# FILED April 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9705-CR-00179 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. L.T. LAFFERTY, IVORY THOMA

S, ) JUDGE ) Appellant. ) (Especia lly aggravate d robbery)

FOR THE APPE LLANT: FOR THE APPELLEE: A C WHARTON, JR. JOHN KNOX WALKUP Public Defender Attorney General & Repor ter TONY N. BRA

YTON JANIS L. TUR NER Asst. Public Defender Counsel for the State 201 Poplar, Suite 201 425 Fifth Ave., North Memphis, TN 38103 Cordell Hull Bldg., Second Fl. Nashville, TN 37243-0493 JOHN W. PIEROTTI District Attorney General CHARLES BELL Asst. District Attor

ney General 201 Poplar, Suite 301 Memphis, TN 38103

OPINION FILED:____________________
CONVICTION AFFIRMED; SENTENCE MODIFIED JOHN H. PEAY, Judge1 The defe nda nt wa s also indict ed on char ges of ag grav ated ass ault a nd th eft of prop erty. W hile the record does no

t incl ude a copy of t hese indictments, the jur y inst ructions r

eflect the additi onal charge s. Thes e charg es were in conne ction with the one fac tual inciden t describe d in this opinio n. Ultima tely, the defen dant wa s convic ted of on ly one coun t, espec ially aggravate d robbe ry. 2 O P I N I O N

The defendant was indicted in Aug ust 199 5 o n one count of especially aggravatedrobbery
. 1 A jury found him guilty of the charged offense and the trial court sentenced him as a Range I standard offender t o twenty-five y

ears. In this appeal as of right, the defendantargues that the trial court erred in allowing testimony explaining the absence of a State witness. He further argue s that his sen tence is excessive. After a review of the record and appl icable la w, we affirm th e defendant’s convicti on but mod ify his sentence to seventeen years.

Since the defendant does not challenge his convictio n on a sufficiency basis, we will only brieflydiscuss the facts of this case.On May 2, 1995, the defendant and three other young men w ere ridingin a stolen vehicle w hen they spotted the victim in this case, Adele Hall. Hall had b een on her way home from a nearby g rocery store. She parked her car in her dr iveway and as she was exiting her car, she was confronted bya young man with a gun. She was struck one time on the head with the g un, and her purse and car were stolen. A t least one gun shot was fired atHall’s neighbors who were attempting to come to her aid. One of the other per sons ac tually struck the v ictim and fired the shot.

On appeal, the defendant argues that the trial court err

ed in allowing Officer Eddie L. Perry to testify abo ut a missing State witness. The State had planned to call Travis Young totestify about certain facts r elated to the defendant’s flight from the police. Perry, a transportation officer wi th John S. Wilder Youth Center, testified that Young was3

being held at the center, which is a developmental facility for juvenile delinquents. Perry had been in charge of transporti ng Young to the courthouse to testify. When Pe rry and Young arrived at the courthous e, Perry open ed the door of the vehicle, and Yo ung jumped outof the vehicle and fled. Perr y testified that Young had not been seen since despite the fact that Young had been w earing legirons and a “belly chain” with handcuffs.

At trial, theState argued that Perry should be allowed to testify and explain the absence of Young. T he State contended that in its openi ng argument it had referenced Young’s expected tes timony, and that without an explanation, the jury would be confused about Young’s failure to testify. The trialcourt allowed the testi mony under whatthe trial judge termed the “do-right rule for the benefit of the Court of Appeals.” The defendant now argues that Perr y’s testimony w

as not relevant to the is sues bef or e the trial court and that allowing such testimony essential ly denied the defendant his right to confront a witness called against him.

While we were unable to locate the speci fic term s of the “ do-right” rule, we can find no harm suffer ed by the defendant in connection with thi s issue. Young had been expected to identify the defendant as one of the four men who fledon foot from the police. This testimony

was related to a count of the indictment on which the defendant was ultimately acquitted. While the better course might have been for the trial cour t to simplyinform the jury that Young was

not available to testify

due to no fault of the State,
w e c annot say that the defendant was harmed by allowing the jury to hear testi mony about Young’s escape. We further note that after hearing testimony ab out the escape, the jury was informed by the trial court that such testimony was only offered in order to explain why Young w

as not present. The court further instructed the jury not to draw an inference of guilt on behalf of the defendant due to Young ’s absence. In light of the fact4

that the defendant was acquitted on the charge relatedto Young’s testimo ny, we are at a loss to find any prejudice suffer ed by the d efenda nt. W hile we are not convinced that the trial court erred in allowing testimony about Young’s escape, we are entirely convinced thatif error, it was most certainly harmless. Thus, we find thi s issue is without merit and affirm the conviction of the defendant.

