### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 16, 2002 Se ssion STATE OF TENNESSEE v. JOEL C HRISTIAN PARK ER Direct Appeal from the Criminal Court for P utnam County No. 99-0299 Leon Burns, Jr., Judge

No. M2001-00773-CCA-R3-CD - F iled December 18, 2002

On Fe br ua ry 2 , 2000, the de fendant was convicted by a jury of the of

fense of aggra

vated ro bb er y. He received

a sentenceof nine yea

rs in the state penitentiary . In this appeal he raises e ight (8) issue s for our

review: (1) whe

ther the evidenc e is suffi cient to su pport the verdict ; (2) whether the defendant was tried by a f ai r a nd im pa rt ia l j ur y; (3) whe ther the trial cou rt committed rever sible error in failing to instruct t

he jury on the off

enses of assault or aggravated a ssault; (4) whether there was prosecu

torial misc onduct; (5) whether the defendant was subjected to a constitutionally flawed show-up shortly after the

robbery; (6)whether

the trial court correctly

instructed the jury as to wha t they must do if they have a r

easonable doubt

that the defendant possessed the requ isite ment al state for the offense; (7) whether the trialcourt should have dismissed the case because the state de stroyed evidence fundamental to the defense; (8) w hether the defendant’s sentence is excessive.
We have carefully

reviewed each

of these claims, and we find that none merit reversal o f this case. The judgment of the trial court is theref ore affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J ERRY L. S MITH , J., delivered the opinion of the court, in whichD AVID H. W ELLES and T HOMAS T. W OODA LL , JJ., joined.
John B. Nisbett, II

I, Assistant Public Defender, Cookeville, Tenne ssee, for the a ppellant, Joel Christian Parker.
Paul G. Summers , Attorney Gene ral and Reporter; Christine M. La pps, Assist

ant Attor ney Genera l; William Edward G

ibson, Dist

rict Attor ney Genera l; Benja min W. Fann

and Davi d Alan Patterson, Assistant District Attorneys Gener al, for the appellee, State of Tennessee.-2- OPINION Factual Backgr

ound
On November 12, 1998, the defendant drove a blue Volvo station wa gon to the front of the Quick Cash Pawn Shop in Cookeville, Tennessee. He talked with s h op employ ee, ChrisFarris , about trading guns. He also looked at some gun s the shop h ad in its invento

ry . Farri s explaine d to the defenda

nt that the pawn shop

did not dea

l in guns to

any g reat extent and that an individual had to be twenty-one y

ears old to trade firearms. The defe ndant left the shop.
That sameafterno on the defendant returned to the pawn shop. On this occasion he was wearing a camouflaged hat and jacke t and a bandana

over his face. Mr. Farris and another employee, Matt Betcher, were in the shop at the time. The defendant put

a gun to Betcher’s hea

d and demanded to see the s hop’s pist

ols. Far ris beg an taking

some pis t ols out of the cabinets when the defendant demande d to see mo

re expens ive gun s. He pla ced the g un to Far ris’ head and asked Betcher if he wanted to see his friend die. The defendant fled the store with three guns and some ammunition. Upon leaving thestore the defendant got in his car parked ne ar the back of the pawn shop. He drove to the home of a friend named Josh Robertson. The defendant told Robertson about the robbery and ga ve Rober tson the sto len wea

pons. Approximat

ely one hour after the robbery, police

officer Mark Loftis arrested the defendant and recovered the

gun used in the robbery. L

oftis took the defendant back to the pawn shop where Farris positively identified him as the robber. Sufficiency of

the Evidence
The defendant questions the sufficiency of the evidence

on two poin

ts. First, he claims the Statefailed to prove that he took the guns from the pawn shop without the owner’s ef fective consent. Se co nd , h e c la im s t he st at e f ai le d t o p ro ve th at he ac te d i nt en ti on al ly o r k no wi ng ly.
When a defendant challenges the suf ficiency of

the evidence, this Court

is obliged to review that claim according to certain well-se ttled principles. A verdict of guil ty, render ed by a jury

and “approved

by t he trial j udge, a

ccredits the test

imony of the” St

ate's witnesses a

nd resolv es all conflic ts in the testimony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Statev. Harr

is , 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked witha presumption of innocence, the jury verdict of guilty re

moves this presumption “and replaces it with one of guilt.” State v. T uggle , 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id

