IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 6, 2002

STATE OF TENNESSEE v. VINCENT HOWARD

Direct Appeal from the Criminal Court for Shelby County

Nos. 99-04351, -52 J. C. McLin, Judge

No. W2001-01904-CCA-R3-CD - Filed April 11, 2003

The defendant appeals his convictions of first degree felony murder and especially aggravated

robbery. He received a life sentence for the first degree felony murder conviction and an additional

twenty-one year sentence for his especially aggravated robbery conviction. The defendant contends

the evidence is insufficient to sustain his convictions. The defendant also argues his twenty-oneyear sentence for especially aggravated robbery is excessive. The defendant alleges the trial court

misapplied enhancement factors (1), (8), (13), and (16) and erred in finding him a dangerous

offender to support its consecutive sentence determination. We affirm the convictions, but remove

the presumption of correctness due to the misapplication of four enhancement factors and remand

for a new sentencing hearing on the especially aggravated robbery conviction only.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and

Remanded for Resentencing

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

THOMAS T. WOODALL, JJ., joined.

A C Wharton, Jr., District Public Defender; W. Mark Ward, Robert Felkner, and Garland Ergüden,

Assistant Public Defenders, for the appellant, Vincent Howard.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Patience R. Branham, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

On April 22, 1999, a Shelby County Grand Jury returned a two-count indictment charging

the defendant, Vincent Howard, with (1) first degree felony murder and (2) first degree premeditated

murder. In a related, but separate, indictment, the Grand Jury charged the defendant with especially

aggravated robbery. The defendant was tried and found guilty by a jury of first degree felony murder

and the underlying felony of especially aggravated robbery. The defendant was sentenced to life
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imprisonment for his felony murder conviction and twenty-one years for his especially aggravated

robbery conviction, to be served consecutive to his life sentence. In this appeal, the defendant

contends the evidence is insufficient to sustain his convictions, his sentence is excessive, and he

should not be deemed a dangerous offender. 

Facts

Jaclyn Marie Dunlap, an employee of Zeke’s Lounge, testified she was not working on

January 13, 1999. She went to Zeke’s Lounge to visit the victim, a fellow employee, to talk about

an argument she and her husband were having that night. She stated she and the victim were the

only people in the bar, and she swept the floors while the victim stocked a cooler. She said that

sometime after midnight she heard a scream and saw men enter the lounge. She crouched behind

the bar and could see that the taller perpetrator wore a ski mask and pointed a .22 rifle with a black

barrel at the victim. She said the man shouted at the victim to turn over all the money. She said she

heard a bell sound as the victim took money from the register and handed it to the man holding the

rifle. She said she noticed the other perpetrator did not wear a ski mask, was shorter than his

accomplice, and had a lighter complexion. She said the shorter man ran about screaming for the

victim to give him all the money. She stated the men would not leave after the victim handed over

the four hundred dollars ($400.00) contained in the lounge’s register. She stated she began to scream

at the men to leave since the victim gave them the money. She said the victim came toward her

when she began to scream and moved the man’s gun barrel with his arm. She said she then heard

two shots, the victim fell, gasping for air. She said the men were knocking bar stools down and fired

another shot. She said she did not hear the men leave, but she crawled to the phone to call 911. She

stated the police arrived as she spoke with the 911 operator. 

On cross-examination, Ms. Dunlap testified the men entered the front door of the lounge

because the other doors to the lounge were locked. She said the men entered the lounge with their

guns drawn. She stated she was crouched behind the bar, but she could see what was going on from

behind a video machine on the bar counter. She said the shorter man had a small pistol that

resembled a .38. She said she was not sure which man fired his gun and that she heard the shots as

she and the victim fell to the floor. She said that because the barrel of the rifle stayed pointed toward

him, the victim hit the barrel to move it out of his way. She said she was unable to identify the man

wearing the ski mask. 

