IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 8, 2013

STATE OF TENNESSEE v. KEWAN CALLICUTT

Direct Appeal from the Criminal Court for Shelby County

No. 10-04170 Lee V. Coffee, Judge

No. W2011-02516-CCA-R3-CD - Filed July 5, 2013

Defendant, Kewan Callicutt, was indicted by the Shelby County Grand Jury for attempted

especially aggravated robbery. Defendant was convicted as charged by a jury and sentenced

by the trial court to serve 12 years in the Department of Correction. On appeal, Defendant

asserts that: 1) the trial court erred by denying his motion to suppress his statements to the

police because he was under the influence of a drug or intoxicant when he waived his

Miranda rights; 2) there was insufficient evidence to support his conviction; and 3) his

sentence is excessive. Finding no error, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JERRY L. SMITH and

D. KELLY THOMAS, JR., JJ., joined.

Stephen C. Bush, District Public Defender; Phyllis Aluko, Assistant Public Defender; and

Mary Katherine Kent, Assistant Public Defender, Memphis, Tennessee, for the appellant,

Kewan Callicutt.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Anne Schiller, Assistant District

Attorney General, for the appellee, the State of Tennessee.

OPINION

Deangelo “Gold Mouth” Johnson, the victim, testified that on December 14, 2009,

between 8:00 and 9:00 p.m., he was “stranded” in the South Memphis downtown area and

was “looking for a ride home.” He called Cierra Lewis and offered her ten dollars to pick

him up. He also “had got her weed because she loved weed.” When Cierra arrived to pick

up Mr. Johnson, he saw that there were two males and another female in her car. One of the
males in the car was Defendant, whom Mr. Johnson heard Ms. Lewis refer to as “Murder.”

Mr. Johnson asked Ms. Lewis to drive him to his aunt’s house in East Memphis, “about

fifteen to twenty minutes” away. Mr. Johnson testified that Ms. Lewis and Defendant were

sitting in the backseat of the car. The other female, Jessica, was driving the car. Jessica said

she was “looking for somebody,” and they drove to “another neighborhood.” They then

drove to Emerald Square Apartments, where Mr. Johnson’s aunt lived. Mr. Johnson got out

of the car and handed Ms. Lewis ten dollars. Ms. Lewis told Defendant to put some jackets

in the trunk. Mr. Johnson was standing beside the car when Jessica unlatched the trunk. Mr.

Johnson began walking towards his aunt’s house, and Defendant ran after him with “a shot

gun - a rifle or something.” Defendant told Mr. Johnson to lay down and give him his

money. Mr. Johnson raised his hands. Mr. Johnson heard “some girls’ voices” say “‘Come

on, go.’” Mr. Johnson testified that Defendant then shot him in the leg, and he “hit the

ground.” Mr. Johnson closed his eyes and “started crawling.” When he opened his eyes

again, he saw his money on the ground. He testified that he had “[a]bout two fifty - two

seventy - around that much.” The money was “torn apart,” and Mr. Johnson believes that the

money had been hit by buckshot.

Mr. Johnson testified that he had undergone one or two surgeries on his leg and was

hospitalized for “[a]bout two and a half weeks.” He did physical therapy while he was

hospitalized, and he was prescribed pain medication for one month after he was discharged

from the hospital. Mr. Johnson identified Defendant in a photo lineup as the person who shot

him.

Memphis Police Officer Lawrence Taylor responded to the shooting. When he

arrived, Mr. Johnson was lying on the ground, and he “had blood on him.” Officer Taylor

called for an ambulance. He found a shotgun shell on the pavement by the victim.

Detective Robert Wilkie testified that he went to the hospital to show the victim a

photo lineup on December 17, 2009. He testified that it took the victim only “a few seconds”

to identify Defendant as the person who shot him.

Detective Byron Braxton interviewed Defendant on December 17, 2009. Defendant

signed a form acknowledging his rights at 3:14 p.m. Detective Braxton testified that

Defendant initially denied any involvement in the shooting. Defendant tested positive for

the presence of gunpowder residue on his hands, and he told Detective Braxton that he had

recently fired a weapon in the air, but he stated that he was not in the area of the shooting.

At 6:06 p.m., Defendant gave another statement to Detective Braxton. During the interview

with Detective Braxton, Defendant stated that on December 14, 2009, he shot someone

named “Gold Mouth.” He stated that “[i]t was Jessica and CC [Cierra Lewis]’s idea to rob

dude.” Defendant told Detective Braxton that Ms. Lewis told him that the victim had money,

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and that they had discussed robbing the victim “a day or two before he got robbed.”

