         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                          AUGUST SESSION, 1997
                                                                  FILED
                                                                  December 31, 1998
STATE OF TENNESSEE,               )   C.C.A. NO. 02C01-9702-CR-00067
                                                            Cecil Crowson, Jr.
                                  )                               Appellate C ourt Clerk
      Appellee,                   )
                                  )
                                  )   SHELBY COUNTY
VS.                               )
                                  )   HON. JAMES C. BEASLEY, JR.
VICKIE R. HERRON,                 )   JUDGE
WANDA L. GRIFFIN,                 )
     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 General and Reporter
201 Poplar, Suite 2-01
Memphis, TN 38103                     KENNETH W. RUCKER
(Attorney for Vickie R. Herron)       Assistant Attorney General
                                      425 Fifth Avenu e North
MICHAEL E. SCHOLL                     Nashville, TN 37243-0493
200 Jefferson Avenue, Suite 202
Memphis, TN 38103                     WILLIAM L. GIBBONS
(Attorney for Wanda L. Griffin)       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. § 40-35-

202(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. § 40-

35-114(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

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