FILED

November 8, 1996

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL 1996 SESSION

STATE OF TENNESSEE, )

)

 APPELLEE, )

) No. 01-C-01-9506-CR-00202

)

) Davidson County

v. )

) J. Randall Wyatt, Jr., Judge

)

) (Robbery and Theft)

MARIO A. LAVENDER and ERIC L. HOBBS, )

)

APPELLANTS. )

FOR THE APPELLANTS: FOR THE APPELLEE:

FOR LAVENDER: Charles W. Burson

Attorney General & Reporter

Deanna C. Bell 500 Charlotte Avenue

Attorney at Law Nashville, TN 37243-0497

211 Third Avenue, North

Nashville, TN 37201 Darian B. Taylor

Assistant Attorney General

FOR HOBBS: 450 James Robertson Parkway

Nashville, TN 37243-0493

Jeffrey A. DeVasher

Assistant Public Defender Victor S. Johnson, III

211 Union Street, Suite 1202 District Attorney General

Nashville, TN 37201-5066 222 Second Avenue, South

(Appeal Only) Nashville, TN 37201-1649

Joan A. Lawson Nicholas D. Bailey

Assistant Public Defender Assistant District Attorney General

211 Union Street, Suite 1202 222 Second Avenue, South

Nashville, TN 37201-5066 Nashville, TN 37201-1649

(Trial Only)

Charles Carpenter

OF COUNSEL: Assistant District Attorney General

222 Second Avenue, South

Karl Dean Nashville, TN 37201-1649

Metropolitan Public Defender

211 Union Street

Nashville, TN 37201-5066

OPINION FILED:___________________________________

AFFIRMED

Joe B. Jones, Presiding Judge
2

O P I N I O N

The appellants, Mario A. Lavender and Eric Hobbs, were found guilty of two counts

of robbery, a Class C felony, and one count of theft over $1,000, a Class D felony, by a jury

of their peers. The trial court found that Lavender was a standard offender and imposed

Range I sentences as follows: (1) count 1, robbery, confinement for six (6) years in the

Department of Correction, (2) count 2, robbery, confinement for six (6) years in the

Department of Correction, and (3) count 4, theft, confinement for four (4) years in the

Department of Correction. The trial court found that Hobbs was a multiple offender and

imposed the following Range II sentences: (1) count 1, robbery, confinement for ten (10)

years in the Department of Correction, (2) count 2, robbery, confinement for ten (10) years

in the Department of Correction, and (3) count 4, theft, confinement for four (4) years in the

Department of Correction. The trial court ordered that the sentences are to be served

consecutively. The effective sentence for Lavender is sixteen (16) years, and the effective

sentence for Hobbs is twenty-four (24) years. In this Court, both Lavender and Hobbs

contend that the sentences imposed by the trial court are excessive. Hobbs also contends

that the trial court committed error of prejudicial dimensions by (a) denying his motion to

suppress a statement he made to police and (b) denying his motion in limine, which sought

to deny the State of Tennessee the right to use his prior convictions to impeach him if he

opted to testify. After a thorough review of the record, the briefs submitted by the parties,

and the law applicable to the issues presented for review, it is the opinion of this Court that

the judgment of the trial court should be affirmed.

During the early morning hours of January 3, 1994, the Wilson family was awakened

when they heard noises outside of their residence. Mr. Wilson looked through a window

to investigate the source of the noise. He saw two African-American males standing

outside his residence. When he illuminated the floodlights outside his residence, the two

men ran across the street and were last seen entering a ditch. Police officers were

summoned. They patrolled the area and, noticing nothing suspicious, departed. 

A few minutes later Lavender and Hobbs entered the Newbill residence, which was

located across the street from the Wilsons’ residence. They used a tire iron to open the
3

sliding doors at the rear of the residence. Mr. Newbill was awakened by one of the

appellants. The intruder told Mr. Newbill to turn and face the wall or he would “blow [his]

brains out." He felt something sticking him in the back. He "assumed it was a gun." The

perpetrator told Mr. Newbill to put a pillow over his head. He followed the directions given

to him. Mrs. Newbill was in another bedroom. She too was awakened by one of the

appellants. She was told not to look at the perpetrator. She was also directed to place a

pillow over her head. She was told that if she did not cooperate, they would kill her

husband. The appellants spent in excess of an hour inside the Newbill residence. They

took numerous items of jewelry, guns, and a large sum of cash. They loaded these items

into Mr. Newbill's pickup truck and drove away in the truck. The appellants took in excess

of $10,000 in cash and personal property from the residence. The pickup had a value of

$9,600.

