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

Briefs J uly 17, 2002
STATE OF TENNESSEE v. JAMES CHARLES CAVAYE
Direct Appeal from the Criminal Court for Davidson County No. 2000-C-1625 Steve R. Dozier, Judge

No. M2001-02154-CCA-R3-CD - F iled December 11, 2002

Followi ng a jury

trial, De fendant , James Char

les Cavay e, was c onvicted

of first d egree felony mu rde r and es pe ci al ly a ggr av at ed ro bb er y. He was se ntenced to life imp

risonmen t for the m

urder, a nd to
a consecutive sentence

of twenty-four y

ears for the especially

aggravated robbe

ry. I n this appeal as of right, Defend ant conte

nds that ( 1) the tri al court

failed to fulfill itsrole as the thirteenth juror; (2) the accomplice’s testimony w as insufficiently cor roborated; (3) the trial co urt erred in applying enhancement

factors in setting Defendant’s sentence for especially a

ggravated robber

y; and (4) the trial court erred in ordering Def endant’s se nt en ce s t o r un co ns ec ut iv el y. Based upon our review of the rec ord, we a

ffirm the judgmen t of the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

. T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and A LAN E. G LENN , JJ., joined. Edward S. Ryan, Na shville, Tennessee, for the appellant, James Charles Cavay e. Paul G. Summers, Attorney Gene ral and Reporter; David H. Findley , AssistantAttorney Genera l; Vict or S. Johnson, III, Distr ict Attorn ey Genera l; James F. T odd, Assis tant Distr ict Attorn ey Genera l; BrianHolmgren, Assistant District Attorney Gene

ral; and Gigi Braun, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION I. Background

Around 4:30 o'clock on the afternoon of January 21, 1998, Dorothy Best, a taxi driver, droppedthe victim, Da

vid Schulma

n, off at his busine ss, the Rainbow Room, in Printer's Alley pr ior to opening for the evening. The victim’s usual c ustom was to sit at the end of the counter reading the newspaper until the bar opened. A few minutes later , Joe Reno, who was working at thebar next door, stopped by to see the victim, leaving around 5 :00 p.m. The victim wa s a famili ar figure in-2-

downtown Nashville , and he h ad been a fixture in Printer 's Alley for over fifty years. He was known for his gene rosity to the homeless who frequented the downtown area, p roviding those in need with cash or odd jobsfrom time

to time. The victim

normally car

ried change for the bar

in the top pocket of bib overalls, his usual attire.

At approxima

tely 6:00 p.m., Wi lliam Jones, a sales man wh o serv iced t he bars in Pr inter 's Al le y, made a routine stop at the Rainbow Room. When he w alked in, Mr. Jones did not see the victim sitting at his usual spot. He walked down the bar and spotted the victim lying on the floor, withhis hands to his throat. Mr. Jones to ld the victim to "hang on," an d ran dow n the alle y to retrieve a police officer. The par amedics were c alled, a

nd the vic tim was tra

nsported to the hospital where h e died early the n ext m ornin g.
At the time the police processed the crime scene, infor mation on how and why the victim was attacked was scant. I

n addition, the premises hadbeen disturbed by the parame dics movin g some of the bar stools and knocking pictures off the wa ll as they car

ried out the victim. Only seventeen finger prints were re

trie ved, none o f which matched the men ultimately arrested, Jason Pence and Defend ant. Blood samples were collected from a towel and the ladie s' room, all of which were later determinedto belong

to the vic tim. Neithe

r the bottl es behind

th e bar nor the cash register were tested for prints. At the conclusion of the investigation of the prem ises, no physical evidenc e was discover ed which pointed to

a suspec t.

Dr. John Gerber, the assistant med ical examiner who performed the autopsy , testified that the cause of

death wa s multiple

incised wounds to the neck and a blunt force injury

to the head. The victim was cut th

ree time s on the ne ck. Although the victim lost

a significant amount

of blood, the knife wounds were superficial, and, stand i ng alone, would not have resulted in death unless the victim went without medical attention for an extended period of time. I n addition to the knife wounds, however, the victim suffered a subgaleal hemorrhage

on the left

side of his head caused by
a blow from

a blunt ins trument. At the time he was cut, the victim could st ill have y elled fo r help since the incisions did not impact the vocal ch ords. Although Dr . Gerbe r was una ble to asc ertain which injuries were inflicted first, the knife wounds were c onsistent with the perpetrator standing behi nd the victim. Dr. Gerber could not specify what type of knife

was used or what

instrumen t caused the skull fracture. During the early pha se of the investigation, several potential suspects were identified. The police investigated some, but not all, of the leads. After a few months, the case was reenacte d on the television program, America's Most Wanted, in order to gene rate new lea ds. Following the f

irst episode, Detective Al Gray testified that he received a call from B eve rl y Sumner, a bar tender at Legend's Corner in Nashville. She reported that she had seen Defendant and

Jason Pence soon after the murder, and she had a "feeling" they were somehow connected to the incident because Mr. Pence had attempted to change his appearanc e and Defendant was limping. On Ms. Sumner's a dvice, Detecti v e Gray loc ated Mr. Pence at the downtown library . Mr. Pence confirmed that he knew Defend ant, but said th at he did not know th

e victim a nd had never bee

n in the Rainbow Room. He-3-

acknowledged

that he had changed his appearanc e by shaving and cutting his hair. At this time, Mr. Pence was not a suspect, and the conversation was not re corded.

