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

Briefs M ay 14, 2003

STATE O F TENNESSEE v. WINSTO N CHAD RICK M cCLAIN

Appeal from the Circuit Court for Marshall County

No. 14990 Charles Lee, Judge

No. M2002-02178-CCA-R3-CD - F iled July 15, 2003

The defendant, Winston Chadrick McClain, p led guil ty in the Mars hall County

Circuit Cou

rt to aggravated

robbery , a Class B felony , with the length of the sentence to be determined by the trial court. The trial court sentenced him as a Range I, standard offende

r to e leven y

ears in the Department

of Correction (DOC). The defendant appeals, claiming that his sentence is excessive because the trial court improperly applied enhancement factors and fa iled to apply and give proper weight to mitiga ting fa ctors. We

affirm t he judg ment of the

trial cou rt.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined.

N. Andy My

rick, Jr., Fayetteville, Te

nnessee, for the appellant, Winston Chadrick McClain.

Paul G. Summers , Attorne y General and Repor

ter; Chris tine M. Lapp s, Assista nt Attorne

y General ; William Michael McCown, District Attorney Ge neral; and Weakley

E. Barnard, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.
OPINION

This case relates to the robbery of Chr isti e Moor e. At t he defe ndant ’s guil ty plea he aring, the state gave th e following acc ount of the crime: On the night of March 18, 2002, the victim and her boyfriend we

re in bed when some men forced their way into her home. The men wore masks and pointed a long-barrel gun at the victim and her boyfrie nd. The men also pointed the gun at one of the victim’s three children and threatened the child. The men took the victim at gunpoint into her living room, stole her purse, which contained $30, and fled. A short time later, the police captured two of the ro

bbers. T he robbe rs told the police th at someone named C had had a lso participated in the crime. Several day s later, the police arrested the defenda nt, who told them the following: He and some men went to the victim’s home in order to rob it. One of the men had a gun and kicked open the front

door. The defendant and the man with the gun went into the victim’s bedroom, and-2-

the defenda

nt demand

ed that th e victim give them mo ney . Someone in the house gave

the defendant

an envelope, the defendant put the envelope into the victim’s purse, and the defendant and the men fled.

At the defe ndant’s s entencing hea

ring, Ch ristie Moo

re te s tified that on the night of March 18, four men entered her

home by kicki ng in her back door and robbed her . Another woman, the victim’s three young

children, and the victim’s boyf riend were also in thehome. She said that during the robbery, he

r five-ye ar-old daughter was awakened when one of the robbe rs steppe d on the litt

le girl’s pu pp y. Sh e s ai d t ha t h er da ug ht er ca me ou t o f a be dr oo m a nd tr ie d t o c om fo rt th e p up py. She said that the robbers pointed the pistol at her daughter and told her da ughter that

if she did not make the puppy be quiet they

were going to shoot her

and the dog. She said that before the robbery , she had received $43,600 from an insurance settlement a nd that she had told some people about the

mo ne y. She said that the robbers only took $30, that she could not identif

y th em beca use they wore masks, and that she

saw two g

uns, a rif le and a p istol.

Detective James Whitse tt of th e Le wisb urg City Police De partment testified that he investigated

the robbe ry . The polic e found a

rifle in the yard next to the

victim’s home and arrested two men. The men gave the police the defendant’s name, and seven or eight day s later, the police arrested the defendant. On cross-examination, Detective Whitsett testified that the defendant gave a statement in which he confessed to the crime.

Jud y Byrd f rom the Parole and Probation Department testified that she prepared the defendant’s presentence re port. She said the defendant had a juvenile adjudication for agg ravated assault. The defendant also had been on probation as a juve nile and was on escape status when he committed the present offense. The defenda ntand his thr

ee code fendant s stated that the defendant had entered the victim’s home during the robbery . On cross-examination, Ms. Byr d testified that

the de fe nd an t c oo pe ra te d w it h h er an d d id no t d en y hi s i nv ol ve me nt in th e r ob be ry.

Elizabeth West, the D irector

of Juvenile

Court Serv

ices, te sti fied that the defendant was origina lly charg ed as a j uvenile with aggravated r obbery and tha

t his case was bound over from juvenile to circuit court in ord er for hi m to be tried as an adult. At the time of the crime, the defendant was on escapestatus f

rom an alcohol and drug treatment fac ility. According to the defendant’s presentence report, on March 9, 2000, the defendant kicked a boy in the headand caused the boy to lose co nsciousne ss.