. The relevant question the reviewing court must answer

is whethe r any rationa l trier of fact could have found the

accuse d guilty

of ever y element of

the offe nse bey ond a rea sonable

doubt. See Tenn. R. App. P. 13( e); Harris , 839 S.W.2d at 75. In making this decision, we are to accord the State “the stronge st legitima te view of the evide nce as w ell as all

reasona ble and leg itimate

inferences that may1 “Consent” is not ef fective when obtained t hrough coercion. Tenn. Code Ann. § 39-11-106 (a)(9)(A). -3- be d rawn therefrom.” See Tuggl e , 639 S.W.2d at 914. As such, this Court is precluded from re

weighing or reco nsid ering t he evi dence i n eval uatin g the co nvict ing proof. S tate v. Morgan , 929 S.W.2d 380, 383 (Tenn. Cr im. App. 19 96); State v. Matthews , 805 S.W.2d 7 76, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of fact from circums tantial evi dence." M atthe ws , 805 S.W.2d a t 779. Of c ourse, a

criminal offense may be established exclusively by circumstan tial evidence. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Jones , 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995). However, the trier of fact must be ab le to “de

termine f rom the pr

oof that a ll other reasonable theories except that of guilt are excluded.” Jones , 901 S.W.2d a t 396; see also , e.g ., Tharpe , 726 S.W.2d at 900. Aggravated

robbery is the “intentional or knowing theft of propert y f rom the person of another by violen ce or pu ttin g the pe rson i n fear” throu gh the use of a deadly weapon. Tenn. Code Ann. § 39-13-401, 402. Thus, the State was required to prove, inter alia , that the defendant committed a “theft.”
“Theft” is committed “if, with intent to deprive the owner of property , the person knowingly obtains or exercises control over the property without the owner’s effective consent.” Te nn. Code Ann. § 39-14-103. The term “owner” as used in Title 39 of the code is br

oader th an its comm

only understood meaning. “Owner” is defined as “a per son, other than the defendant, who has possession of or any intere st other than a mortgage, deed of trust or securi ty intere st in prope rty, even t hough that possession or interest is unlawful and without whose consent the defenda

nt has no a

uthority to exertcontrol over

the property.”

Tenn. Code Ann. § 39-11-106(a)(26). Mssrs. Farris and B etcher, the pawn shop employ

ees, were clearly

“owners” within the meaning of sections 39-11-106( 26) and 39-14-103. They wer

e in lawful possession of the guns that the defendant removed from the shop at gunpoin t, and only

with their

effec tive cons ent could

the defendant take the guns from the shop. 1 It wa s not nece ssary

for the s tate to pr

ove who ha

d actual title to the

weapons
. The de fe nd an t a ls o c la im s t ha t t he St at e f ai le d t o p ro ve he ac te d “ in te nt io na ll y or kn ow in gl y” when he removed the guns from the pawn shop at g unpoint. He bases this claim on an assertion that he was so intoxicated thathe could not form these mental states. Intoxication, either voluntary or in vo lu nt ar y, may be re

levant on the ques tion of whe ther the defendant could form the necessa ry mental elements for the comm ission of a crime. Tenn. Code Ann. § 39-11-503(a). Howeve r, the determination of whether

a defendant’s intoxication negated a required mental element is one for the jury. State v. Mo

rris , 24 S.W.3d 788, 796 (Tenn. 2000).
Alth ough a p art empty bo ttle of wh iskey was found in the defendant ’s car, and Josh Robertson testified that the def endant was drinking, both Farris and Betc her testified that the defendant did not appear intoxicatedduring the robbe ry . Office r Lof tis, who ar

rested th e defendant, and Officer

Gragg, who later que stioned him, both stated the defendant did not appear intoxicated. Another officer testified that he thought the defendant had been drinking but that he did not appear drunk. From

all of this there is ample proof from which the jury could conclude bey ond a rea sonable2 On January 1, 2002, an amended vers ion of t his s tatu te became ef

fect ive f or cases tri ed aft er tha t date. -4- doubtthat intoxication had not vitiated the defendant’s ability to a ct intentionally or knowingly and that he ha d in fact done so. T

his issue iswithout me

rit. Challenge to Jurors
The defenda

nt compla ins that tw o (2) jur

ors who sa

t on his case were

biased and should have been excused for cause duringjury selection. The de fendant complains that he was forced to use up his peremptory c