While working on another homicide, Detective Gra y ran into Mr. Pence once again at a hotel
on Dickerson Road, and Mr. Pence asked him if he had found Defe ndant. A week

later, Detective Gray interviewed Mr. Pence as a follow-up, but rece ived no new information other than the fact

that Defend ant sometimes stay ed at the Union Missi on inNashville since bot h he and Mr. Pence were homeless at the time. Detective Gray c ontacted the Mission andobtained the telephone number of Defend ant's mother

in Or eg on . M rs . C av aye told him that her son had been in Oregon, but was now in Florida. She confirmed that Def endant w as limping

when he v

isited his family, which was a fter the victim was killed.

In Novembe

r, 1999, D etective

Berna rd was a ssigned

as lead d etective on the ca se. Up unt

il that time, the police were still operating under the assumption that the victim

had died from knife wounds. In November, howeve r, Detective Bernard lea

rned that the cause of death was a he ad injury. By

that time, though, the crime scene had been dismantled.

Based on information from Jules Tabor, who had seen Defe ndant with

blood on his clothes the night of the murder, and Detective Gra y's inter view no tes, D etective Bernard beg an searching for Mr. Pence who was finally located in a mental health facility in Lincoln, Nebraska. During the first interview, Mr. Pence stated that he had seen Defendant on the morning af ter the murder

with blood on his clothes. Mr. Pence was told by D efendant that he had be en in a fight while he was working as a

bouncer at The Turf, another Nashville bar . Mr. Pence said that he and Defendant went to Legend' s Corner

tha t morning, where Defendant clea ned up. Afterwards, as they drank coffee, Mr. Pence stated that Defendant admitted that he had killed the victim. Detective Be rnard returned to Nashville to interview Don Link, the manager of a food establishment on 4th Avenue, who had previous ly

reported spotting two men in the parking garag e near the Rainbow Room on the afternoon of the murder. Mr. Link identified Mr. Pence from a photographic lineup as one of the men he had
seen. During a second interview, Mr. Pence admitted tha t he actually ha

d been involved in the
ro bb er y, that

he knew t

he victim after working for him in 1996, and that he and De fendant planned the robbery

in the par

king g arage

across f rom th e Rain bow Room. However, Mr. Pence said that Defendant

went into the bar alone while he stay ed at the front door as a lookout. Mr. Pence stated that he had he ard sound s of a struggle, but did not witness the confrontation. At this point, Mr. Pence was arrested and transported ba ck to Nashville.

On Fe b ruary 9, 2000, Mr . Pence changed his story and confessed that he had been prese nt when Defendant assaulted and robbed the victim. Detective Bernard receive d information from Defendant's father

that his son was in San Francisco. After the San Fra ncisco police apprehended Defend ant, Detective Bernard went ther e to interview Defendant . Followi n g this init ial m eetin g, Detective Berna

rd retur ned to Na shville, a

nd Mr. L in k identi fied Def

endant a s the sec ond man in-4-

the garage from a

photographic line-up. Defendant was the n pla ced unde

r arre st and re

turned to Nashville for tria l.

At trial, Mr . Pe nce testifi ed that the following events occurred in connection with the victim’s murder. Prior to the m urder, Mr. Pence knew the victim because he used to clean the Rainbow Room’s bathrooms in 1996. Five or six days before the murder, both he and Defend ant deci ded to rob someone because they were tired of b eing ho meless. Mr . Pence te stified th at it was his ide a to rob the victim because heknew tha t the victim carried cash in the pockets of his bib overalls. On the day of the murde

r, Defendant and Mr. Pence met ag ain around5:00 p.m. to discuss the robbery in a parking garage ac

ross from the Rainbow Room. Defendant told Mr. Pence that he would beat the victim up if he did not give them the money . The two left the garage and went tothe Rainbow Room.

Ini ti al ly, M r. Pence stoo d by the doorway as a lookout because he was concer ned that the victim woul d rec ogni ze him. However, he left his post because he wanted to see what Defendant
was going to do. When Defendant asked the victim for money , he refused. Defendant then hit the victim twice in the face, and three or four times in the stomach, knocking him off his bar stool and
on to the floor. As the victim tried to rise, Defendant pulled his head ba

ck and pla ced a kn ife ag ainst his throa t. Defendant asked for

money ag ain, and when the victim again refused, he cut his throat three times and l et him go . Defen dant r eached ove r and removed some money from the victim’s pockets, then wen

t into the ba

throom to w ash the bl ood off hi s hands.

