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

Briefs D ecem

ber 11, 200 2

STATE OF TENNESSEE v. JAMES RUBEN CONYERS
Direct Appeal from the Circuit Court for Houston County

No. 4443 Allen W. Wallace, Judge

No. M2002-01007-CCA-R3-CD - F iled September 5, 2003

The appella

nt, James Rub en Cony

ers, wa s convict

ed by a jury in the Hou ston County

Circuit Court of especia lly a ggra vated bur glary , a Class B felony ; especi ally aggr avated r obbery , a Class A f

el on y; and attem pted first degree m urder, a Clas s A fel ony. Foll owing a sentencing hearing, the trial court sentenced the appellant to an effective sentence of eighty y ears incarceration in the T enne ssee Department

of Correc tion. On a ppeal, the appellant raises numerous issues relating to the sufficiency

of the evidence, the admiss ion of evi dence, the suff iciency of the ind

ic tment, t he jury instructi ons, and sentencing. Upon review of the record and

the part ies’ brie fs, we find no merit to the appellant ’s co nten

tions . How ever , we r

ecog nize as plain error that the appellant’s conviction for especia lly aggravated burg

lary was pr

ohibited under Tennessee Code Annotated section 39-1 4

- 404(d) (1997). According ly, w e modify the conviction to ag gravated burglary and reduce the appellant’s sentenc e for thisconvicti on to ten y ears in carceration, for a total effective sentence of eighty ye ars. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nts of the Ci rcuit Court are Affirmed in Part, Modified in P

art, and Re

manded.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYES and J OHN E VERE TT W IL LI AMS , JJ., joined.

William B. “Jake” Locker t, II I, and Wade Bobo, Ashland City , Tennes see, for

the appe llant, James Ruben Cony

ers.

Paul G. Summ

ers, Attorney Gene

ral and Reporter; Renee W. Turner, Assistant Attorney Genera l; Dan M. A lsobrooks, District Attorney Gene ral; and Carey

Thompson, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION I. Fact ual Backgro

und On April 6, 2001, at approximately 7:30 p.m., eighty -six-year- old Mildred P arker had just sat down to watch “Diagnosis Murder” when she heard a knock at the front door. Bec ause it was1 At trial , Mrs. Parker testif ied that she never again saw the rock.

2 Mrs. Parker t est if

ied t hat the gun f

ell out of her h and and s he bel ieve d tha t the appel lant pick ed it

up.
-2- unusual for

anyone to use he

r front door, Mrs. Parker did not open the door, but instead looked out the wi ndow to see who was knocking. When she looked out the window, a black ma le, later identified as the appellant, inquired about pur

chasing her car . Mrs. Parker informed the appellant that the vehicle was not for sale, but the appellant insisted on speaking with her. Mrs. Parker shook her head and told him, “No.” She then walked to the back of the house to ensure that the back doors were locked.

When Mrs. Parker reached the back door, she observed the appellant “walking up the ramp . . . [with] a big, fat rock in his hand.” 1 The appe llant dema

nded that Mrs. Park er open the door, but she refused. The appellant then became be lligerent and y anked on the door, sh outi ng, “You bitch you, I ’ll kill you and get y our money. Open this door.”As Mrs. Parker turned to run into the bedroom, the appellant shattered the glass in the bac k door with his hand. Mrs. Parker proceeded to the bedroom where her decea sed husbandhad hidden a loaded .38 Special revolver. She grabbed the revolver, but her arthritis prevented her fr om being able to pull the trigger. 2 By this time, the appellant had entered

the house and reached the bedroom. Mrs. Park er then r an throug h the house to the kitchen door and

attempted to exit the house. Before she could escape, the a ppellant “grabbed [her] by the hair and pulled [her] back in.”

The appellant’s ha nd wa s bleeding profusely . Mrs. Parker testified at trial that the appellant “didn’t want any of

his blood there and

he started wiping

up all the blood,” u sing tow els, cooking gloves, rugs from the kitche n floor, and a

red and white checked apron. Afte r attempting to clean up the blood, the appellant demanded money from Mrs. Parker. Mrs. Parker led th e appellant into asmall office and gave the appellant “ a little over $500” that she had received for her bi rt hd ay. The appe lla nt was not s atisfied with this a

mount and d

emanded more mone

y, but Mrs. Parker informed him that she had no mor e. The a ppellant then stated, “Well

just write me a check for $500.00 and I’ll go.” Mr s. Parker told the appellant that she did not have $500, and instead wrote him a check for $200. Therea

fter, the appella nt f orced Mrs. Parker to write a note on the back of another check, which note read, “ I’m suicidal my self.”

By this time, Mrs. Parker w as covered in blood. She explained at trial that “[i]t was all [the appellant’s] blood . . . because I ha dn’t been hurt [or] cut at

the time.” The appellant made Mrs. Parker g o into the b athroom, undress, and shampoo her hair. He then help ed Mrs. Pa

rker rin se the shampoo and blood from her hair. Thereafter , Mrs. Park er dres sed in

a pair of pajamas and sat

on t he sofa i n the living

room. The

appella nt handed Mrs. Park

er her purse. Comp lying with his instructi ons, Mrs. Parker

took out her billfold and “gave [the appellant] what money was in there .”
Thereafter, the appellant approached Mrs. Parker, put a w hite telephone cord around her neck, and procee d ed to chok e her. F inding th e white c ord to be insuffic ient to ch oke Mrs. Parker, the appellant wrapped a brown extension cord ar ound h er neck . Still unsat isfied with his-3-

progre ss, the appellant pulled Mrs. Parker off the sofa and beg an yanking up and down on the extension cord, banging her head into the floor. Mrs. Parker was able to pre vent the appellant from choking her by

placing two fingers under the c ord. The appellant then hit Mrs. Parker in the head withan unknown object, poured Clorox in her face, and “stomped” her in the he ad. In order to end the attack, Mrs. Parker “went limp” and pretended to be dead.

The appella

nt took a c loth and w iped Mrs. Parker’ s face, body , and shoe s. Mrs. Parker heard the appellant walking a round her house and then she heard a door close. Fearing

the appellant would return, Mrs. Parker lay still and waited. Finally, she felt her Siamese cat

nudge her leg and, because her cat would not come o ut w hen other persons were in the house, Mrs. Parker knew the appellant was gone.

Following the appellant’s departure, Mrs. Parker sat up and obse rved that her head

was bloo dy and

blood was running into her face. She manag ed to walk to her telephone and dial 911; however , becau se she could not hear, she was unaware that the operator a nswered. Mrs. Parker hung up and dialed again. Still unable to hear the operator, Mrs. Parker de ci de d t o c al l h er fa mi ly. She called her cousin, whom she informed , “I

have be en hurt, b een bea ten, come to me.” Mr s. Parker then called the hospitaland requested an ambulance. When an officer arrived at the sce ne, Mrs. Parker asked him to remove the cord from her nec k, but he to ld her to s it

down and wait for the ambulance.

Mrs. Parker’ s injurieswere photogra phed at th

e scene of th e offen se and at the hospital. These photographs were entered into evide nce at trial. Mrs. Parker also described her injuries at trial, stating that

my neck was quite blue [and] bleeding; my headhad two big gashes in it, [which th

e doctor s] had to sew up; my arms w ere black and blue; my face

was black and blue; I’ve

got a bad place

on my leg tha

t hasn’t healed y et; my back - w ell I

had bruis es all over me. And of

co ur se I wa s b lo od y. Mrs. Parker’s injuries required her to be hospitalized for seven da ys. At the time of trial, she was “doing fair,” but she still had “some marks” on her leg and was having trouble hearing as a result of the appellant “stomping” on her head.

After she was taken to the hospital, sever al off icers, in cluding Office r Chad Smith and Agent Joe Craig, came to q uestion Mr s. Parker

about her attack. She provid

ed the of ficers with

a description of her assailant, de scribi ng him as clean-shaven with short hair. Additionally , she related that her assailan t was wea ring da rk trouse rs, an orange and gr

een windbreaker, and

a white t- shirt. When the officers showed her a photo lineup, she was unable to positively identify

he r assailan t, but did note that one of the individuals looked like her assailant but was “darker.” At trial she identified the appellant as the man who attacked her

.

Mrs. Parker testified that in addition to taking an undetermined amount of money, the appellant had taken a green Erin B ank money ba g contai ning fifty- five dollars, the two hundred-4-

dollar check, a gold b

racele t, her hus band’s w edding rings and Elgin po cket watch, her mother’s wedding ring, her fat

her’s “ elk ring,” the victim’s purse, the revolver, and va rious other items. None of these items were recovered. She further surmised that the appellant must have brought the brown

e xtension cord to her house because she did not own one. Mrs. Parke r testified that these event s lasted more than an hour.

Officer Dalton Gr

eenwell testifie d at trial

that on Ap

ril 6, 2001 , he resp onded to a call regarding a “911 ha ngup” a t 125 Fro nt Street. When he ar rived at that addr ess, he proceeded to the back of the house where he

observe d that the

back doo r was aja r and the glass had been broken out of the back door. Officer Gree nwell called out to Mrs. Parker. He testified that as she approached, he observed a large cut on her head, blood covering her fac e, and a telephone cord a nd brown extension cord tie d around her nec k. Mrs. Par

ker asked Office

r Green well to re mo ve the cords because she was h aving tr

ouble bre athing, but he wa s unable t o untie the knots. While atthe scene, Officer Greenwell discovered a broom outside the back door

. He testified that the broom appeared to have been used to break the glass out of the doors. He observed blood on the broom’s handle and throughout the house.

