1) Former te sti mony. Testi mony give n as a wit ne ss at anot her heari ng of the same or a different proceeding . . . i f the party against whom the te stim ony is now offere d ha d bo th an opport unity and simil ar mo tive to devel op the t esti mony by di rect , cross, or redi rectexaminat ion. Tenn R. Evid. 804(b) (1). The Advisory Commission Comm ent notes t hat “ [t ]he rule c ove rs . . . prelim inary h earin g tran scrip ts.”

The Defendantfi rstall eges thatthe State failed to prov e the una vailab ility ofthe witne ss, J ames Burt, by admitti ng the affi davi t ofthe St ate’ s inv esti gator wit hout allo wing the Defend ant t o cross- examine hi m. Also, he asserts that defense counsel did nothave a “simil ar motive” at the prel iminary heari ng. This, he clai ms, amounts to a vi olat ion ofthe Si xth and Fourt eenth Amendments to t he United Stat es Consti tut ion and Arti cle I , sect ion 9 ofthe Tennessee Const it uti on.
Our supreme cou rt has addressed thi s issue as fol lows:

The same standard s and cri ter ia appl y to both of t he consti tut ional provisi ons. State v. Ar mes , 607 S.W .2d 2 34, 2 36 (T enn .198 0). T he confrontat ion clause of t he Sixth Amendm ent restr icts t he r ange of ad m issib le hearsayin two ways. First, the a dmissi on of t he hearsay testimo ny m ust be n eces sary, i. e., the decl arantmust be unavai labl e. Second, once the declarant i s shown to be unavai labl e, some i ndici a of reliab ilitymu st be sho wn . Oh io v. Ro berts , 448 U.S . 56, 6 5, 10 0 S .Ct. 2531, 2538-39, 65 L.Ed. 2d 597 (1980) . The i nd ici a of re liability requi rement is met by t hose hearsayexcept ion s re stin g u po n su ch solid foundat ions thatadmissi on of v irtual ly any evi dence wit hin t hem com ports with th e righ t of con fronta tion. Id. at 66, 100 S.Ct. at 2539. Sta te v. Causby , 706 S. W .2d 628, 631 (Tenn. 1986). The determi nati on that a witness is unavail able requir es a good f ait h eff ortby t he Stat e to l ocate t he-9-

witness. Armes , 607 S.W .2d a t 237 ; Sta te v. Ar no ld , 719 S. W .2d 543, 548 (Ten n. Crim . App. 1 986 ).

Alt ho ug h it wou ld ha ve be en p refera ble fo r the in vestig ator to testify regardi ng his eff ort s to f ind t he wit ness, we f eel t he proofsubmitt ed establ ished a reas ona ble g ood faith effo rt. The State f irst attempted t o serv e a subpoena. After thi s fai led, the St ate di rect ed its in vest igat or, Bob Chaudoin, to l ocate t he witness. Th e in ves tiga tor’s affid avit a dm itted by th e S tate chr on icled his invest igati on. The affi davitreads as fol lows:
I, Bob Chaudo in, be ing fi rstdulysworn, do herebystat e thatI am an Inves ti ga torforthe Off ice ofthe Di str ictAtto rney Gener al f or t he Tw entie th Jud icial D istrict. As partof my dut ies, I am assi gned to h elp loca te wit nesses. During t he las t f ew months I hav e tr ied t o locat e a James Da vid B urt, m al e, whi te , DOB 4/1 5/64. I spok e t o Rhon da A. Bu rt, the ex-w ife of James, who rel ated t o me that s he had not s een or hea rd from James in at leasttwo months, nor has Ja mes sent her any money o r cal led abouthis c hil d. A computer check shows hi s las t arrestas January 12, 1995, atwhich ti me he gave his address as 656 W est Ir is Dri ve whi ch is a halfway house. His Tenne ssee Dr iver’s License is su sp en de d. T he ad dre ss in the comput er s hows an address of123 Vicki e Court, Nashvil le, Tennessee, 3721 1. A check wi th t he ownerof the du plex, who rel ated t hat James was never on the l ease of the duplex , had moved outin Sept ember 1994 owing over athousand dollars, an d h is loc atio n was unk nown. A credit check shows his last address as 123 Vick ie Cou rt(t his was i n June 1 994). His las t kn own employerwas the Sy lv an Park Restau rantlocat ed at 5207 No len sville Road
. He left t here i n September oflastyear wi th no f orwardi ng address. His lastknown address at the rest aurant was 123 Vick i e Co urt. H is m oth er in Pa lm Ha rbo r, Flo rida , ha s no t he ard from him in months and is not sure ifhe is aliv e o r de ad an d is veryconcerned for hi m.