Officer Edward Vidulich of the Memphis Police Department testified that on January 13,

1999, he was the first officer on the scene after receiving a call concerning a robbery and a shooting

at Zeke’s Lounge. He stated he walked through the door of the lounge and found Ms. Dunlap

screaming that the victim had been shot. He said he walked to the side of the bar and found the

victim, unresponsive, lying on the ground. He stated the victim did not have a weapon, although he

had personal knowledge that the owner of the lounge kept a black Derringer gun by the cash drawer.

Police found the derringer under a cigarette machine, adjacent to a beer cooler. On crossexamination, Officer Vidulich testified he was the officer who entered the lounge while Ms. Dunlap

spoke with the 911 operator. 
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Officer Shan Allen Tracy of the Memphis Police Department testified he responded to a call

at Zeke’s Bar on January 13, 1999, as a member of the crime scene unit. He stated the crime scene

was secure upon his arrival, and the victim had been transported. He said he created a crime scene

diagram which reflected the measurements of the lounge and its backward L-shape. He stated his

diagram reflected the overturned bar stools, the victim’s blue shirt, a .22 caliber casing, a bullet hole

in the cooler, a two-shot Derringer, and blood smears. He said a bullet fragment was recovered from

the cooler, and a .22 caliber casing was found on the floor. He stated the Derringer found at the

crime scene had not been fired. He said the Derringer’s safety was still on, and it was loaded with

two rounds. He stated he photographed the crime scene and secured all of the evidence. He said

he recovered a ski mask and hooded shirt from a vacant wooded lot located less than a mile from

Zeke’s Lounge on the day following the crime. The prosecution asked Officer Tracy to identify the

aforementioned evidence by showing him crime scene photos and entered the photos into evidence

upon the completion of his testimony. The prosecution also asked Officer Tracy to identify a spent

.22 bullet and clothing. Officer Tracy recognized the spent bullet as one collected from the crime

scene and identified a ski mask and hooded shirt found in the wooded area outside of Zeke’s Lounge.

The prosecution entered the spent bullet and clothing into evidence. Officer Tracy testified to

engaging in the collection of evidence from the crime scene. He stated he photographed, measured,

and sealed the evidence. He stated that he placed the evidence into envelopes and tagged it before

taking it to the police property room. On cross-examination, he testified he was not the first officer

on the scene, and police were inside and outside the lounge on the night of the incident. He stated

the crime scene was secure when he photographed and sketched the crime scene. 

Dorothy Jean McRoberts, the victim’s sister-in-law, testified she had known her husband’s

brother for twenty years. She testified that the victim, Richard McRoberts, was known as Ricky

Mack. She stated she last saw the victim at his home a week before his death and received a call

later that he had been shot. 

Sergeant James Ryall of the Memphis Police Department testified that he assisted Sergeant

Shemwell with his investigation of the January 13, 1999, shooting and robbery at Zeke’s Lounge.

He stated he interviewed the defendant with Sergeant Greg Quinn. He said the defendant was

advised of his rights before questioning. He said the defendant, in his first interview, told the

officers a story that did not match information they had been given, which placed the defendant at

the crime scene. He said the first interview was not reduced to a formal statement because the

defendant became agitated. On cross-examination, Sergeant Ryall reiterated his testimony that the

defendant did not seem to have any problems reading or understanding his rights. He stated the

defendant said he understood his rights and signed the rights form. He said the defendant’s

statement had been typed. 

Sergeant Ryall testified that during two interviews with the defendant, the defendant read his

rights and seemed to understand what was asked of him. Sergeant Ryall read the defendant’s

statement given on January 16, 1999, to the jury. The defendant’s statement contained his own

admissions regarding his involvement in the crime. The defendant stated he wore a ski mask and

staked out Zeke’s Lounge with his accomplice, Trell. He stated that Trell fired a .38 pistol, and he
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fired a semiautomatic .22 rifle loaded with two bullets. The defendant also stated that he robbed

Zeke’s Lounge to help Trell’s mother pay her bills and to have “a little pocket change.” 

