         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 2, 2001

                 STATE OF TENNESSEE v. GEORGE R. CROFT

                  Direct Appeal from the Criminal Court for Shelby County
                      Nos. 96-12125, -12126  W. Otis Higgs, Jr., Judge


                  No. W2001-00134-CCA-R3-CD - Filed November 20, 2002


A Shelby County jury found the Defendant guilty of especially aggravated robbery and felony murder
in the perpetration of a robbery. The trial court sentenced the Defendant as a Range I violent
offender to life imprisonment for the felony murder conviction and to twenty-two years for the
especially aggravated robbery conviction. On appeal, the Defendant argues that the trial court erred
by failing to give a requested jury instruction on lost or destroyed evidence, that the evidence
presented by an accomplice was not sufficiently corroborated to support the convictions, and that
the trial court erred in sentencing the Defendant for the especially aggravated robbery conviction by
not including in the record specific findings regarding the enhancement and mitigating factors
considered in sentencing him. We affirm the Defendant’s convictions, but remand to the trial court
for a new sentencing hearing for the especially aggravated robbery conviction.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part;
                                 Case Remanded in Part.

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOSEPH M. TIPTON, J., joined.

A C Wharton, Jr., and Tony N. Brayton (on appeal); and Timothy J. Albers and Sherrye J. Brown
(at trial), Memphis, Tennessee, for the appellant, George R. Croft.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and J. Robert Carter, Jr., and David C. Henry,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

                                             I. FACTS

       Brenda McKinney testified that she was driving to a Mapco convenience store on the corner
of Alcy Road and Blakemore Street at approximately 2:00 a.m. on July 15, 1996. She observed a
car “coming diagonally across the street.” McKinney testified that she then saw the Defendant
“trying to jump out or . . . hanging out [of] the car.” She recalled that the car then hit a pole, that the
Defendant “went up in the air and fell on the ground,” and that the car kept going. McKinney stated
that she got out of her car, walked over to the Defendant, and asked him if he needed help. She
reported that the Defendant was bleeding and pleading for help. McKinney testified that a man then
ran from the direction of the car to the Defendant, pulled on his arm, and told him to get up. The
Defendant told the man that he could not get up and that he needed help. McKinney testified that
the man “just panicked and started saying, Help, help, somebody help me. And then he ran.”
McKinney then called for an ambulance and police, and the dispatcher told her to go to the car and
see if anyone was inside. McKinney testified that she walked to the car and observed Johnas
Venzant, the victim in this case, lying inside the car. She recalled that the passenger door was open.
She testified that she touched the victim’s arm and determined that he had a pulse. McKinney waited
at the scene until police arrived and relayed to them what had happened. She did not observe either
the Defendant or the man who ran to the Defendant after the accident in possession of a gun,
although she saw a gun when the police recovered it.

       Officer W. Mathena testified that at 2:06 a.m. on July 15, 1996, he received a call regarding
an accident at the intersection of Alcy and Blakemore. When he arrived at the scene, he saw the
Defendant lying in the street. Mathena recalled that he asked the Defendant if he wanted an
ambulance, and the Defendant responded that he did. He later found out that an ambulance was
already en route to the crime scene. Mathena then observed a blue Pontiac Bonneville with the
passenger door open. He testified that there was a victim inside the car who looked as if he “had
been shot a few times” and who was “covered with blood.” He also observed a hubcap and a
baseball cap in the street. Mathena testified that after speaking to a female witness, he put out a
broadcast that a black male was observed running from the scene towards the Clementine
Apartments. Mathena testified that Officer Rogers located a black pistol laying in a grassy area near
the Pontiac.

       Officer Eric Rogers also responded to the accident call at Alcy Road and Blakemore Street.
When Rogers arrived, he observed in a car a black male who had been shot. Rogers testified that
while he was at the scene, he located a gun in a grassy area near the vehicle. Rogers gave the gun
to Sergeant Shemwell.

