### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE O n R em an d f

ro m the U nit ed

S ta te s S upr em e Co urt

STATE OF TENNESS EE v . JERO ME MAYO

Appeal f rom the Circ uit Court for Montgom ery C ounty No. 40300086 Michael Jones, Judge

No. M2004- 03061-CCA -R3-C D - F iled Septem ber 14, 2007

We first decide d this appeal in 2005. Our de cision was vac ated by the United States Supreme Court

and the c a se wa s r e mand e d to us for re c on sid e ra tio n in lig ht o f C un nin g ham v. Ca lif or nia , 5 49 U. S. --, 127 S. Ct. 856 (2007). We reque sted and re ceive d supplemental brief ing f rom the par

ties addre ssing a

ny Cunningham issues. W hen this case was pre viously befor e this Court, the Def endant challeng e d th e s u f

f ic ie n c y o f th e e v id e n c e to s u s ta in h is a g g r a v a te d r o b b e r y c o n v ic ti o n

. The De fe nd ant r e c e ive d a

n e nh anc e d se nte nc e of e ig hte e n y e ars a s a Rang e I I , mu lti ple of fe nd e r f or thi s

c on vic tio n, bu t the tr ia l c ourt su bs e qu e ntl y

re du c e d h is s e nte nc e to f

if te e n y e ars ba se d u

po n B lake ly

v. Washington, 542 U.S. 296 (2004). Orig inally , the State appe aled the modifie d sentenc e, ar g uing that t h e t ri al court erre d in reduc ing the Def endant’ s sentence , and we ag ree d. Upon furthe r consideration of the matter, we conclude
, and the State now concedes, that sentencing was prope r and af firm the judg ment in its entirety . We reissue our prev i o u s o p i nion as follows with a new

se c tio n d e a lin g wi th t

he Cunnin g ham is su e s.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the cour t, in which N OR MA M C G EE O G LE and J.C. M C L IN , J J ., joined.

Rog e r E . N e ll, Di str ic t Pu bli c De fe nd e r ( on app eal ); Rus se ll A . Chur c h, As sis tant D ist ri c t Pu bli c Def ender (at trial) , Clarksville, Tennesse e, for the appe llant, J erome May o.

Rob e rt E. Coo pe r, J r., At to rney

Gen eral andRe po rt er; Benj ami n A. Ball , As si st ant At to rney Ge ne ra l; JohnW. Ca

rn e y , Di str ic t Attor

ne y Ge ne ra l; and Da

n B ro lli e r, As sis tant D ist

ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

F ac tu al B ac kgr ound The De fenda

nt’s ag g ravated robbery conviction stems from an inc ident in which he a nd three co-de fenda

nts robbed the victim at g unpoint i n Clarksville on Christmas Eve of 2002. The De fe nd ant, Jer ome May o, and thr e e of his fr ie nd s wi tne sse d the vic tim c ra shhis pic ku p tr uc k in to-2-

a uti lity p o le

. I n s te a d

o f a s s is ti n g th e in

ju r e d v ic ti m, th e D e f

e n d an t s to le it e ms f

r o m t h e w rec ked vehicle w hile others in the g roup held the vic tim at gunpoint. The vic tim was “pistol-whipped,” a nd the four perpe trators of the crime f led in a ca r, but wer e quickly

appre hended by

police only

a short distance f rom the crime scene

. Severa l of t he it ems stolen from the victim wer e dis cover ed on the Def endant’ s person a

nd in the car

in which he wa s appre hended.

The De fenda

nt was indicted on one count of e specia lly ag g ravated robbe ry , see Te nn. Code Ann. § 39-13-403, by

a Montg omery

County g rand jury in F ebrua

ry of 2003. The indictment wa s later a mended to cha

rg e the De fenda

nt with only

the offe nse of a g g ravated robb er y acc omplished wi th a de a dly we a po n. Se e Te nn

Cod e Ann. § 3 9- 13 -4 02 (a )( 1) . Wh ile his thr e e c o- defe nd a nts

e nte re d guil ty

ple a s to va

ri ou s o ff e ns e s r e la te d to thi s in c ide nt, the De fe nd ant e le c te d to g o to tr ia l. The De fenda

nt rec eived a

jury trial in September of

2003.

