# FILED
October 31, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE MAY SESSION, 1996 MICHAEL EUGENE McBEE, ) C.C.A. NO. 03C01-9509- CR-00276 and ) JEFFR EY EU GENE DUNL AP ) Appellants, ) ) ) KNOX COUNTY VS. ) ) HON. RAY

L. JENKI NS STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Dire ct Ap pea l - Agg ravat ed R obb ery)

FOR THE APPELLANT : FOR THE APPELLEE : LESLIE M. JEFFRESS JOHN KNOX WALKUP Attorney f

or Appellant

Dunlap Attorney Generaland Reporter 1776 Rivervi ew Tower 900 S. Gay Street TIMOTHY F. BEHAN Knoxvill e, TN 37902 Assistant Attorney General 450 James Robertson Parkway KII MBERLY A. PAR TON Nashvill e, TN 37243 Attorney f

or Appellant

McBee 407 Union Avenue RANDALL E. NICHOLS Suite 209 Distri ct Attor ney General Knoxvill e, TN 37902 ROBERT L. J OLLEY, JR. Assistant Distri ct Attor ney City-County

Building, Ste. 168 400 Main Street Knoxvill e, TN 37902-2405 OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On December 14, 1994, a Knox Coun ty Crim in al Court j ury found Appe llants Jeffery

Dunlap and Michael McBee each guilty of two counts of aggravated robber

y under Tennesse e Code Annot ated Se ction 39-13-402 (1991). As Range III per sistent offenders, App ellants we re both s entenc ed to thirty years impri sonment on each count. The t rial court order ed the sentences to run consec utively for an effective sentence of sixty years for each Appella nt. On appeal, Appe llan ts raise three i ssues for review: ( 1) whether the evidence presented at tri al was suff icient as a matter of

law to s ustain the convic tions; (2) whetherthe tri al court erred in ref using to al low certai n evidence to be admitted; and (3) whether

the sentences wer

e excessive i n length.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FACTUAL BACKGROUND

In the early morning hours of May 23, 1993, Pat rol Offi cer Larry Gi lland of the Kn oxville Police Depa rtment re spond ed to a 91 1 call at the re sidence of Ronnie and Margaret Ri denour. Upon arriving at t he residence, Officer Gillan d kno cked on the front do or. He aring n o resp onse , he co ntacte d his dispatcher to request t hat a tele phone call be made to the locat ion. Soon thereafte r, Officer Arm an joined Officer G illand at the R idenou r residen ce. Subsequently, the door was answered by Margaret Ri denour. Ms. Ri denour was hysteri cal; she yelled th at her husband and gr andchildren had been-3-

robbed at kni fe point a nd were being hel d hostage. Upon entering the residence, Gilland and Ar man saw Appellant Dunlapin the l iving r oom talking on the telepho ne, t ell ing t he dis patche r that thepoli ce werenot nee ded. As Gilland went d own the ha llway were Ms. R idenour claim ed hostage s were being held, Mr. Ridenour came out of a bedroom and yel led that s omeone had run across t he hall i nto another bedr oom. Gilland hear

d a window break and entered that

bedroom. In th e bedroom, Gill and found Appell ant McBee crouch ed und er a brok en wind ow whic h had b ars on th e other s ide of it. McBee was found with $827 cash, three rings, two gol d chains, a man’s wrist wat ch, a go ld c ros s, a ci garette li ght er, foo d stamps , an d a food stamp eligibility card belonging to S heila Rideno ur. In addition, two knives were found under McBee, and he was wearing gardening gloves on his hands.

