IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 21, 2002

STATE OF TENNESSEE 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 appellant, Melvin L. Harper, was convicted by a jury in the Criminal Court of Sullivan County

of aggravated robbery, a Class B felony. The appellant was sentenced as a Range II multiple

offender to twenty years incarceration in the Tennessee Department of Correction. On appeal, the

appellant challenges: (1) the sufficiency 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 of trial; (3) the

wording of the trial court’s jury instructions regarding lesser-included offenses; and (4) the sentence

imposed by the trial court. After a careful review of the record and the parties’ briefs, we affirm the

judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T. WOODALL and

JOHN EVERETT WILLIAMS, JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); Leslie S. Hale, Blountville, Tennessee (at

trial), for the appellant, Melvin L. Harper.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;

H. Greeley Wells, Jr., District Attorney General; and Barry P. Staubus and William B. Harper,

Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On December 18, 1999, Margie Pickens was working at the Minute Market on West

Sullivan Street in Kingsport, Tennessee. Pickens had worked for the company for twenty years 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 “FILA” on it entered the store and proceeded to walk around the

counter. There were no other customers in the store. Pickens thought the man wanted to purchase

tobacco from the rack behind the counter and asked the man if she could assist him. Instead, the man

approached Pickens at the cash register and told her to “open the drawer or I’ll kill you.” According
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to Pickens, the man “had something under 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 began punching the keys on the cash

register until the drawer opened. He then took the money out of the drawer and exited the store.

Slightly more than one hundred dollars ($100) was taken from the cash register.

After the man left, a customer entered the store and Pickens told the customer that

she “just got robbed.” The customer then went outside to a payphone to call 911, while Pickens

phoned her husband. The store was equipped with a security camera which recorded the incident

on video tape. Pickens testified at trial that the security video was a complete and accurate

representation of the events, and the tape was admitted into evidence and played for the jury.

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,

1999, he was called to the Minute Market “on a complaint of a robbery.” When he arrived at the

store, Officer Horn observed fellow officer, Detective John Blessing, questioning the victim.

Although 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 search of the area surrounding the store. 

Approximately two hours later, Officer Horn observed a green van with a California

license plate stop, back up, and go around the block as if trying to avoid the police. Officer Horn

followed the van to an alley where the officer observed a man wearing a black and white FILA sport

outfit exit the vehicle. Officer Horn ordered the man to stop, but as he approached the man, the man

“just turned and took off running.” Officer Horn chased and eventually apprehended the suspect.

Officer Horn identified the appellant as the man he arrested that day. Officer Horn testified that no

weapon was found on the appellant or in the green van, nor did he observe the appellant throw

anything to the ground during the pursuit. The van belonged to the appellant’s sister who had

recently moved to Kingsport from California.

Detective John Blessing of the Kingsport Police Department testified that on

December 18, 1999, he was called to the Minute Market on West Sullivan Street. When he arrived,

Detective Blessing questioned the victim and viewed the security video. According to Detective

Blessing, the victim was “upset, frightened, [and] scared.” Detective Blessing testified that when

he questioned the victim, she told him that “she believed that [the robber] had some sort of weapon

under his coat.”

Detective Blessing stated that he was later called to the police department to question

a suspect in the robbery. Detective Blessing identified the appellant as the man he questioned that

day. According to Detective Blessing, the appellant was very cooperative and, after signing a waiver

of his rights, the appellant made a statement which Detective Blessing recorded in writing. Detective

Blessing testified that he then read the statement back to the appellant, who signed the statement as
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accurate after initialing one spelling error. The statement, which was introduced into evidence, read

as follows:

I came down to Kingsport to visit my sister Martha Harper. I have

been staying with her. Martha has been having a rough time trying to

make ends meet. 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 Minute Market. I decided to go in and rob the business.

I walked in and proceeded to go behind the counter and I told the

female to give me the money out of the register. I kept my hands in

my coat as to make her believe I had a gun or something. I took the

money out of the register and left running out of the store. I don’t

know how much I got but I don’t think it was even a $100.00 dollars.