Erin Police Chie

f Tommy Parchma n also responded to the call at 125 Front Str eet. When he arrived at the scene, he observed that the glass had been broken out of the back door. He also observed Mrs. Parker sitting in a chair nea r the door. Chief Parchman testified at trial that he assisted in the collection of evidence, photogr aphed Mr s. Parker ’s injurie s before she was ta

ken to the hospital, and photographed Mrs. Parker’s residenc e. Thereafter, he collected a piece of glass and a “wood strip” from the back door. Both items appeared to have blood on them. Chief Parchman explained that he took these items because he “felt like whoever broke in hadcut

himself” and the blood could be used

for DNA analy sis.

Chief Parchm an subseque

ntly accompa

nied seve ral offi cers to th

e hospita l to interview Mrs. Parker. After Mrs. Parker provided them with a de scription of her assailant, she was asked to i dentify

her assa ilant fro m a

photo lineup. Based upon Mrs. Parker’s description and her identific ations fr

om the phot

o lineup, t

he offic ers deve

loped the appella nt as a sus pect.

Chief Parchman testified that af t er midnight, he and the other officers we nt to an apartment rented by Sandra Cooksey, in which a partment the appellant was allegedly residing. Chief Parchman testified that

the appellant “came out of the bathroom” and was or dered to the floor to be handcuffed. Chief

Parchman observed what appeare d to be a fresh cut on the appellant’s hand, a cut the appella

nt claime d to have r

eceive d while

he was being handcuffed. However, Chief Parchman testified that the officers did not find any glass or sharp object on the floor.

Several day s later, C hief Par chman dis covere d a gar

bage c an in a cr

eek nea r Mrs. Parker’s house. Inside the ga rbage can, he found an a

pron, a pillowcase, an d a bedspread. Chief Parchman related that Mrs. Parker had reported that on the night of the offense, the appellant had used these items to wipe blood from his hands. Chief Parchman further testified that these items had-5-

what appeared to be

blood on the

m. Chief Pa

rchman s ubseque

ntly gave th ese itemsto Agent Cr

aig fo r t es ti ng at th e T en ne ss ee Bu re au of Inv es ti ga ti on (“ TB I”) cr im e l ab or at or y.

On cro ss-examination, Chief Parchman acknowledged that he wa s familiar wi t h Sandra Cooksey. He

related that the appellant and Cookse

y w ere fir st cousinsand that t he couple had a nineteen-year-old son. Chief Parchman testified that a few day s prior to the instantoffense, officers had been called to Cook sey ’s apar tment reg arding

a domestic

disturba nce. Dur ing this disturbance, the appellant had allegedly broken the glass out of the front door of the apartme nt. Chief Parchman related that when the officer s returned to the apartment on the night of the instant offense, the gla ss had not

been repaired. Nevertheless, Chief Par chman insisted that he did not find any g lass on the floor where the appellant had lain while being handcuffed.
Investigator

Ted Tarpl ey

of th e District Attorney Ge neral’s Office testified that on April6, 2001, he was asked to assist the Er in Police D epartme

nt in an inv estiga

tion at 125 West Front Street. He stated that after survey ing the scene of the crime, he ac companied several other officers to the hosp ital to interview Mrs. Parker. Inve stigator Tarpley related that once the

appellant

was identified as a susp ect, the office rs went to Cooksey ’s apar

tment. When the officers arrived at the apartme

nt, they informed Cooksey that they were

there to speak to the appellant, and Cooksey and her s on left.

In vest igator

Tarpley te stified that he and the other officers were cautious as they approached

the apartment because they were aware that

one of the items stolen from Mrs. Parker’s house was a gun. Because he

was not wearing a bullet-proof vest, I nvestigator Tarpley

rem ai ned outside while the other

officers entered the apartment. However, onc e the appellant was arrested and placed in a patrol car, Inve stigator Tarpley assisted in the search

of the ap artment. Investigator Tarpley testified that he “ found a card up under the commode in the bathroom.” The card was addressed to “Uncle

Bill and A

unt Mildre d” and wa s signed “Lov e, Mike.”

Inve stigato

r T arpley stated that he also observed blood and wet “washrag s” in the bathroom sink.

Inv estigator

Tarpley the

n searched a “closet [that] contained the water hea ter.” In thi s closet, Inve stigato

r Tarple y di scovered some mone

y in a pile of clothes. He also found a gray t-shirt and black pants “stuffe d” behind two blocks that had been removed from the wall. There after, Investigator

Tarpley se arched

the bedroom belonging to the appellant’s son, in which bedr oom he found a laundr

y ba sket cont

aining a jacket th at had wh at appea red to be blood on it. Inve st ig ator Tarpley stated, “[W]hen I saw these clothes and we saw the co at, . . . there [was] no question that was the clothes [described by Mrs. Parker].”

At trial, Boy d Phillips, a

forensi c scientist with the TBI crime labora tory testified that he processed for latent

fingerprints eight items submitted by Agent Joe Craig. These items included

a Christmas card, a green F irst Star checkbook, a Scottish Rites telephone book, a red pocketknife,

a green money

bag, a bottle of

409 cleaner, and another gr een checkbook that contained the suicide note. Unf

ortunate ly, Phillips wa s unable t

o lift an indentifia

ble print f rom any of these items.-6- Agent Margaret B ash, a forensic serologist with the TBI crime laboratory, te stified that she also received several items from Ag ent Craig, which items included a broo m , a piece of broken glass, a wood shaving, a rug , and fingernail scrapings take n from Mrs. Park

er. Ag ent Bas h stated that she was asked to test the items for the presenceof blood a

nd to cond

uct DNA a

naly sis. Testing revealed the presence of blood on the br oom, the piece of glass, the wood shaving, a nd the rug. Moreover, the DNA obtained from the blood on the broom, the piece of glass, and the wood shaving ma tc he d t he ap pe ll an t’ s D NA . A ge nt Ba sh te st if ie d t ha t “ th e p ro ba bi li ty o f an unre lated individual having the same DNA profile . . . [was] grea ter than one in six billion.” Agent B ash also discovered

the presence of the

appellant’s DNA in Mrs. Parker’s finger nail scrapings. However, she

was un able t o get a D NA pro file f rom th e bloo d on t he rug.

Chief Deputy Dar

rell Allison with the Houston Coun ty Sheriff’s Department assisted in the investigation at Mrs. Parker’s house. He testified at trial that he was a sked to pr

epare a photo lineup to be s hown t o Mrs. Parke r. Aft er prep aring t he pho to li neup a nd del iveri ng it t o Agent Craig, Chief Deputy Allison accompa nied t he other office

rs to the Co oksey

apartme nt. Chief D eputy Allison testified that when they arrive d at the a

partmen t, the appellant was in the bathroom. Chief Deputy Allison did not enter the apartment until the appellant had exited the bathroom and lain down

on the floor

to be handcuffed. Chief Deputy Allison related that as he handcuffed the a ppellant, the appellant exclaimed, “Oh you have cut my hand.” How ever, Chief Deputy Allison stated that he did

no t find any

obje ct upon wh

ich the a ppellant could hav e cut his h and. Moreover, Chi ef Depu ty Al li so n n ot ed th at th e b lo od on th e a pp el la nt ’s ha nd ap pe ar ed to be dr y.

TBI Agent Joe Craig testified that he was c alled to a ssist in the investig ation at Mr s. Parker’s residence. He state d that he f irst went to the hosp ital to interview Mrs. Parker, then he went to the Cooksey apar

tment to arrest the appellant. At the hospital, Mrs. Parker informed Agent Cr aig that her assa ilant wasabout six

feet tall. She described the clothing worn by her assailant and stated that he was clean-shaven with short hair. Ag ent Craig further relat ed tha t alt hough Mrs. Parker was able to “n arro w[] her photo [identification] down to two people, she was unable to positively identify [the appellant].”

Agent Craig testified that he was present at the Cooksey apa rtmen t when Chief Deputy Allison placed

the handcuffs on the appellant. He related tha t he did not observe a cut on the appellant’s hand until the appellant stood up. However, Agent Craig stated that, because there

was no glass or other sharp object on the floor, he did not believe that the appellant’s hand was cut while being handcuffed.

Agent Craig testified that he assisted in the collection of evidence. He recalled that at the Cooksey apar

tment, the officers discovered seventy do llars ($70) i n a “utilit

y c loset,” f

orty dollars ($40) in a bedroom, and a Christmas card in the bathroom between the toilet and th e v an it y. Agent Craig testified that he did not req uest that the crime scene unit process the scene f or finger prints, but instead collected evidence that Mrs. Parker alleged the appellant had touched. Moreover, because Mrs. Parker informed the officers that the appellant had gaine d access into her-7-

house by b reaking the gla ss in the bac

k door an d storm doo

r, Age nt Craig chose to s ubmit

the broom , the broke n piece o f glass , and the w ood shaving for bl ood and DN A analy sis.

At trial, Dr. Daniel Martin testified that he treated Mrs. Parker when she was brought into the emergency

room on the night of the offense. Dr . Mart in stated t hat Mrs. Pa

rker wa s in serious condition when she arrived at the hospital. Dr. Martin testified that

[Mrs. Parker] had multiple head trauma, a deep scalp lace ration, she had strangulation injury to her nec k, she had multiple bruises and trauma of he r hips, her legs and her back. She had se vere anemia. Her blood count wa s low bec ause of the trauma, she ble[d]. Then she had her underly

ing medical problems chronic obstructive lung disease, high bloodpressur e and ar thritis. . . . [T]hat combination of inju ries [ was] very sever e and . . . pot entia lly life t hreate ning.

