State v. Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995). · Go Syfert
State v. Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995). Cases Citing This Book View Copy Cite
238 citation events (164 in the last 25 years) across 4 distinct courts.
Strongest positive: State of Tennessee v. Joshua Hurt (tenncrimapp, 2021-04-09)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
cited Cited as authority (rule) State of Tennessee v. Joshua Hurt
Tenn. Crim. App. · 2021 · confidence medium
Relying on State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. Charlie Evans
Tenn. Crim. App. · 2020 · confidence medium
While recognizing the difficulty inherent in measuring physical pain, a panel of this court has held that “the enumerated portions of the definition of serious bodily injury should be read as coming from the same class of injuries.” State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. William Ingram
Tenn. Crim. App. · 2018 · confidence medium
On appeal, the State acknowledges that “the victim never specifically used the[] words [extreme physical pain] in her testimony.” However, citing the victim’s testimony, the testimony of other witnesses, and the photographs of the victim’s injuries, the State maintains that “there was proof from which the jury could reasonably infer that the victim suffered extreme physical pain.” In State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Victor Martin
Tenn. Crim. App. · 2018 · confidence medium
Admitting to the difficulty of quantifying physical pain in State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Martavious D. Brooks and Brittany G. Lee
Tenn. Crim. App. · 2018 · confidence medium
Admitting to 15 the difficulty of quantifying physical pain in State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennesse v. Antonio Howard (2×)
Tenn. Crim. App. · 2016 · confidence medium
The State responds that no such proof is required to sustain Defendant‟s conviction, and the victim suffered protracted loss of vision in one eye, constituting serious bodily injury. 7 Defendant relies on State v. Sims, in which this court held that the evidence of the victim‟s injuries was insufficient as a matter of law to support a finding of serious bodily injury based on extreme physical pain or protracted or obvious disfigurement. 909 S.W.2d 46, 49-50 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. Deborah Wen Yee Mark
Tenn. Crim. App. · 2015 · confidence medium
Although the loss of -51- primary teeth is not specifically listed in the statute, we begin with “„the ejusdem generis canon of statutory construction, stating that „the enumerated portions of the definition of serious bodily injury should be read as coming from the same class of injuries.‟” State v. Farmer, 380 S.W.3d 96, 101 (Tenn. 2012) (quoting State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
discussed Cited as authority (rule) NAJO Equipment Leasing, LLC v. Commissioner of Revenue (2×) also: Cited "see"
Tenn. Ct. App. · 2015 · confidence medium
Nance v. Westside Hosp., 750 S.W.2d 740, 743 (Tenn.1988)); State v. Sims, 909 S.W.2d 46, 49 (Tenn.Crim.App.1995).
cited Cited as authority (rule) State of Tennessee v. John Nolan Sunde
Tenn. Crim. App. · 2014 · confidence medium
Id. at 49 (footnotes omitted).
cited Cited as authority (rule) State of Tennessee v. Jerome Johnson
Tenn. Crim. App. · 2013 · confidence medium
He argues that the victim’s injuries in this case involved no more physical pain than the victim’s injuries in State v. Sims, 909 S.W.2d 46, 48 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. Deangelo Thompson
Tenn. Crim. App. · 2013 · confidence medium
App. 1997). -4- Defendant relies on State v. Sims, in which this court held that the evidence of the victim’s injuries were insufficient as a matter of law to support a finding of serious bodily injury based on extreme physical pain or protracted or obvious disfigurement. 909 S.W.2d 46, 49-50 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Timothy A. Baxter
Tenn. Crim. App. · 2013 · confidence medium
Farmer, 380 S.W.3d at 101 ; State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. James Richardson Reece
Tenn. Crim. App. · 2013 · confidence medium
State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. Eddie Leroy Rowlett
Tenn. Crim. App. · 2013 · confidence medium
We conclude that this case is indistinguishable from Farmer. -17- First, the State asserts that the victim suffered from extreme physical pain as a result of the injuries he received at the hands of the Defendant, pointing to Deputy Saltkill’s testimony that the “[p]ain was pretty high, especially the nose area . . . . “ In Farmer, our supreme court cited with approval this court’s opinion in State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. David Earl Scott
Tenn. Crim. App. · 2012 · confidence medium