The victim testified t hat he was driving home when someone darte d out in front of him, and when he swerve d to miss t his person, he hit a telephone pole. The victim admitted he ha d consumed one bee r, but denied that h e wa s i n t o x icated. I n the ac cident the victim hit his head ag ainst the steeringwhee l, and was bleeding from the injuries to his face . Acc ording to the victim, “four blac k males” a pproac hed him shortly afte r the a ccide nt. The victim first thought they came to rende r aid, but soon learned

th e y w e r e in te n t o nr o b b in g h im

. T h e v ic ti m s a id o n e o f th e me np u ll e d

a g u n, althoug h he wa s not sure which one , and the others stole items f rom his truc k. Also, one dema nded his w allet. The victim testified that he first fac ed the g unman, then looked a way for a moment, and when he turned ba ck towar ds the g unman he wa s “pistol wh i p p ed
, ” o r struck a cross his fore head wi th t he g un

. Th e vic timthe n s tum ble d a lon g the str e e t un til a loc a l r e sid e nt a llo we d h im the us e of a phone . The victim first ca lled his girlf riend, a nd then ca lled the police.

The victim testified that he r ecog nized the Defe ndant as one of the four individuals who robbed him, and spe cifica lly reme mbere d that the Defenda nt was ca rry ing a small flashlight during the robbe ry . The items stolen in the robber y consisted of an in-dash CD play er, se vera l CDs, and,

acc ording to the victim, his cell phone. The victim de scribed his injuries as a re sult of the incident as a “ slight conc ussion and a broke (sic) nose , a busted lip a nd of course , my scar

that Ihave now fo r t he re st o f my

lif e .” Ho we ve r, on

c ro ss- e xami na

tio n, the vic tim state d that the inj ur ie s to his no se and mouth wer e possibly

due to the automobile acc ident. He a lso admitted that while he wa s “not sure” which of the four men he ld the g un, he wa s sure it was not the De fenda nt.

Whil e the De fenda

nt admitte d h i s involvement in the incident, including his theft of the victim’s property , his version of the e vents diffe red f rom the victim’s testimony . The Defe ndant testified that he wa s sitti ng in a car with three of his friends w hen they “hea rd a sque ak, like tires

scre aming on their brakes and the n we hear d a loud cr ash, boom! . . . [A]nd t hen we seen a car that

was wr apped a

round a pole .” The Def endant a nd his friends we nt to investigate . Wh en the Def endant sa w the victim, he im mediately observe d that he was drunk, and told the vi ctim this. The victim confirmed his intox icated state by stating “ I ’m full of it.” The vic tim asked the De fenda nt if he c ould use his phone, but the Defenda nt ref used because the victim was bloody . The De fenda nt-3-

and his frie nds then returne d to the car in w hich they wer e previously seate d, and re mained ther e for about five minutes.

The De fenda

nt further testified that af

ter a bou t fi v e mi nutes, he re turned to the wr ecke d

ve hic le a lon e and be g an to re mov e the CD pla y e r f ro m th e da shof

the wr e c ke d v e hic le . T he vic tim
, acc ording to the Def

endant, was no longe r by his ve hicle but ha d walked on dow n the stree t. The Def endant testified that he neve r possessed a wea pon, and neve r eve n saw a g un that night until after the robber

y was over and he was riding in a ca r with his three f

riends. The Def

endant state d that as they wer e in the ca

r flee ing the scene , h i s co-de fenda nt, Burt Killins, told him that he had hit the victim with the butt of a g un. The Defenda nt stated t hat he stole a C D pl ay er, se vera l CDs and the fac eplate of the vi ctim’s cell phone from the victim’s wre cked vehicle, but the victim was not pre sent at the time and he had no knowledg e of the use of a wea pon.
Throug h the testimony

of four Clarksville police off

icer s and detec tives involved in the case
, evidenc e was prese nted which r evea led that the De fenda nt and his three c o-def

endants we re appre hended w hen the c ar in which they wer e flee ing ran a stop sig n and almost hit a police cruiser

. The victim had only moments e arlier place d a call to the police, who discove red him standing in the
str e e t w ithhis fa c e ble e din g . H e wa s d e sc ri be d a s “ up se t” and “ c on fu se d, ” bu t ma

na g e d to g ive to the pol ice a descr iption of hi s assailants. This descr iption matched the occupa nts of the vehicle that

near ly hit the police ca

r only a short distance awa

y , and the f

our men we re a

rre sted. The De fenda

nt

was sea rche d when he was plac ed under arr est. The Def endant had on his person “se vera l knives,” a blac k flashlig ht, severa l CDs, and a ce ll phone. The victim’s CD play er a nd a handgun wer e found in the car in which the De fenda

nt was appr ehende d.

