# FILED December 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MAY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9705- CC-00193 ) Appellee, ) ) ) WILLIAMSON COUNTY VS. ) ) HON . DON ALD P . HARR IS DARRELL WENTZEL, ) JUDGE ) Appe llant. ) (Aggravated Robbery ; Aggravated ) Burglary ; and Aggrav ated ) Kidnapping)

FOR THE APPELLANT : FOR THE APPELLEE : EUGENE J. HONEA JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 407-C Main Street , P. O. Box 68 Franklin, TN 37065-0068 ELIZABETH B. MARNEY Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 JOSEPH B AUGH Distri ct Attorney General P. O. Box 937 Franklin, TN 37065-0937
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On Decem ber 6, 19 96, a W illiamson Coun ty jury convicte d Appe llant, Darre ll Wentzel, of

two counts of agg ravated robbe ry, one count of aggr avated burglary, and one count of aggr avated kidnappi ng. After a sentencing hearing on January 31, 1997, Appellant was sentenced to twelve years f or each count of aggravated robbery, twelve yea rs for aggr avated k idnapping, and six year s for aggravated burglary, with all sentenc es to be serve d concurren tly. On Feb ruary 18, 1997, Appellant f iled a motion for judgment of acqui ttal or , in the alternat ive, a motion for a new trial , clai ming that t he evidence was i nsuf ficien t for a conv iction , that the aggravati ng kidnapping conviction should be di smisse d because it was i ncidental to the rob bery, th at seve ral of the trial cou rt’s evidentiary rulings were e rrone ous, a nd tha t the trial c our t had misappli ed enha ncement factors to arrive at maximum sentences on all four convict ions. The trialcourt deni ed the mo tion. App ellant cha llenges b oth his convi ctions and his sentence, raisi ng the following i ssues: 1) whet her the trial court comm itted plain error by adm itting the in-court identif icatio n of the Appell ant by Mary Et hel Veach; 2) whether ther

e was suffi cientev idence to corroborate the accomplice testi mony

of E dwar

d Mi tch em; 3) whether Appellant’s convi ctions for two co unts of aggravated robbery constituted dou ble jeopardy; 4) whether th e trialcourt corr ectly r ejected Appel lant’s

argument that he could not be co nvicte d of a ggrav ated k idnap ping b ecau se it wa s only incidental to the robb ery; 5) wheth er the trial co urt correc tly sentenc ed the A ppellant.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.-3- I. FA CTS

On May 6, 1996, t he home of Logan and Mary Ethel Veach was burglari zed by two armed men who bound and r obbed them. In addi tion, the two men also bound Ruth Poteete, a fri end who was visi ting the Veache s. One of the two m en, Ed ward M itchem , later co nfess ed an d testifie d for the State a t trial.

Mitchem testified that h e received a phon e call f rom Appellant i n October or November 1995, whil e Mitchem was living in V irginia. A ppella nt told Mitchem that he knew someone with a safe in his home that contained $500, 000 and he wa nted Mitchem to help bre ak into the safe. Mitch em tes tified that A ppellan t called him three or f

our times and Mitchem agr ee d to co me to Ten ness ee in March 1996. Mitchem testif ied that he stayed at

the ho me o f Appe llant an d his wife whe n he ca me to T ennes see.

Mitchem testified that h e and Appellant discussed robbi ng Mr. Veach, t he man Appe llant ide ntified a s the o wner o f the ho me w ith the s afe. Ap pellan t told Mitchem t hat he learned about Mr. Veach f rom someone named Dudley who worked at the C oca C ola pla nt. App ellant a nd Mit chem late r drove by t he Veaches’ hom e app roxim ately ten to fifte en tim es to o btain informati on about the home. Approximatel y two weeks befor e the robbery , Mitchem and Appell ant drove to the Veaches’home, pulled i nto the d riveway , and Mitchem, di sguised with a ski ma sk, appro ached the doo r. When Mrs. Veach came to the door and a dog began barking, Mitchem returned to the vehi cle and the t wo men fled the scene .-4- Mitchem testified that o n May 6, 19 96, he and Appell ant drove to the Veaches’ hom e in a p lain white car t hat belonged t o Appell ant’s mother-i n-law. Mitchem , who was c arrying a clipboard and a scanner that Appellant had purchased from R adio Shack, gained entry to the Veaches’ home by identi fying hims elf as being from the William son Co unty She riff’s Department. After he entered the home, Mitchem drew a gun and ordered Mr. Veach, Mrs. Veach, and Mrs. Poteete to get

down on the fl oor with the ir faces toward the floor . Appellant then entered the home and taped Mr. Veach’s and Mrs . Poteete’ s hands behind their backs, taped t heir feet , and placed tape over their eyes. After she was bound wit h duc

t t ape, Mrs . Po tee te b ecam e ill and indicated that she was out of breath.