In Sims, acknowledging the difficulty of quantifying physical pain, we used the ejusdem generis canon of statutory construction to determine that the pain necessary to establish serious bodily injury via extreme physical pain “must be enough to be in the same class as an injury which involves a substantial risk of death, protracted unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use of a bodily member, organ or mental faculty.” State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. Sherri Mathis
Tenn. Crim. App. · 2012 · confidence medium
App. 1995), concluded that the level of pain necessary to establish serious bodily injury via extreme physical pain “must be enough to be in the same class as an injury which involves a substantial risk of death, protracted unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use of a bodily member, organ or mental faculty.” State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. Michael Farmer and Anthony Clark (2×)
Tenn. · 2012 · confidence medium
Admitting to the difficulty of quantifying physical pain in State v. Sims, 909 S.W.2d 46, 49 (Tenn.Crim.App.1995) our Court of Criminal Appeals applied the ejusdem gen-eris canon of statutory construction, stating that “the enumerated portions of the definition of serious bodily injury should be read as coming from the same class of injuries.” The Sims court concluded that the pain associated with the injury suffered by the victim in that case — a broken nose — is not extreme enough to be included in a class of injury that involves a substantial risk of death, protracted unconsciousnes…
cited Cited as authority (rule) Kenneth J. Sigel, M.D. v. The Monarch Condominium Association, Inc.
Tenn. Ct. App. · 2012 · confidence medium
Nance v. Westside Hosp., 750 S.W.2d 740, 743 (Tenn. 1988)); State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. Ryan Love
Tenn. Crim. App. · 2011 · confidence medium
The Defendant-Appellant relies on State v. Sims, in which this court held that the evidence of the victim’s injuries was insufficient as a matter of law to support a finding of serious bodily injury based on extreme physical pain or protracted or obvious disfigurement. 909 S.W.2d 46, 49-50 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Demario Thomas
Tenn. Crim. App. · 2011 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Tommy Earl Jones
Tenn. Crim. App. · 2011 · confidence medium
In State v. Sims, the victim received a broken nose, a laceration across the bridge of her nose, a bruised cheekbone from a blow to her face, and two black eyes. 909 S.W.2d 46, 48 (Tenn. Crim.
cited Cited as authority (rule) Steppach v. Thomas
Tenn. Ct. App. · 2011 · confidence medium
Nance v. Westside Hosp., 750 S.W.2d 740, 743 (Tenn.1988)); State v. Sims, 909 S.W.2d 46, 49 (Tenn.Crim.
cited Cited as authority (rule) State v. Eunyce Saunders
Tenn. Crim. App. · 2010 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State v. Anthony Allen
Tenn. Crim. App. · 2010 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State v. Abdul Odom
Tenn. Crim. App. · 2010 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State v. John Blue
Tenn. Crim. App. · 2010 · confidence medium
This Court is of the opinion the loss of the two teeth constituted “obvious disfigurement” within the meaning of “serious bodily injury.” See State v. Sims, 909 S.W.2d 46, 48-49 (Tenn. Crim.
cited Cited as authority (rule) State v. Stephen Abbott
Tenn. Crim. App. · 2010 · confidence medium
Factors (10) and (16), however, may be applied where "people other than the victim[s]" are present and "are subject to injury." State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
discussed Cited as authority (rule) State v. Eunyce Saunders (2×) also: Cited "see"
Tenn. Crim. App. · 2010 · confidence medium
App., Jackson, Apr. 24, 1998); State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. David Harold Hanson
Tenn. Crim. App. · 2007 · confidence medium
“Extreme physical pain” has been noted as pain severe enough “to be in the same class as an injury which involves a substantial risk of death, protracted unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use of a bodily member, organ or mental faculty.” State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
discussed Cited as authority (rule) Sallee v. Barrett (2×) also: Cited "see"
Tenn. · 2005 · confidence medium
Nance v. Westside Hosp., 750 S.W.2d 740, 743 (Tenn.1988)); State v. Sims, 909 S.W.2d 46, 49 (Tenn.Crim.App.1995).
cited Cited as authority (rule) State of Tennessee v. Brian L. Woods
Tenn. Crim. App. · 2003 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Anthony Pfahler
Tenn. Crim. App. · 2003 · confidence medium
As pointed out in the defendant’s brief, in State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Carlos Monte Waters and Laraiel J. Winton
