### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

ugust 22, 2000
STATE OF TENNESSEE v. JIMMY WAY NE BAKER
Direct Appeal from the Circuit Court for Bedford County No. 14303, 14416 Charles Lee, Judge

No. M1999-00454-CCA-R3-CD - Filed March 14, 2001

The Defendant, Jimmy Wayne Baker, wa s convicted by a Bedford County jur y of first degree felony murder during the perpetration of or the attempt to perpetrate theft of pr ope rty, first degree premeditated

murder, and aggravated arson. The trial court merg ed th e felony murder conviction withthe premeditated murder conviction. The Defendant was sentenced as a Range I standard offender to life imprisonment for the first degree murder conviction and to twenty-one y ears and nine months incarceration for the aggravated arson conviction, to be serve d concurrently. The Defendant
now appeals, arguing the following: (1) that the trial court er

red in instructing

the jury to

determine whether one of the w itne sses was an accomplice; (2) that the evidence presented at trial was insufficient

to convict

the Defendant of premeditated murder, felony murder, or aggra vated arson; (3) that the trial c

ou rt erred in failing to instruct the jury that they must agree unanimously on a particular set of facts to support a finding of first degree felony murder; (4) that his convictions of bothpremeditated murder and felony murder violated the Double Jeopardy Clause and the Supremacy

C lause; (5) that the

Defendant was n

ot properly

informed of the e

lements of and fa

cts necessary to constitute the offense of theft of property as the underly ing felony in the felony murder convic tio n; (6) that the Defendant’s sentence for aggravated a rson was excessive; and (7) that the trial court erred in

failing to instruct the jury on all elements of the offenses charged. Afte r review, we affirm the jud

gment of the tria

l court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYE R , J., d elivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID H. W ELLES , JJ., joined. John E. Herbison, Nashville, Tennessee, for the appellant, Jimmy Wayne Ba ker.

Paul G. Summers, Attorne y General and Reporter; L

ucian D. Geise, A

ssistant Attorney

General; William Michael McCown, D istrict Attorney General; Robert G. Crigler, Assistant District Attorney General; and Ann L. Filer, Assistant District Attorney Genera l, for the appellee, State of Tennessee.-2- OPINION

The Defendant,

Jimmy Wayne Baker,

was convicted by

a Bedford County

jury of murd

er in perpetrationof theft or attempted theft of property, premeditated murder, and

aggravated arson. The two counts of first degree murder were merged into one conviction for which the Defendant received
a life sentence. T

he tr ial cou rt sentenced the Defendant to twenty-one y ears and nine months incarceration

for the aggravated arson conviction and ordered that it be served concurrently with the life sentence for the

murder convictio

n. On appeal to this

Co urt , defense counsel filed an Anders brief alleging that the appeal was frivolous. See Anders v. Califor nia , 386 U.S. 738 (1967); State
v. Ingram , 994 S.W.2d 626 (Tenn. Crim. App. 1998). However, defense counsel presented the following arguments in his brief: (1) that the Defendant’s sentence for agg ravated arson was excessive, and (2) that the trial court erred in

instructing the jury to determine whether or not Patrick Wingate was an accomplice. This Court allowed the Defendant to review the reco rd and raise additional issues. As such, the Defendant filed a pro s e brief ar guing the following: (1) that the evidence presented at trial was insufficient to convict the Defendant of premeditated murder, felony murder, or aggravated arson (the Defendant’s issues three, four and five); (2) that the trial court erred in instructing the jury to deter mine whethe r or not Patrick Wingate was an accomplice (the Defe ndant’s i ssue eight); (3) that the trial cour

t erred in failing

to instruct the jury

that they mus

t agree unanimously o

n a particular se

t of facts to suppor

t a finding of

first-degree felony murder (the Defendant’s issue six ); (4) t hat the convictions for both premeditated murder and felony murder violated the Double Jeopardy Clause and that the “merger rule” as announced by