At the conc lusion of the trial, the j ury returne d a verdict of guilty for the c harg ed off

ense of

a g g ra vate d r ob be ry . A sen te nc ing he ari ng wa s con du c te d in Nov e mbe r of 20 03 , at wh ic h the State

and de fe ns e a g re e d th a t th e De fe nd ant’ s p rior cri mina l r e c or d r e qu ir e d th a t he be se nte nc e d a s a Rang e I I
, multipl e offe nder. The trial court f ound no applicable mitigating fac tors, but determined that th e De fe nd ant’ s p re vio us his tor y of c ri min a l c on vic tio ns a

bo ve that nec e ssa

ry to es ta bli shhis
rang e, as w ell as h i s h i s t ory of unwillingne ss to comply with conditions of a sentenc e involving rele ase into the c ommunity , war rante d enhanc ement above t he twelve y ear presumptive sente nce f or his Class B felony

offe nse. The trial court im posed a sentenc e of eig hteen y ear s to be serve d in the Tenne ssee De partment of Corr ection.

The De fenda

nt filed a motion for ne w trial in November of 2003, and an a mended motion in D e c e mbe r o f 2 00 4, arguin g , amon g oth e r iss ue s, that th e Un ite d St a te s Su pr e me Court ’s B lake ly decision pre cluded the D efe ndant’s enhance d sentenc e. After a hea ring on the new tr ial motion, the trial court uphe ld t

h e D e f e n d a nt’s conviction, but issued an ame nded judg ment loweringhis sentence fr om e ig hte e n y e ars to f

if te e n y e ars . B oth

the De fe nd ant a

nd the State tim e ly

fi le d a no tic e of a pp e a l.

AN AL YSI S The De fenda

nt asserts that there is insufficient evidence for any rational trier of fa ct to find be y on d a re a so na ble do ub t th a t he is guil ty of the of fe ns e of a g g ra vate d r ob be ry . In s up po rt of thi s-4-

a sse rt ion , th e De fe nd ant a rgue s th a t he did

no t a c c omp lis h th e the ft s w itha de a dly we a po n b e c a us e he neve r per sonally

held the g un or injured the victim. Additionally , the Def endant a rg ues that the trial court did not er

r in reduc ing his sente nce f rom eig hteen to fifte en y ear s.

I. Su ff iciency Tenne ssee Rule of Appellate Procedur e 13(e) presc ribes that “[f]i ndings of g uilt in cr iminal actions whe ther by the t rial cour t or jury shall be set aside if the evide nce is insuffic ient to support the finding s by

the trier of

fac t of g uilt bey ond a re asonable doubt.” A convic ted cr iminal defenda nt who challeng es t he sufficiency of the e vidence on appea l bear s the burden of demonstrating why

the evidenc e is insufficient to support the ve rdict, bec ause a v erdic t of g uilt destroy s the presumption of innoce nce a

nd imposes a presumption of guilt. See State v. Eva ns, 108 S.W .3d 231, 237 (Tenn. 2003); State v. Carruthe rs, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982) . This Court must reje ct a c onvicted cr iminal defenda nt ’s ch al leng e to the sufficie ncy

of the e vidence if, afte r consider ing the evidenc e in a lig ht most favora ble to the
prosec ution, we deter

mine that any

rational trier of fac t c ould ha ve found the essential ele ments of the cr ime bey ond a re asonable doubt. See Jackson v. Virg inia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

On a pp e a l, t he State is e nti tle d to th e st rong e st l e g iti ma te vie w o f t he e vid e nc e and

a ll

rea sonable a

nd leg itimate infere nces which may be drawn t here from. See Ca rruther s, 35 S.W .3d at 558; Hall, 8 S.W .3d at 599. A g uilty verdic t by the t rier of fac t acc redits the testimony of the State’s wi tne sse s and re so lve s all c on fl ic ts in the e vid e nc e in favo r of the pr os e c uti on ’s the or y . Se e State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1 9 9 7 ). Que stions about the cre dibilit y of witnesses, the weig ht and value of the evidence, as well as all fac tual issues raised by the evidenc e ar e re solved by the trier of

fac t, and this Court will not re- weig h or re- evaluate the evidenc e. See Evans, 108 S.W .3d at 236; Bla

nd, 958 S.W .2d at 659. Nor w ill thi s Court substi tute i t s o wn infere nces dr awn f rom circ umstantial e vidence for those draw n by the trier of fac t. See Evans, 108 S.W .3d at 23 6-37; Carruthe rs, 35 S.W.3d at 557.

