### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M ay 21, 2002
STATE OF TENN ESSEE v. MELVIN L. HARPER
Direct Appeal from the Criminal Court for Sullivan County

No. S43,578 Phyllis H. Miller, Judge

No. E2001-01089-CCA-R3-CD December 12, 2002

The appella

nt, Melvin

L. Harper, wa s convicted by a jur y in the Criminal Court o f Sullivan County of aggravated robbe

ry, a Class B f

elony. The ap

pellant was sente

nced as a Range I I mult iple offender to twenty y

ears incarceration

in the Tennessee Department of Correction. On a ppeal, the appellant challen ges: (1 ) the suf

ficienc y of

the evide nce to sup port his conviction of

ar me d r ob be ry; (2) the trial court’s granting of the State’s motion to amend the indictment on the day

of trial; (3) the wording of the trial court’s jury instructions regarding lesser-included offenses; and (4) the sentence imposed by t

he trial c ourt. After a

caref ul revie w of the r

ecord a nd the par ties’ bri efs, we affirm the judgmen t of the tr ial cour t. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cr

iminal Court is Affirm

ed.

N ORMA M C G EE O GLE , J., delivered the opinion of the cou rt, in which T HOM AS T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appe al); Leslie S. Hale, Blountville, Tennessee (at trial), for the appellant, Melvin L. Ha rper.
Paul G. Summers, Attorney Gene ral and Reporter; Kathy

D. Aslinger, Assistant

Attorney Genera l; H. Greeley

Wells, Jr., District Attorney General; and B arry P. Stau bus and William B. Harper, Assistant District Attorneys Gener al, for the appellee, State of Tennessee.

OPINION I. Fact ual Backgro

und On December 18, 1999, Margie Pickens w as working at the Minute Ma

rket on We st Sullivan Street in Kingsport, Tennessee. Pickens had worked f or the company f

or twenty y

ears and
was the manager at that particular store . At 12:45 p.m., a black male wearing white silk pants and
a black jacket with the word “FI LA” on it entered the store an d proceeded to walk around the counter. There were no other customer s in the stor

e. Picken s though

t the man w anted to p

urchase tobacco from the r

ack beh ind the counter and asked th e man if sh

e could assist him. Instead, the man approached

Pickens at the cash register and told her to “ope n the drawer or

I’ll kill y ou.” According-2-

to Pickens, t

he man “h ad someth

in g unde r his jacket” pointed at her that Pickens believed to be a gun, although she never actually saw a weapon. Pickens “froze” in fear and was unable to do as the
man ordered. When Pickens failed to cooperate, the man be gan punching the key s on the ca sh regist er until the drawer opened. He then took the money out of the drawer and exited the store

. Slightly more than one hundr ed dollars ($100) was taken from the cash re gister.

After the man le ft, a customer entered the store and Pickens told the customer that she “just got robbed.” The cu stomer then wentoutside to a payphone to ca ll 911, while Pickens phoned her husband. The store was equipped with a secur ity camera

which rec ord ed the incident
on vid eo tape. Pickens test ified at t rial that the secu rity video wa s a comple

te and ac curate representationof the events, and t he ta pe wa s a dm it te d i nt o e vi de nc e a nd pl aye d f or th e j ur y. Pickens identified the appellant as the man who robbed the Minute Market.

Officer Tim Horn of the Kingsport Police Department testified that on December 18, 1 999, he was c alle d to the Minute Market “on a complaint of a robbery .” When he arrived at the store, Officer Horn observed fellow off icer, Detective John Blessing, questioning the vi ct im. Alth ough Officer Horn did not talk to the victim, he stated that she appeared “shaken quite a bit and real upset.” Officer Horn testified that while at the Minute Market, he viewed the security video of the robbery

and then made a perimeter searc h of the area surrounding the store.
Approximat

ely two hours later, Officer Horn observed a gree n van with

a Califor nia license plate stop, back up, and go around the block as if try ing to avo id t he police. Officer Horn followedthe van to an alley whe re the officer observed a man w earing a black and white FIL

A sport outfit exit the vehicle. Officer Horn ordered the man to stop, but as he a pproached the man, the

man “jus tturned and took off running.” Office r Horn chased and eventually apprehended the suspec t

. Officer Ho rn id en ti fi ed th e a pp el la nt as th e m an he ar re st ed th at da y. Officer Horn testified that no weap on was found on the ap pellant o r in the g reen va n, nor did h

e observ e the app ell ant thro w anything to the ground during the pursuit. The van belong ed t o the appellan t’s sister who had recently moved to Kingsport from California.