At tri al, Mr. and Ms. Ridenour testifi ed that they were lyi ng in bed when, at around two a. m., they hear d a knock on the door. When Mr. Ridenour heard a man call out

his name, he unloc ked the door to his house. Two men, later i dentifi ed as Appellants Dunlap and McBee, for ced their way

into the house and held a kni fe to Mr. Ridenour. Dunlapwent into t he back of the house and bro ught Ms . Rideno ur to whe re Mr. Rid enour w as being held. Bo th of the Appell ants had knives, and one of t hem poked Mr. Ridenour i n the head with his knife causi ng a small punctur e wound. The Appellant s then dema nded m oney an d jewelry fro m the R idenou rs. The R idenou rs took off what jewelr

y they were wearing and gave i t to Dunlap and McBee but the couple denied having any money. Then McBee took Ms. Ridenour to the back bedroom where her purse was located. McBee took $690 from Ms. Ridenour’s pur

se. Once the Appell ants discovered that t he Ridenours had li ed-4-

about not havi ng any money, the Appel lants became angry . Ms. Ridenour tried to a ppea se the Appe llants b y telling th em th at if they w ould le t her ca ll her brother she could get more money for them. The Appellants all owed Ms. Ridenour to use t he telephone. Ms. Ridenour cal led 911 instead of her brother. Soon thereafter , the police arrived and arrested the Appellants.
According to the Appellan ts’ theory of the case, the event the Ride nours claimed was a robber y was in fac

t “a drug dealgone bad.” Mr. Ridenour allegedl y had sold t he Appellants bad cocaine and theAppellants were invi ted to the Ridenour

home to recti fy the pr oblem. At the conclusion of the tri al, the jury found Appella nts guilty of tw o coun ts each o f aggrava ted robb ery.

II. SUFFICI ENCY OF THE EVI DENCE
Appe llants firs t allege that the eviden ce pre sente d at trial is not leg ally suffic ient to s ustain convi ctions for aggravate d robbery. When an appeal challenges the sufficiency of the eviden ce, the standa rd of review is wheth er, after v iewing the evidence in the ligh t most favor able to th e State, any rational trier of fact could have fou nd the essenti al elements of the crime beyond a reason able do ubt. Jackson v. Vi rginia,443 U .S. 307, 3 18 (197 9); State v. Evans , 838 S.W .2d 185 , 190-91 (Tenn . 1992), cert. deni ed , 114 S. Ct. 740 (1994); Tenn. R. App. P. 13(e). On appeal, the State is ent itled t o the stronge st legitima te view of the evidenc e and a ll reasona ble or legitim ate inference s which m ay be dra wn there from. State v. Cabbage , 571 S.W.2d 832, 83 5 (Ten n. 1978 ). This C ourt will not re weigh th e eviden ce, re-eva luate-5-

the evidence, or substi tute it s evidenti ary inferences for t hose reached by t he jury. State v. Grace , 493 S.W .2d 474 , 476 (Te nn. 197 3).
Once approved by the t rial cour t, a jur y verdic t accredi ts the wit nesses presen ted by the State an d resolve s all conflicts in favor of the State. State v. Hatche tt , 560 S.W .2d 627 (Tenn . 1978); State v. Townsend , 525 S.W.2d 842 (Ten n. 197 5). Th e cred ibility of witn esse s, the w eight to be give n their testimony, and the reconci liati on of confl icts i n the proof ar e matters entrusted exclusively to the jury as trie r of fact. State v. She ffield , 676 S.W.2d 542, 547 (Tenn. 1984). A jury’s gui lty verdi ct removes the presumption of innocence enjoyed by the de fendan t at trial and rais es a pre sump tion of guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 19 82). The defendant then bears t he burden of overco ming th is presum ption of gu ilt on appe al. State v . Brown , 551 S.W .2d 329, 331 (Tenn. 197 7).
Robbery is def ined as “th e intenti onal or knowi ng theft of property from the person of another by vi olence or put ting the p erson in fe ar.” Tenn. Code Ann. § 39-13-401 ( 1991). Aggravated robbery i s a robbery “ (1) accompli shed with a deadl y weapon or by di splay of any articl e used or fashi oned to lead t he victim to believe it to be a de adly weapo n; or (2) where the victim suffers serious bod ily injury.” Id. § 39-13-402. I n order to sustain the convicti ons for aggra vated robbe ry in this c ase, th e State had to prove beyon d a rea sona ble doubt th e above -mentio ned ele ments of aggra vated rob bery. See Evans , 838 S.W.2d at 190-91. When Appellant McBee was appr ehended by the pol ice, $827, jewelry, and a food stam p eligibility card belonging to S heila Rideno ur, Ms. Ridenour’s

