State vs. Vickie Herron/Wanda Griffin
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON AUGUST SESSION, 1997 FILED December 31, 1998 STATE OF TENNESSEE, Appellee, VS. VICKIE R. HERRON, WANDA L. GRIFFIN, Appellants. ) ) ) ) ) ) ) ) ) ) ) C.C.A. NO. 02C01-9702-CR-00067 Cecil Crowson, Jr. Appellate C ourt Clerk SHELBY COUNTY HON. JAMES C. BEASLEY, JR. JUDGE (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 Assistant Public Defender 201 Poplar, Suite 2-01 Memphis, TN 38103 (Attorney for Vickie R. Herron) JOHN KNOX WALKUP Attorney General and Reporter MICHAEL E. SCHOLL 200 Jefferson Avenue, Suite 202 Memphis, TN 38103 (Attorney for Wanda L. Griffin) KENNETH W. RUCKER Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General JAMES A. WAX Assistant District Attorney 201 Poplar Avenue, Third Floor Memphis, TN 38103 OPINION FILED ________________________ CONVICTIONS FOR AGGRAVATED ROBBERY AFFIRMED; CONVICTIONS FOR AGGRAVATED ASSAULT REVERSED AND DISMISSED. JERRY L. SMITH, JUDGE OPINION On June 20, 1996, a Shelby County jury convicted Appellants Vickie R. Herron and W anda L . Griffin of agg ravated ro bbery an d aggra vated as sault. After a sentencing hearing 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 years for aggravated assault. Appellants challenge both their convictions and their sentences, raising the following issues: 1) whether the trial court properly denied Appellant Griffin’s motion to sever her trial from the trial of Appellant Herron; 2) whether Appellants’ convictions for both aggravated robbery and aggravated assault violate principles o f double jeopa rdy; 3) whether the evidence was sufficient to support 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 evidence; 5) wheth er the tr ial cou rt erred when it failed to strike the State’s notice of enhancement factors; 6) whether the trial court properly sentenced Appellant Griffin. After a review of the record, we affirm the judgment of the trial court in part and reverse in part. I. FACTS Bettye Knight, a sixty-nine year old resident of Memphis, Tennessee, testified that on September 28, 1995, she drove her car to a Mem phis grocery store and parked in the second space from the door. Before Knight could exit her car, another car driven by Appellant Herron pulled up next to her and parked at a “funny angle.” Because Knight had recently received her car as a gift, she waited for the occupants of the other car to get out of firs t so tha t her ca r would -2- not be dented. When Appellant Herron and her passenger, Appellant Griffin, made no attempt to exit their car, Knight got out of her car and loc ked the doo r. Knight testified that when she walked between the two cars, Griffin reached out the window of the other car and grabbed Knight’s purse that contained $60 and three credit cards. Knight then lost her balance 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 testified that she sustained a broke n arm as we ll as various injuries to her legs during this incident. Lieutenant Willia m W alsh of the Memphis Police Department testified that on October 1, 1995, he received a report that two fema les we re hea rd argu ing in an apartment 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 iscovered three credit cards in the name of Bettye Knight. Walsh testified that the credit cards were in a trash can along w ith some receipts a nd clothin g tags. II. SEVERANCE Appellant Griffin contends that the trial court erred when it denied her motion to sever her trial from 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 that the trial court shall grant a severance of defend ants if deemed appropriate to promote or achieve a fair determination of -3- a defendant’s guilt or innoc ence . “W hethe r to gran t a seve rance is within the trial judge ’s sound discre tion.” State v. Ensley, 956 S.W .2d 502 , 508 (Tenn. Crim. App. 1996). “The exercise of that discretio n will not be reversed absent an affirmative showing of prejudice.” Id. “In other words, the record must demonstrate that the defendant was clearly prejudiced to the point that the trial court’s discretion ended and the granting of [a] severance became a judicial duty.” Parha m v. State , 885 S.W.2d 375, 383 (Tenn. Crim. App. 1994) (citation omitted). “The trial court, however, must not only protect the rights of the accused, it must also protect the rights of the state prosecution, and ‘when several persons are charged jointly with a single crim e . . . the state is e ntitled to have the fact of guilt determined and punishment 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 this case because after Herron testified, the State cross-examined her about a pre-trial statement she ha d mad e in which she state d that both Appellants had used Knigh t’s credit cards to purc hase clothing. H owever, Griffin has failed to indic ate how she was prejudiced by the cross-examination about this statem ent. Griffin mere ly makes the concluso ry allegation that evidence of how the proceeds of the crime were used could no t have been introd uced in sep arate trials. Howeve r, even before Herron’s testimony, the State had already introduced evidence about how