State of Tennessee v. Patrick Pope ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 22, 2010
STATE OF TENNESSEE v. PATRICK POPE
Appeal from the Circuit Court for Maury County
No. 16944 Robert L. Jones, Judge
No. M2009-01473-CCA-R3-CD - Filed August 25, 2010
Appellant, Patrick Pope, was indicted by the Maury County Grand Jury in March of 2007 for
aggravated burglary, aggravated assault, aggravated robbery, and aggravated kidnapping.
After a jury trial, Appellant was found guilty on all counts. Appellant was sentenced to an
effective sentence of eleven years. After a hearing on the motion for new trial, the trial court
entered a judgment of acquittal on the conviction for aggravated kidnapping. The trial court
denied the remainder of the motion for new trial, and Appellant has appealed. On appeal,
the following issues are presented for our review: (1) whether the evidence was sufficient to
support the convictions; (2) whether the accomplice testimony was adequately corroborated;
(3) whether the trial court properly sentenced Appellant. After a review of the record, we
determine that the accomplice testimony was adequately corroborated by direct and
circumstantial evidence, that the evidence was sufficient to support the convictions, and that
the trial court properly sentenced Appellant to an effective sentence of eleven years.
Accordingly, the judgments of the trial court are affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
J.C. M CL IN, JJ., joined.
Rhonda Hooks-Kendricks, Columbia, Tennessee, for the appellant, Patrick Pope.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Mike Bottoms, District Attorney General, and Daniel J. Runde, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On July 28, 2006, Shirley and Hugh Hazard were asleep in their bedroom located at
216 Gardendale in Columbia, Tennessee. Mrs. Hazard had fallen asleep in her bedroom
chair and awoke to hear a “racket” in the kitchen. The sounds that she heard led her to
believe that someone was in their home. Mr. Hazard was bedridden and relied on a
wheelchair to move around as as well oxygen that was suppled by a machine that was located
in the hallway outside their bedroom.
Mrs. Hazard continued to hear noises and sat up “half dozed” as two men appeared
in her bedroom. She was not wearing her glasses but could see that the two men had what
appeared to be t-shirts tied around their faces. The men were also wearing shorts and tennis
shoes. Both of the men had guns. Mrs. Hazard described the men as one being “bigger” with
“a tattoo on his belly” that looked like “vines growing” or “wiggly-looking things.”
The men demanded money, guns, and drugs. Mrs. Hazard assured the men that they
“didn’t have any” but told the men, “if you can find it, you can have it.” The larger man kept
the gun in one hand and had what appeared to be a sock on his other hand. He used the sock
to pull open drawers and wipe down surfaces after he touched them. The larger man was the
one who looked through the house, while the other man “stood back and watched.”
The larger man asked where the phone was located and pulled the cord out of the wall
with his foot. The larger man told Mrs. Hazard that they were going to take her car. He
demanded to know where the keys were located. Mrs. Hazard told him where the keys were
located. After the man with the tattoo found the keys, he made sure they were the right keys.
Mrs. Hazard confirmed that he had found the correct keys, and the man put them in his
pocket.
Mrs. Hazard was afraid to move and told the men to “go ahead and shoot us.” Mr.
Hazard told the men that they were “old and sick” and would “be better off dead.” The men
told them they were not going to shoot them because it was not their “time.”
The men left the bedroom, and Mrs. Hazard could hear the oxygen machine switch
to “on.” One of the men told them that he was “turning it back on.” Soon after that she
heard the men leave. Mrs. Hazard looked out of the window to see the men driving away in
her car, a green Saturn. Mrs. Hazard ran next-door and called her son.
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In addition to the car, the men took Mrs. Hazard’s purse, a billfold, a cell phone, a
Uniden wall phone, a camera, and various prescription medications. Mrs. Hazard was unable
to identify Appellant as the man with the tattoo. Mr. Hazard died approximately two-and-a-
half weeks after the incident.
