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

Briefs S eptem

ber 9, 2003
STATE OF TENNESSEE v. LEVAR GRAY
Appeal from the Criminal Court for Shelby County Nos. 00-02081, 00-02082, 00-02083, 00-02084 W. Otis Higgs, Jr., Judge

No. W2002-02259-CCA-R3-CD - Filed January 21, 2004

The defendant, Le

var Gray , was convicted of two counts of agg ravated robbery

and two counts of aggravated

kidnapping. The t

rial cou rt imposed

sentenc es of twe

lve years for eac h of th e four offense s. Because the

trial court

ordere d partia

lly c onsecuti ve sente

ncing, the eff

ective s entence

is twenty-four

years. In thi s appeal o f right , the def endant c ontends th at the evidence i s insufficient to support the convictions andthat the se ntence i s excessiv e. Bec ause the record does not support the imposition of maximum sentences for each conviction and because consecutive sentence s were not warranted, the judgments must be modified to reflect concurre nt se ntences of ten y ears for each conviction.

Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed as Modified

G ARY R. W ADE , P.J., deliver ed the opinion of the

court, in which J ERRY L. S MITH and J OE G. R ILEY , JJ., joined.

Ross A. Sampson, Memphis, Tennessee (on appeal), and CharlesWaldman, M emphis, Tennessee (a t t ri al ), fo r t he ap pe ll an t, Lev ar Gr ay.
Paul G. Summers , Attorne y General & Repor ter; Br ent C. Cherry, Assistant Attorney General; and Betsy Car nesdale, Assistant District Attorney G eneral, for the appellee, State of Tenne ssee.
OPINION

The convictions were the resu lt o f two separate incidents. The first occurre d at approxima

tely 1:00 P.M. on September 22, 1 999. University of Memphis g raduate student John Ho ggard wa s walking from the library to his car when he encountered two men, one of whom he later identified as the defendant. After Hoggard r efused to giv e change for a dollar, one of the men, later identified as Lawrenzo Menton, blocked Hog gard's path, placed " his hand in his pocket where he had a bulge and sai d th at it was a holdup." Menton threatened to shoot Hogg ard if he did not hand ove r his wall et. The defendant, standing behind Hogg ard, claimed to have a gun. When the-2-

men discover

ed that the wallet

contained only

twenty dollars, they

forced Hogg ard into

the backseat of a white, e arly

eightie s model, f

our-door car for the purpo se of tra

nsporting him to a ba

nk to cash
a personal check. According to Hog gard, there were no door handles on the inside of the bac kseat of the vehic le. He a

lso reca lled that b oth Menton

and the de

fendant repeat edly asked him "which
was more valuable, my mone y or my life." When the men t

rie d to cash the check Hogga rd had written at the drive thru teller, they lea rned that he was not an account holder at that bank and were askedinside. While Menton and Hoggard went inside the bank, the defendant stay ed in the car. They wer e unable to cash Hoggar

d's check.

Eventua ll y, the pe rpetrators drove Hogga rd to an automatic teller machine, where he wa s forced to withdraw $200. The two men then drove to a shopping mall and demanded that Hogg ard
use his cred

it card to buy them shoe s. While there, Hoggard was able to escape into a Dillard's store and persuad

e an empl oyee to ca ll se cu ri ty. At trial, H ogga rd explained that he

had coop erated

with his assailants because he believed that eac h possessed a gun, despite not having act ua ll y seen any weapons , and woul d kill him if h e refus ed their

demands.

Two days afte

r Hoggard' s abduction, Justus Cousar, who was also a studentat the Uni versity of Memphis, was abducted in the early afternoon by

two black males traveling in a white, four-door
car. The driver, later identified as Menton, announced that he had a gun, a

nd direc ted Cousa

r into the backseat of the car. Cousar rec alled that the re were no handles on the inside of the car 's back doors. The defendant, who was seated in the passeng er seat, threatened Cousar with a metal pipe saying, "Don' t make me h it yo u in the he ad with thi s ." Co usar gave the men his wallet, which containedapproximately $50. After inspecting the contents of Cousar' s wallet, Menton demanded to know the personal identification number for his automatic teller machine card. Cousar , who was lyin g in the backseat, provided the number to Menton. Cousar remembered that the pe rpetrator s made four stop s, presumably at diffe rent aut omatic teller machines. He recalled that Menton got out of the ca r during the first two stops a

nd the def endant g ot out during the la st two stops. A total of $80 was w ithdrawn

from his ba

nk account.
The perpetr

ators als o demanded to know the person al iden tificatio n number f or his cr edit card and after Cousar informed them that he did not knowit, the two men stopped at Valentine's Bar and Grill so that Cousar could make a $200 cash withdraw al on his cr edit card. After taking the cash, the men purchased

ga so li ne wi th Co us ar 's cr ed it ca rd an d t he n d ro ve ba ck to th e U ni ve rs it y, where they

released Cousar. Charge s totaling $240 dolla

rs were made to Cou sar's c

redit card. As C ousar walked away , he encountered a University of Memphis police officer and reported th e incident. Cousar later identified the defendant from a photog raphic lineup.

