State of Tennessee v. Donald Curtis Reid

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE v. DONALD CURTIS REID

Direct Appeal from the Criminal Court for Davidson County

No. 97-B-1101 J. Randall Wyatt, Jr., Judge

01C01-9903-CR-00077

No. M1999-00058-CCA-R3-CD - Decided April 28, 2000

The defendant, Donald Curtis Reid, was convicted of aggravated robbery in connection with the

holdup of a Nashville Burger King and sentenced to nine years in the Tennessee Department of

Correction. In this appeal, the defendant asserts that the trial court committed error by admitting

evidence seized from his vehicle pursuant to a traffic stop and subsequent arrest for driving on a

suspended license. He also contends that the evidence was insufficient and that the sentence was

excessive. We find that the search of the defendant's vehicle was proper and that the evidence

obtained as a result thereof was correctly admitted. There being no error, the judgment of the trial

court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

WADE, P.J., delivered the opinion of the court, in which PEAY and OGLE , JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Donald Curtis Reid.

Paul G. Summers, Attorney General & Reporter, Elizabeth T. Ryan, Assistant Attorney General, and

D. Paul DeWitt, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant, Donald Reid, was convicted of aggravated robbery. The trial court

imposed a Range I sentence of nine years in the Tennessee Department of Correction. In this appeal

of right, the defendant presents the following issues for our review:

(1) whether the trial court erred by refusing to suppress evidence

seized from the defendant's car at the time of his arrest;

(2) whether the evidence was sufficient to support a conviction of

aggravated robbery; and

(3) whether the sentence was excessive.

We find no error and affirm the judgment of the trial court.

At 7:15 A.M. on December 26, 1996, Charles Sparkman, the manager of Burger King

on Gallatin Road in Nashville, walked out of the restaurant restroom and was confronted by a

masked individual who announced in a female voice, "This is a robbery." The individual then called

the name, "Curtis," and a second masked individual, whom Sparkman believed to be a male, came

out of the restaurant office armed with a weapon Sparkman described as a black pistol having a

brown handle. The male robber directed Sparkman to the office to open the safe. The female took

the money from the safe and put it in a bag. Sparkman estimated that the robbers took between

$400.00 and $700.00, which included some wrapped coins. The two robbers then left the restaurant

and drove away in what Sparkman described as a dark brown Oldsmobile or Buick, the same car he

had seen earlier that morning in his parking lot. Sparkman then called the police.

Five days later, there was an armed robbery at Lee's Chicken on Gallatin Road. As

the suspects fled the scene, a patrolman gave chase but was unable to make an arrest. A private

citizen, who happened to be outside with his camera, took photographs of the suspects' brown

Oldsmobile during the police chase. The private citizen turned the film into the authorities within

thirty minutes of the pursuit. The photos showed that the vehicle used in the Lee's Chicken robbery

was similar to the car used in the Burger King robbery, a two-tone "80's model Oldsmobile Delta

88 Royale" with a temporary tag in the windshield.

Seven days after the Lee's Chicken robbery, Metro Detective Norris Tarkington

searched the East Nashville area for the vehicle used in the robberies. Near Stratford High School,

he found a vehicle which matched the one in the photograph. Detective Tarkington learned that the

same vehicle, which was driven by the defendant, had been stopped on December 4 because an

officer believed the driver was "casing" West End Avenue for a possible holdup. The detective

stopped the defendant for failing to make a turn signal. Marnita Roberson was a passenger in the

defendant's vehicle at the time of the stop.

Detective Tarkington arrested the defendant for driving on a suspended license and

searched the vehicle. When he looked in the passenger compartment, he found two pellet guns, a

ski mask, some gloves, and coin wrappers for quarters and pennies. While the defendant

acknowledged ownership of the vehicle, he denied owning the pellet guns.

Several weeks later, Ms. Roberson was arrested. After initially denying any

involvement in the robberies, she acknowledged that she and the defendant had robbed the Burger

King. The defendant was arrested for the Burger King robbery a few days after Ms. Roberson's

confession.

