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

ctober 3, 2000 Sessi

on

STATE OF TEN

NESSEE v. SHIR

LEY DAVIS

Appeal as of Right from the Criminal Court for Shelby County No. 98-14215 Carolyn Wade Blackett, Judge

No. W2000-00084-CCA-R3-CD - Filed May 9, 2001

On December 3, 199 8, a Shelby Co un ty Grand Jury indicted Shirley Davis, the Defendant and Appellant, for aggrava

ted robbery . Following a jur y trial, the Defendant was convicted as charged. After a subsequent sent

encing hearin

g, the trial cour

t sente nced the Defendant to serve nine years incarceration. On appeal, the De fendant claims tha

t the trial c ourt err oneously enhanced her
sentence. Although we find that the trial court erroneously applied a statutory enhancing factor, our de novo review reveals the existence of an applicable enhancing factor that was not applied by the trial court. This enhancemen t factor amply

justifies the sentence imposed. Accordingly, we affirm the trial court’s

judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed

J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID G. H AYES , J., and A LAN E. G LENN , J., joined.

John Sorrels, Memphis , Tennessee, for appellee, Shirle

y Davis.

Paul G. Summers, Attorney General & Reporter, L ucian D. Geise, Assistant Attorney Gene ral ; William L. Gibbons, District Attorney General; Janet L. Shipman, Assistant District Attorney , for the appellee, State of Tennessee.

OPINION

Factual Backgrou

nd On July 31, 1998, H

oye Solomon dr

ove a small truck to a neighborhood grocery store. Before he got out of

the truck, the De

fendant approa

ched him, put a chr

ome pistol to his head, and demanded

his wallet. Mr. Solomon gave the Defendant his wallet, and she started to wa lk awa y. A fter a few steps, the Defendant realized that Mr. Solomon’s wallet was empty. T he Defendan t turnedback toward

Mr. Solomon, yelled “g

ive me your f

**king money

,” and fired thre

e shots into the air. She went back to Mr. Solomon and reached int o his shirt pockets,

where she found $122.00. She took the money, got into a black car parked across the stree t, and fled.-2-

Mr. Solomon immediately called police and reported the robbery. O

ver the next few we

eks, Mr. Solomon occasiona

lly saw the Defendant, but she would turn away from him or try to obscure her face. On August 17, 1998, Mr. Solomon stopped Officer Adam Merritt, a patrol officer in the

sameneighborhood, and told Officer Merritt that he had just seen the Defendant. He described the Defendant,

her location and h

er clothes. Off

icer Merritt saw a woman nearby who matched the description provided by Mr. Solomon, and he picked her up. Mr. Solomon subse

quently identified the Defendant while she was sitting in the back of the patrol car. Officer Merritt then transported the Defendant to the Shelby Coun ty C riminal Justice Complex, where the Defendant gave a statement admitting that she robbed Mr. Solomon. The Defendant was indicted, tried and convicted for aggravated robbe ry. At a subsequent sentencing hearing, the State argued that the Defendant’s sentence should be enhanced because the pre-sentence report indicated that she had a previous history of criminal convictions in addi

tion to those necessary to establish that she was a Range I, standard offender. Specifically, the pre-sentence report indicated that the Defendant had been convicted of misdemeanor possession of cocaine and felony possession of

marijuana with intent to sell. The Defendant did not attempt to persuade the
court that any mitigating factors applied. Following the hearing, the trial court found the existence of one statutory enh a ncement factor: that the offense was committed under circumstances under which the potential for b

odily injury was great. The court fou nd n o mi tig ati ng fa cto rs. Acco rdi ngly, the court sentenced the Defendant to serve nine yea rs incarceration.

Sentencing On appeal, the Defendant challenges the imposition of a nine-ye ar sentence. Wh en an appellant challenges the

length, range, or

manner of service of a sentence, this Court conducts a de

novo review with a presumptionthat the determination of the trial court was correct. Tenn. Code Ann. § 40-35-401(d). H

owever, this pre

sumption of corre

ctness is " condition ed upon the affirmative showing that

the trial court in the record considered the sentencing principles and all relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting a review, this Court must consider the evidence, the presentence report, the sentencing principles, the arguments

of counsel, the nature and character of the offense, mitigating and e

nhancement fac

tors, any statemen ts made b y the defendant, and the potential for rehabilitation or treatment. State v. Holland
, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burden of showing the impropriety of the sentence imposed. State v. Gregory , 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993). The Defendant contests the length of her nine-year sentence. The Defendant was convicted of aggravated r obbery, a Class B felony. Tenn. C ode Ann. § 3 9-13-402(b ). The sente ncing range for a Range I offender convicted of a Class B fe lony is between ei ght and twelve years. Id. § 40-35-112(a)(2). The sentence to be imposed by the trial court for a Class B felony is presumptively
t he minimum in the rang e if neither enha

ncement nor mitig

ating factors a

re prese nt. Id. § 40-35-210(c). The trial court is to increase the sentence within the range based upon the existence of enhancement

factors and, the

n, reduce the se

ntence as appro

priate for any

mitigating fac

tors. Id. § 40-35-210(e). In this case, the

court found the existence of one enhancement factor, that “[t]he crime was committed under circumstances under which the potential for bodily in

jury to a victim was great.”-3-

Id. § 40-35-114(16). The court found no mitigating factors. On appeal, the Defendant claims, and the State co ncede s, that the trial court erred when it enhanced the sentence, because the potential for great bodily injury is an element of aggravated robbery. We ag ree. In State v. Claybrooks , this Courtfound that because the offense of aggravated robbery ne

cessarily entails a potential for great bodily harm, application of this enhancement factor was erroneous. 910 S.W.2d 868, 872-73 (Tenn. Crim. App. 1994). Thus, the trial court erred when it applied the statutory enhancement fa ctor. However, this does not end the ana l ysis, because the record indicates that another enhancement

factor was applicable. See State v. Adams , 864 S.W.2d 31, 34 (Tenn. 1993) (holding that Court of Criminal Appeals, in conducting its de novo review, i s authorized to consider any enhancement

factors supported b y the re cord.); see also State v. Pearson , 858 S.W.2d 879, 885 (Tenn. 1993) (affirming Court of Criminal Appeals’ application of an enhancement factor not relied upon by the trial court). The Defendant was sentenced as a standard, R ange I offender. As stated above, the pre-sentenc

e report indicat

es t hat th e Defendant had previously been convicted of misdemeanor

possession of cocaine in 1990 and felony possession of marijuana with intent to sell in 1988. Accordingly, we find that the Defendant’s two prior convictions indicate that the Defendant had a previous criminal history in addition to that necessary to establish the appropriate sentencing range. See Tenn. Code Ann. § 40-35-114(1). W e find no appli cable mitigating factors. Having found one applicable enhancing factor and no applicable mitigating fac to rs, we find a nine-year sentence appropriate for this Defendant. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY SMITH, JUDGE