the proceeds were used. Indeed, Lieutenant Walsh had already testified that he found Knight’s credit cards, some receipts, and some clothing tags inside Griffin’s apartm ent. There is no indication that Walsh would not also have given this testimony in a sepa rate trial. Because Griffin has failed to show that she was -4- prejudiced, we hold that the trial court did not abuse its discretion when it denied the motion for severance. III. MULTIPLE CONVICTIONS Appellant Herron contends that convictions for bo th aggravated robbery and aggra vated assa ult for the same course of conduct violate principles of double jeopardy. We agree. In State v. Denton, 938 S.W.2d 373 (Tenn. 1996), the Tennessee Supreme Court fashioned a method by which courts should analyze a double jeopardy claim under the Tennessee Constitution: (1) a Blockburger analysis of the statutory offenses; (2) an analysis, guided by the princip les of Duch ac[ v. State , 505 S.W.2d 237 (Tenn. 1973) ], of the eviden ce us ed to p rove th e offen ses; (3 ) a con sideration of whether there were m ultiple victims or discrete acts; and (4) a comparison of the purposes of the respective statutes. None of these steps is determinative; rather the results of each must be weighed and considered in relation to each o ther. 938 S.W.2d at 381. Initially, we must start with an analysis of the statutory offenses as provided 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 transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine w hether there a re two offenses or only one is wh ether each provision requires proof of an additional fact which the other does not.” 284 U.S. at 304, 52 S. Ct. at 182. A Blockburger violation is a viola tion of th e dou ble jeopardy provisions of the constitutions of both the United States and Tennessee. -5- In order to prove ag gravated robbery, the State must show that the defendant intentionally or knowingly committed a theft of property from the person of another by violence or putting that person in fear and that the victim suffered serious bodily injury. T enn. C ode An n. §§ 39 -13-401 (a), -402(2) (1997). An aggravate d assa ult is com mitted where a defe ndan t intentio nally or k nowin gly causes serious b odily injury to a nother. Tenn. Code A nn. §§ 39-13 -101(a), -102(a)(1)(A) (1997 & Supp. 1998). The offense of aggravated robbery requires proof of a theft of p roperty, wh ereas a ggravate d assa ult does n ot. However, the offense of aggravated assault by causing serious bodily injury to another does not require proof of any additional element distinct from the elements of aggravated robbery whe re the victim suffers se rious bodily injury. Aggravated assault causing serious bodily injury to another is a lesser included offense of aggravated robbery where the vic tim su ffers se rious b odily injury. An offense is a lesser included offense “only if the elements of the included offense are a subset of the elements of the charged offens e and only if the greater o ffense ca nnot be committed without also committing the lesser offense .” State v. T rusty, 919 S.W.2d 305, 310 (Tenn. 1996). By committing the aggravated robbery in this case , Appella nts nece ssarily c ause d serio us bo dily injury to Knight. See Tenn. Code Ann. § 39-13-101(a)(2). Thus, aggravated assa ult was a lesser included offense of aggravated robbery under the facts of this case. Under the double jeopardy provisions of both the United States and Tennessee constitutions, a defendant may not be convicted of two offenses if one is a lesser inc luded o ffense of a nother. Brow n v. Oh io, 432 U.S. 161, 168, 97 S. -6- Ct. 2221, 2226–27, 53 L. Ed. 2d 1 87 (197 7); State v. Black, 524 S.W.2d 913, 915 (Tenn. 1975); State v. Green, 947 S.W .2d 186, 189 (Tenn. Crim . App. 1997 ). Therefore, only one conviction may stand. Further analysis unde r State v. Denton also indicates that double jeopardy under the Tennessee Constitution is violated by Appellants’ dual convictions. The eviden ce us ed to p rove e ach o ffense is virtually id entical. For aggravated robbery, the state proved that Appellants approached Knight, caused her to fall down by grabbing her purse, and then caused serious bodily injury by running over her. The State’s pro of for aggravated a ssault wa s that Ap pellants approached Knight, caused her to fall down by grabbing her purse, and then caused se rious bodily injury by runnin g over her. 1 Additionally, the offenses arose out of th e sam e incid ent an d involv ed on ly one victim. Moreover, the purposes of the statutes are sim ilar in that both offenses involve causing serious bodily injury to another person. The harm 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 that causes serious bodily injury, even though aggravated robbery also involves a theft and a ggravate d assa ult does n ot. 