On the day af

ter Cousar's abduction, Eric Elms , a second ye ar law st

udent at t he Unive rsity of Memphis, was walking to his apartment when the driver of a car approached him, blew the horn, and shouted. Elms turned around and saw a white, four-door, early eighties model car. Aware of the crimes against Hogga rd and Cousar because of fliers posted at the Uni v ersity, Elms walked quickly to his apartment and telephoned 911. While El ms made a statement to University police , officers received information that a vehicle matching the suspect vehicle had been stopped. Later,-3-

Elms identified the car as the one which had followed him. He was una ble to identify either of

the two men who were in the vehicle.

Officer Mike Shearin of the Memphis Pol ice Dep artment, along w ith Serg eant Stan Bowles, questioned the defendant after his arrest. After being informed of his Miranda

rights and si gning a written waiver, the defe

ndant adm

itted that he was present when both Hogga rd and Cousar were robbed, but claimed that he di d not part icipate in the robbery . The defendant contended that Menton plannedand carried out

each of the robberies. According to Offic er Shearin, the defendant insisted that he did not know that Menton planned to force the victims into the car. He claimed that neither he nor Menton possesse d a weap on during the crime s, explainin

g that Me nton pret ended tha t his cell phone was a gun. The def endant a sserted

that he di d not rece

ive any of the pr oceeds f rom the fi rst robbery a nd received only

$50 from the second.

I The defen dant first ass erts that the evide

nce is ins ufficie

nt to suppor

t his convi ctions. Sp ec if ic al ly, he contends that the state failed to establ ished tha t he used o

r display ed a dea dly weapon during the commission of the crimes. On ap peal, of course, the state is entitled to the stronge st legitima te view of

the evide

nce and all reas onable in

ferenc es which

mi ght be d rawn theref rom. Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). The cre dibility of the wit

nesses, the weight

to be giv en their

testimo ny, and t

he reconciliation of conflicts in the proof are matter s entrustedto the jury as the trier of fact. By

rge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidenceis challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of

fact could have found the essential elements of the crime bey ond a reasona ble doubt. Tenn. R. App. P. 13( e); State
v. Williams , 657 S.W.2d 405, 41 0 (Tenn. 198 3). Questions concerning the credibility of the witnesse s, the weight and value of the evidenc e, as well as all

factual issues raised by

the evidence
are resolved by the trie

r of fact. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Becau se a verdict of guilt removes the presumption of innocence and raises a presum

ption of g uilt, the convicted crimina

l defend ant bear s the burd en of showing that

the evide

nce waslegall

y insufficient to sustain a guilty ve rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Aggravated

robbery, a s charged in the indictment, is "rob bery . . . [a]ccomplished with a deadly weapon or by

display of any ar ticle used or fashioned

to lead the victim to reasonably believe it to be a d ea dl y weapon." T enn. Code Ann. § 39-13-402 (a)(1). Robbery is "the intentional or knowing th ef

t o f p ro pe rt y from the person of another by violence or putting the person in fear." Tenn. Code Ann. § 39-13-401(a). Aggravated

kidnapping, as charged in the indictmen

t, is "false imprisonment . . . committed

. . . [w]hile the defenda

nt is in possess ion of a de adly weapon o

r threa tens the u se of a de adly weapon ." "A p erson commits the offense of false imprisonment who knowingly removes or confines another unlawfully s o as to inte

rfere substantia

lly with the other's liberty ." Tenn. Code Ann. § 39- 13-302(a).-4-

The evidence, in the light most favorable to the state, establishes that the def endant and Menton stopped H ogga

rd as he w alked to h

is car a nd eventu ally

threate ned to shoot hi m if he did notgive them his wallet. The state's pro of was thatthe defendant, who stood closely behind Hoggard, also claimed to have a gun. I nside the car, both Menton and the defendant threate ned to shoo tHoggard if he did not comply with their demands. The defendant admitted to police tha t Menton pretend