The Defendantcontends thatbecause t he inv esti gatorwas out oftown and did n ot t esti fy a bout t he content s of t he aff idav it , t he Defendantwas un able t o cross- examine hi m. He complains thatthe i nvest igat or di d not properl y check t he-10-

halfway house address as his lastknown address and that with crossexaminat ion, the Def endant may hav e prov ed th at t here was an i nsuff ici ent showing of un ava ilability. Alth ou gh we ag ree tha t it wo uld ha ve b ee n p refe rab le forthe i nvest igat or t o test ify, t he con fr ontat ion cl ause does notrequi re t hat t he source ofproofof unav ail abil ity be cross-ex amined. The t ri al courtrevi ewed the affid avit and deter m ine d th at th e w itne ss w as un ava ilab le. T his cas e is dist ingui shabl e f r om Armes , i n which our supreme courtfound a l ack of g ood fai th. 607 S.W.2d at 237. There, t he Stat e was on no tice afte r a w itne ss d id not appearat a first trial. Id. The State merel y i ssued anot her subpoena and prese nted no a dmissible proofof i ts i nvesti gator’s efforts to l ocate the wit ness. Id. He re, the State sub m itted an affidav it detailing the inv estig ator’s efforts . W e beli eve t hat f rom the proof pr esented, ther e was a suffi cientshowing of a good faith effort to locate the witness to validly establish h is unava ilability.

The Defendantalso argues thatthe trial c ou rt err ed in admitt ing t he for mer test imonyunder Rul e 804(b) (1) be cause the motiv ati on for cross- examini ng the witness at t he prel iminary heari ng was differ ent f rom thatat t ri al. He contends thatthe f ocus of cross- examinat ion atthe preli minary heari ng was to learn what the witness had seen and done att he t i me o f t he r ob be r y. Co nv erse l y, he cl ai ms thatthe c ross -exa m ination at trial wo uld h ave fo cuse d on the propri ety of t he witness’ iden tifi cat ion of t he Defendant. He concludes that because defense counsel could n ot cro ss-ex amine the wi tness on thi s iss ue, he was dep ri ved of hi s c on st i t ut i on al r i gh t t o c on f r on t t he wi t ne ss es ag ai ns t hi m.

The issu es in the two p roc ee din gs are no t req uire d to be ide ntic al, b ut if theyare “s ufficien tly sim ilar,” a sim ilar m otive m ay be con clud ed. Sta te v. H ow ell ,-11-

868 S.W .2d 238, 251 (Tenn. 1993). I t i s clea r t hat t he Defendanthad an opp ortun ityat t he prel iminary heari ng to conf ron t M r. Burt. The Defendant a sserts, how ever, that the purpo se of the cross-e xam ination wa s to “l ear n everythi ng thatBurt ha d seen and done duri ng and immediat elyaft er t he robb ery.” Yet, the ul ti mate iss ues in q uesti on were whet her t he Defendantwas the pers on w ho c om m itted the robb ery. W e beli ev e the moti ves atthe prelimina ry heari ng and at t ri al were suffi cient lysimil ar t o supportthe i ntr oducti on ofthe f ormer t esti mony. There i s no unfai rness i f a si milar motiv e is present and defense counsel chose not to devel op such testi mony on cross - exa m ina tion in the form er pro cee ding for tactic al or o ther re aso ns. Ho we ll , 868 S. W .2d at252.