daughter, wer

e found on McBee’s pers on. Two hunting-6-

knives, whi ch fit the descri ption gi ven by the Riden ours of the knives used by the robbers, were found underneat h McBee. In addit ion, McBee was apprehended wearing gl oves. McBee also at tempted to escape f rom the Ridenour home by breaking the back bedroom window when the police arrived. He was prevented f rom escaping by t he bars on the wi ndow. When the poli ce entered the Ridenour home, Dunlap was on t he telephone telling the police dispatc her that police ass istance was n ot needed . Additionally, Mr. and Ms. Ridenour testifi ed about the horr or they faced as they were h eld at knifepoint and told to hand over the ir jewelry and mo ney.
The Appellants ar

gue that ther

e are too many inconsistenci es in the Ridenour’s testimony for a rationaltrier

of fact to conclude beyond a reasonable doubt

that they

committed aggravated robbery. As stated previo usly, de termin ing the credib ility of witne sses and re solving conflict s in the proo f are ma tters entrus ted exclus ively to the jury. Sheff ield , 676 S.W.2d at 547. From the g uilty verdict returned agai nst the Appell ants, it appears the jury attributed greater credi bility to the Ridenour testi mony than the Appellants’ proof. The decision of t he jury is adequately supported by the record. Thus, we find that , when viewed i n the li ght most favor able to th e State, any rational trier of fact could have fou nd beyond a reasona ble doubt that A ppellants were guilty of aggravated ro bbery.

III . DENI AL OF ADMI SSION OF EVI DENCE
Next, Appell ants argue that the tri al court erred in ref using to al low them to present ev idence showing t hat Mr. and Ms. Ridenour were i n possession of-7-

drugs in violation of their M ethadone program . According to A ppellants’ theory of the case, if the Ride nours pos sessed co ntraband d rugs, they mu st have been engaged in il legal narcotics t rading. Thi s, Appellant s argue supporte d their claim that the R idenours we re not robbed but instead we re involved in “a drug de al gone bad.”
In fact Ap pellant D unlap too k the witne ss stand and testified at length that the altercation with the Ridenours was a drug deal done a wry. The jury appare ntly rejected this testimo ny in favor o f the Ride nours’ ve rsion of eve nts. Nevertheless, Appellants ar gue they should have been allowed to int roduce extri nsic evi dence of the Riden ours alle ged drug deali ng as impeachment following the defense cross-examination of the couple. Both Mr. and Ms. Ridenour denied t he incident in questi on involved drug deali ng.
Impeachment with specific i nstances of conduc t is governed by Tenn. R. Evid. 6 08(b) wh ich provide s in pertine nt part: (b) Specific Instanc es of Cond uct. -- Specific instances of conduct of a witnes s for the purpose of attacking or suppor ting the witnes s’s cre dibility, oth er than convic tions o f crime as pro vided in Rule 609, may not be pr oved by extrinsic ev idence. They m ay, however, i f probative of tr uthfulness or untrut hfulness and under the foll owing condit ions, be i nquired int o on cross-examin ation of the witness

concerning t he witness’ s character for tr uthfulness or untruthfulness . . . . The conditions wh ich must be satisfied before allowing inquir

y on cross-examination about such conduct probative solely of trut hfulness or untruthf ulness are:1 Appellant s make no claim that the e vidence they

were not al lowed to present invol ved criminal convicti ons. Indeed Ms. Ri denour was impeached wit h her record of criminal convicti ons for deali ng in narcot ics. -8- (1) The court upon request must hold a heari ng outside t he jury’ s presence and must determine that t he alleged conduct has probative value and that a reasonable factual basi s exists for the inquiry; (2) The con duct mus t have occurre d no mo re than ten yea rs before com men cem ent of th e actio n or pro secu tion . . . . (em phas is supplied).

