# FILED May 14, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER 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 ) Appe llant. ) (Dire ct Ap pea l - Agg ravat ed R obb ery)

FOR THE APPELLANT : FOR THE APPELLEE : ARDENA J. GARTH JOHN KNOX WALKUP Distri ct Public

Defender Attorney Generaland Reporter DONNA ROBINSON MILLER ELLEN H. POLLACK Assistant Distri ct Public Defender Assistant Attorney General Suite 30 0-701 C herry St. 425 Fifth Avenu e North Chattanooga, TN 37402 Nashvill e, TN 37243 BILL COX Distri ct Attor ney General C. CALDWELL HUCKABAY Assistant Distri ct Attor ney 300 Market Street Chattanooga, TN 37402
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On January 14, 1997, Appella nt Eri c D. McElmorepled gui lty t o two counts of aggra vated robbe ry. On A pril 3, 1997, Appell ant pled guilty to another count of aggravated robbery and a number of counts involv ing other charges. After a sentenc ing hearing on May 29, 1997, the tri al court sentenced Appellant as a Range I standard offender to a term of ten years for the first agg ravated robbe ry and twelve years for the seco nd aggrava ted robbery, with the s entences to r un concurren tly. The trialcourt als o imposed a sentence of twelve years for the third agg r avated robbery , wit h thissentence to run consecuti vely t o the ot her two sentences. Appellant c hallenges al l threeof his aggravated robbery sentences, raising the fol lowing issues: 1) whether t he trialcourt imposed excessive sentences; and 2) whether t he trialcourt err ed when it i mposed consecutive se ntencing. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FA CTS
On January 21, 1996, Appellant and at least t wo otherarme d individ uals entered a Hooters Restaurant and took approximately $10,000 in cash from the business. One or m ore of the arm ed robbers then ordered some H ooters emplo yees into a closet an d forced them to remov e their cloth es.

On June 20, 1996, Appel lant enter ed the offi ces of Dixie Stamp and Machine and pointed a gun at Rodney Moore and Roy Covi ngton. Appell ant then-3-

robbed Moore and Covington of their wall ets a nd fled through an alley. Moore then retri eved a gun and gave chase. Appel lant then shot Moore in t he thigh and Moore returned fire and sh ot Appe llant in the left ha nd, left leg, an d left foot.

II.LENGTH OF SENTENCES
Appellant

conte nds th at the tria l court e rrone ously s enten ced h im to a longer term than he deserves for each of hi s three convi ctions. We disagree.

“When reviewing sentencing i ssues . . . inc luding t he granting or denial of probation and the lengt h of sentence, the appellate cou rt shall conduct a d e novo review on the record of such issues . Such revi ew shall be conduc ted w ith a presumption that the determ inations mad e by the court from which the ap peal is taken are correct .” Tenn. Code Ann. § 40-35-4 01(d) (1997). “However, t he p resu mption of corre ctnes s whic h acc omp anies the trial c ourt’s a ction is conditi oned upon the affirmative show ing in the record tha t the trial court considered the sentenci ng principl es and all relevant fa cts and c ircums tances .” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conduct ing our review, we must consider all the evide nce, the pre sente nce report, the sentenci ng principles, the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s statements, the nature and character of the offense, and t he defendant’ s potenti al forrehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210( b) (1997 & Supp. 1998); Ashby , 823 S.W.2d a t 169. “The defendant has the bur den of demon strating that the sente nce is improp er.” Id.1 The judgment forms state tha t the sentences are twelve years for the aggravat

ed robbery at

the restaurant , twelv

e years for

the aggravat

ed robbery of

Covington, and ten year s for the aggr

avated 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 t ranscript of the senten cing heari ng indicat es that t he trial court actual ly i mposed a twelve year sentence for the aggravated r obbery of Moore anda ten year sentence for the aggravated r obbery of Covi ngton and orderedthe sentence f or the aggrav

ated robbery

at the restaur

ant to run co nsecutivel y to t he sentence for the aggravated r obbery 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. Cri m. 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 y ear sentence for