hallenges on other potential jurors and therefore the two (2) jurors in question here were allowed to sit on the case.
There is however a

flaw in the defen se arg

ument on th

is point that c ounsel fo

r the def ense failedto note in his brief. At trial defense counsel never requeste d removal for cause of the two (2) jurors in question. T he defenda nt has wa ived this is sue on thisground alone. T enn. R. Ap

p. P. 36(a). Moreove

r, a criminal def

endant mu st not only

exhaust his peremptory

challen ges, bu

t he must also challenge or offer to cha llenge an additional prospective juror in order to complain on appeal that the trial judge’ s decisio n in refusing to excuse a juror for cause resulted in a biased jury

. State v. Doelman , 620 S.W.2d 9 6, 100 (Te nn. Crim. A

pp. 1981) . This issue

is without me

rit. Lack of Jury

Instructions on L

esser-Included O ffenses
The defendant next complains that the trial court erred in failing t o instruc t the jury

with respect to the crimes of assault and aggr avated assault. The State concedes that assault by intentiona

lly or knowingly c a using another reasonably to fear imminent bodily injury and aggravated assault are lesser-included offenses of a ggravated robber

y under par

t (a) of the test an nounced in Statev. B urns , 6 S.W.3d 453 (Tenn. 1999). We agree with the parties on this point. See State v. James Eric Alder , No. M1999-02544-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 843 (Tenn. Crim

. App. at Nashville, Oct . 27, 2000) ; State v . Jas on Carter , No. M1998-00789-CCA-R3-CD (Tenn. Crim. App. Apr. 27, 2000) . However, the State contends the trial court did not err in declinin g to instruct the jury on these o ffense s becaus e there is no evidence from which the jury c ould have found th e e xi st en ce of

th e l es se r o ff

en se s a s o pp os ed to th e o ff en se of ag gr av at ed ro bb er y.
Tenness ee Code A

nnotated section 4 0-18-110 (a) (19 97) provi des:
It is the duty of all judge s charging juries in casesof crimi nal prosecutions for any f

elony where

in two (2) or more grades or classes of offense may be includ ed in the indictment, to charge the jury as to all of the law of

each of fense included in

the indic tment, without any request on the part of the defendant to do so. 2
In Statev. Ely , 48 S.W.3d 71 0, 726 (Te nn. 2001) , our stat

e suprem e court d efinitive ly held that this statutory admonition to trial judges enjoy ed constitutional stature under Article 1, Section-5-

6 of the Constitution of Tenne ssee, g uaranteeing the

right to trial by jury . The cou

rt alsonoted that section 40-18-110(a) (1997 ) has bee n interpreted to mean that the duty to instruct the jury as to a lesser-included

offense does n ot arise u nless the evidence is sufficient to support a conviction for the lesser offense. Id. at 718 (citi ng State v. Burns , 6 S.W .3d 45 3, 464 (quot ing State v. Langford , 994 S.W.2d 126, 1 28 (Tenn . 1999))) . Howeve r, the que stion of wh

ether th is eviden tiary trig ger required proof of the le sseroffense as opposed to the greate r continued to vex the trial and intermed iateappella

te court s. In State v. Allen , 69 S.W.3d 181 ( Tenn. 200 2), and mo st rece ntly in Statev. Lin

nell Richmond , No . E2 000 -01 545 -SC -R1 1-C D, 2 002 Ten n. LE XIS 473 (Tenn. Nov. 1, 2002) (Southwest Reporter cite not yet ava

ilable), the Court definitively answer ed this question as well. If evidence is suff

icient to warra nt a jury instructi on on the g

reater offense , it is also sufficient to warrant an instruction on the lesser-included offe nses under

part (a) of the Burns test. Id. ; Allen , 69 S.W.3d at 181. Turning to the instant case, the evidence is clearly sufficient to w arra nt an instruction on aggravated

robbery. I

t is therefore a fortiori sufficient to warrant an instruction on the Burns part (a) lesser-included

offense s o f

assault by means of intentionally putting a person in fear of imminent bodily injury and ag grava

ted assa ult. I t was ther efore e rror fo r the tria l court to fail to instruct the jury with resp ect to tho se offe nses. Harmless Error
The determination that

