        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE           FILED
                       OCTOBER 1997 SESSION
                                                    January 16, 1998

                                                    Cecil W. Crowson
                                                     Appellate Court
                                                          Clerk
STATE OF TENNESSEE,              )     No. 01-C-01-9612-CC-00506
                            )
     APPELLEE,                   )     Coffee County
                            )
v.                          )    Gerald L. Ewell, Sr., Judge
                            )
HOLLY LACK EARLS,           )    (Attempt to Commit Felony Murder
                            )     and Attempt to Commit Especially

     APPELLANT.             )     Aggravated Robbery)




FOR THE APPELLANT:                     FOR THE APPELLEE:

T. Arthur Jenkins                      John Knox Walkup
Attorney at Law                        Attorney General & Reporter
111 North Irwin Street                 500 Charlotte Avenue
Manchester, TN 37355-0126              Nashville, TN 37243-0497
(Appeal Only)
                                 Lisa A. Naylor
B. Campbell Smoot                     Assistant Attorney General
District Public Defender              450 James Robertson Parkway
605 East Carroll Street               Nashville, TN 37243-0493
Tullahoma, TN 37388-0260
                                 C. Michael Layne
                                 District Attorney General
                                 P. O. Box 147
                                 Manchester, TN 37355




OPINION FILED: _________________________________
AFFIRMED IN PART AND REVERSED IN PART



Joe B. Jones, Presiding Judge




                            OPINION



     The appellant, Holly Lack Earls (defendant), was convicted of

criminal attempt to commit especially aggravated robbery, a Class B

felony, and criminal attempt to commit first degree felony murder by a

jury of her peers. The trial court found the defendant was a standard

offender and imposed a Range I sentence consisting of confinement for

twenty (20) years for attempted first degree murder and ten (10) years for

attempted   especially   aggravated     robbery   in   the   Department   of

Correction. The trial court also imposed a $25,000 fine for each count for

a total of $50,000 in fines. The trial court ordered the sentences are to

be served consecutively for an effective sentence of thirty (30) years.

The defendant presents two issues for review. She contends (a) the

evidence was insufficient as a matter of law to convict her of attempt to

commit especially aggravated robbery and attempt to commit first

degree felony murder and (b) her sentence was excessive.            After a

thorough review of the record and the briefs submitted by the parties, it

is this court’s opinion the judgment of the trial court should be affirmed

in part and reversed in part.




                                    2
                                     I.




     The victim, Grover McCullough, was 82 years of age.           He lived

alone.   The victim knew the defendant, Holly Lack Earls, and her

husband, Glen Earls, also known as Herbie Earls [Earls]. McCullough had

loaned the Earlses money and sold them cars in the past; McCullough had

also provided financial assistance to the defendant’s mother. The

defendant frequently stopped by the victim’s house from time to time to

check on his well-being.

     On February 26, 1995 the defendant and her husband stopped to

visit the victim. Although the defendant usually took her baby when she

visited the victim, she did not do so on this occasion. The victim testified

the defendant’s husband acted “real friendly” and offered to bring in

firewood for the victim. The victim accepted the offer; the victim told the

defendant to sit on the couch. He sat in a chair by a wood stove with his

back to the front door. The victim was surprised to learn the defendant

had left her baby with her mother on this visit.

     Herbie Earls brought in one load of firewood through the front door

and went back outside. When he returned, he struck the victim over the

head with an axe handle. He continued to beat the victim. The defendant

had a clear view of her husband’s actions. The victim said the defendant

failed to warn him of the attack by her husband, and she did not look

surprised when the attack occurred. As Earls continued to strike the

victim, the defendant remained on the couch.

     The victim attempted to block Earls’s blows. Earls subsequently

                                     3
knocked the victim against the wall and attempted to remove the victim’s

wallet from his front shirt pocket. The victim said he had $1,600 in his

wallet at the time. He was able to kick Earls off and prevent him from

reaching the wallet.

     The victim fell to the floor. He accused the couple of coming to rob

him. While the victim was on the floor, he obtained a hand axe and

threatened to strike Earls.

     Earls gave up, threw down the axe handle, and left with the

defendant. The victim said he told the defendant, “Holly, you’d better

get him out of here and get him out now.”

     The victim suffered head injuries, a broken arm and a broken finger.

He was beaten on the shoulders, legs, and ankles with the axe handle.

After the attack the victim took aspirin and sat down on the couch and

either passed out or fell asleep. He did not awake until the next day. He

drove himself to the sheriff’s office and was taken from there to the

hospital by ambulance where he had surgery on his arm; doctors

implanted a metal plate and screws in his arm.

     An officer testified he went to the victim’s house to photograph the

scene and observed blood throughout the living room and kitchen. The

photographs indicate the victim lost a lot of blood especially in the area

of the couch where he either fell asleep or lost consciousness.

