# FILED
March 16, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE MAY 1998 SESS ION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9706-CR-00198

) ) Hamilton County v. ) ) Honorable Stephen M. Bevil , Judge ) NATHAN LEE COLQUIT, ) Aggravated burglary, aggravated robbery ) Appellant. ) For the Appellant : For the Appellee : Ardena J. Garth John Knox Walkup District Public Defender Attorney General of Tennessee and and Karla G. Gothard Elizabeth B. Marney Assistant Public Defender Assistant Attorney Gener al of Tennessee 701 Cherry St., Suite 300 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243-0493 (AT TRIAL) William H. Cox, III Ardena J. Garth District Attorney General District Public Defender and and Bates Bryan, Jr. Donna Robinson Miller Rebecca J. Stern Assistant Public Defender Assistant District A ttorneys General 701 Cherry St., Suite 300 County-City Buil ding, Third Floor Chattanooga, TN 37402 600 Market Street (ON APPEAL) Chattanooga, TN 37402

OPINION FILED:____________________ CONVICTIONS AFFIRMED ; AGGRAVATED BURGLARY SENTENCE MODIFIED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Nathan Lee Colquit, app eals as of right from his convictions by a j ury in the Hamilton County Criminal Court o f aggravated burglar

y, a Class C felony, and aggravated robbery, a Class B felony. For the aggravated burglary conviction, he was sentenced as a Range III, persistent offende r to fifteen years confinement to be served in the custody of the Department of Correc tion. For the aggravated robbery

conviction, he was sentenced as a Range II, multi ple offender to fifteen years confinement to be serv ed in the custody of the Department of Correction. The sentences were ordered t o be served concurrentl y. The defendant presents the followin g issues f or our revie w:

(1) whether the trial court erre d by denying his moti on to suppress the fruits of two warr antless searches an d sei zures of the car he was driv

ing when arrested; (2) whether the trial cour t erred b y fail ing to suppress the victim’s id entific ation of him from a photogr aph array; (3) whether the trial cour t erred by

failing toinstruct the jury on the lesser

includ ed offense

s of a ssault an d aggravated assault; and (4) whether the trial cour t erred i n se ntencing for the aggravated burgl ary conviction. We affirm the convictions upon the jury v erdicts but modify the sentenc e for aggravated burglary to reflect a

sentence as a Range II, multi ple offender to ten years confinement.

The evide nce at tri al establ ished tha t on Novem ber 8, 199 3, Kathryn Walker returned to her home to find that it had been ransacked. When Ms. Walker screamed, the defendant ran down the hall, wielding a g un, and ordered her to stop screaming or he would kill her. The defendant pushed Ms . Walker to the floor, covered her with a bedspread and fled. Ms. Walker described the assailant t o Lieutenant John Bradford of the Chattanooga Police Departme nt, and she provided Bradford with a list of items that were stolen, w hich included a mink coat, j ewelry, credit c ards and cash.3

Ms. Walker later identified the defendant as the as sailant from a photograph arr ay, and she testified at trial that the defendant was the assailant.

At the suppression hearing , Bradford testified that he recei ved a telephone call on November 11, 1993, from Captain Bobby Persinger of the Catoosa County Sheriff’s Department i n Georgia. Bradford said Per singer told him that on November 9, 1993, Persing er was involv ed in a car chase with the defendant and that in the car, Persinger found a mink coat bearing the embroidered na me “Kathy Walker” inside of it. Bradford said he met with Persinger that day and photographed the coat, then he and Persinger w ent to the impound lot where the car was located. He said that when he looked in the car, he saw a camera, jewel ry and other items, w hich he photographed.

Bradford testified that he met with the defe ndant, who was being held in Georgia on charges of evading arrest, reckless driving and possession of crack cocaine. He said that w hen he advised the defendant of his ri ghts, the defendant refused to sign a waiv

er but agreed to talk. Br adford said the defendant told him that on November 8, 1993, he was staying with a friend at a motel, he took the friend t o work in the morning, then he went back to the room and slept. The defe ndant told him that the car belonged to a female named J an who loaned him the car in exchange for crack cocaine. The defendant told hi m that he knew nothing of the mink coat until he was arrested and that he k new nothing about the burg lary.
Bradford testified that he took a photog raph of the defendant. He stated that he constructed a photograph array but that he did not include the photograph of the defendant that he took on November 11. He said that instead, he incl uded a photograph of the defendant from 1991. He said he asked the victim to l ook at the photograph array and to det ermine if she recognized the assailant. He testified that the4

victim identified the defendant and that she felt fear when looking at his photograph. He admitted that before the victim looked at the array, he told her that a suspect had been arrested, but he said that he did not suggest to the v ictim which man in the ar ray was the suspect. He sai d the victim also identi fied photographs of the mink coat and jewelry, an d he then returned to Georgia and took possessi on of th e victim’s property.