Dr. Martin re

lated tha t the dee p lacer ations to Mr s. Parker’s scalp required a surgeon to “repai r.” Dr. Martin

further testifie d that Mrs. Parker suffered severe swe lling and bruising of the neck, which wor sened ov er the f ollowing twenty -four to

thirty -six hours, resulting in difficulty breath ing. He state d that she was bar ely able to swallow

and had to

talk in a w

hisper. Dr. Martin opined that, altho ugh she made a remarkable rec overy, his “initial anticipation for [Mrs. Parker ] was not real good.”

On cross-examination, Dr. Martin conceded that Mrs. Parker was alert when she was brought into the emergency

room . Moreover, he did not see any thing to indicate that she had suffered any brain da mage a nd she ha d not broke

n any bones. Dr . Martin

related that Mrs. Parker’s injuries did not require blood transfusions, placement on a respirator, or

admittance to the intensive care unit. However, he did prescribe Demerol for her pain.

Fa ye Kiser Sanders, the appellant’s cousin, testified at trial on behalf o f the app ellant. Sanders testified that she had taken c are of Mrs. Parker’s husband for many years. She f

urther related that on the night of the alleged offense , the appellant came to her house. Sanders stated that she was watching a movie when the appellant knocked at the door. The appellant then entered the house and asked if “Terry

” was home. When Sanders informed the appellant that “Terry ” was not home, the appellant left. Sanders testified that she did not observe the appellant’s attire that e venin g. She stated tha

t she was c ertain th at the ap pell ant came t o her house around 7:00 p.m. because the movieshe was watching when he ca me to her house started at 7:00 p.m., the same time a s “Diagnosis Murder.”

Sandra Elizabeth Cooksey also testified on behalf of the appellant. She testified that she and the appellant were first cousins and that they had a nineteen-ye ar-old son. Cooksey fur ther related that the appellant was residing with her w hen he was arrested.
Cooksey testified that around dusk on the night of the alleged of fense, s h e and the appellant left her apartment. Cooksey informed the appellant that she was going to he r mother’s-8-

house and the appellant statedthat he was going to his friend Rabbit’s house. Cooksey visited her mother for approximately fifteen minutes befor e walking to Rabbit’s house. Cooksey rela ted that when the couple left Rabbit’s house, they “caught a ride” with an unknown white male in a pickup truck. Cooksey testified that she aske d the driver to take her back to her apartment, but the appellant decided to go riding around with thisindividua l. Cooksey

then wen t to her c ousin’s house until the appella nt return ed home a

round 10:0 0 p.m.
Cooksey testified that she and the appellant had not been in bed long before the police arrived at the apartment. She stated that when the officers a sked her if the appe llant was in the apartme nt, she initially told them that he was not. Cooksey expla ined that because of the prior domestic disturbance, the appellant was not supposed to be in her apartment. However, she testified that after the officers force d her son to the ground and placed a g un to his head, she admitted that the appellant was inside the apartment. Cooksey related that the appellant had cut his hand the night he broke the glass out of the door to her apartment. She further stated that on thenight the appellant

was arrested for the instant offense, she did not observe him with any

jewelry, c ash, or a .38 revolver.

Based upon the f

orego in g evi dence, the jury convicted the appe

llant of e specially aggravated

burgla ry , especi ally

aggr avated r obbery , and atte

mpted fir st

degree murder. Following

a sentencing hearing, the trial c ourt sentenc ed the ap

pellant a s a

Range I I mult iple offe nder to tw enty yearsincarc eration

for the e specially a

ggra vated bur glary , forty

yearsincarc eration

for the e specially aggravated

robbery, a

nd forty y ears incarceration for the a ttempted first degree murder. The tri al court ordered that the sentences for espec ially ag gravated burglary and especially

aggravated robbe

ry be served c oncurre

nt to each other, but consec utiv el y to the sentence

for attempted first degree murder, for

a total effective sentence of eig hty y ears incarceration. On appea l, the appellant contends that (1) the evidence was insufficient to show serious bodily injury, an essential

element o f espec ially aggravated

burglary and especi al ly a ggra

vated ro bbery ; (2) the t

rial cou rt erre d in admitting into evidence a color photograph depicting the victim’s injuries; (3) the trial court erred in charging the ju ry; (4) count three of the indictment charging attempted first degree murder wa s insufficient for failing to alleg e an ove

rt act or name a vi ctim; and ( 5) the tri al court erred in its applic ation of c ertain enhancement factors and the imposition of consecutive sentencing..
II. Analysis A. Especially Ag gravated Burg lary Conviction

Alth ough not raised by either party, the

a ppellant ’s conviction for e specially aggravated

burglary violates Tennessee Code Annotated section 39-14-404(d), whic h provides that “[a]cts which constitute an offense under this section may be prosecuted under this section or any other applicable section, but not both.” Conseque

ntly , “[t]his subs ection pr ohibits using the sa

me act to prosecute an accused for bothespecially a

ggravated burglary and a

nother offense.” State v. Oller , 851 S.W.2d 841, 843 (Tenn. Crim. App. 1992). In t he instant case, the appellant was convicted of both especially aggravated

burglary and especially

aggravated robbe

ry based, in part, upon the serious bodily injury suffered by

Mrs. Parker. Because section 39-14-404(d) prohibits the conviction for especia ll y ag gravated burglary , we recognize this as plain error and modify the appellant’s conviction for especially aggravated

burglary to aggravated burglary. Tenn. R. Crim. P.-9-

52; see also State v. Gerald Leand er Henry , No . 01C01-9505-CR-00161, 1999 Tenn. Crim. App. LEXIS 167, at **85-86 (Nashville, Feb. 25, 1999). The red uction in th

e appell ant’s se

ntence f or this conviction will be discussed in the sentencing section of this opinion.
B. Sufficiency

of the Evidence The appellant contends that, because the State failed to prove t hat the vi ctim

suffered serious bodily injury , the e vidence was insuf ficient t o sustain h

is convic tions for e specially aggravated

burglary and especially

aggravated robbe

ry. As previously noted, we ha ve reduced the appellant’s conviction for especially aggravated burg

lary to aggravated

burglary . Accordingly , we must determine whether the

evidence was sufficient to convict the appellant of aggravated burg

lary

an d e sp ec ia ll y ag gr av at ed ro bb er y.

Whe n an appellant cha

llenge s the suff

iciency of the co nvicting

evidenc e, th e standar d for review b y a

n appella te court is “wheth

er, aft er viewing the e

vidence in the light most

favora ble to the prosecution, any rationa l trier of fact could have f

ound the e ssenti al elementsof the cr ime beyond a reasonable doubt.” Jackson v. V irginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). The State is entitledto the stro ngest le gitimate view of th

e evidence and a

ll

reasona ble or legitimate inf

erence s which ma

y be drawn therefr

om. Statev. Cab bage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the cr edibility of

witnesses and the weight and value to be given

the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact. Id. This court will not reweigh or reevaluate the evidence. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Because a jury conviction removes the presumption of innocence with which a defendant is initially cloaked at trial and re plac e s it on appeal with one of guilt, a convicted defendan t has the bur den of demonstrating to this court that the evidence is insufficient. State v. Tuggl e , 639 S.W.2d 913, 914 (Tenn. 1982).

Aggravated

burglary is the burglary

of a habitation. Tenn. Code Ann. § 39-14-403(a) (1997). Serious bodily injury is not an element of

this offe nse. How ever, se

rious bodi ly in

jury is

an element o f espec ially

aggravated robbe

ry, which requires that the robbery be acco mplished w ith

a deadly we apon and that the victim suffer serious bodily injury. Tenn. Code Ann. § 39-13- 403(a) (1997). Thus, the

State wasrequire d to prove serious b odily

in order to sustain

t he appellant’s conviction for this offense.

“Seri ous bo dily inj ury” is de fined as bod ily inju ry involv ing: (A) A substantial risk of death; (B) Pro tracted

unconsc iousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or substantial impairment of a function of a b odily

me mb er , o rg an or me nt al fa cu lt y. Tenn. Co de An n. § 3 9- 11 -1 06 (a )( 34 ) ( 19 97 ). “‘ Bo di ly i nj ur y’ includes a cut, abrasion, bruise, burn

or di sf ig ur em en t; ph ys ical pa in or tempo rary illness or

impairme

nt of the f

unction of

a bodily member, organ, or mental faculty .” Tenn. Code Ann. § 39-11-106(a)(2).3 “[ E ]jus dem gene ris means when w ords f oll ow an en umerat

ion of cla sses of t

hin gs t he wor ds sh ould be construed to apply to thi ngs of the same gener al class a s those enum erated

. Therefore, the enumerated portions of the defi nit ion of ser ious bodil y inj ury s hould be read as coming f rom the sa me class of in juri es.” Sims , 909 S.W.2d at 49.
-10- The appellant argues that the injuries suffered by Mrs. Park

er are analog ous to those suffered by the v ictim

in State v. Sim s , 909 S.W.2d 46 (Tenn. Crim. App. 1995). In Sims , 909 S.W .2d at 48-49, the victim received a broken nose, a bruise d cheekbone, black ey es, and a lacerationacross the br idge of her nose. Applying the ejusdem generis canon of statutory construction , this court held that “the pain commonly a ssociated with a broken nose [was not ] extreme enough to be in the

same cla ss as an in

jury which inv olves a su

bstantia l risk of d eath, protracted

unconsciousness, protracted or permanent disfig urement or the loss or impairment of the

use of a bodily member, or gan or mental faculty .” 3 Id. at 49 . A cc or di ng ly, this court concluded that the vic t im’s injuries did not constitute serious bodily injury and modified Sims’s conviction for especially a

ggravated robber

y to ag gravated robbery

. Id. at 50.

