         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  February 12, 2003 Session

           STATE OF TENNESSEE v. MARCUS TRAMANE GREEN

                    Appeal from the Circuit Court for Montgomery County
                       No. 40100307     John H. Gasaway, III, Judge



                     No. M2002-01810-CCA-R3-CD - Filed April 28, 2003


The defendant, Marcus Tramane Green, appeals the sentence imposed by the Montgomery County
Circuit Court following his guilty pleas to especially aggravated robbery, a Class A felony, and
aggravated burglary, a Class C felony. The trial court sentenced him to respective concurrent terms
of seventeen years as a Range I, violent offender and four and one-half years as a Range I, standard
offender to be served in the Department of Correction. The defendant contends that his sentences
are excessive, arguing that the trial court misapplied enhancement factors and failed to apply certain
mitigating factors. We affirm the effective seventeen-year sentence imposed by the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

R. Todd Hansrote, Clarksville, Tennessee, for the appellant, Marcus Tramane Green.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        This case arises out of the April 12, 2001 beating of Charlie Rye and taking of money and
a television from his home. Around 7:50 a.m. on May 8, 2001, the defendant gave a statement to
law enforcement relating that on the day in question, codefendants Robert Downey and Barbi Brown
told him they knew a man with a lot of money. Downey and Brown returned a couple of hours later
and asked if he was ready to go. Brown drove the trio to the victim’s trailer. Downey looked
through the window in the trailer’s door and did not see anyone. Downey forced the door open and
went to the back of the trailer. The defendant remained in the trailer’s doorway. The defendant
heard a noise, walked to the back, and saw Downey hit the victim several times. Downey told the
defendant to check the victim’s pants for money, but the defendant did not do so. Downey took
money from the pants, a television, and a container of coins. The defendant left the trailer followed
by Downey, who put the television, money, and coins in the car. The three drove away, split the
money, and took the defendant home. The defendant reported that he received $1000 and the
codefendants each got $1200. He said he declined the container of coins.

        The defendant pled guilty to especially aggravated robbery and aggravated burglary in
exchange for the state dismissing three additional counts of conspiracy to commit robbery, theft of
property valued over $1000, and attempted first degree murder. The parties also agreed that the
sentences would run concurrently and would not exceed twenty years. Otherwise, the trial court was
to determine the length of the sentences.

        The defendant’s sentencing hearing immediately followed that of codefendant Brown, who
had also pled guilty to especially aggravated robbery and aggravated burglary. The parties agreed
that the trial court should consider the testimony of Brown, the victim’s son, and the victim from
Brown’s sentencing hearing as well as the defendant’s and codefendant Downey’s written statements
to the Montgomery County Sheriff’s Department.

       Nineteen-year-old Barbi Michelle Brown testified that at the time of the offenses she,
Downey, and the defendant were all jobless and needed money. She said she “hung out” with
Downey and the defendant frequently and described twenty-three-year-old Downey as having the
dominant personality in their group. She said she mentioned to Downey that she knew where they
could get money, and he said they should do it. She said she picked the victim because she knew
he would likely have money and did not think about the fact that he only weighed one hundred
pounds. She said that after she suggested the crime, Downey then brought the defendant in on the
offenses and began planning how to get the money. She said that at one point, Downey said he was
going to hit the victim but that she told him they did not need to make their presence known in the
victim’s home. She said that Downey assented and dropped the matter.

        Brown testified that they went to the victim’s house around 2:00 a.m. and that she believed
the victim would be asleep. She said she did not intend for the victim to be harmed and did not
know that the victim had been beaten until the next day. Brown said that she was under the influence
of alcohol and marijuana that night and that she got a little over $1000 in proceeds from the robbery.
On cross-examination, she said she did not remember saying that the victim would be an “easy lick.”
The prosecutor confronted her with her written statement, and she acknowledged saying that it was
discussed beforehand that Downey would hit the victim, knock him out, and take the money.