The Newbills testified the two men in their residence "sounded black." Mr. Newbill

saw the wrist of one of the appellants when he was given a glass of water. The man's skin

appeared to be black. He could tell this appellant was wearing gloves.

The Newbills subsequently notified the police. They told the police what occurred

and what was taken from the residence. The officers initiated a broadcast describing the

pickup truck and the items stolen. The broadcast indicated two men committed the

offense.

A police officer saw the pickup truck and followed it. Other officers entered the

pursuit. The appellants subsequently slowed the vehicle, exited the vehicle while it was

still moving, and ran in different directions. The pickup truck struck a telephone pole. The

officers began pursuing the appellants on foot. Both Lavender and Hobbs dropped a pistol

as they were attempting to evade the officers.

Two police search dogs were summoned. One of the dogs found Lavender

underneath a motor vehicle a short distance from the point where he exited the pickup

truck. The second dog located Hobbs in a utility building behind a nearby residence. 
State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994); State v. Makoka, 885 1

S.W.2d 366, 371-72 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Gentry,

881 S.W.2d 1, 5 (Tenn. Crim. App. 1993), per. app. denied (Tenn. 1994); State v. Ray,

880 S.W.2d 700, 704 (Tenn. Crim. App. 1992), per. app. denied (Tenn. 1993); State v.

(continued...)

4

I.

 When Hobbs resisted arrest and attempted to escape from the officers, the police

dog was allowed to subdue him. He sustained several dog bite wounds. Before Officer

Claude Mann transported Hobbs to the hospital, he advised him of the Miranda rights.

Officer Mann stated Hobbs was "moaning and groaning" at the time. When Officer Mann

asked Hobbs if he understood his rights, the appellant answered: "Okay, man, I -- know

the deal, I know the deal, I know the deal." Officer Mann testified Hobbs, who had several

previous arrests and convictions, understood his rights.

Once Hobbs was in a treatment room, Officer Mann removed the handcuffs and

assisted a nurse in removing his clothing so she could view the wounds. A "wad of money"

fell from Hobbs's pants. A second "wad of money" was found in his underwear. Since the

broadcast stated jewelry had been taken in the robbery, Officer Mann removed three gold

chains from Hobbs's neck. When Officer Mann asked Hobbs where he obtained the

jewelry, Hobbs, an African-American, told Mann the jewelry belonged to his uncle. Officer

Mann opened a locket attached to one of the chains. He found a picture of an elderly

Caucasian man inside the locket. When Officer Mann advised Hobbs about this discovery,

Hobbs appeared shocked. 

The only evidence of the injuries sustained by Hobbs was given by Officer Mann.

He testified Hobbs sustained "several" dog bites. He also testified Hobbs was in a "little

pain" when he transported him to the hospital.

In this Court, Hobbs asserts that the ruling of the trial court was clearly erroneous.

He argues he was in "such physical pain from the dog bite wounds that he could neither

understand his right not to make statements nor knowingly and voluntarily waive his rights."

The standard of review applicable to suppression issues is well-established. When

a trial court makes a finding of facts at the conclusion of a suppression hearing, the facts

found by the trial court are afforded the weight of a jury verdict. As a result, these facts 1
(...continued)

Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992), per. app. denied (Tenn. 1993);

State v. Woods., 806 S.W.2d 205, 208 (Tenn. Crim. App. 1990), cert. denied, 502 U.S.

1079, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992); State v. Aucoin, 756 S.W.2d 705, 710

(Tenn. Crim. App. 1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 845

(1989).

Stephenson, 878 S.W.2d at 544; State v. Smith, 868 S.W.2d 561, 570 (Tenn. 2

1993); State v. Bobo, 727 S.W.2d 945, 948 (Tenn.), cert. denied, 484 U.S. 872, 108 S.Ct.

204, 98 L.Ed.2d 155 (1987); State v. O'Guinn, 709 S.W.2d 561, 565-66 (Tenn.), cert.

denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986); State v. Harbison, 704

S.W.2d 314, 318 (Tenn. 1986); State v. Kelly, 603 S.W.2d 726, 729 (Tenn. 1980);

Makoka, 885 S.W.2d at 371-72; Ray, 880 S.W.2d at 704; Adams, 859 S.W.2d at 362;

Aucoin, 756 S.W.2d at 710.