The appell ant contends that, like the victim in Sims , Mrs. Parker “did not suffer serious pa in,” nor did her in juries inv olve a sub stantial r isk of dea th, protr acted unconsciou sness, protracted

or permanent disfigurement, or loss or impairment of

the use of a bodily membe r, organ
or me nt al fa cu lt y. The State responds that the appellant’s reliance on Sims is misplaced. We agree with the Sta

te, finding the fa

cts in the instant ca se to be di stinguis hable fr om Sims

.
As a result of her injuries, Mrs. Parker was hospitalized fo

r seven d ay s. Dr. Ma

rtin opined tha

t Mrs. Parker was “in a serious medical condition when she arrived at thehospital” and that the combination of her injuries was po tenti ally life -thre ateni ng. Dr. Mart in testified that Mrs. Parker suffer ed from mu

ltiple head trauma and that her deep scalp la ceratio ns requir

ed a surg eon to “rep air.” He related that the bruising and swelling of Mrs. Parker’s neck worsened af ter she wa s admitted to the hospital, resulting in difficulty bre athing and swal lowin g. Moreover, Mrs. Parker lost a significant amount of blood and was suffering from severe anemia. Dr. Martin testified that altho ugh the victim made a remarkable recover y, “[his] initial anticipation for [Mrs. Parker] was not real good.”

Mrs. Parker testified at tri al that she had “a b ad place on [her] leg

that [had n ot] healed. ” She also

stated tha

t as a re sult

of the appella

nt “stomping” on he

r head, s he contin

ued to have trouble hearing. Taken in the light most favo

rable to the State, the evidence was sufficient for

a rational trier

of fa ct to co nc lu de th at Mr s. Pa rk er su ff er ed se ri ou s b od il y in

ju ry. The combination of her injuries demonstrated a substantial risk of death, while her difficulty hear

ing demonstrated the im pairment

of a bodily org an. Moreover, unlike the victim in Sims , Mrs. Parker was pres cribe d Demerol to ease the pain from which she suffered a s a result of her attac k . Accordingly , the evidence was sufficient

to sustain t

he appellant’s c onviction

for especially

aggravated robbe

ry. See State v. Thomas J. Tackett , No. M1999-02541-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 479 (Nashville, June 28, 2001).

B. Color Photogra

ph of Vic tim-11- The appellant next contends that the trial court erred in allowing into evidence a color photograph

of Mrs. Parker taken shortly after the attack. Specifically , the appellant alleges that “the photograph

. . . was pr

ejudicia l in that it s howed a g

reat d eal of bl ood on the face of the elde rly victim as well as in the hair of the elderly victim.” The appellant maintains that the testimony of Dr. Martin was sufficient to describe Mrs. Parker’s injuries. Moreover, the appellant argues that the trial court should hav e instea

d admitted

into evidence a black a

nd white photogra

ph depict ing Mrs. Parker’s injuries, which photograph the State had in its possession at trial. The State responds that the trial court did not err in admitting the color photograp h becau se the photograp

h was relevant to prove serious bodily injury an d the in tent to co mmit first d egree murder a nd to corr oborate Mrs. Pa rk er ’s te st im on y.

The decis ion re gardin g the ad miss ibil ity of pho togr aph s lies within the sound discretion of the trial court and that ruling will not be overturned on appeal absent a showing of an abuse of that discretion. State v. Banks , 56 4 S .W .2d 947 , 94 9 (T enn . 19 78) . In order to be admitted

as evidenc e, a photo graph must be re

levant to an issue a

t trial. Te nn. R. Evid. 402; State v. Braden , 867 S.W.2d 750, 758 (Tenn. Crim. App. 1993). “‘If releva nt, the photograph is not rendered inadmissib le because thesubject p ortray ed could be descr ibed by words; . . . the photo graph would be cumulative; . . . or [the photograph] is gruesome or for some other reason is likely to inflame the jury.’” Collins v. Sta

te , 506 S.W.2d 179, 185 (Tenn. Crim. App. 1973) (quoting 3 Wharton’s Criminal Evidence § 637 (13th Edition)). However, relevant photographs may

be excluded if their probative value is substantially outweighed by the dange r of unfa ir prejudice to the defendant. Tenn. R. Evid. 403 ; Banks , 564 S.W.2d at 951.

The phot ograph in qu estio n show s Mrs. Parke r sit ting in her kitc hen with a significant amount of blood on her face and in her ha ir. Because the appe

llant wascharg ed with es pecially aggravated

robbery, the

photogr aph was r elevant to show that M

rs. Parke r suffe red ser ious bodily in ju ry, an essential element of the offense. Tenn. Code Ann. § 39- 13-403(a)(2). Moreo ve r, the photograph

corroborated Mrs. Parker’s testimony regarding the eve

nts of the even ing and the in juries she sustained. See State v. James Spurling , No. E2001-00601-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 962, at *1 0 ( Knoxville, Nov. 7, 2002) (finding photographs of the victim in the hospital admissible

to cor robor ate te stim ony rega rding the victim’s wounds). Furthermore, although the photograph

shows a significant amount of blood, we do not find t he photogra

ph to be es pecially grueso me or horri fyin g. Acco rdingly, we conclude that the trial court did not abuse its discretion in admitting this photograph into evidence.
C. Jury I nstructions 1. Failure to Properly

Charge Especially

Aggravated B urglary The appellant contends that the trial court “erred in not char ging the statutory langua ge of

especially a

ggravated burglary [under which the appellant] was indicted.” The appellant asserts that “[s]ince [he] was indicted under the theor y he ente red the victim’s residence with the intentto commit e specially a ggra vated ro bbery and firs t degree murder , he was e ntitled to have the jury charged in rega

rd to that law .” The Sta

te mainta ins that bo th count one of the indictment and the trial cou rt’s instruction to the jury were sufficient to support the appellant’s conviction for-12-

especia lly aggravated burg

lary. Ag ain, we note that the appellant’s con victio n for esp ecially aggravated

burglary has been modified to aggrava ted burglary . Accor din gly , we will a ddress th is issue in light of that modification.

A person c ommits burglary who, without the effective consent of the property owner: (1) Ente rs a building other than a habitation . . . not open to the public, w ith intent t

o commit a f

elony , theft or

assault; (2) Remains concealed, with the intent to c ommi t a felony, thef t or
assau lt, i n a bui ldin g; (3) Enters a bui ldin g an d c om mi ts or at te mp ts to co mm it a f el on y, theft or assault; or (4) Ente r s any fre

ight or passenger car , automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a

fe lo ny, theft or assault or commits or at tempts to commit a felony, theft or assault. Tenn. Co de An n. § 3 9- 14 -4 02 (a ) ( 19 97 ). Ag gr av at ed bu rg la ry i s defined a s the burglary of a habitation. Te nn . C od e A nn . § 39 -1 4- 40 3( a) . E sp ec ia ll y ag gr av at ed bu rg la ry i s the burglary of a habitation or other building wherethe victim suffers serious bodily injury

. Tenn. Code Ann. § 39- 14-404(a).

In the instantcase, c ount one o f the indictment cha rged th e appell ant with e specially aggravated burg

lary under

subsection (a)(1) of the burglary statute, charging in pertinent part that JA MES RUB EN CONYERS . . . di d u nl aw fu ll y, fel on io us ly, in te nt io na ll y, and knowingly enter the habitation of Mildred Parker, which was not open to the public, with i nten t to commit E specially Aggravated

Robbery and First Degree Murder a nd did cause serious bodily injury to the said

Mildred Pa

rker, in violation of [Tennes s e e Code Annotatedsection] 39-14-404, a Class B felony , all of which is against the peace and dignity of the State of Tenne ssee. See Tenn. Code Ann. § 39-14-402(a)(1). Howeve r, the trial court instructed thejury on the offe nse of especially

aggravated burg

lary and the le sser-included offense of ag gravated burglary using the statu tory langu age in s ubsec tion (a)(3) of the burgla ry statut e, sta ting,

Any person who commits the offense of especially aggrav ate d burglary is guilty of a

crime. For you to find the de fendant guilty

of this offense, the [S]tate must have provenbeyond a reasonable doubt the existence of the

following

essentia l element s: (1) that the defendant entered a ha bitation; and (2) that the d

efenda nt committe d or atte

mpted to c ommit espe cially aggr avated r obbery or first d egree murder, both felo nies.4 The trial cou rt instructed the jury regarding the lesser-include d offense of agg ravated b urglary as follows: Any person who comm its t he offen se o f aggr avated burg lary is gu ilt y of a c rime. For you to fin d the def endant gu ilt

y of t his of fense , th e [S]ta te must

have proven beyond a reasonab le doub t the existence of the following essential eleme nts: (1) that t he defendant entered a habitati on; and (2) that the def endant commit

ted or attempted to commit aggravated robbery and first degree murder.
-13- See Tenn. Code Ann. § 39-14-402(a)(3). 4 Es se nt ia ll y, the appellant challenges the varianc e between the indic tment and

the proof at trial.

