# FILED January 16, 1998 Cecil W. Crowson Appellate Court Clerk IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE OCTOBER 1997 SESSION

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 Comm it Espec i ally APPELLANT. ) Aggravated Robbery)

FOR THE APPELLANT: FOR THE APPELLEE: T. Arthur Jenkins John Knox Walkup Attorney at Law Attorney General & Reporter 111 North Irwin S treet 500 Charlotte Avenue Manchester, TN 37 355-0126 Nashville, TN 37243-0497 (Appeal Only) Lisa A. Naylor B. Campbell Smoot Assistant Attor ney General District Publi c Defender 450 James Robertson Par kway 605 East Carroll S treet Nashville, TN 37243-0493 Tullahoma, TN 37388- 0260 C. Michael Layne

District Attor ney General P. O. Box 147 Manchester, TN 37 355

OPINION FILED: _________________________________2

AFFIRMED IN PART AN D REVERSED IN PART Joe B. Jones, Presid ing Judge



### O P I N I O N

The appellant, HollyLack 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 offenderand imposed a Range I sentence consisti ng of confinement for twenty (20) years for attempted first degree murder and ten (10) y ears for attempte d espe cially aggravated r obbery in the Depart ment of Correction. The trial court also imposed a $25,000fine for each count for a total of $50,000 in fines. The trial court ordered the sentences are to be served consecu tively f or an effective sentence of thirty (30) years. The defendant presents t wo issues for rev iew . She contends (a) the evidence was insufficient as a matter of law to convict her of attempt to c ommit especially aggravated robbery and attempt to commit first degree felony murder and (b)her sentence was ex cessive. After a thorough review of the record and the brief s 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.3 I.

The victim, Grover McCullough, was 82 y ears of age. He lived alone. The victim knew the defendant, Holly Lack Earls, and her husband, Glen Earls, also known as Herbie Earls [Earls]. McCull ough had loaned the Earlses money and sold them cars in the past; McCullough had also provided financial assistance to the defendant’ s mot her. The defendant frequently stopped by the victim’s house from time to time to check on his well-being. On Febru ary 26, 1995 the defendant and her husband stopped to visit the victim. Alt hough the defendant usuallytook herbaby when she visited the victim, she did not do so on this occasion. Th e victim testif ied the defendant’s husband ac ted “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 s urprised to learn the defendant had left her baby with her mother on this visit. Herbie Earls brought in one load of firew ood through the front door and went back outside. When he returned, he struck the victi m over the head with an axe handle. He continued to beat the victim. The d efendant had a clear view of her husband’s actions. T he victim said the defendant failed to w arn hi m of the attack by her husband, and she did not look surprised when th e attack occurred. As Earl s continued to str ike the victim, the defendan t remained on the couch
. The v ictim attempted to block Earls’s blows. Earls subsequentl y4

knocked the victim agains t the wall and attempte d to remove the victim’s walletfrom his front s hirt pocket. The v ictim said he had $1, 600 in his walletat the time. H e was able to kick E arls 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 v ictim was on the f loor, he obtained a ha nd axe and threatened to strike Earls. Earls gave up, threw dow n the axe handle, an d left wit h 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 shoulde rs, legs, and ankles with the axe handle. Afterthe attack the vic tim took aspirin and sat down on the couch and eitherpassed outor fell asleep. H e did not awake until the next day. He drove himself to the she riff’s office and was taken from ther e to the hospital by ambulance where he had surgery on his arm; doctors implanted a metal plate and screws in his arm. An officer testifi ed he went to the victim’s house to photograph the scene and observed blood t hroughout the livi ng 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, S ylvia Walker, re l u ctantly testified for the state. Walker was married to Earl s’s cousin, Johnny Wa lker. S he told jurors th e couple came to her hous e after the attack; they wanted to find Johnny Walker. The defendant was upset.1 W alk er sa id th at

the s ta te m en t d id no t re fle ct ev er yt hin g s he sa id to au th or ities. 5 On the stand, Walker claimed to have trouble remembering wh a t the defendant said during the visit; she also retreated from a statement she gave to police implicating the defendant. She admitted to av oiding service of process and not wanting to test ify. She ultimately admi tted her statement to p olice was accurate. 1 In her statement she said:

Holly and Herbie Earls came by our place one night looking for Johnny. H olly said that her and Herbie had been out at an old m ans [sic] hou se and, tried to rob him. She said they had hit the old m an in the head with an ax handle and tried to knock h i m 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 m ost of the talking and Herbie stayed outside work i ng on his truck.I tried to get Holly to leave her baby with me but she wouldn’t do it. We were living at T ravelers Inn at t he time. I learned a few da ys late r that it was G rover McCullough that they was talking about.
The defendant testified in her own defense. She denied h avin g knowledge of an at tempt to rob McCullough. She had never discussed the matter with Ea rls. She knewthe victim kept money in his front pocket. According to the defendant, she encouraged Earls to leave after he landed t he first blow to the victim. She claimed Walker’s statement was incorrect because Wal ker had been taking dr ugs all day and was “spaced out.” The defendant, who was pregnant at th e time, testifi ed she
was afraid of her husband. He had been dri n king and taking drugs t hat day. She admitted she did not seek medical help for the victim.6 She admitted she had lied to authorities about the attack. She told authorities Earls’s attack upon the victim was precipitated by the victim
w hom she said pinched her on her breast. She lied to protect h e r husband.7 II.

While appellate reviewis generally lim ited to the issues pres ented for review, the appellate courts of this state are empowered to cons ider issues which have not been presented for review. Tenn. R. Ap p. P. 13(b); Tenn. R. Crim. P. 52(b ). See State v. Goins , 705 S.W.2d 648 (Tenn . 1986); St ate 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 i n i ts discretion consider other issues in order, among other r easo ns: (1) to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3) to prevent prej udice to the “judicial process .” In addition, Rule 52(b) , Tennessee Rules of Criminal Procedure, provide s that this court may notice plain error“at any time, even though not raised in the motion for a new trial or assigned
as erroron ap peal . . . 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. Ap p. 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 de gree f elony murde r is not an2 The off ense in t his case was committ ed in Febr uary 1995; the i ndict ment was ret urned Apr i l 10, 1995and t he t ri al was hel d i n Dece mber 1 995. OnNovem ber 2, 1994, th is courtiss ued an opini on in Stat e v. Ki mbrough fi nding t hat t he off

ense of at tempted fel ony murder do es no t ex ist. Stat ev. Br ian Kei th Ki mbrough , Shel by Coun ty No. 02-C- 01- 9308- CR00182 (Tenn. Cri m. App., Jackson, Novem ber 2, 1 99 4). T he Tenn es see S uprem

e C ourt affirm ed thatholdi ng in it s Kimbrough opini oniss ued June 3, 1996. 924 S.W.2d 888 ( Tenn. 1996)

3 The

Tennessee General Assembly amended this sect ion i n 1995 to r emove

the word “reckless” fr om the fel ony-murderstat ute. This became eff ecti ve Ju ly 1 , 1995, aft er t he commis si onof th

ecri me and the retur n of i ndict ment in t his case. The Tennessee Supr eme Court noted i n Kimbroughthatthe del eti on did “ not af fect our opi nion t hat t he off en seof att empted

fel ony-murderdoes not exi st i n Tennessee, since underthe new de finition the offense of f

elony- murder

still do es no t require a sp ecific intent.” Kimbrough , 924 S. W.2d at 890, n. 2. 8 offense. State v. Kimbro ugh , 924 S.W.2d 888, 892 ( Tenn. 1996). The defendant did not rais e this issue in her brief. 2 The felony murder prov ision in effect at the time of the defendant ’s crime stated:

(a) First degree murder is: * * * * (2 ) A reckless killi ng of another committed in the perpetration of, or attempt to perpetrate any first deg ree murder, arson, rape, robbery, burgl ar y , theft, kidnapping or aircraft piracy. Tenn. Code Ann. § 39-13- 202(a)(2). 3 Criminal attem pt requires that a person act with the culpability required for the off ense. 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 conceiv e of an attempt where a crime by definition may be committed recklessly or neg ligent ly but not9

intentionally.” Kimbrough , 924 S.W.2d at 891. “‘Although murder m ay be committed without an intent to kill, attemptto commit murder req uires
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 th e statutory sch eme already provides for enhanced punishment when bodily injury occur s du ring a crime. “Considering that the legislature has already enacted s pecific offenses covering situations in w hich death or injuryis threatened or occu rs during t he c ommission of certai n felonies, we conclu de that to extend the felony-murder rule to cases in which no death occurs would ‘extend the scope of the doc trine beyon d the pale of its s tatutory design and logical underpinnings.’” Kimbrough , 924 S.W.2d at 892. “We conclud e that one cannot inte nd to accomplish the u nintended. Consequently, the off ense of attempted fel ony murder does not exist in Tennessee.” Kimbrough , 924 S.W.2d at 892. Thus, the defendant’s conviction for fel ony murder is reve rsed and dismissed.

B.

This court observes the defendant was indicted for attempting t o kill the victi m “unl awfully, intentionally, deliberately and with premeditation.” The defendant was not indicted for atte mpted felony4 There is no explanation in the record for t his. 10 murder. The jury was instructed only on felony murder. 4 On remand, the defendant may be retried for attempted first

degree murd er. Wh en a conviction is set aside because of an error in proceedings and not because the state failed to prove the defendant guilty, the defendantmay be retried for an offense. State v. Kevin B urns , 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 att empted fel ony murder is being reversed because the Tennessee Supreme Cour t has ruled the offense does not exist. Burns , Shelby County No. 02-C-01-9605-CR-00170 (Tenn. Crim. App., Jackson, July 25, 1 997) . The defendant was prosecuted for a crime which is impossible to commit. Thus, this was a fundamental error in the proc e ed ings. The defendant w as indicted for attempted first degree prem editated murder. That charge was not given to the jury so the j ury has not considered attempted first degree premeditated murder. Because the defendant h as ne ither been convicted
nor acquitted of

attempted first degree prem editated murder, he r 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 forthe defendant to be retried on the charge of attempted first-degree murder.11 III.

The defendant also contends the evidence was insufficient as a matterof law to convict her of attempt to commit especial ly aggravated robbery.

A.

W hen an accused

chal l enges the suf

f i ci ency of the convi cti ng evi dence, thi s court m ust revi ew the
record to determine i f

the evi dence adduced

at tr ia l is suf f i ci ent " to support t he fi ndi ng by the t ri er of fact of gui l t beyo nd a reasonab l e dou bt
. " Te nn. R. App. P. 13(e)
. This r ul e i s appl i cabl e to fi ndi ngs of

gui l t based upon di rect evi dence, ci r

cum st anti al evi dence, or a combinati on of di rect and ci rcumstanti al evi dence. Stat e v. Dykes , 803 S.W.2d 250, 253 (Tenn. Cri m . App.) , per . app . deni ed (Tenn. 1990). In deter m i ni ng the suf

f i ci ency of the convi cti ng evi dence, thi s court does not rew

ei gh or reeval uate the evi dence. Stat

e v. M att hew s , 805 S.W.2d 776, 779 (Tenn. C rim . A p p .), per . app . deni ed (Tenn. 1990). Nor
ma y thi s court substi tut

e its inf erences for t hose draw

n by th e tr i er of fact from ci rcumstanti al evi dence. Li akas v. Stat

e , 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert . deni ed, 352 U.S. 845, 77 S.Ct
. 39, 1 L. Ed.2d 49 (1956)
. To the contrar

y, thi s court

i s requi red to aff

ordthe St ate of Tennessee the st rongest

l egi ti m ate vi ew of t he evi dence contai ned i n the r ecord as w el l as al l reasonabl e and l egi ti m ate i nf erences which may be drawn fr

om the evi dence. Stat

e v. Cabbage

, 571 S.W.2d 832, 835 (Tenn. 1978). Questi ons concerni ng the cr

edi bi l i ty of t he w i tness es, the weight

and val ue to be gi ven

the evi dence,
as w el l as al l fact ual i ssues r

ai sed by t he evi dence are r

esol ved by t

he tr i er of f act, not t hi s court . Cabbage , 571 S.W.2d at

835. In Stat

e v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973), our Supr em e Court sai d: "A gui l ty verdi ct by the j ury, approvedby the t ri al j udge, accredi ts the testi m