        James Neal Rye, the victim’s son, testified that he found the victim on the morning after the
offenses. He noticed the victim’s trailer door was open and could see the victim’s wallet laying out.
He heard a moan and found the motionless victim lying in a fetal position. The victim was bruised
and bloody with a swollen head, and Mr. Rye could barely recognize him. Blood was on the bed
linens and the wall. When Mr. Rye attempted to touch the victim, the victim began moaning,
fighting, and speaking incoherently. The victim received medical care for about three months,
including four to five days in intensive care and a month in a rehabilitation center. The victim was


                                                 -2-
in a coma for four days following the attack, and at one point, the doctor told the victim’s family that
he would die if they could not repair his collapsed lungs. Mr. Rye testified that the victim still did
not remember things and used the wrong words in expressing himself. He said the victim now lived
with Mr. Rye’s family because they feared he might be victimized again if he were to live alone. He
said Brown was his wife’s niece, she had been to the victim’s house on several occasions, and she
knew the victim carried a large amount of cash.

        Charles Rye testified that before the offenses, he was independent and lived alone in his
home. He said he was sixty-six years old, and, at the time of the crimes, he weighed 102 to 103
pounds. He said that he did not remember anything about the night of the offenses and that $3200
had been taken from him. He said that he remembered being in the recovery and rehabilitation
sections of the hospital and that he came out of rehabilitation after one and one-half months. He said
that he continued to get names confused and that his head often “spun.”

       Codefendant Robert Taylor Downey gave a statement to law enforcement at 11:23 p.m. on
May 8, 2001. This statement essentially tracks the defendant’s statement of how the offenses
occurred, except Downey said that when he entered the victim’s room, the victim awoke and said
something to him. He said he hit the victim six times. He said he gave the victim’s pants to the
defendant who took money from them and also got a bucket of money. Downey said he got the
victim’s television and ran to the car.

         The defendant’s mother, Antoinette Watson, testified at the sentencing hearing. Ms. Watson
testified that before the offenses, the defendant lived with his girlfriend in a trailer across the street
from her. She said that at the time of the offenses, the defendant was nineteen years old and his
girlfriend was pregnant with the defendant’s son. She said the defendant was between jobs and that
he and his girlfriend were late in paying their electric bill and three months behind on the rent. She
said the defendant was not a violent person and was more of a follower than a leader. She said the
defendant had received counseling in the past for being suicidal, schizophrenic, and depressed. She
said she learned of the offenses from her other son who had seen the defendant’s picture on
television. She said that after this, the defendant asked her to take him to turn himself in to the
police. She said the defendant later told her that he did not know that Downey was going to do
anything to the victim and that if he had known it, he would not have gone with Downey and Brown.

       On cross-examination, she testified that the defendant was in trouble with the law once as
a juvenile and that she had filed runaway charges against him a couple of times. She said he had
been in and out of state custody mainly because of his mental problems. She agreed that the
defendant was capable of working and had worked for TVA at one point but had quit.

       The defendant testified that his codefendants Brown and Downey stopped by on the evening
of the offenses. He said that he was not involved in planning the robbery and that Robert Downey
told him they would merely sneak into the victim’s house, take the money, and leave. He denied
going with his codefendants when they drove by the victim’s house earlier that day and said he did
not hear any discussion concerning violence toward the victim or about Downey hitting the victim.


                                                   -3-
He said they went late at night in order that the victim would be asleep or gone. He said that he had
never seen the victim before and that Brown never described the victim’s age or size to him. He said
Brown devised the plan for the offenses.

        The defendant testified that Downey and Brown picked him up around midnight and that
Downey had a heavy Mag flashlight. He said both he and Downey were suppose to go into the
victim’s house but he was afraid and remained at the victim’s door, watching, until he heard a noise.
He said he went inside and saw Downey hit the victim three or four times. He said Downey threw
the victim’s pants to him, and he dropped them and ran outside. He agreed that Downey gave him
a container of coins and that he ran out the door. He said that participating in the offenses was a bad
decision and that he turned himself in to the police and told them what happened, who was involved,
and where they might find the victim’s television.

