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State v. Conyers9/5/2003
story of unwillingness to comply with the conditions of a sentence involving release into the community. Tenn. Code Ann. § 40-35-114(8) (1997). However, our review of the presentence report reflects that, in addition to being on probation at the time of the instant offenses, the appellant was convicted on March 3, 1981, of larceny and receiving stolen property, and was ordered to serve one year in confinement followed by three years probation. Less than a year later, on February 13, 1982, the appellant was arrested for second degree burglary, attempt to commit larceny, and two weapon offenses, for which offenses he was subsequently convicted and sentenced. We find this evidence sufficient to support the application of enhancement factor (8).
3. Enhancement Factor (10)
Enhancement factor (10) provides that " he defendant had no hesitation about committing a crime when the risk to human life was high." Tenn. Code Ann. § 40-35-114(10) (1997). The appellant challenges the trial court's application of enhancement factor (10), arguing that the risk to human life is an element of the offense of attempted first degree murder. We agree.
A trial court may not apply an enhancement factor if the factor is an essential element of the offense charged in the indictment. Tenn. Code Ann. § 40-35-114. However, "where a high risk to human life is established with facts separate from those necessary to establish an element of the offense, [enhancement factor (10)] is not an essential element of the offense and may be applied if supported by the facts." State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995). In other words, enhancement factor (10) may be applied if the facts demonstrate that the appellant created a high risk to the life of a person other than the named victim. Id.
The risk to human life is an essential element of the offenses of attempted first degree murder and especially aggravated robbery. State v. Reid, 91 S.W.3d 247, 312 (Tenn. 2002); Bryant, No. W2000-01136-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 519, at *18. Thus, because in the instant case the only person at risk was Mrs. Parker, enhancement factor (10) may not be applied to the appellant's sentences for attempted first degree murder or especially aggravated robbery. However, enhancement factor (10) is not an essential element of aggravated burglary. State v. Maurice Pierre Teague, No. 02C01-9704-CC-00132, 1997 Tenn. Crim. App. LEXIS 814, at *21 (Jackson, Aug. 27, 1997). Moreover, the facts and circumstances surrounding the appellant's commission of aggravated burglary demonstrate that by breaking into Mrs. Parker's house with the intent to commit especially aggravated robbery and attempted first degree murder, the appellant had no hesitation about committing a crime in which the risk to human life was high. Accordingly, we conclude that the evidence supports the application of enhancement factor (10) to the appellant's conviction for aggravated burglary.
4. Enhancement Factor (16)
The appellant also contends that the trial court erred in applying enhancement factor (16), i.e., that the crime was committed under circumstances under which the potential for bodily injury to a victim was great. Tenn. Code. Ann. § 40-35-114(16) (1997). Because "the potential for bodily injury" is inherent in the offenses of attempted first degree murder and especially aggravated robbery, enhancement factor (16) may not be applied to enhance the appellant's sentences for these convictions. Reid, 91 S.W.3d at 312; State v. Marquez Winters, No. W2001-00740-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 872, at -26 (Jackson, Oct. 15, 2002). However, "the potential for bodily injury" is not an element of the offen
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