            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs December 11, 2002

             STATE OF TENNESSEE v. BARBI MICHELLE BROWN

                 Direct Appeal from the Circuit Court for Montgomery County
                         No. 40100306    John H. Gasaway, III, Judge



                        No. M2002-01497-CCA-R3-CD - Filed April 1, 2003



The defendant pled guilty to one count of especially aggravated robbery and one count of aggravated
burglary. The trial court sentenced the defendant to twenty years incarceration pursuant to a
negotiated plea agreement setting the maximum amount of time to be served at twenty years. The
defendant contends her sentence is excessive and the trial court misapplied enhancement factors (4),
(5), (6), and (10).1 We agree the trial court misapplied two enhancement factors, but the record
supports the imposition of a twenty-year sentence, which is the maximum allowed by her plea
agreement and the “presumptive sentence” provided by statute. We affirm the judgments from the
trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
NORMA MCGEE OGLE , JJ., joined.

Gregory D. Smith, Clarksville, Tennessee (on appeal); Michael R. Jones, District Public Defender,
and Roger Nell, Assistant Public Defender (at trial and on appeal), for the appellant, Barbi Michelle
Brown.

Paul G. Summers, Attorney General and Reporter; David H. Findley, 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.




        1
            The 2000 amendment added present enhancement factor (1) and redesignated former (1) through (22) as
prese nt (2) through (23), respe ctively.
                                              OPINION

        On June 4, 2001, a Montogomery County Grand Jury indicted the defendant, Barbi Brown,
of conspiracy to commit especially aggravated robbery, especially aggravated robbery, aggravated
burglary, theft of property, and attempted first degree murder. The defendant pled guilty to
especially aggravated robbery and aggravated burglary, subject to a plea agreement which dismissed
all other charges and capped her sentence at twenty years. After the sentencing hearing, the trial
court sentenced the defendant to twenty years incarceration in the Tennessee Department of
Correction for her especially aggravated robbery conviction and five years incarceration for her
aggravated burglary conviction, to be served concurrently. The twenty-year sentence is the
maximum allowed under the plea agreement and the “presumptive sentence” provided by statute.
The defendant appeals claiming that her especially aggravated robbery sentence is excessive.

                                               Facts

        The record reflects that the defendant, Barbi Brown, along with Robert Downey and Marcus
Tramane Green conspired to break into the home of the victim, Charlie Rye, the defendant’s elderly
uncle. The defendant told Downey that the victim kept money in his home and that he would be an
“easy lick.” After Downey solicited the help of Green to commit the robbery, the defendant drove
Downey and Green to the victim’s home on the night of April 12, 2001. Downey and Green entered
the home of the victim, and Downey assaulted the victim with a heavy metal flashlight. Green took
money from the victim’s pants and Downey took a jar full of coins and a television. The defendant,
Downey, and Green drove away and divided approximately three thousand dollars ($3000) equally
among between themselves.

        The morning after the crime, the victim’s son found the victim in his home badly beaten,
bruised, and unconscious. Due to sustaining severe injuries, the victim was transported to Vanderbilt
Hospital in critical condition, where he received medical treatment for more than one month. The
record reflects the victim was sixty-six years old at the time of the incident and weighed a little over
one hundred pounds.

                                               Analysis

       The defendant argues that the trial court imposed an excessive sentence regarding her
especially aggravated robbery conviction, but does not challenge the five-year sentence for her
aggravated burglary conviction. At sentencing, the trial court made the following findings when
determining the defendant’s sentence:
       After weighing and considering all of the enhancement factors and the mitigating
       factors, since there are both types of factors, the Court is to start in the mid range of
       the Class A felony, which is 20 years, enhance - normally the Court would enhance
       and then reduce. The Court has to ask itself in this case whether or not after
       enhancing and reducing in the weighing process whether or not there would be any
       reason to reduce the crime - or to reduce the sentence below the 20 year ceiling that


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       was fixed by the agreement, and the answer is no. She is sentenced to 20 years
       confinement at TDOC for especially aggravated robbery.