Detective John Blessing of the Kingspo rt Polic e Depart ment testified that on December

18, 1999, he was called

to the Minute Market on West Sullivan Street. When he arrived, Detective Blessing questioned the v ictim and viewed the security video. According to Detective Blessing, thevictim was “upset, frightened, [and] scared.” Detective Blessing testified that when he questioned the victim, she told him tha

t “she believed th at [the rob ber] had s ome sort of weapon under his coat.”

Detective Blessing stated that he was later ca lled to the police department to question
a suspect in the robbery . Detective Blessing identified the appellant as the man he questioned tha t da y. According to Detective Blessing , the appellant was very cooperative and, after signing a waiver of his righ ts, the ap pellant ma

de a stat ement whi ch Dete ctive Bl essing r ecorde d in writing. Detective Blessing testified that he then read the statement back to the appellant, who signed the statement as-3-

accura te after initialing one spelling error. The statement, which was introduced into evidence, rea d as follow s: I

came down t o Kingsport to visit my sister Martha Ha rper. I have been staying wi th her . Mart ha has been h aving a rough time try ing to make ends mee t. I had been to the Mall and I got a ride going towards Riverview. I started walking around. I found

myself down next to the Minu

te M arket. I

decided to go in a

nd rob the

business. I walked in and proceeded to go behind the c ounter and I told th e female t o give me the money out

of the re gister . I ke

pt my hands in my coat as to mak e her be lieve I had a gun o r some thin g. I took the money out of the register and left run ning out of t he store. I don’t know how much I

got but I don’t thin

k it was eve n a $100.0 0 dollars

. I hid out go ing along the ba ck stree ts until I made it to Riverview. While I was in Riverview, the police saw me and

that’s when I took off running. While I

was running, I lost the

money out of my pocket. Detective Blessing testified that the appellant told him that he did not have a weapon when he robbed the store.

Based

upon the foregoingtestimony, the jury convicted the appellant of aggrava ted robbery and imposed a ten thousand dollar ($10,000) fine. The trial court initially sentenced the appellant as a Ra nge III

persistent offender to twenty -eight y ears incarceration beca use the appellant had “five prior Class C convictions.” However, after late r discove ring that one of the robbery convictions was actu ally

a convic tion for so licitation to commit a

robbery thereby reducin g the number of Class C convictions to four, the trial court entered an order setting aside the twe nty-eig ht year sente nce and

granti ng a new sentencing hea ring. At the resentencing hea ring, the trial court found the appe

llant to be a R ange II

multiple offender and sentenced him to twenty years incarceration. The appellant appeals his conviction and sentence, challenging (1) the sufficie ncy of the evidence to support his conviction of armed robbery ; (2) the trial court’s granting of the State’s motion to amend the indictment on the day o f trial; (3) the wording of the trial court’s jury instructions regarding lesser-included offenses; and (4) the sentence imposed by the trial court.
II. Analysis A. Sufficiency

of the Evidence The appellant first

challen ges the

sufficie ncy of the evidence t

o support h

is convic tio n of aggravated robbe

ry. Specifica

lly, the appellant asser

ts that “the evidence adduced at trial f ails to establish bey ond a rea sonable d

oubt that [th

e appell ant] accomplished the robbery by u se of a de adly weapon or any ar

ticle intended to make the victim reasona bly believe that he wa s carry

ing a de adly weapon.” The appellant

contends that

“the evidence, at most, supports a conviction for the lesser included offense of robbery .”

When an app ellan t chal lenges the su ffici ency of the convi cting e vidence, the standard for review b y a

n appella te court is “wheth

er, aft er viewing the e

vidence in the lig ht most fav orable to the prosec ut ion, any rationa l trier of fact could have f

ound the e ssential e

lements of

the crime-4-

beyond a reaso nable

doubt.” Jackson v. V

irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence a nd all
reasona ble or legitimate

inferences which

may be dra

wn therefrom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the cr edibility of

witnesses and the weight and value to be given the evidence, as well as all fa ctual issues raised by the

evidence, are resolved by the trier of fact. Id. This court will not reweigh or reevaluate the evidence. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Because a jury conviction removes the presumption of innocence with which a defendan t is initially cloaked at trial and re places it on appeal with one of guilt, a convicted defendant has the burden of demonstrat ing to thi s c ourt that the evidence is insufficient. State v. Tuggl e , 639 S.W.2d 913, 914 (Tenn. 1982).

