State v. Vickie Herron/Wanda Griffin ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1997
FILED
December 31, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9702-CR-00067
Cecil Crowson, Jr.
) Appellate C ourt Clerk
Appellee, )
)
) SHELBY COUNTY
VS. )
) HON. JAMES C. BEASLEY, JR.
VICKIE R. HERRON, ) JUDGE
WANDA L. GRIFFIN, )
Appellants. ) (Dire ct Ap pea l - Agg ravat ed R obb ery
) and Agg ravated Assa ult)
FOR THE APPELLANT: FOR THE APPELLEE:
TONY N. BRAYTON JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
201 Poplar, Suite 2-01
Memphis, TN 38103 KENNETH W. RUCKER
(Attorney for Vickie R. Herron) Assistant Attorney General
425 Fifth Avenu e North
MICHAEL E. SCHOLL Nashville, TN 37243-0493
200 Jefferson Avenue, Suite 202
Memphis, TN 38103 WILLIAM L. GIBBONS
(Attorney for Wanda L. Griffin) District Attorney General
JAMES A. WAX
Assistant District Attorney
201 Poplar Avenue, Third Floor
Memphis, TN 38103
OPINION FILED ________________________
CONVICTIONS FOR AGGRAVATED ROBBERY AFFIRMED; CONVICTIONS
FOR AGGRAVATED ASSAULT REVERSED AND DISMISSED.
JERRY L. SMITH, JUDGE
OPINION
On June 20, 1996, a Shelby County jury convicted Appellants Vickie R.
Herron and W anda L . Griffin of agg ravated ro bbery an d aggra vated as sault.
After a sentencing hearing on Ju ly 12, 199 6, the trial cou rt senten ced bo th
Appe llants as a Ra nge I stan dard offe nders to consecutive sentences of twelve
years for aggravated robbery and six years for aggravated assault. Appellants
challenge both their convictions and their sentences, raising the following issues:
1) whether the trial court properly denied Appellant Griffin’s motion to sever
her trial from the trial of Appellant Herron;
2) whether Appellants’ convictions for both aggravated robbery and
aggravated assault violate principles o f double jeopa rdy;
3) whether the evidence was sufficient to support Appe llant He rron’s
conviction for aggra vated robbe ry;
4) whether the trial court erred when it admitted credit cards and a credit
card receipt into evidence;
5) wheth er the tr ial cou rt erred when it failed to strike the State’s notice of
enhancement factors;
6) whether the trial court properly sentenced Appellant Griffin.
After a review of the record, we affirm the judgment of the trial court in part and
reverse in part.
I. FACTS
Bettye Knight, a sixty-nine year old resident of Memphis, Tennessee,
testified that on September 28, 1995, she drove her car to a Mem phis grocery
store and parked in the second space from the door. Before Knight could exit her
car, another car driven by Appellant Herron pulled up next to her and parked at
a “funny angle.” Because Knight had recently received her car as a gift, she
waited for the occupants of the other car to get out of firs t so tha t her ca r would
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not be dented. When Appellant Herron and her passenger, Appellant Griffin,
made no attempt to exit their car, Knight got out of her car and loc ked the doo r.
Knight testified that when she walked between the two cars, Griffin reached
out the window of the other car and grabbed Knight’s purse that contained $60
and three credit cards. Knight then lost her balance and fell to the pav emen t.
Herron backed u p her car, pulled forw ard and ran over Knight, and then drove
away. Knight testified that she sustained a broke n arm as we ll as various injuries
to her legs during this incident.
Lieutenant Willia m W alsh of the Memphis Police Department testified that
on October 1, 1995, he received a report that two fema les we re hea rd argu ing in
an apartment building abou t some cred it cards that were tak en in a robbe ry.
Walsh then w ent to th e apa rtmen t buildin g whe re he lo cated Griffin in the parking
lot. Griffin th en too k W alsh in to her a partm ent, wh ere W alsh d iscovered three
credit cards in the name of Bettye Knight. Walsh testified that the credit cards
were in a trash can along w ith some receipts a nd clothin g tags.