        Sergeant Robert Shemwell, a seventeen-year veteran of the Memphis Police Department and
a member of the Felony Response Bureau of that Department, went to the crime scene at Alcy Road
and Blakemore Street. Sgt. Shemwell testified that he worked the crime scene with Officer McNabb,
a crime scene officer who, according to Sgt. Shemwell, died several years before the trial in this case.
Sgt. Shemwell stated that when he arrived at the scene, he saw a deceased victim inside a car. Sgt.
Shemwell testified that police recovered four spent cartridge casings and one spent bullet fragment
from the car. He testified that a spent bullet was found in the parking lot on the south side of the
Mapco store and that broken glass was also found in the Mapco parking lot. Sgt. Shemwell
documented the finding of a nine-millimeter pistol found in the grassy area on the southwest corner
of Alcy Road and Blakemore Street. He stated that three live rounds were found in the pistol. The
pistol was later turned over to Officer McNabb.


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         Sergeant James L. Fitzpatrick organized the homicide investigation and reviewed findings
made by the individuals who investigated the scene of the crime. He testified that he went with Sgt.
Golden to the hospital and obtained a statement from the Defendant and that he also assisted in
obtaining a statement from Joseph Russell, who was also charged with the victim’s murder.
Fitzpatrick reported that the victim was identified through fingerprinting and prior court records.
The victim’s pager revealed that he had received a page approximately thirty-five minutes prior to
the shooting from a phone number belonging to Shemmika Fullwiley, a friend of Russell.
Fitzpatrick testified that the Defendant’s mother identified him at the hospital. Fitzpatrick also
testified that he was told by Officer McNabb that McNabb had conducted a paraffin test on the
Defendant to determine whether the Defendant had recently fired a weapon. Fitzpatrick reported that
he never received any results from the test and that no such test results could be located. Fitzpatrick
also stated that he could not be sure if the paraffin test was ever performed.

        Donald L. Carman testified that he is a special agent for forensic science in the firearms
identification area of the Tennessee Bureau of Investigation. He stated that he received for
examination a nine-millimeter, semi-automatic pistol, which he determined to be operational.
Carman testified that four shell casings found at the crime scene were fired from a nine-millimeter
pistol. He also identified a copper fragment of a bullet found at the scene as having been fired from
the pistol which he examined.

        Dr. O’Brian Cleary Smith, the Shelby County Medical Examiner, performed an autopsy on
the victim on July 15, 1996. According to Smith, the victim had sustained multiple gunshot wounds
to the head and neck region, to the top of the right shoulder, and to the left arm. He stated that he
identified six bullet paths within the victim’s body which could have been made by as few as five
different bullets. Smith testified that he recovered three bullets from the body and turned them over
to the Memphis Police Department. He explained that three of the bullets injured the victim’s spine,
causing incapacitating wounds. Smith stated that the weapon that was used on the victim was close
enough at the time of discharge to leave powder burns on the victim’s face. Smith opined that if the
victim “was the driver of an automobile and in a normal driving position at the time that the shots
were fired, then the shots would come from back to front and from the right to the left primarily.”
Although he stated that he could not eliminate anyone in the vehicle as the shooter, based on his
autopsy and photographs of the car, he was “able . . . to establish that the likelihood of the weapon
being discharged came more from the rear than from the side.” Finally, he testified that the victim
tested positive for cocaine and marijuana, and two packets of cocaine were found on the victim’s
person.

         Joseph Russell, who at the time of the Defendant’s trial had also been charged with the
murder of the victim, testified that in 1996 he had been a drug dealer for eight or nine years. Russell
testified that the victim was his drug supplier and that the Defendant was another local drug dealer.
Russell stated that at approximately 10:00 p.m. on July 14, 1996, the Defendant, whom Russell had
never met before, approached Russell and asked to purchase a quarter-ounce of crack cocaine.
Russell informed the Defendant that he did not have the quantity of “dope” that the Defendant
requested and would have to contact his supplier.


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        Russell and the Defendant then got a ride with a man named Sterling Howard to the
apartment of Russell’s friend, Shemmika Fullwiley, and her roommate, Stacey Young. According
to Russell, he and the Defendant remained at Fullwiley’s for a brief period of time drinking beer and
smoking marijuana. Russell testified that while there, the Defendant pulled out a pistol and laid it
on a table. Russell reported that he picked up the pistol and told the Defendant to put it away.
Russell then paged the victim. According to Russell, the victim called Russell a few minutes later,
and Russell, the victim and the Defendant agreed to meet at the Mapco station because the victim
said that the Clementine apartment complex where Fullwiley and Young lived was “hot” with police.