Tenn. Crim. App. · 2003 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. William Jerry Neal, aka William Jay Neal
Tenn. Crim. App. · 2002 · confidence medium
Tennessee Code Annotated section 39-11-106(a)(34) defines “serious bodily injury” as bodily injury which involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or -5- (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty[.] The defendant relies on State v. Sims, 909 S.W.2d 46, 48 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. James Michael Scott
Tenn. Crim. App. · 2002 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Jimmy M. Millican
Tenn. Crim. App. · 2002 · confidence medium
App. 1995); State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Robbie R. Bailey
Tenn. Crim. App. · 2001 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Lentonio Marcel Swanson
Tenn. Crim. App. · 2001 · confidence medium
App. 1995); State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. Damien Marcess Jackson
Tenn. Crim. App. · 2001 · confidence medium
The trial court applied this factor “because of the large number of other persons who were in close proximity to the victims who were actually injured.” Panels of this Court have reached different conclusions with respect to the applicability of this factor where the potential for bodily injury is not to the victim of the crime, but to other persons in the “zone of danger.” In State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Carl Johnson and Derrick Sutton
Tenn. Crim. App. · 2001 · confidence medium
In State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Sherman Shaw
Tenn. Crim. App. · 2001 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Danny Wayne Ratliff
Tenn. Crim. App. · 2001 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn.Crim.App. 1995).
discussed Cited as authority (rule) State v. Jimmy Harber Jr. (2×)
Tenn. Crim. App. · 2000 · confidence medium
App. 1995); State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. Oneal Sanford
Tenn. Crim. App. · 2000 · confidence medium
Specifically, [w]ith regard to factor (16), this Court has previously held this factor is also properly applicable "in situations where individuals other than -11- the victim are in the area and are subject to injury." State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
discussed Cited as authority (rule) State of Tennessee v. Clarence L. Currie
Tenn. Crim. App. · 2000 · confidence medium
State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State v. Daniel Christian Russell
Tenn. Crim. App. · 2000 · confidence medium
App.), perm. app. denied, (Tenn. -8- 1997); State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
discussed Cited as authority (rule) State v. Reginald Tyrone Donnell
Tenn. Crim. App. · 2000 · confidence medium
App., Nashville, July 1, 1999) (majority of panel finding both enhancement factors (10) and (16) applicable, while rejecting Bingham); Sims, 909 S.W.2d at 50 (holding that like enhancement factor (10), factor (16) may be applied where persons other than the victim are in the area subject to injury).
discussed Cited as authority (rule) State v. John Bradley Lowery
Tenn. Crim. App. · 2000 · confidence medium
We acknowledge this Court has previously held this factor is also properly applicable “in situations where individuals other than the victim are in the area and are subject to injury.” State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
cited Cited as authority (rule) State of Tennessee v. Donald Curtis Reid
Tenn. Crim. App. · 2000 · confidence medium
In State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
discussed Cited as authority (rule) State v. Jason C. Carter
Tenn. Crim. App. · 2000 · confidence medium
App. 1997), the court concluded that the victim who had received “several knots on the back of the head and bruises on the back . . ., a burn on the . . . nose from a light bulb, and a single bite on the arm” had not sustained “serious bodily injury.” Additionally, a “broken nose and a bruised cheekbone” resulting in swelling, loss of teeth, five weeks missed from work, and “extreme physical pain over [the] whole face” did not support a claim of “serious bodily injury.” State v. Sims, 909 S.W.2d 46, 48 (Tenn. Crim.
Retrieving the full opinion text from the archive…
STATE of Tennessee, Appellee,
v.
Ronnie Dale SIMS, Appellant
Court of Criminal Appeals of Tennessee.
May 11, 1995.
909 S.W.2d 46
Jeffrey A. DeVasher, Senior Assistant Public Defender, Nashville, for Appellant., Charles W. Burson, Attorney General and Reporter, Amy L. Tarkington, Assistant Attorney General, Nashville, Victor S. Johnson, District Attorney General, Nick Bailey, Jan Bossing, Assistant District Attorneys General, Nashville, for Appellee.
Welles, Wade, Summers.
Cited by 120 opinions  |  Published