The defendant testified that at the time of the sentencing hearing a nd the crime, he was fifteen yearsold. He said that on March 22, he, Way ne Harris, Mark Beard, and Ca lvin Oliver

robbed the victim. He said that when they arrived at the victim’s home, Mr. Harris had a gun and kicked in the door. He said

that Mr. Beard went into a front bedroom of the home and that he and Mr. Harris went into the victim’s bedroom. He said that Mr. Harris pointed the gun at the victim and he r boyfriend and that the defendant demanded money from the victim. He said that he and Mr. Harris then went into a room in the front of the house and that someone told him the money was in a purse and

on a table. He said that

someone handed him an envelope, that he put the envelope in the victim’s purse,-3-

and that he andthe men fled the house. He said that he was younge r than his codefendants and that at least one of them wa s over twe

nty ye ars old. He said that Mr. Harris had heard the victim had received some money and that it was Mr. H arris’s idea to rob the victim. He said that at the time of the crime, he was on the run. He said he felt bad about robbing the victim and regretted going to the victim’s house with his three codefendants. He said that at the time of the hearing, he had been in jail for four months and two weeks. He said that he wanted to g et his GED and that he ha d been diagnosed

with atte ntion def icit hyperactivity disorder, which makes him hy peractive and

do th ings with out t hink ing.

On cross-examination, the defendan t acknow ledged that he did not regret c ommitting the crime until he had spent time in jail and thought about what he had done. He said that after robbing t he victim, he went to Columbia, Tennessee and spent one night in a hotel. He said that he the n returned to Lewisburg and stay

ed at a friend’s house. He said that he had been in the juvenile court system since he was ten or eleven y ears old and that he had been sent away from home about three times. He ackn owledg ed plead ing gu ilty to aggravated assault as a juvenile in 2000 but said that he only hit the boy and did n ot k ick him in the head. He said that in 2000, he also was convicted of carry ing an au to matic pistol. He said that during the robbery in question, he never held a gun but told the victim

and her b oyf

riend to g ive him the

money . He said

that to his knowledge, the victim’s children were a sleep dur

ing the e ntire inc ident. He

said that a

fter he and his co defenda

nts left w ith the victim’s money, he aba ndoned the money because the policewere chasing them. He said that Mr. Harris, Mr. Oliver, and Mr. Beard talked about the robbe ry for ten to f

ifteen minutes beforehe decided to partic ipate in it

. Upon being qu estioned by the trial court, the de fendant testified that he began using marijuana when he was eight ye ars old and cocaine when he was twelve . He said that he had been in two alcohol and drug treatment progr ams and that he had been on probation and supervised by the juvenile court since he was ten y

ears old. He said that during the robbery , Calvin Oliver stayed on the fron t porch to serve a s a lookout

and that h

e never saw a pist

ol.

According to the def

endant’ s presen

tence r eport, in addition to being found delinquent for aggravated

assault a

nd posse ssion of

an automa

tic weap on, the de

fendant also has j uvenile adjudications for po ssess ion o f mari juana and co caine, evadi ng a rr est, disorderly conduct, and criminal tresp assin g. The r eport shows that t he defe ndant dropp ed out of high school dur in g the tenth grade and ra

n aw ay from home. I

n the report, the defendant stated that he has no mental probl ems but that he has had a problem with high blood pressure for a couple of y ears. H e als o stated that he began using alcohol when he was ten year s old, used marijuana on a daily basis from age eleven until he was incarcerated, and began using cocaine whe n he was twelve. The defendant st atedthat he so metimes us ed coca ine on a da

ily b asis and t

hat he spe

nt twenty -eight day s i n a n alcohol an d d ru g t re at me nt fa ci li ty. He sa id th at he fa il ed a d ru g t es t, wa s r et ur ne d t o t he fa ci li ty, and had to spend another three months in a treatment prog ram.

The trial cou

rt noted th at as a Ra

nge I offende r, the defendant ’s rang e of punis h ment was eight to twelve yea

rs in confinement. See

Tenn. Code Ann. § 40-35-1 12(a)( 2); see also Tenn. Code1 The legislature ’s 2002 amendmen t t o Tenn. Code Ann. § 40-35- 114 added as the new en hance ment factor (1)

that the “offense was an act o f terrorism” but chan ged the existing enha nceme nt factors only by increasi ng thei r desig nating n umb er by o ne.

-4- Ann. § 40-35-210(c) (providing that the pres umptive se

ntence f or a ClassB felony is the minimum in the range if no enhancement or mitig ating factors are present). The trial court stated that it was

s hockedby t

he infor mation co ntained in the def endant’ s presen

tence r eport and that the

ju venil e court system had tried unsucc essfully to deal with the def endant since the defendant was eleven ye ars old. It ruled that enhancement factors (2), that the de fendant “was a leader in the commission of an offense involving two (2) or more criminal actors;” (8), that the defendant “has a previous history of unwillingness to comply with the conditions of a sent ence inv olving r

elease in the com

munity ;” (11), that the felony “involved the threat of death or bod ily injury to another person and the defendant has previously bee

n convicted of a felony

that resultedin death o

r bodily injury ;” and (14), that the defendant committed the felony while on esc ape status, applied to his sentence. See Tenn. Code Ann. § 40-35-114(2), (8), (11), (14) (Supp. 2001) (ame nded 2002). 1 In addition, the trial court applied enhancem ent fac to r (20), t hat the de

fendant “committe d acts asa juvenil e that wou ld constitute a felony if committed by

an adult, ” and de

termined that the f

actor wa s entitled

to considerable weight. See Tenn. Code Ann. § 40-35-114(20) (Supp. 2001) (amended 2002).

