# FILED April 22, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9808- CC-00329 ) Appellee, ) ) ) MAURY COUNTY VS. ) ) HON. JI M T. HAMI LTON, KING DAV ID JOHNSON, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUI T COURT OF MAURY COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : HERSHELL D. KOGER JOHN KNOX WALKUP 131 North First Street Attorney Generaland Reporter P.O. Box 1148 Pulaski, TN 38478 MARVIN E. CLEMENTS, JR. Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 MIKE BOTTOMS Distri ct Attor ney General P.O. Box 459 Lawrenceburg, TN 38464
OPINION FILED ________________________ SENTENCE MODIFIED; REMANDED DAVID H. WELLES , JUD GE1 Defendant presented no argument on his second and

th ir d ass ig nm en ts

of er ro r. We notethat the

trial c ourt cle arly ac cepted and appl ied the mitigating factors proffered by Defendant, as acknowledged infra in the discussion of the trial court’s findings.

-2- 

# OPINION

The Defe ndant, King David Johnson, appeals as of right his sentence of twenty years in the D epartm ent of C orrect ion for th e sec ond d egree murd er of his girlf riend. Defenda nt was indicted in 1 993 for first degree m urd er, an d a jury convicted him of second degree murder i n February 1996. Followinga sentencing hearing , the t rial court s entenced hi m to twe n ty years as a Range I offender. In his f irst appeal to this Court, Defendant chal lenged the suffici ency of the evide nce an d the leng th of his se ntence
. This Court aff irmed his convi ction forsecond degree murder, but remanded his casefor resentencing because the trial j udge failed to placeon the record what enhancement or miti gating factors he f ound, as well as findi ngs of fact , in accor dance with t he mandate of Tennessee Code A nnotated § 4 0-30-2 10(f). State v. King David Johnson , No. 01C01-9610-CC-00430, 1997 WL 661 501, at * 4 (Ten n. Cr im. Ap p., Na shvill e, Oct. 24, 1 997).

The trialjudge held a second sentencing hearing on March 13, 199 8, and he a gain sen tenced Defen dant to tw enty years as a Ra nge I offen der. In thi s appeal of his resentencing, Defendant arguesthe sa me s ubsta ntive iss ues a s in his first app eal: (1) thetrialcourt err ed by rely ing upon inappl icable enhancement factors, (2) the t rial cour t erred by

faili ng t o apply applicable mitigat ing factors,
a nd (3) the tri al court erred by pl acing excessive weight on the enhance men t factors. 1-3- When an accused chall enges the lengt h, range, o r mann er of service of a sentence, this Court has a duty to conduc t a de novo review

of the sen tence w ith
a presumption t hat the determinations made by the tri al court ar

e correct. Tenn. Code Ann. § 40-35-401(d). This presumptio n is “condi tioned upon the affirm ative showing in the record t hat the trial court consi dered the sente ncing pri nciples and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 91).

When conducting a de novo r eview of a sentence, this Court must consider: (a) the ev idence, i f any, r eceived at the trial and sentencing heari ng; (b) the presentence rep ort; ( c) the pri nciples of sent encing and arg umen ts as to sentencing alternat ives; ( d) the natur e and characteri stics of the crimi nal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement made by the defendant regardi n g sentencing; and (g) the potential o r lack of potentialfor rehab ilitation or treatm ent. State v. S mith , 735 S.W.2d 859 , 863 (Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, - 103, -210.

If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing proce dure, t hat the court imposed a lawfulsentence after having gi ven due considerati on and proper weight to the fa ctors and pri nciples set out under the sentencing law, and that the tri al court’s f indings of fact are adequately

supported by the record, then we may not modif y the sentenceeven if we wou ld hav e preferreda different re sult. State v. Fletcher , 805 S.W.2d 785, 789 (Ten n. C ri m. App. 1991 ).-4- Upon resentenci ng, the trial ju dge p laced on the record his considerat ion of the specif ic enhancement and mit igating factors, as well as his consi deration of the sentenci ng princi ples and appli cable facts and circumstances. Therefore,
we conduct ou r de novo review with a presum ption that th e sente nce is co rrect. Howeve r, because we find that the trial court erred by relyi ng upon enhancement factors which are inappl icabl e to thi s case, weconclude that the sentence must be reduced. We therefor e modify Defendant ’s sentence f rom twen ty years to sevente en years .

I. ENHA NCE MEN T FAC TOR S TH REE AND SIX Defendant argues that the tri al court i mproperly appl ied enhan cement factors three an d six. See Tenn. Code Ann. § 40-35-11 4 (3), (6). Th e State concedes that t he trial court erred by a pplying the se factors in the cas e at bar.
First, § 40-35-114(3) states t hat a sentence may be en hanced if t he “offense involved more than one (1) victim .” The trial cou rt relied u pon th is factor because the ki lli ng caused t he vict im’s t wo young c hildren to become motherless. This Court previousl y held that the term “v ictim,”

as used in § 40-35- 114(3), “ does not includea person who has lost a loved one or a means of support because the perpetrator of the cri me killed a relative.” State v. Raines , 882 S.W.2d 376, 384 (Tenn. Crim. A pp. 199 4); see also State v. Alexander , 957 S.W.2d 1, 6 (Tenn. Crim. App . 1997).
Second, § 40-35-114(6) states t hat the “personal i njuriesinfli cted upon or the amount of damage to property sustained by

or taken fr

om the victi m was particu larly great.” Beca use “p articula rly grea t” perso nal inju ry is an element of-5-

the offense of second degree murder , application of t his enhancement fact or was error. Tenn. Code Ann. § 40-35-114 (stati ng that enhancement factors may be applied if “appr opriate for th e offense ” and “no t thems elves ess ential elem ents of the offens e”); St ate v . Nix , 922 S.W.2d 894, 903 (Tenn. Cr im. App. 1995) ( factors whi ch c onst it uteess ent ialele ments of theunde rl yi ng of

fen se may no t enhan ce a sen tence).

