### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Februar y 12, 2 003 Session
STATE OF TENN ESSEE v. MARCU S TRAMANE GR EEN
Appeal from the Circuit Court for Montgomery C ounty No. 40100307 John H. Gasaway, III, Judge

No. M2002-01810-CCA-R3-CD - F iled April 28, 2003

The defendant, Marcus Tramane Gre en, appeals the sentence imposed by the Montgome

ry County Circuit Court foll o wing his guilty ple as to especially a ggravated robber

y, a Class A felony , and aggravated

burglary , a Class C felony. The trial court sentenc ed him to re spective concurr ent terms of seventeen y ears as a Range I , violent offender and four and one-half y ears as a Range I , standard offender to be served in the Department of

Correction. The defendant contends that his sentences
are excessive, arguing that the trial court misapplied enhancement factor s and fai led to app ly c ertain mitigating factors. We affirm the eff ective seventeen-y

ear sentence imposed by

the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J OE G. R ILEY and T HOM AS T. W OODA LL , JJ., joined.
R. Todd Hansrote, Clarksville, Tennessee, for the appellant, Mar cus Tramane Green.

Paul G. Summers , Attorney Gene ral and Reporter; Jennifer L . Bledso e, Assista nt Attorne

y General ; John W esley Carne

y, Jr., District Attorney

General; and C. Daniel Brollier, Jr., Assistant Distri c t Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION

This case arises out of the April 12, 2001 beating of Charlie Rye a

nd taking of money

and
a televisio n from his home. Around 7: 50 a.m. on May 8, 2001, the defendant ga ve a stat ement to law enforcement relating that on the day in question, codefendants Robert Downey and Barbi Brown told him they knew a

man with a lot of money. Downe y and Brown returned a couple of hour s later and asked if

he wa s r ea dy t o g o. Br ow n d ro ve th e t ri o t o t he vi ct im ’s tr ai le r. Do wn ey looke d throu gh the window in the tra iler’s do or and did

not see anyone . Downey for ced the door open and went to the back of the trailer. The defendant remained in the trailer’s doorway . The defendant heard a noise, wa

lked to the

back, a nd saw Do wney

hit the victim

severa l times. Do wney

told the defe ndant to ch ec k t he vi ct im ’s pa nt s f or mo ne y, b ut th e d ef en da nt di d n ot do so . D ow ne y too k-2-

money from the pants, a television, and a container of coins. The defendant left the trailer followed by Downey, who put the te

levision, money, and coins in the ca r. The three drove away , split the money , and took the defendant home. The defendant re ported that he received $1000 and the codefe ndants ea ch got $ 1200. He s aid he de clined the container of c oins.

The defenda

nt ple d guilty

to espec ially

aggr avated r obbery and ag grava

ted burg lary

in exch ange for

the state dismissing three additional counts of conspiracy to commit robbery, theft of propert y va lued over $1000, and attempted first degree murder. The parties also agreed that the sentences would run concurr ently and would not exceed twenty y ears. Otherwise, the trial court was to deter mine the le

ngth of t he sente nces.
The defendant’s sentencing hearing immediately

followed that

of codefendant Brown, who had also pled guilty to e specially ag gravated robbery and aggravated burg

lary. The parties agreed that the trial court should consider the testimony of Brown, the victim’s son, and t he victim from Brown’s sentenc ing hea

ring aswell a s the defendant’s and code fendant Downey ’s writte

n stateme nts to the Mont

gomery County Sheriff ’s Depa rtment.

Ninetee n-y ear-ol d Barbi Michelle Brown testified that at the time of the off enses she, Do wn ey, and the defendant were all jobless and nee ded money. She said she “ hung out” wi t h Downey and the defendant frequently and de scribed twenty- three-y ear-old Downey as having the dominantpersona

lity in their group. She said she mentioned to Downey that she knew where they could get mone y, a nd he said they should do it. She said she picked the victim beca use she knew he would likely have money and did not think about the fact that he only we ighed one hundred pounds. She said that after she suggested the crime, Downey then br

ought the defendant in on the offenses and began planning how to get the money . She said that at one point, Downey sa id he was going to hit the vi ctim

butthat she told him they did not need to make their pre sence known in the victim’s home. She said that Downey a ssented and dropped the matter.