Th is issu e is w ithou t me rit.

III.

As his t hird i ssue, the Defendant argues that th e tr ial courterred by denyi ng h is moti on to charge a speci al j ury i nstr ucti on regar ding t he range of pun ishm ents concerni ng his ev entu al eligib ilityfor p aro le. H e co nte nd s th at th is port ion of the j ury i nstructi on is unconsti tuti onal for vagueness , t hat it c on travenes the separati on of powers doctr ine and t hat i t deni ed him due process. He cites Artic le I, secti ons 8, 9, 17, 19, and Art icl e II , sect ions 1 a nd 2 ofthe Te nne sse e C ons titution a nd th e Fifth , Sixth a nd F ourte enth Am end m ents to the Un ited S tates Co nstitutio n.

The Defendant 's coun sel filed a mo tion to cha rge the juryon the range of punishmentand a motion to excl ude an ins tru cti on on parol e eli gibi li ty a s requi red-12-

by Tennessee Code Annotated secti on 40-35- 201. The t ri al court ov errul ed the De fen da nt's motion t o excl ude t h e p aro le e ligib ility info rm atio n b ec au se it is required by t he statute. The statute reads:
(b)( 1) In all conteste d crim inal case s, excep t for capital crime s which are governed by t he procedures contai ned in §§ 39-13- 204 and 39-13- 205, upon the moti on of eithe r party, filed with th e co urt prio r to the sel ecti on ofthe jury, the court shal l charge the poss ibl e penalt ies f or t he offense cha rged and all lesse r includ ed o ffens es. (2)( A)( i) W he n a cha rge as to po ssib le p en alt ies h as been reques ted pursuantto subdi vi sion ( b)(1) , t he judge shal l al so inc lude i n the inst ruct ions for the jury to wei gh and consi derthe meaning of a sentence ofimpri sonment for

the offense cha rged a nd any l esser i ncluded offenses. Such inst ruct ion shal l i nclude an approxi mate calc ulat ion of the minimum number of ye ars a person senten ced to i mprisonmentfor the offense charg ed an d lesse r included offense s m ust serve be fore reachi ng such person's earl iestrel ease eli gibi li ty d ate. Such calc ulat ion sh all i n clude s uch fact ors as t he rel ease eli gibi li ty p ercent age establ ished by§ 4 0- 35 - 50 1, max i mum and minimum sent ence reduct ion cred its au tho rize d b y § 4 1-2 1-2 36 an d th e g ove rno r's pow er to reduce pri son over crow ding purs uan t to titl e 41, ch apter 1 , part 5, i f appl icabl e.
Tenn.Code Ann. § 40- 35-201(b )(1) & (2)( A)(i ). The Defendantnow argues t hat he was prej udiced bythi s inst ruct ion whi ch he request ed.

The tr ial cou rt instr ucted the j ury that“the mini mum number of years a person senten ced to im pri son m ent f or t his offense must serve befor e reachi ng the ea rlies t po ssib le re lea se eligib ility da te is 1 .65 yea rs. T his calcu l atio n is based on the mini mum sentence possibl e (f or aggr avated robbery) whi ch is 12 yea rs.” This was ba sed on the 1994 amendment to t he stat ute r eq uirin g that parol e eli gibi li ty b e charged. Acts 1994, ch. 847, § 1,2.-13- The Defendant cites Farri s v. Stat e , 53 5 S .W .2d 60 8 (T en n. 1 97 6), in which oursupre me court deter mined thata jury i nstr ucti on under f ormer l aw was un co ns titutio na l. This Courtrecent lyaddressed t his i ssue i n Sta te v. Howard E. King , C. C.A . N o. 02C0 1- 960 1- CR-0 003 2, She l byCo unt y (Tenn. Crim. App, Jackson, Oc t. 22, 1 996 ), perm. t o appeal granted (Ma rch 1 0, 19 97). In that case we held th at because Fa rris inv olv ed for mer law i n which j uri es sentenc ed defendants, it did n ot a pp ly to t he case i nvol vi ng judge s entenci ng and noted t hat Fa rris he ld th e st atu te u nc on stitu tio na l regardi ng the j ury’ s deter minati on of pun ishm ent. Sli p op. at7. Even ifwe a pp ly Fa rris , we concl ude thatthe pro visio n regard ing parole el igi bil ity i n eff ect when Fa rris wa s de cid ed is dis ting uis ha ble from the cur ren t form of th e st atu te w he n co ns ide ring wh eth er it is unc onsti tut ional lyvague.

