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

Briefs A ugust 2, 2005
STATE OF TENNESSEE v. JERRY BELL Direct Appeal from the Criminal Court for Shelby County Nos. 01-11775, 01-11783, 01-11784 Arthur T. Bennett, Judge

No. W2004-01355-CCA-R3-CD - Filed Septem ber 12, 2005

The appellant, Jerry B ell, was convicted by a jury in the Shelby County

Criminal Court of

two count s of aggravated robbe

ry and one c ount of

aggravated burg

lary. The a

ppellant received a total effective sentence of twenty y

ears incarceration

in the Tennessee Department of Correction. On appeal, the appellant challen ges the sufficiency of the evidence supporting his convictions and the sentence s imposed for those convicti ons. Upon r

eview of the rec ord and the partie s’ briefs, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appe al as of Right ; Judgme nts of the Cr iminal Co urt are Affirmed.
N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID H. W ELLES and J.C. M C L IN , JJ., joined. Tony N. Bray ton (on appeal), Robert Wilson Jones (on appea l ), William E. Robilio (at trial), and Harry Say le (at tr ial), Mem phis, Ten nessee, for the a

ppellant , Jerry

Bell.
Paul G. Su mm er s, At to rn ey G en er al an d R ep or te r; Ra ch el E. Wi ll is , A ss is ta nt At to rn ey Ge neral; William L. Gibbon s, Dist rict Attorney Ge

neral; and Paul Hagerman, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

I. Fact ual Backgro und
At trial, Albert L. Bailey

testified that on April 27, 2001, he and hi s w if e, Ne ll ie V. Ba il ey, lived in a house located at 6700 Birch Run Lane. Mr . B ai le y st at ed th at on th at da y, h e w as ei gh tyseven ye ars old a

nd his wife was eighty

-five. They

were both retired. Just ten day s prior, Mr. Bailey had underg one his second heart operation, and, on April 27 , he was s till recu peratin g. As a r esult, he could not perform certain chores. There fore, early in the morning of A pril 27, Mr. Bailey ’s neighbor had run an “edger” in the a rea where the Bailey

s’ yard met the side

walk. At 9:00 a.m., Mr. Bailey went outside to sweep the grass clippings from the sidewa lk.-2-

Shortly thereafter, a y

oung man, later identified as the appellant, walked up to Mr. Bailey and
as kedfor the tim e. Mr. Bailey responded that he had left his watch in the house. Mr. Ba iley recalled, “He had

his arm, his h and unde

r his arm a

nd he step ped a littl e bit close

r to me and he sa

id ‘go in the house old man, don’t make me kill you.’” The appe llant held a dark colored pistol in the hand underneath his arm. Mr. Bailey

stated that the appellant pointed the pistol at him as he directe d Mr. Ba

iley into the back door of the house. They we nt from the carport to the patio then into the laundry room of the house. When they enter ed the laundry r

oom, the appellant grabbed Mr. Bailey ’s arm and pressed the pistol into the back of Mr. Bailey ’s head, pushing him further into the house. From the laundry room, Mr. Bailey

called outto his wife who was sitting in the living room reading the B ible. Mr. Bailey te stified, “I alerted my wife and told her that I wa s being held hostage.”

Mrs. Ba iley

got up from th e chair

in which she was sitt

ing. Mr. Bailey

testifie d that Mrs. Bailey was “alarmed and hysterical.” The appe llant ordered the Baileys to sit on the couch. The appellant kept telling Mr. B ailey , “[T]ake me to the money, I want the money, I

know you g ot money.” Mr. Bailey

told the appellant that they did not have a ny money
. Mr. Bailey

then recalled that he had money in a

cigar box that he had collected from his Sunday school class. Mr. Bailey retrieved the cigar box and gave it to the appellant. The appe llant took t he money , approxima

tely sixty-five dollars in

cash, an d cramme d it into hispocket. Mr. Bailey testified that both he and his wife were afraid during

the encounter.