II. SEVERANCE
Appellant Griffin contends that the trial court erred when it denied her
motion to sever her trial from that of Appellant Herron after it became clear that
Herron was going to testify. Rules 14(c)(2)(I) and (ii) of the Tennessee Rules of
Criminal Proced ure provid e that the trial court shall grant a severance of
defend ants if deemed appropriate to promote or achieve a fair determination of
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a defendant’s guilt or innoc ence . “W hethe r to gran t a seve rance is within the trial
judge ’s sound discre tion.” State v. Ensley, 956 S.W .2d 502 , 508 (Tenn. Crim.
App. 1996). “The exercise of that discretio n will not be reversed absent an
affirmative showing of prejudice.” Id. “In other words, the record must
demonstrate that the defendant was clearly prejudiced to the point that the trial
court’s discretion ended and the granting of [a] severance became a judicial
duty.” Parha m v. State , 885 S.W.2d 375, 383 (Tenn. Crim. App. 1994) (citation
omitted). “The trial court, however, must not only protect the rights of the
accused, it must also protect the rights of the state prosecution, and ‘when
several persons are charged jointly with a single crim e . . . the state is e ntitled to
have the fact of guilt determined and punishment ass esse d in a sin gle trial,
unless to do so wou ld unfairly prejudice the rights of the defenda nts.’” State v.
Wiseman, 643 S.W .2d 354, 362 (Tenn. Crim . App. 1982 ) (citation omitted).
Griffin essentially contends that severance was required in this case
because after Herron testified, the State cross-examined her about a pre-trial
statement she ha d mad e in which she state d that both Appellants had used
Knigh t’s credit cards to purc hase clothing. H owever, Griffin has failed to indic ate
how she was prejudiced by the cross-examination about this statem ent. Griffin
mere ly makes the concluso ry allegation that evidence of how the proceeds of the
crime were used could no t have been introd uced in sep arate trials. Howeve r,
even before Herron’s testimony, the State had already introduced evidence about
how the proceeds were used. Indeed, Lieutenant Walsh had already testified
that he found Knight’s credit cards, some receipts, and some clothing tags inside
Griffin’s apartm ent. There is no indication that Walsh would not also have given
this testimony in a sepa rate trial. Because Griffin has failed to show that she was
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prejudiced, we hold that the trial court did not abuse its discretion when it denied
the motion for severance.
III. MULTIPLE CONVICTIONS
Appellant Herron contends that convictions for bo th aggravated robbery
and aggra vated assa ult for the same course of conduct violate principles of
double jeopardy. We agree.
In State v. Denton, 938 S.W.2d 373 (Tenn. 1996), the Tennessee Supreme
Court fashioned a method by which courts should analyze a double jeopardy
claim under the Tennessee Constitution:
(1) a Blockburger analysis of the statutory offenses; (2) an analysis, guided
by the princip les of Duch ac[ v. State , 505 S.W.2d 237 (Tenn. 1973) ], of
the eviden ce us ed to p rove th e offen ses; (3 ) a con sideration of whether
there were m ultiple victims or discrete acts; and (4) a comparison of the
purposes of the respective statutes. None of these steps is determinative;
rather the results of each must be weighed and considered in relation to
each o ther.
938 S.W.2d at 381.
Initially, we must start with an analysis of the statutory offenses as provided
in Blockburger v. United States, 284 U.S . 299, 52 S . Ct. 180, 76 L. Ed. 2d 306
(1932). The Blockburger test states that “where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied
to determine w hether there a re two offenses or only one is wh ether each
provision requires proof of an additional fact which the other does not.” 284 U.S.
at 304, 52 S. Ct. at 182. A Blockburger violation is a viola tion of th e dou ble
jeopardy provisions of the constitutions of both the United States and Tennessee.