On cross-examination, Br adford testified that the victi m described the assailant as a slender blac k male, twenty-fiv

e to thirty years old, six feet tall, one hundred and eighty pounds and w earing a red bandana over his hair. He said the victim did not descri be the defendant as having facial hair nor did she describe the defendant’s teeth, voice, clothing, or distinguishing facial characteristics. He said that in arranging the photogr

aph array, he tried to c hoose people who looked simi lar to the defendant, keeping in mind the vi ctim’s description. H e said that he chose men with facial hair for the array because the defendant had facial hair in the photograph he used, and he did not want the defendant to loo k different from the other men. He said he used the 1991 photograph of the def endant instead of the more recent one be cause the older photograph had a background similar to the photographs of the other men in the array. He said the recent photograph had a yel low brick backgr ound.

Bradford said that when he met w ith Persinger on Nov

ember 11, Persinger brought the mink coat and a maroon pouch containi ng jewelry. H e admitted that he did not have a search warrant when he met w ith Persinger or w

hen he and Persinger went to the

impound lot. He said that w hen they went to the impound l ot, he looked in the car before he opened the door an d saw a camera on the passenger’s side. He said he removed the camera from the car and found some jew elry in the trunk. He said he took the i tems to Chattanooga after photogr aphing them, and he showed the items to the v ictim that night and relea sed them to her when she identi fied them.5 Captain Bobby Persinger of the Catoosa County Sheriff’s Department testified that on November 11, 1 993, he received a report from Officer Kelly Holcombe that Holcombe had tried to pull over a car but that the c ar did not stop and a chase w as underway. Persing er testified that about that time, h e saw the cars pass by him, and he followed behind Holcombe w ho was behind the defendant. He sai d the defendant was driving a gray , 1986 Buick Skyhawk and was traveling around fifty miles per hour i n a forty mile per hour zone . He said that as the chase c ontinued, the speeds escalated to betwee n fifty a nd sixt

y miles per hour. He sai d the defe ndant pas sed traf fic on th e left side of the road, several ti mes when cars were ap proaching in the opposite di rection. He said the defendant struck another car at an intersection but continued driving. He said eventually the defendant pushed his brakes, causing his car to spin backw

ards and slide off the road before it hit a cur b and stopped.
Persinger testified that the passenger, Wilbur “Shaky” Wilkes, got ou t of the car and was handcuffed. He sai d that although officers wer e yelling, the defendant would not get out, and his door was locked and coul d not be opened. He said the defendant was leaning over and had his hands down toward one of his legs. He said an officer broke the car window, apprehended and hand cuffed the defendant. He said the car registration was checked and reveal ed that the car belonged to a w oman from the area. He said he tried to verify the owner of the car but never made contact with anyone.
Persinger testified that a wrecker was cal led to tow the car because it was not fit to drive. He said that a tire and rim were gone and a window was busted. He testified that officers normally inventory a car before

it is towed, and an officer inventoried the car in the present case. Persing er said he looked in the back seat of the car and saw a mink coat . He said the coat caught h is attention because it did no t match the car, and he took it out and noticed a name inside the coat.6 Captain Persinger testified that soon after, he saw a newspaper article that mentioned that a mink coat had been stolen in a burglary in Chattanooga. He said he called Lieutenant Bradford in C hattanooga and asked him if the stol en coat was reported to have a name insid e of it. Persinger told B radford that he thought he had the coat. He said that the coat r emained in the car after it w as inventoried and tow ed and that he went to the impound lot and retrieved the coat afte r speaking with Bradford. He said he met with Bradford, and Bradford identified the coat. He s aid Bradford brought a list of property stolen from the victim, and they w ent to the impound lot and found a camera and jewelry i n the car.