Defendant stated that they picked up the victim and drove him to his aunt’s apartment. They

were still “debating on whether or not” to rob the victim when they dropped him off. As the

victim got out of the car, Ms. Lewis said, “go, go” to Defendant, and Jessica popped the

trunk. Defendant went to the trunk and got out a shotgun and followed the victim. He told

Detective Braxton, “Then I got close enough, and I was telling him to get down on the

ground, and he was saying he ain’t got nothing. I told him like five times. Like the fifth

time, he ain’t listened. I was trying to shoot it to the left side of him, but somehow he got hit

in the leg with it. When he was falling to the ground, I heard him screaming.” Defendant

then left with Ms. Lewis and Jessica Thomas. They “picked up some pills” and went to Ms.

Lewis’s house. Defendant stated that he had never met the victim before the incident. He

stated that they targeted the victim “[b]ecause CC [Lewis] say he be having stacks.”

Defendant stated that he did not intend to kill the victim but that “[i]t was [his] intention to

get the money.” He stated that he later took the gun to his cousin’s house. Detective Braxton

testified that Defendant did not appear to be under the influence of drugs or alcohol and that

he was alert, coherent, and responsive to his questions. Defendant signed the written

statement.

Sentencing hearing

At the sentencing hearing, the State introduced Defendant’s presentence report, as

well as a certified copy of the judgment for Defendant’s 2003 conviction for aggravated

robbery, for which he received a sentence of eight years. The State presented no other proof

at the sentencing hearing.

Defendant testified at the sentencing hearing that he had lived in Shelby County since

he was twelve years old. He testified that he had a juvenile record and that he had been

referred for a psychological evaluation. He did not remember his diagnosis, but he testified

that it was “extreme emotionally or something. But then the other one, I forgot what it was.”

He testified that he did not complete his sessions because his family was unable to pay for

them. Defendant testified that he completed two anger management programs while

incarcerated on the charge in this case. Defendant testified that he lost his job prior to the

offense in this case and that caused him to make “the wrong choice.” Defendant testified that

he was charged with assault and vandalism in 1999. Defendant also acknowledged an

aggravated assault charge in 1999 that was amended to assault. He testified that the offense

was against a female named Cierra, but not Cierra Lewis, who was also charged in this case.

Defendant testified, “[m]e and her had some problems, and they were saying that I had – that

I had tortured her or some stuff, and I had burned her with an iron.” Defendant also had a

theft charge in 1999. Defendant did not recall charges of stalking and aggravated burglary.

He acknowledged that he was charged with theft of a vehicle, aggravated assault, reckless

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endangerment, and vandalism over $500 in 2002. He testified that he and another man

followed the victim home and “she had got carjacked for a truck, and [they were] put on a

high-speed chase, and [they] got locked up for that.” Defendant testified that since he had

been incarcerated for the offense in this case, he had been “saved now through the Holy

Spirit” and he was “a changed man[.]”

At the conclusion of the sentencing hearing, the trial court noted that it had considered

the statements and arguments of counsel, the facts presented at trial, the presentence report,

Defendant’s testimony, statistical data, enhancement and mitigating factors, the principles

of sentencing, and Defendant’s potential for rehabilitation. The court classified Defendant

as a Range I standard offender. The court found that Defendant had one prior conviction of

aggravated robbery and applied it as an enhancement factor that Defendant had a previous

history of criminal convictions in addition to those necessary to establish the appropriate

range. The court noted that although Defendant was charged with that offense at the age of

17, Defendant was prosecuted as an adult and sentenced to eight years, and the court gave

that factor “great weight.” The court also gave “great weight to [Defendant’s] juvenile

history.” The court also found that Defendant was a leader in the commission of an offense

involving two or more criminal actors and noted that Defendant “had the shotgun.”