Mr. Bailey te stified

that his bil lfold

was “lay ing on the bar in the little kitchenette

with [his]
car keys and [his] knife.” The appe llant took the keys and the knif

e, but he found no money in the billfold. After searching the billfold, the appellant pressed Mrs. Bailey as to whether she had any
mo ne y. The appe llant ret

rieved M rs. Bail ey ’s purse

and dumpe d the cont

ents on the floor. He took all of the cash that was in the purse, approximately fifteen d ollars. Th e appellant then ripped the living r oom telephone off

of the wa ll.
After the appellant had taken money from the Bailey s, they hear d someone come into the back door of th e house. Mrs. Bailey a sked who had entered the house. An unidentified man wearing
a ski mask c ame into the living room. The man asked Mr. Bailey if he had a gun in the house. Mr. Ba il ey, not thinking about the shotgun in his bedroom closet, responded that he did not have a gun inthe house . Mr. Ba

iley believe d the man w as int erested in knowing if there was a pistol in the house. The appellant kept his gun trained on the Bailey s as the other man went through the house, pulling o ut drawers and moving the mattr esses. The appell ant “wa s just using curse w ords still thinking that [the Baileys] had more mone y.”
After discoveringthe shotgun, the man in the mask returned to the living room and showed the appellant the shotgun. The appellant looked at Mr. Bailey

and stated, “I oug

ht to shoot you, y

ou lied to me.” The appellant took the shotgun from theother man and asked Mr. Bailey

if he wanted to hold the shotgun. Mr. Bailey said no. He explained, “They [had the] pis tol in

one hand and the gun in the other and if I

reached a gun I

figured he’d shoot me.”-3-

The appe llant told

the maske d man to fin

d somethin

g to use to tie the Baileys. Mr . Bailey told the men that the Bailey s’ granddaughter ha d left a jump rope in the kitchen. The appellant made Mr. Bailey go to the kitchen and get two chairs. Mr. Bail ey was instr ucted to p osition the

chairs s o they faced one another. Mr. Bailey sat in one chair, and Mrs. B ailey sat in th e other. Mr. Bailey testified that Mrs. Bailey

“has osteoporosis and

she beg ged the

m not to tie h er arms b ack” be cause she could not move her a rms be hind h er. M

r. Ba iley reca lled, “My feet was t ied to get her. We wasn’t – wasn’t tied to the chair, we was just tied together and our hands tied together.”
Th e app ellant and the masked man left the house through the bac k door. As soon as the Ba il eys heard th e men sta rt the Bai leys’ ca

r and leave, they

began try

ing to free themselves from their bonds. Mr. Bailey

was able to untie Mrs. Bailey , and she in turn un tied him. The Ba il eys called police to

report the crimes . The per petrato rs took M r. Baile y’ s knife c ollection , coin collection, shotgun, sixty-five dollars from Mr. Bailey ’s Sunday school collection, and two of Mr. Bailey’ s ri ng s. Th ey a ls o t oo k s ev er al it em s o f M rs . B ai le y’s je we lr y, including some sentimental pieces, fifteen d ollars fro m Mrs. Ba iley ’s purse , a telephone and answer ing mac hine, and the Bail ey s’ car. Mr . Bailey

opined tha

t the orde al lasted

approxima

tely forty -five min utes.
Officer James Rudd o f the Me mphis Police Department testified at trial that he was dispatched

to the Baileys’ home on April 27, 2001, to inv estiga te a home inv asion or r

obbery call. Mrs. Bailey me

tOfficer Rudd at the door, say ing that they ha

d just been robbed. After ascertaining that the Bail ey s did not ne ed medic al assista nce, Of ficer Ru dd walke d throug

h the Ba iley s’ house. He discovered that it was “ransacked” and “in disarray.”

He recalled that papers were everyw here, drawers had been pulled out, and furniture ha d been over turned.
Officer Pa tri cia Turnmire with the crime scene unit of the Memphis Police Depar tment testified that she was dispatched to the Ba iley s’ residence to process the scene. She obser ved that the furniture in the house had been disturbed, drawer s had been

pulled out and

rifled through, and mattresses ha d b ee n p ul le d f ro m t he be ds . S he fo un d a je we lr y b ox and several smaller boxes discarde d on one of the beds. Alth

ough Of ficer T urnmire t ested se veral ob jects for viable fingerprints, she found none. Sergeant Mark Moore testified that on May 17, 2001, he went to 6215 Villa

ge Par k to locat e a suspect. The appellant was found hiding in a bedroom closet in the house, and he was take

n into
cu st od y. Thereaft er, on May 22, 2001, Serg eant Moore spoke with the appellant. The appellant wanted to give a statemen t. After being a pprised o f his Miranda

rights, the appellant gave a sig ned statement , implicating his involvement in the Bailey robbery. Ser

geant Moore recalled that the appellant was “very

cooperative.”