Wooten v. State, 203 Tenn. 473, 481, 314 S.W.2d 1, 4-5 (1958). 3

Stephenson, 878 S.W.2d at 544.

4

See State v. Middlebrooks, 840 S.W.2d 317, 327 (Tenn. 1992); State v. Workman, 5

667 S.W.2d 44, 48 (Tenn.), cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155

(1984).

5

are binding upon this Court if the evidence contained in the record does not preponderate

against these facts. This standard has been applied to a variety of confession issues 2

since 1958. The appellate courts have applied this standard when the issue presented 3

for review is whether the accused intelligently and voluntarily gave the statement in

question. 

4

In this case, Hobbs has failed to establish the evidence adduced at the suppression

hearing preponderates against the trial court's finding of facts. First, the only evidence

introduced at the hearing was the testimony of Officer Mann. The officer testified he

advised Hobbs of his Miranda rights, and it was clear to him Hobbs understood these

rights. The trial court found Hobbs did understand the Miranda warnings. The trial court

observed this was not the first time Hobbs had been advised of his rights. Officer Mann

also testified Hobbs was bitten "several times," he was "moaning and groaning," and he

was in a "little pain." This evidence does not establish that the wounds had a sufficient or

overbearing effect on Hobbs's capacity to knowingly and understandingly waive his right

to remain silent.5

This issue is without merit.
6

II.

Hobbs filed a motion in limine asking the trial court to "conduct a hearing outside the

presence of the jury to determine the admissibility of any character or other crime evidence

the State may seek to introduce at the trial of this cause." The trial court conducted a

hearing prior to trial. Although this motion does not address the admissibility of Hobbs's

prior convictions to impeach him as a witness, defense counsel argued the State of

Tennessee should not be permitted to use Hobbs’s prior convictions to impeach him if he

opted to testify. The record reflects Hobbs had been convicted of the following felonies:

(a) theft over $10,000 on July 22, 1991. The offense was committed on February

20, 1991, in Madison County;

(b) aggravated robbery on December 10, 1991. The offense was committed on

August 21, 1991 in Madison County;

(c) aggravated burglary on December 10, 1991. The offense was committed on

August 22, 1991, in Madison County; and

(d) theft over $1,000 on December 10, 1991. The offense was committed on

August 22, 1991, in Madison County.

The trial court ruled these felonies could be used to impeach Hobbs if he testified in

support of his defense. The court found the probative value of these offenses far

exceeded any prejudicial effect that these convictions might have on the trier of fact.

Hobbs did not testify in support of his defense. 

Hobbs contends "the trial court erred in ruling that [his] prior felony convictions

would be admissible for impeachment purposes." He argues "the provisions of the

Tennessee Rules of Evidence do not support the admission of the convictions under the

circumstances of this case, and that the trial court's ruling deprived him of his right to a fair

trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution

and Article I, § 9 of the Tennessee Constitution." He predicates his argument on the

similarity of these offenses to the offenses alleged in the indictment.

The State of Tennessee may use a prior conviction to impeach an accused if the

conviction meets the criteria established by Rule 609 of the Tennessee Rules of Evidence.

This rule states in part:
See State v. Farmer, 841 S.W.2d 837, 839 (Tenn. Crim. App. 1992). 6

7

(a) GENERAL RULE. For the purpose of attacking the

credibility of a witness, evidence that the witness has been

convicted of a crime may be admitted if the following

procedures and conditions are satisfied:

* * *

(2) The crime must be punishable by death or imprisonment

in excess of one year under the law under which the witness

was convicted or, if not so punishable, the crime must have

involved dishonesty or false statement.

(3) If the witness to be impeached is the accused in a criminal

prosecution, the State must give the accused reasonable

written notice of the impeaching conviction before trial, and the

court upon request must determine that the conviction's

probative value on credibility outweighs its unfair prejudicial

effect on the substantive issues. The court may rule on the

admissibility of such proof prior to the trial but in any event

shall rule prior to the testimony of the accused. If the court

makes a final determination that such proof is admissible for

impeachment purposes, the accused need not actually testify

at the trial to later challenge the propriety of the determination.