        The defendant testified that he joined in the offenses because he needed money to pay his
electric bill and his rent. He said his electricity was due to be disconnected the day after the offenses,
and he was going to be evicted. He said that his pregnant girlfriend had been near the time of
delivery and that his son was born while he was incarcerated. He said that while in jail, a doctor
treated him for depression, which had been ongoing since he was nine or ten years old. He agreed
that he was hospitalized for attempting suicide at age ten and said that he had attempted suicide
countless times. On cross-examination, he agreed that he told his girlfriend that he was going to go
with the codefendants to commit the offenses to get money for their rent. He admitted that he got
$1000 from the proceeds of the robbery and said he used it to pay his rent and his electric bill. He
said he was not working at the time of the offenses because he “was just too lazy to get up and get
a job.”

        The presentence report reveals that the then twenty-year-old defendant attended school
through the tenth grade. He reported taking and failing the GED. The report reflects that the
defendant has no prior criminal record and no record of arrests. He reported having no juvenile
record as well. The defendant characterized his mental health as fair, stating that he takes medication
for depression and had received counseling for four years. He reported using alcohol occasionally
and experimenting with marijuana and “acid,” but he denied regular or continued use of illegal
drugs. The report reflects that the defendant has never been married and has two sons who live with
their mothers. He said that he was not under court order to provide child support for these children
but that he gave their mothers money whenever he could. The defendant, who had been incarcerated
since May 8, 2001, reported working for Kentucky Fried Chicken in the two months preceding his
arrest. He said he had worked for TVA as a laborer earning $10.89 an hour for two months in 1999.
He also stated that he worked for a temporary service for one month. He reported that his mother
took care of his living expenses during the times that he was unemployed.

        As a Range I offender, the defendant’s sentencing range was fifteen to twenty-five years for
the especially aggravated robbery conviction, a Class A felony, and three to six years for the
aggravated burglary conviction, a Class C felony. See Tenn. Code Ann. § 40-35-112(a)(1), (3). The
trial court enhanced the defendant’s sentences with the following enhancement factors:


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                 (4) A victim of the offense was particularly vulnerable because of age
                 or physical or mental disability, . . . ;

                 (5) The defendant treated or allowed the victim to be treated with
                 exceptional cruelty during the commission of the offense; [and]

                 (6) The personal injuries inflicted or the amount of damage to
                 property sustained by or taken from the victim was particularly
                 great[.]

Tenn. Code Ann. § 40-35-114 (Supp. 2001) (amended 2002).1 It applied mitigating factor (10), that
the “defendant assisted the authorities in locating or recovering any property or person involved in
the crime,” because the defendant turned himself in to law enforcement and gave a statement. See
Tenn. Code Ann. § 40-35-113(10). It also applied the “catch-all” mitigating factor (13), finding that
the defendant had expressed genuine remorse for the crimes. See Tenn. Code Ann. § 40-35-113(13).
It sentenced him to seventeen years for the especially aggravated robbery conviction and four and
one-half years for the aggravated burglary conviction and ordered the sentences to run concurrently
pursuant to the plea agreement.

         The defendant challenges the enhancement factors that the trial court applied and contends
that it should have also applied mitigating factors (4), (6), (7), (11), and (12). Accordingly, he argues
that he is an especially mitigated offender because he has no prior felony convictions and only
mitigating factors and no enhancing factors apply. See Tenn. Code Ann. § 40-35-109. The state
concedes that the trial court erroneously applied enhancement factor (6), regarding particularly great
injuries, to the defendant’s especially aggravated robbery conviction but contends that the sentences
are otherwise proper and that the effective seventeen-year sentence should be affirmed.

       Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing
Commission Comments to this section note, the burden is now on the defendant to show that the
sentence is improper. This means that if the trial court followed the statutory sentencing procedure,
made findings of fact that are adequately supported in the record, and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        In conducting a de novo review, we must consider (1) the evidence, if any, received at the
trial and 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,


        1
          The legislature’s 2002 amendment, not applicable here, added as the new enhancement factor (1) that the
“offense was an act of terrorism ” but changed the existing enhancement factors only in increasing their designating
numb er by o ne.