The for mer provi sion, enacted i n 1973, provi ded that“I t shal l be t he further duty of t he tr ial judge c hargi ng jurors i n cases ofcri minal prosecuti ons forfel ony off enses to charg e the sa id jury as to t he provi sions of t his se cti on and as t o the provi sions of§§ 40- 361 2, 40-3 613 , 41-33 2 and 41-33 4, whe rever ap plicable.” Tenn. Cod e Ann . § 40- 2707 (r epealed) , amendment Acts 1973, ch. 163, § 2. Ju rie s were p rovi ded wit h inf ormati on thatinv it ed them to s peculat e about sentences because no approxi mation was prov ided. The Fa rris court concl uded that“[j]urors sho uld n ot be perm itted to s pec ulate on th e length of sentences, discretiona ry paro le, the a ccu m ulati on o f go od an d h on or tim e a nd a w ho le conglomerat ion of co nting ent e ven ts wh i ch , i f t he y co me t o p as s a t al l , wi l l co me to pass in the future.” Fa rris , 535 S. W .2d at614.-14- Subsequ ently, the l egisl atur e has att empted to remedy thi s by suppl yi ng the esti mated fi gures t o jur ies ratherthan leavin g the m on th eir ow n to calcu late pa role eli gibi li ty b y enacti ng secti ons (b) (2)( A)(i i) and (b) (2)( B). Tenn. Code Ann. § 40-35- 201. They read: (2)( A)( ii) Su ch in struc tions to the jury s ha ll also i nclude a stat ement that whethera defendantis actual lyrel eased from incarcerati on on th e da te w hen such defen dan t is first eli gible for relea se is a disc retionary decisi on made by the board of paroles bas ed upon many fact ors, and thatsuc h bo ard h as th e au thority to r equir e the def endant to serve t he entire sen tenc e im pos ed b y the c ourt. (B) On an annual basi s, t he depart ment of cor rect ion shall provide each judge exerci s ing c rimin al trial co urt jurisd iction w ith the a ppro xima te calcul ati on requ ired in sub division (2)(a) . Suc h ca lculati on shal l be broken do wn to sh ow the effe ct o f ea ch fac tor u se d in m aking such calcul ati on. Ifthe cal culat ion provi ded bythe department t o the judges changes because o f a cha nge in the law o r correction al policy, court int erven ti on, the gov ernor' s pri son over crowdi ng poli cy orany ot her such circumstance, the department shal l send a revis ed c alcu lation to the judg es as such chan ges o ccur. As a resul t, jur ies are provi ded wit h a fi gure wi th t he caveatthatthe act ual t i me served ma y vary. Althoug h an “a pproxim ate”, we fe el that this figure provi des suffi cientdefi nit ion and i s not unc onsti tut ional lyvague. Furt hermore, jurors are prot ected f rom the wide open s peculat ion t hat was apparent wi th t he stat utory sect ion cons ider ed in Fa rris
.
The Defendantnextassert s thatthe r elev ant porti ons of t he stat ute ar e a co ns titutio na llyimpe rmiss ible encro ac hment on the j udici al f uncti on by t he legi slat ure. W e disagree. Some funct ions ofthe t hree departme nts o f state governmentare n ece ssa rily overla ppin g an d inte rdep end ent. W e be lieve this is pa rticu larly tr ue in our cri minal j usti ce syst em . See, e. g. , Lav on v. S tate , 586 S.W .2d 112 , 115 (Te nn. 1 979 ); Un derw ood v. State , 529 S. W .2d 45, 47 (Tenn.-15-

197 5); W ood s v. Sta te , 130 Tenn. 100, 169 S. W . 558 ( 1914). W e fi nd thi s iss ue to be witho ut m erit.