Mitchem testified that whi le Mr. Veach was on t he floor, Appellan t took money from his p ocket. While Appellant wasloo kin g fo r a s afein anot her roo m, Mitchem tookMrs. Veach to a back be droom. W hen Mrs. V each said tha t there was no safe in t he house, Mitch em and Appellant took some coins and jew elr y and left t he Veaches’ home. Appell ant and Mitchem th en split up the coins and money between them. Mitchem later became frightened that he would be caught and he threw his

half of the coins in to a pon d on Ap pellant’s fath er’s prop erty located approximatel y 150 yardsfrom App ellant’s home . Detective David B eard of the W illiamson Cou nty Sheriff’s Depa rtment testified that coins were found in this pond and they were i dentifi ed as those stol en from the Veach home on May 6, 1996
.
Mr. Veach tes tified that on May 6 , 1996, he saw tw o me n pull u p to his home i n a white fo ur- door car . Mr . Ve ach the n sa w Mi tch em en ter his home-5-

carryi ng a note pad a nd what appeared to be a “walkie-tal kie.” Mr. Veach testif ied that Mitchem then spoke into the “walki e-talki e” and shortly therea fter a second man e ntered the home. Mr. Veach never saw t he second man and h e could not ident ify t he Appellant. Mr. Veach test ified t hat he ha d ap proxim ately $5,900 in his pock et on the d ay of the ro bbery.

Mrs. Po teete test ified t hat she became illwhile she was bound a nd t ha t she was taped for approximatel y twenty mi nutes. She also test ified t hat she d id not see the man who taped her. Neither man took anything from Mrs. Poteete.

Mrs. Veach testi fied that on May 6, 1996, she l et Mitchem int o herho me because she thoughtthat he was th ere fro m the Sher iff’s Department in response to her rep ort that a n individ ual wearing a ski mask had previ ously been at the Veaches’ hom e. Mrs . Veac h testifie d t hat she was never b lindfol ded, that s he saw the Appellant

when he came in, and “got a lon g look” at him two or three t imes. When M itchem asked her wer e the safe was, Mrs. Veach tol d him that there was no safe and said “Do n’t hurt us. Logan has some money, and my son has some coins in t here--tak e the money, just don’t hurt us.” Mitchem then took coins from the back room a nd jewe lry from M rs. Veac h’s bedro om.

Mrs. Veach testi fied that she was unable to i dentify Appe llant at the pretrialline-up be c ause th ere was something di fferent about him. She expl ained thatAppe llant’s hair was shorter and styled di fferent ly fr om when she had seen him during t he robbery. Mrs. Veach also testifi ed:-6- I was under the i mpression when [Detective ] Fred Be nnett called me to t he jail that they

was [sic]holding t he other guy there with Mr. M itchem
. And I said, “Now Fre d, I’m not going to tell that this i s the man because I’m not forsure.” And he sai d, “Well, i f you’r e not sure th en you ’re not g oing to tell me tha t.” I asked Fred Bennet t where my husband wasand hesaid“Up in the courtroom.” As I walked into the courtr oom, my family was s itti ng on the right; my h usban d was o n the witne ss stand ; M r . Wentzel and some peop le sitting on the left. I says [sic] to my sis ter-in-la w, “W ell I’m glad t hat I did not identify that man they’ve got in jail out there bec ause there sits t he man t hat

camein my ho use. ” An d it was Mr. Mitchem
. Altho ugh she said “Mr. Mitchem,” Mrs. Veach was apparentl y referring t o Appe llant. Mrs. Veach also testifi ed th at she thought she had been looki ng at some kind of pictu res at the pre-t rial l ine-up rat her than at l ive persons. She stated th at App ellant c ould n ot have been at the lin e-up “b ecau se I ca me s trait to the co urthou se an d Dar rell W entze l was s it ting wit h a group of peopl e and there’s no way h e could have gotten there be fore I got there.”
Gary Beasley test ifiedthat he pi cked Mitchem up at the W illiamson Coun ty jail abou t a wee k befo re the ro bbery and to ok him to the Appe llant’ s home at Mi tchem ’s request. Beasl ey testi fied that no one was home, but when he late r broughtMitchem back to t he house, Mitch em got out of the car an d Beas ley left him the re.

Teresa Walker, custodia n of records at Fi rst Farmers and Merc hants Bank in Columbia, Tennessee, testifi ed that Appell ant made a deposit of $1,000 cash to his acc ount o n May 7, 199 6. She also te stified th at App ell ant had written a check to Radio S hack in M arch of 1 996.
Dudley Delffs testifi ed that he works for Coca Col a and that i n October or Novem ber, 1995, he had a conversati on with Appell ant about peopl e in the area-7-

who “ha d money,” incl uding Logan Veach. Del ffs test ified t hat although B ra d Thompson, a relative of theVeac hes, to ld him that t hey had a safe i n their home, Delffs did notrecall telli ng Appellant t hat the Veaches had a safe with $500,000 in it. Del ffs test ified t hat Appellant told hi m that he needed m oney because of financial los ses in C hattano oga an d severa l family illnesse s.
Appellant

testif ied and denied a ll involv emen t in the crim es and with Mitchem
. Appe lla nt, his wife , and his mother all testifi ed that Mitchem did not stay at Appel lant’s

home as he claimed.