     At trial, a friend of the defendant’s, Sylvia Walker, reluctantly

testified for the state. Walker was married to Earls’s cousin, Johnny

Walker. She told jurors the couple came to her house after the attack;

they wanted to find Johnny Walker. The defendant was upset.

                                    4
      On the stand, Walker claimed to have trouble remembering what

the defendant said during the visit; she also retreated from a statement

she gave to police implicating the defendant. She admitted to avoiding

service of process and not wanting to testify. She ultimately admitted

her statement to police was accurate.1 In her statement she said:



                   Holly and Herbie Earls came by our place one
             night looking for Johnny. Holly said that her and
             Herbie had been out at an old mans [sic] house
             and, tried to rob him. She said they had hit the old
             man in the head with an ax handle and tried to
             knock him out but couldn’t do it. They got scared
             and left. She wanted Johnny to go back with them
             and said Johnny could make a lot of money in just
             a matter of 30 minutes. Holly did most of the
             talking and Herbie stayed outside working on his
             truck.
                   I tried to get Holly to leave her baby with me
             but she wouldn’t do it.
                   We were living at Travelers Inn at the time. I
             learned a few days later that it was Grover
             McCullough that they was talking about.



     The defendant testified in her own defense. She denied having

knowledge of an attempt to rob McCullough. She had never discussed

the matter with Earls.      She knew the victim kept money in his front

pocket. According to the defendant, she encouraged Earls to leave after

he landed the first blow to the victim. She claimed Walker’s statement

was incorrect because Walker had been taking drugs all day and was

“spaced out.” The defendant, who was pregnant at the time, testified she

was afraid of her husband. He had been drinking and taking drugs that

day. She admitted she did not seek medical help for the victim.



     1
         W er sa that the s
          alk   id         tatemen did no reflect ev
                                  t      t          erythin s sa to au
                                                           g he id    thorities.

                                        5
     She admitted she had lied to authorities about the attack. She told

authorities Earls’s attack upon the victim was precipitated by the victim

whom she said pinched her on her breast. She lied to protect her

husband.




                                   6
                                    II.




     While appellate review is generally limited to the issues presented

for review, the appellate courts of this state are empowered to consider

issues which have not been presented for review. Tenn. R. App. P. 13(b);

Tenn. R. Crim. P. 52(b). See State v. Goins, 705 S.W.2d 648 (Tenn. 1986);

State v. Maynard, 629 S.W.2d 911 (Tenn. Crim. App. 1981); State v.

Harless, 607 S.W.2d 492 (Tenn. Crim. App. 1980).

     Rule 13(b), Tennessee Rules of Appellate Procedure, also provides

that an appellate court “may in its discretion consider other issues in

order, among other reasons: (1) to prevent needless litigation, (2) to

prevent injury to the interests of the public, and (3) to prevent prejudice

to the “judicial process.” In addition, Rule 52(b), Tennessee Rules of

Criminal Procedure, provides that this court may notice plain error “at

any time, even though not raised in the motion for a new trial or assigned

as error on appeal . . . where necessary to do substantial justice.” See

State v. Ogle, 666 S.W.2d 58 (Tenn. 1984); Veach v. State, 491 S.W.2d 81

(Tenn. 1973); Herron v. State, 3 Tenn. Crim. App. 39, 456 S.W.2d 873

(1970), judgment vacated in part, 408 U.S. 937, 92 S.Ct. 2865, 33 L.Ed.2d

756 (1972).

                                    A.




     The defendant was convicted by a jury of attempted felony murder

in the perpetration of a robbery. The Tennessee Supreme Court and this

court have held attempt to commit first degree felony murder is not an

                                     7
offense. State v. Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996). The

defendant did not raise this issue in her brief.2

       The felony murder provision in effect at the time of the defendant’s

crime stated:

              (a) First degree murder is:

                                         ****

              (2) A reckless killing of another committed in the
              perpetration of, or attempt to perpetrate any first
              degree murder, arson, rape, robbery, burglary,
              theft, kidnapping or aircraft piracy.



Tenn. Code Ann. § 39-13-202(a)(2).3

       Criminal attempt requires that a person act with the culpability

required for the offense. Tenn. Code Ann. § 39-12-101.

