### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY 2000 SESSION


### STATE OF TENNESSEE v. RONALD JEROME BUTLER
Appeal as of Right from the Criminal Court for Davidson County

No. 96-A-1307 Seth Norman, Judge

No. M1999-01034-CCA-R3-CD - Filed August 11, 2000

Ronald Jerome Butler wa

s convicted by a ju

ry in the Davidson County Criminal Court of one count of aggravated kidnapping and one count of aggrav ated robbery, both class B felonies. For the offense of aggravated

kidnapping, the tri

al court sentenc

ed the appellant a

s a Range I offen

der to ten years incarceration

in the Tennessee D

epartment of Corr

ection, requirin

g him to serve one hundred percent of his sentence in confinement. For the offense o f aggravated robbery, the trial court sentenced the appellant to ten years incarceration in the Tennessee Department of Correction, requiring him to serve thirty percent of his sentence in confinement. The trial court further ordered that the sentences be served consecutively. On appeal, the appellant raises the following issues for review: (1) whether his conviction of aggravated kidnapping violates principles of due process; and (2) whether the trial court erred in sentencing him. Upon review of the record an

d the parties’ br

iefs, we affirm the jud

gments of the trial

court. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID H. W ELLES and D AVID G. H AYES , JJ., joined.
Jennifer Lynn Tho

mpson, Nashville, T

ennessee, and Ca

lvinTurner, Nashville, Tennessee, for the appellant, Ronald Jerome Butler.

Paul G. Summers, Attorney General and Rep orter, Elizabet

h T. Ryan, Assistant

Attorney Genera

l, Nicholas Bailey, Assistant DistrictAttorney General, and Jon Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION I. Factual Backgroun

d On the night of December 14, 1995, at approximately 9:30 p.m., Jul ie Nab ors stopped for dinner at the Sonic drive-in restaurant on Lebanon Road in Hermitage, Tennessee. The appellant approached

the open window of

Ms. Nabors’ Lexus automobile, put a gun to her head, and ordered her to “scoot over” to

the passenger se

at. Ms. Nabors pled with the appellant to take her car and her purse but to lether go. The appe llant, however, r

efused to relea

se Ms. Nabors and again ordered her1 Judge Thomas H. Shriver pr esided over the appell

ant’s t rial. Due to Judge Shri ver’s unti

mely death, J

udge Seth Norman presi

ded over the s entencing hea ring.
-2- to move to the passenger seat. When she complied, the appellant put his gun in his jacket pocket and sat in the driver’s seat. His accomplice sat in the back seat.

The appellant exited the Sonic and drove the Lexus through the par k ing lot of a nearby Texaco gas station. At the gas station, a group of young people crowded around the car

and cheered the appell ant. After a fe w minutes, the appellant left the gas station and drove down the street. Ms. Nabors was still in the car, pleading to be released. The appellant assured her that she would be released.

While driving down the street, the appellant and his accomplice rummaged through Ms. Nabors’ purse and found her automatic teller machine (ATM) card. They asked her how much money she had in the bank. Ms. Nabors told them that she had about two hundred dollars in her account. Accordingly, the appellant drove t

o the closest

branch of Ms. Nabors’ bank and ordered her to withdraw the entire two hundred dollars from her account . As Ms. Nabors followed the appellant’s orders, the appellant and his accomplice watched h er c losely. When Ms. Nabors returned to the car , she handed the money to the appell ant. The appella

nt again refused

to release Ms. Nabors. Rather, after leaving the ATM, the appellant drove eight miles to a boat dock, where h e released Ms. Nabors and fled with his accomplice. The entire incident lasted about thirty

or forty minutes.

The appellant was convicted by a jury in the Davidson County Criminal Court of one count of aggravated kidnapping, a cla ss B felony, and one

count of aggrava

ted robbery, a c

lass B felony. 1 In determining the appropriate sentences, the trial court found that there were two enhancement

factors applicable to the appellant: (1) the appellant has a previous history of criminal convictions or criminal behavior, and (8) the appellant has a previous history of unw illingn ess to complywith the conditions of a sentence involving release in the community. Tenn. Code Ann. § 40-35-114 (1997). The trial c ourt found no mitigating factors. Accordingly, for the offense of aggravated

kidnapping, the trial court imposed a Range I sentence of ten years incarceration in the Tennessee Department of Correction and ordered the appellant to serve one hundred percent of his sentence in confinement. For the offense

