FILED

May 14, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9802-CR-00056

)

Appellee, )

)

) HAMILTON COUNTY

VS. )

) HON. DOUGLAS A. MEYER

ERIC DEWAYNE MCELMORE, ) JUDGE

)

Appellant. ) (Direct Appeal - Aggravated Robbery)

FOR THE APPELLANT: FOR THE APPELLEE:

ARDENA J. GARTH JOHN KNOX WALKUP

District Public Defender Attorney General and Reporter

DONNA ROBINSON MILLER ELLEN H. POLLACK

Assistant District Public Defender Assistant Attorney General

Suite 300-701 Cherry St. 425 Fifth Avenue North

Chattanooga, TN 37402 Nashville, TN 37243

BILL COX

District Attorney General

C. CALDWELL HUCKABAY

Assistant District Attorney

300 Market Street

Chattanooga, TN 37402

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On January 14, 1997, Appellant Eric D. McElmore pled guilty to two counts

of aggravated robbery. On April 3, 1997, Appellant pled guilty to another count

of aggravated robbery and a number of counts involving other charges. After a

sentencing hearing on May 29, 1997, the trial court sentenced Appellant as a

Range I standard offender to a term of ten years for the first aggravated robbery

and twelve years for the second aggravated robbery, with the sentences to run

concurrently. The trial court also imposed a sentence of twelve years for the third

aggravated robbery, with this sentence to run consecutively to the other two

sentences. Appellant challenges all three of his aggravated robbery sentences,

raising the following issues:

1) whether the trial court imposed excessive sentences; and

2) whether the trial court erred when it imposed consecutive sentencing.

After a review of the record, we affirm the judgment of the trial court.

I. FACTS

On January 21, 1996, Appellant and at least two other armed individuals

entered a Hooters Restaurant and took approximately $10,000 in cash from the

business. One or more of the armed robbers then ordered some Hooters

employees into a closet and forced them to remove their clothes. 

On June 20, 1996, Appellant entered the offices of Dixie Stamp and

Machine and pointed a gun at Rodney Moore and Roy Covington. Appellant then
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robbed Moore and Covington of their wallets and fled through an alley. Moore

then retrieved a gun and gave chase. Appellant then shot Moore in the thigh and

Moore returned fire and shot Appellant in the left hand, left leg, and left foot. 

II. LENGTH OF SENTENCES

Appellant contends that the trial court erroneously sentenced him to a

longer term than he deserves for each of his three convictions. We disagree.

“When reviewing sentencing issues . . . including the granting or denial of

probation and the length of sentence, the appellate court shall conduct a de novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the court from which the appeal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presumption of correctness which accompanies the trial court’s action is

conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enhancing and mitigating factors, argum ents of counsel, the defendant’s

statements, the nature and character of the offense,and the defendant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of

demonstrating that the sentence is improper.” Id.
1

The judgment forms state that the sentences are twelve years for the aggravated robbery at the

restaurant, twelve years for the aggravated robbery of Covington, and ten years for the aggravated

robbery o f Moor e, with the se ntence for the ag gravate d robbe ry at the resta urant to ru n cons ecutively to

the aggravated robbery of Covington. However, the transcript of the sentencing hearing indicates that the

trial court actually imposed a twelve year sentence for the aggravated robbery of Moore and a ten year

sentence for the aggravated robbery of Covington and ordered the sentence for the aggravated robbery at

the restaurant to run consecutively to the sentence for the aggravated robbery of Moore. When there is a

conflict be tween th e court m inutes or ju dgm ent and th e transc ript, the trans cript contro ls. State v. Moore,

814 S.W .2d 381, 3 83 (Te nn. Crim . App. 199 1); State v. Da vis, 706 S.W.2d 96, 97 (Tenn. Crim. App.

1985). T herefo re, the trial cou rt’s judgm ent form s shall be m odified by this C ourt’s judg men t to reflect a

twelve year sentence for the aggravated robbery of Moore and a ten year sentence for the aggravated

robb ery of Cov ington, with the sente nce for the agg rava ted ro bbery at the resta uran t to run cons ecutively

to the sentence for the aggravated robbery of Moore.

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In this case, Appellant was convicted of three counts of aggravated

robbery, a Class B felony. See Tenn. Code Ann. § 39-13-402 (1997). The

sentence for a Range I offender convicted of a Class B felony is between eight

and twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (1997). When both

enhancement and mitigating factors are applicable to a sentence, the court is

directed to begin with the minimum sentence, enhance the sentence within the

range as appropriate for the enhancement factors, and then reduce the sentence

within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-

35-210(e) (1997).