The victim cried out for help, and Defendant told Mr. Pence “t o shut him up.” When Mr. Pence refused, Defendant hit the victim over the head with a liquor bottle, then placed the bottle back behind the bar. After that, the v ictim was q uiet. Defend ant took so me money out of the

cash register, and closed the dra wer. He and Mr. Pe

nce then left the b ar agr

eeing t o meet up later that ni gh t t o s pl it th e m on ey.
Around 8:30 p.m., Defendant and Mr. Pence met at the bar, The Turf. Defendant had blood
on his jeans and shirt , and was limping. Defendant gave Mr. Pence $5 out of the $45 he had taken from the victim, saying that Mr. Penc e had not acted as a lookout like he was supposed to d o
. Around midnight, the two men separated.

The next morning, Mr. Pence spotted Defendant near Legend’ s Corner as Mr. Pence headed to the Union Mission for breakfast. Defendant still had on the clothes he wore the night before, and the two of them went into Lege nd’s Corner so Defendant could wash.

Mr. Pence saw Defendant for the last time two days later dur ing a vigil held for the

victim in Printer’s Alley. He a

nd Defendant, along with a friend and he r two sons, attendedth e c er em on y. While they were

there, Defendant knelt down, m ade the sign o f the Cross, and sang “Amazing Grace.”-5-

Detective Dyer testified tha t on the evening of the murder she was standing at one end of Printer’s Alley when Mr. Jones rushed out ca lling for help. She responded and fou nd the vic tim lying on t he floor

with his throat c ut. He wa s mumbling , and Det ective D ye

r remove d one of h

is broken dentures; the other lay on t he floor next to him. Detective McAlister with the Homicide Division testified that he found blood on the sink, the cabinetand the roll-down towels in the Rainbow Room’s ladies re st room. Joe Minor, a forensic scientist with the Tennessee Bureau of Inve stigatio n, testifi ed that the blood fo und in the b athroom b elonge d to the victim.

Jules Tabor worked at Le gend’s Corner at the time of the murder. He usually ar rived at work around6:00 in the morning to cleanup the bar before it opened. He knew both De fendant and Mr. Pence, and testified that they regularly stopped by in the

morning s to use the

bar’s ba throoms. Mr. Tabor testified that on the day a fter the murder Defendant and Mr. Penc e stopped by a s usual. Alth ough Mr. Pence

was “pr esentab le,” Defendant

“was a s ight,” with his clothes and hair in di sa rr ay, and blood

still evide

nt on his clothes and person. Defendant was also limping. Mr. Tabor
s tated tha t Defendant told him he had been in a fight at The Tur f where he worked as a bounce r. Kathleen Moore, the owner of The Turf at the time of the murder, however, te stified that the club
never e mploy ed bounc ers.
Barbara Bruce , a

friend of Defendant and

Mr. Pence, also testified that she saw Defendant
on the night of the mu rder, a nd he look

ed like he

had bee n in an alt

ercatio n, with bloo d on his clothes, puffiness in his face, and a hurt knee. She stated that it appeared as if Defe ndant had tried to clean up

but had be en unsuc cessful

. When she a sked Def endant w hat happe ned, Def endant to ld her he had been in a fight with a homeless person. When she askedDefendant if he had heard about the victim’s attack, Defendant said no, but that he wanted to visit the crime scene. She stated that they went to Printer’s A

lley togethe r that nig ht and sta ye d about t

en mi nutes. Ms. Bruce testified that she saw Defendant and Mr. Pence the ne xt evening, and they

attendedthe vigil service for the victim.

Don Link was the manag er of the Burger K ing on 4 th Avenue. The restaurant’s back door opens on to Printer’s Alley, and Mr. L ink testified that he wen t down the alley just befo re dark to the garage ac

ross from the Rainbow Room. He stated that it was his usual routine to move his car from the gar age’stop level

to a spot on the first floor near the elevators for security purposes. The night of the murder, Mr. Link n oticed tw o white me n standing

by t he eleva tors. When his he adlight s flashedon them, the men went up the stairs. Later, looking at photographs, Mr. Link identified the two men as Defendant and Mr. Pence. Guy Perry testifie d that he w as Defe ndant’s c ellmate

fora shor t peri od of t ime. A ltho ugh Defendant

initial ly d enie d killing the victim, Defendant later confessed to the murder , telling Mr. Perry that it was just a robbery g on e bad. Mr. Perry said that De fendant only admitted hitting the victim and did not

mention the

knife cu ts. Defe ndant told him that the robbery wa s all Mr. Pence’s idea, and that

they had only

gotten $40 or $45 for their efforts. Mr. Perry testified that Defendant told him he had

only given Mr. Pence $5 because he ha d notdone his jo

b proper ly. Mr. Perr

y a lso testified that Defendant told him that he went to the victim’s vigil and sang “A mazing Grace.”-6-

On cross-examination, Mr. Perry a dmitted that he wa s relea sed from jail ear ly a s a resul

tof his agreement to testify

in this matter, and that

he had re ad portio ns of the c ase file Defendant had in the cell. However, Mr. Perry testified that he had

told the police what he knew before the deal for his release was offered, and that he had also helped them on an unrelated homicide investigation.