The Defendant al so charges thatthe calcu lat ion of t he minimum number of years to b e serve d unfa irly misleads the jury because t he actual ti me served may be longer . Tenn. Co de A nn. § 40-3 5-20 1(b) (2)(A )(i). Therefore, he argues thathe has been depri ved ofdue processand the right to a fair and impa rtial jury. We disagree. He cl aims thatthe sugges ti on thatparol e eli gibi li ty d ates ma y vary due to the de cision by the Boa rd of Paro les “ based on many factors” i nvi tes the jury to spec ulat e. Tenn. Code Ann. § 40-35- 201(b)( 2)(A) (i i) . However , we do not believe this differs subst anti all y from the charge of the “ possibl e penalt ies forthe offense charged a nd al l l esse r i ncl uded of fe nses .”Tenn. Code An n. § 40-25- 201 (b)(1).

In the cas e sub judice , t he t r ial judge c harged t he jury th at “ [t ]he punishmentfor th e o ffen se of A gg rava ted Ro bb ery in this case wil l be impri sonment fora peri od o f not l ess than Twelve ( 12) years nor more t han Tw enty (20) years.
. . . t he Court will se t t he p unis hm ent a fter a s epa rate sentenci ng heari ng, and t hat puni shment wil l be setwit hin t he ap plica ble range of12 to 20 y ears afterrevi ew ofall rel evant fact ors. ” The range of puni shment inst ruct ion, which t he Defendantrequest ed, provi ded an a pp roxim ate number thathad a potent ial lywide range for possi ble spec ulat ion, bu t no broaderthan thatinv olv ed in t he eli gibi li ty i nstr ucti on.

The leg islat ure ha s se en fit to pr ov ide juries with co mp rehen sive inf ormati on ab ou t t he se nt en ci ng sc he me when ei therparty reques ts suc h an-16-

inst ruct ion. The Defendant c omplains thatthe jury w as un fairly inf ormed of t he earli est rel ease da te, bu t the late st re lea se da te h as also be en pro vide d. It is po ssib le thatthe Def endant coul d be sentenc ed to twenty y ears, ofwhich th e jury was informe d, and serve the entire ter m while i ncarcerated. Thus, t he maximum sentence was charged as w ell. W e ca nnot concl ude thatthe Def endant has been depri ved ofdue processin t his ca se.

Th is issu e is w ithou t me rit.

IV.

As his lastissue , t he Defendantassert s thatthe sent ences i mposed were exces sive because t he tr ial courtmisappl ied t hree st atut ory enha nc eme nt factors. Furt hermore, he not es that t he tri al courtfail ed to specify which enh anc em ent fa ctors app lied to w hich con victions
.
W hen an accused chall enges the l ength, range, or t he manner of servi ce ofa sentence, thi s courthas a duty to conduct a de novo revi ew of t he sentence with a presumpti on thatthe d eter mina tions ma de b y the tria l cou rt are c orre ct. Tenn. Cod e An n. § 40 -35-40 1(d). Th is presumption i s "condi ti oned upon the affirmative showing i n the record t hat t he tr ial courtconsi dered t he sentenc ing pri ncipl es and all rel evant fact s and circum stan ces ." State v. Ashby , 823 S. W .2d 166 , 169 (T enn . 1991 ).

In conducti ng a de novo r evi ew of a sent ence, t his co urtmust consi der: (a) the evi dence, i f any , r ecei ved at t he tr ial and the s entenci ng heari ng; ( b) t he-17-

presentence report; (c) the pr inci ples ofsen te ncin g an d arg um ents as to sentenci ng alt ernat iv es; ( d) t he nature and charact eri sti cs of t he cri minal conduct inv olv ed; (e) any st atut ory mi ti gati ng or enhancemen t fact ors; (f ) any s tat ement thatthe d efen dan t m ade on his ow n behalf ; and ( g) t he potent ial or l ack of potent ial for reh abilitatio n or tre atm ent. T enn . Co de A nn. §§ 40-35- 102, - 103, and -210 ; see Sta te v. Sm ith , 735 S .W .2d 85 9, 863 (Ten n. Crim . App. 1 987 ).

