# FILED
February 5, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9710-CC-00480 Appellee, ) ) Montgomery County ) v. ) Honorable Robert W. Wedemeyer, Judge ) ) (Aggravated Robber y and CRAIG MICAH LEAK, ) Aggravated Kidnap ping) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Gregory D. Smith John Knox Walkup One Public Square, Suite 321 Attorney General & Reporter Clarksville, TN 37

040 (On Appeal) Douglas D. Himes Assistant Attorney Gener al Charles L. Johnson, II 425 Fifth Avenue North 508 Franklin Street Nashville, TN 37243-0493 Clarksville, TN 37040 (At Trial) John W. Carney, Jr. District Attorney General Steven Garrett Assistant District A

ttorney General 204 Franklin Street, Suite 200 Clarksville, TN 37

040-3420

OPINION FILED: _________________________

____ AFFIRMED IN

PART, VA

CATED IN PA

RT, REMAND ED
L. T. LAFFER

TY, SENIOR JUDGE-2- 

### O P I N I O N
The appellant, Craig Micah Leak, was c onvicted of two counts of ag gravated robbery and o ne count of aggrava ted kidna pping. Th e trial cou rt impose d consecu tive twelve-year

sentences on each count, with a release eligibility of thirt y perce nt. The appellantchallenges these sentences, arguing that (1) the trial court misapplied certain enhancement factors and his sentences are, therefore, excessive; and (2) the order of
co ns ec ut iv

e s er vi ce wa s n ot wa rr an te d. We affirm in part, vacate in par t, and remand to the trial court for further pr oceedings consistent w ith this opinion.

This case involves two victims and two se parate i ncidents. Under count one, the appellantwas convicted of the aggrav ated robbery of Regina Gr ay. The evidence at

trial revealed that, on the evening of July 10, 1995, Gray l eft a baseball game and returned to her vehicle, which was parked in a bank parking lot. Immediately after Gray got in her car, the appellant, brandishing a p istol, approached and ordered h er to exit the vehicle. The appellantthen fo rced Gray in to some we eds behi nd her veh icle and d emande d money. She gave him all that she had, approximately one doll ar and seventy-five cents. Gray was not seriously harmed.

On counts two and three, res pec ti vely, the appellant w as convicted of the aggravatedrobbery and aggravated kidnappin g of Kimberly Messina. O n August 28, 1995, Messinaexited In ter state 24 at an off-ramp near Clarks ville, Tennessee. When she stopped her vehicle at the end of the off-r amp, the appellant opened her passeng er-side door and entered the vehicle. He was armed with a handgun. He first ordered Messina out of the car, then changed his mind and ordered h er to d rive. While she drove, the appellantrummaged through her purse and took eight dollars, a w

atch, and a bracelet. He repeatedly threatened Messina, and, w hen she began to cry, he struck her

in the head with his pistol. Messina c ried harder, and the appellant struck her again and tol d her to “shut the f--- up.” A few minutes later, he hit her a third time. M essina told the appellant that she was going

to be sick, and he directed her to stop but not to get out of the car. Once stopped, however, Messina opened her door and rolled out of the vehi cle. She then ran-3-

to a nearby service s

tation for help. Before fleeing, the appellant wrote “I’l l find you” on the windshield of Messina’s vehicle with her lipstick.

The appellant was sentenced as a Range I offender to twelv e years’ incarceration foreach of the three offenses, with all sentences to run consecutively. His effect ive sentence is, there fore, thirty-six years. Aggravated robbery and aggravated kidnapping are both Class B felonies, see Tenn. Code Ann. §§ 39-13-304(b)(1), 39-13-402(b), and carry
a Range I sentence of eight to twelve years, see Tenn. Cod e An n. § 40-35-112(2). The presump tive sentence for a Class B felony is the mi nimum sentence in therange, absent enhancement or mitigating facto rs. See Tenn. Code Ann. § 40-35-210(c).

At the appellant’s sentenc ing hearin g, the tria l court fo und two enhancement factors applicable to all counts: the ap pel lant has a history of cri minal convictions or criminal behavior in addition to those necessar y to establish the appropr iate rang e and th e appellanthas a hist ory o f unwillin gness to comply with the conditions of a sentence involving release in the

community. See Tenn. Code Ann. § 40-35-114(1), (8). In addition, the trial court found that the appellant treated Messi na with exceptional c ruelty and applied that enhancement to count s two and three. See Tenn. Code Ann. § 40-35-114(5). The trial court found no mitigating factors, and the appellant suggests none her e. Finally, the trial court fo und that the appe llant has an extens ive record of criminal activ ity and that he is a dangerous offender whose behav ior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is h igh. See Ten n. Code Ann. § 40-35-115(2 ), (4). Bas ed on these findings, the trial court enhanced the appellant’s sentences on each count to the Range I maximum of twelve years and ordered all sentences to run consecutiv ely. On this appeal, the appellant ar gues that these sentences are excessiv e and that consecutive sentenc ing was not warr

anted.

