# FILED June 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE APRIL SESSION, 1998

STATE OF TE NNE SSE E, ) C.C.A. NO. 01C01-9708- CR-00349 ) Appellee, ) ) DAVIDSON COUNTY V. ) ) ) HON. J . RA NDALL WYATT,JUDGE JACK KEVI N SUTTON, ) ) Appe llant. ) (AGGR AVATED BURG LARY)

FOR THE APPELLANT : FOR THE APPELLEE : KARL DEA N JOHN KNOX WALKUP District Public Defe nder Attorney General& Reporter JEFFREY A. DeVASHER LISA A. NA YLOR Assistant Public Defender Assistant Attorney General (On A ppea l) 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North DAVID BAKER Nashvill e, TN 37243 Senior Assistant Public Defender 1202 Stahlman Buildi ng VICTO R S. JO HNS ON, III Nashvill e, TN 37201 Distri ct Attor ney General (At Tr ial) KATRIN MILLE R Assistant Distri ct Attor ney General Washington Square, Suite 500 222 Second Avenue North Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Jack

Kevin Sutton, appeals as of right the s entences imposed by the Davidson Count y Criminal Court. Defend ant pl ed guilt y to two count

s of simp le robbery, one cou nt of aggrav ated burglar

y, one count of

assault, and one count of theft o f prope rty. The trial c ou rt sentenced Defendant as a Range I Standard O ff ender to thr ee consecutive five-year sentences for the r obbery and burglary convicti ons, and two el even month and 29-day s enten ces fo r the as sault and theft con victi ons. The latter two sente nces were o rdere d to run conc urren tly to the othe rs. In t his a ppeal , De f endant arg ues that the se ntences im posed we re excessive and that consecut ive sentence s were not prop er. Although we di sagree with the trialcourt’s applicat ion of two enhancement factors, we affirm the judgment of the trial cou rt.

At the sentencing heari ng, sixt y-two-year -old L eland Stalcuptestif ied that
on March 1, 1996, he was coming out of a t obacco shop on Gall ati n Ro ad with a
c arton of ciga rettes in his ha nd, wh en De fenda nt app roach ed an d ask ed him if h e would li ke to purchase more ci garettes at $5.00 a carton. Mr. Stal cup agreed and then allowed Defendant into his car. Defend ant told Stalcup to g ive him the money forthe cigarettes an d that he wou ld purchase them for Stalcu p at a grocery sto re where his father allegedly w orked. Mr. Stalcu p gave D efenda nt $35 w ith which to purchase the ci garettes. However Defendant began “mumbling and looki ng down at the place and back

up again” so Mr. Stalcup asked Defendant for his money back and told hi m “we’ll j ust forget the whol e thing here. ” According to Mr. Stalc up, Defendant then grabbed themoney from him. Stal cup attempted to catch Defendant at which point

theybegan to scuff le. Defendant pushed Stalcupto the ground on the-3-

gravel and Mr. Stal cup skinned his knee . Defend ant pled g uilty to assa ult and the ft pertaining to Mr. Stalc up (Co unts Fo ur and F ive).

Mrs. Clara Sutton, of no relatio n to Defe ndant, testif ied that o n March 1, 1996, Defendant began holler ing outsi de her ho use a t 1802 Merid ian Str eet, to le t him
come in. Mrs. Su tton, who is 80-yea rs-old, had just had open hear t surger y two week s before th is incident. M rs. Sutton testified that s he reco gnized Defen dant’ s voice as being the nephew of one of her nei ghbors. She tol d Defen dant tha t s he does not all ow anyone into her home because she lives by herself . Defendant told her thata man was blee ding to deat h in the st reet and he needed to use her teleph one to call for h elp. Mr s. Sutto n told h im to go use his aunt’ s telephone, but he told her that hi s aunt was n ot at home. Sutton then t old him to use anot her neigh bor’s phone because she was sure that t hat person was at home. Defendant told Mrs. Sut ton th at her neighbo rs were in fact not at ho me. Believing h er storm door to be latched, she then went to open the glass door to tal k further w ith Defen dant. Wh en she began to open the glass door, De fendan t pushe d his way inside. She testified that h e came in “wild as a deer.”