Ms. Roberson appeared as a witness for the state at the trial of the defendant. She

testified that she met the defendant, Donald Curtis Reid, through Elizabeth LeMay, who stayed with

her, her three children, and her two sisters, in the Settle Court projects. She identified the

defendant's car from the photograph of the vehicle pursued by the police after the Lee's Chicken

robbery. Ms. Roberson confirmed that she was with the defendant when he was stopped in the West

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End area in early December of 1996 and stated that she knew the defendant by his middle name of

"Curtis." Ms. Roberson described his vehicle as a "beige or a tan Buick . . . a long car with tinted

windows."

She recalled that in the early morning hours of December 26, 1996, she was with the

defendant as he "was riding around . . . going [to] rob something and . . . looking at places and stuff."

Ms. Roberson recalled that the two went into a Wal-Mart at Rivergate and purchased a BB gun. The

defendant also acquired some gloves while at Wal-Mart. She testified that the two then saw the

Burger King on Gallatin Road and the defendant decided to stop. The defendant went to the trunk

and provided Ms. Roberson with a ski mask. He pulled a shirt sleeve with cut eye holes over his

own head. Ms. Roberson testified that the defendant went into the office area when they found the

restaurant empty and that she called for "Curtis" when the manager emerged from the restroom. She

stated that the defendant forced the manager to open the safe and acknowledged that she held the bag

while the manager placed the cash inside. Some of the cash included wrapped coins. Ms. Roberson

testified that she received $200.00 from the robbery. She stated that she used some of the proceeds

for illegal drugs and gave some to her children.

Ms. Roberson confirmed that she initially denied any involvement in the robbery but

ultimately admitted her participation, not only in the Burger King robbery, but in others as well. Ms.

Roberson conceded that she had committed other robberies with other men. She acknowledged that

the defendant himself had been robbed at her apartment just prior to the Burger King robbery by a

person she knew as "Mike Ike." Ms. Roberson denied having "set up" the robbery. She also denied

having any romantic relationship with the defendant.

The defendant, who testified on his own behalf, stated that he stayed at Ms.

Roberson's apartment for approximately three days in December of 1996. He recalled that while

there, he was robbed at gunpoint by a person known to Ms. Roberson. The defendant claimed that

Ms. Roberson had unsuccessfully attempted to recruit him into participating in a robbery. While he

acknowledged having been with Ms. Roberson during late December of 1996 and recalled their trip

to the Wal-Mart, he contended that it was Ms. Roberson who had stolen two BB pistols from the

store. The defendant explained that he had purchased a two-tone Oldsmobile Delta 88 in early

December of 1996 and that at the time of the purchase, there were two BB pistols and some compact

discs in the trunk, those items found by police at the time of his arrest. The defendant contended that

he had loaned Ms. Roberson his vehicle on three different occasions and implied that she would have

had the opportunity to rob the Burger King with the help of someone else.

The defendant claimed that on December 25, 1996, he had gone to his parents' house

and also visited with his aunt. He stated that he later went to the residence of Tonya Hill where he

spent the night. He contended that he was not with Ms. Roberson at the time of the Burger King

robbery and that he had slept until 1:00 or 2:00 P.M. on December 26. The defendant believed that

Ms. Roberson had testified falsely against him because he had told her children's father about being

robbed at her apartment. He believed he had been set up by Ms. Roberson and loaned her his vehicle

afterwards only because he had compassion for her children. The defendant denied that Ms.

Roberson ever referred to him as "Curtis" and claimed that she always referred to him as either

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"Donnie" or "DQ."

I

Initially, while the defendant makes no complaint about the seizure of the vehicle and

its use by the state as evidence, he does contend that the trial court erred by refusing to suppress the

tangible evidence found in the passenger compartment and trunk of his vehicle immediately after

the stop. He argues that he had broken no laws and was not acting suspiciously at the time, and that

the detective had no reason to believe that the vehicle contained contraband. The defendant submits

that the search of the vehicle cannot be justified as either incident to a lawful arrest or for inventory

purposes. In response, the state contends that an investigative stop was warranted and that, upon

learning that the defendant was driving on a suspended driver's license, the seizure of the two pellet

pistols, a ski mask, and the other items were the consequence of a lawful search incident to an arrest

for the license violation.