the aggravat

ed robbery of

Moore and a ten y

ear sentence for

the aggravat

ed robb ery of Cov ingto n, with the s ente nce for th e agg rava ted ro bbe ry at the resta uran t to run cons ecu tively to the sentence for the aggr avated robbery

of Moore. -4- In this case , Appella nt was co nvicted of th ree cou nts of aggra vated
r obbe ry, 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 i s between eight and twelve years. Tenn. Code Ann. § 40-35-11 2(a)(2) (19 97). W hen bo th enhancement and mitigating factors a re app licable to a se ntenc e, the c ourt is directed to begin wi th the mini mum sentence, enhance the sentence within t he range as app ropriate for theenhancement factors, and then reduce the sentence within the range as appropriate for the mit igating factors. Tenn. Code Ann. § 40- 35-210(e) (19 97).

After the sente ncing he aring, the tria l court imp osed a tw elve year senten ce for the a ggravate d robbe ry that occu rred at the restaura nt, a ten year sentence for theaggravated r obbery of Covi ngton, and a twelve year sentence forthe aggravated robb ery o f Mo ore. 1 In determining the l ength of these sentences, the trial cour t found tha t the following enhan ceme nt factors a pplied t o all three se ntence s: (1) that A ppellant h ad a pre vious histo ry of crimina l convicti ons or criminalbehavior i n additi on to those necess ary to establish t he approp riate sentencing r ange; (8) t hat Appellant had a previous history of unwillingnessto comply with the conditi ons of a sentence involvi ng release into the comm unity; (10) tha t Appella nt had n o hesitatio n abou t c omm ittin g a c ri me-5-

in which the ri sk to human lif e was high; and (20) that Appellant

had been adjudicated of a de linque nt act a s a juve nile tha t would have b een a felony if
co mmitted by an adu lt. See Tenn. Code Ann. § 40-35-114( 1), (8), (10), & (20) (1997). The trialcourt als o found that the foll owing enhancement factors appli ed only to the sentence for the aggravated r ob ber y at the r

estaurant: (2) that Appellant

was the leader i n an offense i nvolvi ng two or more criminal actors; (3) thattheoffenseinv

olved mo re t han o ne v ict im; and (7) that the offens e involved
a victim a nd wa s com mitted to gratify Appe llant’s desire for pleasure or excitem ent. See Tenn. C ode Ann . § 40-35-114 (2), (3 ), & (7) (1997). The trial court also fo und th at the fo llowing enha ncem ent fac tor app lied on ly to the sentence for the aggr avated robber

y of Moore: (6) that the per sonal inj uries infli cted on th e victi m were particularly g reat. See Tenn. Code Ann. § 40-35- 114(6) (1997). The t rial cour t also found that mit igating factor ( 13) applied to all three sentences because A ppellant is mildly retarded and has experienced emotional problems, he had cooper ated with t he police, he was s exually abused
as a child, and he had nu merou s family pro blems
. See Tenn. Code Ann. § 40- 35-113( 1 3) (1997). Finally, the trial court foun d that the enha nceme nt factors outweig hed all of th e mitigatin g factors.
Appellant

does n ot challen ge th e applicat ion of enha ncement factor (1) and
we conclude that

it was prop erly applied to all three sentences. Appellant has a previousadult c rimina l r ec ord consist ing of one conv iction for cocai ne possession, one convict ion for t heft of pr operty wort h between $1,000 and $10,000, two convict ions for t heft of pr operty wort h up t o $500, and two convicti ons for crimin al t respas s. W e conc lude that th is factor is en titled to significant w eight.-6- Appellant

likewise does n ot chal lenge the appl icatio n of enhancement fac tor(8) and we conclude that it was properly applied to all three sentences. Appellant

had received pr

obation in a previ ous case and that pr obation was revoked after he viola ted the term s of prob ation.
Similarly, App ellant d oes not chall enge the appli cation of enhancement factor (20) and we conc lud e that thi s factor was properly

applied to all t hree sentences. The record indi cates that Appellant has

a juvenil e adj udic ation for aggravated burglary. This would ha ve been a felony if com mitted by an adu lt. See Tenn. Code Ann. § 39-14-403( b) (1997) (“Aggravated burglary is a Class C felony.”).

