### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs D ecember

12, 2001 STATE OF TENNESSEE v. PARKER ODELL DO NEY, JR. Direct Appeal from the Criminal Court for Sumner County No. 370-2000 Jane Wheatcraft, Judge

No. M2001-01187-CCA-R3-CD - Filed January 17, 2001

The defendant, Parker Odell Doney, Jr., appeals his convictions for one count of aggravated robbery and two count s of aggr

avated a ssault

and his sentences totaling fifteen years in the Depar tment of Correction. The defendant contends the evidenc e prese

nted aga inst him at tr

ial was in sufficie

nt to support his convicti ons, and th

e trial c ourt err

ed in sentencing him. After a thorough review of the record, we

reduce the aggr avated a ssault sen

tences but otherw ise affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed as Modified
J OE G. R ILEY , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R
. and J OHN E VERETT W ILL IAMS , JJ., joined. Mike Carter, Gallatin, Tennessee, for the appe llant, Parker Odell Doney, Jr.
Paul G. Summers, A ttor ney Gene ral and Re

porter; K im R. Helpe

r, Assista nt Attorne

y Gener al; Lawrence Ray Whitley, District Attorney Gener al; a nd Sallie Wade Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
The state’s p

roof revealed t

hat on Mar

ch 3, 2000 , the def

endant, a long with A

ntonio Cartwrig ht, Corey Jones, and BrandonMoore, walked into the apartment of victims Ricky Ramsey and Robert Br

acey. The de fendant struck Ramsey on the head with a pistol and then with a beer bottle

. Th e defendant and Cartwright assaulted Ramsey while the others r estrained and assaulted Bra cey. The de fendant's companions took property from the apartment and divided it with the defendant. Ricky Ramsey testified Martez Fitts stopped by his apartment, and the two of them played a video game in the living room. Ramsey stated he had known Fitts for years and, more recently,-2-

they were e

mployed to gether. While the y were p laying the

video gam

e, Rober t Bracey and his sister, Katrina

Bracey, entered the apartment. Ramsey said there wa s a knock at the door, and the defendant entered uninvited along with the other men. Ramseytestified he did not know the men, but he recognized Antonio Cartwright, a relative of Fitts. According to Ramsey, the men rem ained s ilent. Ramsey said he "knew something wasn't right," so he told Robert Bracey and his sister, who were leaving to go to their mother’s home, that he would lea

ve with them. Ramsey testified that as he stood up and began walking, the defendant pulled out a gun, jumped at him, and struck hi m on the head with the gun. Ramsey described the gun as having a silver barrel and black handle. Ramsey said the defendant lost control of the gun, and it fell to the floor. Two of the other men char ged Rober

t Bracey . Ramsey sa

id he was hit over the head with something "glass and wet" as he and the defendant wer e s truggling

for th e gun. Ramsey testified he was dazed after being struck a nd lay still for an unknown period of time. Then he went to his bedroomin respon se to an or der by the defenda nt, who wa s holding the gun. Wh ile he was in the bedr oom, Cartw

right stru ck Ramsey

in the mouth. Ramsey testified Cartwright and the defend ant kick ed, stomped and hit him while he was curled up in a ball. The defendant then ordered Ramsey to lie on the living room floor. Ramsey observed one of the men on top of Robert Bracey, who was on the floor.
As the three other men started to leave, the defe ndant stopped, grabbed a

bar stool , and used it to again strike Ra msey. The

n the def endant a nd the othe

rs left th e apart ment. Ramsey testified the apartment was ransacked during the incident. He also stated h e h ad about $500 in cash in the lockedcloset i n his bedroom. Ramsey said the money, his video game, and a set of wheels we re taken from the a

partmen t. Accor ding to Rams ey, Fitts knew he was saving money for a car and wa s working a great deal of overtime. Ramsey testified Fitts was not involved in the assault, and he did not know what happened to him. Fitts was not charged with the crime.
Robert Bracey testified he heard a knock on the door , a n d the defendant entered the apartment alon g wit h the othe