                                                        -5-
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
-103, -210; see State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991); State v. Moss, 727 S.W.2d 229
(Tenn. 1986). We note that although the defendant entered guilty pleas to the offenses, he did not
include in the record on appeal a transcript of the guilty plea hearing at which the convicting
evidence would be presented by stipulation or testimony. A guilty plea hearing often provides an
important occasion for the state to present its proof, and thus, it is the equivalent of a trial and should
be made part of the record on appeal in order to comply with Tenn. Code Ann. § 40-35-210. The
defendant has the responsibility of preparing a record that conveys a fair, accurate and complete
account of what transpired with respect to those issues that are the bases of appeal. T.R.A.P. 24(b).
Absent the guilty plea hearing, in which facts are presented, we may presume that the trial court was
justified in applying the enhancement and mitigating factors. See, e.g., State v. Keen, 996 S.W.2d
842, 844 (Tenn. Crim. App. 1999). Nevertheless, in the present case, we believe the evidence
presented at the sentencing hearing provides sufficient facts about the circumstances surrounding the
offenses for us to examine the propriety of the defendant’s sentence on the present record.

        The defendant contends that the trial court should not have enhanced his sentences with
enhancement factor (4), that the victim was particularly vulnerable due to age or physical condition.
He argues that the record is devoid of proof that the victim’s age or physical condition was a factor
in planning the crimes. Instead, he asserts that the crimes revolved around stealth rather than force
as he and Downey intended to sneak into the victim’s home while he was asleep. He points out that
he had never seen the victim before the offenses and that the record contains no proof that Brown
told him the victim’s age or size before the crimes. The state contends that the record supports the
trial court’s finding that the victim was particularly vulnerable and shows that the victim’s
vulnerability played a part in the crimes. Additionally, it argues that whether the defendant was
aware of the victim’s physical condition at the time of the offenses is irrelevant.

        In applying enhancement factor (4), the trial court found that the victim was “particularly
vulnerable” and concluded that enhancement factor (4) focuses upon the victim’s condition and that
the defendant’s advance knowledge of that condition is irrelevant. Our supreme court has held that
factor (4) “relates more to the natural physical and mental limitations of the victim than merely to
the victim’s age.” State v. Adams, 864 S.W.2d 31, 35 (Tenn. 1993). Particular vulnerability is
shown when, because of age or physical or mental condition, the victim is “incapable of resisting,
summoning help, or testifying against the perpetrator.” Id.

        The defendant relies upon State v. Butler, 900 S.W.2d 305 (Tenn. Crim. App. 1994), to argue
that the victim’s age or physical condition had to be a factor in the planning or the commission of
the crime for enhancement factor (4) to apply. In Butler, the defendant shot an elderly woman. This
court held that “during the commission of the crime,” the defendant must have taken advantage of
the victim’s inability to resist, summon help, or testify against the defendant in order for factor (4)
to apply. Id. at 313. Because the victim was unexpectedly shot from a distance, we concluded that
her age and physical condition were not factors in the commission of the offense. Id.



                                                   -6-
         In the present case, the defendant and codefendants did take advantage of the victim’s
physical condition in perpetrating the offenses. The sixty-six-year-old victim weighed just over one
hundred pounds and lived alone. Brown knew the victim and said in her statement that Downey was
to hit the victim and knock him out. The defendant saw the victim as Downey was beating him.
Despite the defendant’s insistence that the crimes centered around stealth, the evidence reveals that
the victim’s frail stature prevented him from resisting Downey’s beating and rendered him
particularly vulnerable.

        Also, our supreme court has stated that factor (4) hinges upon the victim’s vulnerability
relative to the crime committed. State v. Lewis, 44 S.W.3d 501, 505 (Tenn. 2001). It does not
require the state to show that the defendant evaluated vulnerabilities and acted to capitalize on them.
Id. We conclude that the trial court properly applied enhancement factor (4) to both sentences.

         The defendant contends that the trial court erroneously applied factor (5), that the defendant
allowed the victim to be treated with exceptional cruelty. He argues that the proof does not reveal
a level of cruelty over that required to show serious bodily injury, which is an element of especially
aggravated robbery. In applying factor (5), the trial court found that the defendant did not make any
effort to stop Downey as he was beating the victim. The state contends that the evidence supports
the trial court’s application of this factor. It argues that the elderly victim was struck on the head
numerous times with a Mag flashlight, left unconscious and bleeding by the defendant and
codefendants, and spent four days in intensive care in a coma.