II.IN-COURT

IDENTI FICAT ION BY MRS. VEACH
Appellant

conte nds th at it was plain error for the trial court to allow theincourt identification of Appe llant by Mrs . Veach . A p pellan t conc edes that this issue was not rais ed below eit her in the f orm of an object ion to her test imony or in his motio n fo r judgm ent of a cquitta l or a ne w trial. Ac cordin gly, Ap pellan t’s attackon Mrs. Veach’s testimony has been wai ved under Rule 3(e ) of the Tennessee Rules of Appellate Procedure. Rule 3(e) states:
[I]n all cases t ried by a j ury, no i ssue presented for review shal l be predicatedupon error i n the ad mission o r exclusion of eviden ce, jury in structi ons granted or r efused, misconduct

of juror s, parti es or cou nsel , or other gro und upon which a new trial i s sought, unl ess the same was spec ifically stated i n a motion for a new trial ; otherwi se, such iss ues will be treated as waived.
Tenn. R. App. P. 3(e). Appe llant atte mpts to circu mven t this failu re to co mply with Rule 3 (e) by a rguin g that t he trial c ourt co mm itted pla in error unde r Rule 52(b) of the Tennessee Rules of Criminal Procedure, which states:-8- An error which has affected the substantial rights of an accused may be noticed at any ti me, even though not r aised in t he motion for a new trialor assigned as error on appeal , in thediscretion of the app ellate court where necessary to do

substanti al just ice.
Tenn . R. Crim . P. 52(b).

In State v. Adkisson , this Cou rt s tated that the language of

Rule 52(b) “makes it clear that appellate cou rts are to use it ‘sparingly’ in recog nizing errors thathave n ot bee n raise d by the parties . . . . The p lain erro r rule is not a run -ofthe-m ill remedy.” 899 S. W.2d 626, 639 (Tenn. Crim. App. 199 4 ). This Court then set out five factors to determine w hether an erro r is plain error:
a) the rec ord mu st clearly es tablish wh at occurr ed in the tria l court; b) a clear andunequivocal rule of l aw must have been breached; c) a substant ial ri ght of the a ccused must have been adver sely affected; d) the accused di d not waive t he issue for tactical reasons; and e) cons ideration o f the error is “n ecessa ry to do su bstantial jus tice.”
Id. at 641–42. Mrs. Veac h’s tes tim ony does n ot satisfy this test. The reco rd establi shes what happened in t he trialcourt, and it is dou btful tha t Appe llant’s failure to raise this issue at any time before appeal was a tact ical pl oy, but none of the other

factors is applicab le. Mrs. Ve ach’s tes timony d oes no t represe nt a breach of a clear

and unequivocalrule of l aw. Indeed, t his is l ikely t he reason why Appella nt’s coun sel did no t object to the testi mony at trial. Furt her, the re is no indica tion tha t a sub stantia l right of the Appellant

was adversely

affected because, as e xplained in Section III, there was other evid ence s ufficient to corrobo rate Mitche m’s ac com plice te stimo ny. Fina lly, cons ideratio n of this alleged er ror is not re quired to do substanti al just ice. Thus, t his issue has no merit.-9- III . CORROBORAT ING EVI DENCE
Appellant

contends tha t the trial court erred w hen it d enied his motion for judgment of acquit

tal because the evi dence was insuff icient as a matter of

law to corrobo rate Mitchem’s accompli ce testi mony. This Court stated in State v. Anderson , 880 S.W .2d 720 (Te nn. Crim. Ap p. 1994):

The standard by which the tri al court determines amotion for judgment of acquittalat the end of all t he proof is, in essence, the same standard which appliesw he n determining the suffi ciency of the evidence after a conv iction
. A jury ver

dict, ap proved by thetrialjudg e, acc redit s the test imony of the witnessesfor the s tate an d reso lves all c onflicts in favor o f the sta te's theory. On ap peal, the state i s entitl ed to the st rongest legitimate vi ew of the evidence and any re asonable i nferences which mi ght be drawn the r efr om. The credib ility of the w itness es, the weigh t to be g iven the ir testimony, and the reco nciliation of conflicts in the evi dence ar e matters entrusted exclus ively to the j ury as the t riers of fact. This court may

neither reevalua te th e e vidence nor sub stitute its i nferences for those drawn by t he jury. A convicti on may be set aside only when the revi ewing court fi nd s thatthe evide nce is insu fficient to support thefindingby the trier of f act of guilt beyon d a reas onable doubt.
Id. at 726 (cita tions om itted).

