FILED

June 10, 1998

Cecil W. Crowson

Appellate Court Clerk

 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9708-CR-00349

)

Appellee, )

) DAVIDSON COUNTY

V. ) 

)

) HON. J. RANDALL WYATT, JUDGE

JACK KEVIN SUTTON, ) 

)

Appellant. ) (AGGRAVATED BURGLARY) 

FOR THE APPELLANT: FOR THE APPELLEE:

KARL DEAN JOHN KNOX WALKUP 

District Public Defender Attorney General & Reporter

JEFFREY A. DeVASHER LISA A. NAYLOR 

Assistant Public Defender Assistant Attorney General

(On Appeal) 2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

DAVID BAKER Nashville, TN 37243

Senior Assistant Public Defender

1202 Stahlman Building VICTOR S. JOHNSON, III

Nashville, TN 37201 District Attorney General

(At Trial)

KATRIN MILLER

Assistant District Attorney General

Washington Square, Suite 500

222 Second Avenue North 

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Jack Kevin Sutton, appeals as of right the sentences imposed

by the Davidson County Criminal Court. Defendant pled guilty to two counts of

simple robbery, one count of aggravated burglary, one count of assault, and one

count of theft of property. The trial court sentenced Defendant as a Range I

Standard Offender to three consecutive five-year sentences for the robbery and

burglary convictions, and two eleven month and 29-day sentences for the assault

and theft convictions. The latter two sentences were ordered to run concurrently to

the others. In this appeal, Defendant argues that the sentences imposed were

excessive and that consecutive sentences were not proper. Although we disagree

with the trial court’s application of two enhancement factors, we affirm the judgment

of the trial court.

 At the sentencing hearing, sixty-two-year-old Leland Stalcup testified that

on March 1, 1996, he was coming out of a tobacco shop on Gallatin Road with a

carton of cigarettes in his hand, when Defendant approached and asked him if he

would like to purchase more cigarettes at $5.00 a carton. Mr. Stalcup agreed and

then allowed Defendant into his car. Defendant told Stalcup to give him the money

for the cigarettes and that he would purchase them for Stalcup at a grocery store

where his father allegedly worked. Mr. Stalcup gave Defendant $35 with which to

purchase the cigarettes. However Defendant began “mumbling and looking down

at the place and back up again” so Mr. Stalcup asked Defendant for his money back

and told him “we’ll just forget the whole thing here.” According to Mr. Stalcup,

Defendant then grabbed the money from him. Stalcup attempted to catch Defendant

at which point they began to scuffle. Defendant pushed Stalcup to the ground on the
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gravel and Mr. Stalcup skinned his knee. Defendant pled guilty to assault and theft

pertaining to Mr. Stalcup (Counts Four and Five). 

Mrs. Clara Sutton, of no relation to Defendant, testified that on March 1, 1996,

Defendant began hollering outside her house at 1802 Meridian Street, to let him

come in. Mrs. Sutton, who is 80-years-old, had just had open heart surgery two

weeks before this incident. Mrs. Sutton testified that she recognized Defendant’s

voice as being the nephew of one of her neighbors. She told Defendant that she

does not allow anyone into her home because she lives by herself. Defendant told

her that a man was bleeding to death in the street and he needed to use her

telephone to call for help. Mrs. Sutton told him to go use his aunt’s telephone, but

he told her that his aunt was not at home. Sutton then told him to use another

neighbor’s phone because she was sure that that person was at home. Defendant

told Mrs. Sutton that her neighbors were in fact not at home. Believing her storm

door to be latched, she then went to open the glass door to talk further with

Defendant. When she began to open the glass door, Defendant pushed his way

inside. She testified that he came in “wild as a deer.” 

At this point he told her he needed a glass of water. She told him to get it

himself because she had just had surgery and was not able to freely move about.