At this point he told her he needed a glass of wat er. Sh e told h im to g et it hims elf becau se she had just h ad surg ery and w as not ab le to freely m ove abo ut. Mrs. Sutton test ified t hat he then began talking about one of her daughters who had
some emotional pr

oblems. He then i nf ormed her that he needed money to which she replied that all o f her m oney w as in th e ban k. He to ld her th at all of he r neighbors had told hi m that she kept money i n her dresser dr awers. She then offered to write him a che ck if he would just leave her home. He refused and began going through allher things in search of

money. She then threat ened to callthe-4-

police to which he said, “[Y]ou’ d better not call t he police, I’llstomp you.” Mr s. Sutton then began moving toward th e fr ont doo r and sta rted scre aming . At this poin t, Defendant grabbed M rs. Sutton and threw her to the floor. She again tol d Defendant to leave o r she w ould c all the p olice. D efend ant sa id “whe n you c all the p olice, I’m going to stom p you and k ill you.”

Defendant continued to search thehouse for money and he eventually found
a box that cont

ained jewel ry belongi ng to Mrs. Sut ton’s deceased hus band. He took the box and ran out o f the hous e. A few moments later, Mrs. Sutton’ s daughter and granddaughter

arrivedand they notified the p olice. Mrs. Sutton testif ied that s he was still being treated by a ph ysicia n at the ti me of the sentenci ng hearing for a knee injury she suffered when Defendant threw her to the fl oor on the day of the burglary. Defendant pled guil ty to aggr avated burgl ary and robbery pertaini ng to the se act s on Mrs . Sutton (C ounts T wo and Three ).

ChesterEarl Co llins, who is 8 3-years-o ld, testified tha t on Marc h 5, 1 9 96, Defendant forced hi s way onto his prope rty by placing his foot insid e the pro perty gate so that it cou ld not be c losed. Mr. Co llins said that D efend ant thre w him on his back and that he l anded on a lawnmower. Defendant demanded money from Collins to which he tol d Defendant that he did not have any money. Defendant removed a set of keys and a change pu rse which contained anot her k ey from Collins’ pants. Defendant further sea rched th rough M r. Collins’ hip p ocket an d tore his p ants in the process of se arching for money. Defend ant then l eft and a nei ghbor call ed the police. Mr. Colli ns testi fied that his back con t inues to hur t him as a resul t of Def endant pushing him down on to p of the l awnmower. Defendant pl ed guilty t o robbery of Mr. C ollins (Count O ne).-5- Mary Ellen Hea, a l icensed cli nical soci al worker for the Pu blic De fende r’s Office, was called by

the defense to testif

y at the sentencing heari ng. She said t hat she had as sessed the Defe ndant a nd had conclud ed that D efenda nt w as bor n prem aturely and tested at the bord erline i nt ellect ual funct ioning range. Ms. Hea testif ied that D efend ant ha d bee n hos pitaliz ed for mental i llness on f ive pri or occasions. She also said that Defendant may suffer from vi sual hall ucinati ons and thathis ill ness requires medication. On cross-examinat ion she test ified t hat she was aware of Defendant’ s daily c rack cocaine addi ction. Ms. Hea also said that she did believe D efendant to betaking hi s medication when he committed the pr esent offenses.

The 35-ye ar-old Defendant test ified t hat he is remorseful for his cri mes and thathe was not taki ng hi s medica tions at the ti me he comm itted the cri mes. Defendant could recal l his pr ior convi ction fo r prosti tut ion, but he could not remember his pri or convict ions for fraud, attem pt to com mit a felon y, or forgery. He also said that

although hehad been convicted of DUI, he didnot commit that crime. Defendant testi fied t hat he had b een using crack cocaine fo r two to threeyear s. He denied thathe com mitted the presen t crimes in an attem pt to get money for drugs. In fact, he said th at he ask ed Ms. S utton for m oney to ride the bus and that he asked Mr. Collins if he could wor k for him for money. He furt her said th at he did not i ntend to commit these crimes.