OPINION

WELLES, Judge.

This is an appeal as of right from a conviction on a jury verdict of especially aggravated robbery. The trial court sentenced the Defendant to thirty-five (35) years in the Department of Correction. The Defendant brings two issues in this appeal. His first issue is whether there was sufficient evidence to convict him of especially aggravated robbery. His second issue is whether the trial court erred in its application of statutory enhancement factors to calculate the Defendant’s sentence. We modify the conviction to aggravated robbery and remand for sentencing.

The victim in this case was the hostess/cashier at the International House of Pancakes. On Easter Sunday, in 1992, the Defendant entered the International House of Pancakes around 9:00 p.m. and ordered a cup of coffee to go. When he paid for his coffee he asked the victim for change for a dollar, which she gave him. The Defendant returned around 11:00 pm. and ordered another cup of coffee. After the Defendant paid for the coffee, the victim closed the cash drawer. The Defendant then asked for change for a dollar. When the victim opened the cash drawer, the Defendant put his left hand in the drawer. The victim shut the drawer on the Defendant’s hand and held it with both hands. The Defendant pulled a gun out of his waistband and pointed it at the victim’s face. He told her not to move. She jumped back and took both her hands off the[*48] cash drawer. At this point, according to the Defendant, he struck her and the gun accidentally discharged. The victim testified that she was struck in the face either by the gun itself or by a bullet, but that she was not sure. She fell to the floor. The Defendant yanked the cash drawer out of the register and dumped the money out. While the victim was lying on the floor she started to get up, and the Defendant pointed the gun at her and told her not to move. The Defendant took the money and left the restaurant. The victim was taken to Vanderbilt Hospital for treatment. She had a broken nose and a bruised cheekbone.

I.

The Defendant’s first issue is whether there is sufficient evidence to prove that the victim sustained “serious bodily injury” and, therefore, convict the Defendant of especially aggravated robbery as opposed to aggravated robbery. When an accused challenges the sufficiency of the convicting evidence, this court must review the record to determine if the evidence adduced during the trial was sufficient “to support the finding of the trier of fact of guilt beyond a reasonable doubt.” T.R.A.P. 13(e). This rule is applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App.1990).

In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Nor may this court substitute its inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (Tenn.1956). This court is required to afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Herrod, 754 S.W.2d 627, 632 (Tenn.Crim.App.1988).

Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn.Crim.App.1987). In State v. Grace, 493 S.W.2d 474 (Tenn.1973), the Tennessee Supreme Court said, “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” Id. at 476.

Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, id., the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). This court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the facts contained in the record and the inferences which may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt. Matthews, 805 S.W.2d at 780.

Several witnesses testified at the trial. Some testified as to the victim’s injuries. The victim testified that she received a broken nose and a bruised cheekbone from the blow to her face. She testified that the next day both her eyes were black and blue and her nose was very swollen. She had a bump on her nose until the swelling went down. The victim received a laceration across the bridge of her nose and was told at the hospital to see a plastic surgeon about it. She saw the plastic surgeon twice, but no plastic surgery was needed. She also testified that her two front bottom teeth began to hurt a few days after the incident. She went to a dentist, and he removed her teeth. She now has a partial plate. The dentist did not testify at trial. The victim also testified that she missed five weeks of work and experienced extreme physical pain over her whole face, but especially to her nose.

The paramedic who treated and transported the victim from the restaurant to the hospital testified. He was with the victim for a total of eleven minutes. The victim told him she thought she had been shot during[*49] the incident because the gun went off, and she immediately felt a stinging sensation. He did not notice an entrance wound or an exit wound, but he treated her as if she had been shot. He testified that she did not have any signs of a head injury. Her blood pressure, heart rate and pulse rate were all normal. He also testified that she was alert and oriented, and she had not been rendered unconscious. He testified that she had a hematoma on her left cheek. He documented the laceration as a gun shot wound on his “run ticket,” which the paramedics fill out for each call. He also noted on the run ticket that an empty shell casing from a bullet was on the counter next to the cash register.

The doctor who treated the victim at the hospital also testified. He stated that the victim came to the emergency room with a small laceration over the bridge of her nose, with a significant amount of swelling and bruising, which is indicative of a fractured nose. He said that there was no evidence of an entrance wound and no residue to indicate a close range gunshot wound. He concluded that the injury was not a gunshot wound but a blunt injury to the face. He stated that there was a very small chance that the laceration was a graze wound caused by a bullet. He also confirmed that the victim had a broken nose. The doctor stated that there was a considerable amount of swelling. An x-ray was done of the victim’s head and no bullet was found. The doctor testified that the victim was admitted around 11:15 p.m. and discharged about 1:00 a.m. A surgical band-aid was placed over the victim’s nose to bring the skin edges of the wound together. The victim was given anti-anxiety medication before she was discharged. No medication for pain was prescribed. The doctor stated that sedatives and pain killers were not generally prescribed simultaneously and that the victim’s most urgent need was for a sedative.