Mrs. Sutton testified that he then began talking about one of her daughters who had

some emotional problems. He then informed her that he needed money to which

she replied that all of her money was in the bank. He told her that all of her

neighbors had told him that she kept money in her dresser drawers. She then

offered to write him a check if he would just leave her home. He refused and began

going through all her things in search of money. She then threatened to call the
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police to which he said, “[Y]ou’d better not call the police, I’ll stomp you.” Mrs. Sutton

then began moving toward the front door and started screaming. At this point,

Defendant grabbed Mrs. Sutton and threw her to the floor. She again told Defendant

to leave or she would call the police. Defendant said “when you call the police, I’m

going to stomp you and kill you.” 

Defendant continued to search the house for money and he eventually found

a box that contained jewelry belonging to Mrs. Sutton’s deceased husband. He took

the box and ran out of the house. A few moments later, Mrs. Sutton’s daughter and

granddaughter arrived and they notified the police. Mrs. Sutton testified that she was

still being treated by a physician at the time of the sentencing hearing for a knee

injury she suffered when Defendant threw her to the floor on the day of the burglary.

Defendant pled guilty to aggravated burglary and robbery pertaining to these acts

on Mrs. Sutton (Counts Two and Three). 

Chester Earl Collins, who is 83-years-old, testified that on March 5, 1996,

Defendant forced his way onto his property by placing his foot inside the property

gate so that it could not be closed. Mr. Collins said that Defendant threw him on his

back and that he landed on a lawnmower. Defendant demanded money from Collins

to which he told Defendant that he did not have any money. Defendant removed a

set of keys and a change purse which contained another key from Collins’ pants.

Defendant further searched through Mr. Collins’ hip pocket and tore his pants in the

process of searching for money. Defendant then left and a neighbor called the

police. Mr. Collins testified that his back continues to hurt him as a result of

Defendant pushing him down on top of the lawnmower. Defendant pled guilty to

robbery of Mr. Collins (Count One).
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Mary Ellen Hea, a licensed clinical social worker for the Public Defender’s

Office, was called by the defense to testify at the sentencing hearing. She said that

she had assessed the Defendant and had concluded that Defendant was born

prematurely and tested at the borderline intellectual functioning range. Ms. Hea

testified that Defendant had been hospitalized for mental illness on five prior

occasions. She also said that Defendant may suffer from visual hallucinations and

that his illness requires medication. On cross-examination she testified that she was

aware of Defendant’s daily crack cocaine addiction. Ms. Hea also said that she did

believe Defendant to be taking his medication when he committed the present

offenses.

The 35-year-old Defendant testified that he is remorseful for his crimes and

that he was not taking his medications at the time he committed the crimes.

Defendant could recall his prior conviction for prostitution, but he could not

remember his prior convictions for fraud, attem pt to commit a felony, or forgery. He

also said that although he had been convicted of DUI, he did not commit that crime.

Defendant testified that he had been using crack cocaine for two to three years. He

denied that he committed the present crimes in an attempt to get money for drugs.

In fact, he said that he asked Ms. Sutton for money to ride the bus and that he asked

Mr. Collins if he could work for him for money. He further said that he did not intend

to commit these crimes.

When an accused challenges the length, range, or the manner of service of

a sentence, this court has a duty to conduct a de novo review of the sentence with

a presumption that the determinations made by the trial court are correct. Tenn.
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Code Ann. § 40-35-401(d). This presumption 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 a de novo review of a sentence, this Court must consider the

evidence adduced at trial and the sentencing hearing, the presentence report, the

principles of sentencing, the arguments of counsel relative to sentencing

alternatives, the nature of the offense, and the defendant’s potential for

rehabilitation. Tenn. Code Ann. § 40-35-210; State v. Parker, 932 S.W.2d 945, 955-

56 (Tenn. Crim App. 1996).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principals set out under the sentencing law, and that

the trial court's findings of fact are adequately supported by the record, then we may

not modify the sentence even if we would have preferred a different result. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record,

we find that the trial court considered the proper sentencing principles and stated its

reasons and findings on the record. Therefore, review by this court is de novo with

a presumption of correctness.