In additio n, Appellant

does not chall enge the appli cation of enhancement factor (3) to t he sentence for the aggravated ro bbery at the restaurant

and we conclude that thi s factor was properly

applied to t his sentence . The record indicate s thatwhen Appellant a nd the other armed individua ls entered the restaura nt, some or all of them forced sever

al emplo yees into a closet and t hen forced th em to re move their clothe s.
Appellant

does challenge t he application of enha ncem ent factor (2 ) to his sentence for the aggravate d robbery at the re staura nt. S p ecifically, Appellant contends that there w as no e vidence that he w as a lead er in the offe nse. W e agree with Appellant t hat the trial court erred when it

applied enhancement factor (2). Althoug h the record indi cates t hat at l east two other individuals par

ticipated with Ap pellan t in the commission of this crime, the record does not contain any evidence about Appellan t’s act ions in t he preparati on for or dur ing the2 Appellant maintains t hat he shot Moore i n self-defense and he clai ms 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 t he record indicates that Appellant was acquitted of the att empted first d egree murder of Moore, there is nothing in the record that indicates that the jury acquitt ed Appellant because it believed his theory of self-defense.

3 Although Appel lant appar ently shot Moore after

he had taken Moore’s wal let and was at tempting to flee,we note that

“the cri me of robbery i s not completed t he moment the stolen proper ty i s 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).

4 Appellant contends that under State v. Holman , 611 S.W.2d 411 (Tenn. 1981),evidence th at 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 st ated in Holman that i n a trial on the issue of

guilt , “evi dence -7- com mis sion of the offense tha t demons trates that he was a leader in any w ay . In fact, t he trial court did not i dentify any basis for applyi ng this factor and the State ’s only argu ment fo r why this fa ctor ap plie d was that Appell ant was the partici pant who had most recentl y worked at t he restaurant . We cannot agree that the me re fact that A ppellant h ad work ed at this re stauran t, without more , establi shed that he was a l eader in the commission of the offense.
Appellant

also challenges t he applicat ion of enhancement f actor (6) to his sente nc e for the aggravate d robbery of M oore. W e agree that the trial court erred when it appl ied factor (6) to this sentence. Althoug h there is e videnc e in the record that

Appellant s hot Moore in t h e leg, therecord does not reflect the seriousness of the wound. While it certainly may be t rue that Moore sustained serious bodily i njury when he was shot in t he leg, there is no proo f in the record thatthis was t he case. Thus, t he trialcourt err ed when it appl ied fact or (6). Howeve r, because the recor d does reflect

that Appell ant shotMoore while f leeing from the scene, 2 we conclud e in our de no vo review that the trial court shoul d have applied enhancement f actor (12) beca use A ppella nt willfully in flicted b odily injury upon Moore during t he commission of a felony. 3 See Tenn . Code Ann. § 40-35-114 (12) (1997). 4that the defendant committed an al leged cri me 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 concern s in a jur y tri al about the int roduction o

f other cri mes evidence do not apply equall y to a sent

encing heari ng conducted by a trial court pursuant

to the 1989 Sent

encing Reform Act and suggested that even e vidence of an of

fense 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. I n additi on, Appellant’s argument igno res the fact that Appel lant hi mself introduced evidence during the sent encing hearing that he ha d shot M oore in the leg. -8- Appellant

also challenges t he applicat ion ofenha ncem ent fac tor (7) to his sentence forthe agg ravated ro bbery at th e restau rant. W e agree . The S tate has the bu rden of demon strating that the crime was com mitted to gratify a defen dant’s desire for p leasure or excitem ent. State v . Ad ams , 864 S.W.2d 31, 35 (Tenn. 1993). In this case, the State fail ed to introduce any evidencethat the robbery itself was c omm itted for th e purp ose o f gratifyin g App ellant’s desire for pleasure or excitement. There is ev idence in t he record that Appe llant an d/or his companions forced some of the resta urant em ployees to remove their clothi ng. Howeve r, while thi s act may well have been motivated by a desire for sexual pleasure , this d oes not mean that t he robbery i tself was committed for