Officer John Ussery of the Columbia Police Department responded to a call at 7:22
a.m. on July 26, 2006, at the Hazard residence on Gardendale. After talking with the victims,
Officer Ussery was able to determine that the suspects had entered the home through a rear
window to a sunroom. The screen had been removed. Officer Ussery described the
condition of the house as ransacked.
Officer Scott Knudsen received a “be on the lookout for” a green Saturn on the
morning of July 26, 2006. Officer Knudsen located a car matching that description in the
yard of 606 West Fourth Street. Outside the vehicle he noticed two dark-complected,
African-American men. One of the men had tattoos on his stomach. The men were between
five feet seven inches and six feet tall. The men were gone by the time that he confirmed that
this was the missing car. Officer Knudsen received permission from the owner of the
residence for consent to search the property. A Uniden telephone was found in a trash can
near the car and a green Gatorade bottle was found inside the car in the center console. Mrs.
Hazard had told police a bottle of lemon-lime Gatorade had been taken from her refrigerator.
Officer Knudsen could not identify Appellant as one of the men standing near the car.
Officer Knudsen secured the scene and the car was eventually dusted for fingerprints.
A few days after the incident, Appellant, also known as “Patman” or “Pacman,” and
Darius Hawkins were developed as persons of interest. Mr. Hawkins came into the police
department for an interview accompanied by his mother. Mr. Hawkins gave a very detailed
statement that he and Appellant were involved in the incident. The police attempted to get
Appellant to come in for an interview. He agreed to come into the office but never showed
up. After juvenile petitions were taken out against Appellant, he turned himself in and
requested an attorney.
Appellant was eventually indicted by the Maury County Grand Jury in March of 2007
for aggravated burglary, aggravated assault, aggravated robbery, and aggravated kidnapping.
At trial, Darius Hawkins testified against Appellant. According to Mr. Hawkins, the
two men spent the night at Mr. Hawkins’s mother’s house on the night of the incident. They
left the house around 2:00 or 3:00 a.m. and started walking. Appellant gave Mr. Hawkins
a .25 caliber semiautomatic pistol before they left the house. Appellant was carrying a .380
semiautomatic pistol. Mr. Hawkins stated the conversation was about “pulling a lick” or
“going to do a robbery.” Appellant had the idea for the activity.
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Just before dawn, the men randomly chose to burglarize the victims’ home. They took
a screen off of a window and went inside the house. Mr. Hawkins stated that they started
searching for “some money, or something” inside the house when they heard a noise. When
Mr. Hawkins turned around, Appellant was gone. Mr. Hawkins exited the house through the
window and met Appellant walking up the street. They agreed to return to the house to “do
it this time.”
The men again entered the house through the window in the sunroom. They had their
pistols in their hands and had tied their t-shirts around their faces. Mr. Hawkins testified that
he and Appellant entered a bedroom and “seen [sic] two old people in the bed.” According
to Mr. Hawkins, he stayed in the bedroom while Appellant searched the rest of the house.
Mr. Hawkins tried to “keep [the victims] calm.” Appellant had a sock on his hand and used
to it wipe down the things that he touched in order to avoid leaving fingerprints. At one
point, Appellant came back to the bedroom and told Mr. Hawkins to search the house.
Appellant had a plastic bag full of “pill bottles” and a bottle of Gatorade from the
refrigerator. Appellant asked the victims where to find the car keys. Appellant also
unplugged a cordless phone and took it with him. The two men left in the car that belonged
to the victims. Appellant was the driver. Mr. Hawkins took a purse from the house that
contained a billfold. The men drove the car to an address on West Fourth Street where
Appellant threw the pill bottles and “a little pouch” in the trash. Appellant also threw away
the cordless phone.
The house belonged to a man named “GP.” Mr. Hawkins had been at the house
earlier in the day and claimed that there were a lot of African-America men that hung out
there on a regular basis.
Mr. Hawkins and Appellant saw the police approaching and ran to Appellant’s house.