I hid out going along the back streets 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 foregoing testimony, the jury convicted the appellant of aggravated

robbery and imposed a ten thousand dollar ($10,000) fine. The trial court initially sentenced the

appellant as a Range III persistent offender to twenty-eight years incarceration because the appellant

had “five prior Class C convictions.” However, after later discovering that one of the robbery

convictions was actually a conviction for solicitation to commit a robbery thereby reducing the

number of Class C convictions to four, the trial court entered an order setting aside the twenty-eight

year sentence and granting a new sentencing hearing. At the resentencing hearing, the trial court

found the appellant to be a Range II multiple offender and sentenced him to twenty years

incarceration. The appellant appeals his conviction and sentence, challenging (1) the sufficiency 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 of 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 appellantfirst challenges the sufficiency of the evidence to support his conviction

of aggravated robbery. Specifically, the appellant asserts that “the evidence adduced at trial fails to

establish beyond a reasonable doubt that [the appellant] accomplished the robbery by use of a deadly

weapon or any article intended to make the victim reasonably believe that he was carrying a deadly

weapon.” The appellant contends that “the evidence, at most, supports a conviction for the lesser

included offense of robbery.”

When an appellant challenges the sufficiency of the convicting evidence,the standard

for review by an appellate court is “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime
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beyond a reasonable doubt.” Jackson v. Virginia, 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 and all

reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value

to be given the evidence, as well as all factual 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

defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted

defendant has the burden of demonstrating to this court that the evidence is insufficient. State v.

Tuggle, 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 violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (1997). As

relevant to the crime charged in this case, aggravated robbery is robbery “[a]ccomplished with a

deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe

it to be a deadly weapon.” Tenn. Code Ann. § 39-13-402(a)(1) (1997). The appellant asserts that,

based upon the evidence, the victim 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 placing his hand inside his jacket. In support of his argument, the appellant cites to State v.

Daryl Anthony Jemison, No. 01C01-9303-CR-00107, 1994 Tenn. Crim. App. LEXIS 199, at *6

(Nashville, Mar. 31, 1994), in which this court stated, “We have reservations about a hand in a

jacket, without more, supporting a conclusion beyond a reasonable doubt that there was a ‘display

of [an] article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon.’”

Jemison involved an aggravated robbery in which the defendant broke into an

apartment and, with his hand inside his jacket, ordered the victim to go into the bathroom and remain

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

a weapon and that “he told her to be quiet or he would shoot her.” Id. at *3. Although expressing

skepticism that a hand in a jacket alone would be sufficient to convict the defendant of aggravated

robbery, this court upheld the aggravated robbery conviction, finding that “the jury was entitled to

conclude beyond a reasonable doubt that the defendant possessed a deadly 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 “readily distinguishable” from the facts in the present

case. The appellant states that the defendant in Jemison kept his hand in his pocket and threatened

“to shoot” the victim, but in the present case, “the appellant made no statements 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 “was 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. In the present case, Pickens testified that the appellant had an object under his

jacket which he pointed at Pickens while ordering her to “open the drawer or I’ll kill you.” There

is only a slight difference in the wording of the threats. While the word “shoot” obviously led the
1

 Arizona Revised Statute section 13-1904(A) (2001) provides that:

A person commits armed robbery if, in the course of committing robbery . . . , such

person or an accomplice:

(1) Is armed with a deadly weapon or a simulated deadly weapon; or

(2) Uses or threatens to use a deadly weapon or dangerous instrument or a simulated

deadly weapon.

 Georgia Code Annotated section 16-8-41 (2002) provides that:

(a) A person commits the offense of armed robbery when, with intent to commit

theft, he or she takes property of another from the person or the immediate presence

of another by use of an offensive weapon, or any replica, article, or device having

the appearance of such weapon.