It is clear that

any conduct on t he part of t he Ridenours inv olving narcotics

was not provabl e through ext rinsic evidence for purposes of impeachment unless t he conduct for med the basis of a criminal convicti on. 1 Thus, the tr ial court

properly

excluded thi s evidence.
Appellants al so argue they sho uld have been al lowed to make a prof fer of proof f

or the recor

d as to the nat ure of the ex trinsi c evidence exc luded for impeachment purposes. Al though ordinarily a pr offer of proof concerni ng excluded evi dence should be al lowed by the t rial cour t, it is not reversibl e error to deny such a pr

offer where it i s obvious t he evidence coul d not possibl e be comp etent. Alley v. State , 882 S. W.2d 810, 8 16 (Tenn. Crim. App. 19 94). As discussed earl ier, ex

trinsi c evidence of

the Ridenours al leged drug deal ing which was not t he subject of a criminalconvicti on cannot possibly be admitted to impeach thei r testi mony, Therefore, denial of a proffer

of proof as to the nature of the evide nce was p roper.-9- IV. SENTENCING Next, Appe llants challenge the ir sentences a s excessive. Sp ecifically, Appellants ar

gue that the trialcourt err oneously appl ied severalenhancement factors and ordered that the sentences run consecutively. When an appeal challenges the length, range, or m anner of service of a sentence , this Court conducts a de novo review wi th a presumpti on that the determinati on of the trialcourt was cor rect. Tenn. Code Ann. § 40-35-401(d)(1990). However , the presumption of

correctness

is “condi tioned upon t he affirmative showing in the record that

the tri al court considered thesentencing principl es and all r elevant facts and circum stances.” State v. Ashby , 823 S.W .2d 166 , 169 (T enn. 19 91). In the event

that the r

ecord fail s to demonstrate such considerat ion, rev iew of the sentenc e is purely de novo

. Id. If appel late rev iew refl ects that the tri al court properly con sidered all relevant facto rs and its findings of fact are adequately suppo rted by t he record, t his Court must af firm the sen tence, “even if we wou ld have preferred a different result.” State v. Fletcher , 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ). In reviewing a sente nce, this Cou rt must consider the evidence, the presentence report, the sentencing pr inciples, the arguments of

counsel, t he nature and char acter of t he offense, mitigati ng and enhancement factor s, any statements made by the defendant , and the defend ant’s pote ntial for reha bilitation or trea tment. State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears th e burden of showin g the imp ropriety of the senten ce imp osed. State v. Grego ry , 862 S.W .2d 574, 578 (Tenn. Crim . App. 1993 ).-10- A. Length of Sentence

In the absen ce of enhan cemen t and mitigating facto rs, the presum ptive length of sentence for a Class B, C, D, and E felony is the minimum sentence in the statutor

y range while the presumptive l ength of sentence for a Class A felony i s the midpoint in the statutory range. Tenn. Code Ann. § 4 0-35-210© (Supp. 1996). Where one or more enhancement factor s apply but no mitigating factors exist, the trial cou rt may senten ce above the presump tive senten ce but still within the rang e. Id. § 40-35 -210(d). W here bo th enhancement and mitigat ing factors apply, the tri al court must start at the minim um se ntence , enhan ce the se ntence within the ra nge as approp riate to the enhancement factors, and then reduce the sentence withi n the range as approp riate to the m itigating facto rs. Id. § 40-35-210(e) . The weight af forded an enhancement or mitigating factor i s left to t he discretion of t he trial court so long as the t rial cour

t complies wi th the purposes and princi ples of t he Tenne ssee Crim inal Sentencin g Reform Act of 1989 a nd its findings are suppo rted by the record. State v. Hayes , 89 9 S. W.2d 1 75, 185 (Ten n. C ri m. App. 1995 ).
1. Appellant Dunlap Appe llant Dun lap was convicted of two cou nts of agg ravated ro bbery, a Class B felony . Tenn. Code Ann. § 39-13-401(b). As a Range I II persi stent offender conv icted of

a Class B felony , Appellant’s stat utory sentencing range was be tween tw enty and thirty years. Id. § 40-35-11 2(c)(3). The trial court found that t he following enhancement factors appli ed:-11-