The United States and the Tennessee Constitutions require that an indictment inform the accused of “the nature and c ause of the accusation.” U.S. Const. amend. VI ; Tenn. Const. art

. I, § 9. An indictment satisfies this constitutional requirement “if it provides sufficient information (1) to enable the accused

to know the

accusa tion to whic

h answer is required, (2) to furnish the court adequa te basis for the entry

of a proper judgment, and (3) to protect the accusedfrom doub le jeopardy.” State v. H

ill , 954 S.W.2d 725, 727 (Tenn. 1997). A variance in the indictment and the proof at trial isnot fata

l unless it i s deemed t

o be material and prejudicial, affecting the substantial rights of the defendant. State v. Mo ss , 662 S.W.2d 590, 592 (Tenn. 1984). In oth er word s, [u]nless substantia

l rights of the defendant are affectedby a varia nce, he has suff

ered no h arm, and a variance does not prejudice the defendant’s substantial rights (1) if the indictme nt suffic iently informs the defend ant of t he charges ag ainst him so that he may preparehis defense and

not be misled or surprised at trial, and (2) if the variance is not such that it will present a danger tha t the defendant maybe prose cuted a s econd tim e for the same off

ense; all othe r variances must be considered to be harmless err or. Id.
With these principles in mind, we conclude that the variance between c ount one of the indictment and the instruction given by the trial court did not affect the substantialrights of the appella nt. Count one of

the indictment, which cited the pertinent statute, sufficiently informed the appellant that he was being charge d with especially ag gravated burglary

. The appellant makes no argument that he was misled by the indictment, surprise d at trial, or unable to prepare a de fen se. In fact, during the trial court’s charg e to the jury, the appe llant did not object to the challenged instruction. Moreover, the indictment named the victim and alleged thedate upon

which the offense occurred, eliminating the danger that the appellant would be p

rosecut ed aga in for the same offense. Becau se the appellant was not prejudiced by the variance in the indictment and the proof at trial, any

error w as harmle ss. 2. Failure to Properly

Charge Aggr

avated Burglary The appellant also cha llen ges the trial court’s instruction on the lesser-included offense of agg ravate d burgla

ry . The tria

l court ins tructed

the jury on this off

ense as f ollows:5 Th is statute was am end ed in 2 001 , with the am end men t to “gov ern all trial s conducted on or after January

1, 2002.” T enn. Code Ann. § 40 -18-110, Com piler’s Notes (Supp. 200 2).
-14- Any person who commits the offense of agg ravate d burgla

ry is guilty of a crime. For you to find the defendant guilty of this offense, the [S]tatemust have proven bey ond a reasonable doubt the existence of the following esse

ntial ele ments: (1) that the defendant entered a ha bitation; and (2) that the defendant

committed or attemptedto commit aggravated robbery a nd first degree murder.

The appellant contends that, because he was cha rged wi th especially a

ggravated

ro bb er y, it was reversible error for the tri al court to instruct the jury that the a ppellant could be convictedof aggravated bur glary based upon his entering a habitation and committi ng the lesserincluded offense of aggr

avated robbery

. However, the appellant fails to cite any law in support of this argume

nt, there by w aiving t

he arg ument on a

ppeal. Tenn. R. App. P. 27( a)(7). Neverth eless, because we have modified the conviction for especially aggravated

bu rg la ry t o a ggr av at ed bu rg la ry, the appe llant’s a rgumen t rega rding th e instruction on ag grava

ted burglary

is moot.
3. Failure to Charge Agg ravated Assault as Lesse

r-Included of Espe

cially Ag gravated Robbery The appellant

further challen ges the

trial cou rt’s fai lure to charge

aggr avated a ssault as a lesser-included offense of especially ag gravated robbery . The State concedes that agg ravated assault is a lesse r-includ ed offe nse of es pe ci al ly a ggr av at ed ro bb er y, but asserts that the error was harmlessbey ond a rea sonable d oubt.

Tennessee Code Annotated section 40-18-110(a) (199 7) provid es that a trial court must charg e the jur

y a s to the law

of each offense “included” in

an indictment, namely the cha rged offense and any lesser- included

offense s. 5 “In apply

ing the lesser- included

offense doctrine, three questions arise: (1) whether an offense is a le sser-included offense; (2) whether the evidence supports a lesser-included offense instruction; and (3) whether an instru ctional e

rror is harmless.” State v. Allen , 69 S.W.3d 181, 187 (Tenn. 2002).

Under the test adopted in State v. Burns , 6 S.W.3d 453, 466-67 (Tenn. 1999), an offense is a lesser-included offense if : (a) all of its statutory elements are included within the statutory elements of the offense charg ed; or (b) it fails to meet the definition in part (a) only in the r espect that it contains a statutory ele

ment or elements establishing (1) a different

menta l stat e indi catin g a

lesser kind of culpability; and/or ( 2) a less serious harm or risk of harm to the same person, property

or public interest; or (c) it consists of-15- (1) facilitation of the offense charged or of an offe nse that otherwis e meets the definition of lesser-included offense in part (a) or (b); or (2 ) an attempt to commit the offense charged or a n offensethat otherwise meets the definition of lesserincluded offense in part (a) or (b); or (3) solicitat

ion to commi

t the offense charged or

an offensethat otherwise meets the definition of lesserincluded offense in part (a) or (b). Because the elements of

aggr avated a ssault ar

e included in the definition of especia lly aggravated

ro bb er y, this court has previously held that ag gravated assault is a lesser-included of fense of especia lly aggravated

robbery unde

r part (a) of the Burns test. State v. Jason C. Carter , No. M1998- 00798-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 340, at *24 (Nashville, Apr. 27, 2000).

Next, we consider whether the evidence w arranted an instruct ion on th e lesserincluded offense of agg

ravated assault. As a genera l rule, evidence sufficient to warrant an instruction on the greater offen se also will support an instruction on a lesser offen se under p art (a) of the Burns test. In pr

oving the great er offe nse the Sta

te necessarily

has proven the lesser offense because all of the statutory elements of

the lesser offense are included in the g reater. Statev. Richmond , 90 S.W.3d 648, 660 (Tenn. 2 002) ( quot ing Allen , 69 S. W.3d a t 188) . We conclude that, because the evidence w as sufficient to warrant an instruction on the great er offe nse of especially a

ggravated robbery, the

evidence was necessarily sufficient to warrant an instruction

on the lesser-included offense of ag gravated assault. Id. ; see also State v. Joel Christian Parker , No. M2001-00773-CCA-R3-CD, 2002 Tenn. Crim. App. LEXI S 1093, at *11-12 (Nashville, Dec. 18, 2002). Accordingly , the trial court erred in failing to instruct the jury on the lesser

-includedoffense of agg ravate d assault

. Having concluded that the trial court’s fa il ure to instruct the jury on a ggravated assault was err or, we mu st now dete rmine whe

ther the error w as harmle ss beyond a rea sonable doubt. In determining whether it was harmless bey ond a re asonable doubt not to charge a lesserincluded offense, our supreme court has held that

the reviewing court

must determine whether

a reaso nable jur

y w ould have convicted the defendant of the lesser-include d offense instead of the charged offense. I

n other words, the re viewing court mus t 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 outco me of the

trial. Richmond , 90 S .W.3 d at 66 2 (cit ing Allen , 69 S.W.3d at 191).

The differe

nce betw een ag grava

ted assa ult and the

le sser- included offenses which

were charged

to th e j ur y, e sp ec ia ll y ag gr av at ed ro bb er y, a ggr av at ed ro bb er y, r ob be ry, and thef t, is6 Upon lea vin g th e bench , the t ria l cou rt s tat ed, “ Members of the Jury, give me just a minute. T here is a part I’ve l eft out and everythi ng I t ell you I hav e to read i t to y ou.”

7 Although the t echnical record does not

contai n a copy of t

he writ ten i nstructi ons, t

he tri al transcr ipt i ncludes the trial co urt’s cha rge to th e jury.
-16- the theft element

of t he c har ged off ens es. It is undisputed that in the instant case there was a theft of property fr

om Mrs. Parker. Moreover, the jury was instructed on the lesser-included offenses of aggravated

robbery, r

obbery, and the

ft, but opted to convict the appellant of the indicted offense of especia lly aggravat ed rob bery. Acco rdingl y, we concl ude th at the trial court ’s fai lure t o charge aggr avated a ssault as a

lesser- included

offense was har mless bey ond a rea sonable d

oubt.

4. Mod ifica tion s to J ury Charge

The appellant argues that the t rial court “erred in making modifications to the jury instructions durin g the ti me peri od th e [c] ourt w as givi ng i nstruc tions to the jury verbally .” The appellant asserts that the t

rial court “took numerous breaks” in order to make cor rections to the instructi ons. However, our review o f the re cord reflects th at while charging the jury

the trial court took only one “bre ak.” Mor

eover, d uring th is break , the tria

l court did

not modify

the instru ctions, but instead supplemented the charge with an instructi on the tria

l court ha d inadver tently omitted. 6 We find n o error in th e effor ts of t he tri al cou rt to e nsure that t he jur y received a comp lete c harge of the law.

The appellant also contends that, because he was not provided wit h a copy of the modifications to the jury instructions and beca use a copy of

the instructions was not made a part of record on appeal, it is likely that

the jury did not re ceive a

copy of the mod

ificatio ns. 7 We agree that it is mandatory that eve

ry word of the

trial court’sinstructi ons to the jury be reduced to writing and givento the jury for deliber ations. Tenn. R. Crim. P. 30(c). However, we are unable to conclude from the record that the jury

was not provided with a

complete copy

of the instructions. Before the jury retired to deliberate, the trial court directed the jury , “Take the charge tha t I’ve just read to y

ou and go to the jury

room.” There is no reason to believe that the jury did not do as instructed or that the written in struction s failed t o include the omitte d instruc tion. We find this issu e to be w ithout merit.
D. Attempted First Degree Murder 1. Indictment The appellant asserts that the trial court should have gra nted a judgment of acquittal

or a new trial on count three of the indictment charging attempted first degree murder because the indictmentfailed to allege an overt act a nd failed to name a victim. The State responds that the indictmentprovided the appel lant with sufficient notice that he was being charged with the attempted first degree murder of Mrs. Parke r.