        This Court’s review of the sentences imposed is de novo with a presumption of correctness.
Tenn. Code Ann. § 40-35-401(d). A presumption in favor of the trial court is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial
court fails to comply with these principles, there is no presumption of correctness and our review is
de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The defendant bears the burden of
establishing that the sentence the trial court imposed was improper. State v. Ashby, 823 S.W.2d 166,
168 (Tenn. 1991); State v. Boggs, 932 S.W.2d 467, 473 (Tenn. Crim. App. 1996). The defendant
contends that her sentence is excessive and claims that enhancement factors (4), (5), (6), and (10)
should not have been applied to determine the length of her sentence. We agree the trial court
misapplied one enhancement factor and review this appeal de novo without the presumption of
correctness.

        The defendant was convicted of especially aggravated robbery, a Class A felony. Tenn. Code
Ann. § 39-13-403. Especially aggravated robbery occurs where a robbery, as defined in Tennessee
Code Annotated section 39-13-403, is “accomplished with a deadly weapon; and where the victim
suffers serious bodily injury.” Tenn. Code Ann. § 39-13-403(a)(1) and (2). The defendant was
sentenced as a Range I standard offender. The range of punishment for a Class A felony is “not less
than fifteen (15) years nor more than twenty-five (25) years.” Tenn. Code Ann. § 40-35-112(a)(1).
The presumptive sentence is the midpoint of the range if no enhancing or mitigating factors are
present. Tenn. Code Ann. § 40-35-210(c). If enhancing factors exist, the trial court must “enhance
the sentence within the range as appropriate for the enhancement factors.” Tenn. Code Ann. § 40-35-
210(e).

        If no enhancement or mitigating factors are to be considered for sentencing, the presumptive
sentence for especially aggravated robbery, a Class A felony, shall be the midpoint within the
applicable range. Tenn. Code Ann. § 40-35-210(c). The range of punishment for especially
aggravated robbery is fifteen to twenty-five years. Tenn. Code Ann. § 40-35-112(a)(1). Therefore,
twenty years is the midpoint of the range for especially aggravated robbery. If enhancement or
mitigating factors exist, a trial court should enhance the sentence within the range for enhancement
factors and then reduce the sentence within the range for the mitigating factors. Tenn. Code Ann.
§ 40-35-210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). As long as the trial court
complies with the purposes and principles set forth by the sentencing act and this determination is
supported by the record, the weight given to each factor is left to the discretion of the trial court.
State v. Kelley, 34 S.W.3d 471, 479 (Tenn. Crim. App. 2000); see Tenn. Code Ann. § 40-35-210,
Sentencing Comm’n Comments. The weight afforded mitigating and enhancement factors is derived
from balancing relative degrees of culpability within the entire circumstances of the case. State v.
Boggs, 932 S.W.2d 475, 476.




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        The defendant argues that the trial court misapplied enhancement factor (4) in determining
the length of her sentence. Tennessee Code Annotated section 40-35-114(4) allows for the
enhancement of a sentence if “the victim of the offense was particularly vulnerable because of age
or physical or mental disability . . . .” Enhancement factor (4) is inapplicable when a victim’s
vulnerability, because of age or physical or mental disability, is found irrelevant to the commission
of the offense. State v. Poole, 945 S.W.2d 93, 97 (Tenn. 1997). The defendant argues that this
factor was erroneously applied because there is no presumption of vulnerability attached to the
victim due to his age and weight. The record reflects that the sixty- six-year-old victim weighed
barely over one hundred pounds at the time of the crime and the defendant referred to the victim as
an “easy lick.” The record supports a finding that the defendant told her accomplices about the
victim as an easy target because of his vulnerability. We conclude the trial court did not err in
applying enhancement (4).