Michael Hodge also was Defendant’s c ellmate for a period of time. Mr. Hodge testified that he was in ja il on a fe deral we apons viol ation, and had not y et been s entenced when he agreed to te st if y. Howeve

r, Mr. Ho dge ad

mitted he k

new that h

e could g et his sentence reduced if he assisted the State. Mr. Hodge testified that Defendant conf essed that he and

Mr. Pence went to the Rainbow Room to rob the victim, that the victim refused to givethem mone y, a nd that De

fendant hit him prior to robbi ng him . Defen dant t hen ki lled t he vic tim “ becaus e he wou ldn’t shut up.” M r. Hod ge testified that Defendant thought he would not be convicted bec ause there was no evidence other than Mr. Pence’s testimony, and Mr. Penc e was a liar with numerous conflicting statements. Acc ording to Mr. Hodge, Defendant told him he wa s going to open up a tattoo parlor or a bar called “The Whodunit” after he was fr ee. Mr. H odge te stified th at Defe ndant h ad sh own him a newspaper clipping about the murder, and copies of Mr. Pence’s var ious statements and letters concerning the
case.
The jury convicted De fendant of first degree fe lony murder

and espec ially ag gravated
ro bb er y.
On appeal, Defend ant first contendsthat the trial co urt failed to exercise its role as the thirteen th juror when it denied Defendant’s motion for a new trial. Defe ndant argues that

there was
no direct evidence linking him to the crime. He arg ues that the State’s proof wa s derive d primari ly from the testimony

of his ac complice , Mr. Penc e, who ad mitted ly ing on se veral oc casions, and the testimonyof

two ce llmates who testified in exchange for more lenient sentencing . Moreover, Defendant

contendsthat the Sta

te neglected to follow up on numerous suspects, and therefore failed to identify the true pe

rpetrator of the crime. Accordingly, Def e ndant argues, the weight of the evidenc e does no t support th e jury ’s verdi ct.
Se co nd ly, Defendant argues that the trial c ourt erred in apply ing enhancement

factors when determining Defendant’s sent ence for especially aggravated robbe

ry, and er

red in finding that De fe nd an t’ s s en te nc es sh ou ld be se rv ed co ns ec ut iv el y.
II. Thirteenth Juror.

Defendant

contends that the trial judge should have overturned the jury ’s verdict as the thirteen th juror be cause

the verdict was against the weig ht of the evidence. As a result, Defendant
now asks that this matter be remanded for a new trial. I n his argument, Defendant relies on seve ral
cas es that stand

for the p roposition

that a tri al court ’s finding s of fac t will be upheld unle ss th e evidence preponderates against those finding s. See State v. Simpson , 968 S.W.2d 776 (Tenn. 1998); State v. Henning , 975 S.W.2d 2 90 (Tenn . 1998); State v. Odom , 928 S.W.2d 18 (Ten n. 1996). However, Defendant’s relianc e is misplaced. The standard of review applied to a challen ge that

a-7-

trial court fa

iled to pe rform its thirteen

th juror ro le is diff

erent f rom that e

mploy ed in

challen ges to a trial court’s findings of facts.

As a thirteenth juror, the trial court may grant a new t rial f ollo wing a guilty verdict if the trial
co urt disag rees with the jury a bout the weight of the evidence. Tenn. R. Crim. P. 33(f). I n that situation, the trial

court as sesses the weight of all of the evide

nce pre sented a

t trial, and either approves or disapproves the verdict reached by the jury. The purpose of the thirteen th juror r ule is to provide a safeguard

ag ai ns t a mi sc ar ri ag e o f j us ti ce by t he ju ry. It ensures that the verdict is base d
on satisfactory e

vidence presented through credible witnesses. State v. M oats , 906 S.W.2d 431, 434 (Tenn. 1995); State v. Na il, 963 S.W.2d 761, 765 (Ten n. Crim. App. 1997). Indeed, it is mandatory that the trial judge perfo rm t his function, and the trial judge’s approval of the ver dict is necessary to the imposition of a valid judgment. State v. Carter , 896 S.W.2d 119, 122 (Tenn. 1995).

The tria l j udge, l ike the jury, has the sa me opportunity to observe the de meanor of the witnesses while testifying and assess their credibility

. Moats , 906 S.W.2d at 431. This Court is not in the best position to review the weight and credibility of the witnesses’ testimony, and, for tha t reason, a new trial will only be gr anted if the trial judge expresses dissatisfaction or disagreement withthe weight of the evidence or t he jury’s ver dict, or the record indicates that the trial court misunderstood its role as thirteenth juror. Id. at 435 ; State v. Gillon, 15 S.W.3d 492, 501 (Tenn. Crim. App. 1997 ); Sta te v. B urlison , 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). If the trial court si mp ly o verrules Defendant’s motion for a new trial, this Court may presume that the trial judge has acted as the thirteenth juror in approving the jury ’s verdict. Carter, 896 S.W.3d at 122. The limited review afforded this Court on the performance of the trial court’s thirteenth juror role, therefore, “practically

foreclose[s] assessment

of the evidentiary

basis for a

trial cou rt’s thir teenth juror ruling.” Burlison , 868 S.W.2d at 719.

