# FILED
November 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9701- CC-00035 ) Appe llant, ) ) MAURY COUNTY V. ) ) ) HON . JAME S L. W EATH ERF ORD , PHILLIP DREW CANTWELL, ) JUDGE ) Appellee. ) (ENVIRONMENTAL VA NDALISM)

OPINION CONCURRING I N PART A ND DISSENTI NG IN PA RT
W hile I concur in most of the opini on of the Court , I must di ssent from those portionsof the princi pal opini on which indi cate that an acquittal of previ ous criminal charges preclu de s the Sta te from u sing the a ctivity alleged in the char ges to enhance a senten ce. I can find no con stitu tional or statutory prohi bition o n the State ’s relit igation of act ivit y alleged i n criminal indict ments result ing in acqui ttal when the relitigation occurs at a subsequent proceedi ng where the stan dard of proof is lower tha n a crim inal trial. Indee d, I find am ple case law to the effect that such a relit igation is quite perm issible. See , United S tates v. W atts , 519 U.S. 148, 117 S.Ct. 633, 136 L.E d.2d 55 4 (1997 ); Dowling v. UnitedStates , 493 U.S. 342, 349, 11 0 S.Ct. 668, 672, 10 7 L.Ed.2d 7 08 (1990).

In the case sub judice thema jori ty holds t hat the fol lowing enhancement factors at Tennessee Code Annotated Secti on 40-35-114 do not apply because of acqu ittalin oth er c harges ari sin g out of t his cas e of env ironmen talvan dal ism :(1) the defenda nt has a p revious h istory of crim inal . . . behavior

in addition to those n ecessary to establis h the appropriate range; (2) th e defendan t was a leader in the commissi on of an offense involvi ng two (2) or more criminal actor s. With respect to

enhancement factor

(1) the m ajority fin ds tha t the ap pellan t’s acquittalof additi onal count s char ged in the indictme nt preclud es relitigation at a sentencing hearing of those al leged cri minal acts. Regardi ng enhancement factor (2) the majo rity conc ludes that the acqu ittal of the appe llant’s emp loyees mak es this
a crime involvi ng only one actor and that ther efore applica tio n of this factor is improper. However , the United States Supreme Court has held:
“‘[A]n acquittal is n ot a findingof any fact . An acquitt al can only be an ackno wledgm ent that the governm ent failed to pro ve an essentialelement of t he offense beyond a reaso nable doub t. W ithout s pecific jury findin gs, no one can logical ly or real is tically draw any fac tual fi nding inferences. . .’”

(citat ion omitt ed) Wa tts , 117 S.C t. at 637. Thus, at a sente ncing hearing, c riminal be havior whi ch has nevertheless resulted i n an acquittal may be submitted o n the issue of sentencing since the sta ndard of proo f is lower, i.e., a preponderance of the evidence standard. Id .; See , State v. Carter , 908 S.W.2d 410 (Tenn . Crim. A pp. 199 5); State v. Richard J. Crossman, Wilson Co. No. 01C01-9311-CR-00394 (opini on filedOct. 6, 1994 at Nashv i lle) app. denied (Tenn. January 3, 1995) (holdi ng that preponder ance of evidenc e stand ard app lies at sente ncing he arings.)
Although the cases cited he reinabove largely deal with federal co nstitut ional and statutor

y law regar

di ng t he use at sentenci ng of charges whi ch have resulted in an a cquittal, I find nothi ng in the Tennessee Constitution or our statutes which would w arrant a d ifferent resu lt.
Finally, although t he trialcourt d id apply enhancement factor (3) , i.e. , that t he offense involved more than one victi m, the majori ty fi nds it i nappropriate to countas“victi ms” those individu als named as victims in the counts of t he indictment for which

the defendant was acqui tted. Based on the reasoni ng outli ned above, I would affirm the use of thi s enhancement factor , however because t he trialcourt never considered enhance ment factors (1 ) and (2), I would reverse and remand this case fora new sentencing hearing wherein these factors and facto r (3) are cons idered in conjunction w ith one anothe r.

For thes e reaso ns I conc ur in part an d dissen t in part.

__________________________ JERRY L . SMI TH, J UDGE