(b) TIME LIMIT. Evidence of a conviction under this rule is not

admissible if a period of more than ten years has elapsed

between the date of release from confinement and the

commencement of the action or prosecution; if the witness

was not confined the ten-year period is measured from the

date of conviction rather than release. . . .

According to this rule, the State of Tennessee may use a prior adult conviction to impeach

the testimony of an accused in a criminal prosecution if (a) the conviction was for a crime

that is punishable by death or imprisonment in excess of one (1) year or a misdemeanor

involving dishonesty or a false statement, (b) less than ten years have elapsed between

the date the accused was released from confinement and the commencement of the

prosecution, (c) the State of Tennessee gave reasonable written notice of the particular

conviction or convictions it intends to use to impeach the accused prior to trial, and (d) the

trial court finds the probative value of the felony or misdemeanor on the issue of credibility

outweighs its unfair prejudicial effect.

6

In this case, the first three requirements, (a) through (c), have been satisfied. Thus,

the only issue which this Court must resolve is whether the probative value of the four

felonies outweighed their unfair prejudicial effect due to the similarity between these
N. Cohen, D. Paine, and S. Sheppeard, Tennessee Law of Evidence, § 609.9 at

7

p. 288 (2nd ed. 1990); see Farmer, 841 S.W.2d at 839. 

It is a well-established rule of law that questions concerning the admissibility of 8

evidence rest within the sound discretion of the trial court; and an appellate court will not

interfere with the exercise of this discretion absent a clear abuse appearing on the face of

the record. Stephenson, 878 S.W.2d at 542; State v. Van Tran, 864 S.W.2d 465, 477

(Tenn. 1993), cert. denied, ____ U.S. ____, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994);

State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct.

1368, 122 L.Ed.2d 746 (1993); State v. Baker, 751 S.W.2d 154, 163 (Tenn.. Crim. App.),

per. app. denied (Tenn. 1987).

See State v. Miller, 737 S.W.2d 556, 560 (Tenn. Crim. App.), per. app. denied 9

(Tenn. 1987).

State v. Crank, 721 S.W.2d 264, 266 (Tenn. Crim. App.), per. app. denied (Tenn. 10

1986).

State v. Tune, 872 S.W.2d 922, 927 (Tenn. Crim. App.), per. app. denied (Tenn. 11

1993)(burglary); Miller, 737 S.W.2d at 560(burglary); Crank, 721 S.W.2d at 266 (burglary);

State v. Bowers, 673 S.W.2d 887, 889 (Tenn. Crim. App.), per. app. denied (Tenn. 1984)

(burglary); State v. Stafford, 670 S.W.2d 243, 245 (Tenn. Crim. App.), per. app. denied

(Tenn. 1984) (robbery and burglary); State v. Cole, 665 S.W.2d 407, 410 (Tenn. Crim.

App. 1983) (burglary); Price v. State, 589 S.W.2d 929, 931-32 (Tenn. Crim. App.), cert.

denied (Tenn. 1979) (burglary and grand larceny). 

State v. Goad, 692 S.W.2d 32, 37 (Tenn. Crim. App.), per. app. denied (Tenn. 12

1985) (robbery conviction admissible to impeach accused in a prosecution for armed

robbery); State v. Norris, 684 S.W.2d 650, 654 (Tenn. Crim. App. 1984), per. app. denied

(continued...)

8

convictions and the offenses alleged in the indictment. 

In determining whether the probative value of a felony used to impeach an accused

outweighs its unfair prejudicial effect on the issues to be resolved by the jury, a trial court

should (a) "assess the similarity between the crime on trial and the crime underlying the

impeaching conviction" and (b) "analyze the relevance the impeaching conviction has to

the issue of credibility." When the analysis is applied in this case, it is clear the trial court 7

did not abuse its discretion in ruling the four felonies could be used to impeach Hobbs if

he opted to testify in support of his defense.8

The mere fact a prior conviction of the accused is identical, or similar in nature, to

the offense for which the accused is being tried does not, as a matter of law, bar the use

of the conviction to impeach the accused as a witness. The appellate courts of this state 9

have held the offenses of robbery, burglary, and theft are "highly probative of credibility"10

because these crimes involve dishonesty. Thus, the appellate courts have held that

11

convictions for these felonies may be used to impeach an accused being tried for one or

more of these offenses absent circumstances which require a different result. 