ony of the wit nesses

for the St ate and resol ves al l confl i cts i n favor of the t heory of

the St ate. "12 Since a verdi ct of

gui l t rem oves the pr esum pti on of i nnocence and repl aces i t wit h a presumpti on of gui l t, the accused, as the appel l ant, has the burden i n thi s court of i l l ustrati ng w

hy the evi dence i s i nsuf f i ci ent to support t he verdi cts retur ned by the t ri er o f fa c t. Stat e v. Tuggle , 639

S.W.2d 913, 914 (Tenn. 1982). This court wil l not di st urb a verdi ct of gui l t due to the suf f i ci ency of the evi dence unl ess the facts contai ned i n the r ecord ar e i nsuf f i ci ent, as a m

att er o f la w , fo r a ra tio n a l trie r of f act to fi nd that

the accused i s gui l ty beyond a reasonabl e doubt. Tuggle , 639 S.W.2d at 914.

B
.

Before an accused can b e c onvicted of attempt to commit especially aggravated robber y, th e state must prove beyond a reasonable doubt that the accused a ttempted to intent ionally or knowingl y take property from the victim by using a deadly weapon and causing the victim to suffer serious bodi ly injury. Tenn. Code Ann. § 39-13-403; Tenn. Code Ann. § 39-13-401. The defendant argues there was no medical proof that the victim
su ffered serious bodily in jury. She also argues she did not have t he requisite intent to attempt to commit especially aggravated robbery. (1)
Tennessee Code Annotated defines criminal attempt as: (a) A person commits cri minal attempt who , acting with the kind of culpability ot herwise required f or the offense: * * * *13 (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 th e person believes th em to be, and the conduct constitutes a substantial step toward the commission of t he offense. (b) Conduct does not constitute a substantial step under subdivision (a)(3) unless the person’s entire course of action is corro borative of t he int ent to commit the offense. (c ) It is no defense to prosecution for crim ina l a ttem pt that the offense attempted was actually committed. Tenn. Code Ann. § 39-12-101.
The d efendant and Earls went to the victim’s home w ith the intention of robbing the 82-year-old man. T he defendant and her mother had had financial dea lings wit h the victim in t he past. The defendant admitted she knew the victim carried money in his front pocket. The defen dant usually took her baby with her to visit the victim. She did not take the child on the nig ht of the attack. T he defendant sat on the couch and distracted the victim during the ir conversation unt il her husband began beat ing 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 N o. 02- C-01-9609-CC-00297, 1997 WL 167231 (Tenn. Crim. App., Jackson, April 10, 199 7) (a bat is a deadly weapon); State v. Richard L ee 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 war n the victim of t he impending attack, she14

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 w as the de fendant who broached the idea t hat Johnny Walker could retur n to the victim’s house and help the Ear lses complete the act. A reaso nable jury could infer the defendant attempted to intentionally or knowingly take p roperty from anoth er by using a deadly weapon. This court wil l next consider whet her the final element - s erious 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 i mpairment 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 se rio us bodily injury
was lacking, the defendant relies on State v. Sims , where this court said that pain associated wi th a broken nose is not extreme enough to qualify
as serious bodily injury. 909 S.W.2d 46, 49 (T enn. Crim. App.), per . app .15