this Court violates the supremacy clause (the Defendant’s issue one); (5) that the Defendant was not properly informed of the elements and facts necessary to constitute the offense of thef t of property as the und erl yi ng felony in the felony murder conviction (the Defendant’s issue two); and (6) that the trial court erred in failing to instruct the jury on all elements of the offenses charged (the Defendant’s issue seven). Having review

ed the record, w

e affirm the judg

ment of the trial c

ourt.
I. FACTUAL BACKGROUND Viewing the facts in the light most favorable to the State, the following events took place in Bedford County on December 15, 1997. On that morning, the Defendant picke d up Patrick Winga

te and drove to Steven Pugh’s residence o n Warner’s Bridge Road. Pugh and Jeff Gibbs were at Pugh’s trailer whenthe Defendant and Wingate arrived. The Defendant, Wingate and Gibbs were all employed by

Pu gh as genera

l laborers. That morni ng, the four m en went to W heel to sal vage some ite ms from Pugh’s former residence that had burned down. After loading some item s i n Pugh’s truck, the m en drove back to Pugh’s W arner’s Brid ge Road residence and unloaded the items
near a shop building behind Pugh’s trailer. Gibbs tes t ified that the men g ot back to Pugh’s h

ouse around ten o’clock in the morning.

That afternoon, the Defendant, W ingate and Pugh left again to get some gravel. Gibbs remained at the trailer. Gibbs testified that the three men came b

ack toPugh’s residence around 2:30 that afternoon without

the gr avel. Pugh’s neighbor, John Gold, also testified that he saw the Defendant,

Pugh and Wingate pull into Pugh’s driveway at approximately 2:30 in the afternoon. The-3-

Defendant

was driving Pugh’s truck. Wingate was sitting on the passenger side and Pugh was sitting between them. Gold testified that the Defendant parked Pugh’s truck in front of Pugh’s shop, and all three men went into the shop. Gold further testified that he later saw smoke comin g from the shop door and that the Defendant’s car was gone at that time.

Gibbs testified that some

time that afterno

on while he was stacking wood outside the shop, he “heard something hit thefloor real hard” inside the shop. At the time, the Defenda

nt, Wingate and Pugh were all in

the shop. The Defendant came outside and told Gibbs that Pugh was drunk and had fallen off the bar stool. The Defendant told Gibbs to g o to the trailer and get a faucet. The Defendant then went back into the shop.

Unable to locate the faucet, Gibbs went back to the shop, where he saw t he Defendant standing in front of the door. The Defendant told Gibbs that he should go back to the trailer. Gibbs went to the tra iler, and a few minutes later Wingate came to the trailer and told Gibbs that they should leave. At that time, the Defendant, Wingate and Gibbs all left Pugh’s residence. Regardingwhat happened in side the shop, Wing

ate testified tha

t he was sta

c king some kindling inside the shop when he heard a thud behind him. He turned aroundto find Pugh lying on the floor. Wingate testified that he and the Defendant helped Pugh back onto the stool that he had been sitting on, and Wing ate resumed stac

king the wood. Wing

ate testified tha

t he heard another thud, and he turned around to find Pugh on the floor again. Wingate testified that the Defendant was standing over Pugh wi th a stick i n his hand. He further t estified t hat he saw th e Defendant h it Pugh three or four times in the

head. The Defe

ndant told Wingate to make surethat nobody came to the door. Wingate

was watching the door when he felt the Defendant’s hand on his shoulder, and the Defendant

said, “It’s time for us to go.” Wingate testified that before leaving, he saw Pugh’s body on t he fl oor of t he s hop wit h a p iec e of b urn ing c ardb oard in f ron t of the bod y.
The Defe ndan t’s account of the events that took place in the shop differs from that of Wingate. The Defendant testified that h e was about to leave the shop to get beer when he heard Pugh fall. The Defendant said that he and Wingate put Pugh back on the stool, and he went outside. The Defendant testified that when he came back to the shop, Wingate met him at the door, and they left. According to the Defendant, Wingate told him that he (Wingate) hit Pugh in the head.