r men. Bra

cey test ified the defenda nt promptly

reache d into his waistband and brought

out a pistol, lunged at Ramsey, and struck Ramsey in the head with the pistol. The defendant and Ramsey struggled for the pistol, which ha

d fallen to the floor. Bracey described the gun as being a black semi-automatic pistol approximately eight inches long. Bracey stated he attempted to “go for

the wea pon,” but he was st ruck in t he back of the head and dragged into the bathroom , where he was ordered to lie fac e down. Then someone stood on the back of his neck and re peatedl y struck hi m in the ba

ck, nea r his kidne

ys. Minute s later, s omeone r emoved hi s wallet , containing $35, from

his pants p ocket. Br

acey te stifie d he hear d breaking glass and “stuff being rumbled through” while he was lying in the bathroom, and he could see objects be ing thrown.
Katrina Bracey testified she heard a knock on the door, and Ramsey rose from the couch to answer the door. Robert Bracey asked who was at the door, a nd Katrina

Bracey heard a mumble from the other side of the door before the defe ndant entered with three other men. She testified the men spread out in a line in front of them and, after a brief exchange of words, the defendant pulled a gun from h

is waistba nd, lunge d at Ramse

y, and hit Ramsey in the head with the gun. She observed-3-

the defendant struggling with Ramsey. Brandon Mooreand Core y Jones we

re strug gling with

her brother. She stated the defendant hit Ramsey on the head with a bee r bottle. Katrina Bracey said she tried to leave the a partment to seek help, but Fitts shutthe door in her face. Then t

he defendant turn ed towards her, pointed the gun at her, and told her to go to a bedroom and put her head down. As she complied, she observed Jones a nd Moore h ol ding her brother down on the

flo or. She st ated the defendant and Cartwright took Ramsey into the other bedroom. She also observed the men strike Ram sey whil e he lay in the living room floor with a couch cushion ov er his he ad. Befo re they l eft, t he men yelled, “Call the cops and see what happens!” and “Ge

t ready. Here it c omes!” T hen Ramse

y was hit with the bar stool. She stated the apartment was “in shambles” following the incident. Investigator

Alicia Pa

ck test ifi ed the ap artment w as ransa cked, with drawe

rs and ca binets open and their contents strewn in the floor. She described the apa rtmen t a s being "r

eally, r eally small" such that

a person could sta nd inthe living room and see all of the apartment. Pack noticed blood undern e ath the coffee table in the living room, blood splatters on the kitchen floor, bloody fingerprints on a bedroom closet door, and blood smeared on a wa ll near the closet.
Detective Stan Hilgadiack testified the defendant denied any knowledge of the crime during an inter view on March 29, 2000. Hilgadiack stated the defendant also denied knowing Ricky Ramsey, Brandon Moore, or Corey Jones, and further

denied owning a b.b. gun or any other weapon. On April 5, 2000, during an interview with Investigator Pack, the defendant admitted he was present at the apartment at the time of the crime. He said he struck Ramsey with a b.b. gun and a beer bottle. Corey Jones, who pled guilty to two counts of facilita tion to comm

it aggra vated ro bbery in connection with the incident, testified for the defenda nt. Jones s tated the

defenda nt, Antonio Cartwrig ht, Brandon Moore, and Martez Fitts were with Jones at Jones’s home, where they w ere all using cocaine, except the defendant. Jones s aid he ha d never k nown the d

efenda nt to use dr

ugs. Jones stated they decided to leave to purchase some mar ijuana.
Jones said Fitts direc ted them to Ramsey’s apartment, where Fitts went inside to buy marijuana while the rest of them remained in the car. Jones testified Fitts had been in the apartment betweenten and twenty minutes when the others decided to join him. Jones stated they knocked on the door and heard, “Come in.” According to Jones, the defend ant and Ramsey had a prior alterca ti on over a gir lfriend. Jones said the defendant realized Ramsey w as there and thought Ramsey was “going to do something to him.” Jones indicated Ramsey reached under the couch. Jones testified the defendant and Ramsey scuffled, but later a dm itted he truthfully told police the defendant suddenly pulled out a gun and struck Ramsey’s head. Jones admitted wrestling Robert Bracey to the ground because he thoug ht Bracey was going to assist Ramsey. He testified he remained on Brace

y’s back to “[mak e] sure he didn’t go anywhe

re.” Jones also a

dmitted ta

kin g Bracey’s wallet. Jones stated Brandon Moore took marijuana from Ramsey’s closet, which w as divided by the participants in the crime, including the defendant.-4-