of aggravated

robbery, the trial court imposed a sentence of ten years incar

ceration and ord

ered the appella

nt to serve thi rty percent of hi s sentence in confinement. The trial court further required the appellant to serve his sentences consecutively.
II. Analysis O n appeal, the appellant first contends that the facts supporting his aggravate d kidnapping con vic tion were incidental to the facts supporting his aggravated robbery conviction; therefo re, his k idnapping conviction violates due process. The appellant also argues that the trial court erred in sentenc

ing him. Although some

what unclear fr

om his brief, the appel

lant is apparently challenging the length of both his sentences. Moreover, he contend s that the trial cou rt erred in requiring him to serve his sentences consecutively.2 See State v. Cunningham , No. 02C01-9801-CR-00022, 1999 WL 395415, at *4 (Tenn. Crim. App. at Jacks on, June 15, 1999)(it was unnecessary t o force the victi

m to remain in her car in order to steal the veh icle); State v. Pric e , No.0 1 C01-9810-CR-00421, 1999 WL 1063414, at *2 (Tenn. Cr im. App. at Nas

hville, November 24, 1999)(the aggravated robbery could ha ve been completed when t he defendant

first approa ched the car witho ut forcing the victim to drive around to find a secluded area for comp letion).
-3- A. Aggravated Kidnapping The appellant argue

s that his aggrava

ted kidnapping con

viction vio l ates his due processrights, because the facts supporting that conviction, i.e., the confinement and detention of Ms. Nabors, are inc

idental to those

facts which support his aggravated robbery conviction. In State
v. Anthony , 817 S.W.2d 2 99, 306 ( Tenn. 1991), our supreme court held that the relevant inquiry under these circumstances is whether the confinement,

mov eme nt o r det ent ion is e sse nti all y inc ide nta l to the [ro bbe ry] and is not, therefore,

sufficient to supp

ort a separate c

onvicti on for kidnapping, or whether it is significant enough, in and of itself, to warrant independent

prosecution and is, therefore, sufficient to support such a conviction. The court noted that “every robbery , by definition, involves some detention against the will of the victim, if only long enough to take goods or money from the person of thevictim.” Id

. However, because the “aggravated kidnapping statute does not require a particular distance of removal or any particular duration or

place of confinement,” “any restr aint in addition to

that which is nece

ssary to consummate

. . . robbery may support a separ ate conviction for kidnapping.” State v. Dixon , 957 S.W.2d 532, 535 (Tenn. 1997). In Dixon , our supreme court further refined the Anthony test

. The court held that if the Anthony

threshold is met, that is, if the confinement was beyond that necessary to commit the robbery, a court must also inquire whether the additional confinement (1) prevented the victim from summoning help; (2) lessene

d the appellant’s

ris k of detection; or (3) created a significant danger or increased the victim’s risk of harm. Dixon , 957 S.W.2d at 535.

In the present

case, Ms. Nabors’ detention was not essential to the theft of her car. 2 Ms. Nabors begged

the appellant to take her car and her purse and re

lease her. The a

ppellant could have easily complied, but he refused to release Ms. Nabors. Furthermore, the appellant only ordered Ms. Nabors to

give him money after he and his accomplice discovered her ATM card. In fact, even after obtaining the additional two hundred dollars, the appellant took Ms. Nabors to a boat dock eight miles away before releasing her, rather than leaving her at the ATM upon completion of the robbery. The appellant’s restraint of Ms. Nabors wa s more than that required to commit the robbery. Therefore, the first part of the Anthony

- Dixon analysis is met.

We must now determin

e if the appellant’s restriction of Ms. Nabors prevented her from summoning help, lessened the appellant’s risk of detection, created a significant danger to Ms. Nabors, or incre ased her ris k of harm. Dixon , 957 S.W.2d at 535. Although only one of the additional el ements is ne eded, the facts of this case support all of the elements. It is clear that detaining Ms. Nabors in the car prevented her from summoning help. She was unable to notify anyo ne of the theft of her c ar or her money u

ntil the appellant r

eleased her. Fur

ther, because M

s.3 We will examine these claims even

though the appel

lant does not support his all egations by argument, ci tation to authorities , or appropriate r eferences to the r

ecord. Such bald assert ions are generall

y treated as waive d by this co urt. Tenn. R. Ct. Crim. App. 10(b).
-4- Nabors was not free to notify anyone of the robbery, the appellant’s risk of detection was lessened. Also, the reduced risk

of detection incr

eased Ms. Nabors ’ risk

of harm. See Dixon , 957 S.W.2d at 536. The appellant, wh

ile in possession of

a gun, forced Ms.