The trial court rejected defense counsel’s argument that Defendant was acting under

the domination of another person and found that Defendant “was, in fact, a willing

participant in this robbery, by his own [ad]mission from the statements that he gave the

police in his second statement was because he thought [the victim] had a large sum of money

on him, and he was a willing participant in which he and other persons agreed to commit this

robbery for money.” The court gave “some weight to the fact that [Defendant] did not plan

the robbery itself; but [Defendant] was recruited, and he was a willing participant in this

crime.” The trial court sentenced Defendant to serve 12 years, the maximum sentence within

the applicable range. The trial court further found that the length of Defendant’s sentence

made him ineligible for probation, but the court found that even if it had considered

probation as an alternative sentence, “confinement in this case is necessary because the

defendant does have a long history of criminal conduct” and that measures less restrictive

than confinement have been frequently and recently applied unsuccessfully. The court noted

that efforts to rehabilitate Defendant had failed. The court also noted that “deterrence is

particularly suitable in this case[.]”

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Analysis

Motion to suppress

Defendant contends that the trial court erred in denying his motion to suppress his

statement to the police because it was elicited without a voluntary and knowing waiver of his

Miranda rights. Defendant argues that his statements to Detective Braxton were not freely

and voluntarily given because he was under the influence of drugs at the time.

At a pretrialsuppression hearing, Detective Braxton testified that prior to interviewing

Defendant on December 17, 2009, he advised Defendant of his Miranda rights. Defendant

indicated that he understood his rights and signed his initials on the advice of rights form.

The interview with Defendant lasted approximately one and a half hours. Defendant initially

told investigators that he “had some type of run-in with some individuals, and he fired a

weapon in the air.” Defendant denied any involvement in the shooting in this case.

Defendant signed the first statement. Defendant then asked to speak to Detective Braxton

again, and Defendant gave a second statement, in which he told of his intention to rob the

victim because he had heard “that [the victim] had stacks of money.” Defendant stated that

“he pulled a shotgun on [the victim], and told him to get down, and [Defendant] said that [the

victim] didn’t respond to his orders fast enough, and [Defendant] felt that [the victim] was

armed and might go for a weapon. So, that’s when he shot . . . the victim.” Defendant

signed the second statement. Detective Braxton testified that Defendant did not appear to

be intoxicated during either statement. Defendant was taken into the interview room at 1:37

p.m. At 2:27 p.m., Detective Braxton “checked on him” and gave him a cup of water to

drink. Defendant “seemed calm.” Defendant signed the advice of rights form at 3:12 p.m.,

and Detective Braxton began the interview. Detective Braxton testified that Defendant

“spoke intelligently” and was “very articulate.” Detective Braxton advised Defendant of his

rights again before Defendant gave his second statement. Detective Braxton testified that

Defendant “seemed very remorseful when he gave the second statement.” Detective Braxton

testified that if Defendant had exhibited signs of being intoxicated, he would have terminated

the interview. Detective Braxton also testified that Defendant did not request an attorney

during the interview.

Defendant testified that he was arrested on December 17, 2009, and taken to the police

station. He did not remember speaking with Detective Braxton. Defendant testified that he

“remember[ed] telling them that [he] didn’t know what he was talking about.” He testified

that the only thing about the interview he remembered was when Detective Braxton gave him

a cup of water and checked his hands for gunpowder residue. He did not remember reading

or signing the advice of rights form or giving two statements. Defendant testified that he

could not remember “because [he] had weed in [his] system, and cocaine and ‘shrooms.”

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Defendant testified he “was hallucinating.” He testified that he ingested mushrooms one

hour before police arrested him at his grandmother’s house. He explained the hallucinations

as “[l]ike lights and stuff be [sic] different, just lights get bigger. Saw a chair get bigger in

the room, or whatever.” Defendant testified that his “mind just be [sic] somewhere else, just

roaming.” Defendant testified that he could read and he completed school through eighth

grade.

At the conclusion of the suppression hearing, the trial court accredited Detective

Braxton’s testimony and denied Defendant’s motion to suppress the statements. The trial

court found that Defendant’s second statement was “a very detailed statement” that was

consistent with statements Detective Braxton took from the victim and Jessica Thomas.

On appeal from a trial court’s ruling on a motion to suppress, the trial court’s findings

of fact should be upheld unless the evidence preponderates to the contrary. State v. Hanning,

296 S.W.3d 44, 48 (Tenn. 2009). The credibility of witnesses, the weight and value of the

evidence, and the resolution of conflicts in the evidence are matters entrusted to the trial

judge. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, when the trial court’s

findings of fact at a suppression hearing are based solely on evidence not requiring credibility

determinations, “the rationale underlying a more deferential standard of review is not

implicated.” State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000). Such findings of fact are

reviewed de novo. State v. Payne, 149 S.W.3d 20, 25 (Tenn. 2004).