The appellate courts have add ressed the nature, quali ty, and suffi ciency of the evidence required to co rroborate the testi mony of an accomplice on numerous occasio ns. In St ate v. G riffis , 964 S.W.2d 577 (Tenn. Cri m. App. 1997), thi s Court stated:

The rule of corroborati on a s applied a nd used in thi s State is that there must be some evidence i ndependent of t he testi mony of the accomplice. The corroborating evidence must connect, or tend to connect the defendant wit h the commission of the cri me charged; and, further more, the tendency of the corroborat ive evidence to co nnect the defendantmust be independent of any testimony of

the accomplice. The co rroborative evidenc e mus t of its own for ce, indep enden tly of th e-10- acco mplic e’s testimon y, t end to connect t he defendant wi th the comm ission of the crime.

. . . . The evidence corr oborating t he testi mony of an accomplice may consist of direct

evidenc e, circu mstantial evidence, or a combination of di re ct and circum stantial evidence. T he quantu m of evidenc e necessa ry to corroborate an ac complice’s testimony is not requir

ed to be suff icient enough to support the accused’s convicti on independent of the acco mplic e’s testimony nor is i t requir

ed to extend to every port ion of the acco mplic e’s testimony. To the contra ry, only slight circumstan ces are required to corroborate an accomplice’s testimony. The co rro borating evidence is sufficient if it con nects the accused wit h the crime in quest ion.
Id. at 588–89 (ci tations omitted). “Whether a witness’testimony h as been sufficie ntly corroborated is a matter entrus ted to the jury as trier of fact.” State
v. Gaylor , 862 S.W.2d 546, 552 (Tenn. Cr im. App. 1992) ( citing Stanley v. S tate , 189 Ten n. 110, 222 S .W.2d 384 (1949 )).

The evidence in this case clea rly established at least t he “sligh t circumstances” required to corr oborate Mitchem’s accomplice testimony. Most obvious, of course, was the test imony of Mrs. Veach that she clearl y saw Appellant

participate in the robb ery. Howeve r, eve n witho ut this identif icatio n, there was s till enough e vidence to sufficiently corro borate Mitche m’s testimon y. First, Dudley De lffs te stifi ed that in October 1995, he and Appel lant had a con versati on about vari ous indivi duals in t he area who had money and that Appellan t me ntioned the name of Logan Veach. Delff s also test ified t hat Appellant

told hi m that he had lost a lot of m oney. Second, Mr. Veach testifi ed thata white car had been used in the crimes, corroborat ing Mitchem’s testimony thathe and Appellant used a whit e car ow ned by A ppellant’s mothe r-in-law to drive to the Veaches’ home. Fur ther, Mi tchem’s test imony that he l ived i n th e Appe llant’s home while they were planningthe robbery was corroborated by the1 The double jeopardy clause of t he United Stat es Constitution provi des “nor shall any person be sub ject f or the sam e off ens e to b e twic e put in jeo pard y of life o r limb .” U.S . Con st. am end . V. Sim ilarly, the Tennessee Constitution provides “[t ]hat no personshall,for the same offense,be twice put in jeopar

dy of lif e or li mb.” Tenn. Const. art I, § 10. -11- testimony

of Gar y Beas ley

that he to ok Mi tchem to the Appellant’s house. Mitche m’s testimony that he stayed with Appellant was also butt ressed by the fact thatthe poli ce found some of thestolen coins in Appellant’ s father’ s pond about 150 yards fr om A ppella nt’s house
. In additi on, Mitchem’s statement that he and Appellant

used a scanner in the robbery tha t Appe llant pu rchas ed from Radio Shack in March 1996, was corroborated b y Teresa Walker’s testimony that Appellant

had wri tten a ch eck to Radio Shack i n March 1996. Final ly, t he evidence showe d that Ap pellant m ade a $1,000 cash deposi t into has bank accou nt on the d ay after the robbery.

In short, there was suff icient evi dence before the jury as th e trier of fact to determine that Mitchem’s testi mony was suffic iently corroborated. This issueis without m erit.

IV. CONVICTI ONS ON TWO COUNTS OF AGGRA VATED ROBBERY
Appellant

contends that

his convi ctions for two counts of ag gravated robbery violate his ri ghts under theUnited States and Tennessee Constitutions not to be convicted twice for the same offense. 1 This issue was not raised i n the trialcourt. Nevertheless, we address this i ssue in order to revi ew an alleged er ror of constituti onal dimensi on. See State v. Lewis , 958 S.W.2d 736, 738 (Tenn. 1997) (reviewing double jeopa rdy issue even th ough not raise d below).2 Under the criminal responsibility provisions of Tennessee C ode Annotated § 39-11 -402 (1997), it does not