(1) The defendant

has a previous

history of crimi nal convic

tions or criminal behavior i n additi on to those necess ary to establish t he appropriate range; (5) The defend ant treate d or allowe d a victim to be treate d with exceptio nal cruelty d uring the comm ission of the offense; (8) Th e defe ndan t has a previo us hist ory of u nwilling ness to com ply with the conditions of a sentence involving release in the c omm unity; (11) The felo ny resulted in death or bodily i njury or

involved the threat of death or bodi ly inj ury to anot her person and thedefendant has previously been convicted of a fel ony that r esulted i n death or bodily i njury; and (13) The felo ny was committed whi le on any of t he following forms of release status if suc h release is from a p rior felony co nviction: (B) Paro le. Id. § 40-35 -114(1), (5 ), (8), (11), (13 ) (Supp . 1996).

The trial court found no mitigat ing factors. Based upon t he foregoing enhancement and mitigat ing factors and relev ant sentenci ng princi ples, th e trialcourt imposed a sentence of thi rty year s for each count , and the sentences were or

dered to run cons ecutively for an ef fectiv e sentence of 60 years.
Appe llant Du nlap a rgues that en hanc eme nt facto r (5) sho uld no t apply because excepti onal cruel ty is an el ement of every aggravated r

obbery and that it must be presumed that t he legisl ature incl uded this consi deration i n the increa sed p enaltie s for ag grava ted rob bery. T his Co urt has cons istently rejected t he notion t hat enhancement factor (5) i s an element of aggr avated robbery, and we have held that t his factor may be used in an appropriate case to enha nce an aggrava ted robb ery sente nce. State v. Sanderson , Davidson County, No . 01-C-01-93 08-CR-0 0269, (Te nn. Crim. Ap p., Sept. 27, 199 5), per m. app. denied , (Tenn . Feb. 5, 19 96); State v. Crow , Humph reys Coun ty, No. 01-C -01-0110-C C-00304 (Tenn. Crim . App., July 8, 1993 ).-12- However, in or

der for appl icatio n of enhancement factor 5 to be appro priate, th e reco rd mu st reflec t cruelty over an d abo ve that in heren tly attenda nt to the crim e of which a defen dant is co nvicted. State v. Emb ry , 915 S.W .2d 451 , 456 (T enn. C rim. App . 1995). T he beh avior of Ap pellants dem onstra tes exc eption al crue lty. In an a ppare nt attem pt to pre vent the ir identif icatio n Appellants, in the pres ence of the Rideno urs, disc ussed kill ing the fam ily. The rob bery wa s accom plished b y this time a nd thus any threa t to kill the family w as not ne cessar y for the com pletion of th e prima ry crime. Secondly, bot h Appellants threatened to killthe small chi ldren present in the residen ce sho uld the R idenou rs fail to be forth comin g with their p roperty. Thre atenin g the live s of the adults was b ad en ough , but thre atenin g to kill the ir small grandchi ldren if the Ridenours f

ailed to cooperate repr

esents a type of cruelty that is reprehensibl e. In addi tion, Appel lants to ld Ms. Ridenour if she did not remove one of her ri ngs, her fi nger would be cut off. We find applicat ion of thi s factor was appropriate.
Appe llant Du nlap fu rther a sserts that en hanc eme nt facto r (11) sh ould not apply. He argues that although he was previ ously convi cted of armed robbe ry, he di d not

inj ure a nyonein t he commi ssio n of t hat c rime . He supports hi s contenti on with an af fidavi t from one of t he alleged vi ctims of t he prior crime which states that Appell ant did not injure hi m. A review of the record reveals however that the victi m was injured in a robbery to which Appellant Dunl ap had pleaded guil ty. Under t hese circumstances applicat ion of enha ncem ent factor 1 1 was a ppropria te.-13- The record refl ects the appr opriate appl icatio n of fiv e (5) enhancement factors. No mitigati ng factors appear. Under t he circumstances a sentence of thirt y (30) year

s is amply j ustifi ed.