Inhis statement, the a

ppellant admitted h

is participation in the robbery of Albert Bailey

at 6700 Birch Run Lane on Apr il 27, 2001, at or about 9:30 a.m. The ap pell ant stated that he was armed with “my 45” at the

time of th e r obbery. He

claimed that Sterling Barrett also participate d inthe robbery . The appellant acknowledged that he a nd Barrett took the Bailey s’ car, a shotgun, some jewelry, a

nd about thirty dollars.-4-

Sergeant Moore had the appellant to describe the events of A pril 27, 2001. The appellant stated:

Iwas walking in the neighbo rhood an d I s aw hi m [ Mr . B ai le y]

outside by the curb. I walked up to him and asked him what time it
was. He was walking toward th e house while we were talking. I pulled the gun on him when we got close to the garage. We finished walking into the house. Then I asked him

who else was in the

house and he said his wife. I

waited a while and sat both of them down on the couch. I

two way ’d (two w ay

pager ) Sterling and told hi

m that I
was re ad y. Sterling came in the house and tied them up. Then I sat down on the couch and he searched the house. H e said he found a [shotgun] and he brought it in the den. Then I told him to sit down [so] I co uld look. So

we to ok their

telephones and we got their car keys and lef

t.
The appellant told Sergeant Moore that the gun which policefound in the shed behind the house at 6215 Village Park was the same gun that he took from the Bailey s. Sergeant Matt Pugh with the Memphis Police Department testified that on May

19, 2001, he received a call from Mr. Bailey. Mr . Bailey ha d seen the appellant’s picture in the newspaper and
r ecognized

him as the man who had held the gun on him and his wife. Based upon Mr . Bailey’ s telephone call, Sergean

t Pugh prepared a six person photographic ar ray. He took the array

to the Baileys’ home. Mr. Bailey “immediately” identified the appellant as the perpetrator with the gun.
Officer Timothy Way

ne Cooper with the crime scene unit of the Memphi s Polic e Department testified that on May 7, 2001, he wa s dispatched to a residence at 6215 Village Park. A storage shed
was located behind the residence. While searching the shed, Of ficer Cooper discovered a shotgun inthe ceiling panels of the shed. Mr. Bailey later identified the shotgun as the one taken from him. The appellant presented no proof at trial.
Based upon the foregoing, the jury found the appellant guilty of the aggravate d burglary of the Bailey s’ home, the aggravated r

obbery of Mr . Bailey, a

nd the aggravated r

obbery of Mr s. Ba il ey. At the sentencing hearing, the tria l court found that

the appellant

was a Range I

standard offender. The trial cou

rt imposed

a senten ce of te n ye ars incarc erati on for each of the agg ravated robbery convictions an d a se nt en ce of fi ve yea rs fo r t he ag gr av at ed bu rg la ry c onviction. T he aggravated robbery sentences were to be served conse cutively to eac h other, with the aggravate d burglary convictionto be ser

ved conc urrently with the a

ggra vate d robbe ry sentenc es, for a total effective sentence of twenty y

ears. On appeal, the appellant challeng es the s uffic iency of the e vidence supporting his convictions and the sentences imposed by the trial court. II. Analysis-5- A. Sufficiency

of the Evidence
On appeal, a jury conviction re moves the presumption of the appellant’s innocence and replaces it with one

of guilt , so that the a

ppellant carrie s the burd

en of dem onstratin g to this court why the evide nce will n ot support the jury ’s finding s. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). The appellant

must estab lish that no

reasona ble trier of fact could have found the essential elements of the offense bey ond a reasonable doubt. Jackson v. V irginia , 443 U.S. 3 07, 319, 99S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).
Ac co rd in gl y, on appeal, the State is entitled to the strongest legitimate view of the e vidence and all reasonable inferences which may be drawn therefrom. State v. Will iams , 657 S.W.2d 405, 410 (Tenn. 1 983). I

n other w ords, questions concerning the credibility of witnesses and the weight and value to be given the eviden ce, as w ell as all

factual issues raised by

the evidence, are resolved by the trier of fact, and not the appellate courts. State v. Pr uett , 788 S.W.2d 559, 561 (Tenn. 1990).