When an accused challenges the l ength or manner of service of a sentence, it is the duty of this Court to conduct a de novo review on the record “with a

presumption that the determinationsmade by the court from which the appeal is taken are correct.” Tenn. Code1 See Tenn. Code Ann. § 40-35-114(9) ( “The defendant possessed a fi rearm, explosive device or other deadly weapon during the commiss ion of the offense.”); Tenn. Code Ann. § 40-35- 114(10) (“ The defendant had

no hesitati on about committing a cr ime when the risk to human life was high.”). -4- Ann. § 40-35-401(d). This presu mption “is conditioned upon the affirmative showing in the
rec ord that the trial court cons idered the sentencing pri nciples and all relev ant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a d e no vo review of a sentence, th is Court must consider ( 1) the evidence, if any, received at the trial and th e se ntencing hearing; (2) the presentence report; (3) the principles of sent encing and arguments

as to sentencing alternativ es; (4) the nature and characteristics of the criminal conduct invo lved; (5) any statut ory mitigating

or enhancement factors; (6) any statement made by the accused in his own behalf; and (7) the potential or lack or

potential for rehabilitatio n or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Cr im. App. 1987). The
a ppellantcarries the burden of show ing that his sentence is improper. See Tenn. Cod e Ann. § 40-35-401(d) Sentencing Commission Comments; State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).

SENTENCE ENHANCEMENT

The appellant does not challenge the applicability of enhancem ent factors (1) or (8). Instead, the appellant begins by vigorously

arguing that enhancement factor s (9) and (10) 1 should not have applied. We agree; but the n, so did the trial judg e. Contrary to the assertionsof counsel, the trial court did not enhance the appe llant’s sentence pursuant to either factor (9) or (10). To the contrary, the trial judge specifically stated, “[i]t would b e error for me to consider them as enhancing factors.”

Of the enhancementfactors actually applied , the appellant challenges onl y the trial court’s finding that

the appellant treated the vi ctim with exceptional cruelty. He argu es that that factor

should not apply because (1) the evidence does not support that he in fa ct-5-

treated Messina with exceptional cruelty, and (2) “even if he did, said act would ‘terrorize the victim,’ whic

h is an element of the offense” of aggrav ated kidnapping.

When reviewing the ap plication of this enhancement factor, we began our analysis with the “trial court shoul d state what actions of the defendant, apart from the elements of the offense, constituted ‘exceptional cruelty.’” State v. Poole , 945 S.W.2d 93, 98 (Tenn. 1997) (quoting State v. Goodwin , 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995)). In the presentcase, the trial court found tha t the victim, Ms. Mes

sina, was basically

terrorized by the appellant for thirty to fort y-five minutes. For th is factor to be appropriate, the record must reflect c ruelty “ over and above” that inh erently attendant to the cr ime of which the defendant is convicted. State v. Embry , 915 S.W.2d 451, 456 (Tenn. Crim. App. 1995), per . app . denied (Tenn. 1996). This enhancement factor may be applicable in convic tions foraggravated robbery and aggravated kidnappi ng. Poole , 945 S.W.2d at 98-99 (holding this factor applicable to especially aggravated robbery where elderly woman w as beaten unconsciouswith baseball bat); State v. Kern , 909 S.W.2d 5, 7 (Tenn. Crim. App. 1993), per . app . denied (Tenn. 1994) (holding this factor appl icable i n especially aggr avated kidnapping and especially aggravated robbery case where victim was s ubjected to repeated sexual remarks and forced to remove her clothing at knifepoint); State v. Carter , 908 S.W.2d 410, 412-13 (Tenn. Crim. App.), per . app . denied (Tenn. 1995) (holding this factor applicable in especially aggravated kidnapping and aggravated robbery case where the unclothed victim was left outside in freezing weather); but see Embry , 915 S.W.2d at 456 (rejecting this factor where rape victi m was forced at knifepoint to remove her clothing and subjected to sexualacts); Manning v. State , 883 S.W.2d 635, 639 (Tenn. Crim. App. 1994) (rejecting this factor where the victim was abducted in daylight and forced into four separate acts of sexual activity whi le being held at knifepoint); State v. Ivory Thomas , No. 02C01-9705-CR-00179, 1998 WL 195953 at *3-4 (Tenn. Cr im. App., Jackson, April 24, 1998) (rejecting this factor where elderly victim was struck in head with pistol and her car was stolen).2 Although we affirm the trial court’s appl ication of enhancement factor (5), we also

note the trial court would presumably have imposed the maxim um sente nce on co unts two and three even in the absence of thi s factor. As noted above, the t rial court enhanced the appellant’s sentence t o t he maximum of the appellant’s rang e based solely on enhancement factors (1) and (8), which also apply to counts two and three. The appellant does not challenge the applic ation of factors (1) or (8),and we notice no error.