 Michigan Compiled Laws section 750.529 (2002) defines armed robbery as robbery “with a dangerous

weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a

dangerous weapon.”

2

 The motion to amend the indictment was filed on September 22, 2000, three days before trial. On September

25, 2000, the trial court heard the motion prior to jury selection.

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victim in Jemison to believe that the defendant had a gun, we have no doubt that the appellant’s

threat to “kill” Pickens could have led Pickens to believe that the appellant was holding a weapon

under his jacket. As in Jemison, we conclude in the instant case that “[t]he jury was entitled to

accredit the [appellant’s] threat and to infer from it and his hand positioning that he was armed.”

Id. at *6.

In determining the evidence necessary to establish aggravated robbery, the appellant

also asks this court to consider the aggravated robbery statutes of Arizona, Georgia, and Michigan,

which the appellant asserts are similar to that of Tennessee.1 According to the appellant, these states

“have made specific findings as to the type of evidence required to establish the offense of

aggravated robbery.” However, because our law is clear on the matter, we see no need to look to the

law of other states.

B. Amendment of the Indictment

The appellant next contends that the trial court erred in granting the State’s motion

to amend the indictment on the day of trial.2 Prior to the amendment, the indictment charged that

on December 18, 1999, the appellant

did unlawfully, feloniously, intentionally, knowingly, by violence and

by the use of an article used and fashioned to lead Margie R. Pickens

to reasonably believe it to be a deadly weapon, obtain approximately

$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

said Margie R. Pickens in fear, without the effective consent of the

owner and with the intent to deprive the owner thereof, contrary to
3

 We note that the appellant did not request a continuance following the amendment of the indictment.

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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 trial 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 nature and cause of the accusation.” U.S. Const. amend. VI; Tenn. Const. art.

I, § 9. An indictment satisfies the constitutional requirement of notice “if it provides sufficient

information (1) to enable the accused to know the accusation to which answer is required, (2) to

furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the accused

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 with the consent of the defendant. However, where a defendant objects

to an amendment, the trial court may permit the amendment only “if no additional or different

offense is charged, no substantial rights of the defendant are prejudiced, and jeopardy has not

attached.” State v. Kirkland, 696 S.W.2d 544, 545 (Tenn. Crim. App. 1985); Tenn. R. Crim. P. 7(b).

In a jury trial, jeopardy attaches 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 indictment 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 because the

amendment prejudiced his rights by absolving the State of proving the elements of “violence” and

“use.” The appellant claims that, because his “defense would have [] focused upon defending

against the 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 or continued the trial in order to

provide the appellant time to prepare a proper defense based upon the amended indictment.3

 The

State asserts that “a review of the [aggravated robbery] statute reveals that the amendment neither

changed the offense charged nor affected the substantial rights of the [appellant].” We agree.

As previously noted, aggravated robbery is defined, in pertinent part, as robbery

“[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead the

victim to reasonably believe it to be a deadly weapon.” 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 person of another by violence 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

indictment did not prejudice the appellant because the original indictment also alleged that the

appellant obtained the money “by placing the said Margie R. Pickens in fear.” The State was not
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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 robbery, the language in the original indictment

provided that the robbery was accomplished “by the use of an article used and fashioned to lead

Margie R. Pickens to reasonably believe it to be a deadly weapon.” The amended language alleged

that the robbery was accomplished “by the display” of such an article. The State contends that the

“amendment merely conformed the language of the indictment to the language of the statute.” We

agree. Regardless, the original indictment referenced the statute defining the offense of aggravated

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 Court hold[]

that an indictment which references the statute defining the offense is sufficient and satisfies the

constitutional and statutory requirements of Hill”). We conclude that the appellant was not

prejudiced by the amendment of the indictment. This issue is without merit.

C. Jury Instructions

Next, the appellant challenges the wording of the trial court’s jury instructions

regarding lesser-included offenses. Specifically, the appellant argues that, in instructing the jury, the

trial court did not specify that the offenses of robbery and theft under five hundred dollars ($500)

were “lesser-included offenses” of aggravated robbery. The State contends that the trial court

properly instructed the jury.