2. Appellant

McBee Appe llant McB ee was convicted of two cou nts of agg ravated ro bbery, a Class B felony . Tenn. Code Ann. § 39-13-401(b). As a Range I II persi stent offender conv icted of

a Class B felony , Appellant’s stat utory sentencing range was be tween tw enty and thirty years. Id. § 40-35-11 2(c)(3). The trial court found that t he following enhancement factors appli ed: (1) The defendant

has a previous

history of crimi nal convic

tions or criminal behavior i n additi on to those necess ary to establish t he appropriate range; (2) The defendant was a leader in the commission of an offense involving t

wo (2) or more criminal actors; (3) The offense in volved m ore than one (1) vic tim; (5) The defend ant treate d or allowe d a victim to be treate d with exceptio nal cruelty d uring the comm ission of the offense; (8) Th e defe ndan t has a previo us hist ory of u nwilling ness to com ply with the conditions of a sentence involving release in the c omm unity; (11) The felo ny resulted in death or bodily i njury or

involved the threat of death or bodi ly inj ury to anot her person and thedefendant has previously been convicted of a fel ony that r esulted i n death or bodily i njury; and (13) The felo ny was committed whi le on any of t he following forms of release status if suc h release is from a p rior felony co nviction: (B) Paro le. Id. § 40-35 -114 (1), (2 ), (3), (5), (8), (11 ), (13) (Su pp. 199 6).

The court found no mit igating factors. Based upon the foregoing enhancement and mitigat ing factors and relev ant sentenci ng princi ples, th e trialcourt imposed a sentence of thi rty year s for each count , and the sentences were or

dered to run cons ecutively for an ef fectiv e sentence of 60 years.-14- Appellant McBee argues that enhancement f actors (2) , (3), (5), and ( 11) should not have been applied by the tri al court. Evidence presented at tri al clearly supports t he trial court’s applicati on of enhancement factor (2), which provides that the de fendan t was a lea der in the c omm ission of the crime. Appellant McBee hel d a knife to Mr. Ridenour and de manded money and jewe lry . McBe e ord ered Appel lant Dunla p to take Mrs. Ri denour’s j ewel ry. He also ordered Appellant Dunlap to hold Mr. Ridenour while he took Mrs. Ridenour in t he back bedroom and robbed Mrs. Ridenour of t he contents of her purs e. Appa rently, it was A ppellant M cBee th at was d irecting the robbery. McBee was found with t he Ridenours’ money and j ewelry. Thus, we find t hat the app lication of en hance ment fa ctor (2) by th e trial court w as prop er.
Appellant McBee al so challenges t he applicat ion of enhancement f actor (3), whi ch provides t hat the off ense involv

ed more than one vic tim. Case law establi shes that t his enhancement fact or may not be appli ed when a defendant is separately conv icted of the off enses committed against each victim. State v. Lam bert , 741 S.W .2d 127 , 134 (T enn. C rim. App . 1987). Thus, the appli cation of this enhancement f

actor coul d not rest on the fact that both Mr. and Mrs. Ridenour were vi ctims of t he aggravated r obbery. The State argued at