When the police drove by, Mr. Hawkins was standing by the trunk of the car, and Appellant
was standing near the trash can. At Appellant’s house, Mr. Hawkins gave the gun back to
Appellant, and then the men went to sleep.
During the investigation, police obtained fingerprints from the stolen vehicle and the
point of entry at the home. They also collected DNA from the Gatorade bottle found in the
vehicle. The DNA from the Gatorade bottle matched the DNA profile of Appellant. The
fingerprints on the passenger front door and door handle from the vehicle belonged to Mr.
Hawkins. Appellant’s fingerprints were found on the outside window frame and window of
the sunroom at the victims’ residence.
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At the conclusion of the jury trial, Appellant was convicted of aggravated burglary,
aggravated assault, aggravated robbery, and aggravated kidnapping. After a sentencing
hearing, the trial court sentenced Appellant to six years for aggravated burglary, five years
for aggravated assault, eleven years for aggravated robbery, and eleven years for aggravated
kidnapping. The sentences were ordered to run concurrently.
Appellant filed a motion for new trial. After the hearing on the motion for new trial,
the trial court granted a judgment of acquittal as to the conviction for aggravated kidnapping,
in accordance with State v. Anthony, 817 S.W.2d 299 (Tenn. 1991), and State v. Dixon, 957
S.W.2d 532 (Tenn. 1997). The remainder of the motion for new trial was denied. Appellant
filed a timely notice of appeal.
Analysis
Corroboration of Accomplice Testimony
Appellant argues that his convictions are not valid because they were based on the
uncorroborated testimony of accomplice Mr. Hawkins. Specifically, Appellant argues that
the testimony of Mr. Hawkins “was the sole evidence implicating [Appellant] and
establishing [Appellant’s] identity.” The State disagrees, arguing that both direct and
circumstantial evidence in addition to the testimony of Mr. Hawkins established that
Appellant was guilty of the offenses.
We agree with Appellant that convictions may not be based solely upon the
uncorroborated testimony of accomplices. See State v. Robinson, 971 S.W.2d 30, 42 (Tenn.
Crim. App. 1997). However, Tennessee law requires only a modicum of evidence in order
to sufficiently corroborate such testimony. See State v. Copeland, 677 S.W.2d 471, 475
(Tenn. Crim. App. 1984). More specifically, precedent provides that:
The rule of corroboration as applied and used in this State is that there must be
some evidence independent of the testimony of the accomplice. The
corroborating evidence must connect, or tend to connect the defendant with the
commission of the crime charged; and, furthermore, the tendency of the
corroborative evidence to connect the defendant must be independent of any
testimony of the accomplice. The corroborative evidence must[,] of its own
force, independently of the accomplice’s testimony, tend to connect the
defendant with the commission of the crime.
State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (quoting Sherrill v. State,
321 S.W.2d 811, 815 (Tenn. 1959)). In addition, our courts have stated that:
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The evidence corroborating the testimony of an accomplice may consist
of direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. The quantum of evidence necessary to corroborate
an accomplice’s testimony is not required to be sufficient enough to support
the accused’s conviction independent of the accomplice’s testimony nor is it
required to extend to every portion of the accomplice’s testimony. To the
contrary, only slight circumstances are required to corroborate an accomplice’s
testimony. The corroborating evidence is sufficient if it connects the accused
with the crime in question.
Id. at 589 (footnotes omitted). Furthermore, we note that the question of whether an
accomplice’s testimony has been sufficiently corroborated is for the jury to determine. See
id. at 588; State v. Maddox, 957 S.W.2d 547, 554 (Tenn. Crim. App. 1997).
