# FILED
December 31, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON AUGUST SESSION, 1997 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9702- CR-00067 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. JA MES C. BEA SLEY, J R. VICKI E R. HERRON, ) JUDGE WANDA L.GRIFFI N, ) Appellants. ) (Dire ct Ap pea l - Agg ravat ed R obb ery ) and Agg ravated Assa ult)

FOR THE APPELLANT : FOR THE APPELLEE : TONY N. BRAYTON JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 201 Poplar, Sui te 2-01 Memphis, TN 38103 KENNETH W. RUCKER (Attorney

for Vicki e R. Herron) Assistant Attorney General 425 Fifth Avenu e North MICHAEL E. SCHOLL Nashvill e, TN 37243-0493 200 Jefferson Avenue, Suite202 Memphis, TN 38103 WILLIAM L . GIB BONS (Attorney

for Wanda L. Griff in) Distri ct Attorney General JAMES A. WAX Assistant Distri ct Attorney 201 Poplar Avenue, Third Floor Memphis, TN 38103
OPINION FILED ________________________ CONVICTI ONS FOR AGGRAVATED ROBBE RY AFFI RMED; CONVI CTIONS FOR AGGRAVATED ASSAUL T REVERSED AND DI SMISSED. JERRY L . SMI TH, J UDGE-2- 

## OPINION

O n June 20, 1996, a Shelby County jury convi cted Appellants Vickie R
. Herron a nd W anda L . Griffin of agg ravated ro bbery an d aggra vated as sault. After a sentencing hea r ing on Ju ly 12, 199 6, the trial cou rt senten ced bo th Appe llants as a Ra nge I stan dard offe nders to consecutive sentences of twelve years for aggravated robbery and six year

s for aggrav

ated assault . Appellant s challengeboth their convi ctions and their sentences, raising the following issues: 1) whetherthe trial court properly denied Appell ant Griff in’s moti on to sever her tri al from the t rial of Appellant Her ron; 2 ) whether Appell ants’ convi ctions for both aggravated robbery an d aggravated assault violate principles o f double jeopa rdy; 3) whether the ev idence was suff icient to s upport Appe llant He rron’s conviction for aggra vated robbe ry; 4) whether the trial court erred when it admitted credit cards and a credit card receipt

into evi dence; 5) wheth er the tr ial cou rt erred when it failed to strike the State’ s notice of enhancement factors; 6) whether t he trialcourt properly sentencedAppellant Griffin.
After a review of

the record, we af

firm the j udgment of thetrialcourt in part and reverse in part.

I. FA CTS
Bettye Knight, a sixty-ni ne yea r old resi dent of Memphis, Tennesse e, testif ied that on September 28, 1995, she drove he r car t o a Mem phis grocery store and parked in t he second space from the door. Bef ore Knight coul d exit her car, another

car driven by Appellant Herron pull ed up next to her and parked at
a “fun ny angle.” Because Knight had recently r eceived her car

as a gift , she waited for theoccupants of t he other car t o get out of firs t so tha t her ca r would-3-

not be dented. When Appell ant Her ron and her pas senger , Ap pellant Griffi n, made no attempt to exit t heir car, Knight got out of her car and loc ked the doo r.
Knighttestified that when s he walked between the two cars, Grif fin reached out the window of the other ca r and grabbed Knight’s purse t hat contained $60 and three credit cards. Knight then l ost her bal anc e and fell to the pav emen t. Herron backed u p her car, pulled forw ard and ran over Knight, and then drove away. Knight test ified t hat she sustai ned a broke n arm as we ll as various i njuries to her legs during this incident.

Lieutenant

Willia m W alsh of the Memphis Poli ce Department test ified t hat
on October 1, 1995, he received a report that t wo fema les we re hea rd argu ing in
an apar tme nt building abou t some cred it cards that were tak en in a robbe ry. Walsh then w ent to th e apa rtmen t buildin g whe re he lo cated Griffin in the parking lot. Griffin th en too k W alsh in to her a partm ent, wh ere W alsh d is covered three credit cards in the na me of Bettye Kni ght. Walsh testified that the credit

cards were in a trash can along w ith some receipts a nd clothin g tags.