Regarding mitigating factors, the trial court held that factors (6), that the “ defenda nt, beca use of youth or old ag e, lacked substantial judgmen t in committi n g the offense,” and (13), that the defendant had taken responsibility for the crime, applied. See Tenn. C ode Ann. § 40-25-113(6), (13). However, the trial court stated that those factors were entitled to very little weight. The trial court enhanced the defendant’s sentenc e to twelv e y ears and then re duced hissentence by one yea r for the mitigating factors for a sentenc e of eleven y ears in the DOC. See Tenn. Code Ann. § 40-35- 210(e).

The defendant ap peals, claiming that his sentence is excessive. He contends that the trial court erred by applying e

nhancement factor (2) regarding his being a leader in the commission of the offense because the evide nce show ed that he

was mere

ly a particip ant in

th e cr im e. In addition, he claims that the trial court erred by applying enhancement factor (11), that the felony “involved the threat of death or bodily

injury to another per son and the defenda nt has pre viously been convicted of a felony that resu lted in de athor bodily injury ,” because the trial court improperly considered

his juvenile adjudication for aggrava

ted robbery

as the prev

ious felo ny t

hat resulted in de athor bodily in ju ry. As to mitigating factors, the defendant ar gues that the trial court did not give sufficient weight to factor (6 ) r eg ar di ng hi s l ac k o f j ud gm en t d ue to you th . F in al ly, he contends that the trial court erred by refusing to apply

factor (12), that he acted under the domination of a nother person. The state concedes that th e trial court improperly applied enhancement factor (11) because the defendant was found delinq uent o f aggravated a ssault as a juvenile. However, it argues that the defendant’s sentence is not excessive because the trial court properly a

pplied the other enhancement and mitigating factors and because it should have applied enhancement factor (10), that the defend ant had no he sitation a

bout commit

ting a c rime whe n the risk to human lif

e is high , to hi s-5-

sentence. See Tenn. Code Ann. § 40- 35-1 14(1 0) (S upp. 2 001) (ame nded 2002) . Weconclude that the defendant’s sentence is not excessive.

Appellat e review o f sentencing is de novo on t he re cord with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing Commission Comments to t his sectio n note, the burden is now on the defendant to show that the sentence is imprope

r. This me ans that if

the trial court followed the statutory sentencing procedure, made findings of fact that are adequa tely supported in the rec ord, and gave due con sider ation and proper weight to the factors and principles that are releva nt to sentencing under the 1989 Sentencing Act, we may not disturb the sentenc e even if a different result were preferred. State v. Fletcher
, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness whi ch acco mp anies the trial cou rt’s act ion is conditioned upon the affirmative showing in the record that the tria l court considered thesentencing principles and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the pur pose of meaningful appellate review
,
the trial court must place on the record its reasons for ar riving at the final sentencing decision, identify the mitigating and enh anceme nt factors found, sta

te the specific fa

cts suppor

tin g each enhancement factor found, and articulate how t he mitigating and enhancement factors have been evaluated and balance d in determining the sentence. T.C.A. § 40-35-210(f) (1990).

State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994).

The sentence to be imposed by the trial court

is presump

tively the minimum in the range for

a Class B felon y unless there are enhancement factors present. Tenn. Code Ann. § 40-35-210(c). Pr oc ed ur al ly, the trial

court is to

increa se the sentence within the range based upon the existence of enhancement

factors and, then, reduce the sentenc e as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d)-(e). The weig ht to be afforded an

existing factor is left to the trial court’s discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the rec or d. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; State v. Mo ss , 727 S.W.2d 229, 237 (Tenn. 1 986); see Ashby , 823 S.W.2d at 169.