Brown testifie d that the

y w ent to the

victim’s h ousearound 2:00 a.m. and that she believed the victim w ould be a sleep. She said she did not intend for the victim to be harmed and did not know that the victim had been beaten until the next day . Brown said that she was under the influence of alcohol andmarijuana that night and that she go t a li tt le ov er $1 00 0 i n p ro ce ed s f ro m t he ro bb er y. On cross-examination, she said she did not remember say ing that the victim would be an “easy lick.” The prosecutor confronted her with her written statement, and she acknowledged say

ing that it was discussed beforehand that Downey would hit the victim, knock him out, and take the money.

James Neal Rye, the victim’s son, testified that he found the victim on the morning after the offense s. He noticed the victim’s trailer door was open and could see the victim’s wallet laying out. He heard a moan and found the motionless victim ly ing in a fetal position. The victim was bruised and bloody with a swollen head, a nd M r. Rye could bar

e ly recog nize him. Blood was on the bed linens and the w all. When M r. Ry e attem pted t o tou ch the victi m, th e vict im bega n moan ing, fighti ng, and spea

king inc oherent

ly. The victi m receiv ed medic al care for abou t three mo nths, including fo ur to fi ve da ys in intensiv e care and a mont

h in a rehabilitation center. The victim was-3-

in a coma for four day s followin g the at

tack, and at one po int, the do ctor told t he victim’ s family

that he would die if they could not repair his collapsed

lungs. Mr . Ry e testifi ed that the victim st ill did notremember things and

used the wrong words in expressing himself. He said the victim now lived withMr. Rye’s fami ly b ecause they feare d he migh

t be victim

ized aga in if he wereto live alone. He said Brown w as his wif

e’s niec e, she ha

d been to the victim ’s house o n severa l occasi ons, and she knew the victim carried a large amount of cash.

Charles Rye

testifie d that bef

ore the o ffense s, he was independ ent and li ved al one in his home. He said he was sixty-si x years old, and, at the time of the crimes, he weighed 102 to 103 pounds. He said that he did not remember any thing about the night of the offenses and that $3200 had been taken from him. He said that he remembere d bei ng in the recovery and rehabilitation sections of the hospital and that he came out of rehabil itation af ter one a nd one-h alf months . He said that he continued to get names confused and that his hea d often “spun.”

Codefendant

Robert Taylor Downey g ave a statement to law enforc ement at 1 1:23 p.m. on M ay 8, 2001. This statement essentially trac ks the defendant’s statement of how the off ense s occurred, except Downey said that w

hen he e ntered t he victim’ s room, the

victim aw oke and s aid something to him. He said he hit the victim six times. He said h e g ave the victim’s pants to the defendant who took money

from them

and also g ot a bucke

t of money . Downey

said he g ot th e victim’s television and ran to the car.

The defendant’s mother, Antoinette Watson, testified at the sentencing hearing . Ms. Watson testified that before the offe nses, the defenda nt lived with his girlfriend in a trailer across the stree t from her. She said that a

t the time o f the off

enses, th e defendant was ninetee

n ye ars o ld a nd his girlfriend was pregnant with the defendant’s son. She said the de fendant was between jobs and that he and his girlfriend were late in pay ing their electric bill and

three months behind on the rent. She said the defendant

was not a violent person and was more of a follower tha n a leader. She said the defendant had received counseling in the past for be ing suicidal, schizophrenic, and depressed. She said she learned of the offenses from her other son who ha

d se en the defendant’s picture on television. She said that after this, the defendant asked her to take him to turn himself in to the police. She said th

e defendant late

r told her that he di d not know t

hat Downe

y w as going to do anything to the victim and that if he hadknown it, he would not have gone with Downey and Brown.

On cross-examination, she testified that the defendant was in t rouble with the law once as
a juvenile and that she had filed runaway charges aga

inst him a coup le of times. She said he had been in and out of state custody mainly because of his mental problems. She agree d that th e defenda nt was ca pable of working and had w orked fo

r TVA at o ne point bu

t had quit.