In Tennessee, “a defendant has a right to a correct and complete charge of the law,

so that each issue of fact raised by the evidence will be submitted to the jury on proper instructions.”

State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). We review a jury charge to determine whether

it fairly submitted the legal issues involved and did not mislead the jury. State v. Hodges, 944

S.W.2d 346, 352 (Tenn. 1997).

In charging the jury, the trial court informed the jury that “[i]n Count I of this case

you are charging three charges against the defendant, Aggravated Robbery, Robbery, Theft Under

Five Hundred Dollars ($500.00). You cannot find the defendant guilty of more than one offense.

You may, however, find the defendant not guilty of all offenses.” Thereafter, the trial court

instructed the jury as to the elements of the indicted offense and each lesser-included offense.

Following the instruction on each offense, the trial court further instructed the jury, “If, however, you

have a reasonable doubt as to the defendant’s guilt of [insert offense] then your verdict must be not

guilty as to [that offense] and you shall proceed to determine whether the defendant is guilty 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 guilt or innocence.”
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The appellant contends that, pursuant to Tennessee Pattern Jury Instruction 41.01, the

following jury instruction should be given when the offense charged contains more than one lesserincluded offense:

If you have a reasonable doubt as to the defendant’s guilt of [insert

offense charged] as charged in [count __ of] the indictment, then your

verdict must be not guilty as to this offense, and then you shall

proceed to determine [his][her] guilt or innocence of the lesser

included offense of [insert next lesser included offense in order].

(footnote omitted) (emphasis added). However, contrary to the appellant’s argument, pattern jury

instructions are “merely patterns or suggestions” and, as such, trial courts are not required to recite

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

The State asserts that the trial court properly instructed the jury, citing State v.

Deandrade Phillips, No. E2000-00153-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 190,

(Knoxville, Mar. 15, 2001), in which this court upheld similar, if not identical, jury instructions. In

Phillips, this court concluded that “the trial court’s instructions were clear, accurate, and complete

and [we] do not believe that the jury was confused by the included offenses not being described as

lesser included.” Id. at *20. Although the appellant acknowledges our holding in Phillips, he claims

that the present case is distinguishable in that the instructions in the present case clearly confused

the jury, as evidenced by the jury’s question to the trial court. We disagree.

We do not find the jury instructions confusing 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 offense 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 as 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 determining guilt or innocence. We conclude that the trial

court did not err in instructing the jury. 

D. Sentencing

Finally, the appellant argues that the sentence imposed by the trial court was

excessive. Specifically, the appellant contends that he should not have been sentenced to twenty

years incarceration, the maximum sentence for a Range II offender convicted of a Class B felony.

At the initial sentencing hearing, the evidence presented consisted of the presentence report, a copy

of the appellant’s prior convictions, and a copy of the statement the appellant made to Detective

Blessing. At the resentencing hearing, the parties presented argument, but otherwise relied upon the

evidence presented at the initial hearing. Based on this information, the trial court applied three

enhancement factors to which it afforded great weight, i.e., that the appellant had a prior history of

criminal behavior, that the appellant had an unwillingness to comply with sentences involving

release into the community, and that the appellant committed the instant offense while on parole.

Tenn. Code Ann. § 40-35-114(1), (8), and (13) (Supp. 2001). As a mitigating factor, the trial court

considered the appellant’s voluntary confession of guilt. Tenn. Code Ann. § 40-35-113(13) (1997).
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However, the trial court did not afford this factor enough weight to reduce the appellant’s sentence

because the appellant testified during an offer of proof at trial that Detective Blessing, who recorded

the statement in writing, “made up” part of the statement.