        With respect to enhancement factor (5), Tennessee Code Annotated section 40-35-114(5),
our supreme court has found that before this factor may be applied, the facts of the case must
“support a finding of ‘exceptional cruelty’ that ‘demonstrates a culpability distinct from and
appreciable greater than that incident to’ the crime.” State v. Poole, 945 S.W.2d 93, 98 (Tenn.
1997). If a trial court should apply enhancement factor (5), it should state what actions of the
defendant, apart from the elements of the offense, constituted exceptional cruelty. State v. Goodwin,
909 S.W.2d 35, 45 (Tenn. Crim. App. 1995). The trial court stated that enhancement factor (5) was
applicable because the defendant allowed the victim to be treated with exceptional cruelty.
Specifically, the trial court stated that the defendant did not stop, or at least abandon, the crime when
she knew that her accomplice planned to use a flashlight to beat the victim. From the record, it
appears as though the frail, elderly victim was beaten repeatedly, beyond what would have been
necessary to take money from his person and property from his home. In Poole, our supreme court
found enhancement factor (5) applicable, despite the fact the trial court made no findings to support
its application. Poole, 945 S.W.2d at 99. In Poole, this Court concluded enhancement factor (5)
was applicable by stating the following:
        This elderly woman was knocked unconscious by a blow to the head with a baseball
        bat. Even though the defendants knew that the victim lived alone, they left her lying
        unconscious and bleeding under such circumstances that it was unlikely that her
        condition would soon be discovered. In fact, the victim remained in such a condition
        all night and was discovered by family members the next day. Because of the delay
        in receiving medical treatment, the victim is extremely fortunate to have survived this
        attack.
Id. The incident described in Poole is almost identical to the facts in the instant case. For these
reasons, we conclude the trial court properly applied enhancement factor (5).

        The defendant argues that the trial court erred in finding that the personal injuries inflicted
on the victim were particularly great. See Tenn. Code Ann. § 40-35-114(6). The State concedes that
enhancement factor (6) may be inapplicable. We conclude that the trial court erroneously enhanced
the defendant’s sentence because the victim suffered serious bodily injury. An essential element of
especially aggravated robbery is serious bodily injury. Tenn. Code Ann. § 39-13-403(a)(2). “Proof


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of serious bodily injury will always constitute proof of particularly great injury.” State v. Jones, 883
S.W.2d 597, 602 (Tenn 1997). Enhancement factor (6) is inapplicable because serious bodily injury
is inherent in a conviction for especially aggravated robbery.

         The defendant contends that the trial court misapplied enhancement factor (10) because this
factor is an essential element to the offense of especially aggravated robbery. Tennessee Code
Annotated section 40-35-114(10) is used to enhance a sentence if “the defendant had no hesitation
about committing a crime when the risk to human life was high.” The defendant pled guilty to
especially aggravated robbery, which includes the use of a deadly weapon as an essential element
of the offense. In this case, the defendant’s accomplice used a heavy metal flashlight to inflict
serious bodily injury upon the victim. When an offense is committed with a deadly weapon, it is
inherent within the offense that there is a risk to human life and the potential for injury is great. State
v. Hill, 885 S.W.2d 357, 363 (Tenn. Crim. App. 1994). Because this factor is inherent in the offense
of especially aggravated robbery, we conclude the trial court misapplied enhancement factor (10).

        The defendant concedes that enhancement factors (1) and (2) were properly applied. We
agree that the record supports enhancement factor (1) because the defendant has a previous history
of using illegal drugs. Tenn. Code Ann. § 40-35-114(1). We agree that the record supports the
contention that the defendant was the leader in the commission of this offense involving her two
accomplices. See Tenn. Code Ann. § 40-35-114(2). The trial court agreed to the application of two
mitigating factors, (10) and (13). Using mitigating factor (10), the trial court found the defendant
assisted authorities in locating her accomplices. The trial court supported the application of
mitigating factor (13) by finding the defendant entered a guilty plea and avoided “the necessary time,
effort and expense associated with a trial.”

         Upon de novo review, we conclude that the trial court properly applied enhancement factors
(1), (2), (4), (5) and properly applied mitigating factors (10) and (13). However, we conclude the
trial court erred in applying enhancement factors (6) and (10). Despite the misapplication of two
enhancement factors, we conclude that the weight given to the remaining factors is sufficient to
support a twenty-year sentence. By statute, the trial court was required to begin the defendant’s
sentence determination at the midpoint of the range of twenty years. However, pursuant to her plea
agreement, twenty years was the maximum time she could receive. We conclude the trial court,
absent an agreement to the contrary, was well within its discretion to enhance the defendant’s
sentence above twenty years. The agreement in this case established a ceiling which the trial court
could not exceed, yet the enhancing factors embedded the sentence in the ceiling such that two
mitigating factors could not dislodge.




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                                   Conclusion

Accordingly, we affirm the sentence imposed by the trial court.




                                             ___________________________________
                                              JOHN EVERETT WILLIAMS, JUDGE




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