II.SEVERANCE
Appellant

Gr iffi n contends that the tri al court erred when it deni ed her motion to sever her

trialfrom that of

Appellant

Herron after

it became clear

that Herron was going to testify . Rules 14(c) (2)(I)and (ii)of the Tennessee Rules of Criminal Proced ure provid e th at the trialcourt shal l grant a s everance of defend ants if deemed appropri ate to promote or achieve a fair determination of-4-

a defendant’s

guilt or innoc ence . “W hethe r to gran t a seve rance is within the tri al judge ’s sound discre tion.” State v. Ensley , 956 S.W .2d 502 , 5 08 ( Tenn . Cr im. App. 1996). “The exer cise of t hat di scretio n wil l not be rev ersed absent an affirmative showing of prejudice.” Id. “In other words, t he record must demonstrate that

the defendant

was clearl y prejudi ced to the poi nt that t he trial court’s discreti on en ded and the granti ng of [a] s everance became a judi cial duty.” Parha m v. State , 885 S.W.2d 375, 383 (Tenn. Cr im. App. 1994) ( citati on omitted). “The trial court, however, must not o nly protect the ri ghts of th e accus e d, it must al so protect the rights of the state prosecuti on, and ‘when several persons are charged j ointly with asingle crim e . . . the state is e ntitled to have the fact of guilt determined and puni shm e nt ass esse d in a sin gle trial, unless to do so wou ld unfairly prejudice the rights of the defenda nts.’” State v. Wiseman , 643 S.W .2d 354, 362 (Tenn. Crim . App. 1982 ) (citation omitted).

Griffin essentially contends that severance was required in t his case bec ause after Herr

on testi fied, t he State cross- examined her about a pr e-tria l statementshe ha d mad e in which she state d that b o th Appellant s had used Knigh t’s credit cards to purc hase clothing. H owever, Griffi n has failed to indic ate how she was prejudi ced by the cros s-examinati on about this statem ent. Griffin
mere ly makes the concluso ry allegat ion that evidence of how t he proceeds of t he cri me were used c ould no t h ave been introd uced in sep arate trials. Howeve r, even before Herron’ s testi mony, the State had already i ntroduc ed eviden ce about how the proc eeds were used. I ndeed, Lieutenant Walsh had already testifi ed thathe found Knight’ s credit cards, some recei pts, and some clot hing tags i nside Griffin’s apartm ent. There is no indication t hat Walsh would not also have given this testimony

in a sepa rate trial . Because Grif fin has failed to

show that she was-5-

prejudiced, we hold that the trialcourt did not abuse its di scretion when it deni ed the motion for severance.

III . MULTI PLE CONVICT IONS
Appellant

Herron co ntends that convictions for bo th aggravated robbery and aggra vated assa ult for the same course of con duct viol ate princi ples of double jeopar

dy. We agree.

In State v. Denton , 938 S.W.2d 373 (Tenn. 1 996) , t he Te nnes see Supr eme Court fashioned a method by which cour ts should analyze a double j eopardy claim under t he Tennessee Constitut ion: (1) a Blockburger

analysis

of the statutory offenses; (2) an analy sis, gui ded by the princip les of Duch ac[ v. State , 505 S.W.2d 237 (Tenn. 1973 ) ], o f the eviden ce us ed to p rove th e offen ses; (3 ) a con sid eration of whether there were m ultip le victi ms or discrete acts; and (4) a comparison of the purposes of the respe ctive statutes. None of these steps i s determinative; rather the result

s of each must be wei ghed and considered in relation to each o ther. 938 S.W.2d at 381.
Initially, we must start with an anal ysis of the statu tory of

fenses as provi ded in Blockburger v . United States , 284 U.S . 299, 52 S . Ct. 180, 76 L. Ed. 2d 306 (1932). The Blockburger test states that “where the same act or transact ion constit utes a violat ion o f tw o disti nct stat utory provisions, the test to be appli ed to determine w hether there a re two offenses or only one is wh ether e ac h provisi on requires pr

oof of an addi tional f

act which t he other

does not .” 28 4 U.S. at 304, 52 S. Ct. at 182 . A Block burgerviolation is a viola tion of th e dou ble jeopardy

provisi ons of the const ituti ons of both the United States and Tennessee.-6- In order to prove ag gra vate d robbery, the State must s how that the defend ant intent ion ally or kno win gly