In conducting our de novo review, wemu st co ns id er (1 ) t he ev id en ce , i f a ny, received at the trial and sentencing hear ing, (2) the presentence re port, (3) the principles of sentencing and argume nts as to sentencing alternatives, (4) the nature a nd chara cteristi cs of the

criminal conduct, (5) any mitig ating or statutory enhanc ement factors, (6) any statement that the defendant made on his own beha

lf, and ( 7) the pot

ential fo r rehab ilitation o

r treatm ent. Tenn. Code Ann. §§ 40-35-102, -103, -21 0; see Ashby , 823 S.W.2d a t 168; Moss , 727 S.W.2d at 236-37.-6-

As to the defendant’s claim that no factual basis exists for the application of enhancement factor (2), tha t he was a leader in the commission

of the of fense, t he evide nce rev ealed a

t the gui lty plea and sentencing hearings showsthat the defendant, Way

ne Harris, and Mark Beard e ntered the victim’s home while Calvin Oliver waited outside. Mr. Beard went into a front bedroom, and the defendant and Mr. Harris went into the victim’s bedroom, where they pointed guns at the victim and her boyfriend. The defendant then demanded the victim’s money , and he and Mr. Harris forced her into the living room. The defendant then took the victim’s purse and an envelope from the home. The evidenc e shows th at Calvin Oliver and Mark Beard participated in the c rime, but to a lesser degree than Mr. Harris and the defendant. We conclude tha t the evidence doe s not pr eponder ate against the trial court’s finding that enhanc ement factor (2) applied.

Regarding enhancement factor (11), the state c orrectly c oncedes that the trial court should nothave applied the factor based on the defendant’s prior adjudication for ag grava

ted assa ult as a juvenile. See Statev. Carl Johnson , No. W2000-00278-CCA-R3-CD, Shelby County , slip op. at 11 (Tenn. Crim. App. Apr. 4, 2001) (holding that trial court improperly a pplied factor (11) based

upon the defendant’s juvenile adj udication for involuntary manslaug hter). A juvenile delinquency adjudication is not a fe

lony convicti on. However, the state contends that the trial court should have applied en ha ncement

factor (10), tha t the def endant ha d no hesita

tion about

committing

a crime when the risk to

human li fe wa s high. See Tenn. Code Ann. § 40-35-114(10) (Supp. 2001) (amended 2002). We agree. As charged in the indictment, the defendant pled g uilty to agg

ravated robbery accomplished with a deadly weapon. Se e Ten n. Code Ann. § 39-13-402(a)(1). E nhancement

factor (10) is ina

pplicabl e to the c onviction because “there is neces saril y a risk t o human life andthe great potential for bodily injury

whenever a deadly

weapon is used.” State v. N ix
, 922 S.W.2d 894, 9 03 (Tenn . Crim. App. 1995). Nevertheless, this court has held that when factor (10) is inherent in the offense relative to the victim, it still may a pply if a person

other than t he victim was in the area of high risk. See State v. Lambert , 741 S.W.2d 127, 134 (Tenn. Crim. App. 1987); see also State v. Jones , 883 S.W.2d 597, 603 (Tenn. 1995). In this case, the evide nce rev eals that the victim ’s boy

friend w as in

bed with her whenthe defendant entered the room and pointed the gun at them. Thus, factor (10) is applicable.

The defendant also claims that the trial court erred by

giving little weight

to mitigating factor (6), that he lacked substantial judgment in committing the offense because of his y outh. The trial court held that this factor was entitled to extremely little weig ht be cause of the defendant’s prior cont ac twith the juvenile system. As previously stated, as long as the trial court followed the sentencing purposes and principles, the weight to be a ff orded an existing factor is left to the trial court’s discretion. Moreover, our supreme court has hel d that a defendant’s y outh should be considered

in the context of the defendant’s education, maturity , expe rien ce, mental capacity or developm ent, and any other

pertinent circumstance tending to demonst

rate the defenda nt’s ability

or inability to appreciate the nature of his conduct. State v. A dams , 864 S.W.2d 31, 33 (Tenn. 1993). In this case, the defendant has been using alcohol since he was ten, marijuana on a daily basis since he was eleven, and cocaine since he was twelve. He has been i n an alco hol and drug treatment facility twice, dropped

out of high school in the tenth grade, and hasa lengthy juvenile record. He testified at

his sentencing hearing that he wa s on the run when he committed the offense in question,-7-

an d his crimes are becoming more serious. We find nothing in the r ecord to indicate that th e defendant was unable to appreciate the nature of his conduct.

Fi na ll y, the defendant contends that the trial court should have applied mitigating factor (12), that he acted under the domination of another person, bec ause it was Wayne H arris’s idea torob the victim and because he is y ounger than all of his codefendants. However, at no time did the defendant testify that he acted under the control of any of his code fendants. To the contrary , he testified that he he ard the t hree me n talking about com

mitting the crime f

or about t en to fifteen minutes a nd that he

decided to join them . Nothing

in the re cord supp orts the a pplicatio n of this factor, and the trial court did not err by refusing to apply

it to the defendant’s sentenc e. The trial court pr operly sentenc ed the defendant

to eleve n ye ars in the

DOC.

Based upon the foregoing and the recordas a whole, we affi rm the judg

ment of the

trial cou rt.

___________________________________ JOSEPH M. TIPTON, JUDGE