The defendant next argues tha t the trial court erred by sentencing him to twenty-fi ve years, themaximum sentence. He argues that the sentence is excessive and that the trial court erroneously applied enhancement factors as w ell as failed to apply certain mitigating factors.

When a defendant complains of his or her s entence, we must conduct a de novo review with

a presumption of correctness. T.C.A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the appeal ing party. T.C.A. § 40-35-401(d) Sentencing C ommission Comments. This presumption, however, “is conditioned upon the affirmative showing in the record that the trial co urt considered the sentencing principles and all rel evantfacts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (T enn. 1991).

A portion of the Sentencing Reform A ct of 1989, codified at T.C.A. § 40-35-210, established a number of specific procedures to be followed in sentencing. This section m andates the co urt’s considerat ion of the fo llowing:

(1) The evidence, if any, recei ved at the trial and the sentencing hearing; (2) [t]he presentence report; (3) [t]he principles o f sentencing and arguments as to sentencing alternativ es; (4) [t] he nature and characteristic s of the criminal conduc t involved; (5) [e]vidence and information offered by the parties on the enhancement and mitiga ting factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wi shes5 to make in his own b ehalf about sentencing. T.C.A. § 40-35-210.

In addition, this section pr ovides that the minimum sentence within the rang e is the presumptive sentence. If there are enhancing and mitigating factors, the court must start at the minimum sentence in the range and enhance the sentence as appropria te for the enhancementfactors and then reduce the sentence withi n the range as appropriate forthe mitigating factors. If there are no mitigating factor s, the court may set

the sentence above the minimum in that range but s till within the ran ge. The weight to be given each factor is l eft to the discretion of the trial judge. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

The Act further provides that “[w]henever the cour t imposes a sentence, it shall place on the record either orallyor in writing, what enhancement or mitigating factors it found, if any, as well as findings of fact as requir ed by § 40-35-209.” T.C.A. § 40-35-210(f) (emphasis added).Because of the importance of enhancing and mitigating fa ctors un der the sentencing guidel ines, even the absence of these factor s must be recorded if n one are found . T.C.A. § 40-35-210 comment. These findi ngs by the trial judge must be recorded in order to allow an adequate review on appeal.

In this case, the trial court applied the following enh ancement factors from T.C.A. § 40-35-114: that the victim was particularly vulnerable because of age (4); that the defendant treated or allowed the v ictim tobe treated with exceptional cruelty during the offense (5); and that the defendant possessed or employed a firearm durin g the offense2 Actuall y it appears from the recor d that t he trial

judge only

found factor

s 4 and 5 to be applicab le but bec ause o f an error in the trans cript, there is a finding of fa ctors “fo ur and n ine.” 6 (9). 2 The defendant asserts that all thr ee factors were applied in error and that his sentence of twenty-five yea rs is excessiv e. The State’s brief made little mention of how the factors applied, rather it made a conclusory statement tha t the sentence was appropriate.
First, the defendant argues that the trial court erred in applying factor four, tha t th e victim was parti cularly vulnerabl e. In State v. Adams , 864 S.W.2d 31 (Tenn. 1993) , the Supreme Court analyz ed enhancement factor four and concluded that “th e vulnerability

enhancementrelates more to the natural p hysical and mental limitations of the victim than merely to the vic tim’s age.”

The Court further explained that “particularly vulnerable”

victims would in clude those who were incapable of resisting, o f summoning help, or of testifying agains t the offender. Adams , 864 S.W.2d at 35. It is the burden of the State to prove that the v ictim’s limitations made he r particularly v ulnerable.

The record in this case is absolutely devoid of any information regarding the victim’s vulnerability. The State did not even question her as to her age. While thepresentence report did reflect that the victim was seventy-six y ears old, the State presented no evidence that she was particularly vul nerable. See Stat e v. Poole , 945 S.W.2d 93 (Tenn. 1997)(finding that the State did not carry its burden in proving seventy-year- ol d victim was particularly vulnerable). In fact, this victim did summon help from her neighbor and she did testify agains t the defendant. We find nothing in the record to suggest that this victim was parti cularly vulnerabl e. Thus, enhancement fac t or four sh ould not have been applied to enhance the defendant’s sent ence.