ed that hi s cell phone was a gun. Hogg ard was confined to the backseat of the car, which h ad no insi de door handles, as the two assailants attempted to obtain money from his bank
accoun t. That Hoggard did not actually see the defendant with a weapon during the crimes isof no assistance to the defense. See State v. Daryl Anthony Jemison , No. 01C01-9303-CR-00107 (Tenn. Crim. App., at Nashville, Mar . 31, 1994) (althoug h the def endant di d not actu ally

possess a weapon, "the jury was entitled to ac credit the [defendant's] threat and to infer from it and

his hand positioning that he was a rmed." ); see also State v. Melvin Harper , No. E2001-01089-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Dec. 12, 2002). The jury chose to accredit testimony that the de fendant claimed to have a gun and made threat s toward H ogga rd to ensu

re his co operati on. Under these circumst ances, the evidenceis sufficient to support the convictions for the aggrava ted robbery

and aggravated kidnapping

of Hoggard.

With regard to the crimes ag ainst Cousar, the evidence adduced at trial established that Menton informed

Cousar tha

t he had a gun and forced him into the backseat of the car. While inside th e car, the defendant threatened Cousar with a metal pipe and demanded his compliance. L ike Hoggard, Cousar was confined to the backseat of a car tha

t had no vis ible mean s of esca pe while Menton and the defendant tried various methods of obtaining money from his bank

account. In our view, this evide

nce is suf fic ient to support the defendant's convictions for the ag gravated robbery and aggravated kidna

pping of Cousar.

II The defendant also contends that the trial court erred by

impo sing co nsecu tive s enten cing. When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to

conduct a

de novo r eview with a presumption that the determinations made by the trial court are correc t. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showi ng in t he reco rd tha t the t rial c ourt c onsi dered t he sen tenci ng p rin ciples a nd all relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 1 69 (Tenn . 1991); see State v. Jone s , 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial c ourt applies inappropriate factors o r otherwis e fails to f

ollow the 1 989 Sente

ncing Act, the presumpt ion of correct ness falls. " State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sente ncing Co mmission Comm ents provide that the burden is on the defendant to s how the imp ropriety of the se ntence. Tenn. Code Ann. § 40- 35-401, Se

ntencing Commission Co mments.
Our review requires an analysis of ( 1) the evidence, if any , received at the trial and sentencing hearin g; (2) the presentence report; (3) the principles of sentencing a nd the arguments of counsel relative to sentencing al

ternativ es; (4) the nature and characte ristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the-5-

defend ant's potentia

l for reh abil itati on or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In calculating the sentence for a Class B, C, D, or E felony con victio n, the presumptive sentence is the minimum in the range if there are no enhanc ement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If there ar e enhancement but no mitigating factor s, the trial court may set the
sen tence above the minimum, but still within the range. Tenn. Code Ann. § 40-35-210(d). A sentence involving

both enha

ncement and mitig ating f

actors r equiresan ass ign ment of relative weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. § 40-35- 210(e). The se ntenc e must then b e reduc ed wit hin t he range by any weight assigned to the mitigating factors present. Id.

The trial court imposed a sentence of twelve y ears for each of the defe

ndant's convictions and ordered that the se

ntencesfor the c onvictio ns relating to Hoggar d be served concurrently

to one another and consecutively

to the sentences for

the convictions relating to Cousar. The sentences for the convictions relating to Cousa r are to be served concurre ntly to one another. The effective sentence is, therefore, twenty-four y ears. In imposing

the twelve ye ar sentences, the trial court failed to consider the sentencing principles, made no finding s regarding the appli cable enhancement or mitigating factors, and

simply ordered the maximum sentenceswithin the range. The single rea son offered for the sentence wa s that Menton received a twenty -four ye ar sentence.
As indicated, the trial court failed to mak e finding s with reg ard to the applica ble enhancement

and mitigating factor s in setting the sentences at the maximum within the range. Alth ough there was a suggestion during the trial that

the defendant was on judicial diversion at the time of the offe nses, noth ing in the record document s that claim. Moreover, the presentence re port states that the defendant has no adult criminal convictions. There is no mention of judicial diversion. Indeed, the presentence

report contains only one

prior of fe ns e, a j uv en il e a dj ud ic at io n f or ro bb er y. Becau se robbery qua

lifies as a felony

offense, enhancement factor ( 21), that the defendant committ ed
a delinquent act or acts as a juvenile that would con stitute a f

elony if committed

by a n adult, w ould apply to each of the convictions. See Tenn. Code Ann. § 40-35-114(21) (2003). That the defe ndant admitted the regular use of marijuan a for a n