Appellant concedes that there is evidence placing him at the victim’s home in the form
of his fingerprints on the outside window. Additionally, Appellant concedes that somehow
his DNA ended up on a Gatorade bottle found in the victim’s stolen car. In addition to the
direct evidence that Appellant acknowledges, the testimony of Mrs. Hazard indicated that
one of the perpetrators had a tattoo on his stomach. While she could not specifically identify
Appellant as that man, the jury was entitled to consider Mrs. Hazard’s testimony along with
the other physical evidence that placed Appellant at the scene of the crime. When the jury
heard this evidence in addition to the testimony of Mr. Hawkins, they concluded that the
proof supported more than an inference of Appellant’s mere presence or more than a
suspicion of his involvement in this home invasion. Again, we note that the question of
whether an accomplice’s testimony has been sufficiently corroborated is for the jury to
determine. See Griffis, 964 S.W.2d at 588; Maddox, 957 S.W.2d at 554. There is ample
evidence that corroborates Mr. Hawkins’ testimony.
Sufficiency of the Evidence
Appellant challenges the sufficiency of the evidence to sustain his convictions for
aggravated burglary, aggravated assault, aggravated robbery, and aggravated kidnapping.1
The State argues that the “evidence was more than sufficient for the jury to make its findings
of guilty beyond a reasonable doubt.”
1
The trial court granted a motion for judgment of acquittal on the conviction for aggravated kidnapping at the
hearing on the motion for new trial. Appellant includes a challenge to the sufficiency of the evidence for this conviction
in his statement of the issues raised on appeal but does not address this conviction in his brief.
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When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from reweighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions of witness credibility, the weight and value of
evidence, and resolution of conflicts in the evidence are entrusted to the trier of fact. State
v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
A. Aggravated Burglary
Burglary is committed when a person “without the effective consent of the property
owner . . . [e]nters a building other than a habitation . . . not open to the public, with intent
to commit a felony, theft or assault.” T.C.A. § 39-14-402(a). Aggravated burglary is the
burglary of a habitation. T.C.A. § 39-14-403(a). “Aggravated burglary is a property offense
and is completed upon entry into the habitation.” State v. Cowan, 46 S.W.3d 227, 234
(Tenn. Crim. App. 2000) (citing T.C.A. § 39-14-402(a)(1), -403(a); State v. Ralph, 6 S.W.3d
251, 255 (Tenn. 1999)).
Appellant complains that Mrs. Hazard could not identify him as the perpetrator who
invaded her home and that there was no corroboration of Mr. Hawkins’ testimony that would
suggest that Appellant reentered the home after the two men initially entered the sunroom
and left after hearing a noise. Appellant acknowledges that he could be found guilty of
criminal trespassing as the evidence establishes his first entry into the residence.
The evidence, in a light most favorable to the State, establishes that Appellant and his
accomplice, Mr. Hawkins, entered the home of Shirley and Hugh Hazard by removing a
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window screen in the sunroom. Mr. Hawkins heard a noise, turned around, and noticed that
Appellant was gone. When Mr. Hawkins caught up with Appellant down the street, the men
agreed to go back to the house to “do it.” Once back inside the home, the men confronted
the elderly couple at gunpoint, searched the home, and took items from the home as well as
the victims’ car without the Hazards’ effective consent. Appellant’s prints were discovered
on the window of the sunroom. There is ample evidence that Appellant entered the
habitation with the intent to steal what he could. As stated above, the offense of aggravated
burglary is a completed upon entry into the habitation. Cowan, 46 S.W.3d at 234. Appellant
is not entitled to relief on this issue.
B. Aggravated Assault
Tennessee Code Annotated section 39-13-102(a)(1)(B) stated that, “A person commits
aggravated assault who . . . [i]ntentionally or knowingly [‘causes another to reasonably fear
imminent bodily injury’] . . . and . . . [u]ses or displays a deadly weapon . . . .” (quoting
T.C.A. § 39-13-101(a)(2)).
Appellant contends that the evidence was insufficient to sustain a conviction for
aggravated assault because the evidence failed to establish a separate incident of aggravated
assault. Instead, Appellant argues that the assault was incident to the robbery. Once again,
Appellant relies on the lack of corroboration of Mr. Hawkins’s testimony. As an aside,
Appellant contends that if this Court “finds that the evidence was sufficient to uphold the
conviction for aggravated robbery, this Court should find that the aggravated assault is
incidental to the aggravated robbery and maybe should be a lesser included offense.”