McBee’s sentenci ng hearing that this enhancements factor shou ld app ly beca use A ppella nt McB ee thre atene d to ha rm the Riden our’s grandc hildren if they did not co mply with his dem ands fo r mone y and jew elry. In State v. Raines , this co urt foun d that th e term “victim” as use d in this enhancement factor

means a person injur ed, kil led, or whose property was stolen or destroyed. 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994). Since under the ci rcumstances of t his case, t he Ridenour grandchi ldren cannot be-15-

considered vi ctims for the purposes of this enhancement f

actor, t he application of enhancement factor (3) was erroneous.
Appellant McBee further maintains t hat enhancement factor (5), which provides that a victim w as treated with exc eptional cruelty, shou ld not have been applied. For the reasons given in t he discussion of the appl icatio n of enha ncem ent fac tor (5) to Appe llant Du nlap’s sente nce th e app lication of this enhancement factor

to Appellant

McBee’s case was also a ppropriate.
Finally , Appellant

McBee challenges t he applicat ion of enhancement factor ( 11). At Appel lant McBee’s sen tencing heari ng, the State relied up on McB ee’s co nviction for aidin g and abettin g rape for the a pplica tion of th is enhancement factor . Appellant argues that this was i mproper as he did not
com mit the rape h imse lf but wa s only a n acc esso ry after th e fact. It is unnecessary to decide whether or not a convi ction fo r aiding an d abetting rape can support the applicati on of this enhancement factor. The evidence presented at Appel lant McBee’s sen tencing heari ng includes pr oof that Appe llant wa s con victed o f aggra vated assa ult in 19 86. Th is conv iction is sufficient to find that the app lication of enhanc ement fac tor (11) was prop er.

Althou gh the trial cou rt impro perly a pplied one e nhan cem ent fac tor, six enhancement factor

s were properl y applied. The record shows that Appellant has b een c onvicte d of se ven felo nies, a nd ha s spe nt his e ntire ad ult life in prison. In addition, he c omm itted the aggravate d robbery of the R idenours while on parol e. In l ight of t he strength andnumber of these enhancement-16-

factors, we conclude that the trialcourt’s impositi on of a thirty year sentence for each count

of aggravated robbery was j ustifi ed and reasonable.

B. Consecutive Sentencing Appe llants a lso m aintain that the trial cou rt erred in orde ring the ir senten ces to be served c onsec utively. The trial court ha s the disc retion to impose sentences concur rently or consecuti vely. Tenn. Code Ann. § 40-20- 111(a) (1990). The impositi on of consecutive sentences i s appropriate if the defendan t has been c onvicted of mo re than one o ffense and the trial court finds, by a preponderance of the evidence, one or more of thefollowi ng criteria: (1) Th e defe ndan t is a pro fessio nal crim inal wh o has know ingly devoted himse lf to criminal a cts as a m ajor sour ce of livelihoo d; (2) Th e defe ndan t is an of fende r whos e reco rd of crim inal ac tivity is extensive ; (3) The defendant is a dangerous mentally abnormal person so declared by a competent psychi atrist who concludes as a result of an investigatio n prior to sentencing t hat the defend ant's cri minal conduct has been charac terized by a pattern of repetitive o r comp ulsive beh avior with heedle ss indiffere nce to co nsequ ences ; (4) The defendant

is a dangerous of

fender whose behavi or indicates little or no regar d fo r hu man l if e, a nd no hes it ati on ab out

commi tt ing a cr ime in which th e risk to hu man life is high; (5) The defendant

is convi cted of two (2) or more statutory offenses involving se xual abu se of a m inor . . . ; (6) The defendant

is sentenced f

or an offense committed whil e on probation; or (7) The defend ant is sen tenced for crimina l contem pt. Id. § 40-35-115.-17- 1. Appellant

Dunlap In imp osing cons ecutive sente ncing , the trial c ourt no ted D unlap ’s record of extens ive criminal activity. Dunlap h as four secon d degree b urglary convicti ons, one convi ction fo r thir d degree burglar

y, and one convi ction fo r armed robbery. H is record a lso include s various other felon y conviction s. Under these cir

cumstances a find ing that Dunl ap has an extensi ve criminal record is c learly

warranted.