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In order to prove ag gravated robbery, the State must show that the
defendant intentionally or knowingly committed a theft of property from the person
of another by violence or putting that person in fear and that the victim suffered
serious bodily injury. T enn. C ode An n. §§ 39 -13-401 (a), -402(2) (1997). An
aggravate d assa ult is com mitted where a defe ndan t intentio nally or k nowin gly
causes serious b odily injury to a nother. Tenn. Code A nn. §§ 39-13 -101(a),
-102(a)(1)(A) (1997 & Supp. 1998). The offense of aggravated robbery requires
proof of a theft of p roperty, wh ereas a ggravate d assa ult does n ot. However, the
offense of aggravated assault by causing serious bodily injury to another does not
require proof of any additional element distinct from the elements of aggravated
robbery whe re the victim suffers se rious bodily injury.
Aggravated assault causing serious bodily injury to another is a lesser
included offense of aggravated robbery where the vic tim su ffers se rious b odily
injury. An offense is a lesser included offense “only if the elements of the
included offense are a subset of the elements of the charged offens e and only if
the greater o ffense ca nnot be committed without also committing the lesser
offense .” State v. T rusty, 919 S.W.2d 305, 310 (Tenn. 1996). By committing the
aggravated robbery in this case , Appella nts nece ssarily c ause d serio us bo dily
injury to Knight. See Tenn. Code Ann. § 39-13-101(a)(2). Thus, aggravated
assa ult was a lesser included offense of aggravated robbery under the facts of
this case.
Under the double jeopardy provisions of both the United States and
Tennessee constitutions, a defendant may not be convicted of two offenses if one
is a lesser inc luded o ffense of a nother. Brow n v. Oh io, 432 U.S. 161, 168, 97 S.
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Ct. 2221, 2226–27, 53 L. Ed. 2d 1 87 (197 7); State v. Black, 524 S.W.2d 913, 915
(Tenn. 1975); State v. Green, 947 S.W .2d 186, 189 (Tenn. Crim . App. 1997 ).
Therefore, only one conviction may stand.
Further analysis unde r State v. Denton also indicates that double jeopardy
under the Tennessee Constitution is violated by Appellants’ dual convictions.
The eviden ce us ed to p rove e ach o ffense is virtually id entical. For aggravated
robbery, the state proved that Appellants approached Knight, caused her to fall
down by grabbing her purse, and then caused serious bodily injury by running
over her. The State’s pro of for aggravated a ssault wa s that Ap pellants
approached Knight, caused her to fall down by grabbing her purse, and then
caused se rious bodily injury by runnin g over her. 1
Additionally, the offenses arose out of th e sam e incid ent an d involv ed on ly
one victim. Moreover, the purposes of the statutes are sim ilar in that both
offenses involve causing serious bodily injury to another person. The harm
sought to be pu nishe d in ag grava ted as sault th at cau ses se rious b odily injury is
encompassed in aggravated robbery that causes serious bodily injury, even
though aggravated robbery also involves a theft and a ggravate d assa ult does n ot.
1
The S tate argu es that the evidenc e used to prove e ach off ense w as not ide ntical. First, the S tate
argues that the aggravated robbery convictions were established by proof that when Griffin grabbed
Knight’s purse, Knight fell to the ground and skinned her face. We cannot agree that, without more,
scrapes on the faces constitute “serious bodily injury.” Second, the State argues that the aggravated
robbery convictions were established by proof that Herron seriously injured Knight when she ran over her
while backing the car and that the aggravated assault conviction was supported by proof that Herron
seriously injured Knight when she ran over her again while driving the car forward. There is no such proof
in the record. Knight testified two different times that she was only run over once when the car moved
forward. Contrary to the State’s representations that Herron testified that she ran over Knight twice, the
record indicates th at Herro n denied running o ver Knigh t even on e time.
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W e find that ag grava ted as sault is a lesser included offense of aggravated
robbery under th e particula r facts of this case. We conclude that Appellants’
convictions for both aggravated robbery and aggrav ated a ssau lt violate th eir
protection against double jeopardy under the United States Constitution and the
Tennessee Constitution. Only one conviction can, therefore, be sustained.