We agree with Appellant that the identity of the perpetrator is an essential element of
any crime. State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). However, like any other
requisite element, sufficient proof of the perpetrator’s identity may be established through
circumstantial evidence alone. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). Again, it
is the jury that decides the appropriate weight to be given circumstantial evidence and any
inferences that may be drawn therefrom. Odom, 928 S.W.2d at 23.
Again, the proof at trial consisted of both direct and circumstantial evidence of
Appellant’s involvement in the incident at the home of Mr. and Mrs. Hazard. In addition to
the testimony of accomplice Mr. Hawkins and victim Mrs. Hazard, the forensic evidence
placed Appellant at the scene of the crime with a weapon. Mrs. Hazard testified that the
perpetrator had a tattoo on his stomach but could not say that it was identical to the one that
Appellant had on his stomach. The jury was presented with the evidence and was convinced
that Appellant was indeed the perpetrator. Appellant is not entitled to relief on this issue.
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Appellant makes an additional claim that his due process rights were violated by dual
convictions for aggravated assault and aggravated robbery in violation of Anthony. We
disagree. The Tennessee Supreme Court has made it clear that the due process analysis set
forth in Anthony arises from the broad nature of the Tennessee kidnapping statute and is,
most often, inapplicable in other contexts. See Cowan, 46 S.W.3d at 234; Ralph, 6 S.W.3d
at 256 n.5. Further, “a single aggravated robbery of two victims may support a separate
conviction for aggravated assault, which is also a lesser included offense of aggravated
robbery.” State v. Franklin, 130 S.W.3d 789, 798 (Tenn. Crim. App. 2003) (upholding
convictions for both aggravated assault and aggravated robbery where there were two victims
to the crime). The testimony indicated that both Appellant and Mr. Hawkins were
brandishing guns when they entered the victims’ home. Mrs. Hazard testified that she was
scared by the armed intruders and thought that she was going to be shot. The evidence
supports the conviction for aggravated assault. Appellant is not entitled to relief on this
issue.
C. Aggravated Robbery
Appellant was convicted of aggravated robbery. Robbery is the “intentional or
knowing theft of property from the person of another by violence or putting the person in
fear.” T.C.A. § 39-13-401(a). A robbery becomes aggravated either when the victim is
seriously injured or when the defendant “display[s] . . . any article used . . . to lead the victim
to reasonably believe it to be a deadly weapon.” T.C.A. § 39-13-402(a).
Appellant again challenges the testimony with regard to his identity as the perpetrator
of the crime. Specifically, Appellant argues that he could not be identified by the victim or
by the officer that found the Saturn. As noted above, there was ample evidence from both
forensics and the accomplice to establish Appellant’s identity as the perpetrator. Appellant’s
identity was a question of fact to be resolved by the jury. After examining the testimony, the
fingerprint evidence, and the DNA evidence that linked Appellant to the Gatorade bottle
found inside the stolen vehicle, the jury convicted Appellant as charged despite the inability
of any of the witnesses to specifically identify Appellant. The evidence was sufficient to
support this conviction. Appellant is not entitled to relief on this issue.
Sentencing
Lastly, Appellant challenges his sentence. Specifically, Appellant argues that the trial
court erred by ordering him to serve eleven years in confinement when the trial court
enhanced the sentence by finding that Appellant was the leader in the commission of the
offense, that the victim was particularly vulnerable due to age, and that a firearm was used
in the commission of the offense of aggravated burglary. Appellant argues that his sentence
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is excessive and the trial court failed to make the required findings “to support maximum
sentencing.” The State contends that the trial court properly sentenced Appellant.
“When reviewing sentencing issues . . . , the appellate court shall conduct a de novo
review on the record of the issues. The review shall be conducted with a presumption that
the determinations made by the court from which the appeal is taken are correct.” T.C.A. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s
action 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). We are to also recognize that the defendant bears
“the burden of demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.