Jones testifie d there w as no plan to rob the victims before entering the apartment. He stated his decision

to take Br

acey’swallet wa s spontane ous. Jone s said th e wallet contained only $20, which was not shared with the defendant.
AntonioCartwright, who pled guilty to two counts of facilitation to aggravated robbery and one count of a

ggravat ed assau lt, alsotestified for the defendant. Cartwright stated after they waited outside the apartment ten to fifteen minutes for Martez Fitts, he knocked on the door to see what was taking Fittsso long. Ca rtwright said he he ard, “Co me in,” so they ente

red the a partmen t. Cartwright denied there was any plan to commit a robbery. Cartwright

speculated

the defendant

and Ramse

y had a pr oblem with

a girl. Ca rtwright said Ramsey “reached up” u

pon seein g the def

endant, and the de

fendant struck Ra msey acr oss the head witha gun he got from Brando n Mo ore. Car twright sta

ted the de

fendant and Ramse

y fought. Cartwright

admitted he also struck Ramsey. Cartwright told police he saw Corey Jones on Robert Bracey’s back. He

also told police the defendant

ran through the ap artment o rdering the victim s to get down and not to move. Cartwrig ht test ifie d a half pound of marijuana worth about $500 was taken from Ramsey ’s closet and divided among them. Cartwright denied any knowledge of any property stolen from Robert Bracey.
The defendant testified he left Jones’s house with the other men whe n they decided

to go buy marijuana, though he denied using any drugs. He denie d there w as any pla n to commit a robbery. The defendant said heand Ramsey h ad previously been in an argument over a girl, and Ramsey reached under the couch wh en he saw the defe ndant. The defendant said he grabbed a blac k b.b. gun from Brandon Moore’s waist and struck Ramsey in the head. The gun came loose from his hand and fellon the floor. He sai d he and Ramsey fought from the living room into the bedroom and back into the living r

oom; there

fore, he did not noti ce what

else washappening in the ap artment. He admitted striking Ramsey in the head with a beer bottle.
The defendant

said the other men grabbed Bracey because Bracey wanted to jump into the fightbetween him and Ramsey. He stated he and Ramsey wer e fighting throughout the entire episode, and he was trying to get awayfrom Ramsey. He denied pointing a gun at Katrina Bracey and also deniedtaking anything from the apartment or from Robert Bracey. The de fendant testified he didnot know about

the theft of the marijuana until Brandon Moore later poured it out on a table. He admitted taking some of the marijuana, but said he was “shocked” and did not know what was in the house. Ricky Ramsey de

nied having marijua

na in the apartment. Ramsey testified the gun held by the defendant

did not appear

to be a b.b. gun. Ramsey also denied that he and the defendant ha d a previous altercation regarding a girl.
The defendant was indicted for two counts of aggravated robbery regard ing the acts agains t Ricky Ramsey and Robert Br acey and one cou

nt of aggr avated a ssault for

the acts against Katrina Bracey. A Sumner Co

unty jury c onvicted

him o f the aggra vated robbery of Ramsey, the lesser--5-

included offense of aggravated assault of Rober t Bracey, and the aggravat ed assau lt of Katrina Bracey.