         Russell testified that he and the Defendant then walked to the convenience store. As they
were walking, the Defendant asked Russell how much money he owed the victim, and the Defendant
told Russell that he should not pay the victim what he owed the victim. They arrived at the Mapco
as the victim was walking from the store to his car. Russell recalled that all three of the men got into
the vehicle at the same time. Russell got into the front passenger seat, and the Defendant got into
the rear seat just behind Russell. Russell testified that after the victim got into the car, the victim
started the car, passed a quarter-ounce of crack cocaine to Russell, and then asked the Defendant for
money. The Defendant asked how much the victim wanted, and the victim replied by asking how
much the Defendant had. According to Russell, the Defendant stated that he wanted Russell and the
victim to give him “everything that’s in the car,” but started shooting before Russell and the victim
had a chance to respond.

        Russell testified that when the shooting started, the victim “jacked back in the car,” and the
car began to “speed up a lot.” The car surged across the street and crashed into a fence. At this
point, Russell jumped out of the car. Russell stated that he started running down the street and saw
the Defendant lying in the street by a curb. Russell recalled that he heard the Defendant moan and
then saw the Defendant stop moving. Russell testified that he did not stop to help the Defendant.
However, he saw a woman driving down the street, and the woman asked him if she could help.
Russell stated that he told her to call the police. Russell reported that he then ran back to
Fullwiley’s, where he ran inside and “throwed up in their bathroom.” Russell testified that he did
not remain at the scene because he was “scared.” Russell stated that while at Fullwiley’s apartment,
Fullwiley noticed blood on Russell’s shirt. Russell reported that two days after the incident, he saw
the incident on the news and called the police.

        Shemmika Fullwiley testified that on July 14, 1996, Russell and the Defendant came to her
apartment at about 11:30 p.m. She recalled that her roommate, Stacey Young, was present at the
time. Fullwiley stated that after Russell paged the victim and spoke with him on the phone, Russell
and the Defendant left around midnight to meet the victim at a nearby Mapco station. She testified
that Russell and the Defendant were meeting at Mapco “to get some drugs.” Fullwiley testified that
the Defendant was carrying a gun on his person, which she saw when he and Russell left the
apartment at midnight. She recalled that approximately fifteen minutes later, Russell returned to her
apartment alone and immediately ran to the bathroom. According to Fullwiley, Russell was
“spooked, shaking, crying . . . [and] vomiting.” Fullwiley testified that Russell repeatedly told her
and Young that the Defendant shot the victim. Fullwiley noticed blood on Russell’s shirt and asked


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him about the Defendant, and Russell said that the Defendant “couldn’t get up.” Fullwiley reported
that Russell put on a clean shirt and instructed her to put the dirty one in a plastic bag. She testified
that Russell wanted her to throw the bloody shirt away, but she did not. Fullwiley recalled that
Russell left her apartment around 1:30 a.m. with a man named “Frog.” She recalled that two days
later, detectives visited her apartment to question her and Young.

        Stacey Young testified that Russell and the Defendant came to her apartment on the evening
of July 14, 1996. She stated that she saw the Defendant remove a gun from his pocket and place it
on a table while Russell and the Defendant were in the apartment. When someone knocked on the
door, Young saw Russell put the gun “inside [Young’s] chair.” Young testified that she saw that the
Defendant again had the gun when Russell and the Defendant left. When Russell came back alone
to the apartment, he was “spooked, paranoid.” She testified that Russell had blood on the back of
his shirt. Young testified that Russell said that the Defendant had tried to rob the victim. According
to Young, Russell said that the Defendant couldn’t get up.

                                            II. ANALYSIS

                                    A. Sufficiency of the Evidence

        The Defendant argues that insufficient evidence was presented at trial to convict him of
felony murder and especially aggravated robbery. When an accused challenges the sufficiency of
the evidence, an appellate court’s standard of review is whether, after considering the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443
U.S. 307, 324 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to
findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct
and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859.
This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant
removes the presumption of innocence and raises a presumption of guilt, the convicted criminal
defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. Id.