       Recklessness, the mens rea for felony murder, is inconsistent with

desire or intention, the mens rea for attempt. Kimbrough, 924 S.W.2d at

891. “It is impossible to conceive of an attempt where a crime by

definition may be committed recklessly or negligently but not



       2
         The offense in this case was com    mitted in February 1995; the indictment was
returned April 10, 1995 and the trial was held in December 1995. On Novem 2, 1994, this
                                                                           ber
court issued an opinion in State v. Kimbrough finding that the offense of attempted felony
murder doesnot ex State v. Brian Keith Kimbrough, ShelbyCounty No. 02-C-01-9308-CR-
                    ist.
00182 (Tenn. Crim. App., Jackson, Novem      ber 2, 1994). The Te nnessee S  uprem C
                                                                                  e ourt
affirm that holding in its Kimbrough opinion issued June 3, 1996. 924 S.W.2d 888 (Tenn.
      ed
1996)


       3
        TheTennessee General Assembly amended this section in 1995 to removethe word
“reckless” from the felony-murder statute. This became effective July 1, 1995, after the
comm  ission of th crime and the return of indictment in this case. The Tennessee Supreme
                  e
Court noted in Kimbrough that the deletion did “not affect our opinion that the offense of
attempted felony-murder does not exist in Tennessee, since under the new definition the
offense of felony-murder still does not require a specific intent.” Kimbrough, 924 S.W.2d at
890, n.2.

                                            8
intentionally.” Kimbrough, 924 S.W.2d at 891. “‘Although murder may be

committed without an intent to kill, attempt to commit murder requires

a specific intent to kill,’” Kimbrough, 924 S.W.2d at 891 (quoting Braxton

v. United States, 500 U.S. 344, 351, 111 S.Ct. 1854, 1859, 114 L.Ed.2d 385

(1991)).

       Our supreme court has noted the statutory scheme already provides

for enhanced punishment when bodily injury occurs during a crime.

“Considering that the legislature has already enacted specific offenses

covering situations in which death or injury is threatened or occurs

during the commission of certain felonies, we conclude that to extend

the felony-murder rule to cases in which no death occurs would ‘extend

the scope of the doctrine beyond the pale of its statutory design and

logical underpinnings.’” Kimbrough, 924 S.W.2d at 892.

       “We conclude that one cannot intend to accomplish the unintended.

Consequently, the offense of attempted felony murder does not exist in

Tennessee.” Kimbrough, 924 S.W.2d at 892.

       Thus, the defendant’s conviction for felony murder is reversed and

dismissed.




                                       B.




       This court observes the defendant was indicted for attempting to

kill   the   victim   “unlawfully,   intentionally,   deliberately   and   with

premeditation.” The defendant was not indicted for attempted felony




                                       9
murder. The jury was instructed only on felony murder.4

     On remand, the defendant may be retried for attempted first degree

murder.       When a conviction is set aside because of an error in

proceedings and not because the state failed to prove the defendant

guilty, the defendant may be retried for an offense. State v. Kevin Burns,

Shelby County No. 02-C-01-9605-CR-00170, 1997 WL 418492 (Tenn. Crim.

App., Jackson, July 25, 1997).

     In this case, the defendant’s conviction for attempted felony murder

is being reversed because the Tennessee Supreme Court has ruled the

offense does not exist. Burns, Shelby County No. 02-C-01-9605-CR-00170

(Tenn. Crim. App., Jackson, July 25, 1997). The defendant was

prosecuted for a crime which is impossible to commit. Thus, this was a

fundamental error in the proceedings. The defendant was indicted for

attempted first degree premeditated murder. That charge was not given

to the jury so the jury has not considered attempted first degree

premeditated murder. Because the defendant has neither been convicted

nor acquitted of attempted first degree premeditated murder, her retrial

is not prohibited by the principles of double jeopardy. Burns, Shelby

County No. 02-C-01-9605-CR-00170 (Tenn. Crim. App., Jackson, July 25,

1997).

     We hold that this matter is to be remanded for the defendant to be

retried on the charge of attempted first-degree murder.




     4
         There is no explanation in the record for this.

                                            10
                                         III.




      The defendant also contends the evidence was insufficient as a

matter of law to convict her of attempt to commit especially aggravated

robbery.




                                         A.




      W e a a c s dc a n e t es ffic n yo t e c n icin e id n e t isc ut m s re ie t e
       h n n c u e h lle g s h u ie c f h o v t g v e c , h o r u t v w h

r c rdt d temn if t ee id n ea d c da tr l iss ffic n "t s p o th f d gb t etr ro f c
 e o o e r i e h v e c d u e t ia u ie t o u p rt e in in y h ie f a t

o g ilt b y dare so a d ub T n R A p P 1 ( ). T i ru isa p a let f d g o g iltb s d
 f u e on       a n ble o t." en . . p . . 3e hs le p lic b o in in s f u a e

u o d e t e id n e c u s nia e id n e o ac m i a no d e t a dc c m t n le id n e Sa
 p n ir c v e c , irc m ta t l v e c , r o bn tio f ir c n ir u sa tia v e c . t te

v D k s 8 3SW2 2 0 2 3( e n Cim A p), p r. a p d n d( e n 1 9 )
 . y e , 0 . . d 5 , 5 T n . r . p . e p . e ie T n . 9 0.