According ly, Appellants’ convictions for aggravated assault are reversed and the
charges for that offense are dismissed.2
IV. SUFFICIENCY OF THE EVIDENCE
Appellant Herro n con tends that the evidence was insufficient to support her
conviction for aggra vated robbe ry.3 We disagree.
When an appellant challenges the sufficiency of the evidence, this Court
is obliged to review that challenge accord ing to certa in well-settled principles . A
verdict of guilty by the jury, approved by the trial judge, accredits the testimony
of the State's witnesses and re solves all conflicts in the testimony in favor of the
State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839
S.W.2d 54, 75 (Ten n. 199 2). Alth ough an ac cuse d is originally cloaked with a
presumption of innocence, a jury verdict removes this presumption and replaces
it with one of gu ilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence,
on appeal, the burden of proof rests with Appellant to demonstrate the
2
Although only Appellant Herron raised this issue in her brief, Appellant Griffin’s conviction for
agg rava ted a ssa ult m ust a lso be reve rsed in ord er “to prev ent p rejud ice to the ju dicial p roce ss” a nd in
order “to do substantial justice.” Tenn. R. App. P. 13(b); Tenn. R. Crim . P. 52(b).
3
Both Appellants also contend that the evidence was insufficient to support their convictions for
aggravated assault. Because we have reversed Appellants’ convictions for aggravated assault, we need
not address this issue.
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insufficiency of the convicting evidenc e. Id. On ap peal, “the [S ]tate is entitled to
the strongest legitimate view of the evidence as well as all reasonable and
legitimate inference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evid ence is
contested on appe al, the relevant question for the reviewing court is whether any
rational trier of fact could have found the accused guilty of every element of the
offense beyond a reasonable doubt. Harris , 839 S.W .2d at 75; Jackson v.
Virgin ia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). In
conducting our evaluation of the convicting evidence, this Court is precluded from
reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, this Court may not substitute its own inferences “for those
drawn by the trier of fact from circum stantial evidence.” Id. at 779 . Finally, R ule
13(e) of the Ten ness ee Ru les of A ppella te Pro cedu re prov ides, “fin dings of guilt
in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to suppo rt the finding s by the trier o f fact beyond a
reasonab le doubt.” See also Matthews, 805 S.W.2d at 780.
Herron esse ntially argues that the evidence was insufficient to convict her
of aggravated robbery beca use th ere wa s no e videnc e that s he kn ew tha t Griffin
was going to rob Knight. We disagree. There was ample evidence, when viewed
in the light most favorable to the State, for a rational jury to conclude that Herron
knew that Griffin was going to rob Knight and that Herron acted with the intent of
helping Griffin commit the offense. The record indicates that before they
approached Knight, both Appellants walked around in the grocery store for a long
period of time without picking up or buying anything. Appellants then went
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outside, got in their vehicle, and Herron subsequently drove the vehicle over by
Knigh t’s car and parked at a “funny angle .” After G riffin grab bed K night’s purse,
Herron pulled forward a nd ran over an d seriously injured K night. Therea fter,
Herron and G riffin divide d the m oney b etwee n them and u sed K night’s credit
cards to purchase clothing. A rational jury could infer from this evidence that
Herron and Griffin waited in the parking lot for the purpose of robbing someone,
that Herron drove over and parked by Knight so tha t Griffin could take her purse,
that Herron ran over Knigh t in an a ttemp t to esc ape, a nd tha t Herro n and Griffin
later split up the proce eds o f the rob bery a s they h ad ag reed. A rationa l jury
could certainly infer that Herron had acted with the intent to aid Griffin in the
aggravated robbery of Knight in order to sha re in the proc eeds. See Tenn. Code
Ann. § 39-11-402 (1997) (“A person is criminally responsible for an offense
committed by the co nduct o f anothe r if . . . [a]cting with intent to promote or assist
the comm ission of the offense, o r to bene fit in the proceeds or results of the
offense, the person . . . aids or attempts to aid another person to commit the
offense .”). This issu e has n o merit.