As previously noted, the United States and the Tennessee Constitutions require that

an indictment inform the accused of “the nature and cause of the accusation.” U.S. Const. amend. VI; Tenn. Con st. art. I , § 9. An ind ictment sa

tis f ies the c onstitution al requi rement o f notice

“if it8 “Prolixity” is defi ned as “[t]he unnecessary and supe rfluous sta teme nt of facts in p leadin g or in evide nce.”

Black’s Law Dictionary 1213 (6th ed. 1990 ).
-17- provides sufficient information (1) to enable the a ccused to know the accusation to which answer is require d, (2) to f

urnis h the courtadequa

te basis f or the en try of a prop er judg ment, and (3) to protect the accused from double jeopardy .” State v. H ill
, 954 S.W.2d 725, 727 (Tenn. 1997). Moreover, Tenness ee Code A nnotated section 4 0-13-202

(1997) pr ovides tha

t an indic tment “mus t state the facts constituting the offense in ordinary and co ncise language, without prolixity or
r epetition, in such a manner as to enable a person of c ommon understanding to know w hat i s intended, and with that degree of certa inty which

will enab le the court, on co nviction, to pronounce the proper judgment . . . .” 8

The indictment alleged the following three c ounts, all on a single page: The Grand Jurors for the State of Tennessee, duly elected, impane led, sworn, and charged to inquire, in and for t he body of t

he County of Houston, in the State aforesaid, upon their oa ths, present: That JAMES RUBEN CONYERS heretofore, to-wit: on or about the 6th day of April, 2001, andprior to th e finding of this Indictment, in the Coun t y of Ho us to n a fo re sa id , t he n a nd th er e, di d u nl aw fu ll y, fe lo ni ou sl y, inten tionally, and knowingly enter the habitation of Mil dredParker, which was not open to the public, with inten t t o commit Especia lly Aggravated

Robbery and F

irst Degree Murder and didcause se

rious bodi ly in

jury to the said

Mildred Pa

rker, in violation of [Tennessee Code Annotated section] 39-14-404, a Cl as s B Fe lo ny, all of which is a

gainst the peace and dignity

of the State of Tennessee.

COUNT TWO: And the Grand Jurors, aforesai d , upon their oaths, aforesaid, do further presen t and say, that on or a bout the 6th day of April, 2001, and p rior to the

finding of this I ndictmen t, in the Cou

nty and Sta t e afores ai d, the said JAMES RUBEN C ONYERS the n and ther

e, did

un la wf ul ly, fe lo ni ou sl y, i nt en ti on al ly, kno wingly a nd violently, by

use of a dea

dly weapon, to-wit: a pistol and electrical cord, a further description to the Grand Jurors aforesaid unknown, take fr om the person of Mildred Parker, good and lawful curr en cy o f the United States of America in the amount of Five Hundred Dollars ($500.00), one (1) check

in the amount of Five Hundred Dollars ($500.00) and

one (1) check

in the amount of Two Hundred Dollars ($200.00) of the value of betweenFive Hundred Dollars ($500.00) and One Thousand Dollars ($1,000.00) and as a result Mildred P arke r suffered serious bodily injury, in violation of [Tennessee Code Annotated section] 39- 13-403, a Class A Felony, a ll of which is against the peace and dignity of the State of

Tennessee.-18- COUNT THREE: And t he Grand Jurors, aforesaid, upon their oaths, aforesa id, do further present and say , that on or about the 6th day of Apr i l, 2001, and prior to the find

ing of th is Ind ictment, in the Count

y a nd State afores ai d, the said JAMES RUBEN C ONYERS the n and ther

e, did

un la wf ul ly, feloniou sly , intention ally , deliber ately and with premeditation attempt

to commit the criminal offense of First Degree Murder, as classified in [Tennessee CodeAnnotated section] 39-13- 202, in violation of [Tennessee Code Annotated section] 39-12-101,

a Class A Felony, a ll of which is against the peace and dignity of the State of Tennessee.

A person c ommits crim

i nal attempt

who, act ing with t he kind of culpability otherwise required for the offense:

(1) Intentionally

eng ages in action or

causes a result tha

t would constitute an offense if the circumstances surrounding the conduct were as the person believes them to be; (2) Acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part; or (3) Acts w ith intent to complete a course of action or cause a re s ul t that would constitute the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the co m mission of the offense. Tenn. Code Ann. § 39-12-101(a) (1997). An indictment charg ing atte

mpt to commit a crime

should specific ally

allege the intent to commit the specific crime and an overt act. State v. Frederick Rydel Walker , No. M1998-00068-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 379, **10-11 (Nashville, May 12, 2000). First degree murder, othe r than a murd er committed during the perpetration or attempted perpetration o f one of t h e felonies or acts enumerated in Tennessee Code Annotated section 39-13-20 2(a)(2 ) and (3) , is a “premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 2002).

As previous ly noted, the appe llant argues that his conviction for attempted first de gre e murder is void because count three of the indictment failed to alleg e an overt act and name a victim. The issue before this court is whether the facts alleged in counts one a nd two remedied the failure of count thr ee to nam e the vic tim or alle ge the s pecific facts surround

ing the c harge of attempted first degree murder.

In State v. Cureton , 38 S.W.3d 64 , 82 (Ten n. Crim. Ap

p. 2000), this court observed that “there is a split of authority a s to whether each count of a multi-co unt indic tment must stand alone or whether they

can be read together.”-19- There is authority that there ca n be no aid bet

ween counts, to supply an omission in one of them, if the counts are not connec ted in some

wa y, such as by

in ternal reference, and that any such reference or inco rporat ion must be expr ess, not imp licit. How ever, th ere is a lso authority that all counts of a multiple-count indictment should be read

as a whole, and elements missing from one count can be supplied by another. Id. (cit i ng 41 Am. Jur. 2d Indictments & I nformations § 96 (1995)). Tennessee courts addre ssing this issue have concluded that, under certain circumstance s, the counts of a multi-count indictment may be read together. See State v. Youngblood , 287 S.W.2d 8 9, 91 (Te nn. 1956) (“diffe

rent cou nts
ma y, within themselves, not support an indictment but if they are properly c onnected with preceding counts then the t

wo may be taken togethe r and supp ort an ind

ictment” ); Hayes v. State , 513 S.W.2d 144, 146 (Tenn. Crim. App. 1974) (where the first count of an indictment charging drug possession namedthe controlled substance and the secon d co unt of the indictmen

t stated on

ly “the afor

esaid controlledsubstance,” the indictment was not defective ). After reviewing these ca ses, this cour t in Cureton , 38 S.W.3d at 83, concluded that bec ause all the count s in the indictment in that case alleged the same victim, the same date, and were relate d to eachother, the counts c ould be read together for the purpo se of pro viding notice to the defenda nt.

In the instan

t case, t he appellant wascharg ed in a thr ee-cou nt indictme

nt, all counts
on a single page. All three counts alleged t

hat the of fenses o ccurred on the sa

me date, April6, 2001. Countone alleged that the a ppell ant ente

red the h abitation

of Mildre d Parker

with the in

tent to commit first degree murder. Count two alleg ed that the appellant “did . . . by use of a d eadl y weapon, to-wit: a pistol and electrical cord, . . . take from the pe rson of Mildred Parker, [a sum of

mo ne y] and as a result Mildred Parker suffered se rious bodily injur

y.” Fin ally, count three of the indictmentall eged in

co nc lu so ry l an gu ag e t ha t t he ap pe ll an t “ di d u nl aw fu ll y, fel on io us ly, in te nt io na ll y, deliberately a nd with premeditation atte mpt to commit the crim inal offe nse of F irst Degree Murder . . . .” Count four also cited the proscriptive statute for first degr ee murder, which provides in relevant part that “[f]irst degree murder is . . . [a] pr emeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)( 1).

Taken a s a whole , we conc lude that the indic tment prov

ided adequate not

ice to the appellant and the trial court of the offense charged. Hill
, 954 S.W.2d at 727. We further conclude that, by n aming a

victim in c ounts one a

nd two and

allegin g that the offe

nse occu rred on a date certain, the indictment protected the appellant against dou ble jeopardy. Id. Accordingly , we find this issue t

o be without merit.

2. Election of Offenses

The appe llant also contends that the trial court erred by not requiring the State “ t o elect the particular [act] upon which it was relying for the offense of attempted first-deg ree murder.” The appellant states that Mrs. Parker alleged that the a ppellant broke into her residence, took her gun, attempted to strangle her with a cord, hit her in the hea d with an unidentified object, and then “stomped” on her h ead. The appella nt argu es that a

ny o f these a

cts alleg ed by

Mrs. Park

er could-20-

have been construed as an attempt to kill. Th e appellant asserts that, because the State was not required to ele ct offe

nses, he w as “depr

ived of hi s right to

a unanimous jury

verdict . . . , was n o t [able] to prepare to defend a specific charge, [and wa s] denied his constit utional pr otection agains t double jeopardy.”