There was a separate hearing on the motion to suppress. Detective Tarkington

testified that on the date of the arrest, he was looking for the vehicle that appeared in the photographs

taken during the car chase after the Lee's Chicken robbery on December 31, 1996. The defendant's

vehicle was a match. The photographs established that the vehicle had a temporary license tag in

the upper left rear window. They also showed that there was some damage, "a small tear or wrinkle

in the [tinted] rear window. . . ." Detective Tarkington had first seen the defendant's vehicle within

a mile of the Lee's Chicken restaurant. He learned that the defendant, while driving that vehicle, had

been stopped one month earlier on the suspicion that he was "casing" an area for a robbery. After

stopping the defendant in the Stratford High School parking lot regarding the photographs of his

Oldsmobile, Detective Tarkington learned that the defendant did not have a driver's license, arrested

him, and searched the car.

At the conclusion of the hearing on the motion to suppress, the trial court determined

that there was probable cause to arrest the defendant. The trial court determined that the detective

was entitled to search the vehicle incident to the lawful arrest and that there was also a basis for

arrest on a charge of driving on a revoked license. The trial court concluded that the search was

reasonable based upon probable cause and the mobility of the vehicle.

In reviewing a determination made by the trial court upon a motion to suppress

evidence, the findings of fact must be upheld unless the evidence preponderates otherwise. State v.

Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). In State v. Odom, 928 S.W.2d 18 (Tenn. 1996),

our supreme court held as follows:

Questions of credibility of the witnesses, the weight and value of the

evidence, and resolution of conflicts in the evidence are matters

entrusted to the trial judge as the trier of fact. The party prevailing in

the trial court is entitled to the strongest legitimate view of the

evidence adduced at the suppression hearing as well as all reasonable

and legitimate inferences that may be drawn from that evidence.

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Id. at 23. The application of the law to the facts as determined by the trial court is a question of law

which requires de novo review. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Whether

there was an arrest is primarily a question of fact. State v. Crutcher, 989 S.W.2d 295 (Tenn. 1999).

The Fourth Amendment to the United States Constitution and art. I, § 7 of the

Tennessee Constitution restrict official restraints on a person's liberty. There is a right to be free

from unreasonable searches and seizures. The Fourth Amendment is applicable to the states through

the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961).

A warrantless search or seizure is presumed to be unreasonable unless the search or

seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant

requirement. State v. Bridges, 963 S.W.2d 487 (Tenn. 1997). Anytime an officer restrains an

individual, the individual has been "seized" for constitutional interpretation purposes. Hughes v.

State, 588 S.W.2d 296, 302 (Tenn. 1979). An exception to the warrant requirement is a

contemporaneous police search following a lawful arrest. Chimel v. California, 395 U.S. 752, 762-

63 (1969). The state has the burden of establishing by a preponderance of the evidence that the

search and any seizure were justified pursuant to a recognized exception to the warrant requirement.

Coolidge v. New Hampshire, 403 U.S. 443, 445-55 (1971); Hughes v. State, 588 S.W.2d 296 (Tenn.

1979). A police officer who makes a lawful arrest is permitted, incident to the arrest, to search the

defendant and the immediate surrounding area. Chimel, 395 U.S. at 763. One basis for the

exception is that the officer must be allowed to take safety precautions before placing one under

arrest. United States v. Robinson, 414 U.S. 218, 234 (1973). The same principle applies to arrests

of occupants of vehicles. In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court held as

follows:

[W]hen a policeman has made a lawful custodial arrest of the

occupant of an automobile, he may, as a contemporaneous incident

of that arrest, search the passenger compartment of that automobile.

453 U.S. at 460; see also United States v. White, 871 F.2d 41, 44 (6th Cir. 1989); State v. Reed, 634

S.W.2d 665, 666 (Tenn. Crim. App. 1982). Such an automobile search is permissible even when

the arrested person has been placed into the back seat of a squad car. State v. Watkins, 827 S.W.2d

293, 296 (Tenn. 1992).