The defendant testified that his codefendants Brown and Downey

stopped by on

the evening of the offe nses. He said that he was not involved in planning the robbery and that Robert Downey told him they would mer

ely sn ea k into the victim’s house, take the money, a nd leave. He denied going with his codefendants when they drove by the victim’s house e arlier that day and said he di d nothear any

discussion concerning violence toward the victim or about

Downey hitting th e victim.-4-

He said they went late a

t night in order that the victim would be asleep or gone. He said that he had
never seen the victim before and that Brown never

describ ed the victim’s ag e or size to him. He sa

id Brown devised the plan for the offense s.
Th e defenda

nt testified that Downey a nd Brown picked him up around midnight and that Downey had a he avy

Mag fla shlight. He said b oth he and Downey were su ppose to g o in to the victim’s house but he was afr aid and r emained at the vic tim’s door , watching, until he heard a noise. He said he went inside and saw Downey hit the victim three or four times. He said Downey threw the victim’s pants to him, and he dropped them and ran outside. He agreed that Downey gave h im
a container of coins and

that he ran out the door. Hesaid that participating in the offenses was a bad decision and that he turned himself in to the police and told them what happened, who was involved, and where they

might find the victim’s television.

The defendant testified that he joined in the offenses beca use he nee ded money

to pay his electri c bill and his rent. He said his electricity was due to be disconnected the day after the offe nses, and he was going to be e victed. He sai d that his pregnant girlfriend had bee n near the time of delivery and t hat his son wa s born while he was incarcerated. He said that while in jail, a doctor treated him for depression, which had been ongoing since he was nine or ten y ears old. He agreed that he wa s hosp itali ze d for attempting suicide at age ten and said that he ha d attempted suicide countles s times. On cross-examination, he agreed that h e told his gi rlfri end th at he w as goin g to go withthe codefendant s to commit the offenses to get money for their rent. He admitted that he got $1000 from the proceeds of the robbery and said he used it to pay his rent and his electric bill. He said he was not working at the time of the offenses because he “w as just too lazy to get up and get a job.”

The present

ence re port rev eals that th e then twenty-y ear-old defendant attended school throu gh the tenth grade. He reported ta king and failing the GED. The re port reflects that the defendant has no pri or crimin al reco rd and no record of arre sts. He r eported

having no juvenil e record as well. The defendant characterized his mental health as fair, stating that he takes medication for depression and

had received counseling for f our year s. He reported using alcohol o ccasion ally and experimenting with marijuana and “ac id,” b ut he denied regular or continued use of illegal drugs. The report reflects that the defendant has ne ver been married and has two sons who live with their mothers. He said th at he wa s not under court or der to provide child support for these children butthat he g ave thei

r mothers money whene

ver he could. The defendant, who had bee n incarcerated since May 8, 2001, reported working for Kentucky Fried Chicken in the two months p recedi ng his arrest. He said he had worked for TVA as a laborer earning $10.89 a n hour for two months in 1999. He also stated that he worked for a temporary se

rvice for one month. He reported that his mother took care of his living expenses during the times that he was unemploy ed.

As a Range I offender, the defendant’s sentencing rang e was fifteen to twenty -five ye ars for the especia

ll y ag gravated robbery

conviction, a Class A felony, a nd three to six years for t h e aggravated

burglary conviction, a Class C felony. See Tenn. Code Ann. § 40-35-112(a)(1), (3). The trial cou rt enhanced the d

efenda nt’s sente nces with the following enh anceme nt facto rs:1 The leg isl atur e’s 2002 amendm ent, not a pp licable here, added as the new enhancement factor (1) that t he “offense was an act of ter rorism ” but c hang ed the exis ting enhancement factors only i n increasing t heir designati ng numb er by o ne.
-5-

(4) A victim of the offense was par ticularl y vuln erable becaus e of age or physical or menta

l disability, . . . ;
(5) The defendant treated or allowed the victim to be treated wi t h exceptional cruelty during the commission of the offense; [and]
(6) The per sonal i nju ries infl icted or the amoun

t of dama

ge to propert y su stained by o

r taken f rom the victim was pa

rticular ly great[.]