“The Fifth Amendment to the United States Constitution provides in part that ‘no

person . . . shall be compelled in any criminal case to be a witness against himself.’” State

v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005) (quoting U.S. Const. amend. V). “Similarly,

Article I, section 9 of the Tennessee Constitution states that ‘in all criminal prosecutions, the

accused . . . shall not be compelled to give evidence against himself.’” Id. (quoting Tenn.

Const. art. I, § 9). Notwithstanding, an accused may waive his right against selfincrimination. Id. (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). The accused’s

waiver of his right against self-incrimination under Miranda must be made intelligently,

knowingly, and voluntarily to be held constitutional. Id. (citing Miranda, 384 U.S. at 444).

The United States Supreme Court has interpreted the Fifth Amendment in part to

require that an incriminating statement or confession be freely and voluntarily given in order

to be admissible. This even appliesto statements obtained after the proper Miranda warnings

have been issued. Statements and confessions not made as a result of custodial interrogations

must also be voluntary to be admissible. It must not be extracted by “any sort of threats or

violence, nor obtained by any direct or implied promises, however slight, nor by the exertion

of any improper influence.” Moreover, due process requires that confessions tendered in

response to either physical or psychological coercion be suppressed. This has evolved into

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the “totality of circumstances” test to determine whether a confession is voluntary. Id.

(internal citations omitted). Thus, to determine whether an accused’s statements were

voluntary, the appellate courts review the totality of the circumstances surrounding the

waiver of the right against self-incrimination. Id. at 249 (citing State v. Stephenson, 878

S.W.2d 530, 545 (Tenn. 1994), abrogated on other grounds by State v. Saylor, 117 S.W.3d

239 (Tenn. 2003)).

We conclude that the evidence supports the trial court’s finding that Defendant’s

statements to police were freely and voluntarily made. Detective Braxton testified that

Defendant did not appear to be under the influence of any drug or intoxicant. He testified

that Defendant was “neat” in appearance and that he was articulate. Defendant’s second

statement included details that were corroborative of the investigation. The trial court

accredited Detective Braxton’s testimony, and the evidence does not preponderate against

the trial court’s finding. Defendant is not entitled to relief on this issue.

Sufficiency of the evidence

Defendant next challenges the sufficiency of the evidence supporting his conviction

for attempted especially aggravated robbery. Specifically, Defendant asserts that the State

failed to establish beyond a reasonable doubt that the victim suffered serious bodily injury.

An appellate court’s standard of review when a defendant questions the sufficiency

of the evidence on appeal is “whether after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This

court does not reweigh the evidence; rather, it presumes that the jury has resolved all

conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of

the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in

testimony, and the weight and value to be given to evidence were resolved by the jury. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury's verdict.” Id.; State v. Tuggle, 639 S.W.2d 913,

914 (Tenn. 1982). “This [standard] applies to findings of guilt based upon direct evidence,

circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”

State v. Pendergrass, 13 S.W.3d 389, 392–93 (Tenn. Crim. App. 1999). The standard of

proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is

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the same whether the conviction is based upon direct or circumstantial evidence.’” Id.

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The duty of this court “on

appeal of a conviction is not to contemplate all plausible inferences in the [d]efendant’s

favor, but to draw all reasonable inferences from the evidence in favor of the State.” State

v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

Defendant was convicted of attempted especially aggravated robbery. Especially

aggravated robbery is robbery accomplished with a deadly weapon where the victim suffers

serious bodily injury. Tenn. Code Ann. § 39-13-401(a). Robbery is the intentional or

knowing theft of property from the person of another by violence of putting the person in

fear. Tenn. Code Ann. § 39-13-401(a). “Serious bodily injury” is defined as “bodily injury

that involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme

physical pain; (D) Protracted or obvious disfigurement; [or] (E) Protracted loss or substantial

impairment of a function of a bodily member, organ or mental faculty[.]” Tenn. Code Ann.

§ 39–11–106(a)(34).

A person commits criminal attempt when the person, acting with the

kind of culpability otherwise required for the offense . . . [a]cts with intent

to complete a course of action or cause a result 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 commission of the offense.

Tenn. Code Ann. § 39-12-101(a)(3) (2010 Repl.).

Defendant contends that the evidence at trial was insufficient to show that the victim

suffered serious bodily injury. Defendant cites State v. Sims, in which this court held that the

evidence of the victim’s injuries were insufficient as a matter of law to support a finding of

serious bodily injury based on extreme physical pain or protracted or obvious disfigurement.