Robbery is defined as “the intentional or knowing theft of property from the person of another by violenc e or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (1997). As relevant to th e c ri me ch ar ge d i n t hi s c as e, ag gr av at ed ro bb er y is ro bb er y “ [a]ccomplished with a deadly weapon or by

display of

any article used or f ashioned to lead the victim to reasonably believe it to be a de adly

weapon.” Tenn. Code Ann. § 39-13-4 02(a)( 1) (1997) . The app ellant as serts tha t, basedupon the evidence, thevictim could not have reasonably believed that the appellant possessed
a weapon. According

to the appellant, the evidence showed only that the appellant demanded money while pla cing hishand insid

e his jacket. I

n support o f his arg

ument, the

appella nt cites to Statev. Da ryl Anth ony

Jemis on , No. 01C01-9303-CR-00107, 1994 Tenn. Crim. App. LEXI S 199, at *6 (Nashville, Mar. 31, 1994), in which this co urt stat ed, “We have reservations about a hand in a jacket, withoutmore, supporting a conclusion bey onda reasonable doubt that there was a ‘display of [an] artic le used or f

ashioned to lead the victim to

reasonably

believe it to be a deadly

weapon.’”

J emison in volved an aggravated robbery in whic h the defendant broke into an apartment and, with his hand in side his ja

cket, or dered th e victim to

go into th e bathro om and re

main there until he was gone. Id. at **2-3. The victim testified that she believed that the defendant had a weapo n and that

“he told h

er to be quiet or he would shoot her.” Id. at *3. Alth ough expressing skepticis m that a hand in a jacket alone wouldbe sufficient to convict the defendant of ag gravated
ro bb er y, this court upheld the aggravated r obbery conviction, finding that “the jury wa s entitled t o conclude beyond a re asonable doubt that the d efenda nt possess ed a dea

dly weapon from the manner in which the defendant had his hand in the jacket and his threat to shoot [the victim].” Id. at *6. The appellant contends that the facts in Jemison are “r eadily distinguishable” from the facts in the present
case. The appellant

states tha t the def endant in Jemison kept his hand in his pocket and threatened “to shoot” the victim, butin the present case, “the appellant made no stateme nts about a weapon before, during, or after placing his hand in his pocket.” The State, on the other hand, contends that the evidence in the present case “wa s stronger than the evidence presented in [ Jemison ].” We find the two cases to be indistinguishable.

In Jemison , the defendant kept his hand in his jacket while threatening “to shoot” the victim. Id. at *3. I

n the pre sent cas e, Picken s testifie d that the appella nt had an o

bject und er his jacket which he pointed at Pickens while ordering he r to “open the drawer

or I’ll kill y ou.” There is only a slight differ

ence in the wording of the threats. While the word “shoot” obviously led the1 Arizo na R evised Statute se ction 1 3-19 04( A) (2 001 ) pro vides that: A pers on commits armed robbe ry if, in t he course of

committ ing robbery

. . . , s uch person or an a ccomplice: (1) I s ar med wit

h a deadl y wea pon or a s imul ated deadly weapon; or (2) Use s or thre atens to use a deadl y wea pon or dangerous i nstrument or a s imulated deadly weapon.

Geo rgia C ode Anno tated se ction 1 6-8-4 1 (2 002 ) pro vides that:

(a) A person comm its t he offense of armed robbery when, with i ntent to c omm it theft, he or she take s pro perty of anoth er fr om the person or the i mmediate pres ence of an other

by use of an offens ive weapon, or any replica, article, or device having the appearance of such weapon.
Michigan Com piled Laws section 750.529 (200 2) defines armed robbery as robbery “with a dang erous
w eapon, or any art

icle used or f

ashioned i n a manner t o lead th e person so as saulted to reas onably bel ieve i t to be a dan gero us wea pon .”

2 Th e mo tion to amend the i ndictment was fi led on September 22, 2000, thr ee days bef ore tri al. On September 25, 2000 , the t

rial court hear d the motion prior to jury s election.
-5- victim in Jemison to believe that the defendan t had a g un, we have no doubt that the appellant’s threat to “kill” Pic

kens could have led Pickens to believe that the appellant was holding a wea pon under his jacket. As in Jemison , we conclude in the instant ca se that “ [t]he jury

was entit led to
accre dit the [appellant’s] threat and to infer from it and his hand positioning that he was armed.” Id. at *6.