Tenn. Code Ann. § 40-35-114 (Supp. 2001) (amended 2002). 1 It applied mitigating fa ctor (10), that the “defendant assisted

the authorities in locating or recovering any proper

ty or person

involved i n the crime,”because

the defe ndant tur ned himself

in to law enforcement and gave a statement. See Tenn. Code Ann. § 40-35-113(10). It also applied the “catch-all” mitigating factor (13), finding that the defendant had expressed genuine remorse for

the crimes. See Tenn. Code Ann. § 40-35-113(13). It sentenced him to seventeen years for the especially aggravated robbe

ry conviction and four and one-half years f or the aggravated bur

glary conviction and ordered the sentences to run con curren tly pursuant to the ple a agreement.

The defendant challenges the enhancement factors that the trial court applied and contends that it should have also applied mitigating factors (4), (6), (7), (11), and (12). Acc ordingly, he argues that he is an especially

mitigated offender because he has no prior

felonyconvicti ons and on ly miti gating factors and no enhancing fa ctors apply. See Tenn. Code Ann. § 40-35-109. The stat e concedes that the trial court erroneously applied enhancement factor (6), regarding particularly great injuries, to the defendant’s especially aggravated robbe

ry conviction but contends that the sentences are otherwise proper and that the ef fective seventeen-y

ear sentence should be affirmed.
Appellat e review of sentencing

is d e novo on the record with a presumption that the trial court’s determin ations ar e correct. Tenn . Code Ann . § 40-35- 401(d). A s t he Sentenc ing Commission Comments to this section note, the burden is now on the defendant to show that the sentence is imprope

r. This means that if the trial court followed the statutory sente ncing procedure, made findi ngs of fact that are adequa tely supported in the rec ord, and gave due consideration and proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb

the sentence even if a different r esult were preferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In conducting a de novo review, we must consider (1) t he evidence, if any , received at the trial and sentencing hear ing, (2) the presentence re port, (3) the principles of sentencing and argume nts as to sentencing alternatives, (4) the nature a nd chara cteristi cs of the

criminal conduct,-6-

(5) any mitigating

or statuto

ry enhanc ement fa

ctors, (6) any state

ment that the defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991) ; State v. Moss , 727 S.W.2d 229 (Tenn. 1986). We note that althoug h the def endant e ntered g uilty pleas to th

e offen ses, he di d not include in the re cord on a ppeal a t ranscr ipt of the g

uil ty pl ea hearing at which the convicting evidence would be p

resente d by

stipulatio n or testimony. A guilty plea hearing often provides an importantoccasion for the state to present its proof, a

nd thus, it isthe equiv alent of a trial a nd should be made par

t of the record on a

ppeal in order to comply with Tenn. Code Ann. § 40-35-210. The defendant has the resp onsibility of prepa ring a r ecord th at conve

ys a fair, a ccurat e and co mplete account of what transpired with respect to those issues that are the bases of appeal. T.R.A.P. 24(b). Absent the guilty plea

hearing, in which facts are pr esented, we may presume tha t the trial court was justified in applying the e nhancement and

mitigating factors. See, e .g. , State v. Keen , 996 S.W.2d 842, 844 (Ten n. Crim. App . 1999). Nevertheless, in the present case, we believe the evidence pr esentedat the sentencing hearing pr ovides sufficient facts about the circumstances surrounding the offenses for us to examine the propriety of the defendant’s sentence on the pre sent record.

The defenda

nt contends that the

trial cou rt should not ha ve enha

nced his s entence s with enhancement

factor (4), tha t the victim was par

ticularl y vulnerabl e due to

age or physical condition. He argues that the record is devoid of proof that the victim’s age or phy sical condition was a factor in planning the crimes. Inste ad, he asserts that the crimes revolved around stealth rather than force
as he and Downey

intended to sneak

into the victim’s home while he was asleep. He points out that he had never seen the victim before the off enses and that the record contains no proof that Brown told him the victim’s age or size before the crimes. The sta te contends that the record supports the trial cou rt’s fin ding that the victim was particularly vulnerable and shows that the victim’s vulnera bil ity p layed a pa

rt in the crimes. Additionally, it arg ues that whether the defendant was
aware of the vic tim’s phy sical co ndition at t he time of

the offe nses is irr elevant

.
In apply ing enh anceme

nt fa ctor (4) , the tria

l court fo und that the victim w as “par ticularl y vulnerable” and concluded that enhancement factor (4) focuses upon the victim’s condition and that the defendant’s advance knowledg e of that condition is irrelevant. Our supreme court has held that factor (4) “relates more to the natural phy sical andmental limi tations of the victim

than mer ely to the victim’s age.” State v. A dams , 864 S.W.2d 31, 35 (T enn. 1993). Pa rticular vulnera bility is shown when, becaus e of age o r physica l or me ntal c ondi tion , the v icti m is “i ncapab le of r esist ing, summoning help, or testifying against the perpetrator.” Id.