Jeff Gibbs testified tha

t he, the Defenda

nt and Wingate

left Pugh’s residence. They stopped at a bank and a liquor store and then went to the Defenda nt’s house. Gibbs testified that the Defendant

bought Gibbs some whiskey at the liquor store. Paralee Williams, the owner of the liquor store, testified that the Defendant smelled likesmoke when he came in the store. Gibbs testified that when they arrived at the Defendant’s home, the D efendant’s wife inform ed the three men that Pu gh
was dead. Gibbs testified that the Defendant and Wingate began crying. The three men then drove to the sheriff’s depa

rtment, and Gibbs te

stified that on the w

ay, the Def

endant told him

to “keep on saying that [Pugh] fell off of a bar stool and hit his head.” Wingate tes tified that the Defendant turnedup the radio and a

dvised him

that it would be in Wingate’s best interest not to say anything about what had happened.-4-

WandaShirley, Pugh’s girlfriend, arrived at the home that she sha red with Pugh at about three o’clock and saw smoke coming out of the shop. Shirley called 911. Shirley testified that Pugh’s truck was parked up against the large door of the shop which was ver y unusual.

Matt Doak, a firefighter, testified that Pugh’s body and the floor immediately surrounding Pugh’s body were on

fire when he arrived. Detective David Adams of the Bedford County Sheriff’s Departm ent testified that only the floor around Pugh’s body wa s burned. He also testified that burned checks, keys and a broom were found nea r the body.
Dr. Charles Harlan, the consulting forensic pathologist for Bedford County, performed the autopsy on Pugh. Harlan

testified that Pug

h died from blunt tra

uma to the head. Pugh ha d at least fou r di ffer ent lac erat ion s on his head , wh ich Harl an t est ifi ed w ere c aus ed b y a rapid succession of blows to the head. Harlan testified that all four of the lacerations went through to the bone and that the skull was fractured under three of the wounds. According to Harlan’s testimony, a linear, firm object, such as a baseball bat, broom handle, pool

cue or lead pipe

, probably c

aused the head in

juries. Har lan tes tif ied tha t Pu gh al so h ad fo urt h-d egre e bu rns ove r ei ghty p erce nt o f hi s bo dy. Harla n testified that Pugh was alive when he was on fire.

Evidence was pres ent ed at tri al t o pr ove tha t in the days following the fire, the Defendant and Wingate tried to pass chec

ks from Pugh’s ba

nk account. The D

efendant testifi

e d that he sa

w Wingate take two of Pugh’s checkbooks and trace Pugh’s name on the checks. The Defendant then presented one of those

checks in the amount of $2,500 for payment at a local bank. Evidence was also presented at tria

l that Wingate and

the Defendant w

ent to a car deal

ersh ip where Wingate attempted to pass a two-party check from Pugh’s acco unt to b uy a van. That check was in the Defendant’s possession when he was arrested.

Diana Harrison, a document examiner with the F ederal B ureau of Investigation (FBI ), exami ned the checks that were cashed by the Defenda nt. Although she determined that th e signatures had been simulated or traced, Harrison was unable to render an opinion as to who signed the documents . However, al l of the chec ks that had simulated sign at ures were made out to the Defendant or Wingate. The checks made out to the Defendant on Pugh’s account totaled $7,100.

Steve Elli ot, Captain of Detectives for the Bedford County Sheriff’s Department, interviewed the Defendant afte

r his arrest. Elliot testified that the Defendant admitted to being at the shop on that afternoon. According to Elliot, the Defendant said that Pugh fell off of a bar stool and hit his head. The Defendant told El

lio t that he and W ingate helped Pugh back onto the stool and that the Defendant then l

eft.

After his arrest, the Defendant took the police to Anthony Road where they found checks that had been burned. Pugh’s name was on the checks. The Defendant also took the police to his home on Lakewood Drive to find a pair of burned jeans and a burned che ckbook.-5- II. ANALYSIS A. Sufficiency of the Evidence

The De fendan t argues that there was insufficient evidence to convict him of first degree premeditated murder, first degree felony murde r or aggravated arson. We disagree.

