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State v. Bussell8/23/2005
court erred in applying enhancement factor (10) based on a finding that Defendant employed a gun during the commission of the offenses. Defendant argues that the jury's failure to convict Defendant of the greater offenses of attempted especially aggravated robbery and attempted aggravated robbery leads one to the assumption that the jury found that Defendant was not armed during the commission of the offenses. Compare Tenn. Code Ann. 39-13-402 and 39-13-403 with 39-13-401. The State argues that Defendant's conviction of the lesser included offense of attempted robbery does not negate the fact that the victim was killed by multiple gunshots.
The trial court found that,
here is no question that a firearm was used. In my mind there's no question [Defendant] was involved in that in an active way, and therefore, I think the possession or employing of a firearm is an aggravating . . . factor, and I think it's a significant aggravating factor. I place a lot of weight on that.
In its sentencing determinations, the trial court is directed to consider the nature and characteristics of the criminal conduct involved. Tenn. Code Ann. * 40-35-210(b)(4). Enhancement factor (10) requires a finding that the defendant possessed or employed a firearm during the commission of the offense. See id. * 40-35-114(10). Although there is contradictory proof as to which man used the firearm, a firearm was undisputedly used during the commission of the crimes. The trial court implicitly found that Defendant used the firearm. The use of a firearm is not an element of either criminally negligent homicide or attempted robbery. See id. 39-13-212(a) and 39-13-401(a). Thus, application of enhancement factor (10) to both of Defendant's sentences was not inappropriate. See State v. Bobby Joe Strader, No. E1999-00132-CCA-R3-CD, 1999 WL 1023738, at *4 (Tenn. Crim. App., Knoxville, Nov. 10, 1999), no perm. to appeal filed.
Defendant also argues that the trial court improperly considered enhancement factor (7) in determining the length of his sentence for his attempted robbery conviction. Enhancement factor (7) requires a finding that "the personal injuries inflicted upon . . . the victim [were] particularly great." Tenn. Code Ann. * 40-35-114(7). Relying on State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995), Defendant argues that enhancement factor (7) is an essential element of the charged offense of attempted especially aggravated robbery and thus cannot be used to enhance Defendant's sentence for his conviction of the lesser included offense of attempted robbery.
We respectfully disagree with Defendant's analysis. Although the indictment charged Defendant with committing the offense of attempted especially aggravated robbery, the indictment also necessarily charged all of the lesser included offenses of attempted especially aggravated robbery. See Tenn. R. Crim. P. 31(c). Attempted robbery is a lesser included offense of attempted especially aggravated robbery. See State v. Richmond, 90 S.W.3d 648, 660 (Tenn. 2002).
Only two statutory limitations are imposed upon the trial court in determining that factually proven enhancement factors are applicable in determining the length of a defendant's sentence. State v. Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997). That is, the enhancement factor must be appropriate to the offense of which the defendant is convicted, and, secondly, the enhancement factor must not be an essential element of the offense. Tenn. Code Ann. * 40-35-114. In considering whether an enhancement factor is appropriate to the offense, our Supreme Court has concluded that "a sentencing court may apply an enhancement factor based on facts underlying
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