      Ind t rm in t es ffic n yo t ec n icin e id n e t isc ut d e n tre e ho re v lu t
         ee in g h u ie c f h o v t g v e c , h o r o s o w ig r e a ae

thee id n e Sa v M t e s 8 5SW2 7 6 7 9( e n C . A p p r. a p d n d( e n 1 9 ) N r
    v e c . t te . ath w , 0 . . d 7 , 7 T n . rim p .), e p . e ie T n . 9 0. o

m y t cour s t ute i i
 a his    t ubs it ts nfere c s f r th se d w b th t ro f c f mc c m t n l e id n e
                           n e o o ra n y e rie f a t ro ir u sa tia v e c .

L k sv Sa , 1 9T n .2 8 3 5 2 6SW2 8 6 8 9 c r d n d 3 2US 8 5 7 SC 3 , 1L d2
 ia a . t te 9 e n 9 , 0 , 8 . . d 5 , 5 , et. e ie , 5 . . 4 , 7 . t. 9 .E . d

4 ( 9 6 T t ec n a , t isc ut isr q ir dtoafod t eS t o T n e s et es o g s le it ae
 9 1 5 ). o h o tr ry h o r e u e          f r h tae f e n s e h tr n e t g im t

v wo th e id n ec na e int ere oda w ll a a r a o a lea dle it aein r n e w i hm y
 ie f e v e c o t in d h c r s e s ll e s n b n g im t fee c s hc a

b da nf mt ee id n e Sa v C b a e 5 1SW2 8 2 8 5( e n 1 7 )
 e r w ro h v e c . t te . a b g , 7 . . d 3 , 3 T n . 9 8.

      Q e t n c n en gt ec d ilit o th w n s s t ew i h a dv lu t b g e t ee id n e
       u sio s o c r in h re ib y f e it e se , h eg t n a e o e iv n h v e c ,

a w ll a a f c a is u sra e b th e id n eaere o e b th t ro fa t n tth c ut. C b a e
 s e s ll a tu l s e is d y e v e c r s lv d y e rie f c, o is o r a b g ,

5 1SW2 a 8 5 InSa v Ga e 4 3SW2 4 4 4 6( e n 1 7 ) o rS p m C ut s id " g ilt
 7 . .d t 3.    t te . r c , 9 . . d 7 , 7 T n . 9 3, u u re e o r a : A u y

v r ic b t ejuy a po e b t etr l ju g , a ce it t ete t o yo t ewtn s e f r t eS t a d
 ed t y h r , p r v d y h ia d e c r d s h sim n f h i e s s o h tae n

r s lv sa c nlicsinf vo o t eth oyo t eS t ."
 e o e ll o f t    a r f h e r f h tae

                                         11
       Sn eav rd to g iltre o e t ep s m t no in o e c a dr p c sitwthape u pio
        ic   e ic f u m v s h re u pio f n c n e n e la e           i   rsmt n

o g ilt t e a c s d a t e a p lla t h s t e b rd n in t is c ut o illu t t g w y t e e id n e is
 f u , h c u e , s h p e n, a h u e                    h o r f srain h h v e c

in u ie t t s p o th v r icsreu e b t etr r o fa t. Sa v T g l 6 9SW2 9 3 9 4( e n
  s ffic n o u p rt e ed t t rn d y h ie f c t te . u ge, 3 . . d 1 , 1 T n .

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 9 2. hs o rt i o is r        ed t f u u         h u ie c f h v e c n s e a ts

c na e int ere oda in u ie t a am t ro la , fo ara n l trie o fa ttof dt a t ea c s d
 o t in d h c r re s ffic n, s ate f w r tio a r f c in h t h c u e

isg ilt b y n ar a o a led u t T g l 6 9SW2 a 9 4
   u y e o d e s n b o b. u ge, 3 . . d t 1 .




                                              B.




       Before an accused can be convicted of attempt to commit

especially aggravated robbery, the state must prove beyond a reasonable

doubt that the accused attempted to intentionally or knowingly take

property from the victim by using a deadly weapon and causing the victim

to suffer serious bodily injury. Tenn. Code Ann. § 39-13-403; Tenn. Code

Ann. § 39-13-401.

       The defendant argues there was no medical proof that the victim

suffered serious bodily injury. She also argues she did not have the

requisite intent to attempt to commit especially aggravated robbery.

                                              (1)




       Tennessee Code Annotated defines criminal attempt as:



              (a) A person commits criminal attempt who, acting
              with the kind of culpability otherwise required for
              the offense:

                                           ****



                                              12
           (3) Acts with intent to complete a course of action
           or cause a result that would constitute the
           offense, under the circumstances surrounding the
           conduct as the person believes them to be, and
           the conduct constitutes a substantial step toward
           the commission of the offense.
           (b) Conduct does not constitute a substantial step
           under subdivision (a)(3) unless the person’s entire
           course of action is corroborative of the intent to
           commit the offense.
           (c) It is no defense to prosecution for criminal
           attempt that the offense attempted was actually
           committed.