that purpose. In short, the State failed to introduce an y evidence that the robbery was committed to gratify A ppella nt’s des ire fo r sexua l pl easu re, rat her tha n fo r so me otherpurpose such as obtaini ng money. The State has si mply notmet its bur den of showing t hat factor (7) appli ed.
Appellant

furt her cont ends that the tr ial co urt er red wh en it applied enhance men t factor ( 10) to allthree of hi s sentences. Specifically, Appell ant contends that this was e rror be caus e a hig h risk to hum an life is inherent i n the crime of agg ravate d robb ery. Th is Court has previ ously stated that absent any proof establ ishing risk to life other than the victim ’s, enh ance men t factor (1 0) is inapp licable to sentences f or aggravate d robbery because a high risk to human life is an eleme nt of the offe nse. State v. Hicks , 868 S.W.2d 729, 732 (Tenn
.-9-

Cri m. App. 1993). Al though there i s no evide nce in the record that Appel lant caused a risk to the li fe of anyone ot her than the vi ctims duri ng the aggravated robbe ry at th e restaurant or th e aggravated robber y of Cov ington, t he St at e contends that this factor w as applicabl e to the sentence for the aggravated robbery of Moore because Appellan t was firin g his g un in th e direc tion of a child
care center when he shot Moore. However, the only par t of the r

ec ord wh ic h indicat es that Appell ant fir ed towards a chi ld care center is the transcri pt of the two prose cutors ’ argum ents a t the se ntenc ing he aring. It is a well kno wn princip le of law that “stateme nts made by counse l during a hearing or a trial are not evidence.” State v. Dykes , 803 S.W .2d 250, 254 (Tenn. Crim . App. 1990 ). In addition, n o stipulation to this fact is appar ent on the face of the record. Thus, the trial court erred whe n it applied factor (10).
Finally, Appellant

contends that the t rial cour t fail ed to give pr

oper weight to the mitiga ti ng fa ctors in this case. Th e record indicate s that the trial court recognized the followin g mitigatin g eviden ce: App ellant has an I.Q. of betwe en 64 and 68, Appell ant was raped as a chi ld, Appell ant suffer ed emotional pro ble ms after the death of his s ix-year-o ld brot her , Ap pel lan t ca me fr om a broken home, Appellant has speech and hearing di fficulties, an d Appellant had
some minor potenti al for r eh ab ilit ation. Howeve r, the t rial cour t found that

the enhancement factors completely ou tweigh ed the miti gating fac tors for the sentences for the aggravate d robbery at the restaur ant and the aggra

vated robbery of Moore and thu s, maxim um se ntence s were a ppropria te. W e conclude thatthe trial court properly con sidered the ab ove evidence under mitigati ng factor (13). See Tenn. Code Ann. § 40-35-11 3(13) (1997 ). Further, we agree with t he trial court that, under

the circ umstances ofthis cas e, this m itigating eviden ce is-10-

entitl ed to li ttle wei ght, when bala nced agai nst the enha ncem ent fac tors in th is
case. As this Court

has previousl y stated, “[e]ve n if some evi dence of miti gation exists, the appli cable enhancement fac tors [may]so strongl y outweigh the mitigati ng factors s o that the maxi mum senten ce is warra nted.” State v. Ruane , 912 S.W .2d 766 , 785 (T enn. C rim. App . 1995).

In short, we hol d that because t he four appli cabl e enhance ment factors
com pletely outweigh the mitigati ng factors, a sentence of t welve years

for the aggravated robbery

at the r estaura nt is a ppropri ate in this case. I n addit ion, we hold that be caus e the fo ur app licable enhancement factor s completely

outweigh the mitig ating factors, a sentence of t welve years

for the aggr

avated robber

y of Moo re is also appropri ate in thi s case. Furt her, we hold t hat because the thr ee applic able enhan ceme nt factors o nly partially ou tweigh the mitigating factors, a sentence of ten years for the a ggrav ated ro bbery of Cov ington is app ropria te in this case
.