The defendant relies upon State v. Butler , 900 S.W.2d 305 (Tenn. Crim. App. 1994), to argue that the victim’s age or phy sical condition had to be a factor in the planning or the commission of the crime for enhancement factor ( 4) to apply. In Butler , the defendant shot an elder ly w oman. This court held that “during the commission of the crime,” the defendant must have taken adva ntage of the victim’s inability to resist, summon help, or testify against the defendant in order for factor (4) to apply. Id. at 313. Because the victim was unexpectedly shot from a distance, we concluded that her age and phy sical condition were not factors in the commission of the offense. Id.-7-

In t he p resent case, the defendant and c odefendants did take advantage of the victim’s physical condition in perpetrating the offenses. The sixty -six-year-old victim weig hed just over one hundredpounds and lived alone. Brown knew the victim and said in her statement that Downey was to hit the vic tim and kno ck him out. The def endant sa w the vict im as Downey

was bea ting him. Despite the defendant’s insistence that the crimes centered around stealth, the evidenc e reveals that the victim’s fr a il stature prevent ed him fro m resistin g Downe y’ s beating

and rend

ered him particularly vulne

rable.
Also, our sup reme co urt h as stated that fac tor (4) h

inges up on the vic tim’s vulne rability relative to the crime committed. State v. L ewis , 44 S.W.3d 501, 505 (Tenn. 2001 ). It does not require the state to show that the defendant evaluated vulnerabilities and acte d to capitalize on them. Id. We conclu de that the trial c ourt prop erly applied e nhance ment fac tor (4) to

both sente

nces.
The defenda

nt conten ds that the trial cou rt erron eously applied factor (5), that the defendant allowedthe victim to be treated with exceptional cruelty . He argues that the proof does not re veal
a level of cruelty ove

r that req uired to s how serio

us bodily injury , which is a

n elemen t of espe cially aggravated

robbery. I

n applying

factor (5), the trial cou rt found t hat the de fendant didnot make any effort to stop Downey a s he was beating the victim. The state contends that the evide nce supp orts the trial cou

rt’s a pplication of this factor. It arg ues that the elderly

victim was struck on the head
numerous times w it h a Mag flashlight, left unconscious and blee ding by the de fendant and codefendants, and spent four day s in intensive care in a coma.

The application of factor

(5) requires “exceptionalcruelty,” w hich is usually found in cases of abuse or torture. Se e State v. Will iams , 920 S.W.2d 247, 250 (Tenn. Crim. App. 1995). Our supreme court has held that the facts must support a finding of “‘exceptional cruelty ’ that ‘demonst rates a culpability d

istinct fr om and app

reciab ly greater than that

incident to’” the crime. Statev. Poole , 945 S .W.2 d 93, 9 8 (Ten n. 199 7) (qu otin g Statev. Jones , 883 S.W.2d 597, 601 (Tenn. 1994)). In other words, proper application of this factor requires a fin ding of cruelty “over and above” what is required for the offe nse itself. State v. A

rnett , 49 S.W.3d 250, 258 (Tenn. 2001).
Especia lly aggravated robbe

ry require s the intentional or knowin g theft of anothe r’s prop erty from his or her person by

violence or putting the person in fear, the use of a deadly weapon, and

that the victim suffer serious bodily injury . Tenn. Code Ann. § 39-13-4 03(a); see also Tenn. Code Ann. § 39-13-401(a). “Serious bodily inj ur y” is defined as “bodily injury which involves: (A) A substantial risk of

death; (B) Protracted unconsciousness; (C) Extreme phy sical pain; (D) Protracted
or obvious dis figure

ment; or ( E) Protra cted loss or substa

ntial impa irment of a functi on of a bo dily member, organ or mental faculty .” Tenn. Code Ann. § 39-11-106(a)(34). I n the present case, the evidence presented at the sentencing hearing shows that Downey struc