We will begin by a

n alyzing the appellant’s conviction for the agg ravated robbery

of Mr. Bailey andthe aggravated r

obbery of Mrs. Bailey. Aggravated robbe ry is defined a s robb ery accomplished

with a deadly weapon or by

display of any article used or f ashioned to lead th e victim to reasona bly believe it to be a deadly

weapon. Tenn. Code Ann. § 39-13-402(a)(1) (1997). Robbery is defined as “the intentional or knowing theft of prope rty from the per

son of another by

violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (1997). “A person commits theft of propert y if, with intent to deprive the owner of property, the

person knowingly

obtains or exercises control over the

propert y without th e owner’s effective consent.” Te nn. Code Ann. § 39-14-103 (1997).

Mr. Bailey te stified

that the appellant approached him as he was working in his yard and asked for the time. After Mr. Bailey was unable t o answer the appellant’s question, the appellant drewa pistol on M r. Ba il ey. The appe llant then led Mr. B ailey

at gunp oint into his

house. Mrs. Bailey was in the living room reading a Bible. The appe llant, hold ing the w eapon on

the Bail ey s, instructed them to sit on the couch and demanded money . He and his accomplice took money a nd propert y from both Mr. an d M rs . B ai le y. Th e a pp el la nt al so to ok a s ho tg un be lo ng in g t o M r. Ba il ey. The perpetrators left

Mr. and Mrs. Bailey

tied up as they absc onded with the Bailey s’ car. Mr. Bailey asserted that both he and Mrs. Bailey were afraid during the e

ncounter. Mr. Bailey ’s shotgun was found in a shed behind

th e h ou se in wh ic h t he ap pe ll an t w as ar re st ed . A dd it io na ll y, the appellant’s confession

corres ponds with

Mr. Bail ey ’s testimo ny. We conclu d e that the foregoing evidenc e amply establishes the appe llant’s guilt of the aggrava ted robberies of the Bailey s.
Inorder to sustain the appellant’s conviction for aggrava ted burglary , the State was required to prove tha

t the appe llant ente

red the B aileys’ reside

nce witho

ut the ef fecti ve co nsent of the propert y owner with the intent to commit a theft. Tenn. Code Ann. §§ 39-14-401(1)(A), -402(a)( 1), and -403(a) (1997). The evidence clearly establishes that

the appe llant ente

red the B aileys’ home withouttheir

effective consent. Specifically, Mr. Bailey testified that he did not

want the appellant to come into the house and take their property . As the appellant entered t he Bailey s’ ho me, he-6-

immediate ly

began demanding money . He proceeded to take cash and pr operty belong

ing to the Ba ile ys, again without their consent. Accordingly , we conclude that the evidence is more than sufficient to establish the appellant’s guilt of agg ravated burglary

. B. Sentencing
Onappeal, the appe llant cha llenge s the leng

th of the s entence s imposed by th e trial c ourt. Sp ec if ic al ly, the appe llant arg

ues that the trial c ourt incorrectly applied several enhancement factor s. Appellat e review o f the len

gth , range or m anner of service of a sentenc e is de novo. Tenn. Code Ann. § 40-35-401(d) (2003). In c onducting its de novo review, this court considers the following factor s: (1) the evidence, if any, received at the trial and

the sentencing hearing; (2) the presentence
r eport; (3) the principle s of sente ncing a nd arg uments as to sentencing al

ternativ es; (4) the natur e andch aracteristics of the criminal conduct involved; (5) evidenc e and information offered by t h e parties on enhancement and mitigating factors; (6) any statement

by the appellant in his own beha lf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35 -102, -103, -210 (2003); see also State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate the impropriety of his sentences. Tenn. Code Ann. § 40-3 5-401, Sentencing Commission Comments. Moreover, if the record reveals that the trial c ourt adequa tely considered sentencingprinciples and

all relevant facts and

circumstances, this court will accord the trial court’s determinations a presumption of correctness. Id. at (d); Ashby , 823 S.W.2d at 169.
At the time the appellant was sentenced, the statute provided that to determine the correct length of a sentence, the tri al court was to begin at the presumptive minimum, then the trial court would “enhance the se