Defendant

argues that the testimony of his accomplice, Mr. Pence , was not c redible because the evidence showed that Mr. Pence had lied on numerous occasions about the events surrounding the victim’s murder. Both sides, however, extensively examined Mr. Pence’s motives and conduct before and after the murder a t trial.

Defendant

raises the sam e cre di bi li ty i ss ue s w it h M r. Pe rr y’s an d M r. Ho dg e’ s t es ti mo ny. Defendant

argues that

since bot h men were incarcerated a nd received leniency

on their sentences as
a result of their testimony, they could not give credible testimony . Once again, both Defendant a nd the State que stioned the witness es about t heir motiv es, and the terms of their agreements with the state and federal govern

ments. Defendant , through cross-examination, established that the witnesses had se en cert ain pi eces of evide nce fro m Defen dant’ s fil es pri or to t estifying.

Defendant

also arg ues that th

e police failed to follow up o n all of the

ti p s and information developed

during the course of their investigation. To support his arg ument , Defendan t points to vari ous examples of potential suspects and unexplored tips, although he does not indicate wh a t testimonyor evidence might ha ve been brought to light through their disclosure . However, the-8-

faili ngs or sho rtcom ings o f the p olice , if an y, during t heir i nvest iga tion involves the credibility of the police witnesses and the credibility of the State’s case as a whole.

At the conc lusion of th

e witness es’ testimony , it was the trier of fact’s r ole to decide whether the testimony was credible a nd what weight to accord the testimony . We presume that the jury resolved any

conflicts in the witnesses’ testimony in favor of the State, andthe jury acc redited the witnesse s’ testimony when it returned a guilty

verdict. State v. Jackson , 52 S.W.3d 661, 666 (Tenn. Crim. App. 2001). Therefore, our review is limited to whether or notthe trial

court dis agreed with the verdict

or misunderstood its role as the thirteenth juror. Therecord reflects that the trial court summarized the proof at length, including the witnesses’ testimony and the i nvestig ation by law enforc ement. When denying D efendant’s motion for a new trial, the trial court concluded that the weight of the evid ence supported the jury’s ve rdict, stating that he believed there was “suf ficient proof for these findings.” The accur acy of the

t rial court’s thirteenth juror determination is not subject to appellate review. Moats, 906 S.W.2d at 435. At no point did the trial court express any disagreement

or dissatisfaction with the verdict. The record adequately shows that the trial court fulfilled its role as thirteenth juror.

Alth ough Defendant phrases his issue in terms of whether the trial court

properly e

xercised its thirteenth juror role, he also argues that the e vidence was insufficient

to supporthis convictions. This argument is based on the contention that there was no direct evidence linking Defendant to the crime. Although the State didnot introduce any phy sical evidence that tended to place Defe ndant in the Rainbow Room at the time of the victim’s murder, Mr. Pence’s t estimony, if corrobora ted, certainl y provides direct evidence that Defenda nt not only was present at the c rime but wa s th e person who committed the crime. Whether or not an accomplice’s testimony can sustain a conviction is a matter of the sufficiency

of the independent evidence corrobora ting the testimony, not just the credibi lity

of the accomplice. See Jackson, 52 S.W.3d at 661; State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994) (A

convicti on in Tennesse e cannot be based on the testim

ony of an ac complice

if uncorroborated.).

When consider

ing the s ufficie

ncy of the ev idence, the jury

is presumed to have resolve d all conflic ts and drawnany rea sonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Questions concerning the credibi lity

of witnes ses, the weight afforded the evidence and the resolution of factual issues are left to the trier of fact. State v. Keough , 18 S.W.3d 175, 180-181 (Tenn. 2000), cert. denied, 531 U.S. 886, 121 S.Ct. 205, 148 L.Ed.2d 1 44 (2000). Therefore, on challe

nges t o the sufficiency

of the evidence, our standard of revie w is whether a rational trier of

fact could have f

ound all of

the esse ntial ele ments of th

e crime b ey ond a rea sonable doubtwhen viewing the evidence “in the lig ht most favo rabl e to the prosecution.” Jackson, 52 S.W.3d at 666 (Tenn. Crim. A pp. 2001), citing Ja ckson v. Virginia , 443 U.S. 3 07, 319, 99S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

A jury ’s guilty

verdict removesDefend ant’s pr esumption

of innoce

nce enjo ye d at t rial, imposing instead a

presumpt

ion of gu

ilt, and De

fendant has t he b urden of

overcom ing this presumption on appeal. State v. Black , 815 S. W.2 d 166, 175 (Tenn. 1991) ; State v. Tuggle, 639-9-

S.W.2d 913, 914 (Te nn. 1982) . A guilty verdict will be se

t aside if the evide nce is ins ufficie

nt to support the trier of fact’s findings bey ond a reasonable doubt. Tenn. R. App. P. 13(e).
Therefore, we must deter

mine if there was sufficient evidence cor roborating the acco mplice’ s te st im on y. The corroborating evidence must be entire ly independent of the a

ccomplice’s testimony and lead to an inference that Defendant wasinvolved in the crime. Bigbee, 885 S.W.2d at 803. Not every item of the accomplice ’s testim ony, however , must be corroborated, and the corroborating evidence, in and of itself, does not have to be sufficient to support a conviction. Hawkins v. State, 469 S.W.2d 515, 520 ( Tenn. 197 1); State v. H eflin , 15 S.W.3d 51 9, 524 (Te nn. Crim. App. 1999).