In determining the ev id en ce ne ce ss ar y to es ta bl is h a ggr av at ed ro bb er y, the appellant also asks this court

to consider the aggravated robbe ry statutes of Arizona, Ge orgia, and Michigan, which the appellant

asserts are similar to that of Tennessee. 1 Accord ing to the appella nt, these states “have made specific findings as to the ty pe of evidence required to establish the offense of aggravated

robbery .” However, bec ause our law isclear on the matter, we see no need to look to the law of oth

er state s.
B. Amendment of the Indictment

The appellant next contends that the trial court erred in granting the

State’s motion to amendthe indictment on the day of trial. 2 Prior to the amendment, the indictment charged that on December 18, 1999, the appellant

didunlawf

ul ly, feloniou sly , intentionally, knowingly , by violence a nd by the use of an article used and fashioned to lead Ma rgie R. Pickens to reasona

bly believe it to be a d

eadly weapon, obtain ap

proximatel

y $100 in U.S. currency

owned by

Store No. 4 of Minute Markets, Inc., a corporation, from the person of Margie R. Pickens, by

placing the
sa id Margie

R. Pickens in fear, without the effective consent of the
owner and with the intent to deprive the owner there of, contrary to3 W e note that the ap pellan t did no t reque st a con tinuanc e follow ing the a men dme nt of the ind ictmen t.
-6- Tennessee Code Annotated, Section 39-13-402, a Class B felony , and . . . [a]gainst the peace and dignity of the State of Tennessee. The State moved to amend the indictment by deleting the words “by

violence and by

the use” and inserting the words “by

the display.” The tria

l court granted the State’s motion over the appellant’s objection that the amendment “change[d] the factual theory of the State’s proof.”

The United States and the Tennessee Constitutions require that an indictment inform the accused of “the natur

e and ca use of the accusa tion.” U. S. Const. ame nd. VI; Tenn. Con st. art. I, § 9. An indictment satisfies the c onstituti onal requirement of notice “if it provides sufficient information (1) to enable the accused to know the ac cusation to which a nswer is r equired , (2) to furnish the court ad

equate b asis for t

he entry of a prop er judg ment, and (3) to pr otect the accuse d from double jeopardy.” State v. Hill , 954 S.W.2d 725, 727 (Tenn. 1997); Tenn. Code Ann. § 40-13- 202 (1997).

Rule 7(b) of the Tennessee Rules of Criminal Procedure provides that an indictment may be amended

in all cases w ith the co nsent of t he defe ndant. Ho wever, where a

defenda nt object s to an amendment, the trial court may permit the amendment only “if no additional or different offense is charged, no substantial rights of the defe ndant are prejudi ced, and jeo pardy has not attached.” State v. Kirkland , 696 S.W.2d 5 44, 545 (Tenn. Crim. App. 1985 ); Tenn. R . Crim. P. 7(b). In a jury trial, jeopardy a

ttaches when the jury

is sworn. State v. Pennington , 952 S.W.2d 420, 422 (Tenn. 1997). The decision to grant or deny a motion to amend an indictm ent is left to the sound discretion of the trial court, and this court will not alter that decision unless such discretion was abused. Kirkland , 696 S.W.2d at 545.

On appeal, the appellant argues that he is entitled to a new trial bec ause the amendme nt prejud iced his rights by a

bsolving the State of proving the elements of “violence ” and “use.” The appellant claims that, bec ause his “def ense would have [] focused upon defending agains tthe allegation of ‘violence,’ and the actual use, rather than display , of such an article[,]” the trial court should have either denied the State’s motion to amend o r continu ed the tr

ial in orde

r to provide the appellant time to prepare a proper def ense based upon the amended indictmen

t. 3 The State asserts that “a reviewof the [aggravated robbery ] statute reveals that the amendment neither changed the offense cha

rged nor affected the

substantial rights of the [appellant].” We agree.