        Specifically, the Defendant contends that accomplice testimony presented at his trial was not
sufficiently corroborated. A criminal defendant cannot be convicted solely on the uncorroborated


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testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). “An accomplice
is one who knowingly, voluntarily, and with a common intent unites with the principal offender in
the commission of a crime.” State v. Allen, 976 S.W.2d 661, 666 (Tenn. Crim. App. 1997). In
Bethany v. State, this Court stated:
        The question of who determines whether a person is an accomplice depends upon the
        facts of each case. When the facts of a witness’ participation in a crime are clear and
        undisputed it is a question of law for the court to decide. When such facts are in
        dispute or susceptible of an inference that a witness may or may not be an
        accomplice, it then becomes a question of fact for the jury to decide.
565 S.W.2d 900, 903 (Tenn. Crim. App. 1978); see also State v. Lawson, 794 S.W.2d 363, 369
(Tenn. Crim. App. 1990). “Whether the testimony of an accomplice has been sufficiently
corroborated is a question for the jury.” State v. Heflin, 15 S.W.3d 519, 524 (Tenn. Crim. App.
1999). However, corroborating evidence need not be sufficient in and of itself to support a
conviction, but it must fairly connect the defendant with the commission of the crime. State v.
Gaylor, 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992).

        In this case, the Defendant was convicted of especially aggravated robbery and murder in the
perpetration of a felony. Accomplice testimony established that the Defendant tried to rob the
victim, and in the process, shot the victim numerous times in the head and shoulder region. After
a review of the record, we believe that there is sufficient corroboration in the record of this
accomplice testimony. Sergeant Robert Shemwell testified that four spent cartridge casings and one
spent bullet fragment were recovered from inside the vehicle in which the Defendant, Russell, and
the victim were reportedly riding at the time of the crime. Dr. Smith opined that if the victim was
driving the car, the gun was probably fired from behind him. The record reveals that after forensic
study, the shell casings and fragments were determined to have been fired from the weapon that
Officer Eric Rogers found in a grassy area near the car. Shemmika Fullwiley and Stacey Young
testified that the Defendant had a gun on his person in their apartment earlier that night. Fullwiley
testified that the gun shown to her in court was very similar to the gun that she saw the Defendant
lay on a table in her home on the night of the offense. Stacey Young, Fullwiley’s roommate, testified
that when Russell ran into her apartment after the shooting, he said that the Defendant tried to rob
the victim. Fullwiley claimed that Russell said that the Defendant shot the victim. We conclude that
there was sufficient evidence to corroborate the testimony of accomplice Joseph Russell.
Accordingly, the evidence presented to the jury is sufficient to sustain the Defendant’s convictions.

                                  B. Lost or Destroyed Evidence

        The Defendant also argues that the trial court erred in denying his request for a special jury
instruction on the loss or destruction of evidence regarding the results of a paraffin test allegedly
conducted on the Defendant to determine whether he had recently fired a weapon. The Tennessee
Supreme Court addressed the issue of lost or destroyed evidence in State v. Ferguson, 2 S.W.3d 912,
917 (Tenn. 1999). In Ferguson, the court adopted a balancing approach to determine whether a
defendant’s right to a fundamentally fair trial has been affected by the loss and/or destruction of
evidence. Id. at 917-18. Under Ferguson, when the loss or destruction of evidence occurs, the first


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step is to determine whether the State had the duty to preserve the evidence in question. Id. Once
the proof demonstrates the existence of a duty to preserve the evidence in question and the state’s
failure in that regard, the court should examine the following: (1) the degree of negligence involved;
(2) the significance of the missing evidence, taken in light of the probative value and reliability of
secondary or substitute evidence that remains available; and (3) the sufficiency of other evidence
used at trial to support the conviction. Id.

        In this case, unlike Ferguson, it is unclear that the evidence that the Defendant now argues
was lost or destroyed even existed. Sgt. Fitzpatrick testified that his notes indicated that Officer
McNabb told him that McNabb conducted a paraffin test on the Defendant to determine if he had
recently fired a weapon. However, Fitzpatrick testified that he never received any paraffin test
results and that no test results were located. Other than Fitzpatrick’s testimony, no evidence that a
paraffin test was ever conducted is included in the record. The trial court determined that it could
not be shown whether or not the paraffin test was conducted and, therefore, whether any test results
were actually lost or destroyed by the State. We agree. After a review of the record, we have
concluded that there is no substantial evidence showing that the test was ever conducted.

        Nevertheless, we also conclude that even if such a test was conducted, the Defendant has
failed to demonstrate that his right to a fair trial was affected by the loss and/or destruction of the
evidence. See Ferguson, 2 S.W.3d at 917-18. Assuming that the police had a duty to preserve any
test results, no evidence was presented that the police acted in a grossly negligent manner. See id.
Furthermore, we find that there was an abundance of evidence that the Defendant shot the victim.
See id. Accordingly, we believe that this issue is without merit.