12
(...continued)

(Tenn. 1985) (armed robbery conviction admissible to impeach accused in a prosecution

for armed robbery); State v. Cole, 665 S.W.2d 407, 410 (Tenn. Crim. App. 1983), per. app.

denied (Tenn. 1984) (burglary convictions admissible to impeach accused in a prosecution

for burglary); State v. Davis, 649 S.W.2d 12, 13 (Tenn. Crim. App. 1982), per. app. denied

(Tenn. 1983) (bank robbery conviction admissible to impeach accused in a prosecution for

bank robbery); State v. Fluellen, 626 S.W.2d 299, 300 (Tenn. Crim. App.), per. app. denied

(Tenn. 1981) (armed robbery conviction admissible to impeach accused in a prosecution

for armed robbery).

607 S.W.2d 482 (Tenn. Crim. App.), per. app. denied (Tenn. 1980). 13

841 S.W.2d 837 (Tenn. Crim. App.), per. app. denied (Tenn. 1992). 14

841 S.W.2d at 840 15

Tune, 872 S.W.2d at 927.

16

9

Hobbs’s reliance on Long v. State and State v. Farmer is misplaced. In Long, 13 14

a conviction for second degree murder was used to impeach the accused in a prosecution

for assault with intent to commit murder in the first degree. In Farmer, a conviction for

assault with intent to commit manslaughter was used to impeach the accused in a

prosecution for murder in the second degree. In both cases, this Court held the prejudicial

effect of introducing the prior convictions outweighed the probative value of the convictions.

As this Court said in Farmer, the probative value of these convictions was "slight or

nonexistent." In this case, the convictions are "particularly probative of credibility." 15 16

 This issue is without merit.

III.

Lavender and Hobbs challenge the length and method of serving the sentences

imposed by the trial court. Lavender contends the trial court committed error of prejudicial

dimensions by imposing the maximum sentences within the appropriate range and

requiring the sentences to be served consecutively. Hobbs contends that the trial court

committed prejudicial error by imposing the maximum sentences for robbery and requiring

him to serve the sentences consecutively.

A.
Tenn. Code Ann. § 40-35-401(d). 17

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 

18

State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891 19

S.W.2d 922, 929 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Bonestel,

871 S.W.2d 163, 166 (Tenn. Crim. App. 1993). 

See Tenn. Code Ann. §§ 40-35-103 and -210; State v. Scott, 735 S.W.2d 825, 20

829 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).

Sentencing Commission Comments to Tenn. Code Ann. § 40-35-401; Ashby, 823 21

S.W.2d at 169; Butler, 900 S.W.2d at 311.

10

When an accused challenges the length and manner of service of a sentence, it is

the duty of this Court to conduct a de novo review on the record with a presumption that

"the determinations made by the court from which the appeal is taken are correct." This 17

presumption is "conditioned upon the affirmative showing in the record that the trial court

considered the sentencing principles and all relevant facts and circumstances." The 18

presumption does not apply to the legal conclusions reached by the trial court in

sentencing the accused or to the determinations made by the trial court which are

predicated upon uncontroverted facts. However, this Court is required to give great weight 19

to the trial court's determination of controverted facts as the trial court's determination is

based upon the witnesses' demeanor, appearance, and vocal inflection.

In conducting a de novo review of a sentence, this Court must consider (a) any

evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the

principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives,

(e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g)

any statements made by the accused in his own behalf, and (h) the accused's potential or

lack of potential for rehabilitation or treatment. 

20

The party challenging the sentences imposed by the trial court has the burden of

establishing that the sentences imposed by the trial court were erroneous.21
Tenn. Code Ann. § 40-35-114(1). 22

Tenn. Code Ann. § 40-35-114(5). 23

Tenn. Code Ann. § 40-35-114(10). 24

Tenn. Code Ann. § 40-35-114(16). 25

Tenn. Code Ann. § 40-35-113(6). 26

11

B.

The trial court found the evidence supported four enhancement factors, and the

court used these factors to enhance the appellants’ sentences within the appropriate

range. The enhancement factors used to increase these sentences were: (a) they had a

previous history of criminal convictions and criminal behavior, (b) they treated or allowed 22

the victim to be treated with exceptional cruelty during the commission of the offense,23

(c) they had no hesitation about committing a crime when the risk to human life was high,24

and (d) they committed the crime under circumstances where the potential for bodily injury

to a victim was great. The trial court found there were no mitigating circumstances 25

supported by the record.