The jury convicte d Defen dant of f irst degree fel ony murder a nd especially a

ggravated
ro bb er y. As charged, felony murder required proof tha t Defendant killed the victim during the perpetrationof

a r ob be ry. The especially aggravated robbe

ry char ge required proof that Defe ndant intentiona

lly or knowingly c ommitted theft of property fr

om the victim, by violence or plac ing the victim in fear , accomp lished wit h a de ad ly w eapon, a

nd where the victim

suffer s serious bodily in ju ry. Tenn. Code Ann. §§ 39-13-202, 39-13-403 and 39-13-403. With that in mind, we review the evidence in a light most favorable to the State.

Mr. Pence testified that he and Defendant met in the parking garag e across from the Rainbow Room to finalize the robbery plans a f ew minutes before entering the victim’s establishment. Mr. Link testified that he saw two men standing by the elevators of the parking g arage around dark on the evening of the murder when he moved his c ar from the top floor to the bottom level. Later, he identified the two men as Mr. Pence and Defendant. Mr. Pence testified that the victim was alone in the bar when he and Defendant e ntered the premises. Doro thy Best testifie d that the

victim entered the Rainbow Room alone after she dropped him off in her taxicab at 4:30 the afternoon of the murder, and Mr. Reno, a friend of the victim who visited him shortly before the murde r, testified that the victim was a

lone whe n he left at appro ximately

5:00 p.m.

Mr. Pence further testified that, duri ng th e robbery , Defendant slashed the victim’s throat two
or three times and hit him on the head with a bottle. The t estimony of Dr. Ge rber, the assistant medical examiner, confirmed these injuries from the a utopsy of the victim. Mr. Pence also testified that Defendant was spattered with blood from the wounds inflicted on the victim and later washed his face a nd hands in

the ladie s’ rest

room at the

rear of the bar. Mr. Minor , a fore nsic scie ntist, testified that the blood samples taken from the sink, cabinet and towels in the bathroom belonged to the victim. Although Defendant tried to clean himself up, he still had blood smears on the thighs of his blue jeans as well as his shirt whenDefendant and Mr. Pence left the Rainbow Room. Elaine Pittman, a bartender at The Turf, and B arbara Bruce, Defendant’s frie

nd, testified that they eac

h saw Defendant

the night of the murde r and t hat he had bl ood st ains o n his cloth es and was li mpin g. Mr. Pence testified that he and Defendant went to L egend’s Corner the next morning so that Defe ndant could wash up. Jules Tabor, the janitor at Leg end’s, testified that Defenda nt was a “ sight” with blood on his clothes. Mr. Tabor stated that Defendant told him he had been in a fig ht the night before at The Turf where he was working as a bouncer. Kathleen Moore, the owne r of The Turf , testifie d that she

never e mploy ed bounc ers.-10-

Fi na ll y, Defend ant’ s two cellmates, Michael Hodges and Guy Perry, ea

ch testified that Defendant

had confessed

to robbing

and killing

the victim . Mr. Perr

y te stified th at Defe

ndant sai d that he and Mr. Pence, at Mr. Pence’s suggestion, had g one to the Rainbow Room merely to rob the victim, but the attempt went wrong, and Defendant e nded up killing th

e victim. M

r. Perry said that Defendant

only said he hit the victim, and did not mention cutting him with a knife. He stated that Defend ant said he only

got $40 from the victim, and that hegave $5 to Pence. Mr. Perry testified that Defendant later went to Printer’s Alley with a woman and her two sons and sang “Amazing Grace.”

Mr. Hodge’ s testimony

was esse ntially the same. He testified that Defendant told him that it was Mr. Pence’s idea

to rob the victim since he knew t he victim c arried

money in his bib ov eralls. Mr. Pence went in first to make sure that the victim

was alone, then st

ood lookou

t while Defendant went to ask for money . Mr. Hodg es testif ied that D efenda

nt said he then got into a

struggle with the victim whil e he wasattemptin g to rob h im, and tha

t Defend ant ende d up cuttin g his thr oat.