SUFFI CIENCY OF THE EVIDENC E
The defendant argues the

evidenc e was not

sufficie nt to suppor

t his convictions. When an accused challenges the suff iciency of the

evidence, this court must review the record to deter mine if the evidence adduced during the trial was sufficient "to support the finding by the trier of fact of guilt bey ond a rea sonable d

oubt." T enn. R. App. P. 13( e). This r ule is applica

ble to find

ings of g uilt predicated

upon direct evidence, c ircumst antial evidence or a combination of direct and circumstantial evidence. State v. Brewer , 932 S.W.2d 1,18 (Tenn. Crim. App. 1996).
In determining the sufficiency of the evidence, this court does not reweig h or reevaluate

the evidence. State v. Cabba ge , 571 S.W.2d 8 32, 835 (T enn. 1978 ). Nor ma y th is court su

bstitute its infer ences for those drawn by the trier of fact from circumstantial evidence

. Liakas v. S tate , 19 9 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956) . To the contrary , this court is required to afford the state the strongest legitimate view of the evidenc e containe d in the record as w ell as all reasona ble and legitimate inferences which may be drawnfrom the evidence. State v. Tu ttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995).
Becau se a verdict of guilt removes the presumption of innocence and re places i t w ith a presumption of guilt , the acc used has t

he burde n in this court o f il lustratin g why the evide nce is insufficient

to support the verdict returned by the trier of fact. State v. Tuggl e , 639 S.W.2d 913, 914 (Tenn. 1982). A. Criminal Responsibility
As we review the evide

nce in thi s case in

order to determine its sufficiency , we recognize the state may prove a defendant’s guilt of an offense by the theory of c

riminal responsibility. One way to establish

criminal responsi bility is to prove

the accused, whi le acting with the in

tent to pro mote or assist the commission of the offense, or to benefit in the proceeds or re sults of the offense, solicited, directe d, aided, or attemp ted to aid another person in committing the offense. Tenn. Code Ann. § 39-11-402(2). Criminal responsibility is not a separate or distinct crime. State v. Lemacks , 996 S.W.2d 166, 170 (Tenn. 1999). Adefenda nt convic ted by

the theor y of criminal responsi bility is gu ilty in the same degree as the princ ipal who committed the crime and is considered to be a principal offender. Id . at 171.

B. Aggravated Robbery of Ricky Ramsey Aggravated rob bery is the intentional or knowing theft of property from the person of anothe r by violence

or putting

the victim

i n fear a ccomp lished thr

ough the u se or disp lay of a d eadly-6-

weapon, or by any article used or fashione d to lead t

he victim t

o reason ably beli eve it to b e a dead ly weapon. Tenn. Code Ann. §§ 39-13-401(a), -402(a )(1).
In the case sub judice , the state’s proof es tablished mone y and other items of value were taken from victim Ricky Ramsey while the defendant and Antonio Cartwright were assaulting Ramsey. Though the defendant denies personally taking the victim’s property, the jurycould have found, beyond a

reasonable doubt, the defendant attacked a nd assaulted Ramsey with a pistol and beer bot tle in orde

r to aid or assist his companions in their efforts to locate and steal property, and was, ther efore, criminal

ly respon sible for the thefts which were accomplished via the violenc e which, by his own admission, h e personally committed upon Ramsey. Witnesses testified the defendant entered the apar tment and almost imme diately

launched an unprovoked attack o n Ramsey. While the defendant claims he was unaware of theft of R amsey’s property because he was involved in a fightwith Ramsey, the jury could reasonably have found otherwise. The state’s proof established the defendant’s companions ransacked the small apa rtment, all of which could be viewed from the living room. Ramsey and Katrina Bracey testified Ram sey w as no longer struggling with the defendant after he was struc

k in the he ad with

the beer bottle. Also, the proof showed the defendant ordered Ramsey andthe other victims to the ground, indicating the episode was actually a robbery in progress rather than a mer e s cuffle with Ramsey. Further, even the proof submitted by the defendant indicated the defendant’s cohort, Brandon Moore, re moved $500 in marijuana from Ricky Ramsey’s closet and later shared the marijuana with the defenda nt. The jur

y could have re asonably found, based on the proof, the defendant assaulted Ramsey to a ssist the theft in order to benef it in the proceeds and was, therefore , criminally responsible for the ac t ions of the others in stealing Ramsey’s property. For

all of these reasons, we conclude the evidenc e was sufficient to convict the defendant of the aggravated robbe ry of Ramsey. C. Aggravated Assault of Robert Bracey Although indicted for

aggravated robbery of Robert Brace y, the defendant was convicted of the lesser-included offense of aggrava ted assa ult. Assau