When an accused challenges the sufficiency of the evidence, an appellate court ’s standard of review is whether, after consider ing the evidenc

e in the light most f

avorable to

the prosecution, any rational trier of fact

could have found the es sential elements o f the crime bey

ond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 324 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule ap plies to findings of guilt based upon direct evidence, circumstantial evidence, or a c ombination of both di

rect a nd circumsta

ntial evidence. State v. Dykes , 803 S.W .2d 250, 253 (Tenn. Crim. App. 1990) overruled on other grounds , State v. Hooper , 29 S.W.3d 1 (Tenn. 2000).

In determining the sufficiency of the evidence, this Court should not re-weigh or

re-evaluate the evidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). N or may this Courtsubstitute its inferences for those drawn by the trier of fact from the evidence. Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956); State v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999). Questions concerning the credibility of the witnesses, the weight and value of the evid

ence, as well as

all factual issues raised by

the evidence ar

e resolved by

the trier of fac

t. Lia kas , 286 S.W.2d at 859. This Court must afford the State of Tennessee the strongest legitimate view of the evidence containedin the record, as well as all rea sonable inferences which may be drawn from the evidenc e. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt agains

ta defendant
removes the pr e sumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burde

n of showing that t

he evidence wa

s legally i nsufficient to

sustain aguilty verdict. Id.

1. Premeditated Murder

Sufficient evidence was pr

esented at trial t

o convict t

he De fendant of first degree premeditated

murder. First degree premeditated murder is the premeditated and intentional killing of another perso

n. Tenn. Code Ann. §

39-13-202(a)( 1). Once a homici de has been esta

blished, it is presumed to be second degree murder, and the State has the burden of proving premeditation to raise the offense to first degree murder. State v. Hall , 8 S.W.3d 593, 599 (T enn. 1999) ( citing State
v. Nesbit , 978 S.W.2d 872, 898 (Tenn. 1998)). Premeditation is defined as "an act done after the exercise of reflection and judgment." Tenn. Code Ann. § 39-13-202(d). "Premeditation" means that the intent to kill must have been formedprior to the act itself. It is not

necessary

that the purpose

to kill pre-exist in the mind of the accused forany de finite period of ti me. The mental sta

te of the accuse

d at the time

th e accused allegedly decided to kill must be carefully considered in order to determine-6-

whether the accused was sufficient ly fr ee from excitement and passion as to be capable of premeditation. Id. Premeditation is the process of thinking about a proposed killing before engaging in the homicidal conduct. State v. Brown , 836 S.W.2d 530, 540-41 (Tenn. 1992).

The existence o f premedi tation is a question of fact for the jury to determine and may be inferred from the circumstances surrounding the offense. State v. Rosa, 996 S.W.2d 833, 837 (Tenn. 1999 ) (citing Brown , 836 S.W.2d at 539)). The use of a dead

ly weapon up

on an unarmed vic

tim may support the existence of premeditation. See State v. Bland , 958 S.W.2d 651, 660 (Tenn. 1997). Viewing the evidence in th e light most favor

able to the State, a

jury could

have reasonably found that the Defendant killed Steven Pugh after the exercise of reflection and judgment. Winga

te testified that he saw the Defendant hit Pugh three or four times on the head with a stick. According to Wingate, the Defendant then told Wingate to make sure that nobody came to the door.

In addition to Wingate’s testimony, Jeff Gibbs testified that he was outside theshop stacking wood when he heard a “thud” inside. The Defendant cam e outside and told Gibbs that Pugh was drunk and had fallen

off a bar stool.

