# FILED
May 27, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JUNE 1997 SES SION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9610-CR-00369

) ) Bradley County v. ) ) Honorable Mayo L. Mash burn, Judge ) DONALD RAY SHIRLEY, ) (Aggravate d Robbery) ) Appellant. ) For the Appellant : For the Appellee : Willi am J. Brown John Knox Walkup 23 N. Ocoee Street Attorney General of Tennessee P.O. Box 1001 and Cleveland, TN 37364-1001 Timothy F. Behan Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Jerry N. Estes District Attorney General 203 E. Madison Avenue Athens, TN 37303-0647

OPINION FILED:____________________
CONVICTIONS AFFIRMED ; SENTENCES MODIFIED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Donald Ray Shirley, appeals as of right from his three convictions by a j ury in the Bradley County Criminal Cour t for aggravated robber y, a Class B felony. As a Rang e I, standard offender, he receiv ed concurrent sentences of twelve years for each offense and was fined twenty thousand dollars for each offense. He contends that:

(1) there is insufficient evidence to support his convictions; (2) the trial court er

red by failing to sev

er the charges for trial; (3) the trial court er

red by admitting a cr

ack pipe into evidence; (4) the trial court erred by failing to suppress evidence seized from the defendant’s car; (5) the prosecuting attor ney and the trial court made inappropriate remarks duri ng the state’s closing argument; and (6) the defendant’s sentence is ex cessive. We affirm the defendant’s convictions and modify his sentences.

The defendant was charged wi th the November 29, 1995, agg ravated robbery of a Rocky Top convenience store, the December 9, 1995, aggravated robbery of the T ake Two Vi deo store and the De cember 1 0, 1995, aggravated robberie s of two Mr. Zip convenience s

tores in Cleveland, Tennes see. The four charges wer e tried together. The jury convicted the defendant of the aggravated robberies of the Mr. Zip and the T ake Two Vi deo store s and acqu itted him of the Ro cky Top rob bery.

At trial, Sergeant Larry Pippinger of the Bradley County Sheriff’s Department testified that he w as traveling east on Paul Huff Parkway at 4:50 p.m. on December 10, whe n he saw the defe ndant wearing a gree n army jacket and d riving a white Corsica in th e westbound lane. Sergeant Pippinger said that he di d a U-turn,3

caught up with the car,and eventually stopped i t. Sergeant Pippinger said that the defendant had a ski mask in the front seat of the car hidden under a jacket and that he found a Marksman BB pistol betw een the front seat and the console of the c ar. The army coat, BB pistol, and ski mask were introduced into evidence. At the time of his arrest, the defendant had two hundr ed and ten dollars in his coat pocket and a tendollar bill in the pock

et of his pants.
Clint Denny, a detecti

ve with the Bradley

County Sheriff’s Department, testified that he inventori ed the defendant’s car the day after the defendant was arrested. He identified a cr ack pipe that he found next to the dr iver’s seat. He sai d that the pipe was not readily visible in the car and that he had to move the seat belt out of the way to find it. He identified a picture of the crack pipe that he took after he had placed the pipe on the seat in the car. During cross-examination, Detectiv e Denny admitted that he did not make an inventory list when he searched the car.

Annette Nicholson testified con cerning the robbery o f the Rocky Top convenience store. She desc ribed the robber as being a white male that was fiv e feet and seven or eight inch es tall and weighed ar ound one hundred and thirty or forty pounds. She said that the robber was in his late tw enties or early thir

ties and had sandy blond hair. Although she initially testified that the robber wore a dark blue ski mask, she said that the mask w as similar to the one that had been introduced into evidence and stated that she c ould not remember whether the r obber’s mask was blue or black. Ms. Nichol son said that the robber w ore a jacket that was bi g on him but that she could not remember whether the robber’s jacket w

as consistent with the o ne that had been introduced into evid ence. She stated that she also c ould not remember whether the robber wo re anything on his hands . Ms. Nicholson testified that she recognized the gun that had been introduced into evidence because th e robber held it within three to four feet of her.4 Ms. Nicholson said that the robber entered the store and ordered her to open the drawer and to pull the tray out of the drawer. The robber then grabbed bills and ordered her to lie dow n. Ms. Nicholson identi fied the defendant as the person who robbed the store and estimated that he took three hundred dollars during the robbery. She was cross-examined about inconsistencies between the defend ant’s appearance and her initial description of the robber. She also admitte d that the cash drawer contain ed two hun dred doll ars more t han it was s upposed to at the t ime of th e robbery.

Kim Ochoa testified that she was working at the Take Two Video store when it was robbed at around 7:10 p.m. on December 9, 1995. S he said that she and her son, Mike Ochoa, w ere in the store when the door to the store opened and close d briefly. She said that seconds later the robber rushed in waiving a black gun. She said that the robber inquired ab out the location of the safe and that she i nformed him that she did not have one. She said that the robber then asked w here the cash drawer w as and ordered her to remove it. Ms. Ochoa said that she told the robber that she could not remove it and the robber reached over the counter and started taking money from the drawer.

Ms. Ochoa testified that her son commented tha t the robbery was a joke and that the robber had a BB gun. She said that the robber repl ied that he would show the boy it was not a BB gun. She stated that the robber tried to cock the gun but had problems maneuvering it. She said that the robber wore gloves that were not slim fitting. As a result, the

robber was clumsy and had trouble grabbing t he money and handling the gun. Ms. Ochoa said that a car pulled up in front of the sto re’s door while the robber was strug gling with the g un, and the robber dropped some money and rushed out of the store. She said that the robber escaped with around one hundred and ten dollars in cash and a check.5 Ms. Ochoa described the rob ber as being a white mal e who was five feet and six or seven inc

hes tall and weighed bet ween one hundred and fifty and one hundred and si xty pounds. She sai d that he had ligh t blue eyes and es timated his age to be in the late twenties or early thirties. She said that he wore a dark-colored ski mask that had lint on it and w as consistent with the mas k that had been introduced into evidence. She said that the robber wore a green c oat and used a gun. She said that the coat and gun were li ke those that had been introduced i nto evidence. She said that the robber’s hair was

sandy blond and stuck out of the bottom of the mask. She described the ro bber’s hair as bei ng a little longer th an the defen dant’s and havin g a wave to it similar

to the defendant’s.

Ms. Ochoa testified that she w as morally certain that

the defendant was the person who robbed her, but she admitted that at the time of the pr eliminary hearing she did not know to a moral certainty that the defendant was the robber. She also said that she did not include the col or of the robber’s eyes or the fact that the robber had a mustache in the statement she gav e police on the night of the robbery. She conceded that the green coat that w as in evidence had tears i n it and that she did not notice any tears in the robber’s coat

.

Mike Ochoa testified that he w as also present when the Take Two Video store was robbed. He s aid that he heard the door open and sa w the back of a green coat exiting the store and that less than a minute later, the robber entered the store wearing a green co

at and a ski mask and holding a gun. He described the r obber as being approximately five feet eight inches to fiv e feet ten inches tall and estimated the robber’s weight to be around one hundred and sixty pounds. He said that the robber is in his late twenties t

o early thirties and h ad sandy blond hair that w as the same length as the defendant’s. He said that th e ski mask, gun, and green coat that had been introduced into evidence were like those used by the robber.6 Mr. Ochoa testified that he tol d the robber that the gun w as a BB gun and that the robber tried to cock the gun but was unable to d o so because he could not get a good grip on the gun w ith the gloves he w

as wearing. Mik

e Ochoa said that he followed the robber out of the sto re and saw him driv e off in a white, four-door Cor sica. He said that he saw the r obber while he was no

t wearing a mask. H e said that he was pretty sure that the robber had a mustache and that he was pos itive that the defendant is the person who robbed the store.