Tenn. Code Ann. § 39-12-101.



     The defendant and Earls went to the victim’s home with the

intention of robbing the 82-year-old man. The defendant and her mother

had had financial dealings with the victim in the past. The defendant

admitted she knew the victim carried money in his front pocket.

     The defendant usually took her baby with her to visit the victim.

She did not take the child on the night of the attack. The defendant sat

on the couch and distracted the victim during their conversation until her

husband began beating the victim with an axe handle. The axe handle

constituted a deadly weapon. See Morgan v. State, 220 Tenn. 247, 252,

415 S.W.2d 879, 882 (1967); State v. Terry Logan, Fayette County No. 02-

C-01-9609-CC-00297, 1997 WL 167231 (Tenn. Crim. App., Jackson, April

10, 1997) (a bat is a deadly weapon); State v. Richard Lee Anthony,

Coffee County No. 01-C-01-9504-CC-00115, 1996 WL 63952 (Tenn. Crim.

App., Nashville, February 13, 1996), per. app. denied (Tenn. July 8, 1996)

( a bat is a deadly weapon).

     The defendant did not warn the victim of the impending attack, she



                                   13
did not try to stop Earls, and she did not seek medical help for the victim

later.

         The statement given by Sylvia Walker implicates the defendant in

the robbery plan. It was the defendant who explained the robbery plan to

Sylvia Walker; and it was the defendant who broached the idea that

Johnny Walker could return to the victim’s house and help the Earlses

complete the act.

         A reasonable jury could infer the defendant attempted to

intentionally or knowingly take property from another by using a deadly

weapon. This court will next consider whether the final element - serious

bodily injury - was present.




                                      (2)




         “Serious bodily injury” means bodily injury which involves:

              (A) A substantial risk of death;
              (B) Protracted unconsciousness;
              (C) Extreme physical pain;
              (D) Protracted or obvious disfigurement; or
              (E) Protracted loss or substantial impairment of a
              function of a bodily member, organ or mental
              faculty;

Tenn. Code Ann. § 39-11-106(a)(33).



         In support of her argument that evidence of serious bodily injury

was lacking, the defendant relies on State v. Sims, where this court said

that pain associated with a broken nose is not extreme enough to qualify

as serious bodily injury. 909 S.W.2d 46, 49 (Tenn. Crim. App.), per. app.



                                      14
denied (Tenn. 1995). In Sims this court also said the loss of teeth could

constitute protracted disfigurement, but it must be shown this loss was

caused by the incident beyond a reasonable doubt. 909 S.W.2d at 49.

     In State v. Holland this court found the evidence supports the jury’s

findings that the victim suffered serious bodily injury. 860 S.W.2d 53, 59

(Tenn. Crim. App. 1993). The victim suffered a “huge knot” on her head.

Initially it appeared the victim had a fractured skull. A witness said the

victim was in a great deal of pain and also suffered dizziness. The

defendant attempts to distinguish McCullough’s injuries from those in

Holland and argues the injuries to McCullough were not as severe as

those to the victim in Holland.

     The defendant also relies on State v. Derek Denton, Shelby County

No. 02-C-01-9409-CR-00186, 1996 WL 432338 (Tenn. Crim. App., Jackson,

August 2, 1996), where this court said suffering strikes to the face, a

blackened eye, an injured lip, and a brief period of unconsciousness did

not constitute serious bodily injury. This court noted the victim’s doctor

did not testify and the victim did not testify she suffered extreme

physical pain.

     In this case the victim, a diabetic, suffered a broken arm which

required the insertion of a metal plate and screws. He told jurors he still

had numbness in his arm and reduced strength.           He also suffered a

broken finger. He was struck in the forehead and on the top of the head.

The victim said he lost a lot of blood. He either passed out or fell asleep

and continued to bleed. When he awoke he was bloody and sore. He

also suffered injuries to his shoulder, legs, and ankles. He told jurors that

                                     15
he hurt “for a long time.” The victim was hospitalized for a couple days.

     The injuries in this case are distinguishable from those in Sims and

Denton. The victim’s testimony meets several definitions of the “serious

bodily injury” requirement.

     A reasonable jury could find the injuries imposed a serious risk of

death considering the victim was 82 years old and responsible for

administering his own insulin for diabetes. The injuries could have left

him unable to take his medication. Tenn. Code Ann. § 39-11-106(a)(33)(A).

     A jury could also find the victim suffered from protracted

unconsciousness. The victim testified he either passed out or fell asleep

on the couch. The photograph of the couch illustrates he lost a

significant amount of blood while on the couch.       Tenn. Code Ann. §

39-11-106(a)(33)(B).

