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

une 13, 2001 STATE OF TEN

NESSEE v. JAM

ES HILL, JR

. Direct Appeal from the Criminal Court for Fayette County No. 4859A Jon Kerry Blackwood, Judge

No. W2000-02194-CCA-R3-CD - Filed July 20, 2001

A Fayette County jury

convicted the defendant of attempted aggravated robbery . The trial court sentenced the defendant to the maximum term of 15 years as a Range II I persistent o

ffender. I n this appeal, the defendant c

hallenges the su

fficiency of the evidence

and the length of

his sentence. We affirm the judg

ment of the trial c

ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delive red the opinion of the court, in which N ORMA M C G EE O GLE , J., and C ORNELIA A. C LARK , Sp. J., joined.
William S. Rhea, Somerville, Tennessee (at trial), an d C. Michael Robbins, Memphis, Tennessee (on appeal), for the appellant, James Hill, Jr.
Paul G. S umm ers , At tor ney G ener al a nd R epo rte r; J ohn H. Bl eds oe, Ass ist ant Att orn ey Gen eral; Elizabeth T. Rice, District Attorney General; and Colin A. Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
FACTS
On October 16, 1999, at approximately 10:00 p.m., the defendant, armed with a shotgun, and co-defendant

Tony Walker entered Wayne' s Grocery wearing stocking masks. There were si x people in the store at that

time. The defendant ordered everyone to lie on the floor, but everyone remained standing. Thedefe nda nt p oin ted the sho tgun at t hree peo ple , in clu din g Sh erry M ay, an employee, who testified that the incident “scared [her] to death.” Wayne Hampton, the owner, proceeded from his office when he heard

the commotion, informed the defendant that he recognized his voice, and asked the defendant to take "some beer or something and just go on and leave." Both perpetrators removedtheir stocking masks. The defen dant then laughed and stated he intended to pawn the-2-

shotgun. Hampton stated that he "played along" with the defe ndant's statement becaus e he was frightened. Hampton eventually grabbed the shotgun from the defe ndant. Hampton t estifie d that he discovered the gun was unloaded when he “broke it down.” Hampton then returned to his office, lockedthe door, and called the sheriff's department. The defendant and co-defe ndant left the scene.

SUFFICIENCY OF THE EVIDENCE
The defendant

alleges tha t th e evi den ce i s in suf fic ien t to sus tai n hi s co nvi cti on. Spe cif ica lly, he contends that ther

e is no proof that he int

ended to commit the aggravated robbery. We disag ree. A. Standard of Review

When an accused

challenges the sufficiency of the evidence , this court must review t he recor d to determine if the evidence adduced during the trial was sufficient "to support the findings by the trier of fact of guilt beyond a reasonable doubt ." Tenn. R. App. P. 13(e ). This rule is applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a combination of direct and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,18 (Tenn. Crim. App.1996).
In determining the sufficiency of the evidence, this court does not re weigh or reevaluate

the evidence. State v. Ca bbage , 571 S. W.2d 832, 835 (Tenn. 1978). Nor may this court substitute

its inferences for those drawn by the trier of

fact from circumstantial evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to affordthe state the strongest legitimate view of the evidence contained in the record as well as all reasonable andlegitimate inferences which may be drawn from theevidence. State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App.1995).
The trier of fact, not this c

ourt, resolves question

s concerning th

e credibility

of the witnesses, the weight and value to be given the evidence as well as all fa ctual is sues raised by the evidence. Id. In State v. Grace , the Ten nes see S upr eme Cou rt s tat ed, "[a ] gu ilt y verd ict by th e ju ry, approved by the trial judge, accredits the testimony of the witnessesfor the State and r esolves all confl

icts in favor of the theory of the State." 493 S.W.2d 474, 476 (Tenn. 1973). B. Analysis "Robbery is the intentional or knowing the ft of property from the person of another by violence or putting the person in fear." Tenn. Code Ann. § 39-13-401. Aggravate d robbery occurs whenthe robbery is “[a]ccomplished with a deadly wea pon.” Tenn. Code Ann. § 39-13-402(a)(1). A “firearm” is

considered a “deadly weapon.” Tenn. Code Ann. § 39-11- 106(5)(A). Furthermore, an attempt is committed where:-3-

(a) A person ... acting w ith the kind of culpability otherwise required for the offense:

. . . . (3) Acts with

intent to complete the course of action or cause a result that would constitute the offense, under the circumstances surrounding the conduct as the personbelieves them

to be, and the conduct

constitutes a substantial step toward the commission of the offense. (b) Conduct does not constitute a substantial step under subdivision (a)(3) unless the person's entire course of action is corroborative of the i ntent to commit the offense. Tenn. Code Ann. § 39