The defend ant next contends that factor five, that the defendant treated or3 W e not e tha t the s eriou s bod ily injury s uffe red b y the vic tim h as alr ead y been acc oun ted fo r in the c harg e of e spe cially ag grav ated robb ery. 7 al lowed the victim to be treated w ith exceptional cruelt

y, should not have been applied
. The defendant claims that this factor is an element of the offense of especially aggrav ated robbery. The Supreme Court, howeve r, has held otherwise.In State v. Poole , the Court determined th a t “proof of serious bodily injury, which is an element of especially aggra vat ed robbery, does not necessar ily establish the enhancement factor of ‘exceptional cruelty.’” 945 S.W.2d a t 98. Exceptional cruelty may exist in c ases where the evi dence “‘ demonstrates a culpability distinct from and appreciably greater than that incidentto’ the crime of especially aggravated robbery.” Poole , 945 S.W.2d at 99, quoting State v. Jones , 883 S.W.2d 597, 603 (Tenn. 1994). It is the duty of the trial court to state whatspecific actions by the defendant, apart from the elements of the offense, constituted exceptional cruelty
. State v. Goodwin , 909 S.W.2d 35, 45-46 (Tenn. Crim. App. 1995).

In this case, t he trial court failed to sta te what actions by the defendant constituted this enha ncem ent factor. Rather, the trial judge simply stated, “ Now, I find number five. Took a pistol up th ere and the woman was pis tol-whipped. And I can’t be divorced fr om t he fact that pistol shots we re fired at other indivi duals who were in the vicinity.”

The “exceptional cruelty ” factor has generally

been applied in cases of abuse or torture. State v. Davis , 825 S.W.2d 109, 11 3 (Tenn. Crim. App. 1991). Wh ile we do not deny the serious natur e of the injuries sufferedby the victim as a r esult of being hit over the head with a pi stol by her attacker, we c annot conclud e that such actions constitutea case of abuse or torture. 3 The entire i nc ident lasted a very b rief time; the victim was hit one ti me on the head by someone other than the defendant, and her car was stolen. She was not subjected to further abuse after being hit on the head, rather her8

attackers immediately fled the area. Nor was she left in s uch a state that she could not summon help. As we noted earlier, the victim walked to h er neighbor’s house in or der to obtain assistance. Furthermore,we fail to see the connecti on between the fact that a shot was fired at

a neigh bor and the appli cation o f t his enhance ment fa ctor. Thu s, we conclude that the trial cour t erred when it applied factor five to this defendant.

The defendan t next challenges the appl ication of factor nine, that the defendant possessed or employed a firearm. The State concede s that thi s factor is an elementof the off ense of especial ly aggravate d robbery, and thus , does no t apply. State
v. Nix , 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). However, the State s uggests the application of factor ten, that the defendant had no hesitation about committing a crim e when the risk tohuman life was high. The State’s suggestion is misplaced. This Court has previously held th at factor ten is an element of especially aggravated robbery because there is “necessarily

a hi gh risk to human life and the great potential for bodily injury whenever

a deadly weapon is used.” Nix , 922 S.W.2d at 903 . Thus, facto r ten is also inapplicable.

While we have determined that the above enhancement factors were erroneously applied, we find tha t enhanc ement f actor one does app ly. This factor states that the defendant has a previous history of criminal behavior or crimi nal convictions in addition to that necessary to establish the appropriat e range. As an adult, this defendant has been convicted of

criminal trespassing

and possession of a controlled s ubstance. As a juvenile, he was arrested for at l east three offenses which resulted in hi s being warned and referred to a community service program. This previous historyof criminal behavior, including that whil e a juvenile, may be taken into account in determining an appropriate sentence. State v. Adams , 864 S.W.2d 31, 34 (Tenn. 1993). Thus, the trial court should9

have considered this factor.

Because the defendant committed this offense prior t o the amendment of T.C.A. § 40-35-210, theminimum sentence is the presumpti ve sentence. Theamended statute provides that for C lass A felonies committed after July 1, 1995, th e presum ptive sentence will be the midpoint in the range. The defendant committed the instant offense on May 2, 1995, therefore, the presumptive se ntence is the minimum. As noted above, we have determined that one enhancement f actor, the defendant’s hist ory of cr iminal behavior and convictions, applies. Furthermor e, our review of the r

ecord affirms

the trial court’s refusal to apply an y m it igating factors to this defendant. Thus, we feel it appropriatet o enhance the def endant’ s senten ce two years beyond th e presum ptive sentence. The defendant’s sentence is modified to reflect a sentence of seventeen years.

Fort he foregoing reasons, w e affirm the conviction of the defendant but modify his sentence to seventeen years.

_______________________________ JOHN H. PEAY, Judge CONCUR:

______________________________ JOSEPH B. JONES, Judge

______________________________ THOMAS T. W OODALL, Judge