     The victim also testified he suffered physical pain as a result of the

injuries. Tenn. Code Ann. § 39-11-106(a)(33)(C). He continues to suffer

numbness and has limited use of his arm as a result of the break and the

surgery. Tenn. Code Ann. § 39-11-106(a)(33)(E).

     This court finds there was sufficient evidence to convict the

defendant of attempted especially aggravated robbery.

     The issue is without merit.




                                   IV.




     The defendant contends her sentence for assault with intent to

commit especially aggravated robbery is excessive. After finding the

                                   16
defendant a standard offender, the trial court imposed a Range I

sentence of twenty (20) years for attempted first degree murder and ten

(10) years for attempted especially aggravated robbery in the Department

of Correction. The trial court also imposed a $25,000 fine for each count

for a total of $50,000. The trial court ordered that the sentences should

run consecutively for an effective sentence of thirty (30) years.

       Because this court has dismissed the conviction for attempted

felony murder, the defendant’s argument as to that sentence is moot.

This court will consider the defendant’s argument as to the sentence for

attempted especially aggravated robbery.




                                            A.




       W e a a c s dc a n e t ele gha dm n e o sev eo as n n e itist e d t o t is
        h n n c u e h lle g s h n t n a n r f r ic f e te c ,       h uy f h

C ut t c n u t ad nov r v wo t ere odwthape u pio t a " ed t rm aio sm d b t e
 o r o o d c e o e ie n h c r i           r s m t n h t th ee in t n a e y h

c ut fro w ic t e a p a is t k n a c r c." T n . C d A n § 4 -3 -4 1d T i p s m t n is
 o r m h h h p e l a e re ore t e n o e n . 0 5 0 ( ). hs re u pio

"c n it n d u o t e a m t e s o i g in t e re od th t th t l c ut c n id r d th s ne c g
  o d io e p n h ffir aiv h wn          h c r a e ria o r o s ee e e t n in

pin ip san a relev tfactsan c
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                                  stan s." t te . s b , 2 . . d 6 , 6 T n . 9 1. h

pe u pio d e n ta p t th le a c n lu io sr a h db th t l c ut ins ne c gt ea c s do
 r s m t n o s o p ly o e g l o c s n e c e y e ria o r          e t n in h c u e r

to t e d temn tio s m d b t e tr l c ut w ic ae p d ae u o u c n ve d facts. State v.
    h e r i a n a e y h ia o r h h r re ic t d p n n o tro rte

B t r, 9 0SW2 3 5 3 1( e n Cim A p 1 9 ); Sta v. S ith, 8 1SW2 9 2 9 9( e n C . A p
 ule 0 . . d 0 , 1 T n . r . p . 9 4         te m 9 . . d 2 , 2 T n . rim p .),

p r. a p d n d( e n 1 9 ) Sa v B n se 8 1SW2 1 3 1 6( e n Cim A p 1 9 ). H w v r t is
 e p . e ie T n . 9 4; t te . o e t l, 7 . . d 6 , 6 T n . r . p . 9 3 o e e, h

C ut is r q ir d to g e ge t w ig t t th tr l c ut's d t rm aio o c n o e e fa t a t e tr l
 or eu e             iv r a e h o e ia o r ee in t n f o tr v rt d cs s h ia

c ut's d t rm aio o th s fa t is pe ic t d u o th w n s s d m a o a d a p a n e w e
 o r ee in t n f e e cs           r d ae p n e it e se ' e e n r n p e ra c h n

te tify g
  s in .

                                           17
      Inc n u t gad nov r v wo ase t n e t isC ut m s c n e (a a ye id n er c iv d
         o d cin   e o e ie f     ne c , h o r u t o sid r ) n v e c e e e

a t etr l a d rs n n in h ain , (b) the presene c re ot, ( ) t ep c le o s ne c g ( ) t e
 t h ia n /o e te c g e r g                   t n e p r c h rin ip s f e t n in , d h

ag m nso c u s l r laiv t s ne c ga e aiv s ( ) t en tuea dc a ce tic o t eo n e
 r u e t f o n e e t e o e t n in lt rn t e , e h a r n h ra t ris s f h ffe s ,

(f) a ym ig t go e h n in f c r , ( ) a ys t m ns m d b t ea c s dinh o nb h lf, a d( )
     n it ain r n a c g a tos g n tae e t a e y h c u e              is w e a n h

thea c s d p t n lo la ko p te t l f r r h b a no tr a e t T n .C d A n § 4 -3 -1 3a d
    c u e 's oe tia r c f o nia o e a ilit tio r e tm n. e n o e n . § 0 5 0 n

-2 0 Sa v S ot, 7 5SW2 8 5 8 9( e n Cim A p), p r. a p d n d( e n 1 8 )
  1 ; t te . c t 3 . . d 2 , 2 T n . r . p . e p . e ie T n . 9 7.