An arrest is the "taking, seizing, or detaining of the person of another, either by

touching or putting hands on him, or by any act which indicates an intention to take him into custody

and subjects the person arrested to the actual control and will of the person making the arrest." West

v. State, 221 Tenn. 178, 184, 425 S.W.2d 602, 605 (1968) (citations omitted). An arrest may occur

without formal words so long as there is no freedom of movement. 5 AmJur 2d Arrests, § 2 (1995);

Crutcher, 989 S.W.2d at 301-302. A warrantless search may not precede an arrest and serve as part

of its justification. Smith v. Ohio, 494 U.S. 541 (1990); Sibron v. New York, 392 U.S. 40, 63

(1968). A seizure implicating constitutional concerns occurs when, under the totality of the

circumstances, a reasonable person would believe that he was not free to leave. Michigan v.

Chesternut, 486 U.S. 567, 574 (1988).

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A full-scale arrest is one type of police intrusion; a stop is another. In order to

support an investigatory stop, an officer need only establish reasonable suspicion supported by

specific and articulable facts. State v. Foote, 631 S.W.2d 470, 472 (Tenn Crim. App. 1982). In

Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court acknowledged the differences between a search

emanating from an investigative stop and a search incident to arrest. In the latter, the search is

justified by both safety reasons and the need to prevent the disappearance or destruction of evidence.

In the former, the sole justification for the intrusion "is the protection of the police officer and the

others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to

discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Id.

at 29. The ruling in Terry provides that the officer, when in reasonable fear of his or others' safety,

has the authority to conduct "a carefully limited search of the outer clothing . . . in an attempt to

discover weapons which might be used against him." Id. at 30. The detention in an investigatory

stop must be brief absent the discovery of any offense within the scope of the limited search. See

Ybarra v. Illinois, 444 U.S. 85 (1979); State v. Yarbro, 618 S.W.2d 521 (Tenn. Crim. App. 1981).

No search "unlawful at its inception may be validated by what it turns up." Wong Sun v. United

States, 371 U.S. 471, 484 (1963).

In Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court observed as

follows:

On reason and authority, the true rule is that if the search and seizure

without a warrant are made upon probable cause, that is, upon a

belief, reasonably arising out of circumstances known to the seizing

officer, that an automobile or other vehicle contains that which by

law is subject to seizure and destruction, the search and seizure are

valid. The Fourth Amendment is to be construed in the light of what

was deemed an unreasonable search and seizure when it was adopted,

and in a manner which will conserve public interests as well as the

interests and rights of individual citizens.

***

[T]he guaranty of freedom from unreasonable searches and seizures

. . . has been construed . . . as recognizing a necessary difference

between a search of store, dwelling house, or other structure in

respect of which a proper official warrant readily may be obtained

and a search of an . . . automobile for contraband goods, where it is

not practicable to secure a warrant, because the vehicle can be quickly

moved out of the locality or jurisdiction in which the warrant must be

sought.

Id. at 149-153.

In Chambers v. Maroney, 399 U.S. 42 (1970), the high court saw "no difference

between on the one hand seizing and holding a car before presenting the probable cause issue to a

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magistrate and on the other hand carrying out an immediate search without a warrant." Id. at 52.

Later, in Michigan v. Thomas, 458 U.S. 259 (1982), the Supreme Court held that "the justification

to conduct . . . a warrantless search does not vanish once the car has been immobilized; nor does it

depend upon the likelihood that the car would have been driven away, or that its contents would have

been tampered with, during the period required for the police to obtain a warrant." Id. at 261.

In United States v. Ross, 456 U.S. 798 (1982), the Supreme Court reasoned that the

"scope of a warrantless search based on probable cause is no narrower–and no broader–than the

scope of a search authorized by a warrant supported by probable cause." Id. at 823. The court

determined that the scope of a warrantless search would be "defined by the object of the search and

the places in which there is probable cause to believe that it may be found." Id. at 824. In California

v. Carney, 471 U.S. 386 (1985), the high court observed that the expectation of privacy with regard

to an automobile is less than that for a home or an office.