matter whether i

t was Appell ant or Mitchem who actually took propert

y from Mr. or Mrs. Veach. -12- In State v. Denton , 938 S.W.2d 373 (Tenn. 1 996) , t he Te nnes see Supr eme Court e xtend ed double jeopar dy protect ion under the Tennessee Constitut ion be yond t hat pro vided b y the U nited S tates C onstitu tion. Th us, wh ile mu ltiple convicti ons for a single criminal a ction cou ld be per mitted by th e United States Constitut ion under Blockburger v . United States , 384 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the result may be differ

ent under the Tennessee Constitut ion. Under Denton , resolut ion of a doubl e jeopardy i ssue requires the foll owing:
(1) a Blockburger

analysis

of the statutory offenses; (2) an analysi s guided by the princip les of Duch ac [v. State , 505 S.W.2d 237 (Tenn. 1973)], of the evidence used to prove the offenses; (3) a consideration o f whether there were multiple vict ims or disc rete act s; and (4) a comparison of t he purposes of the respe ctive statutes. None of these steps i s determinative; rather the res ults of e ach m ust be weigh ed an d con sidere d in rela t ion to each other.
Denton , 938 S.W .2d at 381
.
Thus, we beg in with the first Denton factor, an analysi s under t he Blockburger

test. Under this test, we as k “whether each of fense contai ns an element not conta ined in the other; if not, they are t he ‘same offense’and d ouble jeopardy

bars addit ional puni shment and successive prosecuti on. ” Uni ted States
v. Dixon , 509 U.S. 688, 696, 113 S. Ct. 2849, 2856, 125 L. Ed. 556, 56 8 (1993). In this case, bot h counts o f aggravated robbery contain an element t hat is not contained in the ot her. Count one r equired proof

that proper

ty was taken f rom the person of Loga n Veac h while co unt two re quired p roof th at propert y was taken from the person of Mary EthelVeach. 2 Becaus e each robbery count required proof of an element not required by t he other count, the Blockburger test3 It is wo rth no ting th at “a r obb ery m ay be a ctua l or co nstru ctive: it is act ual w hen the ta king is imm ediately from the pers on; and c onstruc tive when in the pos sessio n or in the p resenc e of the pa rty robbed.” State v. Edwards , 868 S.W .2d 6 82, 7 00 (T enn . Crim . App . 199 3). T he ta king of the coins clear ly occurred in the presence of Mrs. Veach. -13- is satisf ied and there is no viol ation of t he federal double jeopar dy clause. However , under Denton , our analysis under t he state double jeopardy clause does not stop t here.

The next step i n the inqu i ry is t he Duchac analysis of the evi dence used to prove each offense. If the same evidenc e is not us ed to prove each offense, “‘then the fact tha t both cha rges rela te to, and grow out of, one transact ion, does not mak e a sin gle offense whe re two are define d by the statutes.’” Denton , 938 S.W.2d at 380 (quoti ng Duchac , 505 S.W.2d at 239). Here, the evidence used to prove each count was diffe rent, at least i n part. I ndeed, count one was establi shed by evidence t hat Appellant took money from M r. Vea ch’s pocket and count two by evi dence that Mitchem took Mrs. Veach away f rom Mr. Veach to a back bedroom where he took possession of the coins. 3 Count one did not require proofthat anything was taken from Mrs. Veach and coun t two did not require proofthat

anyt hing was t aken f rom Mr. Veach. Th us, appl ication of Duchac indicates that t he two offenses are different for double jeopardy purposes.

We now tu rn to the third do uble j eopard y factor of Denton , the considerati on of whether there wer e different v icti ms or disc rete act s. The two counts of aggra vated rob bery in this c ase relate to two disc rete acts. F irst, Appellant

tied up Mr. Veach and took money from his pocke t . A few minutes later, Mitchem took Mrs. Veach out of t he presence of Mr. Veach to a back room4 Appellant contends that

there were no discrete acts i n this case because there was no proof

that the property taken from the Vea ches was own ed by them as individuals, rather than jointly. However, nothing in th e aggra vated rob bery statute s require s proof o f owner ship. Te nn. Cod e. Ann. § 3 9-13-40 1 to -402 (19 97). See also Elliot v. State , 2 Tenn. Crim. App. 418, 420, 454 S. W.2d 187, 188 (1970) (stating that right to possession of property taken is not the issue in the crime of robbery). -14- where he took th e coins. T hese tw o actions were cle arly not a sin gle act. 4 Fur the r, the re w erecl ear ly twovi cti ms here. “The fact that differen t victims are involved suggests that separate prosec utions woul d not violate double jeopar dy principl es under the Tennessee Constitution.” State v. Winningham , 958 S.W.2d 740, 746 (T enn. 1997 ).