V. ADMISSION OF THE CREDIT CARDS AND RECEIPT
Appellant Griffin contends that the trial court erred when it admitted credit
cards and a re ceipt into e vidence . Specifically, Griffin claims that the credit cards
and receip t were ir releva nt to the State’s case and th us, this evidence was
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inadm issible under Rule 403 of the Tennessee Rules of Evidence4 becau se its
probative value wa s substa ntially outwe ighed b y its unfairly pre judicial effec t.
“The admission of evidence is largely discretionary with the trial judge, and
her discretion will not be disturbed on appeal unless there is clearly an abuse of
that discretion.” State v. Gray, 960 S.W .2d 598, 606 (Tenn. Crim . App. 1997 ).
In this case, we see no reason to disturb the trial court’s ruling. The credit cards
were clearly relevant because they directly linked Griffin with the aggravated
robbery of Knight. The credit card receipt was a lso rele vant be caus e it showed
that Griffin h ad us ed the credit c ards w ithin three hours of the robbery and thus,
showed that Griffin did not merely come into possession of the credit cards at
some later date. Finally, the trial court instructed the jury that they w ere not to
consider this evidence for any other purpose than how it related to the alleged
robbery and as sault of Kn ight. We presume that the jury follows the instructions
of the trial cour t. See State v. Alvarado, 961 S.W.2d 136, 147 (Tenn. Crim. App.
1996). The tr ial cou rt did no t abus e its disc retion w hen it a dmitte d the c redit
cards a nd the re ceipt into e vidence . This issu e has n o merit.
VI. NOTICE OF ENHANCEMENT FACTORS
Appellant Griffin contends that the trial court committed reversible error
when it failed to strike the State’s notice of enhancement factors which was filed
after the trial began. Specifically, Griffin argues that under Tennessee Code
4
Rule 403 s tates that “[ a]ltho ugh relev ant, e viden ce m ay be e xclu ded if its pro bative value is
sub stan tially out weig hed by the dang er of unfa ir prej udic e, co nfus ion of the is sue s, or m islead ing th e jury,
or by considerations of undue delay, waste of time, or needless pre sentation of cumulative evidence.”
Tenn. R. Evid. 403.
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Annotated section 40-35 -202(a) and Rule 12.3 of the Tennessee Rules of
Criminal Proce dure, th e State was re quired to give notice of enhanc ement fac tors
at least ten days before trial. We disagree.
Under section 4 0-35-20 2(a), “[i]f the district attorney general believes that
a defendant should be sentenced as a multiple, persistent or career offender, the
district attorne y gene ral sha ll file a statement thereof with the court and defense
counsel not less than ten (10) days before trial.” Tenn. Code Ann. § 40-35-
202(a) (1997). By its very terms, this statute applies to situations in which the
State seeks to have the court sentence a defendant in a greater range, not
situations in whic h the S tate se eks to have th e cou rt enha nce a sente nce w ithin
a range. In fact, section 40-35-202(b) states that “[i]n all cases following a finding
of guilt, the court may require that: [t]he district attorney general file a statement
with the co urt settin g forth a ny enh ance men t or mitig ating factors the district
attorney general believes should be considered by the court.” Tenn. Code Ann.
§ 40-35-20 2(b)(1 ) (1997 ). Thu s, sect ion 40 -35-2 02 cle arly allow s the filin g of
enhan ceme nt factors “a fter a finding of guilt.”
Under Rule 12.3, “[w]ritten statements of the district attorney giving notice
that the defendant should be sentenced to an enhanced punishment, for an
espe cially aggravated offense, and/or as a persistent offender shall be filed not
less than ten (10) days prior to trial.” Tenn. R. Crim. P. 12.3(a). T his Ru le
applies to notice under section 40-35-202(a), not to notice of enhancement
factors. See Tenn . R. Crim . P. (Adviso ry Com mittee C omm ents). See also State
v. Lowe, 811 S.W.2d 526, 527 (Tenn. 199 1) (stating th at Rule 1 2.3 app lies to
notice unde r section 40-35 -202(a)).