The Defendant then told Gibbs to go to the trailer to look for
a faucet. Unable

to find the fauce

t, Gibbs went back

to the shop. The De

fendant, who was

nervously shaking his arm, told Gibbs to go back to the trailer. Gibbs also testified that the Defenda

nt told him repeatedly that he should tell the authorities that Pugh had fallen off a stool and hit his head. 2. Felony Murder

Sufficient evidence was presented at trial to convict the Defendant of felony murder committed during the perpetration or the attempted perpe

tration of a theft

. Felony mur

der is defined as “[a] killing of another committed in the perpetration of or attempt to perpetrate any first deg ree mur der, ars on, rape , ro bbe ry, b urgl ary, theft, kidnapping, aggravated child abuse or aircraft piracy

. . . .” Tenn. Code Ann. § 39-13-202(a )(2). In t his case, the Defendant was charged with felony murder during the perpetration of or attempt to perpetrate theft of property over $500.

Evidence was presented a t trial that the Def

endant, along with Patrick Wingate, tried to

pass checks fro m Pu gh’s acco unt wit hin sev eral days after Pugh’s death. The Defendant testified that he
saw Wingate take two of Pugh’s checkbooks and trace Pug h’s name on the checks. This i s corroborated

by testimony from

an FBI exper

t that four check

s made paya

ble to the Defendant from Pugh’s account were si

gned with simulate

d signatures.

The Defendant then presented one of those checks in the amount

of $2,500 for payment at a local bank. Evidence was also presented at trial that Wingate and the Defendant went to a car dealership, and Wingate attempted to pas s a two-party check from Pugh’s account to buy a van. That check was in the Defendant’s possession when he was arrested. Thus, there was a mple evidence from which a jury could determine that the Defendant had committed murder in the perpetration of or attempt to perpetrate a theft of property valued

at more than $500.-7- 3. Aggravated Arson

Sufficient evidence was presented at trial toconvict the Defendant of aggravated arson. An offender commits arson by knowingly damag ing any structure by mea

ns of a fire or

explosion with the intent to

destroy or damage the structure for any unlawful purpose. Id. at § 39-14-301. A person commits aggr avated arson who commits arson as defined in Tennessee Code Annotated § 39-14-301 when one or more persons are present therein. Id. § 39-14-302.

In this case, there is ample evidence from which a jury could conclude that the Defendant set fire to Pugh’s sho

p while Pugh was st

ill inside. Wingate

testified that when he and the Defendant left the shop, there was a piece of ca rdb oard bur nin g in f ron t of Pug h’s bod y. The owner of a liquor store where the Defe

ndant s topped on the way from Pugh’s residence testified that the Defenda nt smelled like smoke. B. Jury Instructions 1. Accomplice Testimony

The Defendant argues that the trial court erred by instructing the jury to determine whether Wingate was an accomplic

e, rather than in

structing the jur

y that Winga

te was an accomp

lice as a mat ter of law. An accomplice is one who “knowingly, voluntarily and with common intent participates with the principal offender in the commission of the c rime all eged in the charging instrument.” State v. Griffis , 964 S.W.2d 577, 588 (Tenn. Crim. App. 1997). “Whenthe facts of
a witness’ participation in a crime are clear and undisputed it is a question of law for the c ourt to decide.” State v. Lawson , 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). In this cas e, the Defendant

argues and the

Stateconcedes that the trial court should have declared Wingate to be an accomplice as a matter of law.

This determination is important because in Tennessee a criminal defendant cannot be convictedsolely on the

uncorroborate

d testimony of

an accompl ice. State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994). Whether the testimony of an accomplice has been sufficiently corroborated is a question for the jury. State v. Heflin , 15 S.W.3d 519, 524 (Tenn. Crim. App. 1999). However, corroborating evidence need n ot be sufficient in

and of itself to sup

port a conviction,

but it must fairly con nect the Defend

ant with the commission of the crime. State v. Gaylor , 862 S.W.2d 546, 552 (Tenn. Crim. App. 1992).