During cross-ex

amination, Mike Ochoa admitted that he did not mention the robb er having a m ustache or the col or of the robber’s eyes in the report he gave police on the night of the robber y. He also testified that the green coat fit the robber the same way it fit the defendant on the day of trial.

Kelly Roberts testifie

d that she saw a man run out of the Take Two Video store with a gun in o ne hand and money in the other. She estimated that the man was five feet and seven or eight inches tall and weig hed between one hundred and fifty and one hundred and seventy pounds. She explained that she could on ly see the man’s silhouette. She said that the man got into a white Cor sica.

Sarah Marlowe testified that she was robbed at around 4:00 p.m. on December 10, 1995, while s he was working at the Mr. Zip conveni ence store on Westside Drive. She said that the robber ente red the store wearing a dark-colored ski mask and an army jacket. She said that the robber pulled out a gun and ordered her to give him all the money

in the drawer. She sai d that when she started handi ng the robber the money, he asked her to give him the draw

er. He took all the cash o ut of the drawer and then left the stor e.7 Ms. Marlowe descr

ibed the robber as being betw een five feet six inches and five feet eleven inches tal l and weighing betw een one hundred and fifty and one hundred and eighty pounds. S he said that the robber’s hai r was the same color and length and had the same wave to it as the defendant’s. She said th at the coat, mask, and gun that the robber used w ere like those that had been int roduced into evidence. Ms. Marlowe testified that she is sure that the defendant is the person that robbed her.

However, Ms. Ma rlowe admitted that she di d not notice any lint ball s on the robber’s ski mask or any tears in the robber’ s coat. She testified that on the da y of the robbery she described the robber as having short, straight, sandy -blond hair. She said that she told police that the robber was clean-s haven, wore a heavy coat, and used an automatic pistol. She admitted that she did not notice that the r obber had a mustache and did not think that she was robbed with a BB gun until after the defendant was arrested. She also said that she was not sur e about the color of the coat the robber wore and that the r obber could have worn a black coat.

Brenda Underwood testified that she did an accounting of the Westside Road Mr. Zip store after the robbery. She said that seventy dollars w as taken during the robbery.

Michelle Shutt testified that she was working at the Mr. Zip on Mouse Creek Road when it w

as robbed at 4:30 p.m. on December 10, 1995. She described the robber as being a w hite male who was fiv

e feet and six or seven i nches tall and weighed around one hundred and fifty or one hundred and six ty pounds. She said that he had light-colored eyes and estimated his age to be in the late twenties or early thirties. She said the r obber had blondish-brown, straight hair that w as consistent with the defendant’s on the day of trial. She said that the robber w ore a black ski mask and8

a green coat and used a black gun, consistent with those that had been introduced into evidence.

Ms. Shutt testified that the ro bber was the same height and weight as the defendant but that she does not know for sure whether the defendant is the person that robbed her. She admitted that she di d not notice any lint on the robber’s mask. She said that she initially

told the police that the robber wore a gray sw

eatshirt but that she realized that the robber wore a green coat after she had flashbacks of the robbery during her sleep. Although she admitted that the green coat that was in evidence would not zip, she testified that the robber had the coat zipped up during the robbery a nd that the coat the robber wore w as not buttoned.
Robin Shoat, the assistant manag er of the Mr. Zip on Mouse C reek Road at the time of the robbery testi fied that she arrived at the store fifteen minutes after the robbery. She said that s he determined that one hundred and six ty-five dollars w

as taken du ring the ro bbery.

Detective John Dailey of the Cleveland Police Department testified that it took him five minutes to trav el the 2.7 miles between the two Mr. Zip stores in moderate traffic. He said that it took him around four minutes to driv e from the Mr. Zip store on Mouse Creek Road to the area where the defendant was seen by Sergeant Pippinger. He said that the Mr. Zip on Westside Road is 1.3 m iles from the defendant’s residence and that the drive takes appr oximately three minutes traveling at a moderat e speed. On cross-e xaminati on, Dete ctive Daile y acknowled ged that t he defe ndant co uld have traveled from the Mouse Cr eek Road Mr. Zip store t o his residence in three mi nutes and that instead, Sergeant Pipp inger saw the defendant eig hteen to twenty minutes after th e robbery.9 Andy Lockhart, a priv

ate detective, testified for th e defense. He said that he saw around one hundred w hite Corsicas in Bradl ey County withi n eleven hours over a two-day period. H e said that he photographed the c ars but that not all of the photographs turned out wel l. Approximately s eventy photographs of the w hite Corsicas were introduced into ev idence. Mr. Lockhart tes tified about the time it woul d take to travel from each of the stores that were robbed to Interst ate 75. He also identified various places a person could reach by driving twenty-seven minutes from the Mouse Creek Mr. Zip store.The defense also introduced the 1990 cen sus from Bradley County showing a pop ulation of 16,937 white males bet ween the ages of twenty and thirty and the employment o f 1,854 white males in the cons truction industry.

I. SUFFICIENCY OF THE EVIDENCE Initially, the defendant contends that the evidence is insuf ficient to support his convictions becaus e the state did not prove bey ond a reasonable doubt that he wa s the person who robbed the stor es. Our standard of review when the sufficiency of the evidence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecuti on, any rational trier of fact could have found the essential elements of the crime bey ond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 ( 1979). This means that we may not reweigh the evidence, but must presume that the jury has resolv ed all conflicts in the test imony and drawn all reasonable i nferences from the evidence in fav or of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).10 A. Take Two Video Kim and Mike Ochoa testified that they were certain that the defe ndant is the person who robbed the Take Tw o Video store. They testified that the defendant wore a black ski mask

and green army coat duri ng the robbery and used a bl ack gun. Kelly Roberts and Mike Ochoa both testified that they saw the robber leave the store in a white Corsica. The defendant was stopped the day after the robbery while he w

as driving a whit

e Corsica and wearing

a green army coat. He had a ski mask and a BB gun in the car. According to Kim and Mike Ochoa, the mask, gun, and coat were just like the ones used by the r obber. Ms. Ochoa testified that the robber escaped with a check and one hundred and ten dollar s in cash. Based on this pr oof, the jury was justified in concluding that the defendant was guilty of the aggravated robbery of Kim Ochoa beyond a reasonable doubt.