                                            C. Sentencing

         Finally, the Defendant argues that the trial court erred in sentencing him. Specifically, the
Defendant argues that the trial court did not include in the record the enhancement and mitigating
factors used to determine the length of the sentence. When a criminal defendant challenges the
length, range, or manner of service of a sentence, the reviewing court must conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. § 40-35-401(d). This presumption, however, “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant facts
and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the record
fails to show such consideration, the review of the sentence is purely de novo. State v. Shelton, 854
S.W.2d 116, 123 (Tenn. Crim. App. 1992).

       In making its sentencing determination, the trial court, at the conclusion of the sentencing
hearing, determines the range of sentence and then determines the specific sentence and the propriety
of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the
sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to
sentencing alternatives, (4) the nature and characteristics of the criminal conduct involved, (5)
evidence and information offered by the parties on the enhancement and mitigating factors, (6) any


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statements the defendant wishes to make in the defendant's behalf about sentencing, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b), -103(5); State v.
Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

        The presumptive sentence to be imposed by the trial court for a Class B, C, D or E felony is
the minimum within the applicable range unless there are enhancement or mitigating factors present.
Tenn. Code Ann. § 40-35-210(c). The presumptive sentence for a Class A felony is the midpoint
of the sentencing range unless there are enhancement or mitigating factors present. Id. § 40-35-
210(c). If there are enhancement or mitigating factors, the court must start at the presumptive
sentence, enhance the sentence as appropriate for the enhancement factors, and then reduce the
sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e). The weight to
be given each factor is left to the discretion of the trial judge. Shelton, 854 S.W.2d at 123.
However, the sentence must be adequately supported by the record and comply with the purposes
and principles of the 1989 Sentencing Reform Act. State v. Moss, 727 S.W.2d 229, 237 (Tenn.
1986).

       When imposing a sentence, the trial court must make specific findings of fact on the record
supporting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any
enhancement or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial
court wishes to enhance a sentence, the court must state its reasons on the record. The purpose of
recording the court’s reasoning is to guarantee the preparation of a proper record for appellate
review. State v. Ervin, 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996).

        Enhancement factors must be “appropriate for the offense” and “not themselves essential
elements of the offense.” Tenn. Code Ann. § 40-35-114.
        The obvious purpose of these limitations is to exclude enhancement factors which
        are not relevant to the offense and those based on facts which are used to prove the
        offense. Facts which establish the elements of the offense charged may not also be
        the basis of an enhancement factor increasing punishment. The legislature, in
        determining the ranges of punishment within the classifications of offenses,
        necessarily took into account the culpability inherent in each offense.
State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence “even if we would have
preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The
defendant bears the burden of showing the impropriety of the sentence imposed. Ashby, 823 S.W.2d
at 169.

       It appears from the record that the trial court initially merged the Defendant’s convictions for
felony murder and especially aggravated robbery. Thus, the trial court did not impose a sentence or


                                                  -8-
conduct any sentencing analysis regarding the especially aggravated robbery conviction. Upon
reconsideration, the trial court decided not to merge the two convictions. However, the trial court
simply entered a judgment stating that the Defendant was sentenced to twenty-two years
incarceration for the especially aggravated robbery conviction and that the sentence was to run
concurrently with the life sentence for the felony murder. There is no indication in the record that
the trial court ever conducted a sentencing analysis to determine the Defendant’s proper sentence for
especially aggravated robbery.

        The trial court did not specify in the record the enhancement and mitigating factors applied
in determining the length of the Defendant’s sentence for especially aggravated robbery. See Tenn.
Code Ann. § 40-35-210(f). In addition, the trial court failed to place in the record any findings of
fact supporting the sentence imposed. See id. § 40-35-209(c). The record is virtually void of any
findings regarding sentencing. Without these findings, our Court is without a proper record for
appellate review. See Ervin, 939 S.W.2d at 584. We therefore remand to the trial court for a new
sentencing hearing and to make appropriate findings regarding the length of the Defendant’s
sentence for especially aggravated robbery. The trial court should set out specific findings of fact
and conclusions of law in support of the sentence imposed.

       For the reasons stated above, we AFFIRM the Defendant’s convictions and REMAND this
case to the trial court for a new sentencing hearing to determine the appropriate length of the
Defendant’s sentence for especially aggravated robbery.



                                                      ___________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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