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 robbery convictions were established by proof that when Griffin grabbed Knight’s purse, Knight fell to the ground and skinned her face. We cannot agree that, without more, scrapes on the faces constitute “serious bodily injury.” Second, the State argues that the aggravated robbery convictions were established by proof that Herron seriously injured Knight when she ran over her while backing the car and that the aggravated assault conviction was supported by proof that Herron seriously injured Knight when she ran over her again while driving the car forward. There is no such proof in the record. Knight testified two different times that she was only run over once when the car moved forward. Contrary to the State’s representations that Herron testified that she ran over Knight twice, the record indicates th at Herro n denied running o ver Knigh t even on e time. -7- W e find that ag grava ted as sault is a lesser included offense of aggravated robbery under th e particula r facts of this case. We conclude that Appellants’ convictions for both aggravated robbery and aggrav ated a ssau lt violate th eir protection against double jeopardy under the United States Constitution and the Tennessee Constitution. Only one conviction can, therefore, be sustained. According ly, Appellants’ convictions for aggravated assault are reversed and the charges for that offense are dismissed.2 IV. SUFFICIENCY OF THE EVIDENCE Appellant Herro n con tends that the evidence was insufficient to support her conviction for aggra vated robbe ry.3 We disagree. When an appellant challenges the sufficiency of the evidence, this Court is obliged to review that challenge accord ing to certa in well-settled principles . A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the State's witnesses and re solves all conflicts in the testimony 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 originally cloaked with a presumption of innocence, a jury verdict removes this presumption and replaces it with one of gu ilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to demonstrate the 2 Although only Appellant Herron raised this issue in her brief, Appellant Griffin’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 Appellants also contend that the evidence was insufficient to support their convictions for aggravated assault. Because we have reversed Appellants’ convictions for aggravated assault, we need not address this issue. -8- insufficiency of the convicting evidenc e. Id. On ap peal, “the [S ]tate is entitled to the strongest legitimate view of the evidence as well as all reasonable and legitimate inference s that ma y be draw n therefro m.” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). Where the sufficiency of the evid ence is contested on appe al, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element 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 560 (1979). In conducting our evaluation of the convicting evidence, this Court is precluded from reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own inferences “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 whether by the trial court or jury shall be set aside if the evidence is insufficient to suppo rt the finding s by the trier o f fact beyond a reasonab le doubt.” See also Matthews, 805 S.W.2d at 780. Herron esse ntially argues that the evidence was insufficient to convict 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 rob Knight. We disagree. There was ample evidence, when viewed in the light most favorable to the State, for a rational jury to conclude that Herron knew that Griffin was going to rob Knight and that Herron acted with the intent of helping Griffin commit the offense. The record indicates that before they approached Knight, both Appellants walked around in the grocery store for a long period of time without picking up or buying anything. Appellants then went -9- outside, got in their vehicle, and Herron subsequently drove the vehicle over by Knigh t’s car and parked at a “funny angle .” After G riffin grab bed K night’s purse, Herron 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 cards to purchase clothing. A rational jury could infer from this evidence that Herron and Griffin waited in the parking lot for the purpose of robbing someone, that Herron drove over and parked by Knight so tha t Griffin could take her purse, that Herron ran over Knigh 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 jury could certainly infer that Herron had acted with the intent to aid Griffin in the aggravated robbery of Knight in order to sha re in the proc eeds. See Tenn. Code Ann. § 39-11-402 (1997) (“A person is criminally responsible for an offense committed by the co nduct o f anothe r if . . . [a]cting with intent to promote or assist the comm ission of the offense, o r to bene fit in the proceeds or results of the offense, the person . . . aids or attempts to aid another person to commit the offense .”). This issu e has n o merit. V. ADMISSION OF THE CREDIT CARDS AND RECEIPT Appellant Griffin contends that the trial court erred when it admitted credit cards and a re ceipt into e vidence . Specifically, Griffin claims that the credit cards and receip t were ir releva nt to the State’s case and th us, this evidence was -10- inadm issible under Rule 403 of the Tennessee Rules of Evidence4 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 discretionary with the trial judge, and her