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 t he evidence supports t he jury’s findings that the victim suffered serious bod ily injury. 860 S .W.2d 53, 59 (Tenn. Crim. App. 1993). The victim s uffered 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 pai n and also suffered dizzines s. The de fendant attempts to distinguish McCullough’s injuries from those in Ho lland and argues the injur ies to McCullough w ere not as sev ere a s those to the victi m in Holland
. The defendant also reli es 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 cou rt said suffering strikes to the face, a blackened eye, an injured lip, and a brief period of unconsciousness did not constitute seri ous bodily injury. This court noted t he victim’s doctor did not testify and the victim did not testify she suffered extreme physical pain. In this case the victim, a dia be tic, suffered a bro ken 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 wa s bloody a nd sore. He also suffered injuries to his shoulder, legs, and ankles. He told jurors t hat16

he hurt “for a long time.” The victim was hospitalized for a couple days. The injuries in thi s case are distingui shable from those in Sims and Denton
. The victim’s te stimony meets several definiti ons of the “serious bodily injury” requirement. A reasonable jury coul d find the injuries imposed a seriou s risk of death considering the victim w as 8 2 years old and respon sible for administering his own insulin for diabetes. The injuries could have l eft him unable to take his medication. Tenn. C ode Ann. § 39-11-106(a)(33) (A). A jury could also fi nd the victim suff ered from protracted unconsciousness. The victim testif ied he either passed out or fell asleep
on the couch. The ph otograph of the couch illustrates he lost a significantamount of bloo d while on the couch. Tenn. Code Ann. § 39-11-106(a)(33)(B). The victim also tes tified he suffered physical pain as a result of the injuries. Tenn. Code Ann. § 39-11-106(a)(33)(C). H e continues to suffer numbness and has limited use of his arm as a resul t of the break and the surgery. Tenn. Code Ann. § 39-11-106(a)(33)(E). This c ourt finds there was sufficient evidence to convict th e defendant of attempted especially aggravated robbery. The issue is without merit.

IV.

The defendant contends her s entence for as sault with intent to commit especially aggravated r obbery is excessive. After finding the17

defendant a sta ndard offender, the t rial court impose d a Range I sentence of twenty (20) yea rs for attempted first degree murder and ten (10) years for attempted espec ially aggravated robbery in the Depart ment 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 thi s court has dismis sed the conviction fo r attempted felony murder, the defendant’s argument as to th at senten ce is moot. This court will consi der the defendant’s argument as to the sentence fo r attempted especially aggravated robbery.

A.

W hen an accused

chal l enges the l ength and manner of s ervi ce of a sent ence, i t i s theduty of thi s Court to conduct

a de novo revi ew on the r ecord wit h a presumpti on that

"t he deter m i nati ons m ade by the court fro m w hic h the appeal i s taken are correct. " Tenn. Code A nn. § 40- 35- 401(d)
. This presum

pti on i s "c on di ti oned upon the af

f i rmati ve showing i n the r

ecord t hat t he tr i al court

consi dered t he sentenci ng pri nci pl es an d a ll relev an t facts an d c ircum stan ce s." Stat e v. Ashby , 823 S.W.2d 166, 169

(Tenn. 1991). The presumpti on

does not appl y to t he

l egal concl usi ons reached by t he tr i al court i n sentenci ng the accused or to the determinat i ons m

ade by the t ri al court

w hi ch are pr

edi cated upon uncont

rovert ed facts. State v. Butl er , 900 S.W.2d 305, 311 (Tenn. Cri m . App. 1994) ; State v. Sm

ith, 891 S.W.2d 922, 929 (Tenn. C rim . Ap p .), per . app . deni ed (Tenn. 1994); Stat

e v. Bonestel , 871 S.W.2d 163, 166 (Tenn. Cri m . App. 1993)
. How

ever, thi s Court i s requi red to gi ve great

w ei ght to t he t ri al court ' s deter m

i nati on of cont rover ted f

acts as the t ri al court ' s deter m i nati on of t hese f

acts i s predi cated upon t he w i tness es' dem

ean o r and appear

ance w hen te s tify in g.18 In conducti ng a de novo

revi ew of a s entence, thi s Court

m ust cons i der (

a) any evi dence recei ved at the t ri al and/

or sent enci ng heari ng, (b) the prese ntence r eport , (c) the pr i nci pl es of

sentenci ng, (d) the arguments of counsel rel ati ve to

sentenci ng al ter nati ves, (e) the nat ure and char acter i sti cs of

the of f ense, ( f ) any m i ti gati ng or enhanci ng fact ors, (g) any st atements m ade by the accused i n

hi s ow n behal f , and (h) the accused' s potent i al or l ack of potenti al for rehabi l i tat i on or t reat m

ent. Tenn. Code Ann. §§ 40-35- 103 and

- 210; Stat e v. Scott, 735 S.W.2d 825, 829 (Tenn. Cri m . App.) , per . app . deni ed (Tenn. 1987). The part y ch a llengi ng a sentence i m

posed by the t ri al court

has the burden of est abl i shi ng the sentenceis er roneous. Sentencing Com m i ssi on C om m ents t o Tenn
. Code A nn. § 40- 35- 401; Ashby