909 S.W.2d 46, 49–50 (Tenn. Crim. App. 1995), abrogated on other grounds by State v.

Charles Justin Osborne, No. 01C01–9806–CC–00246, 1999 WL 298220 (Tenn. Crim. App.,

at Nashville, May 12, 1999). In Sims, the victim suffered a broken nose, a bruised

cheekbone, and two black eyes as a result of being struck in the face with a pistol. Id. at 48.

Interpreting the statutory meaning of “extreme physical pain,” this court reasoned, “[w]e do

not believe that the pain commonly associated with a broken nose is extreme enough to be

in the same class as an injury which involves a substantial risk of death, protracted

unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use

of a bodily member, organ or mental faculty.” Id. at 49.

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Within one week after Defendant’s brief wasfiled in this case, the Tennessee Supreme

Court released its opinion in State v. Farmer, 380 S.W.3d 96 (Tenn. 2012). The State did

not mention Farmer in its brief which was filed almost two months following the release of

the opinion. In Farmer, our supreme court clarified the definition of serious bodily injury

and held that a gunshot wound does not necessarily cause bodily injury that involves “a

substantial risk of death.” In that case, the victim was shot in the leg. The bullet passed

through the victim’s leg. The wound required minimal medical treatment and did not cause

the victim to suffer a loss of consciousness, extreme pain, disfigurement, or impairment. The

court noted that hospital records classified the victim’s pain as “mild” to “moderate” and that

the victim did not testify as to the degree of pain he experienced. Id. at 101. The court

concluded that “[a] jury could not reasonably infer from [the victim]’stestimony, the hospital

records, and the nature of his injury that [the victim]’s wound involved extreme pain.” Id.

at 101-102. The court vacated the defendant’s conviction for especially aggravated robbery,

finding that the State failed to present sufficient proof of a serious bodily injury, and

modified Defendant’s conviction to aggravated robbery. Id. at 103.

In the case sub judice, Defendant was convicted of attempted especially aggravated

robbery. We conclude that it is unnecessary for the proof to show that Defendant actually

inflicted serious bodily injury to the victim for the evidence to support his conviction. To

sustain a conviction for attempt, “the proof must only show that [Defendant] took a

substantial step toward completion of the crime while acting with the required culpability.”

State v. Larry Darnnell Pinex, No. M2007-01211-CCA-R3-CD, 2008 WL 4853077, at *8

(Tenn. Crim. App. at Nashville, filed Nov. 6, 2008), perm. app. denied (Tenn., May 11,

2009) (court concluded that proof of serious bodily injury was not necessary to sustain

conviction for attempted especially aggravated burglary).

Viewed in the light most favorable to the State, the evidence shows that after the

victim got out of the car in which Defendant was a passenger, Defendant retrieved a shotgun

from the trunk of the vehicle, followed the victim, and ordered the victim to lay down and

give him his money. Defendant then shot the victim at close range. The victim immediately

fell to the ground and “started crawling to the gate – started screaming, ‘Help.’” The victim

underwent surgery and was hospitalized for two and a half weeks following his injury. He

was also prescribed pain medication. We conclude that the proof established that Defendant

took substantial steps toward committing especially aggravated robbery. Defendant is not

entitled to relief on this issue.

Sentencing

Defendant also asserts that his sentence is excessive. Defendant argues that the trial

court should not have considered his juvenile criminal history in enhancing his sentence

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above the statutory minimum and that the evidence did not support the trial court’s finding

that Defendant was a leader in the commission of the offense. Defendant also argues that the

trial court failed to properly consider all mitigating factors, including Defendant’s mental

condition.

In determining the proper sentence, the trial court must consider: (1) any evidence

received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of

sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of

the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) statistical

information provided by the administrative office of the courts as to sentencing practices for

similar offenses in Tennessee, (7) any statement that the defendant made on his own behalf,

and (8) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40–35–102, –103,

-210; see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229,

236 (Tenn. 1986).

Challenges to a trial court’s application of enhancement and mitigating factors are

reviewed under an abuse of discretion standard. State v. Bise, 380 S.W.3d 682, 706 (Tenn.