lt is committed

when the defenda nt, while acting intentiona

lly, knowingly or re cklessly , causesbodily inju ry to the victim , or inten

tionally or knowingly

causes t he victim t

o reason ably fear imm

inent bodi ly injury. Tenn. Code Ann. § 39-13- 101(a)(1), (2). If a per

petrator intentionally or knowingly commits the assau lt while us ing or displaying

a deadly w eapon, he is guilty of aggravated a s sault. Te nn. Code Ann. § 39-13- 102(a)(1)(B). A deadly we apon under the aggra vated assault statute is a firearm or any thing that in the manner o f its use or

intended use is ca pable of causing death or serious b odily

i njury. Tenn. Code Ann. § 39-11-106(5). As previou sly discussed, the state may also prove an offense by

the theory of c

riminal responsibility. Tenn. Code Ann. § 39-11-402.
The proof

establish ed the men accompany ing the defendant grabbed Robert Bracey and dragged him into another

room whe

re they struck hi m, ki ck ed hi m, an d s to od on hi s b ac k. Cl ea rl y, these actions constituted assault. The proof also showed the defendant, display ing a pistol, told the victims to get down on the floor and not move. Even if the jury believe d the pisto l was a b. b. pistol, which it wa s n ot re qu ir ed to do , i t c ou ld st il l f in d t he b. b. pi st ol wa s a de ad ly w eapon capable of causing serious bodily injury based upon the manner of its use by defendant. See Statev. Malcom b-7-

Wampler , C.C.A. No. 03C01-9608-CR-00325, 1997 WL 559433, at *3 (Tenn. Crim. App. Sept. 9, 1997, at Knoxville). Given the facts submitted to the jury, it could have r easona bl y found the defenda nt, acting with the intent to promote or assist the assault of Brace y, aided in the commission of the assault and was, therefore, criminally responsible for the assault. Further, the jury could have reasona bly found the assault constituted an aggravate d assault due to the defendant’s display of the deadly we apon. D. Aggravated Assault of Katrina Bracey
Katrina Bracey testified the defendant pointed the gun at her whe n h e ordered her into a bedroom. Based o n this testi mony , the jury could hav e reaso nably

found this action c aused he r to reasona bly fear imm inent bodi ly

injury and there

by constituted an assault. Fur ther, since thisassault was accomplished through the display of the gun, the jury

could have reasonably

found it to be an aggravated assa

ult with a deadly wea

pon for the same reasons stated above.
For all of these reasons, the defendant’s arg ument that there was insuffic ient evid ence to support his convictions is without merit.

SENTENCING
The defendant argues the trial cour t erred in setting the length of eac h sentence. He further argues the trial

court er red in or dering the concurrent f

ive-y ear sentenc es for the two aggra vated assaults to run consecutively to the te n-year sentence for agg

ravated robbery

. This court’s review of the sentenc e imposed

by t he trial c ourt is de novo with apresumption of correctness. Tenn. Code Ann. § 40-35-401(d). This pre sumption is conditioned upon an affirmative showing

in th e record

that the tr

ial judg e conside

red the s entencing principles and all relevant facts and circumstances. State v. Pettus , 9 86 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to c omply

with the st

atutory directiv es, ther

e is n o presump tion of correctness and our review i s de novo

. State v. Poo le , 945 S.W.2d 93, 96 (Tenn. 1997).
If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35- 210(c) providesth at the presumptive sentence for these offenses sha ll be the minimum sentence within the applicable range. State v. Lavender , 967 S.W.2d 803, 806 (Ten n. 1998); State v. Fletcher , 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such fac t ors do exist, a trial court should enhance the minimum sentence within the range f or enhancement factors and then re duce the sentence within the range for the mitigating f actors. Ten n. Code An

n. § 40-35 -210(e) ; State v. Arnett, , 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight for eac h factor is prescribed

by the statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial court complies with the purposes and principles of the sentencing act and its findings are supported by the rec ord. State v. Mo ss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Kelley , 34 S.W.3d 471,-8-