Base d on the testimony presented a t trial, we conclude that Mr. Pence’s testimony was sufficie ntly corroborated, and there was suff icient evidence to sustain Defend a nt’s conviction on both counts. Defendant is not entitled to relief on this issue.
III. Sente

ncing Issues
. Defendant

was sentenced

to life imprisonment with the possibility of parole for the murder conviction. Followi ng a sentencing hearing, De fendant was sentenced as a Rang e I standard offender, to twenty-four y ears for the especially

aggravated robbe

ry conviction, with that sentence to run consecutively to the life sentence. Especia lly aggr avated r obbery is a Class A

felony . Tenn. Co de Ann. § 3 9-13-403 (b). As a Range I standar

d offen der, the

sentenc ing range for

especia lly a ggra vated ro bbery is fiftee n to tw en ty- five years. Te

nn. Code Ann. § 40-35-112(a)(1). The presumptive sentenc e for a Range I standardoffender convicted of a Class A felony is the midpoint of the rang e if there are no mitigating
or enhancing factors. Tenn. Code Ann. § 40- 35-210(c). Should the re be enhancement but no mitigating factors for

a Class A f

elony , then the

court sha ll set the sentence at or above the midpoint of the range. Tenn. Code Ann. § 40-35-210(d)

. Should there be mitigating but no enhancement factors for a Class A felony , then the court shall set the sentence at or below the midpoint of the range. Id. Should ther

e be enh anceme

nt and mitig ating f

actors f or a ClassA felony , the cour t must start at the midpoint range, enhance the sentenc e within the range as appro priate for the enhancement factor s, and then reduce the sentence as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). The weight accorded the enhanc ement fa

ctors is w ithin the tr

ial cour t’s discr etion so long as the record supports its findings and the findings comply with sentencing principles. State v. Carter , 908 S.W.2d 410, 412 (Tenn. Crim. App. 1995).

I n setting Defendant’s sentence at twe nty-four y

ears, the trial court con sidered a s enhancement

factors that

(1) Defendant was a leader in the commission of an offense involving two-11-

or more criminal actors, (2) Defendant treated or allowed the victim to be treated with exceptional cruelty during the commission of the offense, (3) Defendant ha d a previous history

of unwilli ngness to comply with the c onditions o f a sente nce involving re

lease in to the com

munity and (4) Defendant had a previous history of c riminal convictions or crimina l behavior. Tenn. Code Ann. § 40-35- 114(1), (2), (5), and (8). The trial court found no mitigating factors. Af ter determining the leng

th of Defendant’s sentence, the trial court ordered the sentence for Def endant’s especially

aggravated robbery conviction to run consecutively with the life sentence previously imposed forthe murder conviction based upon a finding that Def endant w as a

dangerous offender. See Tenn. Code Ann. § 40-35-115(b)(4). On appeal, Defendant

argue s that the t

rial cou rt imprope

rly applied an enhancement factor basedon exceptional cruelty bec ause the State failed to prove any exceptionally cruel

acts over and above those factors that relate to the elementsof an esp ecially aggr avated r obbery offense . We note that Defendant

in his brief also argues that the trial court improperly a

pplied an enhancement factor basedon the age of the victim, but the record d oes not support this contention. Rather, it appears the trial court merely

stated that the age of

the victim , while no t supporting applic ation of a separa te enhancement

factor , was con sidered

by t he trial c ourt in dete rmining whether Defendant acte d exceptionally cruelly

. Defendant

also arg ues that th

e trial c ourt err

ed in orderi ng Defendant’s sentence for especia lly aggravated robbe

ry to run consec

utively to his life

sentence. Defendant argues he is not
a dange rous off ender a s contemp lated by the appli cable

statute, and the State offered no proof that the consecu

tive sente ncing o f Defendant was necess a ry to protect the public f rom future criminal acts upon Defendant’s release.

When a defendant cha

llenge s the leng

th of a sentence, this court conducts a de novo review
on the record, with a presumption that the trial court’s determinations are correct if the recor d shows that the trial cou

rt consid ered bot h the principles a

nd purpos es of the

1989 Sente

ncing Act and all relevant facts. Tenn. Code Ann. § 40-35-401(d) ; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The defe ndant ca

rries the burden o f proving

the sente

nce impr oper. Se ntencing Commissio n Comments to Tenn. Code Ann. § 40-35-401(d). In re viewing the length of the sentence , this court
mu st consid er: (1) the evidence presented a t the trial and sentencing hearing; ( 2) the pre-sentence report; (3) the p

rinciple s of sente

ncing a nd arguments as to sentencin g altern atives; (4) the nature and characteristics of the criminal conduct; (5) any

appropr iate enh anceme

nt and mitig ating f

actors; and (6) any

statements made by the de fendant on his own behalf. Tenn. Code Ann. § 40-35-210(b).

Enhancement

facto r s must be appropriate for the offense and “not themse lves essential elementsof the cr

im e.” Tenn. Cod

e Ann. § 40 -35-114; State v. P oole , 945 S.W.2d 93, 95 (Tenn. 1995). Therefore, the presence of a particular enhancement fa ctor may not be ba sed on facts that prove or establish the elements of the offense. State v. Jones , 883 S.W.2d 597, 601 (Tenn. 1994). It is presumed that the Leg islature took these factors into co nsider ation when s etti ng the r ange applicable to the offense. Id.-12-

The offense of especially aggravated robbe

ry is defined a s a r obbery ac complished with a deadly we apon andwhere the victim suffers serious bodily injury. Tenn. Code