The trial court al so found that Appellant was a dangerous offender as a ground for i mposing consecuti ve sentences. Tenn. Code Ann. § 40-35-115 (b)(4). However this

Court held i n State v. Wilkerson , this finding standing alone does not justif

y consecutive sentences. A trial court may not i mpose consecutive sentences based upon t he defendant’ s dangerous offender status unless th e record establish es that: (a) the defendant's behavi or indicated lit tle or no r

egard for human life, and no hesitation about co mm itting a crime in which th e risk to human life i s high; (b) the circumstances surrounding t he commission of the offense were ag gravated ; (c) consecut ive sentence s are necessary to protect society f rom further crim inal cond uct by the defend ant; (d) consecutive sentences re asonably rel ate to the s everit y of the offenses committed; and (e) the sentence is in accord with t he princi ples set forth in t he Senten cing reform Act. State v. Wilkerson , 905 S.W .2d 933 , 938-39 (Tenn . 1995); see also State v. Ross , No. 03C01-9404-CR-00153, 1996 WL 167723, at *9 (Tenn. Cri m. App. Apr. 10, 1 996).

In the instant case Dunlap , a relat ive of t he Ridenours, demanded money and jewelry by holding the couple at knifepoint. At one point Ms.-18-

Rideno ur was to ld her hu sband had be en killed an d that she was ne xt. Threats were made to kill the small chi ldren in the resi dence, as well as a threat to cut off Ms. R idenour’s finger. Cle arly the circumsta nces are aggravated, Dunlap has no hesitancy about committ ing such a cri me and
conse cutive sen tencing re asona bly relates to the seve rity of the offen se. Finally, Dunlap’s prior c riminal record indica tes that conse cutive sentence s are nece ssary to protec t socie ty from this ind ividual.
2. Appellant

McBee

The trial court found that Appell ant McBee was a professi onal crimi nal who knowingly dev

oted himself

to crimi nal acts as a maj or source of livel ihood. Tenn. Code Ann. § 40-35-115(1) . The record cl early establishes Appellant McBee as a pr ofessionalcriminal . Appellant McBee has been incarcerated almost his ent ire adult life. The probation of ficer t hat prepared McBee’s pre-sentence report testifi ed at McBee’s sentencing heari ng that he had never h eld a job. There fore, we find that the im position of conse cutive sentences on the groun d that McBe e is a profession al criminal was p roper.

The trial c ourt also n oted Mc Bee’s re cord of e xtensive c riminal ac tivity as a basis for

ordering cons ecutive sentences. Tenn. Code Ann. § 40- 35- 115(2). He has numerous prior fel ony convict ions. These convi ctions i nclude a convicti on for two count s of aggravated robbery, a convicti on for aidi ng and abetting r

ape, a convic

tion for simple robber

y, a convi ction fo r second-degree burglary, two convict ions for es cape, a convi ction fo r aggravatedassault, and a convictio n for arm ed robb ery. The proof he re is mo re than s ufficient to-19-

support the t rial cour

t’s fi nding that McBee’s criminalactivi ty was extensive. Based on this finding, t he trial court properly imposed consecutive sentences.

The trial court al so found that McBee was a dangerous offender as a ground for i mposing consecuti ve sentences. Tenn. Code Ann. § 40-35- 115(b)(4). However, as we have ment ioned previ ously, t his fi nding, standing alone does not justif

y consecutive sentences. A trial court may not i mpose consecutive sentences based upon t he defendant’ s dangerous offender status unless the r

ecord establ ished the cr iteri a set fort h in State v. Wilkerson and State v. Ross

. See Wilkerson , 905 S.W .2d at 938 -39; Ross , 1996 WL 167723, at *9.
From the record, it is

clear that

McBee’s behavior

indicated litt le or no regard for

human life and no hes itati on about committi ng a crime in whi ch the risk to hum an life is high . McBe e participa ted fully in the th reats an d cruelty which characterize thi s home invasion. In addit ion it is obvious that pri or incarceration ha s not had an impact on M cBee’s be havior. Conse cutive sentencing reasonab ly relates to the severity of this offense and is neces sary to protect

society f rom further

criminal activity by McBee.
According ly, the convictions and sentences of both Appe llants are affirmed.

____________________________________ JERRY L . SMI TH, J UDGE-20-

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ JOHN K. BYERS, SENIORJUDGE