      T e p r c a n in a s ne c im o e b t e tr l c ut h s t e b rd n o e ta lis in t e
       h aty h lle g g e t n e p s d y h ia o r a h u e f s b h g h

s ne c i err
 e t n e s oneous Sent
                 .    encin C m issio C m e ts to T n . C d A n § 4 -3 -4 1 A h y 8 3
                           g o m n o mn            e n o e n . 0 5 0 ; s b, 2

S .2 a 1 9 B t r, 9 0 SW2 a 3 1 I th c s , t e d fe d n h s th b r e o illu t t g t e
 .W d t 6 ; ule 0 . . d t 1 . n is a e h e n a t a e ud n f srain h

se te
  n ncesi pos b t t cou a e n o s.
        m ed y he rial rt re rro e u

                                           B.




      The defendant argues the use of four enhancement factors by the

trial judge was inappropriate.

      Attempted especially aggravated robbery is a class B felony. The

range of punishment is eight (8) to twelve (12) years. The trial court

imposed a mid-range sentence of ten (10) years. The trial court found the

presence of two mitigating factors and five enhancement factors.

      The trial court found the following enhancement factors:

             (4) A victim of the offense was particularly
             vulnerable because of age or physical or mental
             disability;
             (5) The defendant treated or allowed a victim to
             be treated with exceptional cruelty during the
             commission of the offense;
             (6) The personal injuries inflicted upon or the
             amount of damage to property sustained by or
             taken from the victim was particularly great;
             (9) The defendant possessed or employed a
             firearm, explosive device or other deadly weapon

                                          18
           during the commission of the offense;
           (16)        The crime was committed under
           circumstances under which the potential for bodily
           injury to a victim was great.

Tenn. Code Ann. § 40-35-114.

     The trial court found the presence of two mitigating factors:

           (6) The defendant, because of [her] youth or old
           age, lacked substantial judgment in committing
           the offense;
           (12)       The defendant acted under duress or
           under the domination of another person, even
           though the duress or the domination of another
           person is not sufficient to constitute a defense to
           the crime.



Tenn. Code Ann. § 40-35-113.

     The trial court said the above factors were used to determine the

length of the sentences, but the court failed to specify which

enhancement factors applied to which offenses.      Thus, the statutory

presumption of correctness afforded by Tenn. Code Ann. § 40-35-401(d)

does not apply. This court will address each factor without a presumption

of correctness.

                                   C.




     The trial court erred in applying enhancement factor (4) regarding

vulnerability. Before a trial court may apply factor (4) to enhance a

sentence within the appropriate range, the State of Tennessee must

prove (a) the victim was particularly vulnerable, State v. Adams, 864

S.W.2d 31, 35 (Tenn. 1993), and (b) the age, physical disability, and/or

mental disability of the victim was a factor during the commission of the



                                   19
crime. State v. Butler, 900 S.W.2d 305, 313 (Tenn. Crim. App. 1994); State

v. Seals, 735 S.W.2d 849, 853-54 (Tenn. Crim. App. 1987). “A person’s age

standing alone may have no bearing on size, strength or vitality.” Thus

unless the State produces evidence of physical or mental limitations at

the time of the offense, along with proof of the victim’s age, it cannot be

presumed that the victim was particularly vulnerable based solely upon

[] age.” State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997). In the context of

this case, the State of Tennessee failed to establish these prerequisites.

      The victim, eighty-two years of age at the time, lived alone and was

a diabetic. These facts standing alone, are not sufficient to support the

use of factor (4). Just before the attack occurred the victim had been

bringing in firewood. Despite the fact the victim was initially struck from

behind and beaten, he was able to fend off the attacks and thwart the

robbery attempt. Consequently, the trial court abused its discretion by

applying this factor to enhance the defendant’s sentence within the

appropriate range.




                                     D.




      The trial court properly used factor (5) regarding exceptional cruelty

to   enhance   the   defendant’s   sentence    for   attempted   especially

aggravated robbery. This factor is not an element of attempt to commit

especially aggravated robbery. Poole, 945 S.W.2d at 98 (exceptional

cruelty is not an element of especially aggravated robbery); State v.

Antonio Byrd, Shelby County No. 02-C-01-9508-CR-00232, 1997 WL 1235

                                    20
(Tenn. Crim. App., Jackson, January 2, 1997), per. app. denied (Tenn.

September 22, 1997). The phrase “extreme cruelty” is defined as “cruelty

above that needed to effectuate the crime.” State v. Lester Bennett,

Sevier County No. 03-C-01-9403-CR-00104, 1994 WL 683373 (Tenn. Crim.

