### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON STATE OF TENNESSEE v. TONY MABRY Direct Appeal from the Criminal Court for Shelby County No. 97-08657 Joseph P. Dailey, Trial Judge

No. W1999-01438-CCA-R3-CD - Decided June 28, 2000

The defendant’s conviction of Especially Aggravated Robbery is supported by sufficient evidence. The defendant’s testimony, together with medical evidence, provided sufficient basis for a jury to find “serious bodily injury.” The defendant’s sentence is modifiedfrom thirty-two years to twentynine years because of misapplication of enhancing factors.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as Modified
W ILLIAM S , J., delivered the opinion of the court, in which H AYES and G LENN , JJ., joined.
AC Wharton, Kathryn Leslie Mozingo, and Tony N. Brayton, Memphis, Tennes see, for t he appellant, Tony Mabry.
Paul G. Summers , Attorney General and Reporter, Clinton G. Morgan, Counsel for the State, WilliamL. Gibbons, Distric t Atto r ney General, and Jennifer Smith Nichols, Assistant District Attorney, for the appellee, State of Tennessee.

OPINION
The defendant, Tony Mabry, a ppeals from his conviction by a Shelby County jury of one count of Espec ially Aggra

vated Robbery. After the conviction, the trial court sentenced the defend ant as a

Range II offender to thir

ty-nine y ears in the Depa

rtment of Correc

tion. From this convictio n and senten ce, he now app eals, arguin g: (1) The evidence was insufficient to support the verdict; and (2) the trial court erred in its application of ce

rtain enhancing fac tors at sen tencing. After careful review, we affirm the conviction of Especially Aggravated Robbery

but modi fy the defendant’s sentence to twenty-nine y ears. FACTS
Late in the night of Mar

ch 9, 1997, Curtis

Sanders, a fifty-five ye

ar-old man, stopped at

the apartment of Mary Brown. A repair man, he was to perform some work for her. When he knocked1 The other robber remains unidentified and uncharged.
-2- at her door, he received no answer from the apartment. But kn ocking again, he heard a man, the defendant,

from upstairs, outside the apartment, saying, “Not at home!” Sanders, familiar with the defe nda nt’ s fa ce, k new the man as “T ony. ” Sa nde rs b egan to w alk away.
Whileleaving, Sanders was approache d by this man, “Tony,” and another unidentified man. Sanders, surrounded and a fraid, was unabl

e to return to his

vehicle, and

therefore he r

eturned quickly to Brown’s door. At this door, he was attacked from behind, hit with a bottle, a nd kicked into submission by the two men. He attempted to fight back but, in the end, to no avail. The men stole Sanders’ money, watch, and beeper and then fled.
The defendant was arrested 1 , identified from a photo-arr ay by Sanders, and identified by voice by Mary Brown. I ndicted and charged, he was convicted of one count of Espec ially Aggravated

Robbery and sentenced to thirty-nine y ears. His direct appeal

is now before this Court.
ANALYSIS Sufficiency of the Evidence
The defendant first

claims that the evi

dence was insuff

icient t o su pport the verdict

. Spe cif ica lly, he ar gues tha t th e evi den ce ad duc ed at tri al d oes not est abl ish “ser iou s bo dil y inj ury” as defined by Tenn. Code Ann. § 39-11-106(34). Accordingly , he argues that his co nviction fo r Especially

Aggravated Robbery

should be reduced to Aggravated Robbery. We disag ree and affirm the conviction.
In determining thesufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. See Statev. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor of the state. See S tate v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strongest legitimate view of the evidence and all legitimate o r reasonable

inferences which

may be drawn therefrom. Id. This Court will not disturb a verdict of guilt due to the sufficiency

of the evidence unless the defendant demonstrates that the facts contained in the record and the inferences which may be drawn

therefrom are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty bey ond a reasonable doubt. See State v. Brewer , 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court’s duty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational trier of factto have found the essential elements of the offense beyond a rea sonable doubt. See Tenn. R