Officer Alvin Peppers of the Memphis Police Department testified he received a call on

January 13, 1999, to procure homicide evidence from the morgue. He stated he collected and

secured a full set of prints and a bullet fragment from the victim. He said he collected the bullet

fragment and took it to the property and evidence room where it was logged in and preserved. 

Sergeant Robert Shemwell of the Memphis Police Department testified he was assigned as

the lead investigator of the robbery and homicide occurring at Zeke’s Lounge. He stated he received

two Crime Stoppers tips and a call from a field lieutenant naming the two suspects as responsible.

He said Coach Hopkins at Frayser High School gave him the name and address of the defendant and

Tavarsity Childers, who was called Trell. Sergeant Shemwell stated Tavarsity Childers, who was

taken into custody, named the defendant as his accomplice for the robbery of Zeke’s Lounge on

January 13, 1999. He said Childers told police the defendant used a rifle, and it could be found in

a dumpster in the rear of an apartment complex. He said Childers admitted he got his weapon, a .38

caliber revolver, from a fellow gang member. On cross-examination, Sergeant Shemwell testified

he was not in the room where the defendant made his statement to police, but was present at the

interview and reviewed the defendant’s statement. 

Officer D. H. Rowe of the Memphis Police Department testified that on January 17, 1999,

he was called to 2605 North Watkins to investigate the contents of a dumpster in connection with

a homicide investigation. He stated he climbed inside the dumpster and found a rifle wrapped in an

old rug. He said the rifle contained one live round. He said he photographed the rifle and tagged

the weapon and the round into evidence. On cross-examination, Officer Rowe reiterated his

testimony that he secured the round found in the rifle. He said he did not search the immediate area

and did not secure anything else from inside the dumpster. 

Special Agent Steve Scott of the Tennessee Bureau of Investigation (TBI) testified he was

assigned to review evidence submitted to the TBI regarding the victim’s homicide. He stated he

examined a rifle, a .22 caliber bullet, a bullet fragment, and a shell casing. He stated the

semiautomatic rifle was missing its magazine follower, in which .22 caliber ammunition is pushed

to form the spring pressure, but was in working order as a single-shot .22 rifle. He stated the trigger

must be pulled with approximately seven pounds of pressure in order for the gun to fire. He stated

it was his opinion that the .22 caliber cartridge case, he examined, had been fired from the rifle and

“no other gun in the world.” He stated he knew the rifle fired the .22 case recovered from the scene,

because the shell and rifle have the same “mechanical fingerprint.” He said he examined a bullet

fragment from the victim’s body and was unable to conclusively match the fragment to the gun. 

Because the fragment was so small, he stated he could not say that the fragment was from a bullet

fired from the rifle, despite it being of the same caliber as the bullet fired from the rifle. He stated

he examined one unfired .22 caliber cartridge to determine whether the live cartridge was consistent

with the fired ammunition. He said he determined the unfired cartridge and fired ammunition were

similar in shape and design, were made by the same company, and were composed of the same
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material. He also stated the live cartridge is consistent with the two fired ammunition components

that he examined. He stated he concluded the live cartridge and the spent cartridge had been together

inside the rifle at one time. He stated that he attempted to find any markings present on the unfired

cartridge indicating it had been run through the action of the gun without having been fired, but he

could not find any identifying marks. 

On cross-examination, Agent Scott reiterated his previous testimony that he could not

conclusively state that the rifle fired the tip of the .22 bullet he examined. He stated he could not

match the unfired cartridge to the rifle. He stated the .22 cartridge case found at the crime scene was

fired from the rifle he examined and from that gun only. He said he could not say the bullet came

from the case, but he said the casing was from the same ammunition manufacturer. He said the rifle

could be up to thirty-three years old, but was in working order. He stated that he did not perform any

tests to examine the wear and tear on the trigger mechanism and did not know if the magazine

follower was on the gun at the time of the crime. He said he did not know if the gun was in working

order in semiautomatic mode at the time of the robbery. 