the failure to instruct the jury on the lesser- included offenses noted above was e rror is not the end of our inquiry . Since the advent of State v. Will iams , 977 S.W.2d 101, 105 (Tenn. 1998), it has been clearly established that a failure of the trial judge to instruct on a lesser-included offense is subject to harmless error analysis. With the arrival of the opinion in Ely , 49 S.W.3d at 726, we know that the harmless error analy sis is co nstitutiona l i n nature and that thereforewhen the

re is an e rror in th e failur e to instru ct the jur

y on a less er-incl uded offense, the State must prove beyond a r easonable doubt that the error was harmless. Id. at 727.
The precise

mechanics of this constitutional harmless error analy sis have proven almost as problema tic for the in

termedia te appellatecourts as t he s ubs tan ti ati ve i ss ue a nal ysis in th is are a. In Williams , 97 7 S.W.2d at 105, the supre me court held that a convic tion by

a jury of the g reates t offense charged to the exclusion of lesser-included offe nses upon which the pa nel was instructed belies any arg

ument that the failure to instruct on ev en less serious offenses is reversible error

. However, in Allen , 69 S.W.3d a t 190-91, t

he supre me court clarifi ed that Williams did not present the only scenar

io in which the failure to instruct on a lesser-included offense will be harmless beyond a reasona ble doubt. In itsmost

recent refinement

of the ap propria te harmle ss error

analy sis in this area, the Tennessee Supreme Court has he ld that

. . . when a reviewing court deter mines whethe r a l esser-included offense ought to be charged, the evidence

clearly controls . If t

here is evidence sufficient to support a conv i ction for a lesser-included offense, we hold that a trial court must charge that o ffense. The-6- determinative test being whether there is evidence sufficient such that a ju ry could

convict o n that less er-inc luded off ense . If a ju ry could convict, no matter how improbable, it is error not to charge the lesser

included offense. However, in deciding w he ther it was har mless beyond a reasonable doubt

not t o charge a lesser-included offense, the reviewing co ur t m us t d et er mi ne wh et he r a re as on ab le ju ry would have convicted the defendant of the lesser-include d offense instead of the ch arged of fense. In other words , the r eview ing cou rt must determine whether it appears bey ond a reasonable doubt that the trial court’s failure

to instruct on the lesser-included offense did not affect the outcome of the trial.
Statev. Linnell Richmond , No . E2 000 -01 545 -SC -R1 1-C D, 2 002 Ten n. LE XIS 473, at *37 - *38 (Tenn . Nov. 1, 200 2) (ci ting Allen 69 S.W.3d at 191). Turning again t

o the facts of the case sub judice , i t a pp ea rs th at , a lt ho ug h a ju ry could have convictedthe defendant

of assault or ag grava

ted assa ult, now we

must ask whether a reasonable jury would have convicted him of either o f those off enses. T he diffe rence b etween

the rele vant for ms of assault and aggravated a ssault in this case and aggravated robbery is the thef t of the pawn shop’s pr op er ty. There is no doubt from the evidence in this case that the crime committed was the theft of the pawn shop’s property through fear

produced by use

of a gun. This is the essence of ag gravated ro bb er y. Moreover, the jury was instructed on the lesser offense of simple robbery and theft, but they declinedto convict on those charges opting instead for the indicted offense of

aggravated

ro bb er y. Under these circumstances we are convinc ed beyond a reasonab le doubt that no reasonable jury would have convicted the defendant of assault or ag gravated assault upon an instructi on as to tho se offenses. The error is therefor e harmless and affords the defenda nt no relief. Prosecutor’s Closing Argument
In this issue t

he defe ndant cla ims that the

followin g statement of the prosecutor during closing argument to the jury was an impermissible comme nt on the de fendant ’s elec tion not to te st if y: AssistantDistrict A t torney

. . . H e’ s b ee n i de nt if

ie d t oo ma ny w ays for you to think tha

t eith er somebod y else did it or he did not d

o it. And so the defense then, when the proof is this strong, when the proof is this great , when the

proof is, and you wonder after y ou’ve sat here for a full d ay howis it that we can be here for a full day ; surely the defendant has some defense.
This remark

prompted an objec tion by

defense counsel, whichwas immediately sustained by the trial judge. No further comments of this nature wer e made.-7-