commi tt ed a theft

of p rop ert

y f rom the perso n of another by v iolence or putting t hat person i n fear and that th e victi m suffered seriousbodily injury. T enn. C ode An n. §§ 39 -13-401 (a), - 402(2)(1997) . An
a ggravate d assa ult is com mitted where a defe ndan t intentio nally or k nowin gly
causes serious b odily injury to a noth er. Tenn. Code A nn. §§ 39-13 -101(a), -102( a)(1) (A) (1997 & Supp. 1998). The offense of ag gravated rob bery requi res proofof a theft of p roperty, wh ereas a ggravate d assa ult does n ot. However, the off en se of aggravated assault by causing seri ous bodily injury to another does

not require proof of any

additio nal element di stinct from the elements of aggravated robbery whe re the victim suffers se rious bodily injury.
Ag gravated assault causi ng serious bodi ly inj ury to anot her is a lesse r included offense of

aggravated r

obbery wher e the vic tim su ffers se rious b odily injury. An offense i s a lesser i ncluded offense “on ly if th e elements of t he included offense are a subset of t he elements of t he charged offens e and only if the greater o ffense ca nnot be committed wit hout also committ ing the l esser offense .” State v. T rusty , 919 S.W.2d 305, 310 (Tenn. 19 96). By committ ing the aggravated robbery in this case , Appella nts nece ssarily c ause d serio us bo dily injury to Kni ght. See Tenn. Code Ann. § 39-13-101(a)(2). Thus, aggravated
assa ult was a lesser i ncluded offense of aggravated robbery und er the facts of this case.

Under the d oubl e jeo pardy prov isi ons of

both the Un ited S tates and Tennessee constit utions, a defendantmay not be convicted of two off enses if one is a lesser inc luded o ffense of a nother. Brow n v. Oh io , 432 U.S. 161, 168, 97 S.1 The S tate argu es that the evidenc e used to prove e ach off ense w as not ide ntical. First, the S tate argues that the aggravated r obbery convi ctions were est ablished by

proof that

when Griffi n grabbed Knight’ s purse, Knigh t fell to the grou nd and skinned her f ace. We cannot agree that,without more, scrapes on the faces constitu te “seri ous bodily injury.” Second, the State argues that the aggravated robbery convicti ons were establ ished by pr oof that Herr

on seriously inj ured Knight when she ran over her while backi ng the car and that the aggra vated assault

conviction was supported by proof that

Herron seriousl y inj ured Knight when she ran over her again while drivi ng the car for ward. There i s no such proof in the re cord. Knight testi fied two di

fferent times that she was only run over once when the car moved forward. Cont rary t

o the State’s representat ions that Herron testi

fied that she ran over Kni ght twice , the record indicates th at Herro n denied running o ver Knigh t even on e time. -7- Ct. 2221, 2226–27, 53 L. Ed. 2d 1 87 (197 7); State v. Black , 524 S.W.2d 913, 915 (Tenn. 1975); S tate v. Green , 947 S.W .2d 186, 189 (Tenn. Crim . App. 1997 ). Therefore, only one convict ion may stand.

Further analysis unde r State v. Denton also indi cates that double jeopar

dy underthe Tennessee Constit ution is violated by Appel la nts’ dual convict ions. The eviden ce us ed to p rove e ach o ffense is virtually id entical. For aggravated robbery, the stateproved that Appellants approached Knight, caused herto fall down by grabbing her purse, and then caused seri ous bodily injury by running
overher. The State’s pro of fo r aggr avated a ssault wa s that Ap pellants approached Knight, caused h er to fal l down by grabbi ng her purse, and then caused se rious bodily injury by runnin g over her. 1
Additionally, the offens es arose out of th e sam e incid ent an d involv ed on ly
one victi m. Moreover, t he purposes of t he statut es are sim ilar in that both off enses involve causing seri ous bodily injury to another per

son. The har m sought to be pu nishe d in ag grava ted as sault th at cau ses se rious b odily injury is encompassed in aggravated robbery t hat causes seri ous bodily injur y, ev en though aggravated robbery also involv es a theft and a ggravate d assa ult does n ot.2 Although only Appell ant Herron raised this i ssue in her brief, Appel lant Gri ffin’ s conviction for agg rava ted a ssa ult m ust a lso be reve rsed in ord er “to prev ent p rejud ice to the ju dicial p roce ss” a nd in order “to do substantial justice.” Tenn. R. App. P. 13(b); Tenn. R. Crim . P. 52(b).