umber of ye ars suppo

rts the application of enhancement factor (2), that the defe ndant hasa previous history of crimin al convictions or criminal be havior in addition to those necessary to establish the appropriate range. See Tenn. Code Ann. § 40-35-114(2) (2003). The defendant's education, positive wor k history, and family support serve as mitigating factor s. See Tenn. Code Ann. § 40-35-113(13). In addition, Tennessee Code Annotated section 39- 13-304(b)(2) mandates that the voluntary release of each of the

victims be considered

as a mitigating factor with reg ard to the

convic tions for a ggravated kidnapping . Applying these factors to the defend ant's aggravated robbe ry con victions, the midpoint in the range, ten years, is appropriate. Si mi la rl y, a midrange sentence of ten yea rs is appropriate for

each of the convictions for agg ravated kidn appin g.
The defendant also contends that the trial court erred by imposing consecutive sentences withoutconsidering the appropriate sentencing principles. Prior to the enactment of the Criminal1 The firs t four cri teria are f ound in Gray . A fif

th category i n Gray , based on a specific number of prior felony convictions, may en hanc e the sen tence range but is no longe r a listed c riterion

. See Te nn. Co de A nn. § 4 0-3 5-11 5, Sentencing C omm ission Com ments.
-6- Senten cin g Reform Act of 1989, the limited classifications for the imposition of consecutive sentences were se

t out i n Gray

v. State , 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court ruled

that aggravating

circumstances must be present before plac ement in any one of the classifications. Later, in State v. Taylor , 739 S.W.2d 227 (Tenn. 1987), the court established an additional categ ory

for those defenda nts convicte d of two or more statutory offense s involving sexual abuse of minors. There were, howeve r, additional words of caution: [C]onsecutive sentences should not routinely be imposed . . . and . . . the ag greg ate maximum of conse cutive te rms must be

reaso na bly related to the se verity of the offenses involved. Taylor, 739 S.W.2d at 230. The Sentencing Co mmission Comments adopted the cautionary language. Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments. The 1989 A ct is, in essence, the codification of the holdings in Gray and Taylor ; consecutive sentences may be imposed in the discretion of the trial court only upon a determination that one ormore of the following criteri a 1 exist:
(1) The defendant

is a professional criminal who has knowingly devotedhimself to criminal acts as a major source of livelihood; (2) The defendant is an offender whose record of criminal activity is extensive; (3) Th e d ef

en da nt is a d an ge ro us me nt al ly a bn or ma l p er so n s o d ec la re d b y a competent

psychiatrist who conclude s as a result of an investigation p rior to sentencing that the defendant's criminal conduct has bee n ch ar ac te ri ze d b y a

pattern of repe titive or c ompulsive

behavior with heed

less indif ferenc e to consequence s; (4) The defendant is a dangerous of fender who se behavior

indicates little or no regard for human life, and no hesitation about committing a crime in which th

e risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor with consideration of t he aggravating

circumstances arising from the relationship betweenthe defen dant and victim or victims, the time span of defend ant's un de te ct ed se xu al ac ti vi ty, the nature and scope of the sexual acts and the extent of th

e residu al, phy sical an d mental d amage to the vic tim or vict

ims; (6) The defendant is sentenced for a n offense committed while on probation; or (7) The d efenda nt is sente nced for criminal contempt

. Tenn. Code Ann. § 40-35-115(b).

The length of the sentence, when consec utive in nature, must be “justly deser ved in relation to the serio

usness o f the offense,” Tenn. Code Ann. § 40-35-102(1) , and “no greater than that-7-

deserved” under the circumstances, Tenn. Code Ann. § 40-35-1 03(2); State v. Lane , 3 S.W.3d 456 (Tenn. 1999).

As i ndicated, the trial court made no findings as to the factors supporting consec utiv e sente ncing. Our review of the record establishes that the de fendant does not have an extensive criminal history , does not q ualify as a dange rous ment ally abnormal person, and was not convicted of cont empt or two or m ore statutory off enses involving the sexual abuse of a minor. See Tenn. Code Ann. § 40-35-115(b)(2), (3), (5), (7) (2003)

. Further, the record does not support a finding that the defendant is either

a professional criminal or a dangerous offende r. See id. § 40-35-115(b)(1), (4). Finally, the recorddoes not establish by a pre ponderance of the evidence whether the defendant
was on probation at the time of the offense s. Beca

use the r ecord do es not supp ort a

finding that the defendant qualifies for

consecutive sentencingunder any of the Gray factors, the sentences must be
se rv ed co nc ur re nt ly. Accordingly , the judgments of the trial court are affir med as modified.

___________________________________ GARY R. WADE, PRESIDING JUDGE