This type of comment by

a prosecutor alway s risks running afoul of Griffin v. Califor nia , 380 U.S. 609, 615 ( 1965), wh ich hold s that the Fifth Amendment to the United States Constitution forbids an y co mm en t a t c lo si ng ar gu me nt on a c ri mi na l d ef en da nt ’s el ec ti on no t t o t es ti fy. However, we find t hat his comment was more in the nature of a comment that the State’s proo f wa s uncontroverted

and overwhe lm ing. Moreover, there was no direct reference to the defenda nt’s failure to testify nor any

other alleged prosecutorial improprieties. Under the se circumstances this Courthas held

that a defendant ’s Fifth

Amendmen

t rights were not violated. See State v. Copeland , 983 S.W.2d 70 3, 709 (Te nn. Crim. A

pp. 1998) . This issue

is without me

rit.
Victim’s Testimony

Concern ing I dentific ation of th

e Defe ndant Shortly After the Commission

of the Crime The defendant complain s that the t rial cou rt erre d in allowing pawn shop emplo ye e Chris Farristo testify

that approximately two (2) hours af ter the robbery

Farris identified the defendant as the robber. At the time of this ide ntificat i on the police had returned to the pawn shop with the defendant in the backseat of the patrol car. The def end ant maintains that this identification procedure was too sugge stive.
This Court has held that on-the-scen e inve stigato ry show-upssuch as th

e ty pe involved in the inst ant case ar e permissible within a reasonable time after the commission of an offe nse. See State v. Moore , 596 S.W.2d 841, 844 (Tenn . Cri m. App . 1980 ) (cit ing Bates v. United States , 405 F.2d1104, 1106

(D.C. Cir. 1968). Ev en if this show-up procedure was unduly suggestive, a per se ruleof exclusion of evidence concerning a line-up or show-up is not warranted if the identification can otherwise be shown to be reliable. State v. Philpott , 882 S.W.2d 394, 400 (Tenn. Crim. App. 1994). Cit ing Neil v. Biggers , 409 U.S. 188, 199 (1972); this Court held that reliability of a n identific ation may

be deter mined by analy zing five (5) factors:
1. the opportunity of the witness to view the c riminal at the time of the crime; 2. the witness’ degree of attention at the time of the c rime; 3. the accuracy

of the witness’ prior description; 4. the level of certainty demonstrated at the confrontation; 5. the time elapsed between the crime and the conf rontation. Philpott , 882 S.W.2d at 400.
In this case approximately two (2) hour s after the robbery Farris identified thedefendant as the man who r

obbed him

at g unpoint. Farris had seen the defendant from only a few feet away during the defendant’s initial visit to the pawn shop an d d ur in g t he ro bb er y. Farriswas abso lutely certain of the defendant’s identity as the robber. Und er these circ umstances we find evidence of Farris’s out-of-court identification of the def endant was properly

admitted.-8- Destruction or Loss of Evidence
The defendant’s defense at trial was esse ntially that he was too intoxicated at the time of the robbery to form the necessary

culpable mental state for robbery , i.e. “intentional or knowing.” An open bottle of Early Times whiskey , missing about two thirds of its conten ts, was found in the defendant’s car when he was arrested. By the time of trial the partially empty bottle of whiskey had either been lost or destr oyed while in

police custody . The def

endant ma

intained this parti ally

full bottle of whiskey wa s essential to his defense. He filed a motion to dismiss the case against him on the grounds that the failure of police to preserve this evidence deprived him of a fair trial in violation of our federal a

nd state c onstitution s.
In the case of State v. Ferguson , 2 S.W.3d 912, 916 (Tenn. 1999), our state supreme court adopteda test for

courts to use in determining whether the loss or destruction of evidence deprived a defendant of

a fair trial. The initial analytical step in this test for dete rmining whether the police had any duty to prese rve evid ence wa s descri

bed as fo llows:
Whatever duty the Constitution imposes on the States to preserve e vidence, that d uty must be lim ited t o evid ence th at mi gh t b e expected to play a signif

icant role in the suspect’s defense. To meet this standard of c onstitutional materia lity , evidenc e must both

possess an exculpatory value that wa s apparent before the evidence was destroyed, and be of such a nature that the d efenda nt would be

unable to obtain co mparabl e evidence by other re asonably

availab le means

. Id. at 917. Although, the defe

ndant did f

ile a “Mo tion to Preserve Evidenc e” some m onths prio r to trial , there is no evidence in the record as to whether the whiske y and bottle were

