FILED

April 22, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9808-CC-00329

)

Appellee, )

)

) MAURY COUNTY

VS. )

) HON. JIM T. HAMILTON,

KING DAVID JOHNSON, ) JUDGE

)

Appellant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF MAURY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

HERSHELL D. KOGER JOHN KNOX WALKUP

131 North First Street Attorney General and Reporter

P.O. Box 1148

Pulaski, TN 38478 MARVIN E. CLEMENTS, JR.

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

MIKE BOTTOMS

District Attorney General

P.O. Box 459

Lawrenceburg, TN 38464

OPINION FILED ________________________

SENTENCE MODIFIED; REMANDED

DAVID H. WELLES, JUDGE
1

 Defendant presented no argument on his second and third assignments of error. We

note that the trial court clearly accepted and applied the mitigating factors proffered by

Defendant, as acknowledged infra in the discussion of the trial court’s findings.

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OPINION

The Defendant, King David Johnson, appeals as of right his sentence of

twenty years in the Departm ent of Correction for the second degree murder of his

girlfriend. Defendant was indicted in 1993 for first degree m urder, and a jury

convicted him of second degree murder in February 1996. Following a

sentencing hearing, the trial court sentenced him to twenty years as a Range I

offender. In his first appeal to this Court, Defendant challenged the sufficiency

of the evidence and the length of his sentence. This Court affirmed his conviction

for second degree murder, but remanded his case for resentencing because the

trial judge failed to place on the record what enhancement or mitigating factors

he found, as well as findings of fact, in accordance with the mandate of

Tennessee Code Annotated § 40-30-210(f). State v. King David Johnson, No.

01C01-9610-CC-00430, 1997 WL 661501, at *4 (Tenn. Crim. App., Nashville,

Oct. 24, 1997). 

The trial judge held a second sentencing hearing on March 13, 1998, and

he again sentenced Defendant to twenty years as a Range I offender. In this

appeal of his resentencing, Defendant argues the same substantive issues as in

his first appeal: (1) the trial court erred by relying upon inapplicable enhancement

factors, (2) the trial court erred by failing to apply applicable mitigating factors,

and (3) the trial court erred by placing excessive weight on the enhancement

factors.1
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When an accused challenges the length, range, or manner of service of a

sentence, this Court has a duty to conduct a de novo review of the sentence with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 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 circumstances.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).

When conducting a de novo review of a sentence, this Court must

consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b)

the presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehabilitation or treatm ent. State v. Smith, 735 S.W.2d 859, 863

(Tenn. Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due

consideration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sentence even if we would have

preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991).
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Upon resentencing, the trial judge placed on the record his consideration

of the specific enhancement and mitigating factors, as well as his consideration

of the sentencing principles and applicable facts and circumstances. Therefore,

we conduct our de novo review with a presumption that the sentence is correct.

However, because we find that the trial court erred by relying upon enhancement

factors which are inapplicable to this case, we conclude that the sentence must

be reduced. We therefore modify Defendant’s sentence from twenty years to

seventeen years. 

I. ENHANCEMENT FACTORS THREE AND SIX

Defendant argues that the trial court improperly applied enhancement

factors three and six. See Tenn. Code Ann. § 40-35-114(3), (6). The State

concedes that the trial court erred by applying these factors in the case at bar. 

First, § 40-35-114(3) states that a sentence may be enhanced if the

“offense involved more than one (1) victim.” The trial court relied upon this factor

because the killing caused the victim’s two young children to become motherless.

This Court previously held that the term “victim,” as used in § 40-35-114(3), “does

not include a person who has lost a loved one or a means of support because the

perpetrator of the crime killed a relative.” State v. Raines, 882 S.W.2d 376, 384

(Tenn. Crim. App. 1994); see also State v. Alexander, 957 S.W.2d 1, 6 (Tenn.

Crim. App. 1997).

Second, § 40-35-114(6) states that the “personal injuries inflicted upon or

the amount of damage to property sustained by or taken from the victim was

particularly great.” Because “particularly great” personal injury is an element of
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the offense of second degree murder, application of this enhancement factor was

error. Tenn. Code Ann. § 40-35-114 (stating that enhancement factors may be

applied if “appropriate for the offense” and “not themselves essential elements

of the offense”); State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995)

(factors which constitute essential elements of the underlying offense may not

enhance a sentence). 