When an accused chall enges the lengt h, range, or the mannerof servi ce of
a senten ce, this cou rt has a du ty to condu ct a de novo review of th e sente nce with a presumption t hat the determinations made by t he trialcourt are correct. Tenn.-6-

Code Ann. § 40-3 5-401(d). Th is presump tion is "conditioned up on the affirmative showing in the record that the trial court considered t he sentencing principl es and all relevant fac ts and circ umsta nces." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a s entence , this Court must conside r the evidence adduced at tr ial and t he sentencing h earing, t he presentence report, t he principl es of senten cing, the a rgume nts of cou nsel relative to sente n cing alternatives, the natur e of the offe nse, and the defendant’s potentialfor rehabili tation. Tenn . Code Ann. § 4 0-35-21 0; State v. Parker , 932 S.W.2d 945, 955- 56 (Tenn . Crim App . 1996).

If our review refl ects th at the trial court followed the statut

ory sentenci ng procedure, imposed a lawfulsentenc e after hav ing given due considerati on and properweight to t he factors an d princip als set out under the sentencing law, and that the trialcourt's findings of fact are adequately supported by the r

ecord, t hen we may not modify th e sente nce eve n if we wo uld have preferred a different re sult. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). Upon review of the record,
we find that

the tri al court considered theproper sentenci ng principles and state d its
reasons and fin dings on the record . Ther efore, r eview by this c ourt is de novo with a presumption of correctness.

I. LE NGTH OF SENTENCES

The Defendant argues t hat the trial court erred by i mposing the sentences of five (5) years on each of hi s two robbery convi ctions (Counts One and Three), and-7-

on his aggravated burglary convicti on (Count Two). Defend ant does not chal lenge the sentences for

the misd eme anor c onvictio ns for a ssau lt and theft (Counts Four and Five). The trialcourt foundthat four (4) enhan cemen t factors were a pplica ble to the three fel ony convictions: (A) The D efenda nt has a p revious h istory of cr iminal conv iction s or criminal behavior i n additi on to those nec es sary to establish t he appropriate ran ge. Tenn . Code An n. § 40-35-11 4(1). (B) A vict im of the offense wasparticul arly vul nerable because of age or physical or m ental disability. Tenn. C ode Ann . § 40-35-114 (4). (C) The Defendant treated or allowed the v ictims to b e treated with exceptional crue lty. Tenn. Code Ann. § 40-3 5-114(5). (D) The Defendant had no hesit ation about committing a crime when the risk to hum an life was high. T enn. Cod e Ann. § 40 -35-114(10 ). (E) The crimes were committed u nder circumstances i n which the potentialfor bodily injur y to a vi ctim was great. Tenn. Code Ann. § 40- 35-114(16 ).
The trialcourt found as mitigat ing factors t he Defendant’s hi story of mental problems, and t he fact th at Defendantwas raised i n a dysfuncti onal famil y. Tenn. Code Ann. §§ 40-35-1 13(8) an d (13).
First, the trial court conclude d that Defend ant had a prior c riminal history. Tenn. Code Ann. § 40-35-114(1) . Defendant doesnot contestthe ap plicatio n of this factor, but we willneverthe less rev iew its signif icance. Al though Defendant was unab le to recallseveral of his co nvicti ons, the pres entence report indicates that Defendant had s ix prio r misdemeanor convi ctions, includi ng solici tation of an undercover

officer for pro stitution, fraud , DUI, attem pt to co mmit the fel ony of larce ny, attemp t to comm it the felony o f forgery, an d mak ing false re ports. In addition, Defenda nt admitted us ing crack coc aine for the past two to three years.-8-

Based on the se fac ts, the a pplica tion of th is enh ance men t factor is justified in enhancing all three felony convictions (Counts O ne, Two a nd Three ).