Dr. O’Brien Cleary Smith, Shelby County Medical Examiner, testified he conducted an

autopsy of the victim. He stated the victim died as a result of a gunshot wound to his chest. He said

it was his opinion the victim died as a result of the passage of one bullet through the victim’s body.

He said the bullet would have entered the victim’s body and fractured as it hit the rib bone. He said

he photographed the victim’s wounds to the chest and a grazing gunshot wound to the victim’s arm.

He said the bullet struck the right side of his chest at fifty-five inches above the heal and eight inches

to the right of the midline. He said the bullet entered the victim’s heart, struck and fractured the fifth

rib on the victim’s right side, and bruised his right lung. He said the bullet went through the victim’s

diaphragm and injured his liver. He said the victim sustained internal bleeding as a result of his

wounds. He said the internal bleeding would have resulted in the victim’s windpipe filling with

blood and blocking his airways. He stated the victim sustained contusions to his knees as a result

of falling to the ground. 

The defense offered no proof after the State rested its case against the defendant. The jury

returned and announced that they had reached a verdict as to first degree felony murder and

especially aggravated robbery, but were unable to reach a verdict as to first degree premeditated

murder. The trial court accepted the jury’s verdict of guilty of first degree felony murder and guilty

of especially aggravated robbery and dismissed the jury.

At the sentencing hearing, the trial court imposed a sentence of life for the first degree felony

murder conviction, a life sentence being the only available sentence. The trial court applied

enhancement factors (1), (8), (13), (16), and (20), and four mitigating factors in making its

sentencing determination for the especially aggravated robbery conviction. The trial court imposed

a twenty-one-year sentence on the especially aggravated robbery conviction, to be served

consecutively with the defendant’s life sentence. 
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Analysis

I. Sufficiency of the Evidence

The defendant asserts the evidence is insufficient to support his convictions, because the

State failed to prove beyond a reasonable doubt his identity as the perpetrator of the crimes. The

proper inquiry for this Court to review the defendant’s challenge to the sufficiency of the evidence

to support a conviction is whether, considering the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);

State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). A guilty verdict accredits the testimony of the

witnesses for the State and resolves all conflicts in favor of the prosecution. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). In determining the sufficiency of the evidence, this Court does not

reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This

Court may not substitute its inferences for those drawn by the trier of fact from circumstantial

evidence. Liakas v. State, 199 Tenn. 298, 305 286 S.W.2d 856, 859 (1956). In fact, this Court is

required to afford the State the strongest legitimate view of the evidence contained in the record, as

well as all reasonable and legitimate inferences which may be drawn from the evidence. State v.

Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). A conviction may be based entirely on

circumstantial evidence where the facts are “so clearly interwoven and connected that the finger of

guilt is pointed unerringly at the Defendant and the Defendant alone.” State v. Smith, 868 S.W.2d

561, 569 (Tenn. 1993) (quoting State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985)). Questions

regarding credibility of the witnesses, the weight to be given the evidence, and any factual issues

raised by the evidence are resolved by the trier of fact. See State v. Bland, 958 S.W.2d 651, 659

(Tenn. 1997). A verdict of guilt removes the presumption of innocence from the defendant and

replaces it with a presumption of guilt and, on appeal, the defendant’s burden is to demonstrate why

the evidence is insufficient to support his guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-

58; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). 

The defendant was convicted of first degree felony murder, in violation of Tennessee

Annotated Code section 39-13-202. Our statute defines first degree murder, in part, as “[a] killing

of another committed in the perpetration of or attempt to perpetrate any . . . robbery . . . .” Tenn.

Code Ann. § 39-13-202(a)(2). The Code further states “no culpable mental state is required . . .

except the intent to commit the enumerated offenses or acts . . . .” Id. at (b). The death occurring

under these circumstances must occur “in the perpetration of” the enumerated felony. State v.