After the sentencing hearing, the trial court imposed a twelve year

sentence for the aggravated robbery that occurred at the restaurant, a ten year

sentence for the aggravated robbery of Covington, and a twelve year sentence

for the aggravated robbery of Moore.1

 In determining the length of these

sentences, the trial court found that the following enhancement factors applied

to all three sentences: (1) that Appellant had a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the

appropriate sentencing range; (8) that Appellant had a previous history of

unwillingness to comply with the conditions of a sentence involving release into

the comm unity; (10) that Appellant had no hesitation about comm itting a crime
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in which the risk to human life was high; and (20) that Appellant had been

adjudicated of a delinquent act as a juvenile that would have been a felony if

committed by an adult. See Tenn. Code Ann. § 40-35-114(1), (8), (10), & (20)

(1997). The trial court also found that the following enhancement factors applied

only to the sentence for the aggravated robbery at the restaurant: (2) that

Appellant was the leader in an offense involving two or more criminal actors; (3)

that the offense involved more than one victim; and (7) that the offense involved

a victim and was committed to gratify Appellant’s desire for pleasure or

excitement. See Tenn. Code Ann. § 40-35-114(2), (3), & (7) (1997). The trial

court also found that the following enhancement factor applied only to the

sentence for the aggravated robbery of Moore: (6) that the personal injuries

inflicted on the victim were particularly great. See Tenn. Code Ann. § 40-35-

114(6) (1997). The trial court also found that mitigating factor (13) applied to all

three sentences because Appellant is mildly retarded and has experienced

emotional problems, he had cooperated with the police, he was sexually abused

as a child, and he had numerous family problems. See Tenn. Code Ann. § 40-

35-113(13) (1997). Finally, the trial court found that the enhancement factors

outweighed all of the mitigating factors. 

Appellant does not challenge the application of enhancement factor (1) and

we conclude that it was properly applied to all three sentences. Appellant has a

previous adult criminal record consisting of one conviction for cocaine

possession, one conviction for theft of property worth between $1,000 and

$10,000, two convictions for theft of property worth up to $500, and two

convictions for criminal trespass. We conclude that this factor is entitled to

significant weight.
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Appellant likewise does not challenge the application of enhancement

factor (8) and we conclude that it was properly applied to all three sentences.

Appellant had received probation in a previous case and that probation was

revoked after he violated the term s of probation. 

Similarly, Appellant does not challenge the application of enhancement

factor (20) and we conclude that this factor was properly applied to all three

sentences. The record indicates that Appellant has a juvenile adjudication for

aggravated burglary. This would have been a felony if com mitted by an adult.

See Tenn. Code Ann. § 39-14-403(b) (1997) (“Aggravated burglary is a Class C

felony.”).

In addition, Appellant does not challenge the application of enhancement

factor (3) to the sentence for the aggravated robbery at the restaurant and we

conclude that this factor was properly applied to this sentence. The record

indicates that when Appellant and the other armed individuals entered the

restaurant, some or all of them forced several employees into a closet and then

forced them to remove their clothes. 

Appellant does challenge the application of enhancement factor (2) to his

sentence for the aggravated robbery at the restaurant. Specifically, Appellant

contends that there was no evidence that he was a leader in the offense. We

agree with Appellant that the trial court erred when it applied enhancement factor

(2). Although the record indicates that at least two other individuals participated

with Appellant in the commission of this crime, the record does not contain any

evidence about Appellant’s actions in the preparation for or during the
2Appellant maintains that he shot Moore in self-defense and he claims that a jury acquitted him of

the attempted first degree m urder of Moore bec ause it believed his theory of self-defense. However,

although the record indicates that Appellant was acquitted of the attempted first degree murder of Moore,

there is nothing in the record that indicates that the jury acquitted Appellant because it believed his theory

of self-defense.

3Although Appellant apparently shot Moore after he had taken Moore’s wallet and was attempting

to flee, we note that “the crime of robbery is not completed the moment the stolen property is in the

possession of the robbers , but may be deem ed to continue during their attempt to escape.” Burgin v.

State, 217 Te nn. 682, 6 87–88 , 400 S.W .2d 539, 5 41 (196 6); W hite v. State, 533 S.W.2d 735, 738 (Tenn.

Crim . App. 197 5); State v. Larry Donald Smith & Jeffrey Sanford , No. 01C01-9201-CC-00021, 1992 WL

217751, at *2 (Tenn. Crim . App., Nashville, Nov. 30, 1992).

4Appellant contends that under State v. Holman, 611 S.W.2d 411 (Tenn. 1981), evidence that he

shot M oore wa s inadm issible bec ause h e was a cquitted o f the attem pted first de gree m urder of Moore . It

is true that the Tennessee Supreme Court stated in Holman that in a trial on the issue of guilt, “evidence

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commission of the offense that demonstrates that he was a leader in any way.