Especially aggravated robbery requires both that the robbery be accomplished with a deadly weapon and that the victim suffer serious bodily injury. Tenn.Code Ann. § 39-13-403. Aggravated robbery requires either a deadly weapon or serious bodily injury to the victim. Tenn.Code Ann. § 39-13^02. Serious bodily injury is defined as “bodily injury which involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.” Tenn.Code Ann. § 39 — 11—106(a)(33). The same definition of “serious bodily injury” is also used in aggravated assault, especially aggravated burglary and especially aggravated kidnapping.

The ejusdem generis canon of statutory construction is helpful when construing the enumerated definition of “serious bodily injury.” According to the Sixth Edition of Black’s Law Dictionary, ejusdem generis means when words follow an enumeration of classes of things the words should be construed to apply to things of the same general class as those enumerated. [1] Therefore, the enumerated portions of the definition of serious bodily injury should be read as coming from the same class of injuries. We do not believe that the pain commonly associated with a broken nose is extreme enough to be in the same class as an injury which involves a substantial risk of death, protracted unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use of a bodily member, organ or mental faculty. We admit to the difficulty of quantifying or measuring pain.

While the loss of the victim’s teeth could constitute protracted disfigurement, this loss must be proven to have been caused by the incident beyond a reasonable doubt. This was not done. The victim testified that her bottom two front teeth began to hurt four or five days after the accident. She said she went to a dentist, and he removed her teeth. The dentist did not testify. The doctor, who saw the victim upon her admission to the emergency room immediately after the incident, testified that he would be surprised if the victim’s injury precipitated the need for her teeth to be extracted. He said that there[*50] was neither bleeding in the victim’s mouth nor any evidence of loose teeth upon her examination in the emergency room. This is not proof beyond a reasonable doubt that the incident triggered the loss of the victim’s teeth.

We conclude that there is insufficient evidence to support serious bodily injury and therefore an especially aggravated robbery conviction. We conclude that the conviction must be modified to aggravated robbery.

II.

The Defendant’s second issue is that the trial court erred in the application of three enhancing factors. Even though we remand this case for sentencing on the modified conviction, we address these issues to facilitate any further review and to guide the trial court on sentencing.

The trial court applied five enhancement factors and two mitigating factors in sentencing the Defendant. The Defendant challenges the application of three enhancement factors. The first enhancement factor the Defendant argues should not have been applied is Tennessee Code Annotated section 40-35-114(13)(C), “the felony was committed while on any of the following forms of release status if such release is from a prior felony conviction: ... probation.” The second enhancement factor the Defendant argues should not have been applied is Tennessee Code Annotated section 40-35-114(10), “the defendant had no hesitation about committing a crime when the risk to human life was high.” The last factor the Defendant argues against is Tennessee Code Annotated section 40-35-114(16), “the crime was committed under circumstances under which the potential for bodily injury to a victim was great.”

The Defendant argues that factor thirteen is not applicable because the Defendant was on probation from a misdemeanor, not a felony as the factor requires. We agree. This factor was erroneously applied in the case sub judice.

The Defendant argues that factors ten and sixteen should not be applied in his ease because they are elements of the crime. The Defendant is correct that these factors are elements of the crime. However, there were people other than the victim in the restaurant and therefore, other potential victims. Both factors may be applied in situations where individuals other than the victim are in the area and are subject to injury. See State v. Makoka, 885 S.W.2d 366, 373 (Tenn.Crim.App.), perm, to appeal denied, id. (Tenn.1994) (factor (10) applies when other possible victims are present, the defendant was convicted of attempted murder).

The only enhancement factor which was applied in error is Tennessee Code Annotated section 40-35-114(13)(C), committing a crime while on probation for a felony. The other four^ enhancement factors were properly applied in the case sub judice.

We modify the conviction to aggravated robbery. This case is remanded to the trial court for sentencing on this conviction.

We also point out to the trial court that there is an error in the judgment entered below. The conviction reads that it is for especially aggravated kidnapping, and it should be changed to aggravated robbery.

WADE and SUMMERS, JJ., concur.
1

. The doctrine of ejusdem generis has long been recognized by the Tennessee Supreme Court. See Lyons v. Rasar, 872 S.W.2d 895 (Tenn.1994); Davidson County v. Hoover, 211 Term. 223, 364 S.W.2d 879 (1963); Morgan Bros. v. Dayton Coal & Iron Co., 134 Tenn. 228, 183 S.W. 1019 (1916).