Hinton, 42 S.W.3d 113, 119 (Tenn. Crim. App. 2000). Proof of the intention to commit the

underlying felony and at what point it existed is a question of fact to be decided by the jury after

consideration of all the facts and circumstances. State v. Buggs, 995 S.W.2d 102, 106 (Tenn. 1999).

 

The defendant was convicted of the underlying felony of especially aggravated robbery, in

violation of Tennessee Code Annotated section 39-13-402(a). Our Code defines robbery 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). Especially aggravated robbery is defined as robbery “(1)
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[a]ccomplished with a deadly weapon; and (2) [w]here the victim suffers serious bodily injury.”

Tenn. Code Ann. § 39-13-403(a). 

Although the defendant argues the evidence presented is insufficient to justify a rational trier

of fact in finding him guilty beyond a reasonable doubt, he fails to make specific arguments as to the

insufficiency of the evidence as it relates to his identity. The record reflects several instances in

which the testimony establishes the defendant as the perpetrator of the crimes. 

A. Eyewitness Testimony

Jaclyn Dunlap witnessed the robbery and testified to the identity of the perpetrators. Dunlap

testified that she saw two men enter Zeke’s Lounge. She stated one of the men wore a ski mask and

pointed a .22 rifle at the victim. She stated the other perpetrator did not wear a ski mask and ran into

the bar screaming at the victim to hand over all of the money. She stated that the perpetrators would

not leave even after the victim gave them the money from the cash drawer. She said the perpetrator,

wearing the ski mask, pointed his rifle at the victim even after the victim gave them money from the

cash drawer. She stated she saw the victim knock the rifle with his arm and heard two gunshots.

She stated the victim then fell on top of her, gasping for air. 

B. Physical Evidence

The victim died as a result of a gunshot wound from a .22 caliber weapon. In the defendant’s

statement to police, he confessed to shooting a .22 rifle during his robbery of Zeke’s Lounge. Based

upon information from the co-defendant, the police found a discarded .22 rifle in a dumpster. This

rifle was directly connected to the robbery at Zeke’s Lounge after TBI Agent Steve Scott

conclusively matched a .22 cartridge case found at the crime scene with the discarded rifle found by

police. Agent Scott stated the cartridge case could have only been fired by that rifle and no other gun

in the world. 

C. Defendant’s Statement

The defendant confessed to committing the robbery, but was unsure as to whether his bullet

hit the victim. In his statement to police, the defendant stated that he and his accomplice staked out

Zeke’s Lounge with the intent to rob the victim. The defendant stated that he wore a ski mask as he

entered Zeke’s Lounge with his .22 rifle. In his statement, the defendant described how he shot at

the victim and took the money as “pocket change.” 

After viewing the evidence in the light most favorable to the prosecution, we conclude the

defendant has not met his burden of proving the evidence insufficient to sustain his convictions. The

evidence is legally sufficient for a jury to have found the defendant guilty of murder in the first

degree and the underlying felony of especially aggravated robbery. 
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II. Sentencing

Next, the defendant contends his twenty-one-year sentence for his especially aggravated

robbery conviction is excessive, due to the trial court’s misapplication of enhancement factors (1),

(8), (13), and (16). The defendant also challenges the trial court’s decision to run his especially

aggravated robbery sentence consecutive to his life sentence for his felony murder conviction. 

This Court’s review of the sentences imposed is de novo with a presumption of correctness.

Tenn. Code Ann. § 40-35-401(d). A presumption in favor of the trial court is conditioned upon an

affirmative showing in the record that the trial judge considered the sentencing principles and all

relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial

court fails to comply with these principles, there is no presumption of correctness and our review is

de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). It is this defendant’s burden to show that

the sentence is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Comments.