. App. P. 13(e); Jackson v. Virgini a , 443 U.S. 307, 317 (1 979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Reviewing the defendant’s claim, we first look to Tenn. Code Ann. § 39-13-401 whichsets
forth the offens

e of robbery :-3-

Robbery .--- (a) Robbery is th

e intentional or kn

owing theft of pr

operty fro m t he pers on of another by violence or putting the person in fear. Next, we turn to the ins tan t offense of Especially Aggravate d Robbery as defined by Tenn. Code Ann. § 39-13-403: Especially Aggravated Robbery .---- Especially Aggravated Robbery is robbery as defined in § 39-13-401: (1) Accomplished with a deadly weapon; and (2) Whe re t he v ict im s uff ers ser iou s bo dil y inj ury. Therefore, in this case, in ord er to convict for

Especially

Aggravated Robbery the prosecution was required to prove: (1) a robbery, (2) the use of a dea dly weapon, and (3) the infliction of serious bodily injury. Sufficient proof

of the robbery

is clear: The vic

tim testified that he w

as approached,

put in fear, attacked, beaten into submission, and then robbed of his money and watch. Sufficient pr oof that a deadly weapon was used is also clear: The victim testified that he w as struck with a glass bottle in the back of the head and n eck. A glass bottle so used is a “deadly weapon.” See Tenn. Code Ann. § 39-11- 106(a)(5 )(B). Therefore, the only remaining issue, a nd the one issue the defendant now argues, is whether the prosecution proved the existence of “serious bodily injury.”
“Serious bodily injury” is defined by Tenn. Code Ann. § 39-11-106(34) as bodily injury which involves: (a) A substantial risk of death; (b) Protracted u

nconsciousness; (c) Extreme physical pain; (d) Protracted or obvious disfigurement; or (e) Protra cte d loss or substantial impairment of a function of a bodily member, organ or men tal facu lty.
Bodil yinjury, on

the other hand, in

cludes “a cut, a

brasion, bruise, b

urn or disfigure

ment; physical pain or temporary illness or impairment of the function of a bodily member, organ

or mental faculty.”Tenn. Code Ann. § 39 -11-106(a)(2) . While the ass ignme nt of a precise legal definition to what constitutes “serious bodily injury” is implausible, we do know that the injury must be of a greater and more serious c

haracter than t

hat involved in

a mere “simple assault,” resultingin “bodily injury.” See State v. Barnes , 954 S.W.2d 760, 76 5 (Tenn. Crim. A pp. 1997). Moreover, the determinatio

n of whet her an “injury

” constitutes “se

rious bodily i

njury” or “

bodily injury

” is a question of fact for the jury and not one of law. Id. at 765-66. In the prese

nt case, the victi

m described his inju

ries as follows: My cheeks – from what the doctor explained to me, they were crushed in. . . . My top-4-

gu mbroken loose. Which my gold tooth was hanging, too, but the top g um wa s broken loose. . . . So they had to wire my mouth up. I t’s not right now.

. . . . . . I had stitc

hes under one of m

y eye s.

. . . They put stitches because all that whole lip was pulledloose on there along with the gums so they put stitched up under my lip.

. . . And plus whenever I bend, I feel like ever ything is just going to blow up, you know, from the pressure. You know, you bend over – if you g ot a headache, bending, over makes it worse. . . .

. . . [Y]ou got an eyeball socket . . . Anybody can take their hand and feel here, and you feel both sides. This one is split. Got a bone sticking up to where this was crushed at. And this tooth here, it’s still loose. I’ve been trying to hang on to it. The doctor told me I need to pu

ll it out, but it’s bluish

up on the top of there right now. But I’m betting I’m going to hav e to take it out. And ev ery so often, sh arp pains go t hrough there like somebody cutting with a knife . . . . And I can’t never raise that top lip up like I normally can because it’s still sore deep down in there. It’s sore. It’s sore. I ’m sti ll p uff ed re all y.