Lavender and Hobbs contend the trial court should not have used enhancement

factors (5), (10), and (16) to enhance their respective sentences. Lavender also contends

the trial court should have applied mitigating factor (6) because of his age at the time he

committed the crimes in question.

26

The record reflects that Lavender was convicted of two offenses before the date in

question. He was convicted of selling a controlled substance and possession of a

controlled substance. Hobbs had been convicted of at least four felonies and two

misdemeanors. Thus, the trial court properly used enhancement factor (1) to enhance the

appellants' sentences.

Lavender and Hobbs make a strong argument that enhancement factors (5), (10),

and (16) were erroneously applied by the trial court to enhance their sentences within the

appropriate range. They take the position factors (10) and (16) should not be applied when

an accused is convicted of robbery. While this Court has held on numerous occasions

these factors should not be used to enhance a sentence in a robbery case, this is not an
Tenn. Code Ann. § 40-35-114(8). 27

Tenn. Code Ann. § 40-35-113(6). 28

12

ironclad rule which applies in every robbery case. To the contrary, whether an

enhancement factor should be used to enhance a sentence depends on the elements of

the offense and the evidence adduced at the trial and sentencing hearing.

In this case, the victims were senior citizens. Mr. Newbill was retired. The record

establishes Mr. Newbill suffered from heart disease. It was serious enough for Mr. Newbill

to take medication to avoid having a heart attack. Due to the shock of being awakened

during the night, the stress of being told he would be shot if he did not cooperate, and living

through this ordeal for approximately an hour, Mr. Newbill started having chest pains and

shortness of breath, classic signs of an ensuing heart attack. Mr. Newbill told the

appellants he was a heart patient, he was suffering the symptoms of a heart attack, and

he was going to be sick. The appellants would not permit him to get out of bed.

Consequently, he did not have access to his medication. Mr. Newbill took a nitroglycerine

tablet to alleviate the pain and avoid an ensuing heart attack after the appellants exited the

residence.

While it is true the appellants did not know who resided in the residence or the

condition of their health, this fact neither excuses nor mitigates the effect their conduct had

upon the Newbills. When they entered the Newbill residence, they assumed the risk that

a victim may be advanced in age, the victim may have a serious, life-threatening illness,

and their conduct could aggravate this medical condition and cause life-threatening

circumstances. 

Based upon the facts of this case, the trial court properly applied enhancement

factors (5), (10), and (16). Neither factor constitutes an element of either robbery or theft.

The trial court should have applied enhancement factor (8) to increase Hobbs's

sentences within the appropriate range. The presentence report establishes that Hobbs 27

was granted probation in Madison County. This probation was revoked when he was

arrested for and convicted of several new crimes.

 The trial court properly rejected mitigating factor (6). Lavender was 27 years of age 28

when he was sentenced. He has worked approximately four months since he left high
Tenn. Code Ann. § 40-35-115(b)(2). 29

Tenn. Code Ann. § 40-35-115(b)(4). 30

Tenn. Code Ann. § 40-35-115. 31

State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). 32

Wilkerson, 905 S.W.2d at 939.

33

State v. Barker, 642 S.W.2d 735, 739 (Tenn. Crim. App. 1982). 34

Tenn. Code Ann. § 40-35-115(b)(2). 35

13

school in the eleventh grade. The record is devoid of evidence that Lavender's youth had

any effect on his criminal conduct. To the contrary, he was convicted of two drug offenses

before committing the crimes in question.

This issue is without merit.

C.

The trial court ordered that the appellants' sentences are to be served consecutively.

It found Hobbs to be "an offender whose criminal activity is extensive," and both Lavender 29

and Hobbs to be "dangerous offender[s] whose behavior indicates little or no regard for

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

high." The appellants contend the sentences should be served concurrently. 30

An accused may be required to serve multiple sentences consecutively if (a) the

accused meets the criteria for consecutive sentencing set forth in the applicable statute,31

(b) the effective sentence imposed reasonably relates to the severity of the crimes

committed by the accused, and (c) an extended period of incarceration is necessary to 32

protect the public from the accused's future criminal conduct. The State of Tennessee 33

has the burden of establishing these factors before an accused can be required to serve

multiple sentences consecutively.34

Hobbs qualifies for consecutive sentencing because his "record of criminal activity

is extensive." Between February 1, 1991 and December 10, 1991, he was convicted of

35

aggravated robbery, aggravated burglary, theft of property in excess of $10,000, two

counts, evading arrest, assault, resisting arrest, and impersonation. He was required to
See State v. Franklin, 919 S.W.2d 362, 366 (Tenn. Crim. App. 1995), per. app.