We note initially

that this issue has beenwaived because the Defendant f

ailed to timely

file
a motion for a new trial w

ithin thirty da

ys of the day

his sentences we

re entered. Te

nn. R. App. P. 3(e). “Questions concerning the instructions ar

e generally

deemed to be waiv

ed in the absence of objection or special reque st, unless they contain plain error.” State v. Cravens , 764 S.W.2d 754, 757 (Tenn. 1989). A jury instruction constitutes plain error where it affects the substantial righ

ts of the accused. Tenn. R. Crim. P. 52(b). We conclude that there was no plai

n error in the jury instruction in this case.-8-

Wingate had previously been convicted for charg es based upon the same facts. Therefore,
we conclude in this case that the trial court should h ave instructed t he jury that Wingate was an accomplice as a matter of law . However, we ho ld that such error

was harmless.We conclude that ample evidence was presented to the jury to corroborate Winga te’s testimony. Jeff

Gibbs testified that while he was outside the shop, he heard something hit thefloor inside. Immediately thereafter, the Defendant

came outside and told Gibbs that Pugh had fallen off of a stool. Gibbs testified that the Defendant told him to go to the trailer. Whe n Gibbs returned, the Defendant was standing outside the shop shaking his arm nervously. The Defendant told Gibbs to go back to the trailer. Moments later, Wingate went to the trailer and told Gibbs it was time to go. Gibbs also testified that
on the ride to sheriff’s office, the Defendant told Gibbs to “keep on say ing that [Pugh] fell off

of a bar stool and hit his head.”

In addition to Gibbs t

estimo ny, the Defendant’s own testimony corr oborates Wingate’s accomplice testimony to some extent. The Defendant’s testimony places the Defendant at the scene of the crime at the ti

me the crime

was committed. Pugh’s neighbor, John Gold, testified that he saw the Defendant, Pugh and Wingate drive up to the shop that afternoon. Soon thereafter, Gold testified that he saw smoke coming from the shop, and the truck was gone. Moreover, there was testimony from firefighters that Pugh’s body was on fire whenthey arrived at the shop just a short time after the Defendant left. The owner of the liquor store where the Defendant stopped after le aving Pugh’s residenceon the day of his death testified that the Defendant smelled like smoke when he came in. Also, ban k em plo yees t est ifi ed t hat in t he d ays following Pugh’s death, the Defendant cashed checks
on Pugh’s account. Although the trial court erred by failing to instruct the jury that Wingate was an accomplice as a matter of law, the error was harmless because sufficient corroborating evidence was pres ent ed t o th e ju ry. 2. Felony Murder Instruction

The Defendant next ar

gues that the tri

al court erred i

n failin g to inst

ruct the jury that they must agree unanimo

usly on a par

ticular set of fa

cts to support a

finding of first degree felony murder. Spe cif ica lly, the Defendant argues that the trial court

failed to instruct the jury that it had to agree unanimously

as to whether the alleged killing was committed during the act of perpetrating theft or the act of attempting to perpetrate theft.

In this case, the Defendant was convicted of felony murde r in the perpetration of or th e attempt to perpetrate theft over $500. Felony murder is defined as “[a] killing of another committed in the perpetratio

n of or attempt to pe

rpetrate any

first degree mur der, ars on, rape , ro bbe ry, b urgl ary, theft, kidnapping, aggravated ch ild abuse or aircraft piracy . . . .” Tenn. Code Ann. § 39-13- 202(a)(2). The trial court instructed the jury that

its verdict must be u

nanimous, and the ju

ry did in fact vote unanimously to convict the Defendant of felony murder. In the case of felony murder, there is no legal requirement that a jury verd ict specif y whether the killing was committed during the actual perpetr

ation of the felony or during an attempt to perpetrate the felony

. See id. Thus, the Defendant’s argument is without merit. Additionally, our review of the trial court’s jury instructions-9-

reveals that the trial court properly instructed the jury a s to each element of

eachoffense charged, from which we con

clude that the De

fendant’s pro se issue number seve n is without merit. C. Sentencing

The Defendant argues that his sentence for aggrava ted arson was excessive. Spe cif ica lly, the Defendant

argues that the trial court erred in starting at the midpoint of the sentencing range and then adjusting the sentence up for enhancement factors and down for mitigating factors. The Defendant argues that the trial court should have begun with the minimum sentence. We conclude that the trial court properly sentenced the Defendant.