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In this case, the trial court c lassifie d Griffin as a Ran ge I standard o ffender.
In filing its notice of enha nceme nt factors, the State so ught to have the court
increase Griffin’s sentence within the range, the State did not seek to enhance
the sentencing range itself. Thus, neither section 40-35-202(a) nor Rule 12.3(a)
is applicab le to this cas e. This iss ue has no me rit.
VI. LENGTH OF SENTENCE
Appellant Griffin contends that the trial court erroneously imposed a longer
sentence for the aggravate d robbery conviction than she deserves.5 Specifically,
Griffin conten ds that the trial court m isapp lied se veral e nhan cem ent fac tors in
determining the length of her sentence.
“When reviewing sentencing issues . . . including the granting or denial of
probation and th e leng th of se ntenc e, the a ppella te cou rt shall conduct a d e novo
review on the record of such issues. Such review shall be conducted with a
presumption that the determ inations mad e by the court from which the ap peal is
taken are corre ct.” Tenn . Code Ann. § 4 0-35-40 1(d) (199 7). “Howeve r, the
presumption of correctness which accompanies the trial court’s action is
conditioned upon the affirmative show ing in the record tha t the trial court
considered the se ntenc ing prin ciples and a ll relevant fac ts and circu mstan ces.”
State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91). In conducting our review, we
must consider all the evide nce, the presentence report, the sentencing principles,
the enhan cing and mitigating factors, arguments of c ouns el, the a ppella nt’s
5
Griffin also challeng es the len gth of he r aggrav ated as sault sen tence a nd both A ppellants
challenge the imposition of consecutive sentences. Because we have reversed Appellants’ convictions for
aggravated assault, we need not address these issues.
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statements, the nature and character of the offense, and the appellant’s potential
for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.
1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of
demonstrating that the sentenc e is imprope r.” Id. Because the record in this
case indicates that the trial co urt failed to p roperly co nsider the sentencing
principles and all rele vant facts and c ircum stanc es, ou r review is de novo without
a presumption of correctness.
In sentencing G riffin to twelve years for aggravated robbery, the trial court
found that only one mitigating factor applied. The trial court found that mitigating
factor (9) applied because, at some point, Griffin helped the police locate Herron.
See Tenn. Code Ann. § 40-35-113(9) (1997). We agree that none of the other
enumerated mitigating factors of Tennessee Code Annotated section 40-35-113
were applicable.
The trial court found that en hanc eme nt facto r (1) ap plied b ecau se Gr iffin
had a previous history of crimina l conviction s or crimin al beha vior in additio n to
those neces sary to es tablish the approp riate rang e. See Tenn. Code Ann. § 40-
35-114(1) (1997 ). Griffin contends that this factor was inapplicable because her
previous record consisted of only misdemeanor convictions. However, the
application of this factor is not limited to previou s felony co nvictions. See State
v. Millbrooks, 819 S.W.2d 441, 446–47 (Tenn. Crim. App. 1991). Thus, the trial
court correctly app lied this factor.
The trial court found that enha ncem ent fac tor (2) a pplied beca use G riffin
was the lea der in a n offen se invo lving two or mo re crim inal actors. See Tenn.
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Code Ann. § 40-35-11 4(2) (1997). Griffin does not challenge the application of
this factor and we agree that it was correctly applied.
The trial court found that enh ancem ent factor (4) applied because the
victim was particu larly vuln erable becau se of age or disability. See Tenn. Code
Ann. § 40-35-114(4) (1997). In State v. Adams, the Tenne ssee Sup reme C ourt
provided a fram ework for app lication of this factor:
[T]he vulnerab ility enhancem ent relates mo re to the natural physical and
mental limitatio ns of th e victim than merely to the victim’s age. . . . The
factor can be used . . . if the circumstances show that the victim, because
of his age or physical or mental condition was in fact “particularly
vulnerab le,” i.e., incapable of resisting, summoning help, or testifying
against the pe rpetra tor. Th is is a factual issue to be resolved by the trier
of fact on a case by case basis. The State bears the burden of proving the
victim’s limita tions rend ering him or her pa rticularly vulne rable.