Ifour r evi ew ref lect s thatthe t ri al court f oll owed the st atut ory s entenci ng procedur e, imposed a lawful sent ence aft erhavi ng giv en due consi derat ion and properweightto t he fact ors and pr inci pals s et outunder t he sentenc ing law, and thatthe trial c ou rt's fi ndings of factare adequat elysupport ed by t he record, t hen we may not modify th e sentence even i f we wou ld hav e p ref erred a differ ent resu lt. State v. Fl etcher , 805 S .W .2d 78 5, 789 (Ten n. Crim . App. 1 991 ).

The t ri al court f ound fi ve st atut ory enhan cement factors: (1) That the Defendant has a prev ious hist ory ofcri minal c onvi cti ons or c rim ina l be ha vior in addit ion to t hose nec essaryto est abli sh the appropri ate range; ( 3) t hat t he offense inv olv ed more than one person; ( 10) t hat t he Defendanthad no hesi tat ion about commit ti ng a cri me when the ri sk to hu man lif e was high; (13)( B) thatthe fe lonywas com m itted w hile the De fend ant w as o n pro batio n; an d (16 ) that th e cr i me was com m itt ed un de r circ um sta nc es un de r wh ich the po ten tial fo r bo dily injury to a victim was grea t. Tenn. Code Ann. § 40- 35-114(1 ),( 3), (10), (13)( B) and (16). The trial court f ound no m iti gating f actors.

As an ini ti al matt er, we agree t hat t he tr ial courtmisappl ied enhanc ement factors and did not i ndivi duallyspecifyhow each enhancement facto r app lied to-18-

each con vic tion. As a result, we revie w the D efend ant’s sen tence de no vo without t he presumption of correct ness.
During the sen ten cin g h ea ring , the trial c ou rt en ha nc ed the De fen da nt’s sentences bas ed u pon a nu m ber o f factor s. First, the court f ound thatthe Defendanthad a p revi ous his tory ofcri minal c onvi cti ons and cri minal behav ior as ref lect ed in t he present ence report t hat wer e beyond t hose n ecessa ry to establi sh him as a Ra nge II offend er. W e fi nd thatthe court properl y consi dered the Defendant 's pr iorconvi cti ons in e nhancing h is sen tences for aggravat ed robbe ry and for both co unts of ag grav ated ass ault. T enn . Co de A nn. § 40-35 -114(1 ). Also, the t ri al court appl ied enhancement f actor (13)( B), t hat t he offense was committ ed whil e the Def endant was on prob ation
. Tenn. Code Ann. § 40-35- 114(13)( B). The Defendantdoes not contestthe use o f thi s fact or and we agree that i t i s applicabl e to all three convi ctions.