2012). We must apply “a presumption of reasonableness to within-range sentencing

decisions that reflect a proper application of the purposes and principles of our Sentencing

Act.” Id. at 707. “[A] trial court’s misapplication of an enhancement or mitigating factor

does not invalidate the sentence imposed unless the trial court wholly departed from the 1989

Act, as amended in 2005.” Id. at 706. “So long as there are other reasons consistent with the

purposes and principles of sentencing, as provided by statute, a sentence imposed by the trial

court within the appropriate range should be upheld.” Id.

The Defendant contends that the trial court misapplied enhancement factor (1), that

Defendant had a previous history of criminal convictions or criminal behavior in addition to

those necessary to establish the appropriate range. Specifically, Defendant argues that the

trial court erred by considering Defendant’s juvenile record, and Defendant asserts that the

trial court improperly “gave great weight to an inappropriate component of the prior criminal

history enhancement factor[.]” We note that the transcript of the sentencing hearing reflects

that the trial court, in applying enhancement factor (1), found that in addition to Defendant’s

prior aggravated robbery conviction in 2003, “[t]his court also finds that as part of his

juvenile record that [Defendant] has been arrested; that he has been adjudicated delinquent

of other offenses while as a juvenile, and the court gives great weight to his juvenile history.”

In State v. Jackson, the Tennessee Supreme Court considered whether enhancement

factors (1) and (16) (regarding enhancement of a sentence based on a defendant’s prior

juvenile record) were mutually exclusive. 60 S.W.3d 738, 742 (2001). The court stated,

“[b]ecause the legislature is not presumed to have passed or enacted useless legislation,

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factor (1) must necessarily apply only to adult criminal conduct, and factor (20) [as amended,

factor (16)] must apply exclusively to juvenile adjudications of delinquent acts.” Id. (internal

citation omitted). Although Defendant asserts that the trial court improperly considered

Defendant’s juvenile record under enhancement factor (1), we conclude that the trial court’s

consideration of Defendant’s juvenile record was not error and could properly be considered

under enhancement factor (16), which states, “[t]he defendant was adjudicated to have

committed a delinquent act or acts as a juvenile that would constitute a felony if committed

by an adult.” Tenn. Code Ann. § 40-35-114(16) (2010 Repl.). Furthermore, even without

the trial court’s consideration of Defendant’s juvenile record, the trial court properly applied

enhancement factor (1) based on Defendant’s prior conviction for aggravated robbery.

The Defendant also contends that the trial court misapplied enhancement factor (2),

that Defendant was a leader in the commission of an offense involving two or more criminal

actors. The record supports the trial court’s finding. According to the victim’s testimony and

Defendant’s statement, Defendant got out of the vehicle alone, retrieved a shotgun from the

trunk, and shot the victim in the leg. Defendant asserts that because there was evidence that

Defendant did not know the victim, and that Ms. Lewis and Ms. Thomas “concocted the

scheme” to rob the victim, Defendant was not a leader in the commission of the offense. We

disagree. Enhancement for being a leader in the commission of the offense does not require

the defendant to be the sole leader but only that he be “a” leader. State v. Hicks, 868 S.W.2d

729 (Tenn. Crim. App. 1993).

Finally, Defendant asserts that the trial court erred by failing to consider Defendant’s

mental condition in mitigation of his sentence. Defendant testified at the sentencing hearing

that he underwent a psychological evaluation and that he was told he had “[e]xtreme

emotion[al] problem[s],” but that he forgot his other diagnosis. Defendant testified that he

did not complete his court-ordered treatment because his family could not afford to pay for

it. The trial court found that there was nothing in the record to indicate that Defendant was

“not competent.” We conclude that the trial court did not err in refusing to give weight to

this mitigating factor.

Defendant’s sentence is within the statutory range, and the trial court followed the

statutory sentencing procedure and made findings of fact that are supported in the record.

Sufficient evidence exists to support Defendant’s sentence. Because the application of

enhancement and mitigating factors to adjust a sentence was rendered advisory by the 2005

amendments, we reiterate that the trial court may set a sentence anywhere within the

applicable range so long as the sentence is consistent with the principles and purposes of the

Act, regardless of the presence or absence of mitigating and enhancement factors. The trial

court in this case thoroughly considered the purposes and principles of the Sentencing Act

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in rendering its decision. We conclude that the trial court did not abuse its discretion in

setting Defendant’s sentence. Defendant is not entitled to relief on this issue.

CONCLUSION

The judgment of the trial court is affirmed.

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THOMAS T. WOODALL, JUDGE

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