On cross-examination, Persinger testified that Officer Holcomb e originally tried to stop the defendant for making an imp roper turn. He said the pursuit began in Catoosa County, Georgi a, and ended in Walker County where the inventory was performed. He said his office’s pol icy is that if a suspect flees from an officer, the suspect’s car is towed. He said this is not a written policy. He said the inventory policy is that if a car is towed, it is inventoried. He identified his office’s written standard operating procedures regarding vehicle inv entory and impoundment and pointed to a policy that states that i

f there is no one present who is authorized and capable o f removing a vehicl e, it should be towed. He said he did not remember asking the defendant if he wanted the car tow ed or disposed of in another w ay. He said the car was not driveable bec

ause of the tire, and he could not find a nyone to pick up the car because he could not make contact w ith the owner. He admitte d that he thought the mink coat di d not fit with the two me n in the car and that he di d not see the n ame embroidered in the coat until he removed it from the car. H e said that when he and Bradfo rd went to t he impou nd lot, it was not to c onduct a n invento ry but to re trieve property determined to be st olen.7 Officer Terrence Kelly Holcombe of the Catoosa Coun ty Sheriff’s Department testified that he saw the defendant make an improper turn. H e said he pulled behind the defendant and turned on hi s blue lights, but the defendant w ould not stop. He s aid the d efenda nt accele rated to forty or f orty-five miles per hour on a c urvy road and continued to accelerate to around seventy miles per hour once out of the curvy road. He sa id that Persinger ev entually pulled behind him. He said that the defendant struck a Bronco, went into a ditch and came out wi th a flat tire but that the defendant continued to drive. H e said the defendant stopped four to five mi les later when he spun out of control and r an off the road.

Holcombe testified that the driv er’s side door was l ocked, and the defendant was bent down in the flo orboard. He said the officers on the scene thought the defendant might have a gun, and they broke the driv

er’s side window . Holcombe said the glove box w

as open, and there was a lot of jewelry in the g love box and on the floorboard. He said a wr ecker was called, and h e prepared an inventory list before the car was towed. He said he marked the “clothes” box on the inventory

sheet to indicate the mink coat. He testified that he had checked the license plat e number during the chase and that the car was registered to a woman. He said he did not know i f anyone was able to contact the ow ner. He said that after the inv entory was complete, the car was towed. He said that most of the items remained in the car but that som e jewelry was taken out for evidenc e and was noted on the inventory sheet.
On cross-examination, Holcombe testified that cars are inventoried every time there is an arrest and a vehicle is involved. He said that the inventories are performed to protect the officers and the owners of the property. He said he later learned that a woman had been contac ted, and she had said that the defendant and Shaky had permission to bor row the car. He sai d the coat was in the back seat when he perfo rmed the inventory.8 The trial court denied the motio n to suppress, finding that the jewelry had fallen out of the glove compartment and was in plain vi ew, as was the mink c oat. It found that the totality of the cir cumstances would cause any reasonable person suspicion a nd that there were “eno ugh articu lable and specific facts . . . that these items could very wel l be the fruits of a crime . . . .” It further found that the search es and seizures were pr

oper because they were pursuant to an inventory

.

I. SEARCH AND SEIZURE The defendant contends that the trial cour t erred by denying

his motion to suppress the evidence obtai ned from the warrantless sea rches and seizures that occurred on November 9 and 11. He argues that the items did not fall within the plain view exception t

o the warrant requir

ement because their incriminating nature was not apparent. He further argues that the impoundme nt and subsequent inventory were improper because no other methods of r emoving the vehicle were offered to him and because the state failed to show that the impoundment was necessar y.
The state initially ar

gues that the defendant waiv ed the issue of the improper impoundment by failing to raise it in the motion t o suppress or in the motion for a new trial. It argues that, in any event, the impoundment was necessary because the car was not driv

eable, and there was no other alternative. The state furthe r argues that the evidence was i n plain view, and it s incriminating nature was apparent. In the alterna tive, i t argue s that th e discov

ery of t he mink c

oat and j ewelr

y was the resu lt of a look, not a search. With respect to the sec ond search of the car at the impound l ot, the state argues that when i mpoundment is necessary, any subsequent search of the impounded vehicle is legal.

A trial court’s findings of fact on a motion to suppress are c onclusive on appeal. This court will not reverse a trial court’s findings unless the evidence9

preponderates against those find ings. State v. Killebrew , 760 S.W.2d 228, 233 (Tenn. Crim. App. 1988).

A. NOVEMBER 9 SEARCH A ND SEIZURE First, the defendant argues tha t the initial warr

antless search of the car he was driving on November 9 when he w as arrested and the seizur e of the mink coat that occurred when Persing er removed the coat from the car violated the Fourth Amendment’s prohibition agains t unreasonable searches and sei zures. He argues th at the search was not justi fied as an inventory sear ch because the police had no ri ght to impound the vehicle. We conclud e that the November 9 search and seizure were valid as both a seizure pursuant to an inventory sear

ch and a search incident to a l awful arrest.
Initially, we note that the state contends that the defend ant did not raise th e i ss ue

of im po un dm en t i n h is

moti on to

su pp re ss

or hi s m ot io n f or

a n ew tr ia l. We believe that the issue of the legality of the search, which was raised in both motions, is inherently dependent upon the validity of the impoundm ent. Thus, the issue is properly before this court.

The Fourth Amendment to the United States Constitution provides

that citizens have a right to be “secure in their persons, houses, papers and effects, against unreasonable searches and seiz ures . . . .” Consequent ly, due process requ ires that evidence obtained in vi olation of the Fourth Amendment be inadmis sible. See Mapp v. Ohio , 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961). Generally,warrantless search es are unreasonable per se and are subject to only a few exceptions. See Katz v. United States , 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967).10 One such exception to the warrant requirement is the “routine inventory search of an automobile lawfully impounded.” South Dakota v. Opperman , 428 U.S. 364, 365, 96 S. Ct. 3092, 3095 (1976) . The inventory searc h pursuant to a lawful impoundment is justified by the need to protect the owner’s property while in police custody, the need to protect police against claims o f lost property, and the need to protect police from potential dan ger. Opperman , 428 U.S. at 369, 96 S. Ct. at 3097. Our supreme court has delineat ed guidelines for determining whether an impoundment is lawful, and thus, a subs equent inventory sear

ch valid. Drinkard v. State , 584 S.W.2d 650, 653 (Tenn. 1979). In Drinkard , the court stated that:

[I]f the circumstances that bring the automobile to the at tention of the police in t he first place are such that the driver, even though arrested, is able to make his or her own ar rangements forthe custody of the vehicl e, or if the vehicle can be p arked and loc ked without obstructing traffic or endangering the public, the police should permit the action to be take n rather than impound the car against the will of the driver and then search it. Just cause to arrest the driver i s not, alone, enough; there must be reasonable cause to take his v ehicle into custody. Id. The burden of proving the propriety of the impoundmen t and subsequent search rests with the party

seeking to introduce the fr uits of the search. Id. (citation omitted).

The defendant maintains that th e impoundment and subsequent inventory search of his car were unlawful. He relies on State v. Lunsford , 655 S.W.2d 921, 924 (Tenn. 1983). In that case, a poli ce officer stopped the defendant’s car and arrested the defendant on the suspicion of b urglary. The officer asked the defendant if h e would consent to the search of his tru nk, and the defendant asked the officer if he had a search warrant. The officer said that he did not, and no further conversation ensued. The officer impounded the defendant’s car and dur ing an inventory s

earch, the officer found stolen property. Our s upreme court held that the impoundment an d subsequent search of the defendant’s car wer e unlawful and quoted with approval from a Florida Supreme Court opinion holding that an officer should “‘advi se a present, silent arre stee that his car will be impounded unless he can provi de a reasonable alternativ e to11

impoundment.’” Lunsford , 655 S.W .2d at 924 (quot ing Sanders v. State , 402 So.2d 973, 974 (Fla. 1981)). The defendant in the present case contends that the officers did not consult with him about alternatives to impoundment. However, in Lunsford , the court also q uoted with approval fr om Sanders that “‘the extent of the consul tation with the arrestee is a factor for the trial court to consider in determining whether the impoundment was reasonable and necessary.’” Lunsford , 655 S.W.2d at 924 (quoting Sanders , 402 So.2d at 974).

We hold that despite the officer’s failure to ask the defendant if he had an alternative to towing the car, the impoundment and subsequent inventory search were reasonable and necessary. First, there was no one present at the scene to take c ontrol of the car. The defendant had been arrested and Shaky Wilkes was handcuffed and had no driver’s lic

ense. Although the record i ndicates that the owner of the c ar may have been contacted, she was never at the scene to take c ontrol of the car. Furthermore, the car w as not driveable and could not have been left where it came to rest. One of the tires wa s inoperable and a window was broken. In light of the foregoing, we conclude that there was no reasonabl e alternative to havi ng the car towed. Thus, the trial co urt correctly deter mined that the search was pr oper as an inventory search pur

suant to the lawful impoundment of the c ar. See State v. Roberge , 642 S.W.2d 716, 71 9 (Tenn. 1982) (holding that towing and inventory of car were proper where occupants w ere either too young or too intoxicated to driv

e and made no reasonable or plausible suggestions for the disposition of the ca r).

The state urges that the search and subsequent seizure were valid because the contents of the car w ere in plain view . However, in or der to fall within the plain view exc

eption to the warrant req uirement, the incriminating nature of the evidence must be apparent. See Coolidge v. New Hampshire , 403 U.S. 433, 466, 91 S. Ct. 2022, 2038 (1971). Altho ugh Officer Holcombe testified that he thought the mink12

coat did not fit with the tw o men in the car, the incrimi nating nature of the mink coat and the other items in the car w as not sufficiently apparent, par ticularly upon confirmati on that a woman owned the car.It was not until Capta in Persinger learned that a mink coat had been s

tolen that th e incrimina ting natur

e of the items i n the car bec ame apparent.

Although not raised by either party, we conclude that the search was valid as a search incident to a l awful arrest. See United States v. Robins on , 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973). H aving placed the defendant under arrest, Officer Holcombe was entitled to conduct a search of the entire pas senger compartment of the
car. See New York v. Bel ton , 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981); State v. Watkins , 827 S.W.2d 293, 295-96 (Tenn. 1992). In summary, w e conclude that the November 9 search and seizure were valid a s both an invento ry search following a lawful impoundment and as a searc h incident to a lawful arr est.

B. NOVEMBER 11 SEARCH AND SEIZURE Next, the defendant contends that the Novembe r 11 warrantless search and seizur

e at the impoun d lot viol ated the Four th Amendment. H e relies on the same arguments made with respec t to the November 9 search and seizure. The state contends that when an impoundment is necessary, any subse quent search of the impounded vehicle is legal.

This court considered a simi lar issue in State v. J.R. Sanders , No. 01C01- 9003-CR-00091, Davidson County (Tenn. Crim. App. N ov. 9, 1990). In Sanders , the defendant was a wholesale c ocaine dealer who suppli ed cocaine to a retailer. The retailer was arres

ted with cocaine in the de fendant’s truck, and the truck w as seized and taken to police headquarter s where an inventory

search was conducted. The officer found documents relating to the defendant’s ownership of the truc k and deeds to13

property owned by the defendant. The officer seized the item s relating to the truck’s ownership but left the deeds in the truck. Fourteen months late r and two weeks before the defendant’s trial for conspir acy to sell and possessi on of cocaine, an officer returned to the truck and sei zed the deeds, which w ere used as evidence agai nst the defendant at trial.

This court concluded that the original search was valid as a search incident to a lawful arr

est, but the defendant argued that the s econd search fourteen months later was a separat e warrantless searc

h that was unreasonable. In upholding the validity of the seco nd search and seizure, thi s court concluded that the officer “merely seized lat

er what he could have s eized earlier. No F

ourth Amendment violation is implicated in this conduct.” Sanders , slip op. at 5. For si milar reasons, we conclude that the November 11 search a nd seizure were v alid.

II. PHO TOG RAPH ARRAY The defendant contends that the trial cour t erred by failing to suppress the victim’s identificati on of him from a photograph array.He argues that the arra y was unduly suggestiv

e, thereby making the v ictim’s identification unr eliable. Specifically , he takes issue with the fact that the photograph of the defendant was two years old, that Lieutenant Bradford chose photographs of men who looked like the de fendant, not men who matched the victim’ s description, and that Bradfor d told the victim that someone was arrested for the cri me before the victim examined the array. The state contends that the evidence does not prep onderate against the trial court’s finding that the ar ray was not unduly sugg estive. We agree.