, 823 S.W .2 d at 169; Butl er

, 900 S.W.2d at

311. In t hi s c

ase, the def

endant has t he burden of

i l l ustrati ng the sentences im

posed b y the tr i al court

are err oneou s.B.
The defendant argues the use of four enhancement factor s by the trial judge was inappropriate. Attempted especially aggravated robbery is a clas s B f elony. The range of punishment is eight ( 8) to twelv e (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 physi cal or mental disability; (5) The de fendant treated or allowed a victim t o be treated with exceptional cruelty duri ng the commission of the off ense; (6) The personal injuries inflicted upon or t he amount of damage to pr operty sustained byor taken from the victim was particularly great; (9) The defendant possessed or employed a firearm, explosiv e device or other deadly weapon19 during the commissi on of the offense; (16) The crime was commit ted under circu mstances under which the pote ntial fo r bodil y 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, beca us e of [her] youth or old age, lacked substantial judgment in committing the offense; (12) The defendant acted under dur ess or u nder the domination of anot her person, eve n th ough the duress or the domination of anoth e r person is not sufficient to constitute a defense to the crime. Tenn. Code Ann. § 40-35-113. The trial court sai d the abo ve factors were us ed to determine the length of the sen tence s, but the court f ailed to specify w hich enhancement factors applied to which offens es. Thus, the statutory presumption of correctness affor ded by Tenn. Code Ann. § 40-35-401(d) does not apply. This co urt will addres s each factor witho ut a presumption of correctness. C.

The trial court err

ed in applying enhancement factor (4) regarding vulnerability. Before a trial court ma y apply factor (4) to enhance a
s entence within the appropr iate range, the State of Tennessee mus t prove (a) the vic tim was particularly vulnerable, State v. Adams , 864 S.W.2d 31, 35 (Tenn. 1993), an d (b) the age, physical disabi lity, and/or mental disability of t he victim was a factor during the commission of t he20

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, s trength or vital ity.” Thus unless the State produces evi dence 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 standin g alone, are not sufficient to suppo rt the
use of factor (4). J us t before the attack occurred the victi m had been bringing in firewood. Despi te the fact the victim was initially struck from behind and beaten, he was able to fend off the attac ks and thwart the robbery attempt. Consequent ly, the trial court abused its discret ion by appl ying this factor to en hance the defendant’s sentence within th e appropriate range.

D.

The trial court properly used factor ( 5) regarding exceptional cr uelty to enhance the defendant’s sentence for attempted especially aggravated robbery. This factor is no t an element of attempt to commit especially aggravated robbery. Poole , 945 S.W.2d at 98 ( excep ti onal cruelty is not an eleme nt of esp ecially aggravated robbery); State v. Antonio Byrd , Shelby County No. 02-C-01-9508-CR-00232, 1997 WL 123521

(Ten n. Crim. App., Jackson, January 2, 1997), per . app . denied (Tenn. September22, 1997). The phrase “extreme cruelty” is defined as “cruelty above that needed to effectuate the crime.” State v. Lester Bennet t , SevierCounty No. 03-C-01-9403-CR-00104, 1994 WL 683373 (Tenn. Crim. App., Knoxville, December 8, 1994). This court has noted previously the “trial cou rt shoul d state what acti on of the defendant, apart from the elements of the offense, constituted ‘exceptional cruelty.’ ” Stat e v. Goodwin , 909 S.W.2d 35, 45, ( Tenn. Crim. App. 19 95). The trial court did not place into the record the justification for this factor. This court notes the defe ndant distracted the vi ctim and gave her husband an opportunity to attack the victim from behind. The defendant did not seek help for th e victim during the at tack 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 w hen defendant left vi ctim shot at the situ s of shooting and fail ed to get help.) The victi m testified that after the E arlses left he tried to yell for help fro m his front porch, but no one heard him and he returned inside where he either lost consciousness or fell asleep. We conclude the actions o f the defendant consti tute exceptional cruelty.