Our supreme court, in State v. Leveye, 796 S.W.2d 948 (Tenn. 1990), adopted the

rule in Carney. The reasons listed for the invocation of the vehicle exception to the warrant

requirement included vehicular mobility, the reduced expectation of privacy, and that the automobile

search was such that a magistrate would have authorized it. Id. at 951-52. If there is probable cause

to search an entire vehicle, an officer's authority extends to the opening of closed containers. Ross,

456 U.S. at 821.

There may also be a warrantless inventory search. Citing South Dakota v. Opperman,

428 U.S. 364 (1976), our supreme court in Drinkard v. State, 584 S.W.2d 650 (Tenn. 1979),

established the following guideline:

[I]f the circumstances that bring the automobile to the attention of the

police in the first place are such that the driver, even though arrested,

is able to make his or her own arrangements for the custody of the

vehicle, or if the vehicle can be parked and locked without

obstructing traffic or endangering the public, the police should permit

the action to be taken rather than impound the car against the will of

the driver and then search it. Just cause to search the driver is not

alone, enough; there must also be reasonable cause to take his vehicle

into custody.

Id. at 653.

The burden is on the state to show that an impoundment was necessary, i.e., that there

were reasonable grounds for the impoundment. Id. at 654. An "inventory search . . . is ostensibly

to protect the occupant of the vehicle against loss of his property or the law enforcement agency

against the occupant's claim for failure to guard against such loss." State v. Gaut, 357 So.2d 513,

516 (La. 1978).

In Drinkard, a passenger was available to take charge of the vehicle. In State v.

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Roberge, 642 S.W.2d 716 (Tenn. 1982), our supreme held that when the circumstances justified an

impoundment, the inventory search included the opening of unlocked containers, such as a duffle

bag in that instance. Before an inventory search, the officer must advise the defendant that the car

will be impounded unless he can provide a reasonable alternative. The extent of the consultation

with the defendant is a factor to determine whether an impoundment is reasonable and necessary.

State v. Lunsford, 655 S.W.2d 921 (Tenn. 1983). An inventory search must not be pretextual. State

v. Glenn, 649 S.W.2d 584 (Tenn. 1983); State v. Cabage, 649 S.W.2d 589 (Tenn. 1983).

Here, the state argues that the evidence is admissible due to a search incident to arrest

and a lawful inventory search. The defendant contends that the state's proof was inadequate to

support the inventory search exception. The state suggests, however, that the stop of the defendant

qualified as an investigatory stop based upon reasonable and articulable suspicions that the

defendant's vehicle had been used in a robbery. The state argues that Detective Tarkington

considered the totality of the circumstances, which included his own objective observations and

information obtained from other police officers, and made rational inferences and deductions based

on the facts and circumstances. Watkins, 827 S.W.2d 294. The state submits that when the

defendant did not have a valid driver's license, Detective Tarkington made a custodial arrest and,

therefore, had the full authority to search the passenger compartment of the motor vehicle

contemporaneously with the arrest. At that point, of course, the detective found the pellet pistols,

gloves, and a ski mask. A further search of the vehicle, including the trunk, yielded coin wrappers

and clothing.

In our view, there was probable cause to seize the vehicle as that used in the Lee's

Chicken robbery. In Horton v. California, 496 U.S. 128 (1990), the Supreme Court approved the

seizure of a vehicle due to its potential evidentiary value, a question initially considered in Coolidge

v. New Hampshire, 403 U.S. 443 (1971). Because the police had probable cause to believe that the

car was an instrument of the crime and, therefore, evidence of the crime, the seizure was permissible.

See United States v. Cooper, 949 F.2d 737 (5th Cir. 1991); Ex parte Payne, 683 So.2d 458 (Ala.