-12-101; State v. Lewis , 36 S.W.3d 88, 94 (Tenn. Crim. App. 2000). Sherry May, an employee, Michael Roberts, an employe e, Wayne Hampton, the

owner, and Barry Johnson, a patron, all testified that they were frightened by the incident. Furt herm ore, May, Roberts, Hampton, and Johnson likewise testifie

d th at when t he defendant entered, he wore a stocking mask, brandished a gun, and ordered everyone to lie on the floor. This testimony sufficiently

established th

at the defendant e

ntered Wayn

e’s Grocery

with the intent to co

mmit robbery with a deadly weapon. See Tenn. Code Ann. §§ 39-13-401,-402. The defendant’s actions clearly manifested a “substantial step” toward the commission of the offense. See Tenn. Code Ann. § 39-12-101(a)(3).
The co-defendant testified that neither he nor the defendant intended a robbery; neither was wearinga stocking mask; the defendant intended to pawn the gun to Hampton; and the defendan t never threatened anyone. However, the jury was free to disbelievethe testimony of the co-defen

dant. See Statev. Millsaps , 30 S.W.3d 364, 369 (Tenn. Crim. App. 2000). In ascertaining the defendant’s intent, the jury

could infe r criminal intent from the surrounding facts and circumstances. State v. Roberts , 943 S.W.2d 403, 410 (T enn. Crim. App. 1996

) (citations omit ted). Furthermore, an unloadedfirearm is considered a “deadly weapon.” See Te nn. Code. Ann. § 39-11-106(5)(A) (defining “deadly weapon” so as to include any “fire arm”); Campbell v. State, 464 S.W.2d 334, 335- 36 (Tenn. Crim. App. 1 971). The eviden ce sufficiently

establishes that the defendant’s entire course of co nduct was co rroborative of his intent to commit the aggravated robbery . The defendant’s pretension of wanting to paw n the shotgun cam

e only afte

r he was identifie

d by the owne

r. This issue is without merit.

SENTENCING
The defendan t alleges that the trial court erroneously applied enhance ment factor two (the defendant was a leader in th

e offense which involved two or

mor e cri min al a cto rs) ; or alt erna tiv ely,-4-

if the trial court properly applied this factor, the defend ant’s fifteen-year maxi mum R ange III sentence was, nevertheless, excessive and improper. We disagree.
A. Standard of Review
This court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmativeshowing in the re cord that th

e trial judge cons

idered the sente

ncing principle

s and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991 ). If the tr ial court fails to comply with the statutory directives, there is no presumption of correctn ess and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997).
If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35- 210(c) provides that the p resumptive sente

nce shall be the minimum sentenc

e within the applic

able range. State v. Lavender , 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court should start at the minimum sentence, enhance the minimum sentence within the range for enhancement factors andthen reduce the senten ce w ithin the range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute, as the weight given to each factor is left to the discretion of the trial court as longas the trial court complies with the purposes and principles of the sentencing act and its findings are supported by the re cord. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Kelley , 34 S.W.3d 471, 47 9 (Tenn. Crim. App. 2 000); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. B. Analysis
No testimony was offered at the sentencing hearing . Accordingly, the trial court rel ie d on information c ontained in the pre-sentence report. The pre-sentence report revea led that the d efendant was convictedof eleven prior misdemeanors and nine prior felonies. The sentencing statute requires five prior felonies to classify the defendant as a Range I II persistent offender, so the trial court correctly found, due to the defendant’s extensive remaining criminal history, that

“[t]he defendant has a previous history of c riminal conviction

s or criminal beha

vior in addition to

those necessary

to establish the appropriate rang e.” Tenn. Code Ann. § 40-35-114(1). Additionally, the trial court foundthat “[t]he defendant was a leader in the commission of an offense involving two (2) or more criminal actors.” Tenn. C ode Ann. § 40-35-1 14(2). The defe ndant only

challenges the trial

court’s application of

factor two, claiming that there is insufficient evidence to establish that the defendant was a leader of two criminal actors.
The defendant contends that the jury’s inability to reach a verdict a s to the co-defendant failedto establish the existence of two criminal actors for purposes of applying this sentencing factor. Firs tly, fact s to est abl ish an en han cem ent fact or n eed o nly b e pro ven by a preponderance of the evidence, not

beyond a reasonable doubt. State v. Winfield , 23 S.W.3d 279, 283 (Tenn. 2000). Sec ond ly, the applicability of this factor is

independent of whether another alleged perpetrator was-5-

con victed, acquitted, or eve n charged, be

cause the state o

nly must estab

lish the exis tence o f “multiple offenders and that the defendant [was] a leader.” State v. Keith L amont Smith , C.C.A. No. 01C01-9709-CC-00404, 1998 WL 855438, at *2 (Tenn. C rim. App. filed December 11,1998, at Nashville), perm. to app. denied (Tenn. 1999). The testimony established that only the defendant brandisheda shotgun; the co-defendan t stood by the door and remained silent throughout the incident; and only the

defendant spoke

, ordering eve

ryone to lie on the floor. The evidence sup ports the trial court’s application of enhancement factor two. Furthermore, we conclude that the defendant’s fifteen-y ear sentence is

not excessive. The weight given enhancement factors is left to the sound discretion of the trial court as long as it follows the principles of the sentencing act. See Kelley , 34 S.W.3d at 479. This issue is without meri

t.

CONCLUSION
Based on the for

egoing, we af

firm the judgmen

t and sentence imp

osed by the tr

ial court.

___________________________________ JOE G. RILEY, JUDGE