In fact, the trial court did not identify any basis for applying this factor and the

State’s only argument for why this factor applied was that Appellant was the

participant who had most recently worked at the restaurant. We cannot agree

that the mere fact that Appellant had worked at this restaurant, without more,

established that he was a leader in the commission of the offense.

Appellant also challenges the application of enhancement factor (6) to his

sentence for the aggravated robbery of Moore. We agree that the trial court

erred when it applied factor (6) to this sentence. Although there is evidence in

the record that Appellant shot Moore in the leg, the record does not reflect the

seriousness of the wound. While it certainly may be true that Moore sustained

serious bodily injury when he was shot in the leg, there is no proof in the record

that this was the case. Thus, the trial court erred when it applied factor (6).

However, because the record does reflect that Appellant shot Moore while fleeing

from the scene,2

 we conclude in our de novo review that the trial court should

have applied enhancement factor (12) because Appellant willfully inflicted bodily

injury upon Moore during the commission of a felony.3 See Tenn. Code Ann. §

40-35-114(12) (1997). 4
that the defendant committed an alleged crime other than that for which he is on trial should not be

admitted when he h as been acquitted of such alleged other crim e.” Id. at 413. However, in State v.

Desirey, 909 S.W.2d 20 (Tenn. Crim. App. 1995), this Court noted that the concerns in a jury trial about

the introduction of other crimes evidence do not apply equally to a sentencing hearing conducted by a trial

court pursuant to the 1989 Sentencing Reform Act and suggested that even evidence of an offense for

which a d efenda nt was a cquitted m ight be co nsidere d in the se ntencing contex t. Id. at 31–32. In addition,

Appellant’s argument ignores the fact that Appellant himself introduced evidence during the sentencing

hearing that he ha d shot M oore in the leg. 

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Appellant also challenges the application of enhancement factor (7) to his

sentence for the aggravated robbery at the restaurant. We agree. The State has

the burden of demonstrating that the crime was committed to gratify a

defendant’s desire for pleasure or excitement. State v. Adams, 864 S.W.2d 31,

35 (Tenn. 1993). In this case, the State failed to introduce any evidence that the

robbery itself was committed for the purpose of gratifying Appellant’s desire for

pleasure or excitement. There is evidence in the record that Appellant and/or his

companions forced some of the restaurant em ployees to remove their clothing.

However, while this act may well have been motivated by a desire for sexual

pleasure, this does not mean that the robbery itself was committed for that

purpose. In short, the State failed to introduce any evidence that the robbery was

committed to gratify Appellant’s desire for sexual pleasure, rather than for some

other purpose such as obtaining money. The State has simply not met its burden

of showing that factor (7) applied.

Appellant further contends that the trial court erred when it applied

enhancement factor (10) to all three of his sentences. Specifically, Appellant

contends that this was error because a high risk to human life is inherent in the

crime of aggravated robbery. This Court has previously stated that absent any

proof establishing risk to life other than the victim ’s, enhancement factor (10) is

inapplicable to sentences for aggravated robbery because a high risk to human

life is an element of the offense. State v. Hicks, 868 S.W.2d 729, 732 (Tenn.
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Crim. App. 1993). Although there is no evidence in the record that Appellant

caused a risk to the life of anyone other than the victims during the aggravated

robbery at the restaurant or the aggravated robbery of Covington, the State

contends that this factor was applicable to the sentence for the aggravated

robbery of Moore because Appellant was firing his gun in the direction of a child

care center when he shot Moore. However, the only part of the record which

indicates that Appellant fired towards a child care center is the transcript of the

two prosecutors’ argum ents at the sentencing hearing. It is a well known

principle of law that “statements made by counsel during a hearing or a trial are

not evidence.” State v. Dykes, 803 S.W.2d 250, 254 (Tenn. Crim. App. 1990).

In addition, no stipulation to this fact is apparent on the face of the record. Thus,

the trial court erred when it applied factor (10).