Our su pr em e c ou rt “h as co ns is te nt ly held tha t when the evidence indicates the defendant has commit

ted multipl e offen ses aga

inst a vict im, the pro secution

must elect the particular offense as charged in the indictment for which the c onviction i s sought.” State v. Brown , 992 S.W.2d 389, 391 ( Tenn. 199 9). The e lection r equirem ent ensur es that the

defenda nt is able t

o preparea defen se for a

specific charge, protects the defendant against double jeopardy , and enables the trial court and the appellate courts to review the leg al sufficiency of the evidence. State v

. Adams , 24 S.W.3d 289, 294 (Tenn. 2000). More importantly , the election requirement “ensures that the jurors de libe rate over and render a ve rdict on the same offense.” Id. However, when the evidence does not establish that multiple offenses have been committed, it is not necessary for the Stateto make an election. Id. Accordingly , we must determine whether the acts committed by the appellant were mul

tiple disc rete ac ts that con stituted individual s ubstantiv e offen ses o r were a continuing course of conduct that constituted a single of fense. Id.
“Continuing offenses genera lly stem from a single

motivation orschem e, alt hough such off enses ca n be committed by

multiple di screte

acts occurring over a period of time.” Id. In Statev. Pe la yo , 881 S.W.2d 7 , 9 (Tenn . Crim . App. 1994), the defendant stabbed the victim, the victim fled, and then the defendant stabbed the vic tim a gain. T his co urt co nclud ed tha t, alt hough the assaults constituted separate acts, the acts “coalesced into an ‘unmistakable single a ct.’” Id. at 13. This court

reached a similar conclusion in State v. Eddie Howard Pittman , No. W2000-01582- CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 729 (Jackson, Sept. 7, 2001). In that case, the defendant pointed a gun at the victim’s head and pulled the trigger; however, the gun misfired. Id. at *2. The victim and the defendant then wr estled with the gu n before the defe ndant wa s able to shootat the victim a second time, this time missing the victim. Id. This cour t held tha t these a cts “werepart of a continuing assault, and constituted but one offense of attempted murder.” Id. at **6- 7.
Likewise, we conc lude th at, althou gh the acts committed by the appellant were multiple discrete acts occ u rring o ver a pe riod of tim

e, they were pa rt of a c ontinuous a

ttempt to murder Mrs. Park

er. The appella nt first a ttemp ted to strangle Mrs. Parker with the telephone and extension cords. When this was unsuccessful, he forced her off the sofa and bang ed her he ad into the floor. Thereafter, he poured Clorox in her face , hit her with an unknown object, and “stomped”

on her head. The appellant’s brutal attack e nded only after he

believed she was dead. Becau se these acts constituted the single o ffense of attempted first

degree murder , the State was not re

quired to make an election. Adams , 24 S.W.3d a t 294. This i ssue is wit

hout merit

. E. Sentencing9 The appel lant also cha llen ges th e tri al court ’s appl icat ion of en hancement f actor (12); however, af te r reviewing the t

ranscript of t

he sentencing heari ng, we note that the tri al court did not apply t his fact or.

10 W e note that, begi nni ng Jul y 4, 2002, “ the 2002 amendmen t [to Tenness ee Code Annot ated section 40-35- 114] added pre sent

[enh ancemen t f

actor ] (1) and re desi gnat ed for mer (1 ) through (22) as present (2) t hrough (23), respe ctively.” Tenn. Code Ann. § 40-35- 114, Amendme nts (Supp. 2002). Ho wever, for the purposes of t his opinion, we will us e the former designati ons applicable at the time of the appellant’ s sentencing.
-21- Fi na ll y, the appellant challenges the trial court’s application of enhancement factors (5), (10), and

(16) t o enha nce hi s sent ences a nd th e impo siti on of c onsec utiv e sent encin g. 9 When

an appellant ch all engesthe leng th, rang e, or man

ner of se rvice of a sentence, it is th

e duty of this court to conduct

a de novo review with a presumption that the determinations made by the trial court
are correct. Tenn. Code Ann. § 40-35-401(d) (1997). H owever , this presumpt ion of cor rectne ss is “conditionedupon the affirmative showing in the r ecord that the trial court considered the sentenc ing principles and all relevant facts and circumstanc es.” State v. Ashby
, 823 S.W.2d 166, 169 (Tenn. 1991). If the recor

d demonstrates that the trial court failed to consider the sentencing princ iples and the relevant facts and circumstances, r eview of the sentence will be purely de novo. Id.

In conducting our r

eview, th is court must consider

(1) the evidence, if any , received at trial andat the sentencing hearing; (2)the presentence report; (3) the principles of sentencing and the argume

nts of cou nsel rela tive to the sentenc ing alte

rnative s; (4) the nature and characteristics of the offenses; (5) any

mitigating or enhancement factors; (6) any stateme nts made by the

appellant

on his own behalf; and (7) the appellant’s potential for reha bilitation or treatment. Tenn. Code Ann. § 40-35-102 and -103 (1997), -210 (Supp. 200 2); see also Ashby , 823 S.W.2d at 168. The burden is on the appellant

to show that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Co mments.

The appella

nt was sen tenced a s a Rang e II

multiple offende r, for wh ich the a pplicabl e range for Class A felonies is twenty-five to forty ye ars and f

or Class Cfelonie s is six to ten y ears. Tenn. Code Ann. § 40-35-112(b)(1) and (3) (1997). The presumptive sentence for a Class A felony is the midpoint within the applica ble rang e if

there are no enhancement or mitiga ting factors. Tenn. Code Ann. § 40- 35-210(c ). The pr esumptive

sentenc e for a Cl ass C felo ny i s the minimu m within the applica

ble range if there are no enhancement or mitiga ting factors. Id. If the trial court finds that such factors do exist, the court must start at the presumptive sentence, enhance the sentence within the range as appropriate for the enhancement factors, and then re duce the sentence with in th e range
as appropriate for the mitigating fac tors. Tenn. Code Ann. § 40-35-210(e). The r e is no mathemat i cal formula for valuating factors to calc ulate the appropriate sentence. Stat e v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). “Rather , the weig ht to be af forded a n existing factor is left to the trial cou

rt’s disc retion so long as the trial court complies with the purposes and principles of the 1989 Sentencing Act and its finding s are ad

equatel y supported by the record.” Id. at 475-76.

In the instant case, the trial court found no applicable mitigating factors and applied the following enh anceme nt facto rs: 10-22- (1) the appellant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish th e appropriate range; (4) the victim

o f the o ffense was particularly vulnerable because of ag e o r p hys ic al or me nt al di sa bi li ty; (5) the appellant

treated the victim with exceptional cruelty during the commission of the offense; (6) the perso nal injury

inflicte d upon the

victim wa s particu

larly great ; (8) the app ellant has a pre vious histo

ry of unwillingnessto comply withthe conditions of a sentence involving release into the

co mm un it y; (9) the appe

llant posse ssed or e

mployed a fir

earm or other de adly weapon during the commission of the offense; (10) the appellant had

no hesitation about

committing a crime when the risk to human life was high; and (16) the offense was committed under circumstances under

which the potentia l for bodi ly in

jury to a victim

was gr eat. Tenn. Code Ann. § 40-35-114 (1997).

The appellant first asserts that the trial court failed to specify to which convictions it was applying

the enhancement factors. Our revie w of the record

reveals that the trial court stated that enhancement factor

(5) applied

to the appellant’s convictions for especially aggravated burg

lary and es pecially ag gravated robbery , but failed to specify to whic h convictions the remaining enhancement

factors applied. Accordingly , our review will be de novo with no presump tion of

correctness.
1. Enhancement Factor (5)

The appellant contends that the trial court erred in apply

ing enhancement factor (5) to his conviction for

attempte d first de gree m

urder. H owever , we note that, although the trial court failedto specify to which

offenses it was apply

ing the remaining enhanceme ntfactors, the trial court announced

that it wa s a

ppl ying e nhancement factor (5) only to the appellant’s convictions for especia lly aggravat ed rob bery and es pecial ly agg ra vated burglary , which conviction this court reduced to aggravated burglary. Neve rtheless, because we are conducting a de novo review of the appellant’s sentences, we will address the application of enhanc ement factor (5) to eac h of the appella nt’s convictions.
Enhancement factor (5) provides that the appe llant treated or

allowedthe victim

to be treated withexceptional cruelty during the commission of the offense. Tenn. Code Ann. § 40-35- 114(5) ( 1997). This factor is generally applied to cases involving abuse or torture. State v. Williams , 920 S.W2d 247, 259 (Tenn. Crim. App. 1995). Before a tria l court ma y a pply enhancement

factor (5) to increase a

sentenc e, the fa

cts of the case mus tsupport a

“finding of cruelty-23-

under the statut e ‘over and above’ what is required to sustain a conviction for [the] offense.” State v. Arnet t , 49 S.W.3d 250, 258-59 (Tenn. 2001).

In the instant case, after breaking into the house , the appellant grabbed Mrs. Parker and pulled her by her

hair into the house as she attempted to escape. He subsequently forced her

to write a suicide note. As Mrs. Pa rker sa t on the sof

a, the ap pellant a ttempted t o strang le her, f

irst with

a telephone cord, then with an extension cord. Finding his attempts to be unsuccessful, the appellant dragged Mrs. Parker off the sofa and, while continuing to strangle her, banged he r head against the floor. The appe

llant then hit Mrs. Parker in the head with an unknown object, poured Clorox in her face, and “stom

ped” on h er head , stopping

only after Mrs. Parker

pretended to be dead. We conclude t hat these acts clear

ly d emonstra te that the appella nt treated Mrs. Par

ker with e

xceptiona l cruelt y “over and above” what is required f or the instant offenses. See State v. Poo le , 945 S.W.2d 93, 99 (Tenn. 1997) (holding that enhancement fa ctor (5) applied to conviction for especia lly aggravated robbery when the defendant knocked the victim unconscious and left he r o n the floor under circumstances making it unlikely that she w ould be dis covere d); State v. Alvarado , 961 S.W.2d 136, 151 (Tenn. Crim. App. 1996) (holding enhancement fac tor (5) applied

to convictions for aggravate d rape and aggravated bur

glary when the defendant held a knife to the victim's throat and stabbed, bit, and attempte d to smothe

r her); State v. Darrin Bry ant , No. W2000-01136-CCA-R3-CD, 2001 Tenn. Cri m. App . LEX IS 519, at **19-20 (Jackson, July 11, 2001) (holding that enhance ment factor (5) applied to conviction for at tempted f irst deg ree mur der whe n the def endant st abbed victim up to eight times). Accordingly , we conclude that enhancement factor (5) applies to all three of the appella nt’s convictions.
2. Enhancement Factor (8)