The Defendant was sentenced as a Range I standard offender to twenty -one years and nine months for aggravated arson. Aggravated arson is a Class A

felony. This sentence was to be served concurrently

wi th the Defendant’s life sentence for the murder of Steven Pugh. In se ntencing the Defendant,

the trial court

applied the follow

ing enhanceme

nt factors: (1) “[t]he [D]efenda nt has a previous history of c

rim i nal convictions or

criminal behavio

r in addition to those

necessary

to establish the appropriate range,” id. § 40-35-114(1), and (5)” [t]he [D]efendant treated or allowed
a victim tobe treated

with exceptional cruelty during the commission of the offense.” Id. § 40-35- 114(5). The only mitig

ating factor th

at the trial court

applied was t

hat the Defendant assisted authorities in detecting or apprehending Wingate. Id. § 40-35-113(9).

When a criminal defendant challenges the length,range, or manner of service of a sentence, the reviewing court must conduct a de novo review of the sentence with a pres u mption that the determinations made by the trial court are correct. Id. § 40-35-401(d). This presumption, however, “is conditioned upon the affirmative showing in the record that the trial court cons idered t he sentencing principles and all relevant facts and circumstances.” State v

. Ashby , 823 S.W.2d 166, 169 (T enn. 1991). In the event that the record fails to show such consideration, the review of the
sen ten ce i s pu rel y de novo
. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

The presumptive sente

nce for a Class A f

elony is the m

idpoint of the sente

ncing range u

nless there are enhancement or mitigating factors present. Id. § 40-35-210(c). If there are enhancement
or mitigating fac

tors, the court mus

t start at the pres

u mptive sent ence, enhance the sentence as appropriate

for the enhancement

factors, and then reduce the sentence in the range as appropriate for the mitigating factors. Id. § 40-35-210(e). This Court has held

that this presumptiv

e sentence also applies where there are enhancement and mitigating factors. See Statev. Hodges , 7 S.W.3d 609, 631 (Tenn. Crim. App. 1998); State v. Chance , 952 S.W.2d 848, 850-51 (Tenn. Crim. App. 1997). The weight to be giveneach factor is left to the discretion of the trial judge. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). However, the sente nce must be adequately supported by the record and comply

with the purposes and principles of the 1989 Sentencing Reform Act. State v. Moss , 727 S.W.2d 229, 237 (Tenn. 1986).

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a law ful sen tence after having given due consideration and proper weig ht to the-10-

factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the re cord, then we may not modify the sentenc e "even if we would have preferred a different result." State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

In this case, the trial court followed the proper statutory sentencing procedure by starting at the midpoint of the range in s ente ncing the Defendant. The presumptive sentence for aggr avated
arson is the midpoint of the s en tencing range unless there are enhancement or mitigating factors present. Tenn. Code Ann. § 40-35-210(c). Although the Defendant interprets the statute to mean that this presumptiv

e sentence only

applies where there are no enhancement or mitigating fac

tors, this Court has held that t h is pres umptive sentence also applies where there are enhancement and mitigating factors. Hodges , 7 S.W.3d at 631; Chance , 952 S.W.2d at 850-51. As such, the trial court properl y started a t the midpoint of the sentencing range and increased the sentence for the enhancement factors and reduced the sentence for the mitigating f actor. D. Double Jeopardy

and Supremacy

Clause

The Defendant a

rgues that his convictions for premeditated murder and felony murder violated the Double Jeopardy Clauses of the Unite d States and Tenne ssee Constitutions. B oth clauses state that no pers

on shall be twice p

ut in jeopardy

of life or limb for

the same offense . U.S. Const. amend . 5; Te nn. Co nst. a rt. I, § 10. In addition to protecting against a second prosecution for the same o ffense wherethe defendant was either convicted or acquitted, this clause has also been interpreted

to protect agai

nst multiple

punishments for the same offense. North Carolina v. Pearce , 395 U.S. 711, 717 (1969), overruled on other grounds , Alabama v. Smith, 490 U.S. 794 (1989); State v. Phillips , 924 S.W.2d 662, 664 (Tenn. 1996).