Defendant does challe nge th e trial co urt’s findingthat one of the victims, Mr. C hest er Collins, was partic ularly vulnerabl e because of his age and physical limitati ons. Tenn. Code Ann. § 40-35 -114( 4). De fenda nt only challenges t his factor as applied to Cheste r Collins (C ount O ne). Upo n care ful review of the record, we find that this e nhanc emen t factor doe s not app ly as to Mr. C ollins.

Our supreme court recently addr essed the appli cabili ty of t his factor in State v. Poo le , 945 S.W.2d 93, 96-98(Tenn. 1997). In Poole , the supreme cour t stated thatthe trial c ourt m ust co nside r all of the facts a nd circ ums tance s of the offens e in determining whether thi s factor is appropri ate for

the offe nse. T he ap plicatio n of this factor is a factua l issue res olved on a case-b y-case b asis. Id
. at 9 6 (citat ion omitted). The S tate bears the burden of prov ing the vi ctim’s l imitati ons which made the victim partic ularly vulner able. Id . In determ ining whe ther the S tate has m et its burden, the trial c ourt sh ould c onsid er whe ther ev idenc e perta ining to the victim ’s age or physical a nd me ntal attribute s dem onstrate d an inab ility to resist the crime,
summon help, or tes tify at a later date. Id
. The re mu st be e videnc e in the record in addition to the victim ’s age. Id . at 97. T he co urt mu st also determ ine if the factor is approp riate for the offense by consi dering the nature of t he offense and the manner in which it w as com mitted. Id
.
There is no qu estion that an 80-ye ar-old man migh t be pa rticularly vulner able to the type of

offense committed by Defendant. However, “[a] person’s ag e alon e may have lit

tle or no bea ring on si ze, strengt h or vitality.” Id . at98. Since the State-9-

produced no evidence of physical or mental l imitati ons at the t ime of the offe nse, it cannot be presumed that the victim w as pa rticularly vulner able b ased solely o n his age. The refor e, there is not su fficient e videnc e to su pport th e app lication of this factor to Def enda nt’s conviction for robbe ry of Mr. Collins ( Count One). This factor does how ever, apply to t he two convict ions pertai ning to Mrs. Sutton ( Counts Two and Thre e), since her del icate physi cal conditi on made her partic ularly vulnerabl e.

The trialcourt als o found that Defendant tre ated or all owed thevi cti ms to be treated with exceptional cr uelty. Tenn . Code Ann. § 4 0-35-11 4(5). Th e State
correc tly agrees with Defendant that the circumstances in this casedo not supp ort the finding of t his enhancement factor as to any of the felony convicti ons.

Defendant next co ntends that the tri al court erred in fi nding that he had no hesitati on about committing a crime when the risk to hum an life w as hig h in regards to his convi cti ons for robber y of Mr. Co ll ins a nd Mrs. Su tton (Counts One and Three). See Tenn
. Cod e Ann . § 40-3 5-114 (10). O ur sup reme court re cently addressed this enha n cement factor, as applied to the crime of robbery, in State v. Mario A. Lavender and Eric L. Hob bs , No. 01-S01-9704- CR-00088, Davidson Coun ty (Tenn., Nashvi lle, Apr . 27, 1998) ( for publi cation). In that opi nion, the supr eme court stated that enhancement factor (10) is not

an essentialelement of t he offense of robbery , and that it may be used “when imposing a sentence for ro bbery
so long as the facts which establish t he elements of t he offense are not alsorelied upon to establi sh the enhancement fact ors. This determination i s dependent upon the particular facts of each case.” Id . at 14. Th e court a lso pointe d out that “[i]n det ermining whether a part icular en hancement factor may be applied i n a s pecifi c-10-

case, the tri al court must consider t he e lemen ts of t he offense and the evidence adduced at the trial and senten cing hearing.” Id . at 9.
Robbe ry i s defined as “the i ntentionalor knowing t heft of pr operty f rom the person of another by

violence or putti ng the person i n fear.” Tenn. Code Ann. § 39- 13-401(a). A person c omm its “theft of property” if, “ with intent to deprive the owner of property, the perso n knowingly ob tains or exerc ises con trol over the property without the owner’s effective co nsent.” T enn. C ode An n. § 39-1 4-103 . In this case, the proof sh ows tha t Defend ant forced his way onto Mr. Col lins property, pushed M r. Collins to the groun d, and having placed the victim in fea r, Defendant then sea rched th rough h is pocke ts for mo ney. Defendant took contr ol of the victi m’s property

and left the premises wi th it, wi thout Mr. Collins effec tive
conse nt. Thes e facts su pport the eleme nts of the o ffense of ro bbery.