B. Westside Drive Mr

. Zip Sarah Marlowe testified that she is sure that the defendant i s the person who robbed her while

she was working

at the Mr. Zip store on Westside Dri ve. She said that the robber entered the store wearing an army coat and a ski mask. She said that he pulled out a gun and ordered her to give him all of the money in the cash drawer. Less than an hour after the robbery, Serge ant Pippinger stopped the defendant while he was wearing an Army coat. Sergeant Pippinger found a ski mask and BB gun in the defendant’s car. Ms. Marlowe testi fied that the coat, mask, and gun were like those that w

ere used in the robbery. Brenda Underwood testified that seventy dollars was missing

from the store after the robbery . Under these circumstance s, the jury was justifie

d in finding the defendant guilty of the aggravated robber y of Sarah Marlowe.11 C. Mouse Creek Road M r. Zip The proof at trial established th at the Mr. Zip store on M ouse Creek Road was robbed thirty min utes after th e Westsi de Drive store was robb ed. Although Michelle Shutt testified that she is not sure that the defendant i s the person who robbed her, she testified that the robber had the same general physi cal description as the defendant, including the same height, weight, hair color, and hair type. She also said that the robber wore a bl ack ski mask and a green c oat and used a black gun, consistent with those th at the defendant had when Sergeant Pi ppinger saw him tw enty minutes after the robbery. When view ed in the light most favor able to the state, see Cabbage , 571 S.W.2d at 835, this evidence supports the jury’s conclusio n that the defendant committed aggravated r obbery of Michelle Shutt.

II. SEVERANCE Next, the defendant contends that the trial court erred by refusing to sever the charges against him. He argues that the robber ies do not constitute a common scheme or plan and that proof of each of the r obberies would not be admiss ible in the trial o f the othe rs. The s

tate cou nters t hat each of the ro bberies

is evi dence of a common scheme or plan because the robbe ries are signature cr imes. The state asserts that proof of each of the robberi es is admissible in the tr ial of the others to show motive or identity.

Much of the same testimony that was presented at trial was also presented at a pretrial hear ing on the defendant’s severa nce and suppression motions. However, neither Ki m Ochoa, Sarah Marlowe nor Michelle Shutt identified the defendant as the robber at the hearing

.

Kim Ochoa testified that the robber was around five fee t and five or six inches tall and weig hed approximately one hundr ed and sixty pounds. She said that12

the robber had light-col ored eyes and wore a bl ack ski mask, a green ar my jacket that came below his waist, and loose-fitting gloves. She estimated the robber’s age to be in the late twenties or ear ly thirties. She sai d that the robber had collar- length, sandy blond hair that came out of the bottom of his mask. She said that the robber ’s hair had a little wave to it and that the robber also had a mous tache.
With respect to the manner in which she w as robbed, Kim Ochoa testified that she heard the door open and clo se and that seconds later the r obber rushed into the store waving a black gun and inquiri ng about the location of the safe. She s aid that she told him that she did not have a safe and that he o rdered her to remove the cash drawer. Kim Ochoa testi fied that when she informed the robber that she could not remove the cash drawer, he reached over the counter and took money from it. She said that her son commented that the r obber had a BB gun and that the robber tried to cock the gun. She said that the robber had problems handling the money and maneuvering the gun.

Mike Ochoa described the r obber as being between fiv e feet, eight inches and five feet, ten inches tall and weighing around one hundred and sixty pounds. He estimated the robber’s age t o be in the late twenties or maybe thirty. H e said that the robber had sandy blond, col lar-length hair that c ame out of the side of the mask he wore. He testified that the robber had a moustache. He stat ed that the robber wore a black ski mask and an army -green coat and used a black BB gun during the robber y. He said that he saw the r obber drive off in a white , four-door Corsica. Mr. Ochoa testified that he picked the defenda nt’s picture out of an array of photographs and also identified the defendant as the rob ber in a live lineup approximately one week later.

Kelly Roberts testifie

d that she saw the silhouet te of the robber as he was leaving the Take Two Vi deo store. She stated that the r obber had a gun in his rig ht13

hand and money in h is left ha nd. She sa id that he wore a short , large coa t and drove off in a white Beretta or Cor sica.

Sarah Marlowe testified that the robber of the W estside Road Mr. Zip store was between fiv

e feet, eight inches and five feet, eleven inches tall and w eighed between one hundred and fifty and one hun dred and eighty pounds. She estimated his age to be in the twenties or thirties and said that he had medium-length, sandy hair that was “kind of wavy.” She said that the robber w ore blue jeans, a green ar my jacket, and a black ski mask with three holes in it. She sai d that the robber used what l ooked like a black, automatic hand gun and that the gun was consistent with the one that was taken from the defendant. She stated that she did not notice whether the robber had anything on his hands. She testified that t he robber ordered her to gi ve him all the money and threatened that there would be trouble if she did not hurry . She said that the robber also told her to giv

e him the money drawer.
On cross-examination, Ms. Marlowe stated that she was not sure whether the robber had facial hair and admitted that she told a police officer that the robber was probably

clean shaven. She testified that she did not notice anythi ng distinctive about the r

obber’s jacket. Althoug h Ms. Marlowe said that she picked the defendant’s picture out of an array of phot ographs on the night of the robbery, she said that she could not positiv ely identify the defendant in a lineup. She said that when she was shown the lineup, she told officers that she thought that the robber was the defendant or another guy in the lineup.

Michelle Shutt testified that the robber of the Mouse Creek Road Mr. Zip store was between fiv

e feet, six inches and five feet, seven inches tall and w eighed around one hundred and fifty pounds. She said that the robber was in his late twenties. She said that the robber had li ght-colored eyes and s traight, shoulder-leng

th, blondish-14

brown hair. She said that the robber wore a black ski mask, a green jacket, and black leather gloves. She s

aid that the robber used a black gun that looked like a pol ice gun and was consistent with the gun that was tak en from the defendant. Ms. Shutt testified that the robber entered the stor e and said, “Come on, let’s go over to the register.” She said that she and the robber walked to the register, where he ordered her to give him the money. She said that the r obber never asked for the money tray but that she removed it and put it on the counter.

During cross-examination, Ms. Shutt admitted that she initially told police that the robber wore a g ray sweatshirt and blue jeans. She acknowl edged that on the night of the robbery she did not tell police that the robber wore a green jacket. She said that she cannot identify the defendan t as the person who robbed her.

Andy Lockhart and the defendant’s br other also testified at the hear ing. Mr. Lockhart testified that he had seen approximately one hundred white Corsi cas during an eleven-hour period. The defendant’s brother test ified that it is common for construction worker

s to wear green, army

jackets like the one taken from the defendant. The trial court overr

uled the defendant’s severance moti on without stating it s findings or rationale on the record.

We begin our discussion of the issue with our standard of review of a trial court’s denial of a sever ance under Rule 14(b)(1), Tenn. R. Crim. P. Traditiona lly, the decision to sever offenses res ted within the sound disc retion of the trial court. See , e.g ., Hardy v. State , 519 S.W.2d 400, 40 2 (Tenn. Crim. App. 1974). However, since the enactment of Rule 14(b)(1), Tenn. R. Crim. P., there has been some question as to whether the same standard appl ies. See , e.g . State v. McKnight , 900 S.W.2d 36, 50 (Tenn. Crim. App. 1994) (stat ing that severance is ordinarily a matter that rests with the trial court’s discr

etion but that the general r ule “is not necessaril

y applicable to the15

severance of offenses”); State v. Edwards , 868 S.W.2d 682, 691 (Tenn. Crim. App. (1993); State v. Peacock , 638 S.W.2d 837, 839 (Tenn. Crim. App. 1982) (notin g that the matter of severance under R ule 14(b)(1) is “not s olely within the di scretion of the trial court” and that cas es to the contrary predat e the rule). But see State v. Furlough , 797 S.W.2d 631, 642 (Tenn. Crim. App. 1990) (noting that the decision to grant a severance is “within the trial court’s discretion”).