. . . When that happened to me, it was mostly in the left eye now; but it is some in the right one. But mainly in the left eye. It’s like you see circles, spots, and like spider webs. You know, that’s the best I can – like clouds – cloudy like over that eye. . . . [T]he doctor told me, well, w hen yo u get up in y our age, that’ s going to come anyway. But it wasn’t there until this happened. . . .
There i s no doubt from this testimony that the victim suffered multiple injuries from the attack. The victim’s testimony establishes that, since the assault, he has suf

fered impairmen

t to his vision. Although the vict im attempted to

discount the visual impairment by admitting that similar symptoms

were more than likely to occur with age, such statements by the victim do not render the evidence insufficient to establish a protracted or substant ial impairment of a bodily member or organ. See , e.g. , Sutton v. State , 714 N.E.2d 694, 696 (Ind. App. 1999) (victim’s testimony mini mizi ng extentpai n an d su ffer ing d oes not nul lif y finding of serious bodily injury). While there may be a slight question as to whether the impairment resulted from the assault or from the victim’s age, the victim testified that he s

uffered no impai

rment until the inci

dent. Moreover,

th e questio n on this issue is within the province of the jury as the trier of fact. We cannot say that the jury ver dict was so against the overwhelming weight of the evidence as to be manifestly unjust. Accordingly, we find the evidence sufficient to support a conviction for Esp ecially Aggravated Robbery beyond a reasonable doub

t. Sentencing2 The defendant does not argue the application of factors (1) and (13). -5- Next, we address sentencing issues. The trial court, as provided by Tenn. Code Ann. § 40- 35-114, found six enh

ancing factor

s: (1) A defendant has a

previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (2) the defendant was a leader in the commission of an offense involving two or more criminal actors; (4) a victim of the offense was particularly vulnerable beca use of age or physical or men tal dis abi lit y; (10) the defendant had no hesitation about committing a crime when the risk t o human life was high; (13) the o ff

ense was committed while on release status from a prior felony conviction; and (18) a victim, under § 39-15-402, suffered permanent

impairment of either physical or mental functions as a result of the abuse inflicted. The defendant argues that the trial court

erred in its application of enhancing factors (2), (4), (10), and (18). 2
This Court’s review of the sentence imposed by the trial court is de novo with a presumption of correctness. See

Te nn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative showing in the re cord that the tria

l judge consider

ed the sentencing

principles a

n d all relevant facts and circumstances. See State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply with the s tat uto ry directives, there is no presumption of correctness and our review is de novo. See State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997).
If our review ref

lects that the tria

l court follow ed the statutory sentencing procedure, imposed a lawful sentence after giving due consideration and proper weig ht to the factors and principles set outunder sentencing law, and the trial court’s findings of fact are adequa t ely supported by the record, then we may not

modify the sentence even if we would have prefer red a different result. See Fletcher , 805 S.W.2d at 789.
In this case, the trial court’s sen tencing determ

ination isnot entitled to the presumption of correctness

because the trial court erred in applying Tenn. Code Ann. § 40-35-114(2), (4), (10), and (18). Factor (2) is not supported by t he record. That is, it is very difficult to surmise from that record whether in fact the defendant was the “leader” in this offense. The two men appeared to act in concert: Both su

rrounded the vic

tim, both beat the victim and both robbed the victim. No additional evidence hi ghlig hting the defendant’s role as “leader” was adduced. As reg ards factor (10), no testimony supports its application. Finally, factor (18) is cle arly inapplicable.
As for defendant’ s argument that f actor (4) was a

lso applied inappr

opria tely, this Court-6-

acknowledges that the issue is close and c hooses no t to apply factor (4). The testimony did not establish that the victim

was ov ercom e due t o his p artic ular v ulner abili ty. In fact, as the victim was attacked by two men fr

om behind with a dea

dly weapon,

it is notclear that any

“vulnerability

” came into play. See , e.g. , State v. Poole , 945 S.W. 2d 93, 96-98 (Tenn. 1997). Therefore, this Court is left with enhancing factors (1) and (13), which were found by the trial court and appropriately applied. Balanced ag ainst these are no mitigat ing factors. Weighing the enhancing factors, we modify the defendant’ s Range II sentence to twenty -nine years.
CONCLUSION
Acco rdi ngly, we affirm the conviction of Especi all y Aggravated Robbery but modify the defendant’s sentence to twenty-nine y ears.