3 Both Appell ants also cont end that t he evidence was i nsuffici ent to support their convicti ons for aggravated assault. Because we have r eversed Appell ants’ convictions for aggravated assaul

t, we need not address this issue. -8- We find that ag grava ted as sault is a lesser included of

fense of aggrav

ated robbery under th e particula r fa cts of t hi s case. We conclude that Appellants’ convicti ons for both aggr avated robbe ry and a ggrav ated a ssau lt violate th eir protecti on against doubl e jeopardy under the United States Constitut ion and the Tennessee C onstitu tion. Onl y one convict ion can, t herefore, be sustained. According ly, Appellants’convicti ons foraggravated assault are reve rsed and the charges for t hat offense are dismissed. 2

IV. SUFFICI ENCY OF THE EVI DENCE
Appellant

Herro n con tends that the evid ence was insuffici ent to support her conviction for aggra vated robbe ry. 3 We disagree.
When an appellant chall enges the suffi ciency of the evidence, this Court is obliged to review t hat chall enge accord ing to certa in well-settled principles . A verdictof guil ty by th e jury, approved by t he trialjudge, accr edits th e testimony of the State' s witnessesand re solves all conf licts in the testi mony in favor of the State. State v. Cazes , 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75 (Ten n. 199 2). Alth ough an ac cuse d is original ly cloaked with a presumption of innocence, a j ury verdi ct removes thi s presumption and r eplaces it with one of gu ilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn. 1982) . Hence,
on appeal, t he burden of proof rests wit h Appellant t o demonstrate th e-9-

insuffici ency of the convicti ng evidenc e. Id. On ap peal, “the [S ]tate is entitled to the strongest legit imate view of the evi dence as well as al l reasonabl e and legitimate inference s that ma y be draw n therefro m.” Id. (citi ng State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evid ence is contested on appe al, the relev ant questi on for the r

eviewing cour

t is wheth er any rationaltrier

of fact could have fou nd the accused gui lty of every el ement of the offense beyond a reasonable doubt. Harris , 839 S.W .2d at 75; Jackson v. Virgin ia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 56 0 (1979). In conducting our evaluat ion of the convi cting evidence, t his Court i s precluded f rom reweighing or reconsid ering the ev idence. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Cri m. App. 19 96); State v . Matt hews , 805 S.W.2d 776, 779 (Ten n. C ri m. App. 1990). Moreover, this Court may not substitute its own inf erences “for those drawn by the trier

of fact from circum stantial evidence.” Id. at 779 . Finally, R ule 13(e) of the Ten ness ee Ru les of A ppella te Pro cedu re prov ides, “fin dings of guilt in criminal actions whet her by the t rial cour t or jur y shall beset aside i f the evi dence is insufficient to suppo rt the finding s by the trier o f fact b eyond a reasonab le doubt.” See also Matthews , 805 S.W.2d at 780.

Herron esse ntially argues that the evidencewas insuff icient to convic

t her of aggravated robbery beca use th ere wa s no e videnc e that s he kn ew tha t Griffin
was going to robKnight. We disagree. There was ample evidence, when viewed in the li ght most favor able to th e State, for a rati onal jury to conclude t hat Herron knew that Grif

fin was goi ng to rob Knight and that Herr

on acted wit h the inte nt of helping Griffi n commit the offense. The record i ndicates t ha t before they approached Knight, bot h Appellants walked around in the grocery store for a long p erio d of time wi thout pic king up or buyi ng anything. Appellants then went-10-

outside, got in t heir vehi cle, and Herron subsequently drove the vehicle ov er by Knigh t’s car and parked at a “funny angle .” After G riffin grab bed K night’s purse, He rron pulled forward a nd ran over an d seriously injured K night. Therea fter, Herron and G riffin divide d the m oney b etwee n them and u sed K night’s credit
c ards to purchase cl othing. A r ational jury coul d infer f rom this evi den ce tha t Herron and Griffi n waited i n the parki ng lot for the purpose of

robbing someone, thatHerron drove over and parked by Kni ght so tha t Griffin could take her purse, thatHerron ran overKnigh t in an a ttemp t to esc ape, a nd tha t Herro n and Griffin later split up the proce eds o f the rob bery a s they h ad ag reed. A rationa l ju r y could certainly infer

that Herron h ad acted wit h the inte nt to ai d Griffi n in the aggravated robbery of Knight in or

der to sha re in the proc eeds. See Tenn. Code Ann. § 39-11-402 (1997)(“A person i s criminal ly respo nsibl e for an offense committed by the co nduct o f anothe r if . . . [a]cting with intent to promote or assi st the comm ission of the offense, o r to bene fi t in the proceeds or results of the offense, the person . . . aid s or attempts to aid anot her person to commit the offense .”). This issu e has n o merit.