discretion will not be disturbed on appeal unless there is clearly an abuse of that discretion.” State v. Gray, 960 S.W .2d 598, 606 (Tenn. Crim . App. 1997 ). In this case, we see no reason to disturb the trial court’s ruling. The credit cards were clearly relevant because they directly linked Griffin with the aggravated robbery of Knight. The credit card receipt was a lso rele vant be caus e it showed that Griffin h ad us ed the credit c ards w ithin three hours of the robbery and thus, showed that Griffin did not merely come into possession of the credit cards at some later date. Finally, the trial court instructed the jury that they w ere not to consider this evidence for any other purpose than how it related to the alleged robbery and as sault of Kn ight. We presume that the jury follows the instructions of the trial cour t. See State v. Alvarado, 961 S.W.2d 136, 147 (Tenn. Crim. 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 ENHANCEMENT FACTORS Appellant Griffin contends that the trial court committed reversible error when it failed to strike the State’s notice of enhancement factors which was filed after the trial began. Specifically, Griffin argues that under Tennessee Code 4 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- 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 give notice of enhanc ement fac tors at least ten days before trial. We disagree. Under section 4 0-35-20 2(a), “[i]f the district attorney general believes that a defendant should be sentenced as a multiple, persistent or career offender, the district attorne y gene ral sha ll file a statement thereof with the court and defense counsel not less than ten (10) days before trial.” Tenn. Code Ann. § 40-35202(a) (1997). By its very terms, this statute applies to situations in which the State seeks to have the court sentence a defendant in a greater range, not situations 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, section 40-35-202(b) states that “[i]n all cases following a finding of guilt, the court may require that: [t]he district attorney general file a statement with the co urt settin g forth a ny enh ance men t or mitig ating factors the district attorney general believes should 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 of enhan ceme nt factors “a fter a finding of guilt.” Under Rule 12.3, “[w]ritten statements of the district attorney giving notice that the defendant should be sentenced to an enhanced punishment, for an espe cially aggravated offense, and/or as a persistent offender shall be filed not less than ten (10) days prior to trial.” Tenn. R. Crim. P. 12.3(a). T his Ru le applies to notice under section 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 526, 527 (Tenn. 199 1) (stating th at Rule 1 2.3 app lies to notice unde r section 40-35 -202(a)). -12- In this case, the trial court c lassifie d Griffin as a Ran ge I standard o ffender. In filing its notice of enha nceme nt factors, the State so ught to have the court increase Griffin’s sentence within the range, the State did not seek to enhance the sentencing range itself. Thus, neither section 40-35-202(a) nor Rule 12.3(a) is applicab le to this cas e. This iss ue has no me rit. VI. LENGTH OF SENTENCE Appellant Griffin contends that the trial court erroneously imposed a longer sentence for the aggravate d robbery conviction than she deserves.5 Specifically, Griffin conten ds that the trial court m isapp lied se veral e nhan cem ent fac tors in determining the length of her sentence. “When reviewing sentencing issues . . . including the granting or denial of probation and th e leng th of se ntenc e, the a ppella te cou rt shall conduct a d e novo review on the record of such issues. Such review shall be conducted with 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 correctness which accompanies the trial court’s action is conditioned upon the affirmative 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 review, we must consider all the evide nce, the presentence report, the sentencing principles, the enhan cing and mitigating factors, arguments of c ouns el, the a ppella nt’s 5 Griffin also challeng es the len gth of he r aggrav ated as sault sen tence a nd both A ppellants challenge the imposition of consecutive sentences. Because we have reversed Appellants’ convictions for aggravated assault, we need not address these issues. -13- statements, the nature and character of the offense, and the appellant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp. 1998); Ashby, 823 S.W.2d at 169. “The defendant has the burden of demonstrating that the sentenc e is imprope r.” Id. Because the record in this case indicates that the trial co urt failed to p roperly co nsider the sentencing principles 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 mitigating factor applied. The trial court found that mitigating factor (9) applied because, at some point, Griffin helped the police locate Herron. See Tenn. Code Ann. § 40-35-113(9) (1997). We agree that none of the other enumerated mitigating factors of Tennessee Code Annotated section 40-35-113 were applicable. 