Rule 14(b)(1), Tenn. R. C rim. P., mandates that a sever ance of permissively joi ned offenses be granted unless “the offenses are part of a common scheme or plan and the evidenc e of one would be admissible upon the trial of the others.” Because the “pri mary inquiry i nto whether a severanc e should have been granted under Rule 14 is w hether the evidence of one cri me would be admissible in the trial of the other if the two counts of the indictment h ad been severed,” see State v. Burchfield , 664 S.W.2d 284, 286 (Tenn. 1984), we believe that our standard of review of a trial court’s denial of a severance under the rule is the same as our standard of review of a trial c

ourt’s decision to admit or exclude evidence of other crimes under Rule 404(b), Tenn. R. Evi d. When a trial court substantially complies with the procedural requirements of the rule, its determination w ill not be overturned abs ent an abuse of discretion. State v. Dubose , 953 S.W.2d 649, 652 (Tenn. 1997).

As previously dis

cussed, a defendant is entitled to a severance under Rule 14(b)(1), Tenn. R. Crim. P., unless a two-prong test is met: (1) the offenses are part of a common scheme or plan, and (2) the evidence of one is admissi ble in the state’s case-in-chief upon the trial of the others. State v. Hallock , 875 S.W.2d 285, 289 (Tenn. Crim. App. 1993). A “common scheme or plan for sev erance purposes is the same as a common scheme or plan for evidentiary purposes.” Id . at 289 (citing Peacock , 638 S.W.2d 837. This court has recogniz ed three categories of “common scheme or plan” evidence: (1) evidence showi ng a distinctive des ign or signature cr ime,16

(2) evidence demonstrati ng a large continuing plan or conspiracy, a nd (3) evidence that is part of the same transaction. State v. Ho yt , 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995) (citing N. Cohen

et al., Tennessee Law of Evidence , § 404.11 (2d ed. 1990)).

In this case, the state contends that the trial court prope rly refused to sever the charges ag ainst the defendant because they fit w ithin the first category

in that they are si gnature c rimes and because evidence of each o f the rob beries wou ld have been admi ssible

at a tri al on the

others to estab lish th e robber ’s iden tity or

motive of the defendant. To fit within the si gnature crime category, the crimes at issue must be sufficiently similar and o f a distinctive design

so as to reflect a modus operandi that can be characterized as a si gnature by the perpetrato r. “The test is not whether there was evidence that the defendant committed both crimes, but whether ther e was a unique method used in committing the crimes.” Young v. State , 566 S.W.2d 895, 898 (Tenn. Crim. App. 1978). Because the determination of whether offenses fit w ithin the signature crime categ ory and are admissible on the issue of identity is fact specific, a review of cases on the issue is helpful.

In Warren v. State , 156 S.W.2d 416 (Te nn. 1941), our supreme court upheld the introduction of evi dence of the defendant’s commission of a robber y a few nights after the robbery for which he was on tr ial. The defendant was charge d with robbing people who w

ere in a car that stopped in the road one night. Each of the witnesses to the robbery described the robber as being tall and wearing a jumper, overalls, and a black c

ap. The witnesses said that the robber had black greas e or paint smeared on his face and that he approache d the car with a pistol

in one hand and a flashlight in the other. The state introduced the testim ony of two witnesses who said that they were robbed i n the same area at around the same time of night a few nights after the robbery with which the defendant was char ged. The victims of the secon d robbery described the robber as wearing a black cap and overalls and as having his17

face smeared with dark gr ease or paint. They also sa id that the robber approached them with a flashlight i n one hand and a pistol in the other. The court held that the testimony concerning the second robbery was admissible because it found that the similarity in the circumstances between the tw o offenses was relevant to pr ove the robber’s identity. Id . at 419.

The court later described the Warren case as marking the boundary for the admission of other crime ev idence to establish identity

. Harris v. State , 227 S.W.2d 8, 11 (Tenn. 1950). The court noted that the black paint or greas e that was smeared over the robber’s face w as probably “such an unusu al thing” that it, along with the other circumstances of the offenses, war ranted the admission of the evid ence of the second robbery. Id . at 11-12.

Harris is a rape case in whi ch the state introduced proof that the defendant raped another woman a wee k before the prosecutrix w as raped. Both rapes were committed b y coercion, and bo th victims thought that a knife was u sed, although neither had seen one. The court reversed the defen dant’s conviction, noting that only one of the rapes “involv ed a perversion” and that the methods pursued in the two rapes were “not so peculiar

as to render it unlikel

y that lustful men bent upon the cr ime of rape might not have pursued identical methods.” Id . at 11.

Our supreme court dealt w ith the admission of other cri me evidence to prove identity agai n in State v. Bunch , 605 S.W.2d 227, 23 0 (Tenn. 1980). The court explained: When evidence that the defendant committed another

crime is offered to prove his identity as the perpetrator of the crimeon trial, the mod us ope randi of the other crime and of the crime on trial must be subs tantially identical and must be so unique that proof that the defend ant comm itted the other offense fai rly tends to establis h that he also committed the offense with which he is c harged.18

(emphasis in original ).

The defendant in Bunch and two codefendants were c onvicted of robbing a grocery store. Although witnesses to the robbery identified the code fendants, they were unable to identify B unch. At trial, the state i ntroduced proof that Bunch and the two codefendants robbed a cafe approx imately four hours before the g rocery store was robbed. The two robberies w ere similar in that, “( 1) both robberies were perpetrated by . . . two men and one woman, (2) in both robberies the perpetrators closeted the ir victims in restrooms

before leaving the premis es, (3) the two busines s establishments robbed were located close to each other, and (4) the two robberies occurred fairly close in time to each other.” Id . at 230. The c ourt reasone

d that the pre

sence of the sa me codefendants at both robberies w as a “unique factor” and held that proof of the prior robbery was admissi ble on the issue of Bunch’s identi ty as the third robber. In reaching its decision, the court ex plained that “it is not nec essary that the other cr ime be identical in every detail to th e offense on tri al; it is s ufficient if ev idence of the o

ther crime supports the

inference tha

t the perpetr

ator of it, s hown to be th e defendant, is the same person who committed the offense on trial.” Id . at 227.

This court upheld the denial of a se verance in State v. Peacock , 638 S.W.2d 837 (Tenn. Crim. App. 1982). The defendant in Peacock was charged with five counts of armed robbery, three counts of aggravated rape,and two counts of aggravated sexual

battery. The charges ar ose out of events that occurre d on three different days over a two-week period at three different residences that were relatively close to each other. The proof show ed that the defendant knocked on each of the residence’s doors and demanded dr ugs, money, and jewel ry. The defendant forced each of the victims to undress . He threatened to shoot each of the v ictims if they looked at his face or if they called the police after he lef t. The defendant sexually assaulted the victims at two of the residences. Giv en the similarities betw een the19

offenses, this court determined that the offenses were part of a common scheme or plan and that the defendant was not enti tled to a severance.