V. ADMISSI ON OF THE CREDIT CARDS A ND RECEIPT
Appellant

Griffi n contends that the t rial cour t erred when i t admittedcredit cards and a re ceipt into e vidence
. Specifically, Griffi n claims that the credit

cards and receip t were ir releva nt to the State’s case and th us, this evid ence was4 Rule 403 s tates that “[ a]ltho ugh relev ant, e viden ce m ay be e xclu ded if its pro bative value is sub stan tially out weig hed by the dang er of unfa ir prej udic e, co nfus ion of the is sue s, or m islead ing th e jury, or by considerations of undue delay, waste of time, or needless pre sentation of cumulative evidence.” Tenn. R. Evid. 403.
-11- inadm issible under Rule 40 3 of the Tennessee Rules of Evidence 4 becau se its probative value wa s substa ntially outwe ighed b y its unfairly pre judicial effec t.

“The admission of evidence is largely disc retionar y with t he trialjudge, and her discreti on will not be dist urbed on appeal unless there is c learly an abuse of thatdisc re tion.” State v. Gray , 960 S.W .2d 598, 606 (Tenn. Crim . App. 1997 ). In this case, we see no reason to dist urb the trialcourt’s ruling. The credit car ds
were clearly

relevant

because they di r ectly l inked Grif fin wit h the aggravated robbery of Knight. The credit car d receipt

was a lso rele vant be caus e it showed thatGriffin h ad us ed the credit c ards w ithin three hours of the robbery and thus,
s how ed that Grif

fin did not merely come i nto possession of the credit cards at
some later date. Finally, the t rial cour t instructed the jury that they w ere not to consider

this evi dence for any ot her purpose than h ow it rel ated to the alleged robbery and as sault of Kn ight. We presume that the jury follows the inst ructions of the trial cour t. See State v. Alvarado , 96 1 S. W.2d 1 36, 147 (Ten n. C ri m. App. 1996). The tr ial cou rt did no t abus e its disc retion w hen it a dmitte d the c redit cards a nd the re ceipt into e vidence . This issu e has n o merit.

VI. NOTICE OF EN HANCEMENT FA CTORS
Appellant

Griffin contends t hat the trialcourt committed reversi ble error when it fail ed to strike the State’s notice of enhancement factors which wasfiled after the tri al began . S pecifi cally, Griffi n argues that under Tennessee Code-12-

Annotated section 40-35 -202(a) and Rule 12.3 of the Tennessee Rules of Criminal Proce dure, th e State was re quired to giv e not ice of enhanc ement fac tors at least ten days befor

e trial . We disagree.

Under section 4 0-35-20 2(a), “[i] f the district attorney

general bel ieves that
a defendant shoul d be sentenced as a mult iple, pe rsistent or career of

fender, t he district attorne y gene ral sha ll file a statement thereof wit h the court and defense counsel not less t han ten (10) day s before trial.”

Tenn. Cod e Ann. § 40-35- 202 (a) (1997) . By its very te rms, this statute appl ies to si tuations in which t he State seeks to have t he court sentence a defendant i n a greater r an ge, no t situati ons in whic h the S tate se eks to have th e cou rt enha nce a sente nce w ithin
a range. In fact , secti on 40-35-202(b) states t hat “[i ]n all cases foll owing a fi nding of guilt, the court may require t hat: [t ]he dist rict at

torney gener

al fil e a statement with the co urt settin g forth a ny enh ance men t or mitig at ing factors the di strict attorney general bel ieves shoul d be considered by the court.” Tenn. Code Ann. § 40- 35-20 2(b)(1 ) (1997 ). Thu s, sect ion 40 -35-2 02 cle arly allow s the filin g o f enhan ceme nt factors “a fter a finding of guilt.”

Under Rule 12.3, “[w]ritten statements of the distri ct attorney gi ving notice t ha t the defendant

should be sentenced to an enhanced punis hment, for an espe cially aggravated of fense, and/o r as a persi stent off ender shall be fil ed not less than ten (10)days prior to tri al.” Tenn. R. Crim. P. 12

. 3(a). T his Ru le appliesto notice under secti on 40- 35-202 (a), not to notice of enhancement factors. See Tenn . R. Crim . P. (Adviso ry Com mittee C omm ents). See also State
v. Lowe , 811 S.W.2d 5 26, 5 27 (Te nn. 199 1) (stating th at Rule 1 2.3 app lies to notice unde r section 40-35 -202(a)).5 Griffin also challeng es the len gth of he r aggrav ated as sault sen tence a nd both A ppellants challenge the impositi on of consecutive sentences. Because we have reversed Appel lants’convictions for aggravated assault, we need not address these i ssues.