Howev er , in this particu lar case, th e State o ffered no additiona l proof as to how the risk

to M r. Col lins l ife was parti cularly high, other t han his ag e. While we find this cr ime to be utterl y despicabl e, we cannot say that theevidence shows t hat the risk to M r. Collin s’ life wa s high . The tr ial c ourt erred in app lying this enhance ment factor a s to Mr. Collins (Co unt One).

The Defe ndant fo rced his way i nto Mrs. Sutt on’s home, pushed her t o the ground, and while she was pl aced in fear, Defendant searched her house for any thing that might

be of value. Defendant then took control of the property (he r deceased husband’s belongi ngs ) and left the premises with them, wit hout Mrs. Sutto n’s e ffecti ve con sent. A gain, th e elem ents o f robbe ry are m et. Ho weve r, in regards to Mrs. Sutt

on, we find that theevidenc e supp orts the tri al court’ s applicat ion-11-

of enhancement factor ( 10), “[t]he defendant had no hesitat ion about committ ing a cri me when the risk to hum an li fe was high.” Tenn . Code An n. § 40-35-11 4(10). Mrs. Sutton was recovering from open hea rt surgery and the chance that sh e cou ld have died from Defendant’s ac tio ns wa s certa inly high . The tr ial cou rt corre ctly applied this factor as to Mrs. Sutton (Count Three). Defendant does not contest t he applicat ion of enhancement factor (10) to the aggrav

ated burglar

y convict ion (Count Two), but we note for the record that we agreewith the t rial cour t’s appl icatio n of that factor to the aggravated burglary convicti on.
Next, the tri al court ap plied enhancement factor (16), “ [t]he crime was committed undercircumstances und er which the po tential fo r bodily in jury to a v ictim was great” to a ll three felony conviction s. See § 40-35-11 4(16). Defenda nt contends that thi s enhancement factor was improperly

appl ie d to his t hree felony convicti ons b ecau se it is an essen tial element of the offen ses. As to the rob bery convictions, (Coun ts One and T hree) , the su prem e cou rt held in State v. Lavender and Hobbs that enhancement factor (16) is also not an essentialelement of th e offense o f robbery . No. 01-S01-9704-CR-00088, slip op. at 9. Again, we must determine its applicab ility on a case -by-case basis. Id . In rega rds to th is facto r, this Court finds th at the tria l court properly ap plied this factor as to the two robbery convictions. As discusse d above , a ll of the elem ents of rob bery we re clearly m et. Furthermore, the proo f at the se ntencing hearing revealed that Mr. C ollins was eighty years old and Mrs. S utton was eigh ty- three years old . Defend ant pus hed bo th vi cti ms to the g round in an attem pt to rob them, so cer tainly it can be sai d that the risk of bod ily injury to both o f these eld erly victims w as grea t.-12- As to the aggrav

ated bu rglary convicti on, this Court has held t hat enhancement factor ( 16) should not be applied to an aggravated bur glary conv iction absent extr aordin ary circum stance s. State v. S mith , 891 S.W.2d 922, 930 (Tenn. Cri m. App., N ashvill e, Ju ly 21, 199 4), perm. to appeal denied (Tenn. 199 4). However, the ci rcumstances surr ounding the aggr

avated burgl ary ofMrs. Sutton ’s home does sup port the application o f this enhance ment factor. Mrs. Sutton was an eighty-three year old w oman recupe rating in he r home from op en hea rt s u rgery. Defendant forced his way into her home, threw Mrs. Sutton to t he ground, ransack ed her home in search of money or anythi ng else of value, a nd thre atene d to kill he r if she tried to call for help. The cir cums tances surroun ding thi s horrif ying event
c er tainly support the applicat ion of thi s enhancement factor to the aggrav

ated b urglary convicti on. This Court finds t hat the trial court properly

applied enha ncem e nt fact or (16) to all t hree felony convicti ons (Counts One, Two and Three ).