Finally, Appellant contends that the trial court failed to give proper weight

to the mitigating factors in this case. The record indicates that the trial court

recognized the following mitigating evidence: Appellant has an I.Q. of between

64 and 68, Appellant was raped as a child, Appellant suffered emotional

problems after the death of his six-year-old brother, Appellant came from a

broken home, Appellant has speech and hearing difficulties, and Appellant had

some minor potential for rehabilitation. However, the trial court found that the

enhancement factors completely outweighed the mitigating factors for the

sentences for the aggravated robbery at the restaurant and the aggravated

robbery of Moore and thus, maximum sentences were appropriate. We conclude

that the trial court properly considered the above evidence under mitigating factor

(13). See Tenn. Code Ann. § 40-35-113(13) (1997). Further, we agree with the

trial court that, under the circumstances of this case, this mitigating evidence is
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entitled to little weight, when balanced against the enhancement factors in this

case. As this Court has previously stated, “[e]ven if some evidence of mitigation

exists, the applicable enhancement factors [may] so strongly outweigh the

mitigating factors so that the maximum sentence is warranted.” State v. Ruane,

912 S.W .2d 766, 785 (Tenn. Crim. App. 1995). 

In short, we hold that because the four applicable enhancement factors

completely outweigh the mitigating factors, a sentence of twelve years for the

aggravated robbery at the restaurant is appropriate in this case. In addition, we

hold that because the four applicable enhancement factors completely outweigh

the mitigating factors, a sentence of twelve years for the aggravated robbery of

Moore is also appropriate in this case. Further, we hold that because the three

applicable enhancement factors only partially outweigh the mitigating factors, a

sentence of ten years for the aggravated robbery of Covington is appropriate in

this case. 

III. CONSECUTIVE SENTENCING

Appellant contends that the trial court erred when it ordered his sentence

for the aggravated robbery at the restaurant to run consecutively to the sentence

for the aggravated robbery of Moore. We disagree.

Consecutive sentencing is governed by Tennessee Code Annotated

section 40-35-115. The trial court has the discretion to order consecutive

sentencing if it finds that one or more of the required statutory criteria exist. State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995). Further, the court is
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required to determine whether the consecutive sentences (1) are reasonably

related to the severity of the offenses committed; (2) serve to protect the public

from further criminal conduct by the offender; and (3) are congruent with general

principles of sentencing. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

In imposing consecutive sentences, the trial court found that Appellant was

an offender whose record of criminal activity was extensive and was a dangerous

offender whose behavior indicates little or no regard for human life and who has

no hesitation in committing a crime in which the risk to human life is high. See

Tenn. Code Ann. § 40-35-115(2), (4) (1997). We agree with the trial court that

Appellant is an offender who has an extensive criminal record. Indeed, Appellant

has an adult criminal record consisting of one conviction for cocaine possession,

one conviction for theft of property worth between $1,000 and $10,000, two

convictions for theft of property worth up to $500, and two convictions for criminal

trespass. In addition, Appellant’s record also consists of juvenile adjudications

for aggravated burglary, theft of property worth up to $500, assault, and three

adjudications for delinquent acts that are not defined. We also agree with the trial

court that Appellant is a dangerous offender whose behavior indicates little or no

regard for human life and who has no hesitation in committing a crime in which

the risk to human life is high. Indeed, within a five month period, Appellant

committed three aggravated robberies by use of a deadly weapon and he fired

at least two shots at a victim, one of which hit the victim in the leg.

In this case, the trial court made no express finding that the Wilkerson test

was satisfied. However, we conclude that it is. First, consecutive sentences are

reasonably related to the severity of Appellant’s offenses. Indeed, Appellant was
5Appellant contends that the trial court erred when it ordered the sentence for the aggravated

robbery at the restaurant to run consecutively to the sentence for the aggravated robbery of Mo ore

because the aggravated robbery at the restaurant occurred first in time. As authority for this proposition,

Appellant cites Tennessee Code Annotated section 40-20-111(a) and State v. Arn old, 824 S.W.2d 176

(Tenn. Crim. App. 1991). However, these authorities merely stand for the proposition that a sentence may

not be or dered to run con secutive ly to a senten ce that w ill be impos ed in the fu ture. See Tenn. Code Ann.

§ 40-20 -111(a) (1997); Arno ld, 824 S.W.2d at 178. In addition, this Court has previously held that when a

court imposes c onsecutive sentences, it is irrelevant whether the conviction for the first offense occurs

before the conv iction for the secon d offens e and it is im mate rial whethe r senten ce one is conse cutive to

senten ce two, o r vice vers a, beca use the senten ces are conse cutive in eithe r case. State v. Blanton, 926

S.W .2d 953, 961 (Tenn. Crim . App. 1996).

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convicted of three serious felony offenses that put the lives of several victims at

risk. Second, consecutive sentences are required in this case in order to protect

the public from further criminal conduct by Appellant. The record indicates that

Appellant’s criminal conduct has become more and more serious over time.

Further, the fact that Appellant continued to engage in criminal activity from age

twelve until he was arrested at age twenty for the offenses in this case indicates

that he poses a continuing threat to the public. Finally, consecutive sentencing

in this case is congruent with general principles of sentencing.5 This issue has

no merit.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

DAVID G. HAYES, JUDGE

___________________________________

JAMES CURWOOD WITT, JR. JUDGE