I. LENGTH OF SENTENCES

The Defendant argues that the trial court erred by imposing the sentences of

five (5) years on each of his two robbery convictions (Counts One and Three), and
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on his aggravated burglary conviction (Count Two). Defendant does not challenge

the sentences for the misdemeanor convictions for assault and theft (Counts Four

and Five). The trial court found that four (4) enhancement factors were applicable

to the three felony convictions:

(A) The Defendant has a previous history of criminal convictions or

criminal behavior in addition to those necessary to establish the

appropriate range. Tenn. Code Ann. § 40-35-114(1).

(B) A victim of the offense was particularly vulnerable because of age

or physical or mental disability. Tenn. Code Ann. § 40-35-114(4).

(C) The Defendant treated or allowed the victims to be treated with

exceptional cruelty. Tenn. Code Ann. § 40-35-114(5).

(D) The Defendant had no hesitation about committing a crime when

the risk to human life was high. Tenn. Code Ann. § 40-35-114(10).

(E) The crimes were committed under circumstances in which the

potential for bodily injury to a victim was great. Tenn. Code Ann. § 40-

35-114(16).

The trial court found as mitigating factors the Defendant’s history of mental

problems, and the fact that Defendant was raised in a dysfunctional family. Tenn.

Code Ann. §§ 40-35-113(8) and (13). 

First, the trial court concluded that Defendant had a prior criminal history.

Tenn. Code Ann. § 40-35-114(1). Defendant does not contest the application of this

factor, but we will nevertheless review its significance. Although Defendant was

unable to recall several of his convictions, the presentence report indicates that

Defendant had six prior misdemeanor convictions, including solicitation of an

undercover officer for prostitution, fraud, DUI, attem pt to commit the felony of

larceny, attempt to comm it the felony of forgery, and making false reports. In

addition, Defendant admitted using crack cocaine for the past two to three years.
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Based on these facts, the application of this enhancement factor is justified in

enhancing all three felony convictions (Counts One, Two and Three).

Defendant does challenge the trial court’s finding that one of the victims, Mr.

Chester Collins, was particularly vulnerable because of his age and physical

limitations. Tenn. Code Ann. § 40-35-114(4). Defendant only challenges this factor

as applied to Chester Collins (Count One). Upon careful review of the record, we

find that this enhancement factor does not apply as to Mr. Collins. 

Our supreme court recently addressed the applicability of this factor in State

v. Poole, 945 S.W.2d 93, 96-98 (Tenn. 1997). In Poole, the supreme court stated

that the trial court must consider all of the facts and circumstances of the offense in

determining whether this factor is appropriate for the offense. The application of this

factor is a factual issue resolved on a case-by-case basis. Id. at 96 (citation

omitted). The State bears the burden of proving the victim’s limitations which made

the victim particularly vulnerable. Id. In determining whether the State has m et its

burden, the trial court should consider whether evidence pertaining to the victim ’s

age or physical and mental attributes demonstrated an inability to resist the crime,

summon help, or testify at a later date. Id. There must be evidence in the record in

addition to the victim’s age. Id. at 97. The court must also determ ine if the factor is

appropriate for the offense by considering the nature of the offense and the manner

in which it was committed. Id. 

There is no question that an 80-year-old man might be particularly vulnerable

to the type of offense committed by Defendant. However, “[a] person’s age alone

may have little or no bearing on size, strength or vitality.” Id. at 98. Since the State
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produced no evidence of physical or mental limitations at the time of the offense, it

cannot be presumed that the victim was particularly vulnerable based solely on his

age. Therefore, there is not sufficient evidence to support the application of this

factor to Defendant’s conviction for robbery of Mr. Collins (Count One). This factor

does however, apply to the two convictions pertaining to Mrs. Sutton (Counts Two

and Three), since her delicate physical condition made her particularly vulnerable.