The fourth and final step u nder Denton require s an a nalysis of the purposes of the statu tes involved . Becau se both counts of aggr avated robbery involved the same statute, the purposes are obviously the same: to pr

event the theft of prope rty from person s by force. How ever, no one fa ctor is determina tive and when eac h factor is weighe d and con sidere d in rela tion to the ot hers, we conclude thatAppellant’ s convict ions for t wo counts of aggr

avated robbery do not violate either t he federal or state doubl e jeopardy cl auses. This i ssue is wit hout merit.

V. A GGRAVATED KI DNAPPI NG CONVI CTION
Appellant

contends that his

convicti on for aggravated kidnappi ng violates his right to du e process because t he kidnapping was only incident al to the robbery. The Tennessee Supreme Court addressed t he issue o f whethe r both robbery and kidnapping co nvicti ons can be upheld when each convi ction arises out of the same cri minal episode i n State v. Anthony , 8 17 S.W.2d 299 (Tenn. 1991 ). The court s tated th at the re levant in quiry is-15- [W]hetherthe confi nement , mo veme nt, or de tention is esse ntially incidental to the a ccom panyin g felo ny and is not, there fore, sufficien t to support a s ep arate convi ction fo r kidnappi ng, or whether it is signif icant enough, in and of

itse lf, to warr

ant independent prosecution and is, therefor e, suffi cient to

support such a conviction
. Id. at 306. The court

cited thefol low ingtest, as taken from Faison v. State , 426 So.2d 963, 9 65 (Fla . 1983 ), with ap prova l:
[I]f a taking o r confinem ent is allege d to have been d one to fa cili tate the commission of another c rime, to be k idnapping the resulti ng movement or confinem ent: (a) Must not be sli ght, inconsequentialand merely inc idental to the other cri me; (b) Must not be of t he kind inherent i n the nature of t he other cri me; and (c) Must have so me significa nce in depe nden t of the o ther crim e in that i t mak

es t he ot her

cri me substanti ally easi er of commission or substa ntially lessen s the risk o f detection
. Id. See also Statev. Mi chael K. Christian, Jr. , No. 03C01-9609-CR-00336, 1998 WL 125562, a t *8–9 (Tenn . Crim. App., Kn oxville, March 23, 19 98).

It is clear that under this tes t, Appellant’s conviction fo r aggrava te d kidnapping must be upheld . The bin ding of M rs. Potee te’s hand s and fee t with duct tape was certainly not slight or inconsequent ial. Indeed, th is acti on was clearly a substanti al interference with her libert y that i ncreased the chance t hat she would s uffer physical injury. Further, tying up t he elderly Mrs. Poteete was not the kind of

action t hat was inheren t in the crime of robbi ng the Vea ches because i t was no t necessary i n order to commit the robberi es. In addi tion, alth ou gh it was not

necessary to bind Mrs. Poteete, it did make the robberies easier by

allowin g both Appellan t and Mitchem to sear ch the house rat her than requiri ng that one of

them watch Mrs. Poteete. Final ly, bi nd ing Mrs. P oteete ’s-16-

hands and feet and taping over her eyes also lessened the risk of dete ction. T his issue is, the refore, with out me rit.

VI. APPELLA NT’S SENT ENCE
Appellant

conte nds th at his se ntenc e is excessive because the tri al court misapplied enhancement factor s and fail ed to foll ow the appropriate sentencing guidelines. Under Tennessee law, “ [w]hen rev iewin g sente ncing iss ues . . . includi ng the granti ng or denial of probati on and the lengt h of sentence, the appellate court shal l conduct a d e novo revie w on the record of such issues. Such review shal l be conducted wit h a presumption t hat the determinations made by the court from w hich the appe al is taken are correct.” Tenn. Code Ann. § 40- 35-401(d) (1997). “How eve r, the presu mptio n of correct ness which accompanies the trial court's action is conditioned upon the affirm ative showing in the record thatthe tri al court considered thesentencing principl es and all r elevant facts and circum stance s.” State v. Ashby , 8 23 S.W.2d 166, 169 (Tenn. 1991). “The defendan t has the burde n of demo nstrating that the sen tence is impro per.” Id.

A portion of th e Sente ncing R eform A ct of 1989 , c odifi ed at Tennessee Code Annotated § 40-35-210, established a number of specifi c proceduresto be followed in sentenci ng. This sect ion mandates the cour t's consi deration of the following:
(1) The eviden ce, if any, received at the trial and t he sentencing hearing; (2) [t ]he pre sentence report ; (3) [ t]he pri nciples of

sentencing and argum ents as to sentenci ng al tern atives; (4) [t]he nature and characteristi cs of the c rimin al conduct invo lved; (5) [e]v idence and infor mati on offered by the parti es on the enhancement and mit igating-17- factors in §§ 40-35-11 3 and 40-35-114; an d (6 ) [a] ny statement t he defend ant wishe s to ma ke in his ow n beha lf about se ntencing
. Tenn. Code Ann. § 40-35-2 10 (199 7). In additi on, this section pr

ovides that

the minimum sentence wit hin the range is the pres umptive sent ence. I f there are enhancing and mitigating factors, the court must start at the mini mum sentence in the range an d enhanc e the senten ce as app ropriate for the en hancement factors and the n reduc e the sen tence w ith i n the range as appr opriate f or the mitigati ng factors. If ther e are no mitigati ng f actors, t he court may set the sentence above the mini mum in that range but stil l withi n the range. Theweight to be give n eac h facto r is left t o the discr

etion of t he trialjudge. State v. Shelton , 854 S.W .2d 11 6, 123 (Ten n. Crim
. App. 1992). The Act further provides t hat