36

denied (Tenn. 1996); State v. Marshall, 888 S.W.2d 786, 788 (Tenn. Crim. App.), per. app.

denied (Tenn. 1994); State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993), cert.

denied, ____ U.S. ____, 114 S.Ct. 1200, 127 L.Ed.2d 548 (1994); State v. Davis, 825

S.W.2d 109, 113 (Tenn. Crim. App. 1991), per. app. denied (Tenn. 1992).

Tenn. Code Ann. § 40-35-115(b)(4). 37

14

serve the sentences for the felony convictions in the Department of Correction. Two of the

sentences were served consecutively. The offenses in question occurred on January 3,

1994. It is obvious that Hobbs committed the present offenses shortly after he was

released from the Department of Correction.

In his brief, Hobbs contends his prior convictions cannot be the basis of an

enhanced sentence and a consecutive sentence. This argument ignores the reported

decisions which hold the contrary. This Court has held on numerous occasions the prior

convictions of an accused can be used to establish the appropriate range, or enhance a

sentence within the appropriate range, and justify consecutive sentences.36

Both appellants qualify for consecutive sentencing because their "behavior indicates

[that they had] little or no regard for human life, and no hesitation about committing a crime

in which the risk to human life is high." The offense of robbery is a "crime in which the 37

risk to human life is high." In this case, the conduct of the appellants towards Mr. Newbill

established they had absolutely "no regard for human life.”

Mr. Newbill suffered from heart disease. The shock of being awakened in his home

and the fear instilled in him by the appellants caused him to suffer chest pains and

shortness of breath. These are common symptoms of an approaching or actual heart

attack. Mr. Newbill explained to one of the appellants he had a heart condition, he was

suffering from these symptoms, and he was about to become sick. The appellants would

not permit Mr. Newbill to get out of his bed. As a result, he did not have access to his

medication. However, he was given a glass of water. He testified he was in "bad shape."

Just as soon as the appellants exited the residence, Mr. Newbill took a nitroglycerine tablet

to alleviate the pain and to avoid having a heart attack. In short, the appellants did not

care if Mr. Newbill lived or died.

The evidence strongly suggests that the appellants were prowling the neighborhood

looking for a residence from which to steal property and a vehicle. Mr. Wilson, who lived
Wilkerson, 905 S.W.2d at 939.

38

Wilkerson, 905 S.W.2d at 939.

39

15

across the street from the Newbills, heard noises. He turned on the outside floodlights and

saw two black men running away. They ran across the street and disappeared in a ditch.

Most people would be afraid to engage in other criminal activity for fear the police may be

summoned and find them in the neighborhood. Not the appellants. They entered the

Newbills’ residence and the remainder of the story is history.

What occurred after the police officers initiated their pursuit of Mr. Newbill's truck

also establishes this ground for consecutive sentencing. When the officers initiated their

pursuit, the appellants reduced the speed of the truck and exited while the truck was still

moving. The truck struck a pole. The truck could have struck someone preparing to walk

across the street, someone en route to work, or it could have struck a residence and killed

the sleeping occupants.

The damage to the vehicle indicates the truck was still traveling at a relatively high

rate of speed. The impact completely demolished the truck. The insurance company

found the truck was beyond repair, and it paid Mr. Newbill $9,600, the fair market value of

his 1991 model truck. 

The lengthy sentences imposed by the trial court were appropriate. These

sentences "reasonably relate to the severity of the offenses” committed by the appellants.38

Also, these sentences are "necessary to protect the public against further criminal conduct"

at the hands of the appellants. Both of the appellants have prior criminal records, and 39

they have been required to serve jail or prison sentences for the past transgressions.

Obviously, the shorter sentences did not deter the appellants from committing the crimes

in this case. 

 ________________________________________

 JOE B. JONES, PRESIDING JUDGE

CONCUR:
16

______________________________________

 JOHN H. PEAY, JUDGE

______________________________________

 DAVID G. HAYES, JUDGE