E.22 Enhancement factor (6), the vi ctim suffered perso n al injuries, is inherent in the offense of espec ially aggrav ated robbery, and thus attempted especially aggravate d robb ery, because the cri me requires that the victim suffer serious bodily injury. Therefore, applicat ion of that factoris inappropriate. Byrd , Shelby County No. 02-C01-9508-CR-00232 (Tenn. Crim. App. Jackson, January 2, 1997)
.

F.

The applicatio n of enhancing factor (9)for using a fire arm durin g the commis si on of a crime was also improper. The use of a firearm is inherent in the crime of esp ecially aggr a vated robbery, and t hus attempted especially aggravated robbery. State v. Samuel S cott Minton , Bradley County No. 03-C-01- 9508- CC-00217, 1996 WL 480859 (Tenn. Crim. App., Knoxville, Aug ust 27, 1996), per . app . denied (Tenn. January 27, 1997).

G.

Enhancement factor (16), that the crime was comm itted under circumstances under which the potential for bodily injury was great, is inherent in the offense of especially aggravated robbery a nd thus in here nt in attempted especi ally aggravated robb ery. Therefore, application of that factor is in appropr iate. Byrd , Shelby County No. 02- C01-9508-CR-00232 (Tenn. Crim. App. Jackson, January 2, 1997).23 In summary, t he only enhancement facto r that was appropriate l y ap p lied was factor (5), regarding treating t he victim with e xceptional cruelty.

H.

As with the enhancing factors, t he trial court di d not specify which mitigatin g fact ors applied to which offenses. Thus, the statutory presumption of c orrectne ss does not apply and t his court will consider each factor without t he presumption. Thi s court finds only one mitigating factorwas present, factor (6). Due to the defendant’s youth, she lacked substantial judgment when commit ting 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 appropr iate. As for factor (12) tha t the defen dant was under the domina tion of her husband, there was nothing in the record to support this factor. Sylvia Walker’s statement to police indicates i t was the defendant who relate d the robbery plan to Wal ker and attempted to enlist the h elp of Johnny Walker. Thus, th e use of factor (12) w as not appropriate.

I.

As a standard Ra nge I offender, the range for a Class B felony is eight (8) to twelve (12) years. Here, there was one mit igating factor and
one enhancement factor. T ennessee Code Annotated § 40-35-210 states24

in a situation with mitigating and enhancing factors, th e sentencing judge must start atthe minimum sentenc e in the range, enhance the sentence
as appropriate for t he enhancementfactor and then reduce the sentence within the range as appropri ate. The trial court sentenced the defendant to ten (10) years for attempted especially aggravated robbery, which was the mi dpoint in the range. Given the presence a nd weight of th e enhancement factor and the mit igating factor, t his was not error. A finding that enhance men t factors were er roneously applied does not equate to a reduction in the sentence. State v. Keel , 882 S.W.2d 410, 423 (Tenn. Crim. App.), per . app . deni ed (Tenn. 1994); see State v. Parker , 932 S.W.2 d 945, 947 (Tenn. Crim. App.), per . app . deni ed (Tenn. 1996); State v. Williamson , 919 S.W.2d 69, 83 (Tenn. Crim. App . 1995). This court notes that the $25,000

fine was also appropriate under T enn. Code Ann. § 40- 35-111(b)(2). The issue is without merit.

V.

The defendant c o ntends that orderi ng the sentences to r un consecutively was excessive. Becau se o f this court’s findi ngs that the convicti on for attempted felony murder was inappropriate, this issue is moot.25 ________________________________________ JOE B. JONES, PRESIDING JUDGE
CONCUR:

___________________________________ WILLIAM M. BARKER, JUDGE

___________________________________ JOE G. RILEY, JUDGE