“ [w]henev er the court i mposes a sentence, i t shall place on the r ecord either orally or in wri ting, what enhancement ormitiga ting fac tors it fou nd, if any, as well as findings of fact as requ ired by § 40-35-209 .” Tenn . Code Ann. § 4 0-35-21 0(f) (1997). Because ofthe importance of enhancing and mi tigati ng factors un der the sentencing guidelines, even t he absence of these factors must be reco rd ed if none are found. Tenn. Code Ann. § 40-35-210 ( 1997) comment. These fi ndings by the trial judge mus t be recorded in ord er to allo w an adequate revi ew on appe al. In addition , “ [w]hen im posing sentences for multi ple offens es, the trial c ourt must make separate fi ndings as to whi ch enhancement and miti gating factors apply to which co nvictions.” State v. Chri st opher B lockett , No. 02C01- 9509-CC-00258, 1996 W L 417659, at *4 (Tenn. Crim. App. , Jackson, July 26, 1996) (citi ng State v. Chrisman , 885 S.W .2d 834, 839 (Tenn. Crim . App. 1994 ). In this case, the tri al court f ailed to make separate fi nding s as to which enhancement factors ap plied to which conv iction s. Thus, the s entences carry no presumption of correctness.-18- The trialcourt stated that in making its sen tencing deci sion, it had considered the evidence present ed duri ng trial , during t he sentencing hearing, and in the pres entence report . The tri al court f ound tha t no mitigating factors were applicab le. We agree that no evidence was presented to support a f inding that any of

the enumerated fa ctors of TennesseeCode Annotated § 40-35- 113 were present. The t rial cour t stated t hat it f

ound that the followi ng enhancement factors of Tennessee Code Annotated § 40- 35-114 applied: (1) that Appellant had a previous hi story of c riminal co nvictions in addition to those ne cessar y to es tablish the ap propr iate ran ge; (2) that Ap pellan t was a leade r in th e commission of the offenses; (3) that theoffenseinv

olved mo re t han o ne v ict im; ( 4) that th e victi ms were particul arly vul nerable because of age; (6) t hat the amount of money taken from Mr. Veach was particul arly gre at; and (16)that the potentialfor bodi ly i njury to a vi ctim was gr

eat. For

the fol lowingreasons, we hold that en hanc eme nt facto rs (1) an d (2) ap ply to all four offenses, that (3) and (6) apply to so me of the offenses, but factors (4)and (16) do not apply t o any of the offenses.

The trial cou rt was c orrect in applying factor (1). Indeed, Appellant has a previousconvicti on in 1979 for attempt to commit a felony. This convict ion was not necessary to establi sh the appropr iate range because other enhancement factors exist. See Tenn. Code Ann. §§ 40-35-105, -109 (1997). Appellant contends that he does not have a prior

history of crimi nal convic

tions or behavior because one c onvictio n can not be a “histo ry.” How ever, th is Cou rt has p reviou sly held that factor (1) app lied even t hough there had been onl y one previ ous convicti on. State v. William Ray Rhodes , No. 02C01-9406-CC-00124, 1995 WL 425046, at *6 (Te nn. C rim. A pp. 19 95). T hus, fa ctor (1) could prope rly be used-19-

to enhance all f

our of App ella nt’s co nviction s, altho ugh it d eserv es little enhan ceme nt weigh t. See id.

The trial court was corre ct in applying fact or (2). Indeed, t he evidence showed that Appell ant was the l eader in all four offenses: Appellant came up with the idea, planned the crimes, an d enticed Mitchem to become inv olved. Appe llant’s contenti on that thi s factor should not have been applied becaus e he was “a” leader

rather t han “the” l ead er has n o merit. See State v. Hicks , 868 S.W.2d 729, 73 1 (Ten n. C r im. App. 1993) (“Our cases have established t hat enhancement for beinga leader in the co mmissio n of an offense does not req uire that the de fendan t be the so le leader b ut only that h e be ‘a’ lea der.”).