I n th is c a se , th e a g g ra

vate d rob be ry c ha

rg e re qu ir e d the State to pr ov e be y on d a re a so na ble doubt that the Def

endant “[a] ccomplished” his robbery of the victim “with a de adly wea pon.” Te nn. Cod e Ann. § 39 -1 3- 40 2( a )( 1)

. Rob be ry in Te nn e sse e is the “ int e nti on a l or kn ow ingthe ft

of pr op e rt y from the pe rson of a

nother by violence or

putting the pe rson in fea r.” Te nn. C o d e Ann. § 39-13- 401(a)

.

The D e f e n d an t ar g u e s th a t b e c a

u s e th e v ic ti m te s ti f

ie d th a t th e D e f

e n d an t w a s n o t th e one who held the gun, the dea dly wea pon element of ag g ravated robbe ry could not be attributed to the Def endant. Additionally
, the Defenda nt also argues that there was insuffic ient evidenc e to convict him of ag g ravated robbery based on a theory of criminal responsibility beca use he acted alone in the theft, and did not eve n know about the gun until the e vent was over. The Def endant f urther states that his theft and the other person’ s use of a

wea pon wer e “indepe ndent of ea ch other ” and “ aside from [the victim’s] testimony
, there is no evidenc e to sug g est otherwise.” We find the Def endant’ s arguments are misplaced.-5-

Th e e vi d e n c e c o nta ine d in the re c or d o n a

pp e a l de mon str a te s th a t th e De fe nd ant i nte nti on a lly de pr ive d th e vic timof

his pe rs on a l pr op e rt

y . T he De fe nd ant a dmi tte d th at he stol e the ite ms i n qu es t i o n

. T h e e v i d en ce al s o s u p p o rt s t h e j u ry ’s fi n d i n g t h at t h e r o b b ery wa s ac co mp l i s h edt h ro u gh vio le nc e or

fe ar a nd wi th t he us e of a de a dly we a po n. B e c a

us e the De fe nd ant w a s c ri min a lly responsible for

the ac tions of his cohorts in this crime, it does not matter for pur poses of suffic iency revie w whethe r it was the Def endant or one of his co-de fenda nt’s who phy sically

held the g un and struck the victim.

Tenne ssee statutes hold that “[a] person is criminally responsible for an off ense c ommitt ed by the conduc t of another

if: Acting with intent to promote or a ssist t he commission of the off ense,

or to b e ne fi t in

the pr oc e e ds or

re su lts of the of fe ns e , th e pe rs on

so lic its , d ir e cts , a ids , o r a tte mpt s to aid another

person to commit the offe n s e. ” Tenn. Code Ann. § 39- 11-402(2) . Criminal responsibility

is not it self a se parate cr ime; rather , it is “solely a theor y by which the State may

prove the def endant’ s g uilt of the alleg ed off ense. . . ba sed upon the c onduct of a nother pe rson.” State v. L emac ks, 996 S.W .2d 166, 170 (Tenn. 1999)

. Un der a theory of cr iminal responsibilit y , a defe ndant’s pre sence and compa n i o n s hip with the perpe trator of a fe lony befor e and a fter the

c omm iss ion

of the of fe ns e are c ir c ums tanc e s f

ro m w hic h th a t de fe nd ant’ s p art ic ipatio n in the c ri me

may be inf e rr e d. Se e State v. B a ll, 97 3 S. W.2d 28 8, 29 3 (Tenn. C ri m. A pp . 1 99 8) . T o b e he ld criminally

responsible for

the ac ts of another , a def endant ne ed only

“‘a ssociate himsel f wi t h the
venture , act with knowledg e that the of fense is to be committed, and share in the criminal intent of the pr inc ipa l in

the fi rs t deg ree. ’” I d. (c iti ngState v. Ma xey , 8 98 S.W. 2d 75 6, 75 7 ( Te nn . Cr im. App. 1994)).