Nabors to remain i

n the car. Despit

e his assurances to the contrary, the appellant could have shot Ms. Nabors at any time during her confin ement

in the car. Therefore, both prongs of the Anthony

- Dixon test are satisfied. T h e appellant’s aggravated kidn apping conviction

does not violate

due process and must beupheld. This issue is without meri

t. B. Sentencing The appellant also

argues that the tr

ial court erred

in imposing his senten

ces. First, the appellant contends that the trial cour t erred in enhancing his sentences for both aggravated kidnapping and aggravated robbery two years above the minimum sentences of eight years. Second, the appellant

alleges that the trial court erred by requiring him to serve his sentences consecutively. 3

Gen eral ly, appellate

review of the length of a sentence is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (1997). The presumption of correc tness is contingent

upon the record revealing that the trial court adequately considered sentencing princ iples and all relevant facts and circumstances. See State v. Ash by , 823 S .W.2d 166, 169 (Tenn. 1991). The trial court’s failure to properly consider these factors removes the pres

umption of correc

tness. See State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997). In any e vent, the burden i

s on the appellant to demonstrate the impropriety of his sentences. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

In its de novo review, this court considers the following facto rs: (1) the evide

nce, if any, received at the trial

and the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on enhancement and mitigating fa cto rs; (6) any statement by the defendant in his own behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210 (1997). See also Ashby , 823 S.W.2d at 168.

The trial court must also consider these factors in sentencing a def endant. Te nn. Code Ann. § 40-35-103(1). Moreover, in determini ng the appropria te sentence, the

trial court must determine the appropriate range of sentence. Tenn. Code Ann. § 40-35-210( a). The appella

nt in this
case is a standard offender , and aggravated kidnapping and agg

ravated robber

y are both class B felonies. Tenn. Code Ann. § 39-13-304(b)(1), -402(b)(1997). Therefore, the appropriate sentencing range is from eight to twelve years incarceration. Tenn. Code Ann. § 40-35-112(a)(2)(1997). The appellant’s sentence within the range depends upon the trial court’s application of enhancement and mitigating factors. Tenn. Co de Ann. § 40-35-21 0(b)(5). Becau se we conclude that the trialcourt-5-

improperly

considered enhancement factors and failed to consider a

statutorily mandated mitigating factor, we review the appellant’s sentences without a presumption of correctness.
1. Length of sentences First, the appellant cha

llenges the tria

l court ’s imposition of ten-year sentences for his convictions of aggravated kidnapping and aggravated robbery, se ntences that

are in excess of the statutory mini mum for each offense. With regard to the sentence for agg ravated kidnapping, the appellant specifically claims that the trial court erred by failing to take into account his voluntary release of the victim aliv

e, a sta tutorily mandated mitigating factor. Tenn. Code Ann. § 39-13- 304(b)(2). The State con ceded at oral a rgument that the trial court was required to consider the appellant’s voluntary release of the victim, and we agr ee.
With regard to both ten

-year sentence

s, the trial court found that two enhancement fact ors were ap plicable to the appellant: (1) the appellant has a previous history of criminal convictions or criminal beha vior in addition to tho

se necessary to e

st abli sh the appropriate range, and (8) the appellant has a previous history of unwillingness to comply with the c onditions of a sentence involving release in the community . Tenn. C ode Ann. § 40-35-114. In applying
en ha ncement

factor (8) to the

appellant, the tr

ial court noted tha

t “he was on proba

tion, as I understandit, out of the juvenile court at the time he committed these acts.” However, the mere fact that the appellant committed the current offense while on probation do es not indica te a previous his tory of unwillingness to comply with conditions of a sentence involving release into the community. See Statev. Hayes , 899 S.W.2d 175, 185-186 (Tenn. Crim. App. 1995)(commission of the offense for whi

ch a defendant i

s being sentenced should not make factor (8) applicable). But
se e State v. Martin , No.03C01-9711-CR -00508, 1998 WL 707

798, at *4 (Tenn. Cr

im. App. a t Knoxville, October 12, 1998) perm. app. denied (Tenn. 1999)(the accused was on probation when the current offens

e was committed, w

hich in d icated unwillingness to comply with conditions of release). The court also could not consider the appellant’s previous violation of parole as a juvenile in applying enhancement factor (8). State v. Faulkner , No. 03 C01-9806-CR -00217, 19 99 WL 1039714, at *7 (Tenn. Crim. App. at Knoxville, November 12, 1999)(when imposing a sentence for
an offense committed after enactment of Tenn. Code Ann. § 40-35-114(20), the trial court could not consider the defendant’s “probation revocation that occurred when he was a juvenile”). Thus, the court improperly applied enhancement factor (8).