1996) (warrantless seizure of automobile lawful, as it "was in plain view, and the police had probable

cause to believe that the automobile itself was evidence of the crimes"); see also Capraro v. Bunt,

44 F.3d 690 (8th Cir. 1995) ("Because a vehicle is subject to a warrantless search on probable cause

if the vehicle contains evidence of crime, the vehicle should likewise be subject to a warrantless

seizure if the vehicle itself is an instrument of crime."). Within 30 minutes of the robbery, a citizen

provided police with film depicting the fleeing vehicle. The film was processed the same day.

Detective Tarkington had 8 x 10 photographs which showed a rather unique 1984 Delta 88

Oldsmobile, tan in color and with a temporary tag in the back window. There was "a small tear or

wrinkle in the window" which was documented in the photograph. The car seized and the car in the

photograph appeared to be one and the same, "a clear indication of the appearance of the vehicle .

. . [and the] temporary tag." At the time of the stop, the defendant was within a mile of the site of

the robbery which had taken place approximately one week earlier. Detective Tarkington

determined that the defendant, identified as "Donald Curtis Reid," was in a vehicle which had

previously been stopped in the West End of Nashville under the suspicion that the occupant was

"casing" an area for a robbery. There was a female passenger in the defendant's car. When the

officer determined that the defendant owned the vehicle and had been in possession of the vehicle

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since December 4, 1996, there was, in our view, probable cause to arrest the defendant for the Lee's

Chicken robbery. Our assessment is that the warrantless search of the interior was proper as incident

to the arrest. That pretermits any analysis under the inventory search exception or the investigative

stop theory submitted by the state.

A custodial arrest may take place when there is probable cause to believe that a crime

has been committed and that the suspect of that investigation committed the crime. The arrest of the

defendant permitted a search of the immediate area within the vehicle, including the passenger area.

As determined by the trial court, the defendant had been arrested at the time the interior search was

instituted by the detective. There was a need, in our view, for the officer to prevent the destruction

or loss of any possible evidence. See Crutcher, 989 S.W.2d at 301. The evidence does not

preponderate against the trial court's conclusion that the defendant was placed under arrest and that,

incident thereto, the officer made a reasonable search of the immediate area around the defendant.

When the officer found the guns and ski mask in the glove compartment, it was entirely reasonable

to extend the search to the trunk, where other incriminating evidence was found. It was incidental

that Detective Tarkington conducted an inventory of the vehicle, had it towed to the Metro impound

lot, and filed "seizure papers on the car."

II

Next, the defendant argues that the evidence was insufficient to support the conviction

of aggravated robbery. In support of that contention, the defendant points out that the Burger King

manager did not see the temporary tag in the back window of the robber's getaway vehicle. He

contends that Ms. Roberson, who acknowledged her participation in several robberies and initially

lied to the police regarding the Burger King robbery, was not a credible witness.

On appeal, the state is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the

reconciliation of conflicts in the evidence are matters entrusted exclusively to the jury as the trier of

fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). In a criminal case, a conviction

can be set aside only when the reviewing court finds that the "evidence is insufficient to support the

finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). A guilty

verdict, approved by the trial judge, accredits the testimony of the witnesses for the state and

resolves all conflicts in testimony in favor of the state's theory. State v. Hatchett, 560 S.W.2d 627,

630 (Tenn. 1978).

Here, there was direct evidence that the defendant utilized a pellet gun to rob the

manager of the Burger King. Clearly, there was proof to support each of the elements of the crime

of aggravated robbery. Issues of credibility are for the jury. Here, the jury chose to accredit the

testimony of Marnita Roberson and rejected the claims of the defendant. That was their prerogative.

There was also corroborative proof of the defendant's guilt. The defendant's car matched the general

description provided by the restaurant manager. A mask, guns, and gloves were found in his vehicle.

That lent credence to the state's theory. In our view, a rational trier of fact could have found the

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essential elements of the crime beyond a reasonable doubt. Thus, the evidence satisfies the standard

prescribed in Tenn. R. App. P. 13(e) and Jackson v. Virginia, 443 U.S. 307 (1979).