Th e vic timin t

his c a se te sti fi e d that a ll fo ur me n a pp ro a c he d him

tog e the r a

nd ro bb e d h im in conce rt. The victim furthe r stated that a g un was used to accomplish this robbery , and he w as injured whe n he wa s struck ac ross the for ehea d. I t is well settled law in Tenne ssee that “ the testimony of a vic tim, by

itself, is sufficient to support a c onviction.” State v. Strickland, 885 S.W .2d 85, 87 (Ten n . Crim. App. 1993). Moreove r, as a lrea dy stated, a jury ’s g uilty

verdic t

acc redits the testimony

of the State’s w itnesses and resolves all conflicts in the evide nce in f avor of the prosec ution’s theory

. See Bland, 958 S.W .2d at 659. The Defenda nt’s claim that the victim’s
te s t i m o n y w a s u n r e l i a

b l e b e c a u s e o f h i s c o n f

u s i o n f r o m t h e a c c i d e n t o r p o s s i b l e i n t o xica tio n is misplaced on a

ppeal. Que stions about the credibility of a witness and the we ight a nd value of

the evidenc e pre sented at trial are issues that are resolved by the t rier of fac t, and thi s Court will not rewe ig h o r r e -e va luate thi s e vid e nc e

. Se e Ev ans , 10 8 S.W. 3d a t 23 6. I n thi s c a se , th e jur y ob vio us ly

acc redited the testimony

of the victim as to the eve nts of the cr ime.

Additionally , the evidenc e re veals that t h e De fenda nt and his three c o-def

endants we re appre hended tog ether

in the same ve hicle attempting to flee f rom the sce ne of the crime. A handgun

wa s f ound in t his c ar. F ur

the rm or e , th e De fe nd ant t e sti fi e d th a t he and his thr e e fr ie nd s we re a lso toge ther befor e the r obbery took place. T here fore , in addition to the direct evide nce f rom the vic tim ’s te sti mony , th e c ir c ums tanti a l e vid e nc e of De fe nd ant’ s p re se nc e and c omp anio ns hip wi th the oth e r p e rp e tr a tor s o f th e ro bb e ry bo th b e fo re and

a ft e r t he c omm iss ion

of the of fe ns e a lso supports the State’s theory of cr iminal respons i b i l i t y

. See State v. B all, 973 S.W .2d at 293.-6-

Ac c or din g ly , w e fi nd

that th e De fe nd ant wa s c ri min a lly re sp on sib le fo r the a c tio ns of his c oh or ts i n the use of a

deadly wea pon during the robbe ry

. Havingcar efully

revie wed the r ecor d, we conclude that the evidence is sufficient to support the jury ’s ver dict i n t h i s ca s e. The jury was prope rly

instructed on the theor y of cr iminal responsibility and the elements of the crime of agg ravated robbery as well as the e lements of seve ral lesser- included cr imes, such as simple robbe ry and fa cilitation of ag g ravated robbery

. T h e jury

e le c te d to fi nd

the De fe nd ant guil ty

of the c ri me of

a g g ra vate d r ob be ry . V ie we d in the lig ht m os t favor able to the State, we conclude that the evidenc e pre sented at trial established that the De fenda nt was guilty

of the c rime of a ggra v ated robbery by taking the victim’s proper ty throug h violence or fe ar a nd wi th t he us e of a de a dly we a po n. Ac c or din g ly , w e fi nd the De fe nd ant h a s f

a ile d to me e t hi s burden of demonstrating that there was insufficient evidenc e submitt ed at trial for a ny rational trier of fac t to conclude bey ond a rea sonable doubt that he was g uilty of the crime fo r w h i ch h e was

c on vic te d. Thus , th is i ssu e is w ith ou t me ri t.

II. Se nt e nc ing The trial c ourt orig inally

enhanc ed the De fenda

nt’s sentenc e by

six y ear s afte r finding two enhanc ement fac tors applicable : the Def endant ha d a pre vious history of cr iminal convictions, and a history of unwillingnes s t o co mply with the conditions of a sente nce involving rele ase into the community

. See Tenn. Code Ann. § 40-35-114( 2) and ( 9). The tr ial court, upon re consideringthe iss ue a t th e ne w tri a l he ari ng , is su e d a n amende d judg me nt r e du c ingthe De fe nd ant’ s se nte nc e to fiftee n y ear s. The trial c ourt relied on B lakely v. Washington, 542 U.S. 296 (2004) and c oncluded that its application of enha nceme nt fac tor (9) w as not appropr iate.