lost or destroyed bef

ore or a fter this motion. There is nothing in the record to indicate that the bottle of whiskey wa s appare ntly e xculpato ry . Ind

eed, the defenda nt does not

tell us how

authoriti es were

supposed

to know of hi s intoxicati on defen se before trial. Moreover, the State stipulated that about two-thirds of the bottle’s contents were missing, and the trial judge of fer ed the defendant the option of demonstrat ing with anoth er bottle and wate r how much alcohol

was in the

bottle. Under thes e c ircumstances w e hold that the trial court did not err in deny ing the motion to dismiss the defendant’s case for the loss of evidenc e. Jury I nstructions
The defendant requ e sted that the following instruction be given to the jury as part of the instructions on capacity

to form a cu lpable mental state: “If y ou are not satisfied bey ond a reasona ble doubt that the defendant possessed the culpable mental state of int entio nal or knowi ng, then you must find him not guilty .”-9-

It appears that this instruction was given when the trial judge instructed the jury on

how the panel was to consider evidence of the defenda nt’s intoxication. Imme diately before this instruction the trial judge informed the jury of the meaning of acting int entionally and knowing ly under Tennessee law. The

defenda nt’s arg ument on a

ppeal ap pears to be that the trial cour t’s failu re to in se rt the requested instruction at the point in the charge whe re the defendant wanted constitutes reversible error.
It appears that the trial cour t did not refuse to give the defendant’s spec ial instruction, but rather that the court declined

to repeat it at another point in the instructions. However, since we have notbeen directed to any

applica ble autho rity withrespec t to this disc

reet point, we will analy

ze this issue as if the special request had been denied.
In State v. Cozart , 54 S.W.3d 242 (Tenn. 2001), our state supreme court directed that a court reviewing the denial of a

request for

a spe cial jury instr uctio n should view the

deni al in t

he co ntext of the entire jury

charge. Id. At 245. The denial of a special or additiona l instruct ion is err or only if the trial court’s jury

instructions do not fully and fairly state the applicable law. Id.
In the instantcase the jury was fully apprise d that in order to convict the defenda nt they must unanimous ly

agree bey ond a rea sonable d

oubt that th

e defen dant act ed intent ionally or kn ow in gl y. They were inf ormed tha t if for a ny r eason the y w ere una

ble to reach this conc lusion the y mu st acquit. It is indeed difficult to fathom what the defendant’s special request would have a dded to the jury’s understa nding of their duty

and the a pplicabl e law. Th

is issue is t

herefo re withou t merit. Sentencing
The defenda

nt claims that his sentence of nine y ears incarceration is excessive. He re aches this conclusi on based

on his beli ef th at the tri al court should have either found him to be an especia lly mitigated offender, or sentenced him to the minimum eight (8) year se ntence as a standard Range I off

ender. “ When revi ewing s entencin g issues . . . , the appellate court shall conduct a de novo review o n the rec ord of suc h issues. Such review shall be conducted with a presumption that the determinations made by the court from

which the appeal is taken are correct.” Tenn. Code A nn. § 40-35-401(d). “Howev er, the presumption of correctness which accompanie s the trial court’s action is conditio ned upon t he affi rmative s howing in the record that the trial court considered the sentencing principles and all relevant facts an d circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider the defe ndant’s potential for rehabilitation, the trial and sent en cing hearing evidence , the pre-sentence report, the sentencing princ iples, the sentencing alternative arg uments, the nature and character of the offense, th e enhancing and mitig ating f actors, and the de

fendant ’s statem

ents. Ten n. Co de Ann. §§ 40-3 5-103(5), -210(b); Ashby , 823 S.W.2d at 169. We are to also recognize that the defendant bear s the burden of demonstrating that the sentence is improper. Ashby , 823 S.W.2d at 169. Tenness ee Code A

nnotated section 4 0-35-109provides : (a) The cour

t may fin d the defendant is an especially mitigated offender, if:3 The tri al judge specif ical ly s tate d at th e sent encing hearin g that he was not