-13- In this case, the tri al court c lassifie d Griffin as a Ran ge I standard o ffender. In fili ng i ts notice of enha nceme nt factors, the State so ught to have the court increase Gr iffin’s sentence within the range, the State did not seek to enhance the sentencing r

ange itsel f. Thus, nei ther secti on 40-35-202(a) norRule 12.3(a) is applicab le to this cas e. This iss ue has no me rit.

VI. LENGTH OF SENTEN CE
Appellant

Griffi n contends that

the trialcourt err

oneously imposed a l onger sentence forthe aggravate d robbery conviction than she deserves. 5 Specifically, Griffin conten ds that the tr ial c ourt m isapp lied se veral e nhan cem ent fac tors in determining t he length of her sentence.

“When reviewing sentencing i ssues . . . inc luding t he grantingor denial of probation and th e leng th of se ntenc e, the a ppella te cou rt shall conduct a d e novo revi ew on the record of such issues. Such review shal l be conducted wi th a presumption that the determ inations mad e by the court from which the ap peal is taken are corre ct.” Tenn . Code Ann. § 4 0-35-40 1(d) (199 7). “Howeve r, the presumption of correct ness which accompanies t he tria l court’s action is conditi oned upon the affir mative show ing in the record tha t the trial court considered the se ntenc ing prin ciples and a ll relevant fac ts and circu mstan ces.” State v. Ashby , 823 S.W .2d 166 , 169 (T enn. 19 91). In conducting our rev iew, we must consider all the evide nce, the pre sente nce report, the sentenci ng principles, the enhan cing and mitigating factors, arg ume nts of c ouns el, the a ppella nt’s-14-

statements, the nature and charac terof the off

ense, and the appel lant’s potential forrehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210( b) (1997 & Supp. 1 998); Ashby , 823 S.W.2d at 169. “ The defendant has the burden o f demonstratingthat the sentenc e is imprope r.” Id. Because the record in this
cas e indicates that the trial co urt failed to p roperly co nsider the sente ncin g principl es and all rele vant facts and c ircum stanc es, ou r review is de novo without a presumption of correctness.

In sentencing G riffin to twelve years for aggravated robbery, the trial court found that only

one mitigat ing factor applied. The trialcourt found thatmitigati ng factor (9) appli ed because, at some poi nt, Grif fin help ed the poli ce locate Herr on. See Tenn. Code Ann. § 40-35-113(9)(1997). We agree that none of the other enumerated mitigati ng factors of Tennessee Code Annotated section 40- 35-113 were applicab le.

The trial court found that en hanc eme nt facto r (1) ap plied b ecau se Gr iffin had a previous history of crimina l conviction s or crimin al beha vior in additio n to those neces sary to es tablish the approp riate rang e. See Tenn. Code Ann. § 40- 35-114(1) (1997 ). Griffin contends that this factor was inapplicable becauseher p revio us record consi sted of onl y misdemeanor convic tions. However, the applicat ion of this factor is not limited to previou s felony co nvictions. See State
v. Millbrooks , 819 S.W.2d 441, 446–47 (Tenn. Crim. App. 1991). Thus, the trial court correctly app lied this factor.

The trial court foundthatenha ncem ent fac tor (2) a pplied beca use G riffin
was the lea der in a n offen se invo lving two or mo re crim inal actors
. See Tenn.-15-

Code Ann. § 40-35-11 4(2) (1997). Griffi n does not chall enge the appli cation of this fac tor and we agree t hat it was correctly applied.