If no enhancement or mitigating factors are to be considered for sentencing, the presumptive

sentence for especially aggravated robbery, a Class A felony, shall be the midpoint within the

applicable range. Tenn. Code Ann. § 40-35-210(c). The range of punishment for especially

aggravated robbery is fifteen to twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1). Therefore,

the midpoint of the range for especially aggravated robbery sans enhancement or mitigating factors

is twenty years. If enhancement or mitigating factors exist, a trial court should enhance the sentence

within the range for enhancement factors and then reduce the sentence within the range for the

mitigating factors. Tenn. Code Ann. § 40-35-210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn.

2001). The weight given to each factor is left to the discretion of the trial court, as long as the trial

court complies with the purposes and principles set forth by the sentencing act and supported by the

record. State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000); see Tenn. Code Ann. § 40-35-

210, Sentencing Comm’n Comments. Based upon the foregoing discussion, we conclude the trial

court erred in sentencing the defendant and is not entitled to a presumption of correctness.

A. Misapplication of Enhancement Factor (1)

 The trial court found that the defendant had a previous history of criminal convictions or

criminal behavior in addition to those necessary to establish the appropriate sentencing range. See

Tenn. Code Ann. § 40-35-114(1) (Supp. 2001) (Amended 2002). At the time of trial, the defendant

was eighteen years old and had an extensive history of criminal behavior as a juvenile. The record

reflects the trial court applied enhancement factor (1) based upon the defendant’s juvenile court

record which was included in the presentencing report. 

The defendant correctly asserts the trial court should have not found enhancement factor (1)

upon his juvenile record. In 1995, the legislature amended Tennessee Code Annotated section 40-

35-114 by adding enhancement factor (20), which allows for enhancement of a sentence if “[t]he

defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would

constitute a felony if committed by an adult.” Tenn. Code Ann. § 40-35-40-35-114(20) (Supp. 2001)
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(Amended 2002). Our supreme court has held factors (1) and (20) are mutually exclusive in that

factor (1) applies only to adult criminal conduct, as opposed to factor (20), which applies exclusively

to juvenile adjudications of delinquent acts. State v. Jackson, 60 S.W.3d 738, 742 (Tenn. 2001).

The defendant’s presentence report lists several delinquent acts committed by the defendant that

would have constituted felonies if committed by an adult. While the defendant’s record supports

application of factor (20), his juvenile record should not have been used to apply enhancement (1).

Therefore, the trial court correctly applied enhancement factor (20), but erred in its application of

enhancement factor (1).

B. Misapplication of Enhancement Factor (8)

The trial court applied enhancement factor (8), which involves a defendant’s “previous

history of unwillingness to comply with the conditions of a sentence involving release in the

community.” Tenn. Code Ann. § 40-35-114(8) (Supp. 2001) (Amended 2002). The record reflects

the trial court based its determination to apply this factor on the fact the defendant was on supervised

probation as a juvenile on two occasions, as noted in the presentence report. Our supreme court has

held that juvenile probation violations may be properly considered to determine a history of

unwillingness to comply with the conditions of release into the community. Jackson, 60 S.W.3d at

740. However, the presentence report does not demonstrate the defendant’s failure to comply with

the conditions of his probation. Moreover, the trial court did not base its decision to apply this factor

on any evidence to the contrary. If a defendant had admitted using drugs during his probationary

period, a trial court could support its application of enhancement factor (8). See State v. George

Blake Kelly, 1998 Tenn. Crim. App. LEXIS 1085, *35, No. 01C01-9610-CC-00448 (Tenn. Crim.

App., Oct. 13, 1998, at Nashville). The trial court did not base its application of factor (8) on

anything other than the defendant’s juvenile probation record. The defendant argues that merely

being on probation does not warrant the application of enhancement factor (8). We agree with the

defendant and conclude the trial court erred in its application of factor (8) in determining the

defendant’s sentence.