II. ENHANCEMENT FACTOR TEN

The State disputes Defendant’s contention that the trial court erred by

applying § 40-35-114(10): that Defendant “had no hesitation about committing a

crime when the risk to human life was high.” Although application of this factor

is improper in a homicide case when the “human life” considered is the victim,

see State v. Butler, 900 S.W.2d 305, 313 (Tenn. Crim. App. 1994); it may

properly be considered for “risk to human life” other than the victim. See State

v. Johnson, 909 S.W .2d 461, 464 n.1 (Tenn. Crim. App. 1995). However, the

victim or victims must be “subject to injury” for this factor to be applicable. State

v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App. 1995).

The opinion of this Court upon appeal from the original conviction reflects

that the victim’s two small children were sleeping in the living room and that the

murder of the victim occurred in a “back bedroom.” We find that the children

were not subject to injury such that Defendant created a risk to their lives during

commission of the offense against the victim. The facts of this case are most

similar to the cases of State v. Samuel D. Braden, No. 01C01-9610-CC-00457,

1998 WL 85285 (Tenn. Crim. App., Nashville, Feb. 18, 1998), and State v. Robert
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Kevin Moore, No. 01C01-9606-CC-00255, 1997 WL 409481 (Tenn. Crim. App.,

Nashville, July 23, 1997).

In Braden, the defendant and the victim engaged in the fatal confrontation

outside of their home, while the defendant’s daughters were inside the house.

Braden, 1998 WL 85285, at *5. We stated, “Though the defendant’s daughters

were inside the house, there is no evidence of record that they were likely to

come outside during the criminal episode which resulted in the victim’s death.”

Id. Likewise, in Moore, we rejected application of enhancement factor ten

because, “[w]hile the victim’s children were present in the house, they were not

in the room where the incident occurred.” Moore, 1997 WL 409481, at *5.

The State argues that the facts at hand are most similar to State v. Ray

Armstrong, No. 01C01-9407-CC-00260, 1995 WL 316288 (Tenn. Crim. App.,

Nashville, May 25, 1995), in which this Court approved the trial court’s application

of enhancement factor ten. That case appears to be distinguishable because the

record reflected testimony that three gunshots were fired “from somewhere in the

vicinity of where [the victim’s young children] were sleeping.” Id. at *1.

Therefore, in the case at bar we must conclude that the trial court erred by relying

on enhancement factor ten.

III. ENHANCEMENT FACTOR NINE

Defendant does not challenge the applicability of enhancement factor nine:

that he “possessed or employed a firearm” during commission of the offense.

Because use of a deadly weapon is not an element of second degree murder, the

trial court’s reliance on this factor was proper. See Raines, 882 S.W.2d at 385
-7-

(“[T]he use of a firearm is not an element of murder in the second degree, and,

if the accused commits murder in the second degree by shooting the victim with

a firearm, this sentencing factor can be used to enhance the accused’s

sentence.”); see also State v. Butler, 900 S.W.2d 305, 312-13 (Tenn. Crim. App.

1994).

IV. CONCLUSION

Second degree m urder is a class A felony. At the time of this conviction,

the sentencing statutes demanded the courts to presume that the minimum

sentence was appropriate for class A felonies. Thus, the trial court in this case

should have presumed a fifteen-year sentence, prior to applying any

enhancement or mitigating factors. Because the trial court minimized the weight

of Defendant’s mitigating factors—that Defendant committed the crime under

such unusual circumstances that it is unlikely that a sustained intent to violate the

law motivated his conduct, and that he had a positive work and education

history—we remain satisfied that the one applicable enhancement factor

outweighs the mitigating factors present in this case. We therefore elevate

Defendant’s sentence from the presumptive minimum of fifteen years to a term

of seventeen years.

The State concedes that the trial judge erred by applying two sentence

enhancement factors. We conclude that the trial judge also erred by applying a

third factor. Because the trial court considered three enhancement factors which

are inapplicable to this case, we modify the Defendant’s sentence from twenty

years to seventeen years in the Department of Correction as a Range I offender.
-8-

This case is remanded to the trial court for entry of an order in accordance with

this opinion.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

JOHN EVERETT WILLIAMS, JUDGE