The trial court also found that Defendant treated or allowed the victims to be

treated with exceptional cruelty. Tenn. Code Ann. § 40-35-114(5). The State

correctly agrees with Defendant that the circumstances in this case do not support

the finding of this enhancement factor as to any of the felony convictions.

Defendant next contends that the trial court erred in finding that he had no

hesitation about committing a crime when the risk to human life was high in regards

to his convictions for robbery of Mr. Collins and Mrs. Sutton (Counts One and

Three). See Tenn. Code Ann. § 40-35-114(10). Our supreme court recently

addressed this enhancement factor, as applied to the crime of robbery, in State v.

Mario A. Lavender and Eric L. Hobbs, No. 01-S01-9704-CR-00088, Davidson

County (Tenn., Nashville, Apr. 27, 1998) (for publication). In that opinion, the

supreme court stated that enhancement factor (10) is not an essential element of the

offense of robbery, and that it may be used “when imposing a sentence for robbery

so long as the facts which establish the elements of the offense are not also relied

upon to establish the enhancement factors. This determination is dependent upon

the particular facts of each case.” Id. at 14. The court also pointed out that “[i]n

determining whether a particular enhancement factor may be applied in a specific
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case, the trial court must consider the elements of the offense and the evidence

adduced at the trial and sentencing hearing.” Id. at 9.

Robbery is defined as “the intentional or knowing theft of property from the

person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-

13-401(a). A person commits “theft of property” if, “with intent to deprive the owner

of property, the person knowingly obtains or exercises control over the property

without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103 . 

In this case, the proof shows that Defendant forced his way onto Mr. Collins

property, pushed Mr. Collins to the ground, and having placed the victim in fear,

Defendant then searched through his pockets for money. Defendant took control of

the victim’s property and left the premises with it, without Mr. Collins effective

consent. These facts support the elements of the offense of robbery. 

However, in this particular case, the State offered no additional proof as to

how the risk to Mr. Collins life was particularly high, other than his age. While we

find this crime to be utterly despicable, we cannot say that the evidence shows that

the risk to Mr. Collins’ life was high. The trial court erred in applying this

enhancement factor as to Mr. Collins (Count One).

The Defendant forced his way into Mrs. Sutton’s home, pushed her to the

ground, and while she was placed in fear, Defendant searched her house for

anything that might be of value. Defendant then took control of the property (her

deceased husband’s belongings) and left the premises with them, without Mrs.

Sutton’s effective consent. Again, the elements of robbery are met. However, in

regards to Mrs. Sutton, we find that the evidence supports the trial court’s application
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of enhancement factor (10), “[t]he defendant had no hesitation about committing a

crime when the risk to human life was high.” Tenn. Code Ann. § 40-35-114(10).

Mrs. Sutton was recovering from open heart surgery and the chance that she could

have died from Defendant’s actions was certainly high. The trial court correctly

applied this factor as to Mrs. Sutton (Count Three). Defendant does not contest the

application of enhancement factor (10) to the aggravated burglary conviction (Count

Two), but we note for the record that we agree with the trial court’s application of that

factor to the aggravated burglary conviction.

Next, the trial court applied enhancement factor (16), “[t]he crime was

committed under circumstances under which the potential for bodily injury to a victim

was great” to all three felony convictions. See § 40-35-114(16). Defendant

contends that this enhancement factor was improperly applied to his three felony

convictions because it is an essential element of the offenses. As to the robbery

convictions, (Counts One and Three), the supreme court held in State v. Lavender

and Hobbs that enhancement factor (16) is also not an essential element of the

offense of robbery. No. 01-S01-9704-CR-00088, slip op. at 9. Again, we must

determine its applicability on a case-by-case basis. Id. In regards to this factor, this

Court finds that the trial court properly applied this factor as to the two robbery

convictions. As discussed above, all of the elements of robbery were clearly met.