C. Misapplication of Enhancement Factor (13)

The defendant argues the trial court misapplied factor (13) in its determination of his

sentence. According to Tennessee Code Annotated section 40-35-114(13), a sentence may be

enhanced if “[t]he felony was committed while on any of the following forms of release status if such

release is from a prior felony conviction:” 

(A) Bail, if the defendant is ultimately convicted of such prior felony; 

(B) Parole;

(C) Probation;

(D) Work release; or 

(E) Any other type of release into the community under the direct or indirect

supervision of the department of correction or local governmental authority.
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The record reflects the State did not know if factor (13) should have applied to the defendant,

and the trial court ultimately based its application of factor (13)(E) on the basis that the defendant

was on “escape status.” The presentence report indicates the defendant committed the crimes at

issue while on pre-trial release for offenses of which he had not yet been convicted. The record is

void of any evidence the defendant violated any terms of his pre-trial release. Although the

defendant had pending felony charges against him, there was no proof of a conviction on any of the

charges. Therefore, we find enhancement factor (13) was inapplicable to the defendant in this case.

See State v. Watson, 1999 Tenn. Crim. App. LEXIS 659, *12, No. 03C01-9809-CR-00325 (Tenn.

Crim. App., July 9, 1999, at Knoxville). 

D. Misapplication of Enhancement Factor (16)

The trial court applied factor (16) in that “[t]he crime was committed under circumstances

under which the potential for bodily injury to a victim was great,” Tenn. Code Ann. § 40-35-114(16)

(Supp. 2001) (Amended 2002). The defendant correctly asserts the trial court misapplied this factor

because the potential is inherent in the crime of especially aggravated robbery. The record indicates

that defense counsel objected to the trial court’s application of factor (16), and the trial court

responded to counsel’s objections by stating “okay.” The record also reflects the trial court

eventually applied factor (16), absent any reasons for its finding. 

Factor (16) specifically requires the risk or potential injury be to a victim. Tenn. Code Ann.

§ 40-35-114(16) (Supp. 2001) (Amended 2002) (emphasis added). This Court has held serious

bodily injury is an essential element of especially aggravated robbery, therefore, factor (16) may not

be applied on the basis of great potential for bodily injury to the victim of the offense. See State v.

Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). Our supreme court has held that factor (16)

may not be based on the risk of injury to individuals other than the victim of the crime. State v.

Imfeld, 70 S.W.3d 698, 706 (Tenn. 2002). Therefore, the trial court erred by applying this

enhancement factor to the defendant’s sentence for especially aggravated robbery.

E. Consecutive Sentencing

After applying the aforementioned factors and other uncontested enhancement factors, the

trial court applied several mitigating factors before its final determination to sentence the defendant

to a twenty-one-year sentence, to run consecutively with his life sentence for his felony murder

conviction. The defendant argues the trial court erred in ordering him to serve this sentence

consecutively, in that he should not receive dangerous offender status. The trial court based its

imposition of consecutive sentencing upon criterion set forth in Tennessee Code Annotated section

40-35-115(b). The trial court determined the defendant to be an offender with an extensive criminal

record. See Tenn. Code Ann. § 40-35-115(b)(2). The trial court also determined the defendant to

be a dangerous offender 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. See Tenn. Code Ann. § 40-35-

115(b)(4). Our supreme court has held a trial court must find that an extended sentence is necessary

to protect the public against further criminal conduct by the defendant and that consecutive sentences
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reasonably relate to the severity of the offenses committed. State v. Wilkerson, 905 S.W.2d 933, 939

(Tenn. 1995). The trial court utilized this exact language in determining that a consecutive sentence

was necessary to protect the public from future criminal conduct by the defendant. We conclude the

defendant has a lengthy criminal history for someone his age. Finally, the defendant robbed and shot

someone for no other reason than to have “pocket change.” These facts support the trial court’s

determination that the defendant is appropriately classified as a dangerous offender. 

Conclusion

For the aforementioned reasons, we affirm the convictions, but remove the presumption of

correctness due to the misapplication of four enhancement factors and remand for a new sentencing

hearing on the especially aggravated robbery conviction only.

___________________________________ 

 JOHN EVERETT WILLIAMS, JUDGE