-6- We believe the facts in this record establish the appellant did treatMs. Messina with cruelty beyond any conduct requisite to his offenses. During thi s ten- to fifteen-minute ride, the appellant repeatedly str uck Messina in the head with his gun and repeatedly threatened her both during the kidnapping and her subsequent escape, i.e. , th e note, I”ll find you,” written by

the appellant on the windshield of the vi ctim’s car with the victim’s lipstick. The appellantargues that the trial court’s finding of “terrorize the victim” was an element of the offense of aggravated kidnapping . H owever , we note the indictment all eges the kidnapping
was aggravated by the use of a deadly weapon, Tenn. Code Ann. § 39-13-304(5), and not bythe intent to inflict seri ous bodily injury on or to terrorize the victim or another, Tenn. Code Ann. § 39-13-304(3).
Therefore, although our review is de novo , the decision of the trial court is presumed correct, and the appellant has failed to carry his

burden of showing that his sentences are improper.

The appellant’s second argument is likewise without merit. Althoug h “the intent to

. . . terrorize the victim” can be an element of the offen se, Tenn. Code Ann. § 39-13-304(3), it was not relied upon in the instant case to charge and find aggravated kidnap ping. Rather, the element relied upon by th e state wa s the appellant’s possessi on and threatened use of a deadly weapon. See Tenn. Code Ann. § 3 9-13-30 4(5). Thus, the appellant’s acts of cruelty were clearly not the “very facts” which const ituted aggravated kidnapping. See Manning , 883 S.W.2d at 639. 23 Interestingl y , counsel for the appellant does not dispute the appellant’s cri minal

historyfor the purpose of sentence enhancement purs uant to Tenn. Code Ann. §40-35- 114(1). -7- CONSECUTIVE SENTENCING

The appellantnext argues that the trial court erred in ordering his sentences to be served consecutively. Tenn essee C ode Annotated § 40-35-115(b) prov ides that a sentenci ng c ourt may order consecuti ve sentencing upon finding any one of several enumerated criteria by a preponde rance of the eviden ce. In th e present case, the trial court found two ofthese criteria: (1) the appellant is an offender w hose record of criminal activity is ex

tensive and (2) he is a dangerous offender whos e behavior indicates li

ttle 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)(2), (4).

The a ppellant challenges only the trial court’s finding that the appellant has a n extensive criminal record. Couns el for the app ellant asserts that “[the appellant] has no convictions.”

(emphasis added)

. 3 Counsel’s assertion i s absurd. At his sentencing hearing, the appellant admitted he had been convicted of several cr imes, i ncludin g theft under $500; manufacturing, selling, or delivering cocaine; and other, albeit relatively minor, offenses. The appellant’s presentence report lists additio nal co nvictions. Thus, we find
no error in the trial c

ourt’s finding that the appell ant has an extensive record o f criminal activity.
Moreover, as noted above, the appellant doe s not challenge the trial court’s finding that he is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the ris k to hum an life is high. See Tenn. Code Ann. § 40-35-115(b)(4) . Because a trial court need only find one of the statutory alternatives in order to impose consecutive sentencing, even if the appellant had-8-

no criminal history w

hatsoever, consecutiv

e s entenci ng would be warr anted. This issue is without merit.

RELEASE ELIGIBILITY
Finally, both the state and the appellant call to our at tention the trial court’s

entry of
a thirty percent release eligibility for the appellant’s convicti on on count three, aggrav ated kidnapping. The Tennessee Legislature has mandat e d that sentences for aggrav ated kidnappings committ ed on or af ter July 1, 1995 be served at one hundred per cent. See Tenn. Code Ann. § 40-35-501(I)(1) , (I)(2)(D). The appel lant’s kidnapping wa s committed on August 28, 1995. Therefore, a thir ty percent release eli gibility is impr oper.

We vacate the appellant’s sentence as to count three, aggravated kidnappin g, and remand this conviction for the trial court to enter an or der reflecting the appellant’s release eligibility at o ne hundred percent.

____________________________ _________

_ L. T. LAFFERTY, Senior Judge
CONCUR:

(Not Participating) PAUL G. SUMMERS, Ju dge

__________________________________ JOE G. RILEY, JUDGE