III . CONSECUTI VE SENTENCI NG
Appellant

contends that

the tri al court er red when it ordered his sentence forthe ag grava ted rob bery a t the res tauran t to run c onse cutively to the sentence for the aggr

avated robber

y of Moore. We disagree.

Consec utive sentencing is g overned by T enne ssee Code Annotated section 40-35-115. The t rial cour t ha s the discretion to order co nsecutive sentencing if it finds that o ne or m ore of the required statutory crite ria exist. State
v. Black , 924 S. W.2 d 912, 9 17 (T enn. C rim. A pp. 19 95). Fu rther, th e cou rt is-11-

required to determine whether the cons ecutive sentences (1) a re reas onab ly related to the severity of the offens es committed; (2) serve to protect t he public from further criminal con duct by the offend er; and (3) are congr uent with gene ral principl es of senten cing. State v. Wilkerson , 905 S.W .2d 933, 939 (Tenn. 199 5).

In imposing consecutive sentences, t he trialcourt found that Appell ant was an offender whose r

ecord ofcriminal activi ty was extensive and was a danger ous offender whose behavio r indicates little or no rega rd for hum an life and who has
no hesitation i n committing a crime in which the ri sk to huma n life is high. See Tenn. Code A nn. § 40-35-1 15(2), (4) (1997). We agree with the t rial cour t that Appellant

is an offend er who h as an e xtensive c riminal rec ord. Indeed, Appell ant has an adult cri minal record consisti ng of one convicti on for cocai ne possession,
one co nviction for th eft of prope rty worth be tween $ 1,000 a nd $10 ,000, tw o convicti ons for theft of prope rty worth up to $500, and two convic tions fo r criminal trespass. In additi on, Appellant’ s record als o consists of juvenil e adjudicat ions foragg ravated burg lary, theft of property worth up to $500, assault, and t hre e adjudicat ions fordelinque nt acts tha t are not de fined. W e also agree wi th the trial court that Appellant i s a dangerous offender whose behavior i ndicateslitt le or no regard for

huma n life and who has no hesitation in committing a cr ime in which the risk to human life i s high. I ndeed, withi n a fiv e month period, Appellant committed three aggravated robberi es by use of a deadly weapon and he fir

ed at least two shots at

a victi m, one of which hi t the vi ctim in t he leg.

In this case , the trialcourt made no express findingthat the Wilkerson test was satisfied. Howeve r, we conclud e that it is. First, consecutive sen tences are reaso nably related to the seve rity of Appe llant’s offens es. Indeed, Appell ant was5 Appellant contends that

the tri al court e rred when it ordered the sent

ence for the aggr

avated robbery at the restaurant to run consecutively to the sentence for the aggravated robbery of Mo ore because the aggravat ed robbery at

the restaur

ant occurred f irst i n time. As author ity for thi s proposition, Appellant

cites Tennessee Code Annotated secti on 40-20-111(a) and State v. Arn old , 824 S.W.2d 176 (Tenn. Crim. App. 1991 ). However, these authori ties merely

stand for t he proposit ion 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. I n additi on, thi s Court has previ ously hel d 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). -12- convicted of three serious felony offenses t hat put the lives of several v ictims at risk. Second, co nsecutive sen tences are require d in this case in order to protect the public f rom further criminal conduct by Appel lant. The r ecord indi cates that Appe llant’s criminal condu ct has beco me m ore and m ore serious ove r time. Further, the fact that

Appellant continued to engage in criminal act ivit y from age twelve until he was arrested at age twenty for the o ffense s in this case i ndicates thathe poses a continui ng threat to the publ ic. Fi nally, consecutive sentencing in this case i s congruentwith generalprincipl es of sentenci ng. 5 This issue has
no me rit.

According ly, the j udgment of t he tr ial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ JAMES CU RWOOD WITT, JR. JUDGE