The fir st tim e this case was be fore this Court, t he State, citing State v. Gomez, 163 S.W .3d 632 (Tenn. 2005)
, appea led the De fenda nt’s modified sentenc e, ar g uing that the trial court e rre d “by interpre ting B lakely

in a manner

that forbid the a

pplication of enhanc ement fac tor (9) in calculating the [D] efe ndant’s sente nce.” We ag ree d and re manded the c ase f or re -sentenc ing.

The B lakely

Court held that any

fac t that incre ases a sentenc e bey ond the “r eleva nt statutory maxi mum,” define d as the maximum sentenc e that a j u dg e may impose without making a ny additional fi n d i n gs o f fa ct, m ust be submitted and proved to the jury bey ond a re asonable doubt unless admitted by

the def endant. B lakely , 542 U.S. at 301-02. Thus, adhe renc e to Blakely require s that any enhanc ement fa ctors, other than prior c riminal history , can be applied only if found by

a jury or admitted by

the def endant. I d.

I n State v. Gomez, 163 S.W .3d 632 (Tenn. 2005) , our supre me cour t concluded that Te nn e sse e ’s se nte nc inglaws did no t vi olate the dic ta te s of Blak e ly . T he Un ite d St a te s Su pr e me Court re c e ntl y va c a te d the jud g me nt in Go me z and re mand e d tha t c a se to t he Te nn e sse e Sup re me Court for fur

ther c onsideration in light of Cunningham v. California, 549 U.S

. -- , 1 2 7 S

. Ct. 856 (2007). See Gomez v. Tennesse e, 127 S. Ct. 1209 (2007). Following Gomez v. Tennesse e, a pa nel of this Court has de termined that Cunning ham-B lakely prec edents a

pply to our pre- 2005 sentenc ing scheme :-7-

[W ]e can now hold rathe r than mer ely speculate that Tenne ssee’ s pre- 2005-re vision
sentenc ing law, which mandated an inertial, presumptive sentenc e, was “just as deter minative as Washington’ s scheme [as denounc ed in Bl ak ely ]—because the

s en t en ce wa s fi x ed b y s t at u t e in t h e ab s en ce o f fa ct -f i n d i n g n o t em b ra ce d i n t h e j u ry 's

ve rd ic t- and

jus t a s ma

nd a tor y , a s w e ll—becau se the j ud g e wa s n ot a uth or ize d to depar t from the pre sumptive s entence unless he or she found c erta in fac ts not embra ced in the jur

y ’s ver dict . . . .”

S t at e v

. M ar k

A. S ch i ef el b ei n , No

. M 2 0 0 5 -0 0 1 6 6 -C C A- R 3 -C D, 2 0 0 7 T en n

. C ri m

. Ap p . L EXI S 213,

a t *3 (Ten n. Cr im . App
., Na sh vil le , M ar. 7, 20 07 ) ( or de r g ra nti ngand dis po sin g of

pe tit ion to rehe ar)

.

Citi ng to the Blakely decision, the trial court found that the Def endant’ s Six th Amendment rig ht to a trial by

jury was impugne d when it made de terminations of fa ct for se ntence enhanc ement purposes that we re not submitted to a jury . I n supplemental brief ing, the States “ac knowledg es that the tr ia l c ourt

wa s in iti a lly in erro r t o in c re a se the [D]e fe nd ant’ s se nte nc e ba se d u po n h is unwillingness to comply

with conditions of a sentenc e involving r elea se into the communi ty ” and that re du c tio n of the De fe nd ant’ s se nte nc e to fi ft e e n y e ars wa s pr op e r. Th e De fendan t aga in contends that the tria l court did not err in reduc ing his sente nce. We a g ree

.

We c onclude the trial court did not err when it de termined that application of enha nceme nt fa ct o r (9) violated the dictates of B lakely and ther eaf

ter re duced the Def

endant’ s sentence

. Acc ording ly , we a ffirm the judg ment of the trial c ourt and re instate the fifte en-y ear sentenc e.

CO NC LU SION Ba sed on the fo re go i n g rea soning a nd authorities, we c onclude that the e vidence was

su f f ic ie n t t o s u

p p o rt t h e D e f e n d an t’ s c o n v ic ti o nf

o r a g g r a v a te d

r o b b e r y an d th a t r e d u c ti o no f the Def endant’ s sentence based upon a Blakley violation was proper . The judg ment is affirme d.

___________________________________ DAVI D H. WEL L ES, J UDGE