Furthermore, the proof at the sentencing hearing revealed that Mr. Collins was eighty

years old and Mrs. Sutton was eighty-three years old. Defendant pushed both

victims to the ground in an attempt to rob them, so certainly it can be said that the

risk of bodily injury to both of these elderly victims was great. 
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As to the aggravated burglary conviction, this Court has held that

enhancement factor (16) should not be applied to an aggravated burglary conviction

absent extraordinary circumstances. State v. Smith, 891 S.W.2d 922, 930 (Tenn.

Crim. App., Nashville, July 21, 1994), perm. to appeal denied (Tenn. 1994).

However, the circumstances surrounding the aggravated burglary of Mrs. Sutton’s

home does support the application of this enhancement factor. Mrs. Sutton was an

eighty-three year old woman recuperating in her home from open heart surgery.

Defendant forced his way into her home, threw Mrs. Sutton to the ground, ransacked

her home in search of money or anything else of value, and threatened to kill her if

she tried to call for help. The circumstances surrounding this horrifying event

certainly support the application of this enhancement factor to the aggravated

burglary conviction. This Court finds that the trial court properly applied

enhancement factor (16) to all three felony convictions (Counts One, Two and

Three). 

In summary, the trial court properly applied enhancement factor (1) and (16)

to all three felony convictions (Counts One, Two and Three). We find that

enhancement factor (4) and (10) should only be applied to the two offenses against

Mrs. Sutton (Counts Two and Three). We further find that enhancement factor (5)

does not apply to any of the felony convictions. We agree with the trial court’s

application of the mitigating factors that Defendant has a history of mental problems

and that Defendant comes from a dysfunctional background to all three felony

convictions. See Tenn. Code Ann. § 40-35-113(8) and (13).

The trial court sentenced Defendant as a Range I Standard Offender for the

three Class C felonies. Tenn. Code Ann. §§ 39-13-401(b); 39-14-403(b). The
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sentencing range for a Range I Standard Offender convicted of a Class C felony is

not less than three years nor more than six years. Tenn. Code Ann. § 40-35-

112(a)(3). The presumptive sentence for a Class C felony shall be the minimum

sentence in the range if there are no enhancement or mitigating factors. Tenn. Code

Ann. § 40-35-210(c). Should there be enhancement and mitigating factors, the court

must start at the minimum sentence in the range, 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). The trial court in the case sub judice, imposed three five-year sentences for

the Class C felony convictions. As to Count One, we find that two enhancement

factors and two mitigating factors apply. As to Count Two, we find that four

enhancement factors and two mitigating factors apply. As to Count Three, we find

that four enhancem ent factors and two mitigating factors apply. The mitigating

factors in this case do not weigh heavily against the enhancement factors. The great

weight attributable to the applicable enhancement factors more than justifies the fiveyear sentences imposed as to all three felony convictions.

II. Consecutive Sentences

The trial court ordered consecutive sentencing after making a finding that

Defendant is a dangerous offender whose behavior indicated little or no regard for

human life, and no hesitation about committing a crime in which the risk to human

life is high. Tenn. Code Ann. § 40-35-115(b)(4). We agree. The Defendant, without

provocation, pushed two elderly people to the ground in an attempt to rob them.

Certainly it can be said that Defendant’s behavior demonstrated a contemptible lack
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of concern for human life and an absence of basic human decency. Our de novo

review further indicates that consecutive sentencing is necessary to protect the

public from further criminal conduct by Defendant and that the terms imposed are

reasonably related to the severity of the offenses. State v. Wilkerson, 905 S.W.2d

933, 938-39 (Tenn. 1995). Although the trial court did not specifically make the

additional findings required by Wilkerson, we find that these factors are present in

our de novo review. See State v. Adams, 859 S.W.2d 359, 363 (Tenn. Crim. App.

1993), perm. to appeal denied (Tenn. 1993) . Consecutive sentencing is appropriate

in this case. 

Based on all the foregoing, the judgment of the trial court is accordingly

affirmed.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WADE, Presiding Judge

___________________________________

L. T. LAFFERTY, Special Judge