In making its sentencing determination, a trial court, at the conclusion of the
sentencing hearing, first determines the range of sentence and then determines the specific
sentence and the appropriate combination of sentencing alternatives by considering: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report;
(3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature
and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on the enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts regarding sentences for similar offenses,
(7) any statements the defendant wishes to make in the defendant’s behalf about sentencing;
and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-210(a), (b), -103(5);
State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). When imposing the
sentence within the appropriate sentencing range for the defendant:
[T]he court shall consider, but is not bound by, the following advisory
sentencing guidelines:
(1) The minimum sentence within the range of punishment is the sentence that
should be imposed, because the general assembly set the minimum length of
sentence for each felony class to reflect the relative seriousness of each
criminal offense in the felony classifications; and
(2) The sentence length within the range should be adjusted, as appropriate, by
the presence or absence of mitigating and enhancement factors set out in §§
40-35-113 and 40-35-114.
T.C.A. § 40-35-210(c) (2006).
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At the outset we note that Appellant committed the criminal offenses at issue in July
of 2006, therefore, the 2005 amendments to the sentencing act apply to our review of his
sentencing. The 2005 amendments to the sentencing act made the application of the
enhancement factors advisory in nature. See T.C.A. § 40-35-114; State v. Jackie Lynn Gray,
No. M2007-02360-CCA-R3-CD, 2008 WL 2579175, at *5 (Tenn. Crim. App., at Nashville,
June 28, 2008), perm. app. denied, (Tenn. Dec. 29, 2008); State v. Troy Sollis, No. W2007-
00688-CCA-R3-CD, 2008 WL 1931688, at *3 (Tenn. Crim. App., at Jackson, May, 2, 2008).
In fact, “[T]he 2005 amendments [to the sentencing act] deleted as grounds for appeal a
claim that the trial court did not weigh properly the enhancement and mitigating factors.”
State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). After a review of the lengthy transcript
from the sentencing hearing, it is clear that the trial court considered the nature and
characteristics of the criminal conduct involved, Appellant’s history and background, the
mitigating and enhancement factors, and the principles of sentencing. See id. at 345-46.
The trial court applied enhancement factor (2), that the defendant was a leader in the
commission of an offense involving two criminal actors. T.C.A. § 40-35-114(2). While the
trial court noted, as pointed out by Appellant, that there was some confusion as to who held
a gun on the victims during the majority of the robbery, the trial court found ultimately that
the “great weight” of the proof supported Appellant as the leader of the offenses as to all but
the kidnapping count, for which the trial court ultimately granted a motion for judgment of
acquittal.
The trial court also applied enhancement factor (4), “the victim was particularly
vulnerable because of age or physical or mental disability.” T.C.A. § 40-35-114(4).
Appellant argues that there is no proof that “her age” supports the application of this
enhancement factor. To the contrary, the trial court noted that Mrs. Hazard seemed to be
“quite healthy” and based the application of this enhancement factor on the physical well-
being of Mr. Hazard, who “was on around-the-clock concentration of oxygen” and required
the use of a wheel chair to get around. The trial court also considered that Appellant
possessed a firearm during the commission of the offense but determined that this
enhancement factor could only be used with respect to the aggravated burglary conviction
because the use of a firearm was a statutory element of the other convictions. T.C.A. § 40-
35-114(9). Appellant does not contest the application of enhancement factor (13), that
Appellant was released on juvenile court supervision at the time of the instant offenses or
that the juvenile adjudication was for an act that would have been a felony offense if
committed by an adult. T.C.A. § 40-35-114(13), (16). Further, Appellant does not challenge
the application of enhancement factor (3), that the offense involved more than one victim,
or (10), that the risk to human life was high, to certain convictions. T.C.A. § 40-35-114(3),
(10). The record supports the existence of each applied enhancement factor and reflects that
the trial court considered all the proper criteria in sentencing, as well as stating the reasons
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for the sentence on the record. The trial court’s imposition of an effective eleven-year
sentence is affirmed. This issue is without merit.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
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JERRY L. SMITH, JUDGE
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