III

As his final issue, the defendant argues that his Range I sentence of nine years was

excessive. He contends that because he had no prior criminal offenses, other than driving violations,

the trial court should have imposed the minimum possible sentence. The defendant specifically

contends that there were two mitigating circumstances:

(1) The defendant's criminal conduct neither caused nor

threatened serious bodily injury; and

(13) the defendant had no significant criminal history and has

never been convicted of a felony.

Tenn. Code Ann. §§ 40-35-113(1), (13). While acknowledging that the defendant had no other

felony offenses, the trial court made reference to other robbery charges and rejected the defendant's

claim that the offense had neither caused nor threatened serious bodily injury. The trial court

concluded that there were two enhancement factors. That is, that the defendant was a leader in the

commission of the offense and that the defendant had no hesitation about committing a crime when

the risk to human life was high. Tenn. Code Ann. §§ 40-35-114(2), (10). The state had also sought

the application of Tenn. Code Ann. § 40-35-114(16): The crime was committed under

circumstances under which the potential for bodily injury to a victim was great.

When there is a challenge to the length, range, or manner of service of a sentence, it

is the duty of this court to conduct a de novo review with a presumption that the determinations

made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is

"conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn.

1991); see State v. Jones, 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate

factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls."

State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission

Comments provide that the burden is on the defendant to show the impropriety of the sentence.

Our review requires an analysis of (1) the evidence, if any, received at the trial and

sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments

of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any

mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and

(7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The record in this case

demonstrates that the trial court made adequate findings of fact.

In calculating the sentence for felony convictions committed before July 1, 1995, the

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presumptive sentence is the minimum within the range if there are no enhancement or mitigating

factors. Tenn. Code Ann. § 40-35-210(c) (1990) (amended July 1, 1995, to provide that the

presumptive sentence for a Class A felony is the midpoint in the range). If there are enhancement

factors but no mitigating factors, the trial court may set the sentence above the minimum. Tenn.

Code Ann. § 40-35-210(d). A sentence involving both enhancement and mitigating factors requires

an assignment of relative weight for the enhancement factors as a means of increasing the sentence.

Tenn. Code Ann. § 40-35-210. The sentence may then be reduced within the range by any weight

assigned to the mitigating factors present. Id.

The defendant, who was 24 years of age at the time of the sentencing hearing,

dropped out of school in the tenth grade but received a graduate equivalent diploma in 1992. Other

than a knee injury sustained in an accident in the jail, for which he required surgery, the defendant

is in relatively good physical condition and has no history of alcohol or drug abuse. The defendant

is single and has never married. He has a supportive family and a reasonably good work record. His

only asset was a 1984 Delta 88 automobile which was confiscated after his arrest.

The trial court observed that the defendant had obtained the pistols from Wal-Mart,

selected the robbery site, and ordered the manager to remove the monies from the safe. That, it

ruled, established a role of leadership. We agree. There was risk of injury because the defendant

brandished the weapon in close proximity to the manager and other employees who were in the

restaurant. Both the manager and Ms. Roberson testified that there were as many as four other

employees in the store at the time of the robbery. The general manager specifically named three of

the individuals. Thus, the trial court reasoned, there was a high risk to the lives of others.

In State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995), this court recognized

the principle that enhancement factors (10) and (16) are elements of the crime of aggravated robbery

and cannot be utilized to enhance a sentence. Nevertheless, this court allowed for the application of

Tenn. Code Ann. §§ 40-35-114(10), (16), where there were other people in a restaurant besides the

victim. Each of the "factors may be applied in situations where individuals other than the victim are

in the area and are subject to injury." Id.; see State v. Makoka, 885 S.W.2d 366, 373 (Tenn. Crim.

App. 1994).

In our view, the trial court did not err in the application of the two enhancement

factors. Moreover, a third, Tenn. Code Ann. § 40-35-114(16), might have been applied. The trial

court properly accepted one mitigating factor and properly rejected the other. Under these

circumstances, the sentence of nine years is entirely appropriate.

Accordingly, the judgment is affirmed.

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