fin ding that the defen dant had a history of unw illingness to com ply with co ndition s of a sen tence involvin g relea se into to com munity. See Tenn. Code Ann. § 40 -35-1 14( 8). R ather the trial judg e seem ed to fi nd th at pa st eff orts at r ehabi li tating the defe ndant had f ail ed, thus warranting an enh ance d sentence. While such a consideration i s applicable in determini ng if an i ncarcerative senten ce is ap pro priate , see Tenn. Co de A nn. § 4 0-35 -103 (1)(c ); Stat e v. Ashby , 823 S.W.2d 166 (Tenn. 1991), s uch
a consideration is not list ed in the st atutory e nhanc ement fac tors whi ch ar e th e onl y f actor s al lowabl e for

consi deration in enha ncing th e length of a sen tence

. Stat e v. Anders on , 985 S. W.2d 9 (Tenn. Cr im. App. 199 7). It was error to use thi s consi derati on to enhanc e the l ength of defendant ’s s entence.
4 Since we have concl uded re solu ti on of t his is sue t

urns on one clear ly appl icable enhancement fact or, we nee d not address the issue of whet her this of

fense consti tutes one indi ctable offense of robbery thereby making the “multiple vi cti m” enhan cer ap plicab le; See , State v . Lewis , 44 S. W.3d 507-08 (Tenn. 2001 ); or two indict able offenses, one for each victim, the reby m aking u se of the “multiple victim” enhan cer ina ppr opr iate. See, State v . Imfeld , 70 S. W.3d 698 (Tenn. 2002 ). -10-

(1) The defendant has no prior felony convictions; and (2) The c ourt find s mitigat ing, but no enhanc ement fa ctors. (b) If the court finds the defendant an especially mitigatedoffende

r, the court shall reduce the defendant’s statutory Range I minimum sentence by ten percent (10%), or reduce the rele ase elig

ibility date to tw enty

percen t (20%) o f the sen

tence, o r both reducti ons. If the court employ s both reductions, the calcu lation for releas e eligi

bility shallbe made by first reduc ing the sentenc e and the n reduci ng the r elease eligibil ity to twenty perce

nt (20%). (c) If th e defendant is found to be an especially mitigated offender, the

judgment of convicti on shall so

reflect. (d) The finding that a defendant is or is no t an e specially mi tigate d offend

er is ap pe al ab le by e it he r p ar ty. Tenn. Code Ann. § 40-35-109.
It appears that even if a defenda nt is eligible for especially mitigated offender status, the decision to sentence him in such a manner lies within the discretion of the trial judge. Tenn. Code Ann. § 40-35-1 09 (Sente ncing Co mmission Comm ents); State v. Braden , 867 S.W.2d 750, 752 (Tenn. Crim. App. 1993). The finding of even one enhanc ement factor disqualif ies a defendant from consideration as an especially mitigated offender. Braden , 867 S.W.2d at 752.
In the in stant case, t he tri al jud ge found that three enhancement factors and one mitigating factor applied to the defendant’s sentence. First, the trial judg e found that the defendant has a record of adjudications as a juvenile delinquent for actions that would be felonies if committedby a n adult. Tenn. Code Ann. § 40- 35-114 (2 0). Next, th e judge found tha

t prior punishments, presuma bly as a juvenile, had not corrected the defendant’ s propensity for cr iminal behavior. 3 Finally, the trial judge found that there was more than one victim involved

in the commission of the offense. Tenn. Code Ann. § 40-35-114(3) 4 . As a mitigating factor, the trial court found tha t the defendant’s mental condition significantly e

xcused his cul pa bi li ty f or the offense. Tenn. Code Ann. § 40-35-113(8).-11-

After balancing all

of these considerations the trial judge concluded tha t a nine (9) ye ar

sentence of incarceration, one yea

r above the minimum sentence for the offense and offender, was a ppropriate.
The record

in this case reflects that the defendant wa s adjudicated a delinquent for two drug offenses th at wo ul d c on st it ut e f el on ie s i f c om mi tt ed by an adult. S eeTenn. Code Ann. § 39-17- 417(c)(2), (g)(2). Th

us, t his enhancement factor was properly applied by the trial cour t, and the defendant is theref ore not eligible f

or especially

mitigated offender status. Moreover, considering the properly a

pplied enhancement

factor and the mitigating factor found in this case, we are of the opinion that a sentence of nine (9) y ears, one year a

bove the relevant minimum sentence in this case, is reaso nable. T

his issue iswithout me

rit.
Conclusion In light of the fore going, the judgment of the trial court is AF FIRMED.

___________________________________ JERRY L. SMITH, JUDGE