ntence w ithin the rang e as appr

opriate for the enhancement factors, and then reduce the sentence as appropriate for the mitigating fac tors.” Tenn. Code Ann. § 40-35-210(e). The presumptive se nten ce for a Class B and a Class C felony is the minimum sentence within the appropr iate range. Tenn. Cod

e Ann. § 40 -35-210( c). The appella nt was sen

tenced a s a Range I standard offende r. Accordingly

, the pre sumptive se

ntence f or th e appe llant’s Class B felony convictions was eight y

ears and the presumptive sentence for his Class C felony conviction was three years. Tenn. Code Ann. § 40-35-112(a)(2) and (3) (2003). At the sentencing hearing, Mr. B ailey testified:

A s a victi m of a r obber y, my wife and I we re afrai d to go outside in our yard. B eing elderly retired people, our ho me tha t we had lived in for 18 yea

rs meant a lot

to us. We had a be autiful home and lawn. We enjoyed worki ng i n the yard a nd tending to our flowers

. After we were robbed, we did not feel safe in our home. We
were forced

to [sell] our h

ome and mo ve in

with our daughter. Many items that were stolen were things that meant a g reat deal to my wife and I and could not be re

placed. I had a

stroke due to the stress that
was brought on by the

robbery. This wa s something tha t we will
never forg et andhope never happens again. This has be en an-7- emotional and life-style c hange for us. We feel like that we we re forced to change our life be cause of this.
At the conclusion of the sentencing hearing , the trial court found the existence o f th e following enhanc ement fa

ctors: (2) The [appe llant] has a previous history of c riminal convictions or criminal behavior

in addition

to those ne cessar

y to est ab lish the appropriate range; (3) The [appellant] was a leader in the co mmi ssion of a n offens e involving two (2) or

more cr iminal ac tors; (5) A victim of t

he offe nse was p articula

rly vulnera ble beca use of age or physical or menta

l disability . . . ; (6) The [appel lant] tr eated or allowed a

victim to be

treated with exceptional cruelty during the commission of the offense; (7) The personal injuries inflicted uponor the amount of da mage to propert y sustained by or taken

from the v

ictim was par ticularl y g reat; (14) The felony was committ ed while on any of the fo llowing f

orms of release status if such release is from a prior felony c onviction: (A) Bail, if the [ap pellan t] is ultimately convicted of such prior fe lo ny; (21) The [appellant] was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by a n adult.

Tenn. Code Ann. § 40-35-114(2), (3), (5), (6), (7), ( 14)(A), and (21) (2003). The trial court enhanced each of t he appe lla nt’s sentences by two years, imposing

a ten-ye ar sentence for each aggravated

robbery c onviction and a five-y ear sentence for his agg

ravated burglary

conviction. On appeal, the appe llant arg

ues that the trial c ourt err ed in applying e

nhancement factors (3), (5), and (7).
Ini ti al ly, we note that the appellant does not conte st the application of enhancement factors (2), (6), (14 )(A), a

nd (21). We

conclude

that the r

ecord c ontains sufficient ev idence for the application of these enhancement factors.-8-

Regarding

the application of enhancement factor ( 3), w e note that “[o]ur cases have established

that enhancement for being

a leader in the commission of an offense does not require that the [appellant] be the sole leader but only that he be ‘a’ leader.” State v. Hicks , 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). The proof at trial revealed that the a ppellant held the Bailey s at gunpoint throughout

the entire ordeal, including while his cohort ransac ked their h o use. The appellant admitted that he “two way ’d” his accomplice to invite him to enter the house. Moreover, the appellant directed the accomplice to find something

with which to bind the Bailey s. We conclude that there was ample evidence supporting the application of this enhancement factor to each of the appellant’s crimes.
The appella

nt als o chal lenges

the appli cability

of enhan cement f actor ( 5), that the victims
were particu

larly vulnera ble due to their age. See Tenn. Code Ann. § 40-35-114(5). The evidence adduced at trial and at the sentencinghearing reveals that Mr. Ba iley was eig

hty-seven y

ears old at the time of

offenses. He had un

dergo ne his sec ond hear

t surge ry just ten da

ys prior to the

offense s. Becau se he was not strong enough to c ut the gr ass at the edge o f his y