479 (Tenn. Cr

im. App. 20 00); see Tenn. Code Ann. § 40-35-210 Sen tenci ng Commission Comments. A. Aggravated Robbery
The range of punishment for a Rang e I offender for aggravated robbe

ry, a Class B f elony , is eight to twelve years. See Tenn. Code Ann. § 40-35-112(a)(2). I n setting this aggravated r obbery sentence at ten y

ears, the trial c ourt appl

ied enha ncement factor s (2) (the

defenda nt was a le ader in the commission of the offense) and (3) (the offense i nvolved more than one victim). Tenn. Code Ann. § 40-35-114 (2), (3). It a lso applied mitigating factor (8) (the defenda nt was suf fering from a mental or physical condition that signif icantly reduc ed his culpability). Tenn. Code Ann. § 40- 35- 113(8). The tr ial co urt en hanced the de fendan t’s R ange I sen tence f or the Cla ss B felony

to eleven years, a nd then reduced the sentence to ten y ears due to the mitigating factor.
The defendant argues the trial cour t misapplied the two enhancement factors

. First, he submits the proof was insufficient to establish the defendant was the leader

in the offense. However, it is not necessary

for the trial court to find the defendant to be the leader of the offense; instead, the statute only requires the de

fendant to be a leader in the offense. Tenn. Code Ann. § 40-35-114( 2); State v. Robinson , 971 S.W.2d 30, 47 (Tenn. Crim. App. 1997). The proof at trial established the defendant initiated the crime

when he a

ttacked Ricky Ramsey ; t hus , the proo f was suf ficient t o support the trial court’s finding that the defendant was a leade r in the commission of

the offense of aggravated robbe

ry. However, the trial court misapplied enhancement factor (3)(the offense involved more than one victim). This factor

may not be applied whe

re the defendant is separately convicted of offenses committed agains t each vi ctim. State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995). Here, the defendant was convicted of separa te offenses for his actions against the other victims; thu s, the factor cannot be applied. However, after our review of the record, we c onclude the application of the other enhancement factor justifies the ten-y ear sentence, which is two y ears above the minimum.
The defendant, who was eighteen a t the time of the offense, further arg ues the trial court should have applied Tenn. Code Ann. § 40-35-113(6) as a mitiga ting fa cto r because he lacked substantia l judgme nt in committing the offense because of his y outh. Our state supreme court has stated “courts should consider the concept of y outh in context, i.e., the defendant’s age, education, ma tu ri ty, experience, mental capacity or development, and any

other pertinent circ umstances tendin g to demonstrate the defendant’s ability or inability to apprecia

te the nature of his conduct.” State v. Adams , 864 S.W.2d 31, 33 (Tenn. 1993). The application of factor (6) is not determined solely by chronological age. State v. Elder , 982 S.W.2d 871, 879 (Tenn. Crim. App. 1998). The defendant submits evidence presented reg arding his age, education, experience and social history warr

ants the ap plic ation of this mitig ator. The defenda nt testified he rea

ds at a se cond gr

ade leve l. His grandmother

testified the defendant’s mother abused him and gave

him Valium as a small child. She also said the defendant has a learning disability

. It appears to this court that the trial court considered-9-

this evidence in apply

ing mitigating factor (8) (the defendant wa s suffering from a mental or phy sical condition that significantly reduced his culpability). Since the trial court considered these matters under mitigating factor (8), the

defendant is entitled to no further reduction under mitigating factor (6).
The defenda

nt furthe r urge s this cour

t to consid

er the de fendant ’s expres sions of r emorse as a mitigating factor. At sentencing, the defendant

submitted original letters to the victims in which he asked the

m for for givene ss. However, the defendant told the probation officer prepa ring the presentencereport the offenses were “all a misunderstanding and if I wasn’t hanging with the wrong people, I wouldn’t be in this predicament.” Further, at sentencing , the defendant told the assistant districtattorney, “Y ou treat me worse than any body else. Like say

ing I’m the g

uilty one.” We are unable to conclu de the defendant is entitled to a further reduction based upon his alleged remorse.
For the reasons set forth, we affirm the defe ndant’s sentence of ten years for aggravate d robbery. B. Aggravated Assaults
The range of punishment for a Range I off

ender for aggr

avated assault, a Class C fe

lony , is three to six years. See Tenn. Cod e Ann. § 40 -35-112( a)(3). In se tting ea ch agg ravate d assault sentence at five yea

rs, the trial court applied enhancement factor s (10) (the defe n dant had no hesitation about committing a crime when the risk to human life was high) and (16) (the crime was committed under circumstances under which the potentia l for bodi ly in

jury to a victim

was great). Tenn. Cod e Ann. § 40-35-114(10), (16). As previously stated, the defendant’s convictions for aggravated

assault rather than simple

assault were based on his display ing a deadly

weapon. There is necessarily

a risk to human life and a great potential for bodily injury

whenever

a deadly w eapon is used. State v. N

ix , 922 S.W.2d 894, 903 (Ten n. Crim. App. 1995 ); State v. H ill , 885 S.W.2d 357, 363 (Tenn. Crim. App. 1994). Therefore, these enha ncement factors were inheren t in the defendant’s aggravated assa ult convictions, and the trial court should not have used them to enhance the defendant’s sentence s . Therefore, we reduce each sentence for ag gravated assault to the minimum sentence of three y ears. C. Consecut ive Sente ncing
The defenda

nt furthe r argu es t he trial court erred by

ordering his sentences for ag gravated assault to be served consecutively to his ag gravated robbery sentence. The trial court imposed consecutive sentenc ing aft er finding defe

ndant wa s a

“dangerous offender,”

and he committed the insta ntoffenses while on probation for misdemeanor assault. A cour t may order se

ntences to r

u n consecu tively if the court finds b y a

prepond erance of the evidence t

hat:

. . . .-10-

(4) [t]he defendant is a dangerous offe nder whose behavior indicates little or n o regard for human life, and

no hesitation about com

mitting a crime in w

hich the r isk to hum an lif

e is hi gh; [o

r] (6) [t]he defendant is sentenced for an offense c ommitted while on probation.

. . . . Tenn. Code Ann. § 40-35-115(b)(4), (6); see also State v. Black , 924 S.W.2d 912, 917 (Tenn. Cr im. App. 1995). Specific findings that an extended sentence is necessa

ry to protec t society

and is re asonably related to the severity of the of fenses are prerequisites to consecutive se ntencing under the “dangerous offender” categor y in Tenn. Code Ann. § 40-35- 115(b)(4). Stat e v. Wilkerson , 905 S.W.2d 933, 939 (Tenn . 1995 ). How ever, s uch sp ecifi c factu al fin dings are not required for the other categories of Tenn. Code Ann. § 40-35-115(b). State v. Lane , 3 S.W.3d 456, 461 (Tenn. 1 999)

. Neverth eless, the general principles of sentencing require that the length of s entence be “justly deserved in relation to the seriousness of the offense” and “be no g reater than that deserved

for the offense committed.” Id. at 460 (citing Tenn. Code Ann. §§ 40-35-102(1) and 103(2) ).
The trial court failed to make the required Wilkerson findings regarding the “dangerous offender” category . However, the trial court properly found tha

t the instant offenses were committed while the defe ndant wa s on super

vised pro bation fo r misdeme anor ass ault. This alone is sufficient to justify consecutive sente ncing. See State v. Ensley , 956 S.W.2d 502, 514 (Tenn. Crim. App. 1996) (holding only one sta tutory factor is needed to justify consec utive sentences). An agg

regat e se ntence o f thirtee

n ye ars is just

ly d eserve d, and no g

reater than that deserve d, for the se offe

nses.

CONCLUSION
In summary , we aff

irm all convictions. We affirm the sentence of ten y ears for aggr

avated ro bb er y, reduce the sentences for each of the two aggravated assa

ults to three year s, and require the two three-y ear sentences to run concurre ntly with each other but c onsecutively to the ten-y ear sentence, for a total effective se ntence of thirteen years.

AFFIRMED AS MODI

FIED.

___________________________________-11- JOE G. RILEY, JUDGE