k the elderly victim in the hea d witha Mag f

lashlight six times, a

nd the def endant sa id he saw Downey

hit the victim three or four times. Following the beating, the defenda nt and Downey f

led the trailer . As a

resul t of th e beati ng, the victim was bruis ed an d bloo dy . Wh en his son found him the next morning, he was unrecog nizable and inc oherent, and h e remained in a coma for four day s. In Poole , our supr eme court concluded that knoc

king the elderly victim unconscious and leaving her on the floor bleeding-8-

under circumstances making it unlikely that she would soon be discovered or receive t reat ment demonstrateda greater culpability than that needed for the commission of especial ly agg ravated
ro bb er y. 945 S.W.2d at 99. The court noted that the defendants knew the victim lived alone. Id. We believe Pooledictates a similar result in this case. Thus, the evidence doe s not prepond erate agains tthe trial

court’s finding

that the d efenda nt allowe d the vict

im to be treated with exceptional
cr ue lt y. Serious bodily injury is not an element of aggra vated burglary , and therefore, we hold that factor (5) was also properly

applied to this conviction based upon the defendant allowing Downey to beat the victim. See Tenn. Code Ann. § 39-14-403.

The defenda

nt conten ds and the

state co ncedes t

hat the tr ial court improperly applied enhancement

factor (6), that thevictim re ceived p articula rly great persona l injuries , to his espec ially aggravated

robbery c onviction. Serious bo dily inju ry is an essential e lement of especially

aggravated
ro bb er y. Tenn. Code Ann. § 39-13-403(a)(2). Section 40-35-114 spec ifically prohibits using enhancement

factors that are elements of the offe nse, and our supreme court has held that “proof of serious bodily injury

will always constitute proof of particularly g

reat injury.” Jones , 883 S.W.2d at 602; State v. N

ix , 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995) (holding that factor (6) cannot be used to enhanc e a senten ce for e speci ally aggrava ted ro bbery). Th e defen dant d oes no t chal lenge the trial court’s application of this factor to his aggrava ted burglary

conviction, and we discern no basis to do so.

The defenda

nt contends that the

trial cou rt sh ould h ave applied the following mitigating factor s to his sen

tences:
(4) The def

endant pl ay ed a minor

role in the c ommission of the offense;

. . . ; (6) The defendant, because of y outh . . ., lacked substantial judgment in committing the offense;
(7) The defendant was motivated by a desire to provide necessities for the defendant’s family

or the defendant’s self;

. . . ; (11) The defendant, although guilty of the crime, committed th e offense under such unusual ci rcumstanc es that it i s unlikely that a sustaine d intent to v

iolate the law motiva

ted the c riminal c onduct;
(1 2) The defendant acted under dure ss or under the domination o f another person, eventhough the duress or thedomination of another person is not sufficient to constitute a defense to the crime[.]-9-

Tenn. Code Ann. § 40-35-113. Before the sentencing hearing, the defendant

filed a notice of

tw en tytwo mitigating factors, including those he advoc ates on appeal. In his ar gument at the sentencing hearin g, the defendant referred the tr ial court to his notice of mitigating factors and mere ly stated that the testimony

su pp orted a substantial number of them. The trial court only addressed mitigating factors (10) and (13), relating to the defe ndant’s remorse, and made no fi ndin gs regarding the remaining fact

ors.
With regar

d to mitigating factor (4), the defe ndant argues that his ro le in the o ffense s was a minor one bec ause he d

id not k now the vi ctimbeforehand and was not involved in planning the crimes. He argues that he did not injure the victim and did not enter the h ouse until he heard Downey stri king t he victim . We believe the evidence does not support a conclusion that the defendant’s rol e was mino r. He tes tified tha

t he was su

ppose to e

nter the victim’s tr

ailer with Downey but, inste ad, rema

ined in the

doorway and watc hed bec ause he w as afra

id. He sub sequentl

y entered the tra iler and admit

ted remo ving the

victim’s c ontainer

of coins f

rom the tr

ailer. T his evidence shows that the defendant acted as a lookout and helped remove the victim’s property and does not reflect that his role was minor.