When an appellant challenges the length, range, or manner of service of a sentence,

it is the duty of this court to conduct a de novo review with a presumption that the determinations

made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). However, 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 circumstances.” State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). The burden is on the appellant to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

In conducting our review, this court must consider (1) the evidence, 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 sentencing alternatives; (4) the nature and characteristics of

the offenses; (5) any mitigating or enhancements factors; (6) any statements made by the appellant

on his own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann.

§ 40-35-102 and -103 (1997), -210 (Supp. 2002); see also Ashby, 823 S.W.2d at 168.

The presumptive sentence for a Class B felony is the minimum within the applicable

range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If 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 factors, and then reduce the sentence

within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). There

is no mathematical formula for valuating factors to calculate the appropriate sentence. State v.

Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). “Rather, the weight to be afforded an

existing factor is left to the trial court’s discretion so long as 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 enhancement factor (13), i.e., that the felony was committed while the appellant

was on parole. Tenn. Code Ann. § 40-35-114(13). The appellant argues that, in applying this factor,

the trial court relied only on the presentence report, “[no] fugitive warrant nor any other record

substantiating this allegation was introduced [at sentencing].” Contrary to the appellant’s argument,

the trial court is required to consider the presentence report in sentencing a defendant. Tenn. Code

Ann. § 40-35-210(b)(2). Moreover, the appellant had the right to challenge the information

contained in the presentence report at either of the two sentencing hearings by presenting evidence

to the contrary, but the appellant presented no such evidence. Tenn. Code Ann. § 40-35-209(b)

(Supp. 2002). Instead, at the initial sentencing hearing, the appellant through counsel merely

objected to the trial court’s application of enhancement factor (13), arguing that “[t]here’s no real

proof before the Court of what his status is. . . . They could have discharged him. He could have

earned enough sentencing credits somehow. We don’t know Illinois law.” Rather than speculate,
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the appellant should have produced evidence demonstrating that he had served his sentence for the

prior conviction and, therefore, was not on parole at the time of his arrest in the instant case. See

State v. Johnny Benard Jones, No. 02C01-9801-CC-00026, 1998 Tenn. Crim. App. LEXIS 1292

(Jackson, Dec. 21, 1998). We find the trial court did not err in considering the only evidence before

it regarding enhancement factor (13).

The appellant also contends that, if this court finds that the trial court erred in

applying enhancement factor (13), the presence of only two enhancement factors, (1) and (8), is not

sufficient to sentence the appellant to the maximum sentence. Because we have determined that the

trial court properly enhanced the appellant’s sentence in respect to factor (13), this argument is moot.

Next, the appellant asserts that “his cooperation was substantial in voluntarily

admitting to his involvement in the crime, which provided great assistance to the authorities.” The

appellant claims that, based on his voluntary confession, he is “entitled to a downward departure

from his sentence.” We disagree. As previously noted, “the weight to be afforded an existing factor

is left to the trial court’s discretion so long as the court complies with the purposes and principles

of the 1989 Sentencing Act and its findings are adequately supported by the record.” Boggs, 932

S.W.2d at 475-76. The trial court determined that it would not afford the appellant’s voluntary

confession enough weight to reduce his sentence because the appellant alleged that Detective

Blessing “made up” the part of the confession which stated that the appellant “kept [his] hands in

[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 crime had been recorded by the

store’s security video camera. We find that the trial court properly exercised its discretion in

affording the mitigating factor little or no weight.

Finally, the appellant argues that the trial court should have considered statutory

mitigating factor (1) in determining the appropriate sentence,i.e., that the appellant’s conduct neither

caused nor threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1). According to the

appellant, “[s]ince the proof was insubstantial that [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 its discretion in affording great weight to the

appellant’s criminal history, the appellant’s unwillingness to comply with sentences involving

release into the community, and the fact that the appellant committed the instant offense while on

parole. Boggs, 932 S.W.2d at 475-76. Thus, we cannot conclude that the trial court improperly

sentenced the appellant.

III. Conclusion

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

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NORMA McGEE OGLE, JUDGE