Ann. § 39-13-403. Defend ant, therefore, argues that the facts used by the

trial court to establish Defendant’s exceptional cruelty toward th

e victim are the same facts necessar y to support a finding tha

t the victim incurred serious injury based on

this Court’s decisions in State v. Embry, 915 S.W.2d 451 (Tenn. Crim. App. 1995), overrule d in part by State v. W

infield, 23 S.W.3d 279, 283 (Tenn. 2000); State v. Williams , 920 S.W.2d 247 (Tenn. Crim. App. 1995); and State v. Manning , 883 S.W.2d 635 (Tenn. Crim. App. 1994). In each of these

rape cases, this Court concluded that the factors relied

upon to establish the presenceof except

ional cr uelt y were the same factors which established the elements of the ra pe offense, and, theref

ore, by themselve s, would not s upport a f inding th at the defendant s acted with exceptional cr ue lt y. However, based upon a review of the record, these ca ses are

not persu asive to the issues at hand. Exceptional cruelty is not an ele ment of espec ially

aggravated robbe

ry. Poole , 945 S.W.2d at 98. Defendant’s actions, therefore, may exceed those necessary

to su pport a finding that the victim sustained serious bodily injury , and may demonstra te a culpability “distinct from and apprec iably

greater than that incident to the offense .” Spratt , 31 S.W.2d at 607. In this instance, the victim wa s c ut th re e t im es on th e n ec k a nd re nd er ed se ns el es s b y a blow to the head with a liquor bottle. These fa

ctors ce rtainly establish that the victim suffered serious bodily injury. However, the trial court also found that Defendant’s actions went bey ond merely

inflictin g injury

on the vic tim. Sp ec if ic al ly, after sl ashing t

he victim’ s throat th

ree time s, Defe

ndant re moved mo ney

from th e victim’s pocket

and then allowed the victim to lay on the floor without

medical attention while he washedhis hands in the bar ’s restr oom. At thispoint, the

victim wa s helples s either t o flee f or help
or resist any furthe

r steps Defendant

might tak e to remo ve money

either f rom his person or

the cash register. Defendant could simply ha ve completed the robbery without interference an d left the premises

. Yet Defe ndant first told Mr. Pence to silence the victim, and when Mr. Pence did not respond, came back and struck the victim a second time just to “shut him up.” We concl ud e that Defendant’s actions of

striking the victim on the head with the bottle after all dange r of resistance
on the victim’s part was removed and allowing the victim to lay on the floor for a n extended period of time whil e Defen dant cleaned the blood off his hands represents a c ulpability grea

ter than that incident to the offense and justifies application of this enhancement fac tor.
Defendant

next argues that the trial court erred i n imposing

consecu tive sente nces bec ause there was no proof that Defendant wa s a dan ge rous offender or that consecutive sentenc es are necessary to protect the public.

When a defendant is co nvicted o f multiple crimes, the trial court, in its discretion, may orde r the sentences to run consecutively if certain criteria are

met. Tenn. Code Ann. § 40- 35-115. I n this instance, the trial court found that Defendant

was a “dangerous offe

nder whose behavior indicates littleor no regard for human life, a nd no hesitation about co mmitting a crime in w

hich the r isk to human life is high.”

Tenn. Cod

e Ann. § 40 -35-115(

b)(4). H owever , if the tr ial cour t rests i t s determination of consecutive sentencing on this categ ory, the cour t must make two additional finding s. State v. I

mfeld , 70 S.W.3d 698, 708 (Tenn. 2002). First, the trial court must find that an-13-

extended sentence is necessary to protect the public fr

om furthe r crimina l conduct by t he defe ndant, and, second, it must find consecutive sentencing to be reasona bly re lated to the severity of the offense. State v. Wilkerson , 905 S.W.2d 9 33, 939 (T enn. 1995 ); see also State v. Lane , 3 S.W. 3d 456, 461 (Tenn. 1999).

The record

indicate s that the t

rial cou rt prope rly consider ed th e require

ments set f

orth in Wilkersonin determining whether consecutive sentencing wa s appropriate for Defendant. I n making its determination, the trial court considered the viciousness of Defe ndant’s attack , the complete indiff erence for the victim’s agony as Defendant washed the victim’s blood off his hands, the sensele ss infliction of a second injury a fter the victim was immobilized, and the fact that Defendant committed the offense for only $45.00. Furthermore, the trial courtconcluded that Defendant showed no remorse for his crime, and even joked about the crime to his cellmate say ing he was going to open a ba

r called “The Whod

unit.” The

trial cou rt then c ompared

th e ci rcumstances of Defendant’s crime to the court’s other s entencing hearings, and c oncluded that consecutive sentencing was rea sonably related to the severity

of the case and necessary for the protection of the public.

Becau se our review indicates that the trial court considered the r elevant sentencing criteria, made findings of fact that are adequa tely supported in the rec ord, andfollowed the statutory sentencing procedu

re, we c onclude t

hat the tr ial cour t did not abuse its discretion when it ordered Defendant’s sentenc e for es pecially aggr avated r obbery to run consecutively with his life sente nce. Defendant is not entitled to relief on this issue.
CONCLUSION

Based u pon our re

view of th

e recor d, we af firm the j udgmen

t of the tr ial cour t.

___________________________________ THOMAS T. WOODALL , JUDGE