The appella

nt argu es that, b ecause

no proof w as offe

red reg arding

the appe ll an t’s performance

on either probation or parole, the trial court erred in applying e

nhancement factor (8), i.e., the appe

llant had a previous history

of unwillingnessto comply with the conditions of a sentence involving release int o t he community. Tenn. Code Ann. § 40-35- 114(8) (1997). However, our review of the presentence report ref lects that, in addition to being on probation at the time of t h e instantoffenses, the appellant was convicted on Marc h 3, 198 1, of larce ny and rec eiving stolen pr op er ty, and was ordered to serve one y ear in confinement

followed by t hree y ears pr obation. L

ess than a yea

r later, on Fe br ua ry 1 3, 19 82 , t he ap pe ll an t w as ar re st ed fo r s ec on d d eg re e b ur gl ar y, attempt to commit larceny, and

two weapon offense s, for wh ich offe nses he w as subseq

uently convictedand sentenced. We find this evidence sufficient to support the application of enhancement factor (8).
3. Enhancement Factor (10)

Enhancement

factor (10) provides that “[t]he de fendant had no hesitation about committing a crime

when the

risk to human life was high.” Tenn. Code Ann. § 40-35-114(10) (1997). The appellant challenges the tria l court’s application of enhancement factor (10), arguing that the risk to human life is an element of the offense of attempted first degree murder. We agree.-24- A trial court may not

apply an enha

ncement factor if the factor is an esse ntial element of the of fense c harged i n the i ndict ment. Tenn. Code A nn. § 4 0-35- 114. H owever , “wher e a high risk to human lif

e is estab lished wit

h facts s eparat

e from those

necessary

to establish an element of the offense, [enhancement factor (10)] is not an essential ele ment of the offense and may be applied if supported by the fa

cts.” State v. Bingham , 910 S.W.2 d 448, 452 ( Ten n. C rim . Ap p. 1 995 ). In other words, enhancement factor (10) may be applied if the facts demonstrate that the appellant created a high risk to the life of a pe rson other than the named victim. Id.

The risk to human life is an essential element of the offenses of attempted first deg ree murder and especially a

ggravated robber

y. State v. Re

id , 91 S.W.3d 247, 312 (Tenn. 2002); Brya nt , No. W2000-01136-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 519, at *18. Thus, because in the instantcase

the only person a t risk wasMrs. Parker, enhanc ement fa ctor (10 ) may

not be app lied to the appellant ’s se nt en ce s f or at te mp te d f ir st de gr ee mu rd er or es pe ci al ly a ggr av at ed ro bb er y. However, enhancem ent factor (10) is not an essential element of ag gravated burglary

. State v. Maurice Pierre Teague , No . 02 C0 1-9 704 -CC -00 132 , 19 97 T enn . C rim . Ap p. LE XIS 814, at *21 (Jackson, Aug. 27, 1997). M oreover , th e facts and circumstances surrounding the appellant’s commission of agg

ravate d burgla

ry demonstr ate that b y br

eaking into Mrs. Parker’s house with the intentto commit e specially aggravated robbe

ry and attempted f

irst degree murder, the

appellant had

no hesitation about com

mitting a crime in which the risk to human life was high. Accordingly , we conclude that the evidence supports the application of enhanceme nt factor (10) to the appellant’s

co nv ic ti on fo r a ggr av at ed bu rg la ry.
4. Enhancement Factor (16)

The appellant

also contends that the trial court erred in apply ing enhancement factor (16), i.e., that the crime was committed under circu mstances und er which the poten tial for b odily injury to a victim was great. Tenn. Code. Ann. § 40-35-114(16) (1997). Because “the potential for bodily injury” is inherent in the off enses of attempted

first degree murder and

especially a

ggravated

ro bb er y, enhancement factor (16) may not be app lied to en

hance th e appell ant’s se

ntencesfor thes e convicti ons. Reid
, 91 S.W.3d at 312; State v. Marquez Winters , No. W2001-00740-CCA-R3-CD, 2002 Tenn. Crim. App. LEXI S 872, at**25-26 (Jackson, Oct. 15, 2002). However, “the potential for bodily injury” is not an element of the offense of aggravated burg

lary. Tenn. Code A

nn. § 39-14- 403(a). Neverth

eless, th is court h as previous ly h eld that “ ‘a trial

court should not app ly [enhancement

factor (16)] absent extraordinary circumstances.’” State v. David Scarbroug h , No. E1998-00931-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 512, at *73 (Knoxville, July 11, 2001) (quoting State v. Smith , 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994)). In the instant case, the facts demonstrate such “extraordinary circumstances.” Accordingly , we concludethat enhancement fa ct or (1 6) ap pl ie s t o t he ap pe ll an t’ s c on vi ct io n f or ag gr av at ed bu rg la ry.

5. Consecutive Sentences

Fi na ll y, th e appellant asserts that the trial court erred in orde ring the appellant to serve his sentence for attempted first degre e murder consecut

ively to his other sentences. Under Tennessee Code Annotated section 4 0-35-115 (1997), a trial court may impose consecutive sentences if the-25-

defendant is convicted of more than one offense and the trial c ourt finds by a pre ponderance of the evidenc e that: (1 ) [t]he defendant is a professional criminal who has kno wingl y

devotedsuch def

endant' s life to c

rim inal acts as a major source of livelihood; (2) [t]he defe

ndant is an offender whose record of criminal activity

is extensive; (3) [t]he de fendan t is a dang erous me ntally abnorma l person s o declared by

a competent psyc

hiatrist . . . ; (4) [t]he defendant

is a dang erous of

fender whose behavior indicates littleor no regard for human life, andno hesitation about committing a crime in which the risk to human life was high; (5) [t]he defendant is convictedof two (2) or more statutory offenses involving sexual abuse of a minor . . . ; (6) [t]he defendant is sentenced for an of fense co mmitted while on probation; or (7) [t]he de

fendant is sentenced for

criminal attempt.
Regarding consecutive sente ncing, the trial court stated, [On count] three, attempt to commit fi rst degree murder, I ’m going to give him forty

years . . . an d I’m going to run [this sentence consecutive to counts one andtwo], and here is the reason why. [The appella nt] had co unt one and two as far as his crime that he had completed. He committed his robbery and so on and so forth. And then after he clean s [Mrs. Park er’s] hai r off and takes her out of the bathroom , sets her down on that couch and walks behind he

r and puts that cord around her neck, then he’s g oing to kill her. That is just like committing one crime t oday and one tomorrow. It ought to run

consecu tive. So I’m going to run c ount three consecutive [to th e othe r counts]. Thereafter, the State noted that the trial court needed to specify under which cr

i teria lis ted in Tennessee Code Annotated section 40-35-115 the court was imposing consec utive sentencing. The trial court sta

ted th at the imposition of consecutive sentences was based upon its finding that the appellant was a professional criminal, had an extensive criminal record, was a dangerous offende r, and was sentenced for an offense while on proba tion. See Tenn. Code Ann. § 40-35-115(b)(1), (2), (4), and (6).

On appeal, the appe llant arg ues that, because the offenses occurr ed during the same criminal episode, it was error for the trial court “to treat [counts one and two] as though [they were] committed one day a

nd [count three] as though [it were] committed on anot her day.” He further asserts that no proof was offered at the sen tencing hearing to show tha

t the appe

llant wasa professional criminal , a dang erous of fender , or was sent enced for an offense committed while on probation. Regardless, the trial court al so announced that it was imposing consecutive sentences-26-

basedupon the appellant’s extens ive crimi nal record. The presentence r eport reflects that since 1979, the appellant has been convicted of numerous felonies, inc luding armed robbery and thef t. Thus, the appellant’s prior criminal record alone supports consecutive sent encing. This issue is without me

rit.
Although we have

determined that e

nhance ment factors (10) and (16) do not app ly to the appellant’s convictions for atte mpted fir st degr

ee murde r and esp ecially

ag gr av at ed ro bb er y, this does not necessarily

lead to a reduction in the appellant ’s sentenc es. State v. Win field , 23 S.W.3d 279, 284 (Tenn. 2000). We conclude that the remaining enhance ment factors and thelack of mitigating fa ctors support the imposition of the maximum sentences for each conviction. Moreover, the appellant’s extensive criminal re cord supports the imposition of consecutive sente ncing. Based upon these findings, we aff irm the forty y

ear sentences imposed for the convictions of

especially a

ggravated robber

y and attempted fir st degree murder. Howeve r, beca use
we previ ously

modified t

he appellant’s c onviction in count on

e to agg ravate d burgla

ry , we must reduce his sente

nce for this offe nse to te n ye ars, the

maximum for

aggr avated burglar

y, a Class C fe lo ny. The sentences for agg ravated burglary

and especi al ly ag gravated robbery are to be served

co nc ur re nt ly, but consecutive to the sentence for attempted first deg ree murde r, for an effective sentence of eighty

years inc arceration.

III. Conclusion For the foregoing reasons, we affirm the appel lant’ s convictions and sentences for especia lly aggravated robbe

ry and attempted f

irst degree

murder. However, we remand to the trial court for the amen dment of the judgment of conviction to reflect this court’s modification of the conviction for especially

aggravated burg

lary to aggravated

burgla ry and to reflect the

reducti on in the sente nce on tha

t convict ion to ten y

ears.

___________________________________

NORMA McGEE OGLE, JUDGE