This court reached a similar result in White v. State , 533 S.W.2d 735 (Tenn. Crim. App. 1975). The defendant i n White was charged with rape and robbery with the use of a deadly w eapon. The state was allow ed to introduce proof that the defendant had committed two prior rapes in a similar fash ion. The rapes were similar in that all three of the victi ms testified that the rapist had a knife, moved them from the front seat to the backseat of his car, forced them to undress, discuss ed drugs with them, allowed them to use tis sues, removed two of the v ictims’ glasses, beat two of the victims, and rode around w ith the victims after the r apes before leaving them on the street and taking their purses. The victims als o gave similar descr

iptions of the defendant’s car, including the fact that there was no insi de door handle on the passenger’s door and that th e hole where the handle belong ed was covered wi th silver tape. This court concluded that “there is a modus operandi that is almost letter perfect in all three (3) of the rapes ” and held that proof of the prior r apes was admissible to show the defendant’s identity as the rapist. Id . at 743.

This court also affirmed the denial of a severance in State v. Edwards , 868 S.W.2d 682 (Tenn. Crim. App. 1993). The defendant in Edwardswas convicted of twenty-one counts of rape, two counts of aggrav ated burglary and one count of second degree burglary, aggravated rape, ass ault with the intent to c

ommit rape, and robbery. This court summarized the similarities between the offense s:

t he victims were w

hite females between 21 and 24 ye ars of age. The attacks took place in either apartment complexes or duplexes within a two-mile radius in the West Nashville area

. Each of the victims was alone or appeared to be alone at the time of the attack. All were asleep. Eac h incident involved

a burglary before the rape. All units w ere on the first floor. On every occasion, the assailant instructed the victims to remain quiet; rubbed the victims’ breasts; and digitally penetr ated the victims’ vaginas. In those ins tances the attack was not interrupted, the assailant e ither attempted or completed20 vaginal intercours

e. Generally, the assai lant either sought or took money. The crimes occur red within a 20-month peri od. Although this court recognized that the individual similarities between the crimes were not particularly uni que, it held that the number of si milarities between the c ircumstances of the offenses established a distincti ve design with s ufficient uniqueness of method to constitute a common scheme or plan.

The defendant in State v. Ho yt , 928 S.W.2d 935 (Te nn. Crim. App. 1995), was charged with two counts of aggrav ated rape and one count of aggrav ated sexual battery each of which i nvolved different child v ictims. The two aggr

avated rape victims, an eight-year-old g irl and her nine-year -old brother, lived i n the same household as the defendant and their grandmother. Bot h aggravated rape offenses i nvolved oral penetration and occurred in the defendan t’s home during times when the victims’ grandmother was absent. This court noted that the simil arities between the agg ravated rape offenses far outweighed the differences and held that the aggrav ated rape offenses were sufficiently si milar to constitute a common sc heme or plan. However , the trial court erred by

denying the severanc

e because the probative v alue of the other crime evidence was o utweighed by the dang er of unfair prejudice.

This court held that the trial court erred by admitting other crime evidence as being relevant to i dentity in Young v. State , 566 S.W.2d 895, 898 (Tenn. Crim. App. 1978). The defendant in Young was convicted of armed r obbery. The victim tes tified the defendant woke her at 5:30 a.m., hel d a knife to her throat, and demanded money from her. She said that the defendan t wore an army fatigue jacket, a black “sweaterlike cap,” and a “thin v

eil” or loose stocking

over his face. The state int roduced evidence that the defendant had wo rn the same green jacket and knit hat when he burglarized another r

esidence in the same neighborh ood nine days earlier at 5:00 a.m. This court held that the trial court erred by admitting evidence of the other burglary21

because there was little or no uniqueness in the method of the two crimes. The court noted that the two residences were entered differently and that th e burglar wore a thin veil or loose stocki ng over his face and used a k nife in only one of the burglar ies. The court reasoned that there “w as nothing unique or common abo ut the method of commission o

f the two cr

imes to evi dence that the y were co mmitted by t he same person.” Id . at 898. Because the modus operandi of the two crimes was not the same, evidence that the defendant committed th e earlier burglary was not admissible.

This court likewise held that other crime evi dence was inadmissible t o establish the defendant’s identity in State v. Bobo , 724 S.W.2d 760, 765 (Tenn. Crim. App. 1981). The defendant in Bobo was charged with robbing a Winn Dixie store in Johnson City, Tennessee, in October 1975. The state submitted pr oof at trial showing that the defendant had committ ed a similar robbery of a North Carolina Winn Dixie store in October 1977. In eac h robbery, the robber enter ed the store unmasked and wearing a coat and hat. Each robber went to the sto re’s inside office with a pistol and confronted the manager, handing the manager a grocery b

ag and demanding money. Neither robber took any coins or checks. Dur

ing the Tennessee robbery, the robber went to the store’s safe after the manager had taken money from it and removed a magnetic tray that w

as attached inside the safe at the top . During the North C arolina robbery, the robber order ed the manager to give hi m the money from the magnetic tray

.
Although this court acknowled ged the ma ny similari ties betwe en the two robberies, it held that admis sion of evidence concerning the North Carolina robber y was reversible error.The court reasoned “that there was nothing particul arly unique about these robberies to show that the perpetrator of one committed t he other. Different persons could easily have employed the plan and method used in each robbery.” Id . at 765.22 As the foregoing authoriti es demonstrate, the determination of w hether two or more offenses are signature crimes depends on whether the of fenses were committed in a distinctiv e way. This distinc

tiveness is establis hed by proof that the offenses were committed in an unusual man ner or proof that the offenses are so strikingly si milar that they must hav e been committed by the same person.As our supreme court explained,

the proof depended on to show that the . . . crimes were committed by the same person must establ ish some peculiarity of pl an or method common to the . . . offe nses, otherwis e evidence s howing th e defendant gui lty of the co llateral c rime could do no more than indi cate an evil propensity. Such pr opens ity

is not considered relev ant to identify and the probable prejudicial effect of such evidence lies at the root of the rule excluding i

t. Harris , 227 S.W.2d at 10. “The test is not whether there was evidence that the defendant committed both crimes, b ut whether there was a unique method used in committing the crimes.” Young v. State , 566 S.W.2d at 898.

Although we view

the issue as a close one, w e cannot say that the trial court abused its discretion in denying a severance. Significantly, the robberies in thiscase occurred within a relatively short distance from one another over a twenty-fourhour period, with the tw o Mr. Zip robberies oc

curring within thirty minutes of each other. In each of the robberies, the robber wore a green army

jacket and a black ski mas k and used a gun. Each of the vict ims gave the same general physical descripti on of the robber and described the gun that the robber used as being similar to the BB gun take n from the defendant. In each instance, the r obber demanded money, and the robber ordered the two victims that did not automatically put the cash drawer on the counter to do so.

As in Warren , Bunch , Peacock , White , and Edwards , the similarities between the offenses in this case outweigh the differences. Al though the individual similarities between

the robberies are not parti cularly unique, w hen considered23

together, the circumstances of the offenses established a distincti ve design with sufficient uniqueness of method to consti tute a common scheme or plan. Such a distinctive set of recurrent actions by the perpetrator of offe nses that occurred so close in time and distance to one another would be admissible in separate trials for each of the offenses because of its relevance to the robber’s identity , an issue litigated i n the present case. Thus, we affirm the trial court’s denial o f a severance.

III. INTRODUCTION OF CRACK PI PE Next, the defendant contends that the trial court erred by admitt ing a crack pipe into evidence. The state contends that the trial court prope rly admitted the crack pipe as being relevant toward the defendant’s motiv e for committing the aggr avated robberies. We disagree.

At trial, the defendant request ed a hearing outside the pres ence of the jury, and the trial c

ourt held a bench conference. At the bench conference, the defendant objected to the introduction of the crack pipe as being irrelevant and unduly prejudicial. The state responded that the pipe was relevant to show the def endant’s motive. The trial court overruled the defendant’s objec tion without stating its reasons for admitting the crack pipe.

Evidence is releva nt if it has “any tendency to make the existence of any fact that is of consequence to the determina tion of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Also, Rule 404(b), Tenn. R. Evid, prohibits the introduction of evidence of oth er crimes or bad acts, ex cept when the evidence of other ac ts is relevant to a l itigated issue, such as identity, intent, or rebuttal of accident or mis take, and its probative v alue is not outweighed b y the danger of unfair prejudice.24 The state contends that the trial court properly admitted the crack pipe as being probative of the defendant’s motive and identity. We recognize that motive may be a proper basis for admitting evidence under Rule 404(b ), because motive is often circumstantial proof of a material issue, such as identity , intent, or lack of accident.In this case, the state argues that the defendant’s drug add iction motivated him to commit the aggravated robber

ies. However, the only evidence in the r ecord relating the defendant to drugs is his poss ession of a crack pipe. Altho ugh this may indicate dr ug usage, it is only mi nimally probative of hi m having a cocaine addiction that motivated him to commit the robberies and ev en less probative of his i dentity as the robber. In our view, the tri al court erred by admitting the crack pipe becaus e any probative val ue the pipe has was outwei ghed by the danger of unfair pr ejudice. However, given the limited r eferen ce to the crack pipe in the con text of th e entire t rial, we do n ot believe that the error affected the outcome of the tr ial. See T.R.A.P. 36(b).

IV. SUPPRESSION ISSUE Next, the defendant contends that the trial court erred by failing to suppress the evidence sei zed from his car after his ar rest. The state counters that the evidence from the car was properly admitted because it was found during a sear ch that was incident to a law

ful arrest. See New York v. Bel ton , 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981).

At the suppression hearing, Sergeant Pippinger testified that he ha d heard about the Take Two Video store robbery at the time he stoppe d the defendant. He said that he had been told that the robber was a white male w ho drove a white, four-door Corsica, wore a sk

i mask and a green army j acket, and had sandy brow n, wavy hair. Sergeant Pippinger sai d that the defendant matched the physic al description of the robber, was wearing a green army jacket, and was driving a white four-door Corsica when he stopped the defendant. Serg eant Pippinger said that he told the defendant25

that the defendant matched the descripti on of a robbery suspect and fris ked him for weapons. Sergeant Pippi nger said that the defendant acted v ery nervous, fidgeted, and tried to move away from him.
Sergeant Pippinger test ified that two other officers ar rived on the scene and that they eventually handcuffed the defendant and placed him in the backs eat of Sergeant Pippinger’s car. Sergeant Pipping er said that he and another officer s earched the defendant’s car and found a ski mask and a BB gun under a multi-col ored jacket on the front seat. He said that he di d not see the mask and the BB gun before he searched the car.

Andy Lockhart testified that he saw around one hundred white Corsicas in Bradley County w

ithin eleven hours ov

er a two-day period . Several of the photographs he took were introduced. The defendant’s brother, a general contractor and real estate agent, testified that it w as common for construction wor kers to wear green field jackets like the one taken from the defendant. The defense al so introduced a copy of the 1990 census for Bradley County which shows that Br

adley County had a populat ion of 16,937 white males between the a ges of twenty and forty years old. The census al so indicates that 1,854 white males w orked in the construction t rade.

The trial court denied the defendant’s mo tion to suppress. A trial court's factual findings on a motion to suppress are conclusive on app eal unless the evidence preponderates against them. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996); State v. Jones , 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). The appli cation of the law to the facts as determined by the tri al court is a question of law which is rev iewed de novo on appeal. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997). In this case, the trial court denied the motion to suppres s without stating any

findings of fact or conclusions of law. We conclude that the record su pports the denial of the motion to suppress.26 The analysis of any war rantless search must begi n with the proposition that such searches are per se unreasonable under the Fourth Amend ment to the United States Constitution and Article I, Section 7 of the Te nnessee Constitution. This principle against w

arrantless searches is

subject only to a few s pecifically establishe d and well-delineated ex

ceptions. Katz v. United States , 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967); State v. Tyler , 598 S.W.2d 798, 80 1 (Tenn. Crim. App. 1980). Before the fruits of a warrantless search are admissible as evidence, the state must establish by a prepo nderanc e of the evidence that the search f alls into one of th e narrowly d rawn exceptions to the war

rant requirement. State v. Shaw , 603 S.W.2d 741, 742 (Tenn. Crim. App. 1980).

The state contends that the search i n this case fits withi n the exception to the warrant requir

ement that permits an officer to searc h the passenger compartment of an automobile incident to a law ful arrest. See New York v. Bel ton , 453 U.S. at 460, 101 S. Ct. at 2864. The defendant argues that his arrest was not base d upon probable cause and that the search of his ca r was unreasonable. We disagree.

Initially, we note

that to make a constitutionall y reasonable stop under the United States and Tennessee Constitutions, an officer must, at least, have a reasonable suspicion based upon specific articulable facts that a criminal offense has been or is about to be committed. See Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); State v. Watkins , 827 S.W.2d 293, 294 (Tenn. 1992). An officer may make a warrantless arr est when the officer has probabl e cause to believe that the arrestee has committed a felony.T.C.A. § 40-7-103(a)(2).

Probable cause to arrest ex ists if the facts and circumstan ces within an officer’s knowledge are sufficient to warrant a prude nt person in believing that the arrestee had committed an offense. Beck v. Ohio , 379 U.S. 89, 91, 85 S. Ct. 223, 22527

(1964); State v. Melson , 638 S.W.2d 342, 350-51 (Tenn. 1982). The existence of probable cause is a questi on of probabilities, not techni calities. See State v. Jefferson , 529 S.W.2d 674, 68 9 (Tenn. 1975).

Sergeant Pippinger test ified that at the time he stopped the defendant he knew that the Mr. Zip store on Mouse Creek Road h ad been robbed. He said that he had been told about the Take Two Video store robbery that had occ urred the day before and had been told to be on the loo kout for the video store robbery suspect. He said that he was told that the video store robber drove a white, four-door Corsica, wore a green, army coat, and had sandy brown hair that was almost wavy

in the back. Sergeant Pippinger sai d that he stopped the defendant after he saw that the defendant matched the physical descr iption of the robber and was d riving a whit e, four-door Corsica. Once stopped, the d efendant fidgeted, acted nervous, and tried to move away from Sergeant Pippinger. O nce Sergeant Pippinger d etermined that the defendant matched the description of the robber, he had the requisite reas onable suspicion to stop the car the defendant was driving. Given the defendant’s appea rance, coat, car, and nervous actions, Serg eant Pippinger also had pro bable cause to arrest the defendant for the video store robber y. Because the search of the pas senger compartment of the defendant’s car was conducted incident to a law ful arrest, the trial court properly denied the motion to suppress.

V. IMPROPER ARGUMENT Next the defendant contends that the p rosecuting attorney made improper remarks during the state’ s closing argument and that the trial court made inappr opriate remarks during a bench conference regarding the defenda nt’s objection to the state’s closing argument. The follow ing is the portion of the sta te's argument that is at i ssue: But have you, have yo u figured out, ladies and gentlemen, the defense yet? You know, no r mally when -- you know, as is clearlystated, the def ense doe s not have any, any requirement to do anything in the case, but ha ve you figured out the28 defense, because I ’v e heard several. Let me g ive you a couple th at you’ve h eard tod ay. Nu mber one that you heard -- w ell, that actually y

ou didn’t hear, but that counsel mentioned in openi ng statement was about alibi. Defense counsel objected at this point, and a be nch conference was held during which defense counsel argued that the sta te improperly commented on the de fendant’s right not to produce evidence.

The trial court agreed w ith the defendant that he did not have the burden of producing any evidence but also acknowledged that defense coun sel told the jury during his opening statement that he was going to present alibi proof. W hen defense counsel asked the court how the state was allowed to comment on the lack of evidence introduced by the defendant, the cour t replied, “Well, looks to me like y ou just sort of suckered him in, into say ing that.” The defendant objected to the trial court’s comments and stated that the comments were loud enough fo r the jury to hear. The court disagreed, stating that

the comments were not loud enoug h for the jury to hear. At the conclusion of the bench conference, the court instructed the jury to “totally disregard” the prosecuting attorney ’s last remarks.
The prosecuting attorney’s comments regarding the defendant ’s failure to call alibi witn esses were improper. See Tenn. R. Crim. P. 12.1(f) (“ Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statement s made in connection with such int ention, is not admissible i n any civil or c riminal proceeding against the person who gave notice of the intention.”) ; see also State v. Meeks , 876 S.W.2d 121, 129 (T enn. Crim. App. 1993) (noting that the seriousness of the error in admitting evidence of a w ithdrawn alibi defense w as compounded when the state w as allowed to refer to the w ithdrawn defense in their c losing argument). Ho

wever, the ultimate issue is not w

hether the prosecuting attor ney’s remarks wer

e improper, but29

whether the improper remar ks could have affected the ver dict. See Judge v. State , 539 S.W.2d 340, 344-45 (Tenn. Crim. App. 1976).

In this vein, we note that the defendant has hampered our rev iew of any resulting prejudice by

failing to include a trans cript of the entire closing argument. In Judge , this court identified the foll owing five factors to be considered in assessing the prejudicial effect of improper arg ument or conduct:

1. The conduct complained of viewed in context and in lig ht of the facts and circumstances of the cas e. 2. The cura tive meas ures und ertaken by t he court and the prosecution. 3. The intent of the prosecutor in ma king the improper statement. 4. The cumulative effect of the improper conduct andany other errors in the record. 5. The relative strength or weakness of the case. 539 S.W.2d at 344. In considering the record before us, including the evidence presented and the immediate curati ve instruction giv

en by the trial court, we conclude that the defendant was not prejudi ced by the prosecuting attorney’s remarks. The defendant has likewise failed to establish that he was prejudiced by the trial court’s comments during the bench conference

.

VI. SENTENCING The defendant contends that the trial cour t improperly sentenced hi m to the maximum sentence in the rang e for each robbery. The state c ounters that the record supports the twe lve-year sentences the trial court imposed.

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) and -402(d). As the Sentencing Commission Comments to these sec tions note, the30

burden is now on the appealing party to show that the sentencing is improper. This means that if the trial court f ollowed the statu tory sentencing pro cedure, made findings of fact that are adequately suppor ted in the record, and gav e due consideration and proper weight to the facto rs and principles that ar e relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a diff erent result were preferred. State v. Fletcher , 805 S.W.2d 785, 78 9 (Tenn. Crim. App. 1991).

However, "the presumpti on of correctness which ac companies the trial court's action is conditioned upon the affirmative showi ng in the record that the tr ial court considered the sentenci ng principles and all relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaning ful appe llate revie w,

the trial court must place on the record its reasons for arriving at t he final sentencing decision , identify 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 eva luated and balanced in determining the s entence. 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) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-10 2, -103 and -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, C, D or E felony is presumptivel

y the minimum in the range i f neither enhancement nor mitigati ng factors are present. T.C.A. § 40-35-210(c). Procedurally, the trial court is to increase31

the sentence within the r ange based upon the existence of enhancement factors and, then, reduce the sentence as appropr iate for any mitigating

factors. T.C.A. § 40-35- 210(d) and (e). The weight to be afforded an existing factor is left to the trial court's discretion so long as i

t complies with the purp oses and principles of the 1989 Sentencing Act and its findings are adequately support ed by the record. T.C.A. § 40- 35-210, Sentencing Commissio n Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

The presentence report reflects that the then thirty-three-year-old defendant dropped out of school in the tenth g rade. It states that the defendant reported that he dropped out of school to join the United States N avy but that he never enlisted. It reflects that the defendant worked at two nur sing homes over a peri od of one year and four months and that the n ursing homes reported that h e was a good employee with above av erage performance. The report al so reflects that the defendant was employed by his

brother at the time of his arr est.
The presentence report shows that the defendant has several c onvictions from Florida, including selling marijuana, poss essing marijuana, resi sting arrest, and criminal mischief. The report states that the def endant violated the conditions of his release while on probati on.

Ms. Ginger Long, the officer that prepared the defen dant’s presentence report, testified at the sentencing hearing. She ex plained that she contacted a probation officer in Florida a nd that he told her that the defendant had been on probation for a drug offense. She sai d that the probation officer told her that the defendant had some technical viol ations but did not relate to her what the violations were. Ms. Long sai d that the probation officer told her that the defendant was then placed on community control and he violated the conditio ns of that program by32

absconding. Ms. Long tes tified that she was told that the defendant was permitted to stay on pro bation a nd that t he state of Florid a agreed t o release the def endant e arly.

During cross-ex

amination, Ms. Long admitted th at she did not know whether the probation officer w ho gave her information about the defendant had any personal knowledge of the defendant or any contact with him. She said that she received a post-sentence investigation report from the state of Florida bu t that she did not speak to the person that prepar ed it. She testified that she di d not receive any information about the basis for the abs conding violation.

Six witnesses tes

tified at the sentencing heari ng on behalf of the defendant. They testified regardi ng the defendant’s involv ement in community activi ties such as the Boys and Girl s Club of Cleveland, little league football teams, and a l ocal church. The defendant’s brother tes tified that the defendant worked for hi m building homes, and he described the defendant’s good record as an employee. The defendant’s wife testified that the de fendant did not use alcohol or drugs and was not a violent person. She described the defendant as a good hu sband and parent and as a generous person.

The defendant testified that he did not commit the crimes. He conceded that he had prior convic tions and that he had violated the conditions of probation by possessing marijuana and by failing to pay fines timel y. The defendant stated that he received a certificate i n recognition of his duties performed while work

ing at a nursing home. He said that he has been taking classes to obtain his GED since his incarceration in this c

ase.
At the conclusion of the sentencing hearing, the trial cour

t sentenced the defendant as a Range I, standard offender to twelve years i n the custody of the33

Department of Correction for each aggravated robbery to be served concurrentl y. In sentencing the defendant, the trial court enhanced all of the defendant’s s entences based upon his history of cr iminal behavior. See T.C.A. § 40-35-114(1). The court also stated: I also consider as an enhancement factor that at least one of these offenses involved more than one victim; . . . I believe it was Take Two Video, w here . . . the victi m of the case was the lady that . . . ran the pl ace, but another victim of the offense was her son. .

. . So with respect to him a s an enhancement factor, I think the Court could determine that you had no hesitation about committi ng a crime when the risk to human life was high, or the cri me was committed under circumstances

in which the potential for i njury was great

. That’s n ot a pplicable to the owner of the store, Mrs. Ochoa, because as far asI’m concerned, those two factors there are implicit in the crim e of aggra vated . . . r obbery. So based upon the enhancement f a ctors tha t I’ve m ention ed and the absence of any mitigati ng factors, I sentence you to twelve y ears on each count of robbery, and I approve the jury’s fine of $20,000 on each one.

A. Mr. Zip Sen

tences The defendant contends that the trial court erred by enhancing his sentences for the Mr. Zip ag gravated robberies bas ed upon factor (3), relating to the crimes involving more than one victim, factor (10), regarding the creation of a high risk to human life, and factor (16), inv olving the commission of a crime under circumstances evidencing a great potential for bodily inju ry to a victim. See T.C.A. § 40-35-114. The state agrees but contends that the twelve-year sentences imposed by the trial court are warranted based on the defendant’s history of criminal beha vior. See T.C.A. § 40-35- 114(1). The defendant does not contest the application of factor (1), but he argues that his history of criminal

behavior does not war rant the maximum sentence for the aggravated robberies.

We agree with the parties that factors (3), (10), and (16) do not apply to the defendant’s sentences for the Mr. Zip aggravated r obberies, but we note that th e record is unclear as to whether the trial court applied these factors to the Mr. Zip34

aggravated robberies. The trial court specifically justified its application of fact ors (3), (10), and (16) on Mike Ochoa’s presence during the aggravated robbery at the Take Two Video store, but it di d not then distinguish betw een the aggravated robber ies when it imposed tw

elve-yea r sentences

for each of them

.
In any event, factor (3)

does not apply to the defendant’s s entence for the Mr. Zip aggrav

ated robberies because each of those robberies only inv olved one victim. Factors (10) and (16) ar e inapplicable to the sentences for the Mr. Zip aggr

avated robberies because there is necessarily a high risk to human life and the gr eat potential for bodily injury whenever an aggravated robbery is accomplished with a deadly weapon. See , e.g ., State v. Claybrooks , 910 S.W.2d 868, 872-73 (Tenn. Crim. App. 1994).

However, the recor d supports enhancement of the defendant’s senten ces based upon his pr

evious histor y of unwilling ness to c

omply w ith the c onditio ns of a sentence involving

release in the community, a factor not applied by the tr ial court. See T.C.A. § 40-35-114(8). The pres entence report reflects and the defendant admitted at the sentencing hearing th at he violated his probati on in the past.

With respect to mitigation, we note that several witness es at the sentencing hearing test ified concerning the defendant’s i nvolvement in the community and his family. See T.C.A. § 40-35-113(13). Although such testimony reflec ts favorably upon the defendant’s amenab ility for rehabilitation, we believe that it is entitled to little wei ght in light of the defendant’s prior criminal recor d and inability to comply with conditi ons of release.

Beginning with the presumptive minimum sentence and enhancing the defendant’s sentence for the two appl icable enhancement factors in li ght of the35

mitigating proof that was presented, the record supports ten-year sentences f or the Mr. Zip aggravated robberies. We therefore mod ify the defendant’s sentences for the Mr. Zip aggravated robberies to ten years.

B. Take Two Video Sentence The defendant also contends tha t the court erroneously enhanced his sentence for the Take Two Video ag gravated robbery ba sed on factor (3), relating to the crime involving m ore than one victi m, factor (10) , regarding the crea tion of a high risk to human life, and factor (16 ), involving the commission of a crime under circumstances evidenci ng a great potential for bodi ly injury to a v ictim. See T.C.A. § 40-35-114. The state concedes that the trial court erred by enha ncing the defendant’s sentence based on factor (10). H owever, it argue s that the trial court pr

operly applied factors (3) and (16 ) based on Mike Ochoa ’s presen ce during t he robbe ry.

The defendant contends that the trial cour t erred by applying

factor (3) to hi s s en te nce b as ed on Mi ke Oc ho a’ s p re se nce d ur in g t he ag gr av at ed ro bb er

y. We agree. Factor (3) appl ies when an offense involv es more than one victim. T.C .A. § 40- 35-114(3). In the context of T.C.A. § 40-35-114(3), the ter m victim is limited t

o a “person or entity that is injured, killed, had property stolen, or had property destroyed by the perpetrator of the crime.” State v. Raines , 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994). The proof in this case did not establish that the defendant injur ed Mike Ochoa or took property from him. Thus, the trial court erred by enhancing the defe ndant’s sentence based upon factor (3).

We agree with the defendant and the state that the t rial court erred by applying factor (10) t

o the defendant’s sentence for the Take Two Video aggravated robbery. A high ri sk to human life is inherent i n every aggrav ated robbery accomplished with the use of a deadly w eapon. See Claybrooks , 910 S.W.2d at 872-73; Manning v.36

State , 883 S.W.2d 635, 640 (Tenn. Crim. App. 1994). Althou gh we recogniz e that factor (10) may apply i n situations where the defendant demonstrates a greater culpability than is i nherent in the offense by endangeri ng the life of someone other than the victim of the offense, see , e.g ., State v. Bingham , 910 S.W.2d 448, 453 (Tenn. Crim. App. 1995), we do not believe that the defendant’s use of a BB gun in this case warrants the applicati on of factor (10).

Finally, the defendant contends that the record does not support the trial court’s application of factor (16), regarding a great potential for bodily injury, to his sentence for the aggravated robbery of the Take Two Video store. W e disagree. Like factor (10), factor (16) may apply when someone other than the victim was i n the area at the time of the crime and subject to injury. State v. Si ms , 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). By w aiving the BB gun at M ike Ochoa, the defendant demonstrated a greater culpability and created a greater potential for bodily injury than was inherent in the aggravated robber

y of Kim Ochoa. Thus, the trial court properly appli ed factor (16) to the defendant’s sentence for the Take Tw o Video aggravated ro bbery.
As with the defendant’s sentences for the Mr. Zip aggravated robberies, the record supports enhancement of the defendant’s sentence for the Take Two Vi deo aggravated robbery based on his past inability to comply with conditions of a sentence involving rel ease into the community. See T.C.A. § 40-35-114(8). Appl ying the three applicable enhancement factors in l ight of the mitigating pr oof that was presented at the sentencing hearing, w

e conclude that the defendant’s sentence for the aggravated robbery of the Take Two Video store shall be modified to e leven years.

In consideration of the foregoing and the record as a whole , the convictions are affirmed. The defendant’ s sentences for the Mr. Zip aggravated robberies in counts three a nd four of the indictment are modified to ten years apiece,37

and his se ntence f or the aggr avated ro bbery of t he Take T wo Video st ore in cou nt two of the indictment is modified to elev en years, all to be ser

ved concurrently. Also, the fines imposed by the trial c ourt shall remain the same.

Joseph M. Tipton, Judge
CONCUR:

(See separate concurring & dissenting opinion) John H. Peay, Judge

Curwood Witt, Judge