864 S.W.2d 31, 35 (Tenn. 1993). In State v. Poo le, the suprem e court stated that
in order for the State to prove that this factor is applicable, “there must be
evidence in the record in addition to the victim’s age.” 945 S.W.2d 93, 96 (Tenn.
1997). In this case, the trial court essentially found that Knight was “particu larly
vulnerable” because she was sixty-nine years old at the time of the robbery.
Indeed, there is no evidenc e in the rec ord that, oth er than her age, Knight had
any other ph ysical or m ental limitatio ns. Bec ause th e State fa iled to me et its
burden of showing that Knight was “particularly vulnerable,” the trial court erred
when it applied this fa ctor.
The trial court found that enhancement factor (5) applied because
Appe llants treated the victim with e xception al cruelty. See Tenn . Code An n. §
40-35-114(5) (1997). In Poole , the supreme court stated that
[E]nhancement factors must be “appropriate for the offense” and “not
themselves essential elements of the offense.” These limitations exclude
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enhancement factors “ba sed on facts which are used to prove the offense”
or “[f]acts w hich e stablis h the e lements of the offense charged.” The
purpose of the limitations is to avoid enhancing the length of sentences
based on factors the Legislature took into consideration when establishing
the range of punishment for the offense.
945 S.W.2d at 98. In this case, the trial court found that Appellants had treated
Knight with exce ptional cru elty because they seriously injured her when they ran
over her with a car. However, this w as the very fact which was used to prove
that Appellants ha d comm itted the offense of ag gravated robb ery by causing
“serious bodily injury” to the victim. See Tenn . Code Ann. § § 39-13-401(a),
-402(2) (1997). Thus, application of this enhancement factor was not
appropriate.
The trial court found that enhancement factors (10) and (16) applied
because Griffin had no hesitation in committing a crime when the risk to human
life was high and the re was g reat pote ntial for bod ily injury to the victim . See
Tenn. Code Ann. § 4 0-35-11 4(10), (16 ) (1997). T his Court has stated that
absent any proof establishing risk to life other than the victim’s, enhancement
factors (10) and (16) are essential elements of the offense of aggravated robbery
and cannot be used for enhancemen t. State v. King, 905 S.W.2d 207, 213
(Tenn. Crim. App. 1995 ). There is no pro of in the record that Appellants placed
the life of anyone other than Knight at risk during the aggravated robbery. Thus,
application of these two enhancement factors was not appropriate.
Even though we hold that the trial court erred in applying some of the
enhancement factors, a finding that enhancement factors were erron eous ly
applied does not equate to a reduction in the sentence. State v. Keel, 882
S.W.2d 410, 423 (Tenn. Crim. A pp. 199 4). Only on e mitigatin g factor ap plies to
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the sente nce fo r aggra vated robbe ry, and we co nclud e that it is entitled to little
weight. Although Griffin eventually told the police abou t Herro n’s invo lveme nt in
the offense, the record indicates that she initially lied to the police and made
several inconsistent sta tements. Fu rther, two enhan cemen t factors are
applicable. Not only was Griffin a leader in this offense, she also has a previous
record of criminal offenses. We conclude that in light of the fact that Griffin has
been convicted of three pr ior theft offen ses, her p rior record is entitled to
significant w eight. Thus, we hold that the twelve year sentence for aggravated
robbery is appropriate in this case.
VIII. CONCLUSION
Because we hold that the convictions for both aggravated robbery and
aggravated assa ult in this case violate principles of double jeopardy, Appellants’
convictions for aggravated assault are reversed and the charges are dismissed.
In all other respects, the judgment of the trial court is affirmed.
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JERRY L. SMITH, JUDGE
CONCUR:
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DAVID G. HAYES, JUDGE
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THOMAS T. WOODALL, JUDGE
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