When the constitutionality of an out-of-court identification is challeng ed, suppression is only r

equired when there is

an unnecessarily sug gestive procedure, and the totality of the circums tances shows that the identi fication was unreliable because of14

the suggestiveness. See Manson v. Brathwait e , 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977). The Supreme Court has identified the following facto rs to be considered when determining whe ther an identification is r eliable and thus admissible: (1) the opportunity of the witness to vie w the cr iminal at the time of the crime, (2) the witness’ deg ree of attention, (3) the accuracy of

the witness’ prior

description of

the criminal, (4) the level of certainty demons tra ted by the witness at the confrontation, and (5) the length of

time between the crime and the confrontation. Neil v. Biggers , 409 U.S. 188, 198, 93 S. Ct. 375, 381-82 (1972). Furthermore, a victim’s descripti on need not be perfect to be reliabl e.

The factors set forth in Neil , as applied to the instant cas e, support the admissibility of the victim’s identification. Although the victim had only a relatively short amount of time to view the defendant, she was able to reme mber the defendant’s approximate height, w

eight and build. Nothing in the photograph of the defendant submitted as part of the array suggests that the vi ctim’s description w as inaccurate. Furtherm ore, the victim did not waver in her ident ificatio n of the defend ant, and only a short period of time, approxi mately three days, had l apsed between the crime and the identification.

With respect to the defendant’s complaint that Lieut enant Bradford used a two-year-old photog raph instead of the recent one, Brad ford explained that the recent photograph was noticeabl y different from the photographs of the other men in the array. Far from making the identificat ion unreliable, we beli eve that the officer merely t ook steps to ensure that the array was fair. The defendant also argues tha t Bradford chose photographs of men who resembled the defe ndant, not men who matched the victim’s description. On the contrar y, Bradford testified that he c hose photographs of men who15

resembled the defendant, keeping in mind the victim’s description. Again, the record shows that Bradford used car e to ensure that the array was not unduly sugg estive, and a review of the photogr aphs of the other men in the array shows that they matched the victim’s d escriptio n. Finally, the def endant a rgues tha t the arra y was suggest ive because Bradford told the victim that he had arrested a susp ect before the victim looked at the array. Ho wever, Bradford neve r suggested to the vi ctim which man in the array was the suspec

t. Rather, the victi m identified the defendant on her own, and she did not waver in that

identification. Based on these fact s, we hold that the identification was properly admitt

ed.

III. LESSER INCLUDED OFFENSES The defendant contends that the trial cour t erred by failing to instruct the jury on the lesser i ncluded offenses of assault and aggra vated assault. The state contends that the issue is w aived because the defendant did not r equest an instruction on assault or aggrav

ated assault nor did he rais e it in his motion for a new trial. See T.R.A.P. 3(e). It argues that the issue is nevertheless without merit because the record shows that the defendant is gu ilty of the greater offenses, an d there is no evidence to support a finding of guilt for assault or aggrav ated assault.
Pursuant to T.C.A. § 40-18-110( a), a trial court is required “to charge the jury as to all of the law of each offense included in the indictm ent, without any request on the part of the defendant to do so.” When the evidence, introduced by either the state or the defendant, is susceptible of inf erring guilt of a lesser grade or class or a lesser included offense of the charg ed offense, the trial court has a mandato ry duty to charge such lesser offense. See T.C.A. § 40-18-110(a); State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996); Johnson v. State , 531 S.W.2d 558, 559 (Tenn. 1975); State v. Howard , 926 S.W.2d 579, 58 5-86 (Tenn. Crim. App. 1996). However, the instruction is16

not required if there is no evidence in the record to support a conviction for the lesser offense. Trusty , 919 S.W.2d at 311.

With respect to the state’s argument that the issue is waived because the defendant failed to request the instr uction on the lesser incl uded offenses, T.C.A. § 40- 18-110(a) instructs other wise. However, the state correctly argues that the defendant failed to raise the issue in his motion for a new trial , thus we are barred from r eview. See T.R.A.P. 3(e). In any event, the issue is without merit. While we agree that assault and aggravated assault are lesser included offenses of ag gravated robbery, we do not agree that the evidence i n this case warrants an instruction on either offense. The uncontested evidence show s that the defendant, brandishing a gun, stole items from the victim’s home. The ev idence establishes that the defendant is either guilty of the greater offense of aggravated robbery or not guilty at all. Nothing in the record suggests that the defendant coul d be found guilty of assault or aggravated assault.The defendant was not entitled to an i nstruction on those offenses. See State v. Shaw , 619 S.W.2d 546, 549 (Tenn. Crim. App. 1981) (holding that evidence showing that the defendant was guilty of r obbery or no offense at all did no t justify a jury i nstruction on the offense of assault).

