# FILED
December 11, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE OCTOBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9709- CC-00404 Appellee, ) ) Giles County V. ) ) Honorable Jim T. Hamilton,Judge ) KEITH LAMONT SMITH, ) (Burglary) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Hershell D. Koger John Knox Walkup Attorney at Law Attorney General & Reporter 131 North First Street P.O. Box 1148 Elizabeth B. Marney Pulaski, TN 38478 Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Mike Bottoms District Attorney General Stella Ha rgrove Richard Dunavant Assistant District A

ttorneys General P.O. Box 304 Pulaski, TN 38478

OPINION FILED: ___________________
AFFIRMED PAUL G. SUMM ERS, Judge-2- O P I N I O N While serving probation for an unrel ated prior offense, the appellant, Keith Lamont Smith, was convicted of burglary by a jury of the Giles County Circuit Court. He was sentence d as a persistent offender to the Rang e III maximum of twelve years’

confinement, with his sentenc e to run consecutively

to any revocation of his probation.On this appeal as of right,the appellant argues that his sente nce is exce ssive and t hat the t rial court erred in or dering con secutive sentencing. Finding no reversible error, we affirm the judgment of the tri al court.
Following a series of break-ins at the Coca-Cola bottling plant in Pulaski, Tennessee, the

local poli ce install ed motion detectors and r emote alarms throughout the plant. In the c ourse of burglarizing

the plant, the appellant tripped one of these alarms. Three Pulaski police officers responded to the al arm and observed the appellant fleeing from the plant. The officers pursued the ap pellant and ultimately apprehended him fro m a trash dumpster where he w as attempting to hide.
The appellant was indicted for the burglary in w

hich he was apprehended, two prior burglar

ies of the bottling plant, and three corresponding counts of theft. The state subsequently enter ed a nolle prosequi to the final charge of theft. The appellant was tried, and the jury returned verdicts of guilty on the burglary in which he was apprehended and not guilty on all remaining charges.
At the sentencing hearing , the state submitted proof of at least six prior felony convictions of the appellant. Based on these con victions, the trial court found the appellant to be a persistent offender. See T.C.A. 40-35-107. The trial court also found applicable the foll owing five statutor y sentencing enhancement factors:-3- (1) The defendant has a previous h istory of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (2) The defendant was a leader i n the commission of an offense involving two (2) or more criminal actors; (8) The defendant has a previous h istory of unwillingness to comply with the conditions of a sentence involving re lease in t he commu nity; (10) The defendant had no hesitation about committing a crime when the risk to human like w as high; (13) The felony was committ ed while on any of the following forms of relea

se status if s uch release is from a prior felony conviction: . . . Probation . . . . T.C.A. § 40-35-114(1), (2) , (8), (10), (13). The appellant proffered two mitiga ting factors, both of which the tri al court rejected:

(1) The defendant’s criminal cond uct neither caused nor threa tened se rious bod ily injury; (11) The defendant, although guilty of the crime, committed the offense under such unusual ci rcumstances that it is unlikely that a sustained intent to v iolate the law motivated the criminal co nduct. T.C.A. § 40-35-113(1), (11) . Pursuant to these findings, the trial court sentenced the appellant to the maximum Range III sentence of twelve years.
The appellant argues that this sentence is excessiv

e. He does not challenge the applicability of enhancement facto rs (1), (8), or (13) or the court’s rejection of mitigating factor (11). He does, however, argue that the trial court erred in applying enhancement factors (2) and (10) and in declining to apply mitigation factor (1).

When an accus

ed chall enges t he length or man ner of se rvice of a sentence, it is the duty o f this Court to conduct a de novo review on the record “with a presumption that the determinations made by the c ourt from which the appeal is taken are correct.” T.C.A. § 40-35-401(d). This presumption “is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstan ces.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The appellant carri es the-4- burden of showing that his sentence is improper. See State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
The appellant first challenges the trial court’s finding that the appellant had no hesitation about committing a crime when the risk

to human life was high. See T.C.A. § 40-35-114(10). The trial court stated its basis for applying this enhancement as follows: Although this conviction did not involve a weapon or any fight or any bodily injury, anytime that the police have to answer to a call such as that [i.e., a building alarm at night and the apprehension of a fleeing felon] th ere is a risk of some bodily injury although I’ll have to agree with counsel that there was no proof in thi s case that there was a w eapon involved. To uphold this enhancement on such reason ing would implicate sentence enhancement in virtually every instance that police are called upon to r espond to a crime or a pprehend a defen dant, with no regard fo r the charac ter of the cri me or circumstances. We do not believe that the legislature intended such a result. Thus, we find this basis for i mposing the enhancement to be over ly broad. Moreover, the enhancement is unsupported by the evidence. The trial cou rt’s findings si mply do not a mount to a hig h risk to hu man life absent proof of some additional circumstance. We, therefore, find thi s issue in favor of the appell ant.
The appellant next argues th at the trial court erred in finding him to be the leader of an offense involving two of more actors. The appell ant argues that “no evidence was presented at trial or sentencing indicating that anyone else was charged in connection with thi s crime.” (emphasis added) . While this appears to be accurate, the enhancement statute do es not require that multiple offenders be charged--only that