As p re viously noted, agg ravated robbery

is defined, in pertinent part, as robbery “[a]ccomplished with a deadly we apon or by display of any ar ticle used or fashion ed to lead the victim to reasonabl y believe it to be a de adly wea pon.” Tenn. Code Ann. § 39-13-402(a)(1). To establish robbery, the

State was required to prove beyond a reasonable doubt that the appellant obtained the money from the pe rson of another by violenc e or

putting the person in fear, not both. Tenn. Code Ann. § 39-13-401(a). Therefore, the deletion of the phrase “by violence” in the amended indictmentdid not pre

judice the appell a nt beca use the original indictment also alleged that the appellant obtained the money

“by placing the said M argie

R. Pi ckens in fe ar.” The State was not-7-

required to prove “violence.” Furthermore, in granting the motion to amend the indictment, the trial court noted that the evidence presented at the suppression hearing made it clear that

the State was not relying on a

theory of “ violence.”

To elevate robbery

to aggravated robbe

ry, the lang

uage in the ori ginal i ndictment providedthat the robbery was accomplished “by

the use of an article used and f a shioned to lead Margie R. Pickens to reasonably be lieve it to be a deadly

weapon.” Theamended language a lleged that the robbery

was accomplished “by

the display” of such a

n article. The State contends that the “amendment

merely conf

ormed the language of the indictment to the lang uag e of t he sta tute. ” We agree. Regardless, theoriginal indictment referenced the statute defining the offense of agg

ravated robbery and, therefore, was sufficient to place the appellant on notice of the charged offense. State
v. Hammonds , 30 S.W.3d 294, 300 (Tenn. 2000) (noting that “recent decisions of

this C ourt hold[] that an in dictment which references the statute def ining the offense is sufficient and satisfies the constitutional and statutory requir ements of Hill ”). We co nclude th at the app ellant was not prejudic ed by

the amendment of th

e indictme

nt. This iss ue is without merit.
C. Jury I nstructions Next, the appellant challenges the wording of the trial cour

t’ s j ur y i nstructions regarding lesser-included

of fe ns es . S pe ci fi ca ll y, t he ap pe ll an t a rg ue s t ha t, in in st ru ct in g t he ju ry, the trial court did not specify that the offenses of robbery

and theft under five hundred dollars ($500)
were “lesser

-include d offens es” of a

ggra vate d ro bbery. The

State contends that the trial court pr op er ly i ns tr uc te d t he ju ry.

In Tennessee, “ a defendant has a right to a correct and c omplete charge of the law,
so that each issue of

fact raised by

the evidencewill be submitted to the jury on proper instructions.” Statev. Garrison , 40 S.W.3d 426, 432 (Tenn. 2000). We review a jury cha rge to determine whether it fairly submitted the leg al issues involved and did not mislead the jury. State v. Hodges , 9 44 S.W.2d 346, 352 (Tenn. 1997).

In charg ing the j u ry , the tria l court inf ormed the

jury that “[i]n Cou

nt I of this case you ar e c ha rg in g t hr ee ch ar ge s a ga in st th e d ef en da nt , A ggr av at ed Ro bb er y, R ob be ry, Theft Under Five HundredDollars ($500.00). You cannot find the defendant guilty of more than one offense. Y ou may, howeve

r, find the defendant not guilty of all offenses.” Thereafter , the trial cour t inst ru ctedthe jury as to the ele ments of the indicted offense and each lesser -included offense. Following the instruction on each offense, the trial court further instructed the jury, “I

f, however, y ou have a reasonable doubt as to the defendant’s guilt of [insert offense] then y our verdict must be not guilty as to [that o ffense ] and y ou shall pr oceed to determine whether the defendant is g uilty or not guilty of [next offense].” During deliberations, the jury submitted the following question to the trial court, “What is the minimum and maximum prison time sentences for(1) Aggravated Robbery, (2) Robbery.” The trial court responded, “The Court cannot instruct you as to any

possible sentence for an offense. Such information is not relevant to the determination of g uilt or innocence.”-8- The appellant

contends that, pursuant to Tennessee Pattern Jury Instruction 41.01, the following jury instruction should be give n when the offense charged c ontains more than one lesserincluded offense:

If you have a

reasonable doubt as to the defendant’s g uilt of [inser t offense charged] as char

ged in [count __ of] the indictment, then your verdict must b e not gu ilty

as to this of

fense, a nd then y

ou shall proceed to determine [his][her] guilt or i nnocen ce of the lesser included offense

of [in sert next le sser

inclu ded o ffen se in o

rder ]. (footnote omitted) (emphasis added). However, contra ry to the appellant’s argument, pattern jury instructions are “merely

pattern s or suggestions” and, as su ch, tria l courts a re not required to

recite their language. Hodges , 944 S.W.2d at 354.