IV. SENTENCING FOR AGGRAVA TED BURGLARY The defendant contends that the trial cour t erroneously sentenced hi m to fifteen years incarceration for the aggravated burg lary conviction. Specifically, he argues that the trial court erroneously used his Georgia cocaine conviction to sentence him as a Range III, persis tent offender in the present case. He asks this court to determine an appropriate Rang e II sentence. The state concedes th at the defendant should have been sentenced as a R ange II offender. However , the state argues that the trial court correc

tly applied enhancement and miti gating factors and contends that17

because the defendant received the max imum sentence as a Range III offender, he should receive the ten-year maximum sentence as a Range II offen der.

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. T.C.A. §§ 40-35-401( d). As the Sentencing Commission Comments to this section note, the burden is now on the defendant to show that the sentence is improp er. This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the fa ctors and principles that are r elevant to sentencing under the 1989 Sentencing Act, w e may not disturb the sentence even if a different result were pr eferred. State v. Fletcher, 805 S.W.2d 785, 789 (T enn. Crim. App. 1991).

However, “the pres umption of correctness whic h accompanies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentencing principles and all relevant facts and circumsta nces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for arriving at the final sentencing decisi on, iden tify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate h ow the mitigating and enhancement factors have been evaluated and balanced in determining the sentence.T.C.A. § 40-35-2 10(f) (1990). State v. Jones , 883 S.W.2d 597, 59 9 (Tenn. 1995).

Also, in conducting a de novo review, we must consider (1) the evi dence, if any, received at the t rial and sentencing heari ng, (2) the presentence r eport, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the natu re and characteristics of the c riminal conduct, (5) any mitigating or statuto ry enhancement factors, (6) any statement that the defendant made on his own behalf and ( 7) the18

potential for rehabilitation or treatment. T.C.A. §§ 40-35-10 2, -103, -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229 (Tenn. 1986).

The sentence to be imposed by the trial court for a Class B or C felony is presumptively the mini mum in the range when there are no enhancement or mitigati ng factors present. T.C.A. § 40-35- 210(c). Procedurally , the trial court is to increase the sentence within the rang e based upon the existence of enhancement factors and then reduce the sentence as appropri ate for any mitigating factors. T.C.A. § 40-35-210(d) and (e). The weight to be afforded an existing factor i s left to the trial court's discretion so long as it complies w ith the purposes and princip les of the 1989 Sentencing Act and its findings are adequatel y supported by the rec

ord. T.C.A. § 40-35-210, Sentenci ng Commission Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

In the present case, the recor d reflects that the defendant had three pr ior Class D felony convi ctions and one Class E felony conviction. The record also reflects that on November 9, 1993, one day after the defendant committed the offenses in the present case, the defendant was c harged in Georgia w

ith a cocaine offense. The trial court in the present case se ntenced the defendant to the maximum sentence of fifteen years as a Range III, persistent offender.

Tennessee Code Annotated § 40-35-107(b) (1) provides that for the purpose of determining the proper sentencing range, a pri or conviction is one that occurs before the commission of the offense for w hich the defendant is being sentenced. See State v. Blouvett , 904 S.W.2d 111, 113 (Tenn. 1995). Because the Georgia cocaine offense did not occ ur until one day after the defendant c ommitted the offense in the present case, the tri al court could not consider that offense for the purpose of classifying the defendant as a Range III, persis tent offender. Thus, the defendant should have been sentence d as a Range II, multiple offender.With respect to the propriety of the tri al court’s application of

enhancement and mitigating factor s, the defendant does not point to any error in the record, and we are unable to find any. The record support s the maximum Range II sentence of ten years confinement to be served in the custody of the Department of Correction.
In consideration of the foregoing and the record as a whole , we affirm the convictions upon the jur y verdicts of agg ravated robbery and ag gravated burglary. The aggravated burglary sentence is modified to reflect a sentence as a Range II, multiple offender to ten years confinement to be ser ved in the custody of the D epartment of Correction concurrent w ith the aggravated r

obbery sentence.

______________________________ Joseph M. Tipto n, Judge

CONCUR:

__________________________ Joe G. Riley, Judge

__________________________ James Curwood W itt, Jr., Judge