II. ENHANCEMENT FACTOR TEN The State disputes Defenda nt’s contention tha t the trial court erre d b y applying § 40-35-114(10) : that Defendant “had nohesitat ion about committ ing a crime when the ri sk to human life was high.” Al though appli cation of this factor is improper in a hom ici de c ase when the“hu man l if e” consi dered i s th e vi cti m, see State v. Butler , 900 S.W .2d 305, 313 (Tenn. Crim . App. 1994 ); it ma y prope rly be con sidered for “risk to hu man life” o ther than the victim. See State
v. Johnson , 909 S.W .2d 461 , 464 n.1 (T enn. C rim. App. 19 95). However, the victim or vict ims must be “subjec t to inj ury” for

this factor to be app licable. State
v. Sims , 909 S.W .2d 46, 50 (T enn. Crim. A pp. 1995).

The opinion of

this Court

upon appeal fr

om the originalconvicti on reflects thatthe vi ctim’ s two small chil dren were sleepi ng in the l iving r oom and that th e murder o f the vi ctim occurred in a “back bedr oom.” We find that t he children were not subje ct to injury su ch tha t Defe ndan t create d a risk to their lives during commission of t he offense against the vi ctim. The facts of thi s case are most similar to the cas es of State v. Samuel D. Braden , No. 01C01-9610-CC-00457, 1998 WL 85285 (Tenn . Crim. A pp., Nashvill e, Feb. 18, 1998) , and State v. Robe rt-6-

Kevin Moore , No. 01C01-9606-CC-00255, 1997 WL 40948 1 (Ten n. Crim. A pp., Nashville, July 23, 19 97).

In Braden , the defendan t and the vi ctim engaged in the fatalconfrontat ion outside of their

home, while t he def endant ’s daughters were insid e the house. Braden , 1998 WL 85285, at *5. We stated, “ Though the defendan t’s daughters
were inside the house , there is noe vidence of record that they w ere likely to
come outsid e durin g the c rimina l episo de wh ich res ulted in the vic ti m’ s death .” Id. Likewise, in Moore , we rejected appl icatio n of enhancement factor ten because , “[w]hile the victim’s children we re present in the house, t hey were not in the room w here the inciden t occurred.” Moore , 1997 WL 409481, at *5.

The Sta te argues that the facts

at hand are most si milar to State v. Ray Armstrong , No. 01C01-9407-CC-00260, 1995 WL 3 16288 (Tenn . Crim. A pp., Nashvill e, May 25, 1995), in which t his Court appr oved the trialcourt’s applicat ion of enhancement factor ten. That

case appears to be di stingui shable because the record reflected testimon y that three guns hots were fired “from somew here in the vicinity of where [the victim’s yo ung children] w ere sleeping.” Id. at *1. Therefore, in the case at bar we must conclude that the tri al court er red by rel ying on enhancement factor ten.

III . ENHANCEMEN T FACTOR NINE Defendant does not chall enge the ap plicability of enhancement factor nine: thathe “possessed or employed a firearm” during commission of the offens e. Because use of a deadly weapo n is not an el ement of second degree murder , the trial cou rt’s relianceon this factor was pro per. See Raines , 882 S.W.2d at 385-7-

(“[T]he use o f a firearm is not an elem ent of m urder in the second degree, and, if the ac cuse d com mits m urder in the second degree by shooting t he victim with
a firearm, this sentencing factor can be used to enh ance the ac cuse d’s sentence.”); see also State v. Butler , 900 S.W.2d 305, 312-13 (Tenn. Cri m. App. 1994).

IV. CONCLUSI ON Seco nd de gree m urder is a class A felon y. At the time o f this convicti on, the s enten cing st atutes dem ande d the c ourts to presu me th at the m in imu m sentence was appropriate for clas s A felonie s. Thus, thetrial court in this case shou ld have presumed a fi fteen-yea r sentence, prior to app lying a ny enhancement or mitigat ing factors. Because t he trialcourt mini mized the weight of Defendant’s mit igating factors—that Defendant committed the crime un de r such unus ual circ ums tance s that it is unlikely tha t a sustain ed intent to violate the law motivated hi s conduct, and t hat he had a posit ive wor k an d education histor y—we remain sati sfied th at the one applic able enhancement fact or outweighs the mitigati ng factor s prese nt in this cas e. W e therefo re elevate Defenda nt’s sentence from the presum ptive minimum of fifteen years to a term of seventeen years.

The State co ncede s th at the trial judge erred by applying t wo sentence enhancement factors. We conclude that the t rial j udge also erredby applyi ng a third factor. Because the trialcourt considered three enhancement factors which
are inappli cable to t his case, we modif y the Defend a nt’s sente nce from twenty years to seventeen years in t he Department of Corr ection as a RangeI offender.-8-

This case is rem anded to the trial court for entr y of an order in ac cordan ce with this opi nion.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ JOHN EVER ETT WILLI AMS, J UDGE