The trial court erred in applying fac tor (3) to the aggrava ted robbery an d aggravated kidnapping conv iction s because e a ch of th ese o ffense s involve d only one victi m and there were separate convicti ons for each o ffense. See State v. Clabo , 905 S.W.2 d 197 , 20 6 (Te nn. Cri m. App. 1995) (holdi ng that fac tor (3) was an “i mp roper enhan cement factor, since ther e were separate convictions for each victim”). Howe ver, the tr ial court c orrectl y applied t his factor to the aggr avated burglary convic tion be caus e both Mr. an d Mrs . Veac h were victims of this offense. See State v . Derek Denton , No. 02C01-9409-CR-00186, 1996 WL 432338 (Tenn. Crim. App. , Jackson, Aug. 2, 1996) (stating that factor (3) can be applied to aggravated burglary convictions when m ore than one person is ki lled, injured, has prop erty stolen, or has pro perty destroyed).

The trialcourt err

ed in applyi ng factor (4) because i n committing t he o ffenses, A ppellant did not ta ke advantage of the vict ims’ ages or phy sical-20-

conditions. As stated by t his court in State v. Butler , 900 S.W.2d 305 (Tenn. Crim. A pp. 199 4),
[A] victim is particu larly vuln erable within the m eanin g of this enhancement factor when the victim lacks t he ability to resist t he co mmi ssion of t he cri me due to ag e, a physica l cond ition, or a men tal con dition. A victim is also particul arly vul nerable when his or her a bility to summons assistance is impaired; or the victim does not have t he capacity to testify against the p erpetrator of the c rime. H owev er, a find ing tha t one o f these cond it ion s exists does no t, as a m atter of la w, me an tha t this fac tor is au toma tically considered. The appellant must have taken advantage of one or more of these conditions during t he commission of the cr ime. The s tate had the burden of e stablish ing the limitatio ns tha t rende r the victim “particu larly vulne rable.” The sta te also ha d the bu rden of e stablishing that th e condition which rendered the v ictim “par ticula rly vul nerable”was a factor in the commissi on of the of fense.
Id. at 313 (ci tations omitted). Here, the state faile d to meet its burd en. There was no evidence at

all t hat either

of the Veacheswas particul arly vul nerable and the only evi dence that Mrs. Poteete was vul nerable was that she “had some kind of spell” during the robbery and needed a glass of water. There was

no evidence thatestabli shed that any vulner abil ity of

the vict ims was a factor in the commission of the off ense. Thus, the t rial court shou ld not h ave ap plied th is factor.

Th e trialcourt was cor rect in app lying factor (6) to the convi ctions for aggravat e d robbery of Mr. Veach and for

aggravated bur

glary. Appellant contends that the t rial court’s determinati on that the ap proximatel y $6,000 taken from Mr. Veach wa s particula rly great wa s “purely a rbitrary and capriciou s.” Howeve r, the evidence s howed tha t Mr. Veach carries this amount of money on his pers on because h e cann ot read wel l eno ugh t o use c hecks . In deed, Mr
. Veach testified that h e only “de als with cash.” Clearly, Appellant’ s argument that-21-

$6,000 is not a partic ularly great amount i s without merit. However , this factor cannot be applied to the other convi ctions because t here was no evidence that anything of parti cularly greatvalue was tak

en from the other

victi ms or that they sustained pa rticularly great persona l injury.

The trial court erre d in applyin g factor (16 ). As to the aggrava ted burglary convicti on, this Court

has stated thatfor aggravated burglar y convict ions, “a t rial court shou ld not a pply this factor absent extra ordinary circum stances.” State v. Smith , 891 S.W.2d 922, 93 0 (Tenn . Crim. App. 19 94). There are no extraordinary circum stanc es in th is case which warra nt the a pplic atio n of this factor. As to the aggravated r obbery convi ctions, this Court has also stated that absent any proof establishi ng risk to life other than t he victi m’s, factor (16) i s an essentialelement of t he offense and i t cannot beused for enhan ceme nt. State
v. King , 905 S.W.2d 207, 213 (Tenn . Crim. A pp. 199 5). This C ourt ha s also h eld thatfactor ( 16) cannot be used as a n enhancemen t fact or for t he offense of aggravated kidnapping asit is inherent in the offens e. State v. Kern , 909 S.W.2d 5, 7–8 (Ten n. Crim. App . 1993).

Even though we hol d that the t rial cour t erred i n applying s ome of the e nh ancement factors , a findin g that e nhan cem ent fac tors we re erro neou sly applied does n ot equa te to a redu cti o n in the se ntence
. State v. Keel , 882 S.W.2d 410, 423 (Tenn. Cri m. App. 1994). There are no mitigating factors and at least t

wo enhancement factor s apply to e ach convict ion. We place great weighton each of these enha nc emen t fa ctors conside ring the type of robb ery and burglary

involved. Home invasions by armed hooligans ar e perhaps one of-22-

the most d etestab le and frigh te ning fo rms of criminalit y. Under these circum stance s, we affirm the sente nces im posed by the trial co urt.

According ly, the j udgment of t he trial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ DAVID G. HAY ES, J UDGE