In summary, the trial court properly

applied enhancement f actor (1) and (16) to all three felony convict ions (Counts One, Two and Three). We find that enhancement factor (4) and (10) shoul d only be applied to the two offenses against Mrs. Sutton (Cou nts Two a nd Three ). We further fi nd that enhancement factor (5) does not apply t

o any of thef elony c onvictio ns. W e agre e with th e trial co urt’s applicat ion of the mitigating factors that D efendant ha s a history of me nta l pr obl ems and that Defe ndant c omes from a d ysfu nctiona l background to all t hree felony conviction s. See Tenn. C ode Ann . § 40-35-113 (8) and (13).

The trialcourt sentenced Defendant asa Range I Standard Offender for t he three Class C felonies. T enn. C ode An n. §§ 3 9-13-401(b); 39-14-403(b). The-13-

sentencing range for a R ange I Stand ard O ffende r convic ted of a Class C felon y is not less than t hr ee years no r m ore than si x years. Tenn. Code Ann. § 40-35- 112(a)(3). The presumpt ivesent ence for a Cl ass C fe lony shallbe the minimum sentence in the range if there are no enhancement or mit igatingfactors. Tenn. Code Ann. § 40-35-21 0(c). Should the re be enha nceme nt and mitigating fa ctors, the court must start at t he minimum sentence in the range, enhance the sentence wi thin the range as app ropriate fo r the enh ancement factors, and then reduce the sentence within the range asappropriate for the mit igatingfactors. Tenn. Code Ann. § 40-35- 210(e). The trialcourt in the case sub judice , imposed three five-year sentences for the Class C felony con victions. As to Coun t One, w e find that tw o enhancemen t factors and two mitigating factors ap ply. As to C ount T wo, w e find that f our enhancement factors an d two mitigating factors apply. As to Count Three, we fi nd thatfour enh ancem ent factors and two miti gat ing factors apply. The mitigati ng factors in this cas e do n ot weig h hea vily against t he enhancement factor s. The great weightattri butabl e to the applic able enhancement factor s more than just ifies the fiveyear sentences imposed as to all thr ee felony convicti ons.

II. Consecut ive Sentences
The tri al c ourt ordered consecutive sentencing af ter making a f inding t hat Defe ndan t is a dangerous offender whose behavior i ndicated l ittl e or no regard f or human life, and no he sit ati on ab out

commi tt ing a cr ime in which t he risk to human life is high. Tenn. Code Ann. § 40-35-115(b) (4). We agree. The Defendant, wi thout provocati on, pushed two elder ly people t o the grou n d in an a tt empt to r ob t hem. Certa inly it can be sai d thatDefendant’s behavior demonstrated a contemptible l ack-14-

of conce rn for hum an life and an abs ence o f b asic hum an decen cy. Our de novo review further indicates that consecut ive sentenc in g is necessary to protect

the public from furt her criminalconduct by Defendant and tha t the terms im posed are reaso nably related to the severity of t he offenses. State v. Wilkerson , 905 S.W.2d 933, 938-39 (Tenn. 1995) . Although t he trialcourt did not specif icall y make the additionalfindings required b y Wilkerson , we find that t hese factors are pre sent in
our de novo review. See State v . Ad ams , 859 S.W.2d 359, 363 (Ten n. C ri m. App. 1993), per m. to appeal deni ed (Tenn. 199 3) . Conse cutive sen tencing is approp riate in this case
. Based on all t he foregoing, the judgment of the trial c ourt is a ccord ingly affirmed.

____________________________________ THOMAS T. W OODALL, Judge CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ L. T. LAFFERTY, Special Judge