With respec t to mitiga

ting fa ctor (6) , the def

endant a rgues t hat he la cked substantial judgmen t in committing

the offe nses bec ause he w as nineteen y ears old , had only a tenth-grade

education, and
was a follower rather than a leader. When dete rmining the applicability of mitigating factor (6), the court should consider “the defendant’s age , educati o n, maturity, experience, me ntal capacity

or developm ent, and any

other pe rtinent c ircumsta

nce tend ing to demonstrate the defendant’s ability
or inability to appreciate the nature of his conduct.” Adams , 864 S.W.2d at 33. As the sta te points out, the de

fendant was no lon ger a m

inor and w as living

on his own with his girlfriend. Alth ough he has no p rior criminal rec ord, the d efenda nt’s mothe

r testified that he h ad been in trouble

as a juvenile . This evidenc e does no t revea l that the d

efenda nt lacke d substant

ial judg ment bec ause

of his you th and limit

ed educ ation. Ad

ditionally , we note

that the defendant testified that Brown and Downey contacted him about participating in the offenses, left for a

time, then returned and picked him up aroun d midnigh

t before the offe nses. Pre sumably , it was dur ing the interval

before his codefe ndants’ re turn that he told his g irlfrie nd that he

was going to pa

rticipat e in the of

fenses i n order to get money

to pay their re

nt. These circu ms tances reflect that the defendant made a calculated

judgment about participating in the offenses and belie the a pplication of mitigating factor (6).

The defendant contends that the trial court should have applied mitigating factor (7), that he committed the crimes in order to obtain necessities, because he committed the offe

nses in or der to get money for his ov erdue r

ent and e lectric bill. He points out thatat the time, his pregnant girlfriend
was close t o delivery and tha t he used the proceeds of the robbery to maintain their shelter an d el ec tr ic it y. The state argues that the defenda nt admitte d that he w as unempl oye d at the tim e of the offenses because

he was to o lazy

to look for a job. We also note that the pres entence

report r eveals that the defe ndant had a sparse employ ment histor

y a nd larg ely relied upon h is mother to support him. We do no t believe

mitigati ng fac tor (7) a

pplies in th

ese cir cumstanc es.-10-

Fi na ll y, the defendant argues that his sentence s should have been mitigated because he ha d
no sustained intent to violate the law and was acting under the domination of his codef endants. See Tenn. Code Ann. § 40-35-113(11)-(12). He arg ues that the record does not reveal that he had c hosen
a criminal lifestyle. Rather, h e asser ts th at his per sonal cir

cumstanc es and the

solicitat ion of his codefe ndants lured him into the commission of the offe nses. The state ar gues tha t the rec ord ref

lects that the defendant had a sustained intent to rob the victim in order to ge t money for his bills. It maintains that he agreed to bre ak into the victim’s house to steal his money and then f ollowed through withthose plans. Additionally, it contends that although the de fendant’s mother testified that he was a follower rather than a leader, the record contains no proof that the defenda nt was threatened

or coer ced into c ommitting

the crime s. We agree with the state. The evidence shows that the codefendants contacted the defe ndant about par

ticipatin g in

the offenses earlier in the evening and then returned to get him around midnight. He said that he c ommitted the offenses to get money for his bills an d admi tted that he helped carry items out of the house and received $1000 of the proceeds of

the offenses. We believe the defendant’s conduct r eflectsa sustained intent

to violate the law. Finally, the r

ecord reflects that the defendant wa s motivated to participate in the offenses by his desire to get

money and not bec ause he was pressur ed by his codef endants. This fac tor also does not a

pply to the def

endant’ s sentenc es.

We conclude that the trial court properly applied enhancement factors (4) and ( 5) but
errone ously

enhanc ed the defendant ’s esp ecial ly ag gravated robbery sentence with enhancement factor (6). None of

the additional mitigating factors advanced by the defendant on appeal apply

. In light of the severity of

the victim ’s injurie s, we believe that the seventeen-y ear sentence imposed for the especially a

ggravated robber

y co nvi ction is justified despite the erroneous application of enhancement

factor (6). Based on

the foregoing and the record as a whole, we affirm the sentences imposed by

the trial court.

___________________________________ JOSEPH M. TIPTON, JUDGE