ard on the morning of these offense s, his neig

hbor did it

for him. Mr

s. Baile y was eigh

ty- five y ears old at the tim e of th e offense s. She begged the

appella nt not to bind her han

ds behind her back

because her oste oporosis made it impossible for her to draw her arms behind her. Further, the re cord reveal s that the B aileys’ grand daught er fre quently

came to the reside

nce to check on the

status of her elde

rly grand parents

. We conclude that this evidence supports the applic ation of this enhancement factor to each of the appellant’s convictions. See State v. Dean , 76 S.W.3d 352, 378-79 (Tenn. Crim. App. 2001).
The appellant also challenges the application of enha ncement factor (7), that “[t]he personal injuries inflicted upon or the a mount of da mage to propert y su stained by or

taken fr om the vic tim
was particu

larly great.” Tenn. Code Ann. § 40-35-114(7) . The trial court applied this enhancement factor based u pon the damag e that resulted when the appellant and his accomplice r ansacked the Bailey s’ house. Moreover, the State concedes that there is no evidence in the record to support that the amount of p roperty da m age sustained by

the victims were particularly great. Based upon our review, we conclude that the record does not support the application of this enhancement factor on this basis. However, we conclude that this enhancement

factor is appropriate based upon the g reat personal injuries suffered by the Bailey s as a result of the offenses. This cour t has pre viousl y “construed

the legislative intent in

the term ‘ persona

l injuries ’ as broa

d enoug h to includ

e not only physical harm, but also severe emotional injuries and psy chological scar

ring.” State v. Will iams , 920 S.W.2d 247, 259 (Tenn. Crim . App. 1995) (citi ng State v. Smi th , 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994 )). For

example, th

is enhancement factor has been a pplied when a victim “suffered depression, anxiety, and other e motional problems . . . however, the record must indicate that [the victim’s] psychological injuries we re particularly

great before fac

tor [(7)] can be applied.” Id.

Inthe instant case, Mr. Bailey testified that before the crimes, he and his wife fr equently
en jo ye d being in the y ard of the home they had owned for eighteen y ears. After the crimes, the Bailey s were afraid to go into their ya rd. They became so afraid that they

were fo rced to s ell their home and move in with their daughter. Mr. Bailey categorized the impact of the crimes as an

“ emotional and

life- style cha nge ” f

or hi m a nd hi s w if

e. Ad di ti on al ly, Mr. Bailey suffered a stroke-9-

as a re sult o f the stress of the offenses. We conclude that this proof supports the applica tion of enhancement

factor (7). Ac co rd in gl y, we conclude that the trial court did not err in sentencing the appellant t o ten y

ears for each o f his ag grava ted robbe ry convicti ons and to f

ive y ears for his aggravated burg

lary conviction.
The appellant asserts that as a result of Blakely v. Washing ton , 542 U.S. 296, 124 S. Ct. 2531 (2004), the trial court shou ld n ot have acted as fact finder in determining the application of enhancement factors or the imposition of consecutive sentenc ing.

In Blakely

, the Supre

me Court explained th at the “‘statut ory maximum’ for Apprendi [ v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348 (2000) ] purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the def endant. ” Blakely , 542 at __, 124 S. Ct. at 2537. Immediately after Blakely

was released, this court maintained that Blakely

“calls into question the continuing validity of our current sentencing scheme.” State v. Julius E. Smith , No. E2003-01059-CCA-R3-CD, 2004 WL 1606998, at *4 (Tenn. C rim. App. at Knox vil le, July 19, 2004). However, in State v. Gomez ,163 S.W.3d 632, 661 (Tenn. 2005), a majority of our supreme court recently found that, unl i ke the se ntencing scheme d

iscussed in Blakely , “Tennessee’s sentencing structure does not violate the Sixth Amendment.” Ac co rd in gl y, we must conc lude that

the trial court did not err in failing to submit the enhancement factors to the jury for their determination. Moreover, this court has previous ly d etermine d that Blakely

does not im pact Tennessee’s consecutive sentencing scheme. See State v. Ea rice Robe

rts , No. W2003-02668-CCA-R3-CD, 200 4 W L 2 715316, at *12 (Tenn. Crim. App. at Jackson, Nov. 23, 2004), perm. to appeal denied , (Tenn. 2005) . The appellant is not entitled to relief on this issue.
III. Conclusion Finding no reversible error, we affirm the judgments of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE