State v. Holly Earls

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER 1997 SESSION
January 16, 1998
Cecil W. Crowson
Appellate Court
Clerk
STATE OF TENNESSEE, ) No. 01-C-01-9612-CC-00506
)
APPELLEE, ) Coffee County
)
v. ) Gerald L. Ewell, Sr., Judge
)
HOLLY LACK EARLS, ) (Attempt to Commit Felony Murder
) and Attempt to Commit Especially
APPELLANT. ) Aggravated Robbery)
FOR THE APPELLANT: FOR THE APPELLEE:
T. Arthur Jenkins John Knox Walkup
Attorney at Law Attorney General & Reporter
111 North Irwin Street 500 Charlotte Avenue
Manchester, TN 37355-0126 Nashville, TN 37243-0497
(Appeal Only)
Lisa A. Naylor
B. Campbell Smoot Assistant Attorney General
District Public Defender 450 James Robertson Parkway
605 East Carroll Street Nashville, TN 37243-0493
Tullahoma, TN 37388-0260
C. Michael Layne
District Attorney General
P. O. Box 147
Manchester, TN 37355
OPINION FILED: _________________________________
AFFIRMED IN PART AND REVERSED IN PART
Joe B. Jones, Presiding Judge
OPINION
The appellant, Holly Lack Earls (defendant), was convicted of
criminal attempt to commit especially aggravated robbery, a Class B
felony, and criminal attempt to commit first degree felony murder by a
jury of her peers. The trial court found the defendant was a standard
offender and imposed a Range I sentence consisting of confinement for
twenty (20) years for attempted first degree murder and ten (10) years for
attempted especially aggravated robbery in the Department of
Correction. The trial court also imposed a $25,000 fine for each count for
a total of $50,000 in fines. The trial court ordered the sentences are to
be served consecutively for an effective sentence of thirty (30) years.
The defendant presents two issues for review. She contends (a) the
evidence was insufficient as a matter of law to convict her of attempt to
commit especially aggravated robbery and attempt to commit first
degree felony murder and (b) her sentence was excessive. After a
thorough review of the record and the briefs submitted by the parties, it
is this court’s opinion the judgment of the trial court should be affirmed
in part and reversed in part.
2
I.
The victim, Grover McCullough, was 82 years of age. He lived
alone. The victim knew the defendant, Holly Lack Earls, and her
husband, Glen Earls, also known as Herbie Earls [Earls]. McCullough had
loaned the Earlses money and sold them cars in the past; McCullough had
also provided financial assistance to the defendant’s mother. The
defendant frequently stopped by the victim’s house from time to time to
check on his well-being.
On February 26, 1995 the defendant and her husband stopped to
visit the victim. Although the defendant usually took her baby when she
visited the victim, she did not do so on this occasion. The victim testified
the defendant’s husband acted “real friendly” and offered to bring in
firewood for the victim. The victim accepted the offer; the victim told the
defendant to sit on the couch. He sat in a chair by a wood stove with his
back to the front door. The victim was surprised to learn the defendant
had left her baby with her mother on this visit.
Herbie Earls brought in one load of firewood through the front door
and went back outside. When he returned, he struck the victim over the
head with an axe handle. He continued to beat the victim. The defendant
had a clear view of her husband’s actions. The victim said the defendant
failed to warn him of the attack by her husband, and she did not look
surprised when the attack occurred. As Earls continued to strike the
victim, the defendant remained on the couch.
The victim attempted to block Earls’s blows. Earls subsequently
3
knocked the victim against the wall and attempted to remove the victim’s
wallet from his front shirt pocket. The victim said he had $1,600 in his
wallet at the time. He was able to kick Earls off and prevent him from
reaching the wallet.
The victim fell to the floor. He accused the couple of coming to rob
him. While the victim was on the floor, he obtained a hand axe and
threatened to strike Earls.
Earls gave up, threw down the axe handle, and left with the
defendant. The victim said he told the defendant, “Holly, you’d better
get him out of here and get him out now.”
The victim suffered head injuries, a broken arm and a broken finger.
He was beaten on the shoulders, legs, and ankles with the axe handle.
After the attack the victim took aspirin and sat down on the couch and
either passed out or fell asleep. He did not awake until the next day. He
drove himself to the sheriff’s office and was taken from there to the
hospital by ambulance where he had surgery on his arm; doctors
implanted a metal plate and screws in his arm.
An officer testified he went to the victim’s house to photograph the
scene and observed blood throughout the living room and kitchen. The
photographs indicate the victim lost a lot of blood especially in the area
of the couch where he either fell asleep or lost consciousness.
At trial, a friend of the defendant’s, Sylvia Walker, reluctantly
testified for the state. Walker was married to Earls’s cousin, Johnny
Walker. She told jurors the couple came to her house after the attack;
they wanted to find Johnny Walker. The defendant was upset.
4
On the stand, Walker claimed to have trouble remembering what
the defendant said during the visit; she also retreated from a statement
she gave to police implicating the defendant. She admitted to avoiding
service of process and not wanting to testify. She ultimately admitted
her statement to police was accurate.1 In her statement she said:
Holly and Herbie Earls came by our place one
night looking for Johnny. Holly said that her and
Herbie had been out at an old mans [sic] house
and, tried to rob him. She said they had hit the old
man in the head with an ax handle and tried to
knock him out but couldn’t do it. They got scared
and left. She wanted Johnny to go back with them
and said Johnny could make a lot of money in just
a matter of 30 minutes. Holly did most of the
talking and Herbie stayed outside working on his
truck.
I tried to get Holly to leave her baby with me
but she wouldn’t do it.
We were living at Travelers Inn at the time. I
learned a few days later that it was Grover
McCullough that they was talking about.
The defendant testified in her own defense. She denied having
knowledge of an attempt to rob McCullough. She had never discussed
the matter with Earls. She knew the victim kept money in his front
pocket. According to the defendant, she encouraged Earls to leave after
he landed the first blow to the victim. She claimed Walker’s statement
was incorrect because Walker had been taking drugs all day and was
“spaced out.” The defendant, who was pregnant at the time, testified she
was afraid of her husband. He had been drinking and taking drugs that
day. She admitted she did not seek medical help for the victim.
1
W er sa that the s
alk id tatemen did no reflect ev
t t erythin s sa to au
g he id thorities.
5
She admitted she had lied to authorities about the attack. She told
authorities Earls’s attack upon the victim was precipitated by the victim
whom she said pinched her on her breast. She lied to protect her
husband.
6
II.
While appellate review is generally limited to the issues presented
for review, the appellate courts of this state are empowered to consider
issues which have not been presented for review. Tenn. R. App. P. 13(b);
Tenn. R. Crim. P. 52(b). See State v. Goins, 705 S.W.2d 648 (Tenn. 1986);
State v. Maynard, 629 S.W.2d 911 (Tenn. Crim. App. 1981); State v.
Harless, 607 S.W.2d 492 (Tenn. Crim. App. 1980).
Rule 13(b), Tennessee Rules of Appellate Procedure, also provides
that an appellate court “may in its discretion consider other issues in
order, among other reasons: (1) to prevent needless litigation, (2) to
prevent injury to the interests of the public, and (3) to prevent prejudice
to the “judicial process.” In addition, Rule 52(b), Tennessee Rules of
Criminal Procedure, provides that this court may notice plain error “at
any time, even though not raised in the motion for a new trial or assigned
as error on appeal . . . where necessary to do substantial justice.” See
State v. Ogle, 666 S.W.2d 58 (Tenn. 1984); Veach v. State, 491 S.W.2d 81(Tenn. 1973); Herron v. State, 3 Tenn. Crim. App. 39, 456 S.W.2d 873(1970), judgment vacated in part, 408 U.S. 937, 92 S.Ct. 2865, 33 L.Ed.2d
756 (1972).
A.
The defendant was convicted by a jury of attempted felony murder
in the perpetration of a robbery. The Tennessee Supreme Court and this
court have held attempt to commit first degree felony murder is not an
7
offense. State v. Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996). The
defendant did not raise this issue in her brief.2
The felony murder provision in effect at the time of the defendant’s
crime stated:
(a) First degree murder is:
****
(2) A reckless killing of another committed in the
perpetration of, or attempt to perpetrate any first
degree murder, arson, rape, robbery, burglary,
theft, kidnapping or aircraft piracy.
Tenn. Code Ann. § 39-13-202(a)(2).3
Criminal attempt requires that a person act with the culpability
required for the offense. Tenn. Code Ann. § 39-12-101.
Recklessness, the mens rea for felony murder, is inconsistent with
desire or intention, the mens rea for attempt. Kimbrough, 924 S.W.2d at
891. “It is impossible to conceive of an attempt where a crime by
definition may be committed recklessly or negligently but not
2
The offense in this case was com mitted in February 1995; the indictment was
returned April 10, 1995 and the trial was held in December 1995. On Novem 2, 1994, this
ber
court issued an opinion in State v. Kimbrough finding that the offense of attempted felony
murder doesnot ex State v. Brian Keith Kimbrough, ShelbyCounty No. 02-C-01-9308-CR-
ist.
00182 (Tenn. Crim. App., Jackson, Novem ber 2, 1994). The Te nnessee S uprem C
e ourt
affirm that holding in its Kimbrough opinion issued June 3, 1996. 924 S.W.2d 888 (Tenn.
ed
1996)
3
TheTennessee General Assembly amended this section in 1995 to removethe word
“reckless” from the felony-murder statute. This became effective July 1, 1995, after the
comm ission of th crime and the return of indictment in this case. The Tennessee Supreme
e
Court noted in Kimbrough that the deletion did “not affect our opinion that the offense of
attempted felony-murder does not exist in Tennessee, since under the new definition the
offense of felony-murder still does not require a specific intent.” Kimbrough, 924 S.W.2d at
890, n.2.
8
intentionally.” Kimbrough, 924 S.W.2d at 891. “‘Although murder may be
committed without an intent to kill, attempt to commit murder requires
a specific intent to kill,’” Kimbrough, 924 S.W.2d at 891 (quoting Braxton
v. United States, 500 U.S. 344, 351, 111 S.Ct. 1854, 1859, 114 L.Ed.2d 385(1991)).
Our supreme court has noted the statutory scheme already provides
for enhanced punishment when bodily injury occurs during a crime.
“Considering that the legislature has already enacted specific offenses
covering situations in which death or injury is threatened or occurs
during the commission of certain felonies, we conclude that to extend
the felony-murder rule to cases in which no death occurs would ‘extend
the scope of the doctrine beyond the pale of its statutory design and
logical underpinnings.’” Kimbrough, 924 S.W.2d at 892.
“We conclude that one cannot intend to accomplish the unintended.
Consequently, the offense of attempted felony murder does not exist in
Tennessee.” Kimbrough, 924 S.W.2d at 892.
Thus, the defendant’s conviction for felony murder is reversed and
dismissed.
B.
This court observes the defendant was indicted for attempting to
kill the victim “unlawfully, intentionally, deliberately and with
premeditation.” The defendant was not indicted for attempted felony
9
murder. The jury was instructed only on felony murder.4
On remand, the defendant may be retried for attempted first degree
murder. When a conviction is set aside because of an error in
proceedings and not because the state failed to prove the defendant
guilty, the defendant may be retried for an offense. State v. Kevin Burns,
Shelby County No. 02-C-01-9605-CR-00170, 1997 WL 418492 (Tenn. Crim.
App., Jackson, July 25, 1997).
In this case, the defendant’s conviction for attempted felony murder
is being reversed because the Tennessee Supreme Court has ruled the
offense does not exist. Burns, Shelby County No. 02-C-01-9605-CR-00170
(Tenn. Crim. App., Jackson, July 25, 1997). The defendant was
prosecuted for a crime which is impossible to commit. Thus, this was a
fundamental error in the proceedings. The defendant was indicted for
attempted first degree premeditated murder. That charge was not given
to the jury so the jury has not considered attempted first degree
premeditated murder. Because the defendant has neither been convicted
nor acquitted of attempted first degree premeditated murder, her retrial
is not prohibited by the principles of double jeopardy. Burns, Shelby
County No. 02-C-01-9605-CR-00170 (Tenn. Crim. App., Jackson, July 25,
1997).
We hold that this matter is to be remanded for the defendant to be
retried on the charge of attempted first-degree murder.
4
There is no explanation in the record for this.
10
III.
The defendant also contends the evidence was insufficient as a
matter of law to convict her of attempt to commit especially aggravated
robbery.
A.
W e a a c s dc a n e t es ffic n yo t e c n icin e id n e t isc ut m s re ie t e
h n n c u e h lle g s h u ie c f h o v t g v e c , h o r u t v w h
r c rdt d temn if t ee id n ea d c da tr l iss ffic n "t s p o th f d gb t etr ro f c
e o o e r i e h v e c d u e t ia u ie t o u p rt e in in y h ie f a t
o g ilt b y dare so a d ub T n R A p P 1 ( ). T i ru isa p a let f d g o g iltb s d
f u e on a n ble o t." en . . p . . 3e hs le p lic b o in in s f u a e
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u sio s o c r in h re ib y f e it e se , h eg t n a e o e iv n h v e c ,
a w ll a a f c a is u sra e b th e id n eaere o e b th t ro fa t n tth c ut. C b a e
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e o e ll o f t a r f h e r f h tae
11
Sn eav rd to g iltre o e t ep s m t no in o e c a dr p c sitwthape u pio
ic e ic f u m v s h re u pio f n c n e n e la e i rsmt n
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f u , h c u e , s h p e n, a h u e h o r f srain h h v e c
in u ie t t s p o th v r icsreu e b t etr r o fa t. Sa v T g l 6 9SW2 9 3 9 4( e n
s ffic n o u p rt e ed t t rn d y h ie f c t te . u ge, 3 . . d 1 , 1 T n .
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9 2. hs o rt i o is r ed t f u u h u ie c f h v e c n s e a ts
c na e int ere oda in u ie t a am t ro la , fo ara n l trie o fa ttof dt a t ea c s d
o t in d h c r re s ffic n, s ate f w r tio a r f c in h t h c u e
isg ilt b y n ar a o a led u t T g l 6 9SW2 a 9 4
u y e o d e s n b o b. u ge, 3 . . d t 1 .
B.
Before an accused can be convicted of attempt to commit
especially aggravated robbery, the state must prove beyond a reasonable
doubt that the accused attempted to intentionally or knowingly take
property from the victim by using a deadly weapon and causing the victim
to suffer serious bodily injury. Tenn. Code Ann. § 39-13-403; Tenn. Code
Ann. § 39-13-401.
The defendant argues there was no medical proof that the victim
suffered serious bodily injury. She also argues she did not have the
requisite intent to attempt to commit especially aggravated robbery.
(1)
Tennessee Code Annotated defines criminal attempt as:
(a) A person commits criminal attempt who, acting
with the kind of culpability otherwise required for
the offense:
****
12
(3) Acts with intent to complete a course of action
or cause a result that would constitute the
offense, under the circumstances surrounding the
conduct as the person believes them to be, and
the conduct constitutes a substantial step toward
the commission of the offense.
(b) Conduct does not constitute a substantial step
under subdivision (a)(3) unless the person’s entire
course of action is corroborative of the intent to
commit the offense.
(c) It is no defense to prosecution for criminal
attempt that the offense attempted was actually
committed.
Tenn. Code Ann. § 39-12-101.
The defendant and Earls went to the victim’s home with the
intention of robbing the 82-year-old man. The defendant and her mother
had had financial dealings with the victim in the past. The defendant
admitted she knew the victim carried money in his front pocket.
The defendant usually took her baby with her to visit the victim.
She did not take the child on the night of the attack. The defendant sat
on the couch and distracted the victim during their conversation until her
husband began beating the victim with an axe handle. The axe handle
constituted a deadly weapon. See Morgan v. State, 220 Tenn. 247, 252,
415 S.W.2d 879, 882 (1967); State v. Terry Logan, Fayette County No. 02-
C-01-9609-CC-00297, 1997 WL 167231 (Tenn. Crim. App., Jackson, April
10, 1997) (a bat is a deadly weapon); State v. Richard Lee Anthony,
Coffee County No. 01-C-01-9504-CC-00115, 1996 WL 63952 (Tenn. Crim.
App., Nashville, February 13, 1996), per. app. denied (Tenn. July 8, 1996)
( a bat is a deadly weapon).
The defendant did not warn the victim of the impending attack, she
13
did not try to stop Earls, and she did not seek medical help for the victim
later.
The statement given by Sylvia Walker implicates the defendant in
the robbery plan. It was the defendant who explained the robbery plan to
Sylvia Walker; and it was the defendant who broached the idea that
Johnny Walker could return to the victim’s house and help the Earlses
complete the act.
A reasonable jury could infer the defendant attempted to
intentionally or knowingly take property from another by using a deadly
weapon. This court will next consider whether the final element - serious
bodily injury - was present.
(2)
“Serious bodily injury” means 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).
In support of her argument that evidence of serious bodily injury
was lacking, the defendant relies on State v. Sims, where this court said
that pain associated with a broken nose is not extreme enough to qualify
as serious bodily injury. 909 S.W.2d 46, 49 (Tenn. Crim. App.), per. app.
14
denied (Tenn. 1995). In Sims this court also said the loss of teeth could
constitute protracted disfigurement, but it must be shown this loss was
caused by the incident beyond a reasonable doubt. 909 S.W.2d at 49.
In State v. Holland this court found the evidence supports the jury’s
findings that the victim suffered serious bodily injury. 860 S.W.2d 53, 59
(Tenn. Crim. App. 1993). The victim suffered a “huge knot” on her head.
Initially it appeared the victim had a fractured skull. A witness said the
victim was in a great deal of pain and also suffered dizziness. The
defendant attempts to distinguish McCullough’s injuries from those in
Holland and argues the injuries to McCullough were not as severe as
those to the victim in Holland.
The defendant also relies on State v. Derek Denton, Shelby County
No. 02-C-01-9409-CR-00186, 1996 WL 432338 (Tenn. Crim. App., Jackson,
August 2, 1996), where this court said suffering strikes to the face, a
blackened eye, an injured lip, and a brief period of unconsciousness did
not constitute serious bodily injury. This court noted the victim’s doctor
did not testify and the victim did not testify she suffered extreme
physical pain.
In this case the victim, a diabetic, suffered a broken arm which
required the insertion of a metal plate and screws. He told jurors he still
had numbness in his arm and reduced strength. He also suffered a
broken finger. He was struck in the forehead and on the top of the head.
The victim said he lost a lot of blood. He either passed out or fell asleep
and continued to bleed. When he awoke he was bloody and sore. He
also suffered injuries to his shoulder, legs, and ankles. He told jurors that
15
he hurt “for a long time.” The victim was hospitalized for a couple days.
The injuries in this case are distinguishable from those in Sims and
Denton. The victim’s testimony meets several definitions of the “serious
bodily injury” requirement.
A reasonable jury could find the injuries imposed a serious risk of
death considering the victim was 82 years old and responsible for
administering his own insulin for diabetes. The injuries could have left
him unable to take his medication. Tenn. Code Ann. § 39-11-106(a)(33)(A).
A jury could also find the victim suffered from protracted
unconsciousness. The victim testified he either passed out or fell asleep
on the couch. The photograph of the couch illustrates he lost a
significant amount of blood while on the couch. Tenn. Code Ann. §
39-11-106(a)(33)(B).
The victim also testified he suffered physical pain as a result of the
injuries. Tenn. Code Ann. § 39-11-106(a)(33)(C). He continues to suffer
numbness and has limited use of his arm as a result of the break and the
surgery. Tenn. Code Ann. § 39-11-106(a)(33)(E).
This court finds there was sufficient evidence to convict the
defendant of attempted especially aggravated robbery.
The issue is without merit.
IV.
The defendant contends her sentence for assault with intent to
commit especially aggravated robbery is excessive. After finding the
16
defendant a standard offender, the trial court imposed a Range I
sentence of twenty (20) years for attempted first degree murder and ten
(10) years for attempted especially aggravated robbery in the Department
of Correction. The trial court also imposed a $25,000 fine for each count
for a total of $50,000. The trial court ordered that the sentences should
run consecutively for an effective sentence of thirty (30) years.
Because this court has dismissed the conviction for attempted
felony murder, the defendant’s argument as to that sentence is moot.
This court will consider the defendant’s argument as to the sentence for
attempted especially aggravated robbery.
A.
W e a a c s dc a n e t ele gha dm n e o sev eo as n n e itist e d t o t is
h n n c u e h lle g s h n t n a n r f r ic f e te c , h uy f h
C ut t c n u t ad nov r v wo t ere odwthape u pio t a " ed t rm aio sm d b t e
o r o o d c e o e ie n h c r i r s m t n h t th ee in t n a e y h
c ut fro w ic t e a p a is t k n a c r c." T n . C d A n § 4 -3 -4 1d T i p s m t n is
o r m h h h p e l a e re ore t e n o e n . 0 5 0 ( ). hs re u pio
"c n it n d u o t e a m t e s o i g in t e re od th t th t l c ut c n id r d th s ne c g
o d io e p n h ffir aiv h wn h c r a e ria o r o s ee e e t n in
pin ip san a relev tfactsan c
r c le d ll an d ircum ce Sa v A h y 8 3SW2 1 6 1 9( e n 1 9 ) T e
stan s." t te . s b , 2 . . d 6 , 6 T n . 9 1. h
pe u pio d e n ta p t th le a c n lu io sr a h db th t l c ut ins ne c gt ea c s do
r s m t n o s o p ly o e g l o c s n e c e y e ria o r e t n in h c u e r
to t e d temn tio s m d b t e tr l c ut w ic ae p d ae u o u c n ve d facts. State v.
h e r i a n a e y h ia o r h h r re ic t d p n n o tro rte
B t r, 9 0SW2 3 5 3 1( e n Cim A p 1 9 ); Sta v. S ith, 8 1SW2 9 2 9 9( e n C . A p
ule 0 . . d 0 , 1 T n . r . p . 9 4 te m 9 . . d 2 , 2 T n . rim p .),
p r. a p d n d( e n 1 9 ) Sa v B n se 8 1SW2 1 3 1 6( e n Cim A p 1 9 ). H w v r t is
e p . e ie T n . 9 4; t te . o e t l, 7 . . d 6 , 6 T n . r . p . 9 3 o e e, h
C ut is r q ir d to g e ge t w ig t t th tr l c ut's d t rm aio o c n o e e fa t a t e tr l
or eu e iv r a e h o e ia o r ee in t n f o tr v rt d cs s h ia
c ut's d t rm aio o th s fa t is pe ic t d u o th w n s s d m a o a d a p a n e w e
o r ee in t n f e e cs r d ae p n e it e se ' e e n r n p e ra c h n
te tify g
s in .
17
Inc n u t gad nov r v wo ase t n e t isC ut m s c n e (a a ye id n er c iv d
o d cin e o e ie f ne c , h o r u t o sid r ) n v e c e e e
a t etr l a d rs n n in h ain , (b) the presene c re ot, ( ) t ep c le o s ne c g ( ) t e
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ag m nso c u s l r laiv t s ne c ga e aiv s ( ) t en tuea dc a ce tic o t eo n e
r u e t f o n e e t e o e t n in lt rn t e , e h a r n h ra t ris s f h ffe s ,
(f) a ym ig t go e h n in f c r , ( ) a ys t m ns m d b t ea c s dinh o nb h lf, a d( )
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thea c s d p t n lo la ko p te t l f r r h b a no tr a e t T n .C d A n § 4 -3 -1 3a d
c u e 's oe tia r c f o nia o e a ilit tio r e tm n. e n o e n . § 0 5 0 n
-2 0 Sa v S ot, 7 5SW2 8 5 8 9( e n Cim A p), p r. a p d n d( e n 1 8 )
1 ; t te . c t 3 . . d 2 , 2 T n . r . p . e p . e ie T n . 9 7.
T e p r c a n in a s ne c im o e b t e tr l c ut h s t e b rd n o e ta lis in t e
h aty h lle g g e t n e p s d y h ia o r a h u e f s b h g h
s ne c i err
e t n e s oneous Sent
. encin C m issio C m e ts to T n . C d A n § 4 -3 -4 1 A h y 8 3
g o m n o mn e n o e n . 0 5 0 ; s b, 2
S .2 a 1 9 B t r, 9 0 SW2 a 3 1 I th c s , t e d fe d n h s th b r e o illu t t g t e
.W d t 6 ; ule 0 . . d t 1 . n is a e h e n a t a e ud n f srain h
se te
n ncesi pos b t t cou a e n o s.
m ed y he rial rt re rro e u
B.
The defendant argues the use of four enhancement factors by the
trial judge was inappropriate.
Attempted especially aggravated robbery is a class B felony. The
range of punishment is eight (8) to twelve (12) years. The trial court
imposed a mid-range sentence of ten (10) years. The trial court found the
presence of two mitigating factors and five enhancement factors.
The trial court found the following enhancement factors:
(4) A victim of the offense was particularly
vulnerable because of age or physical or mental
disability;
(5) The defendant treated or allowed a victim to
be treated with exceptional cruelty during the
commission of the offense;
(6) The personal injuries inflicted upon or the
amount of damage to property sustained by or
taken from the victim was particularly great;
(9) The defendant possessed or employed a
firearm, explosive device or other deadly weapon
18
during the commission of the offense;
(16) The crime was committed under
circumstances under which the potential for bodily
injury to a victim was great.
Tenn. Code Ann. § 40-35-114.
The trial court found the presence of two mitigating factors:
(6) The defendant, because of [her] youth or old
age, lacked substantial judgment in committing
the offense;
(12) The defendant acted under duress or
under the domination of another person, even
though the duress or the domination of another
person is not sufficient to constitute a defense to
the crime.
Tenn. Code Ann. § 40-35-113.
The trial court said the above factors were used to determine the
length of the sentences, but the court failed to specify which
enhancement factors applied to which offenses. Thus, the statutory
presumption of correctness afforded by Tenn. Code Ann. § 40-35-401(d)
does not apply. This court will address each factor without a presumption
of correctness.
C.
The trial court erred in applying enhancement factor (4) regarding
vulnerability. Before a trial court may apply factor (4) to enhance a
sentence within the appropriate range, the State of Tennessee must
prove (a) the victim was particularly vulnerable, State v. Adams, 864
S.W.2d 31, 35 (Tenn. 1993), and (b) the age, physical disability, and/or
mental disability of the victim was a factor during the commission of the
19
crime. State v. Butler, 900 S.W.2d 305, 313 (Tenn. Crim. App. 1994); State
v. Seals, 735 S.W.2d 849, 853-54 (Tenn. Crim. App. 1987). “A person’s age
standing alone may have no bearing on size, strength or vitality.” Thus
unless the State produces evidence of physical or mental limitations at
the time of the offense, along with proof of the victim’s age, it cannot be
presumed that the victim was particularly vulnerable based solely upon
[] age.” State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997). In the context of
this case, the State of Tennessee failed to establish these prerequisites.
The victim, eighty-two years of age at the time, lived alone and was
a diabetic. These facts standing alone, are not sufficient to support the
use of factor (4). Just before the attack occurred the victim had been
bringing in firewood. Despite the fact the victim was initially struck from
behind and beaten, he was able to fend off the attacks and thwart the
robbery attempt. Consequently, the trial court abused its discretion by
applying this factor to enhance the defendant’s sentence within the
appropriate range.
D.
The trial court properly used factor (5) regarding exceptional cruelty
to enhance the defendant’s sentence for attempted especially
aggravated robbery. This factor is not an element of attempt to commit
especially aggravated robbery. Poole, 945 S.W.2d at 98 (exceptional
cruelty is not an element of especially aggravated robbery); State v.
Antonio Byrd, Shelby County No. 02-C-01-9508-CR-00232, 1997 WL 123520
(Tenn. Crim. App., Jackson, January 2, 1997), per. app. denied (Tenn.
September 22, 1997). The phrase “extreme cruelty” is defined as “cruelty
above that needed to effectuate the crime.” State v. Lester Bennett,
Sevier County No. 03-C-01-9403-CR-00104, 1994 WL 683373 (Tenn. Crim.
App., Knoxville, December 8, 1994). This court has noted previously the
“trial court should state what action of the defendant, apart from the
elements of the offense, constituted ‘exceptional cruelty.’” State v.
Goodwin, 909 S.W.2d 35, 45, (Tenn. Crim. App. 1995). The trial court did
not place into the record the justification for this factor.
This court notes the defendant distracted the victim and gave her
husband an opportunity to attack the victim from behind. The defendant
did not seek help for the victim during the attack or afterward. She left
the victim bleeding and beaten at his house where he had no phone to
call for help. See State v. Stanley Dewayne Myers, Blount County No. 03-
C-01-9409-CR-00344 (Tenn. Crim. App., Knoxville, April 13, 1995)
(upholding use of factor (5) in second degree murder when defendant left
victim shot at the situs of shooting and failed to get help.) The victim
testified that after the Earlses left he tried to yell for help from his front
porch, but no one heard him and he returned inside where he either lost
consciousness or fell asleep.
We conclude the actions of the defendant constitute exceptional
cruelty.
E.
21
Enhancement factor (6), the victim suffered personal injuries, is
inherent in the offense of especially aggravated robbery, and thus
attempted especially aggravated robbery, because the crime requires
that the victim suffer serious bodily injury. Therefore, application of that
factor is inappropriate. Byrd, Shelby County No. 02-C01-9508-CR-00232
(Tenn. Crim. App. Jackson, January 2, 1997).
F.
The application of enhancing factor (9) for using a firearm during
the commission of a crime was also improper. The use of a firearm is
inherent in the crime of especially aggravated robbery, and thus
attempted especially aggravated robbery. State v. Samuel Scott Minton,
Bradley County No. 03-C-01-9508-CC-00217, 1996 WL 480859 (Tenn. Crim.
App., Knoxville, August 27, 1996), per. app. denied (Tenn. January 27,
1997).
G.
Enhancement factor (16), that the crime was committed under
circumstances under which the potential for bodily injury was great, is
inherent in the offense of especially aggravated robbery and thus
inherent in attempted especially aggravated robbery. Therefore,
application of that factor is inappropriate. Byrd, Shelby County No. 02-
C01-9508-CR-00232 (Tenn. Crim. App. Jackson, January 2, 1997).
22
In summary, the only enhancement factor that was appropriately
applied was factor (5), regarding treating the victim with exceptional
cruelty.
H.
As with the enhancing factors, the trial court did not specify which
mitigating factors applied to which offenses. Thus, the statutory
presumption of correctness does not apply and this court will consider
each factor without the presumption. This court finds only one mitigating
factor was present, factor (6). Due to the defendant’s youth, she lacked
substantial judgment when committing the offense. The defendant was
eighteen at the time of the offense. She has no juvenile or adult record.
She has two children. The use of this factor was appropriate.
As for factor (12) that the defendant was under the domination of
her husband, there was nothing in the record to support this factor. Sylvia
Walker’s statement to police indicates it was the defendant who related
the robbery plan to Walker and attempted to enlist the help of Johnny
Walker. Thus, the use of factor (12) was not appropriate.
I.
As a standard Range I offender, the range for a Class B felony is
eight (8) to twelve (12) years. Here, there was one mitigating factor and
one enhancement factor. Tennessee Code Annotated § 40-35-210 states
23
in a situation with mitigating and enhancing factors, the sentencing judge
must start at the minimum sentence in the range, enhance the sentence
as appropriate for the enhancement factor and then reduce the sentence
within the range as appropriate. The trial court sentenced the defendant
to ten (10) years for attempted especially aggravated robbery, which was
the midpoint in the range. Given the presence and weight of the
enhancement factor and the mitigating factor, this was not error. A
finding that enhancement factors were erroneously applied does not
equate to a reduction in the sentence. State v. Keel, 882 S.W.2d 410, 423
(Tenn. Crim. App.), p r. a p d n d (Tenn. 1994); see State v. Parker, 932
e p . e ie
S.W.2d 945, 947 (Tenn. Crim. App.), p r. a p d n d (Tenn. 1996); State v.
e p . e ie
Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995). This court notes
that the $25,000 fine was also appropriate under Tenn. Code Ann. § 40-
35-111(b)(2).
The issue is without merit.
V.
The defendant contends that ordering the sentences to run
consecutively was excessive. Because of this court’s findings that the
conviction for attempted felony murder was inappropriate, this issue is
moot.
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________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
___________________________________
WILLIAM M. BARKER, JUDGE
___________________________________
JOE G. RILEY, JUDGE
25