The State asserts that

the trial court prope rly inst ructed the ju ry, citin g State v. Deandrade

Phillips , No. E200 0-00153- CCA-R3-CD , 2001 Ten n. Crim. App . LE XIS 190, (Knoxville, Mar. 15, 2001), in which this court uph eld si mi lar , i f no t i den ti cal , j ury i nst ruc ti ons . In Phillips , this court concluded that “the trial court’s instructions were clear, accurate, and compl ete and [we] do not believe that the jury w as confused by the included off

enses not being described as lesser included.” Id. at

*20. Although the appellant acknowledge s our holding in Phillips , he claims that the present case is distinguishable in that the in structions in the present case clearly confused the jury, as evide

nced by the jury ’s question to the trial court. We disagree.

We do not find the jury instruct ions conf usi ng or misleading. First, the trial court instructed the jury

on all three offenses and further instructed that it could convict the appellant of only one offe nse or it could acquit the appellant of all offenses. Second, the trial court instructed the jury as to the elements of each offense and clearly instructed that if

there was reasonable doubt as to one offense, the jury

was required

to find the appellant not guilty a s to that offense and move on to the next offense. Finally , in response to the jury’ s question, the trial court informed the jury that the potential sentences were irrelevant in deter mining guilt or innocence. We conclude that the trial court did not err in instructing the jury

. D. Sentencing Fi na ll y, the appellant argues that the s entence imposed by

the trial court was excessive. Specifically, the appella nt contends that he

should not h ave bee

n sentenc ed to twen

ty yearsincarceration, the maximum sentence for a Rang e II offender convicted of

a Class B f

el on y. At the initial sentencing hearing, the e vidence presented consisted of the presentenc e report, a copy of t he appellant’s prior convictions, and a copy of the statement the appellant made to D etectiv e Bless ing. At

the resentencing hearing , the parties presented argument, but otherwise reliedupon the evidence present

ed at the initial he aring. Based o n this in formation, t he trial court applied three enhancement

factors to which it afforded great we ight, i.e., that the appellant had a prior history of criminal behavior, that the appellant had an unwillingness to comply with sentences involving
re lease into the community, and that the appellant committed the instant offe nse while on parole. Tenn. Code Ann. § 40-35-1 14(1), ( 8), and ( 13) (Supp . 2001). A s a mitigating factor, the trial court considered

the appellant’s voluntary

confession of guilt. Tenn. Code Ann. § 40-35-113(13) (1997).-9-

However, the trial

court did not afford this factor enough weig ht to reduce the appellant’s sentence because the appellant

testified during an offer of proof a t trial thatDetective Blessing, who recor ded the state ment in wr

iting, “ made up”part of th e stateme nt.

When an appellant challenges the leng th, range, or manner of servic e of a sentence, it is the duty of this court to conduct a de novo re view with a presumption that the determinations made by the trial

court ar e correct. Tenn . Code Ann . § 40-35- 401(d) ( 1997). Ho wever, this presumption of correctness is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstance s.” Statev. Ashby , 823 S. W.2d 166, 169 ( Tenn. 199 1). The burden is o n the appe llant to sho w that the

sentenc e is improper . Tenn. Co de Ann. § 4 0-35-401 , Sentenc ing Commis sion Commen ts.

In conducting our r

eview, th is court mu st

consider (1) theevidence, if any , received at trial and at the sentencing hearing ; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to the sentenc ing alte

rnative s; (4) the nature and characte ristics of the offense s; (5) an

y mit igating or enhan cementsfactor s; (6) an

y st atementsmade by

the appellant
on his own behalf; and (7) the appellant’s potential for reha bilitation or treatment. Tenn. Code Ann. § 40-35-1 02 and -1 03 (1997) , -210 (Su pp. 2002) ; see also Ashby , 823 S.W.2d at 168.

The presumptive sentenc e for a Cl ass B fe lony is the minimu

m within the

applica ble range if there

are no e nhance ment or mit

igating factor s. Tenn. Code Ann. § 40-35-210(c). I f the trial court finds that such factors do exist, the court must start at the presumptive sentence, enhance the sentence within the range as appropriate for the enhancement fa ctors, and then reduce

the sentence within the rang e as appr

opriate for the mi

tigating factor s. Tenn. Code Ann. § 40-35-210(e). There is no mathematical formula for valuating factors to calculat e the appropriate sentence. State v. Boggs , 932 S.W .2d 46 7, 475 (Tenn. Crim. App. 1996). “Rather, the weight to be af forded an existing factor is left to the trial court’s discretion so longas the court complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the record.” Id. at 475-76.