App., Knoxville, December 8, 1994). This court has noted previously the

“trial court should state what action of the defendant, apart from the

elements of the offense, constituted ‘exceptional cruelty.’” State v.

Goodwin, 909 S.W.2d 35, 45, (Tenn. Crim. App. 1995). The trial court did

not place into the record the justification for this factor.

      This court notes the defendant distracted the victim and gave her

husband an opportunity to attack the victim from behind. The defendant

did not seek help for the victim during the attack or afterward. She left

the victim bleeding and beaten at his house where he had no phone to

call for help. See State v. Stanley Dewayne Myers, Blount County No. 03-

C-01-9409-CR-00344 (Tenn. Crim. App., Knoxville, April 13, 1995)

(upholding use of factor (5) in second degree murder when defendant left

victim shot at the situs of shooting and failed to get help.) The victim

testified that after the Earlses left he tried to yell for help from his front

porch, but no one heard him and he returned inside where he either lost

consciousness or fell asleep.

     We conclude the actions of the defendant constitute exceptional

cruelty.




                                     E.




                                     21
     Enhancement factor (6), the victim suffered personal injuries, is

inherent in the offense of especially aggravated robbery, and thus

attempted especially aggravated robbery, because the crime requires

that the victim suffer serious bodily injury. Therefore, application of that

factor is inappropriate. Byrd, Shelby County No. 02-C01-9508-CR-00232

(Tenn. Crim. App. Jackson, January 2, 1997).




                                    F.




     The application of enhancing factor (9) for using a firearm during

the commission of a crime was also improper. The use of a firearm is

inherent in the crime of especially aggravated robbery, and thus

attempted especially aggravated robbery. State v. Samuel Scott Minton,

Bradley County No. 03-C-01-9508-CC-00217, 1996 WL 480859 (Tenn. Crim.

App., Knoxville, August 27, 1996), per. app. denied (Tenn. January 27,

1997).




                                    G.




     Enhancement factor (16), that the crime was committed under

circumstances under which the potential for bodily injury was great, is

inherent in the offense of especially aggravated robbery and thus

inherent in attempted especially aggravated robbery. Therefore,

application of that factor is inappropriate. Byrd, Shelby County No. 02-

C01-9508-CR-00232 (Tenn. Crim. App. Jackson, January 2, 1997).

                                    22
     In summary, the only enhancement factor that was appropriately

applied was factor (5), regarding treating the victim with exceptional

cruelty.




                                    H.




     As with the enhancing factors, the trial court did not specify which

mitigating factors applied to which offenses. Thus, the statutory

presumption of correctness does not apply and this court will consider

each factor without the presumption. This court finds only one mitigating

factor was present, factor (6). Due to the defendant’s youth, she lacked

substantial judgment when committing the offense. The defendant was

eighteen at the time of the offense. She has no juvenile or adult record.

She has two children. The use of this factor was appropriate.

     As for factor (12) that the defendant was under the domination of

her husband, there was nothing in the record to support this factor. Sylvia

Walker’s statement to police indicates it was the defendant who related

the robbery plan to Walker and attempted to enlist the help of Johnny

Walker. Thus, the use of factor (12) was not appropriate.




                                    I.




     As a standard Range I offender, the range for a Class B felony is

eight (8) to twelve (12) years. Here, there was one mitigating factor and

one enhancement factor. Tennessee Code Annotated § 40-35-210 states

                                    23
in a situation with mitigating and enhancing factors, the sentencing judge

must start at the minimum sentence in the range, enhance the sentence

as appropriate for the enhancement factor and then reduce the sentence

within the range as appropriate. The trial court sentenced the defendant

to ten (10) years for attempted especially aggravated robbery, which was

the midpoint in the range. Given the presence and weight of the

enhancement factor and the mitigating factor, this was not error. A

finding that enhancement factors were erroneously applied does not

equate to a reduction in the sentence. State v. Keel, 882 S.W.2d 410, 423

(Tenn. Crim. App.), p r. a p d n d (Tenn. 1994); see State v. Parker, 932
                     e p . e ie

S.W.2d 945, 947 (Tenn. Crim. App.), p r. a p d n d (Tenn. 1996); State v.
                                     e p . e ie

Williamson, 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995). This court notes

that the $25,000 fine was also appropriate under Tenn. Code Ann. § 40-

35-111(b)(2).

     The issue is without merit.




                                    V.




     The defendant     contends that ordering the sentences to run

consecutively was excessive. Because of this court’s findings that the

conviction for attempted felony murder was inappropriate, this issue is

moot.




                                   24
                                      ________________________________________
                                           JOE B. JONES, PRESIDING JUDGE



CONCUR:




___________________________________
     WILLIAM M. BARKER, JUDGE




___________________________________
      JOE G. RILEY, JUDGE




                                       25