there be multiple offenders and that the defendant be a leader. The state introduced suc h evidence. For exampl e, in his original statement to the police, the appell ant implicated two additi onal persons in the series of burglaries and, more importantly, named one other who was involved in the burglary for w

hich he was convict

ed. He testified at trial that another person-5- provided information on how to gain entrance to the bottl ing plant, thereby further indicating that additional criminal actors were involved. The appellant candidly admitted that the idea for the burg lary was his. A nd, his admission that he arranged sales and took adv ance orders for the drinks that he intended to steal supports the conclusion that he orchestrated the crime. The t rial judge, therefo re, had am ple eviden ce upon wh ich to bas e this enh ancemen t; and we find no abuse of discretion in his decision.
Nevertheless, the appellant further argues that because the trial cou rt did not record findings to suppor t this enhancement during the s entencing phase, the enhancement should not be applied. While the failure to enter findings on the record negates the pres umption of correctness otherw ise accorded to the trial court, it does not,as the appellant seems to arg ue, preclude application of the enhancement. Pursuant to our de novo review, we find the above noted evidence sufficient to conclude that the of fense involved multiple criminal actors and that the appellant was a l eader.
As to mitigating factors , the trial court rejec ted the appellant’s argument that his criminal conduct neither caused nor threatened s erious bodily injur

y. See T.C.A. § 40-35-113(1). As b asis for this denial, the tr ial court reiterated it

s prior reasoning that any time the police are called u pon to answer an alarm and apprehend a fleeing felon there is “always the possi bility of somebody gett ing hurt.” Again, we do not think the evidence supports the sentencing court’s finding. “Serious bodily injury” is defined as “bodily injury which involves . . . [a] substantial

risk or death; . . . [p] rotracted u nconsciousn ess; . . . [e ]xtreme physical pain; . . . [p]rotracted or obvious disfigurement; or . . . [p]rotracted loss or substantial impairment of a functi on of a bodily member, organ or mental faculty.” T.C.A. § 39-11-1 06(34). The appellant’s cr ime was neither viol ent nor intrinsically hazardous. In such a case, and absent evidence of some specific hazardous circumstance, w e cannot conclude that the appellant ’s criminal1 In ordering conse cutive sentenc ing, the trial judge stated: “I’m going to order that this sentence be served consecutive to the twelve year senten ce [for the appell ant’s prior offense] in the event the probation i s revoked . . . . The court is making that ruli ng under the T.C.A. § 40-35-103 sentencing con siderations.” Th at statute states the gene ral sentencing co nsiderations, as op posed to § 40-35-115 which directl y authorizes consecutive sentencing upon certai n findings. We note, however, that at lea st one of the trial court’s f indings under § 40 -35-103 would a lso authorize consecutive sentencing unde r § 40-35-115(2 ): “One, the court fee ls that confinem ent is necessary to protect society by restraining this defendant who h as a long history of

criminal conduct

.” (emphasis added). -6- activity threatened serious bodily injury. Although we do not think this factor is entitled to great weight, we conclude that the trial court erred in not allowing this factor in mitigation.
Finally, th e appella nt argues that the court erre d in impos ing conse cutive sentencing. Essentially, the appellant argues that the trial judge failed to make proper findings relativ

e to consecutive sentencin g and that the court’s order for consecutive sentencing was predicated upon an impr oper statute. 1 The appellant concedes that the conditions of h is offense include factors that would warrant consecutive sentencing. He further concedes that the trial court specifically found such factors during the sentencing hearing. He argues, however, that the tri al court’s recitation of these factors occurred during consideration of enhancement factors r ather than relative to the court’s order for consecutive sen tencing.
The appellant correctly notes that the presumption of correctness accorded to the sentencing c ourt is dependant on proper appli cation of T.C.A § 40-35-115. But it is a g reat leap to the appellant’s c onclusion that the negation of this presumption requires reversal of the trial court’s otherwise admittedly correct decision. The tri al judge clearly made findings during the sentenc ing hearing that warrant consecutive sentencing, and we will not find the court’s order defective simply

because he did not restate those findings at each stage of the sentencing hearing. Moreover, even if the appellant’s argument were correct, the trial cour

t’s failure to state its findi ngs would only r emove the presumption of correctness other wise accorded to the sent encing court. The absence of this presumption would not alter our decision. The appellant is a-7- career criminal, he has an extensive criminal

record, and he was on pr obation at the time of his offense. See T.C.A. § 40-35-115(b)(1), (2), (6). Thus, he meets at least t hree of t he altern ative stat utory requi rements for cons ecutive sentencing; and we beli eve it is appropriate here.

For the reasons stated abov e, we hold that the trial court erred in its finding that the appellant’s crime involved a high risk to human life. W e also agree with the appellant that his criminal conduc t did not cause or threaten serious bodily injury. Nevertheless, four enhancement factors remain. The se four enhancements are clearly and abundantly established and are entitled to significant weight. When balanced against the single mitigating fa ctor, these factors warrant enhancement of the appellant’s sentence to the tw elve-year statutory maximum.
The judgment of the trial court i s affirmed.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:-8- _____________________________ JOSEPH M. TIPT ON, Judge

_____________________________ JOE G. RILEY, Judge