        The application of factor (5) requires “exceptional cruelty,” which is usually found in cases
of abuse or torture. See State v. Williams, 920 S.W.2d 247, 250 (Tenn. Crim. App. 1995). Our
supreme court has held that the facts must support a finding of “‘exceptional cruelty’ that
‘demonstrates a culpability distinct from and appreciably greater than that incident to’” the crime.
State v. Poole, 945 S.W.2d 93, 98 (Tenn. 1997) (quoting State v. Jones, 883 S.W.2d 597, 601 (Tenn.
1994)). In other words, proper application of this factor requires a finding of cruelty “over and
above” what is required for the offense itself. State v. Arnett, 49 S.W.3d 250, 258 (Tenn. 2001).

        Especially aggravated robbery requires the intentional or knowing theft of another’s property
from his or her person by violence or putting the person in fear, the use of a deadly weapon, and that
the victim suffer serious bodily injury. Tenn. Code Ann. § 39-13-403(a); see also Tenn. Code Ann.
§ 39-13-401(a). “Serious bodily injury” is defined as “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)(34). In the present case, the
evidence presented at the sentencing hearing shows that Downey struck the elderly victim in the head
with a Mag flashlight six times, and the defendant said he saw Downey hit the victim three or four
times. Following the beating, the defendant and Downey fled the trailer. As a result of the beating,
the victim was bruised and bloody. When his son found him the next morning, he was
unrecognizable and incoherent, and he remained in a coma for four days. In Poole, our supreme
court concluded that knocking the elderly victim unconscious and leaving her on the floor bleeding


                                                 -7-
under circumstances making it unlikely that she would soon be discovered or receive treatment
demonstrated a greater culpability than that needed for the commission of especially aggravated
robbery. 945 S.W.2d at 99. The court noted that the defendants knew the victim lived alone. Id.
We believe Poole dictates a similar result in this case. Thus, the evidence does not preponderate
against the trial court’s finding that the defendant allowed the victim to be treated with exceptional
cruelty. Serious bodily injury is not an element of aggravated burglary, and therefore, we hold that
factor (5) was also properly applied to this conviction based upon the defendant allowing Downey
to beat the victim. See Tenn. Code Ann. § 39-14-403.

         The defendant contends and the state concedes that the trial court improperly applied
enhancement factor (6), that the victim received particularly great personal injuries, to his especially
aggravated robbery conviction. Serious bodily injury is an essential element of especially aggravated
robbery. Tenn. Code Ann. § 39-13-403(a)(2). Section 40-35-114 specifically prohibits using
enhancement factors that are elements of the offense, and our supreme court has held that “proof of
serious bodily injury will always constitute proof of particularly great injury.” Jones, 883 S.W.2d at
602; State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995) (holding that factor (6) cannot be
used to enhance a sentence for especially aggravated robbery). The defendant does not challenge
the trial court’s application of this factor to his aggravated burglary conviction, and we discern no
basis to do so.

        The defendant contends that the trial court should have applied the following mitigating
factors to his sentences:

                (4) The defendant played a minor role in the commission of the
                offense;

                ...;

                (6) The defendant, because of youth . . ., lacked substantial judgment
                in committing the offense;

                (7) The defendant was motivated by a desire to provide necessities for
                the defendant’s family or the defendant’s self;

                ...;

                (11) The defendant, although guilty of the crime, committed the
                offense under such unusual circumstances that it is unlikely that a
                sustained intent to violate the law motivated the criminal conduct;

                (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[.]


                                                  -8-
Tenn. Code Ann. § 40-35-113. Before the sentencing hearing, the defendant filed a notice of twenty-
two mitigating factors, including those he advocates on appeal. In his argument at the sentencing
hearing, the defendant referred the trial court to his notice of mitigating factors and merely stated that
the testimony supported a substantial number of them. The trial court only addressed mitigating
factors (10) and (13), relating to the defendant’s remorse, and made no findings regarding the
remaining factors.