The trial cou rt foun d tha t t he offe ns es in vo l ve d mo r e t ha n o ne v i ct i m. Tenn. Co de A nn. § 40-3 5-11 4(3)
. The robbery atMrs. Winner’ s involv ed thr ee persons. Here, t he Defendantwas convi cted separatel y fo r an offense f or each vi ct i m. Th is Co urt ha s he ld tha t this fac tor m ay no t be appl ied t o enhance a sentence when the def endant is separat elyconvi cted ofthe offenses c omm itted against ea ch v i ct i m. State v. Will iamson , 919 S. W .2d 69, 82 (Tenn. Crim. App. 199 5); State v. McKni ght , 900 S.W .2d 3 6, 54 (Te nn. C rim. A pp. 1 994 ); Sta te v. Makoka , 885 S.W .2d 3 66, 3 73 (T enn . Cr im . App . 199 4); State v. La mb ert , 741 S.W .2d 127 (Tenn. Crim. App. 1987). Indeed, the St ate conced es thatthi s fact or may have been misa ppl ied. Accordi ngly , we f ind t hat t his enhanc ement fact or was not appl icabl e.-19- The tr ial court also applied enha ncem ent factors (10), thatthe Def endant had no hesi tat ion aboutcommitti ng a cri me when the r isk t o human li fe was high, and (16 ) thatthe cri me was com mitted under ci rcumstances under which th e potent ial forbodil y i njury to a vi cti m was great. Tenn. Code Ann. § 40-35- 1 14(10 ), (16). T he D efen dan t con tend s tha t the trial c ourt m isap plied both factors as do ub le en ha nc em en t be ca us e th ey d up licat e th e e lem en ts inh ere nt in the off enses of aggravat ed robbe ry and a ggrava ted ass ault. The State co unters that th ese cri mes have addit ional fact ual ci rcumstancesthatjust ify th e ap plica tio n offact ors ( 10) and ( 16); namely, thatthe Def endant y ell ed :”G et d ow n o r I’ll blow yourheads off” whi le wav ing t he gun, and thathe also possessed a pi pe. Ho weve r, we believe t hat these circumstances are assoc iat ed wit h the el ement of t he use of a deadlyweapon upon whic h the Def endant was c onvi cted.

We agree wi th t he Defenda nt th at t he tr ial courtshould not hav e appli ed these fac tors be ca us e th ey a re in he ren t in the offenses of agg ravated robbe ry, See, e. g. , State v. Claybrooks , 910 S.W .2d 8 68, 8 72 (T enn . Crim . App . 1 994 ) (factors (10) and (16) in app licable ); State v. St ri ckland , 885 S. W .2d 85, 89 (Tenn. Cr i m. App . 1993 )(f actor ( 10) in app licable ), and agg rava ted a ssa ult. See, e. g. , Sta te v. H ill , 885 S.W.2d 357, 363 ( Tenn. Cri m. App 1994)( fact ors ( 10) and ( 16) inapp licable). All thr ee off enses for which t he Def end ant wa s con victed we re based on th e sa m e se t of facts and were dep end ent u pon th e use of a de ad ly weapon. Such use car ri es with it inhe ren t risk s to hu m an life an d fo r bo dily injury. No persons other t han the vict ims were pre sent who were at ri sk, thus, these enhancement factors c onsti tut e e lem en ts o f the offe ns es . Th e D efe nd an t’s yel li ng at t he vi cti ms and possessi on of t he pipe are not suffi cientadd itional fa cts t o j usti fy s uch enhancement. Therefore, enhancement fact ors ( 10) and ( 16)-20-

sh ou ld not ha ve been appli ed to t he aggravat ed ro bberyconv icti on norto t he t wo con victions for ag grav ated ass ault.

The tr ial courtsentenced the Def endant t o sevent een (17) years forthe aggravat ed rob be ry co nvic tio n and nine (9) y ears f or each conv ict ion f or aggravat ed ass ault, to be served concurr ently . The appropriat e sentence range fora multi ple offenderforagg rava ted ro bbe ry, a Cla ss B felon y, is twe lve (12 ) to twen ty (20) years. The sentence range for aggravat ed assault, a Class C felon y, is six(6) to t en (10) years . Because we have found t hree enhancementfactors to be inappl icabl e foreach convi cti on, we ar e compell ed to modify th e De fen da nt’s sentenc es. Accordi ngly , we r educe the s entence for aggr avated robbe ry to f ifteen ( 15) years and each aggravated assaul t conv ict ion to seven ( 7) years, t o run concurrentl y for an effecti ve sentence of f ift een (15) years.

Afte r ca refu lly rev iew ing the issu es an d th e re co rd in this case, we affirm the judg m ent o f the trial c ourt b ut m odify th e se nten ces . W e rem and to the t ri al courtsolel y fo r ent ry ofa judgment consis tentwit h thi s opini on.

____________________________________ DAVI D H. WELLES, JUD GE-21-

CONCUR:

__________________________________ JOHN H. PEAY , JUD GE

___________________________________ JER RY L
. SMI TH, JUD GE