In this case, the Defendant was found guilty of both felony murder and premeditated murder for the same offense. However, the two v erdicts w ere merged under one conviction. Thus, the Defendant

was subject to

on ly one sentence of life imprisonment. No double jeopardy problem exists where “the trial court’s entry of only one judgment of c onviction imposing only one sentence of life imprisonment p

rotects the defe

ndant from rece

iving multiple punis

hme nts fo r the same
o ffense.” State v. David Eric Price , No. E1999-02684-CCA-R3-C, 2000 WL 1015914, at *31 (Tenn

. Crim. App., Knoxville, July 25, 2000); State v. Addison , 973 S.W.2d 260, 266-67 (Tenn. Crim. App. 1997); State v. Zirkle, 910 S.W.2d 874, 889 (Tenn. Crim. App. 1995).

The Defendant also argues that the trial court’s merging of the two murder convictions into
one conviction violates the Supremacy Clause of the United States Constitution. The Supre macy Clause states that

the United States Constitution and the laws made in pursuance thereof shall be the supreme law of the land. U. S. Const. amend. 6, clause 2. The Defendant argues that the merger

rule is in conflict with the Double Jeopardy Clause, and that th

e Double Jeopardy

Clause should

trump the merger rule by virtue of the Supremacy Clause. As we have concluded that there is no peril of double jeopardy in this case, there is no conflict with the Supremacy Clause. We conclude that the-11-

merger rule is in fact not i

n conflict with th

e Doubl e Jeopardy Clause, but rather is a means of avoiding any

Double Jeopardy

issues. This issue is

without merit. E. Sufficiency of the Indictment

The Defendant arg

ues that he was not

properly informedof the elements and facts necessary to constitute the offense of thef t of property

sufficient to supp

ort a conviction for murder during the perpetrationof thef

t o f property . Specifically , the Defendant a

rgues that the in

dictment failed to include the factual allegations of the underlying fel ony. Bo th the United States and Tennessee Consti tutions requ ire that an accused be sufficiently informed of the “nature and cause of the accusation.” U.S. Const. amend 6, 1 4; Tenn. Const. art. I, § 10; see also State v. Hill , 954 S.W.2d 725, 727 (Tenn. 199

7). These provisi

ons have been inte

rpreted to requi

re that an indictme

nt: (1) provide notic

e to the accused

of the offense

charged; (2) provide the

court with
an adequate ground upon which a proper judgment may be entered; and

(3) provide the defendant with protection against double jeopardy. Wyatt v. State

, 24 S.W.3d 319, 324 (Tenn. 200 0); see also Hill , 954 S.W.2d at 727; State v. Byrd , 820 S.W.2d 739, 741 (Tenn. 1991).

The Tennessee Co

de Annotated fur

ther requires th

at an indictment state the facts constituting the offense in an ordinary and concise language, without prolixity or repetiti on, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment . . . . Tenn. Code Ann. § 40-13-202.
In this case,

the indictment rea

d as follows: THE GRA ND J URORS of BEDFORD County, Tennessee, duly impane led and sworn, upon their o

ath, present that

:
JIMMY WAYNE BAKER

on or about the 15 th DAY OF DECEMBER, 1997, in BEDFORD County, Tennessee and before thefinding of this indictment, intentionally, knowingly and recklessly

did kill STEVEN GIL

BERT PUGH, during

the perpetratio

n of or attempt to

perpetrate a crime THEFT OF PROPERTY OVER $500, in violation of Tennessee Code Annotated§ 39-13-202, and a gainst the peace and dignity of the State of Tennessee.

We conclude that the indictment sufficiently

set forth the elem

ents and factual

basis for the charges against

the Defendant.

The indictment specifically referred to the date of the off ense, the name of the victim,

and the crime the

ft of property

. Again, this issue

is without merit.-12-

Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ ROBERT W. WEDEMEYER, JUDGE