       With regard to mitigating factor (4), the defendant argues that his role in the offenses was a
minor one because he did not know the victim beforehand and was not involved in planning the
crimes. He argues that he did not injure the victim and did not enter the house until he heard
Downey striking the victim. We believe the evidence does not support a conclusion that the
defendant’s role was minor. He testified that he was suppose to enter the victim’s trailer with
Downey but, instead, remained in the doorway and watched because he was afraid. He subsequently
entered the trailer and admitted removing the victim’s container of coins from the trailer. This
evidence shows that the defendant acted as a lookout and helped remove the victim’s property and
does not reflect that his role was minor.

        With respect to mitigating factor (6), the defendant argues that he lacked substantial judgment
in committing the offenses because he was nineteen years old, had only a tenth-grade education, and
was a follower rather than a leader. When determining the applicability of mitigating factor (6), the
court should consider “the defendant’s age, education, maturity, experience, mental capacity or
development, and any other pertinent circumstance tending to demonstrate the defendant’s ability
or inability to appreciate the nature of his conduct.” Adams, 864 S.W.2d at 33. As the state points
out, the defendant was no longer a minor and was living on his own with his girlfriend. Although
he has no prior criminal record, the defendant’s mother testified that he had been in trouble as a
juvenile. This evidence does not reveal that the defendant lacked substantial judgment because of
his youth and limited education. Additionally, we note that the defendant testified that Brown and
Downey contacted him about participating in the offenses, left for a time, then returned and picked
him up around midnight before the offenses. Presumably, it was during the interval before his
codefendants’ return that he told his girlfriend that he was going to participate in the offenses in
order to get money to pay their rent. These circumstances reflect that the defendant made a
calculated judgment about participating in the offenses and belie the application of mitigating factor
(6).

        The defendant contends that the trial court should have applied mitigating factor (7), that he
committed the crimes in order to obtain necessities, because he committed the offenses in order to
get money for his overdue rent and electric bill. He points out that at the time, his pregnant girlfriend
was close to delivery and that he used the proceeds of the robbery to maintain their shelter and
electricity. The state argues that the defendant admitted that he was unemployed at the time of the
offenses because he was too lazy to look for a job. We also note that the presentence report reveals
that the defendant had a sparse employment history and largely relied upon his mother to support
him. We do not believe mitigating factor (7) applies in these circumstances.



                                                   -9-
        Finally, the defendant argues that his sentences should have been mitigated because he had
no sustained intent to violate the law and was acting under the domination of his codefendants. See
Tenn. Code Ann. § 40-35-113(11)-(12). He argues that the record does not reveal that he had chosen
a criminal lifestyle. Rather, he asserts that his personal circumstances and the solicitation of his
codefendants lured him into the commission of the offenses. The state argues that the record reflects
that the defendant had a sustained intent to rob the victim in order to get money for his bills. It
maintains that he agreed to break into the victim’s house to steal his money and then followed
through with those plans. Additionally, it contends that although the defendant’s mother testified
that he was a follower rather than a leader, the record contains no proof that the defendant was
threatened or coerced into committing the crimes. We agree with the state. The evidence shows that
the codefendants contacted the defendant about participating in the offenses earlier in the evening
and then returned to get him around midnight. He said that he committed the offenses to get money
for his bills and admitted that he helped carry items out of the house and received $1000 of the
proceeds of the offenses. We believe the defendant’s conduct reflects a sustained intent to violate
the law. Finally, the record reflects that the defendant was motivated to participate in the offenses
by his desire to get money and not because he was pressured by his codefendants. This factor also
does not apply to the defendant’s sentences.

         We conclude that the trial court properly applied enhancement factors (4) and (5) but
erroneously enhanced the defendant’s especially aggravated robbery sentence with enhancement
factor (6). None of the additional mitigating factors advanced by the defendant on appeal apply. In
light of the severity of the victim’s injuries, we believe that the seventeen-year sentence imposed for
the especially aggravated robbery conviction is justified despite the erroneous application of
enhancement factor (6). Based on the foregoing and the record as a whole, we affirm the sentences
imposed by the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




                                                 -10-