In challenging the length of his sentence, the appellant first asserts that the trial court erred in applying e

nhancement factor (13), i.e., that the felony wa s committed while the appellant
was on parole. Tenn. Code Ann. § 40-35-114(13). The appellant arg ues that, in applying

this factor, the trial court relied only on the presentence report, “[no] fugitive warra nt nor any other r ecord substantiating this allegation was introduced [at sentencing].” Contrary to the app ellant’sargume nt, the trial court is required to consider the presentence report in sentencing a defenda nt. Tenn. Code Ann. § 40-35-2 10(b)(2 ). Moreo ver, the appella nt had the

right to challen ge the in formatio n containedin the presentence report at either of the two sentencing hearing s by presenting evidence to the contrary , but the appellant presented no such evidence. Tenn. Code Ann. § 40-35-209(b) (Supp. 2002) . Ins tead, at the initia

l sentenc ing hea

ring, th e appell ant throu gh coun sel mere ly objectedto the trial court’s application of enhancement factor (13), arguing that “[t]here’s no rea l proof before the Court of what his status is. . . . They could have discharged him. He could have earned enough sente

ncin g cr editssomehow. We

don’t know Illinois law.” Rather than specula te,-10-

the appellant should have produced evidence demonstra ting that he had served his sentence for the prior convicti on and, therefor

e, was not on parol e at the time of his a rrest in t he in stant case. See Statev. Johnny Benard Jones , No. 02C01-9801-CC-000 26, 1998 Tenn. Crim. App. LEXI S 1292 (Jackson, Dec. 21, 1998). We f ind the tri al court

didnot err in considering the only evidence

before it regarding enhance

ment factor (13).

The appell ant also co ntends tha t, if this c ourt find s that the t rial cou rt erre d in applying enhancement factor (13), the pre sence of only two enhanc ement factors, (1) and (8), is not sufficient to sentence the appella

nt to the maximum sentence. Because we have dete rmined that the trial court pr

operly enhanc ed the ap

pellant’ s sentenc e in resp ect to fa ctor (13 ), this ar

gument i s moot.
Next, the appellant asserts that “his c ooperat

ion was su

bstantial in volunta

rily admitting to his involvement in the crime, which provided great assistance to the authorities.” The appellant claim s that , based on his voluntary conf ession, he is “entitled to a downward departure from his sentence.” We disagree. As previo usly noted, “t he weig ht to be afforded an existing factor is left to the trial court’s discretion so long as the court complies with the purposes and princ iples of the 1989 Se

ntencing Act

and its findings are adequately supported by the record.” Boggs , 932 S.W.2d at 475-76 . The tria l court det ermined that it would not afford the appellant’s voluntary confession eno ugh weight to reduce his sentence bec ause the appellant alleged that Detective Blessing “made up ” the par t of the c onfessio n which sta ted that th

e appell ant “kept [his] hands i n [his] coat as to make her believe [he] had a gun or something.” Additionally, the trial court noted that the appellant had little to lose by confessing because the entire c rime had been recorded

by the store’s security

video ca mera. We

find that t

he trial c ourt prop erly

exercise d its discr

etion in afford ing the m itigating fact

or little o r no weig ht.

Fi na ll y, th e appellant argues that the trial court should have c onsidered statutory mitigating factor (1) in determining the appropria te sent ence, i. e., that the appellant’s conduct neither caused nor thre atened serious bodily injury . Tenn. Code Ann. § 40-35-113(1). According to the appella nt, “[s]ince the proof was insubstant ial t hat [the] appellant possessed a weapon, the verbal threats alone should not constitute a threat of serious bodily

injury.” However, the appellant cites
no authority

in support of this argument. Even assuming that the trial court should have considered this mitigating factor, the trial court was within i ts discretion in affording great we ight to the
a ppellant’s criminal history, the appellant’ s unwillingness to comply with sentence s inv olvin g releas e into the community, and the fact that the a ppellant committed

the instan

t offens e while on parole. Boggs , 932 S.W.2d at 475-76. Thus, we cannot conclude that the trial co urt imp roperly sentenc ed the ap

pellant.

III. Conclusion Based upon the foregoing , we affirm the judgment of the trial court.

___________________________________-11- NORMA McGEE OGLE, JUDGE