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. § 4035-114(1) (1997 ). Griffin contends that this factor was inapplicable because her previous record consisted of only misdemeanor convictions. However, the application 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 found that enha 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. -14- Code Ann. § 40-35-11 4(2) (1997). Griffin does not challenge the application of this factor and we agree that it was correctly applied. The trial court found that enh ancem ent factor (4) applied because the victim was particu larly vuln erable becau se of age or disability. See Tenn. Code Ann. § 40-35-114(4) (1997). In State v. Adams, 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 physical and mental limitatio ns of th e victim than merely to the victim’s age. . . . The factor can be used . . . if the circumstances show that the victim, because of his age or physical or mental condition was in fact “particularly vulnerab le,” i.e., incapable of resisting, summoning help, or testifying against the pe rpetra tor. Th is is a factual issue to be resolved by the trier of fact on a case by case basis. The State bears the burden of proving 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 that in order for the State to prove that this factor is applicable, “there must be evidence in the record in addition to the victim’s age.” 945 S.W.2d 93, 96 (Tenn. 1997). In this case, the trial court essentially found that Knight was “particu larly vulnerable” 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 her 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 “particularly vulnerable,” the trial court erred when it applied this fa ctor. The trial court found that enhancement factor (5) applied because Appe llants treated the victim with e xception al cruelty. See Tenn . Code An n. § 40-35-114(5) (1997). In Poole , the supreme court stated that [E]nhancement factors must be “appropriate for the offense” and “not themselves essential elements of the offense.” These limitations exclude -15- enhancement factors “ba sed on facts which are used to prove the offense” or “[f]acts w hich e stablis h the e lements of the offense charged.” The purpose of the limitations is to avoid enhancing the length of sentences based on factors the Legislature took into consideration when establishing the range of punishment for the offense. 945 S.W.2d at 98. In this case, the trial court found that Appellants had treated Knight with exce ptional cru elty because they seriously injured her when they ran over her with a car. However, this w as the very fact which was used to prove that Appellants ha d comm itted the offense of ag gravated robb ery by causing “serious bodily injury” to the victim. See Tenn . Code Ann. § § 39-13-401(a), -402(2) (1997). Thus, application of this enhancement factor was not appropriate. The trial court found that enhancement factors (10) and (16) applied because Griffin had no hesitation in committing a crime when the risk to human life was high and the re was g reat pote ntial for bod ily injury to the victim . See Tenn. Code Ann. § 4 0-35-11 4(10), (16 ) (1997). T his Court has stated that absent any proof establishing risk to life other than the victim’s, enhancement factors (10) and (16) are essential elements of the offense of aggravated robbery and cannot be used for enhancemen t. State v. King, 905 S.W.2d 207, 213 (Tenn. Crim. App. 1995 ). There is no pro of in the record that Appellants placed the life of anyone other than Knight at risk during the aggravated robbery. Thus, application of these two enhancement factors was not appropriate. Even though we hold that the trial court erred in applying some of the enhancement factors, a finding that enhancement factors were erron eous ly applied does not equate to a reduction in the sentence. State v. Keel, 882 S.W.2d 410, 423 (Tenn. Crim. A pp. 199 4). Only on e mitigatin g factor ap plies to -16- the sente nce fo r aggra vated robbe ry, and we co nclud e that it is entitled to little weight. Although Griffin eventually told the police abou t Herro n’s invo lveme nt in the offense, the record indicates that she initially lied to the police and made several inconsistent sta tements. Fu rther, two enhan cemen t factors are applicable. Not only was Griffin a leader in this offense, she also has a previous record of criminal offenses. We conclude that in light of the fact that Griffin has been convicted of three pr ior theft offen ses, her p rior record is entitled to significant w eight. Thus, we hold that the twelve year sentence for aggravated robbery is appropriate in this case. VIII. CONCLUSION Because we hold that the convictions for both aggravated robbery and aggravated assa ult in this case violate principles of double jeopardy, Appellants’ convictions for aggravated assault are reversed and the charges are dismissed. In all other respects, the judgment of the trial court is affirmed. ____________________________________ JERRY L. SMITH, JUDGE CONCUR: ___________________________________ DAVID G. HAYES, JUDGE ___________________________________ THOMAS T. WOODALL, JUDGE -17-
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