Additionally, because all of the appellant’s prior offenses were committed by him
as a juvenile, the court improperly considered enhancement fac tor (1). S ee State v. Brown , No. 02C01-9710-CC-00419, 1998 WL 742350 , at *2 (Tenn. Crim. App. at Jackson, October 26, 1998)(factor

(20) became the exclusive factor for enhancing a sentence based on a n appellant’s juvenile record after Tenn. Code Ann. § 40-35-114 was amended in 1995). Enhancement factor (20) is the only appropriate factor to consider when a defen dant 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. § 40-3 5-114. The appellant’s juvenile convictions of theft of property over $500 and attempted especially aggr avated robbery

would have been class E and

class B felonies, respectively, if committed by an adult. Tenn. Code Ann. § 39-14-105(2), 3 9-13-403(b), 39-12-107(a)(1997). Accordingly, fa

ctor (20) is applic

able to the appell

ant.-6- When th ere are enhan

cement and mitigat

ing factors that a

pply to an appellan

t, th e trial court must

start at the minimum sentence in the range, enhanci ng the sentence a

s appropriate in light of any enhancement factors and reducing the sentence as appropriate upon considera tion of any mitigating factors. Tenn. Code Ann. § 40-35-210(e). The tri al court, i n its discretion, determines the we

ight to be given to

the enhancement and mitigating factors. See State v. Hayes , 899 S.W.2d 175,185 (Te

nn. Crim. App. 1995) ; Price 1999 WL 1063414, at *6. This court has noted that, the mere number of existing enhancement factors is not relevant–the

importantconside r ation being the we ight to be given eac

h factor in light of its relevance to the[appellant’s] personal circumstances and background

and the circumstances surrounding his criminalconduct. Hayes , 899 S.W.2d at

186. With regard to the appellant’s sentence for aggravated kidnapping, the enhancement

factor of the ap

pellant’s violent,

juvenile criminal history weighs heavily ag ainst the mitigating factor of the vol untary release

of Ms. Nabors. Wit

h regard to

the appellant’s sentence for aggravated

robbery, the trial cou r t correctly foun d that there are

no applicable mitig

ating factors. We conclud e that the record supports the appellant’s ten year sentences for both the aggravated kidnapping conviction and the aggravated robbery conviction.

2. Consecutive Sentences Lastly, the appellant

challenges the trial court’s imposition of consecutive sen

tences. Tenn. Code Ann. § 40-35-115(a)( 1997) governs the court’s ability to

sentence an app

ellant who is convicted of more than one criminal offense to consecutive or concurrent terms of incarceration. See also Tenn. R. Crim. P. 32(c)(1). The trial court may order consecutive sentences if one or

more of the following fa

ctors is present: ( 1) the appellant i s a professional criminal who has knowingly devotedhimself to criminal acts as a major so

urc e of livelihood; (2) the appellant is an offender whose record of criminal activity is extensive; (3) the appellant is

a dangerous mentally abnormal person so declared

by a compete

nt psychiatr

ist who concludes as a result of an investigation prior to sentencing that the defendant's criminal conduct has been characterized by a pattern of repetitive
or compulsive behavior with heedless indifference to consequences ; (4) the appella nt is a dangerous offender whose behavior indicates little or n o regard for human life, and no hesitation about committing a crime in which the risk to human lifeis high; (5) the appellant is convicted of two or
more statutory offenses involving sexual abuse of a minor with consideration of the ag grava ting circu ms tances arising from the relationship betw

een the appellan

t and victim or victi

ms, the time span of appellant’s undetected sexual activity, the nature and scope of the sexual acts and the extent of the residual, physical and mental damage to the victim or victims; (6) the appellant is sentenced for an offense committed while on probation; or (7) the appellant is sentenced for criminal contempt. Id. at (b)(1)-(7).

The presence of a single fa ctor is enough to justify the imposition of consecutive sentences. See Statev. Black , 924 S.W.2d 912, 917 (Tenn. Crim. App. 1 995); Covington v. State , No. 01C01-9401-CR-00010, 1994 WL 548751 , at *1 (Tenn. Crim. App. at Nashville, October 6, 1994). In this case, the trial court found that the appellant committed the aggravated kidnapping and aggravated

robbery while on probationfor offenses adjudicated in juvenile court. Tenn. Code Ann. § 40-35-115(b)(6). We affirm the tr ial court’s impositi

on of consecutive

sentences.-7- III. Conclusion. The appellant has faile d to demonstrate that his aggravated kidnapping of Ms. Nabors
was incidental to the a

ggravate d robbery. The appellant has also failed to carry his burden of demonstrating the impropriety of his sentences. We affirm the judgments of the trial court.

Norma McGee Ogle, Judge