The trial court found that enh ancem ent factor ( 4) appl ied because the victim was particu larly vuln erable becau se of age or disability. See Tenn. Code Ann. § 40-35-114(4) (1997). I n State v . Ad ams , the Tenne ssee Sup reme C ourt provided a fram ework for app lication of this factor: [T]he vulnerab ility enhancem ent relates mo re to the natural phy sical and mental limitatio ns of th e vic tim than merely to t he victi m’s age. . . . The factor can be used . . . if t he circumstancesshow that the vict im, because of his age or physical or mental condit ion was in fac t “particularly vulnerab le,” i.e., incapable of resisti ng, summoning help, or testif ying against the pe rpetra tor. Th is is a fact ual issue to be resolved by the trier of fact on a case by

case basis. The State bears the burden of provi ng the victim’s limita tions rend ering him or her pa rticularly vulne rable. 864 S.W.2d 31, 35 (Tenn. 1993). In State v. Poo le , the suprem e court stated th at in or der for the State to prove that this f actor is applicabl e, “there mustb e evidence in the record i n additi on to the vi ctim’s age. ” 945 S.W.2d 93, 96 (Tenn. 1997). In thi s case, the t rial court essent ially found that Knight was “particu larly vulnerabl e” because she was sixty-nine years old at the time of the robbery. Indeed, there is no evidenc e in the rec ord that, oth er than h er age, Knight had any other ph ysical or m ental limitatio ns. Bec ause th e State fa iled to me et its burden of showing that Knight was “parti cularly

vulnerabl e,” the t rial cour t erred when it applied this fa ctor.

The trialcourt found that enhancement factor (5) applied be cause Appe llants treated the victim with e xception al cruelty. Se e Tenn . C ode An n. § 40-35-114(5) ( 1997). In Poole , the supreme cour t stated t hat [E]nhancementfactors must be “appropri ate for t he offense” and“not themselvesessentialelements of the offense.” These limitations excl ude-16- enhancement factors “ba sed on facts which are used to prove the offense” or “[f]acts w hich e stablis h the e le ments of the offense charged.” The purpose of th e li mi tations is to avoi d enhancing the l ength of sentences based on factors the Legislature took into considerat ion when establ ishing the range of puni shment for the offense. 945 S.W.2d at 98. In this case, the tri al court f ound that Appell ants had treated Knightwith exce ptional cru elty because they ser iously i njured her when they ran
overher with a car. However, this w as the very fact which was used to prove thatAppellants ha d comm itted the offense of ag gravated robb ery by c ausing “seriousbodily injury” to the victim. See Tenn . Code Ann. § § 39-13- 401(a), -402(2) (1997). Thus, applicat ion of thi s enhancement factor was not appropriate.

The trialcourt found that enhanc ement fac tors (10) and (16) appli ed because Griffi n had no hesitat ion in committ ing a cri me when the risk to human life was high and the re was g reat pote ntial for bod ily injury to the victim
. S e e Tenn. Code Ann. § 4 0-35-11 4(10), (16 ) (1997). T his Court has stated t hat absent any proof establishi ng risk to li fe other than the vi ctim’s, enhance me nt factors (10) and (16) are ess ential e lements of t he offense of aggravated robbery and cannot be used for enha nc emen t. State v. King , 905 S.W.2d 207, 213 (Tenn. Cri m. App. 1995 ). There is no pro of in the record that Appell ants placed the life of anyone other than Kni ght at ri sk during t he aggravated robbery. Thus, applicat ion of the se two enhancement fact ors was not approp riate.

Even though we hold that th e t rial cour t erred i n applying s ome of the enhancement factors, a fi nding that enhancement factors w er e erron eous ly applied does not equate to a reducti on in the sentenc e . State v. Keel , 882 S.W.2d 410, 423 (Tenn. Crim. A pp. 199 4). Only on e mitigatin g factor ap plies to-17-

the sente nce fo r aggra vated robbe ry, and we co nclud e that it is entit led to l ittle weight. Although Griffin event ually tol d the police abou t Herro n’s invo lveme nt in the offense, the record i ndicates t hat she ini tially lied to the po lice and made
sever al i nconsistent sta tements. Fu rther, two enhan cemen t factors are applicabl e. Not only was Gri ffin a l eaderin thi s offense, she also hasa previous record of crimi nal offens es. We conclude that in li ght of the fact that Grif

fin has been convicted of three pr ior theft offen ses, her p rior record is enti t led to significant w eight. Thus, we hold that the twelve year sentence for aggrav ated robbery i s appropriate in thi s case.

VII I. CONCLUSI ON

Because we hold t hat th e convicti ons for both aggravated r obbery and aggravated assa ult in this case viol ate princi ples of double jeopardy, Appell ants’ convicti ons foraggravated assault are reve rsed and the charges are dismissed. In all other respect

s, the j udgment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ THOMAS T. WOODALL, J UDGE