### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE February 2000 Session

STATE OF TENNESSEE v. DAN IEL CHRISTIAN RUSSELL

Direct Appeal from the Circuit Court for Wilson County Nos. 98-1204, 98-2253 J. O. Bond, Judge

No. M1999-00202-CCA-R3-CD - Filed July 27, 2000

The appellant, Daniel Christian Russell, referred herein as “the defendant,” appealsas of right from the judgment of the Wi lson County Circuit Court imposing concurrent sentences for aggravated assault and vandalism. The trial court imposed sentences totaling five ( 5) years to be served concurrently

in the Department of Correction. The defendant presents two appellate issues: 1) whether the length of the sentences imposed by thetrial court are excessive; and 2) whether the trial
court erred by denying

the defendant’s

request for probation. Because the defendant received illegal

conc urrentsen tences, we vacate the judgments of conviction and remand the case for further proceedings.

Tenn. R. App. P. 3; Judgm ents of the Circui

t Court are Vaca

ted and Remanded.

L. T ERRY L AFFERTY , S R

. J., delivered the opinion of the court, in which J OSEPH M. T IPTON , J., and D AVID H. W ELLES

. J., joined.

Steve McEwen, Mountain City, Tennessee, Comer L. Donnell and Virginia M. Townzen, Lebanon, Tennessee, for

the appellant, Da

niel Christian Russe

ll.

Paul G. Summers, Attorney Generaland Reporter, and Marvin E. Clements, Jr., Assistant Attorney General, for the appellee, State of Tennessee.

OPINION

In indictment No. 98-1204, the Wilson County Grand Jury charged the defendant with two counts of aggravated assault and attempted murder first degree of Brian Potts (“the victim”), on June 8, 1998. In indictment No. 98-2253, A, B, and C, the Wilson County Grand Jury accused the defendant of aggravated burglary of the habitation of L

inda Slaughter, va

ndalism by damaging the
contentsof the habitation of Linda Slaughter, and resisting arrest on September 12, 1998. On March 31, 1999, the defendant e

ntered open ende

d pleas of guilty to a

ggravated assa

ult, vandalism over the value of one thousand dollars ($1,000), and resisting arrest. As part of the plea agreem

ent, the State would enter a nolle prosequi to the charges of attempted murder first degree, aggravated burglary, and possession of a

Schedule I contr

olled substance. A

s to the facts surr

ounding the offen

ses, the-2-

Stateadvised the trial c

ourt that the defe

ndant was in

the home of the victim on June 8, 1998. The defendant placed a pool ball in a sock and struck the victim in the head, causing him serious bodily injuries, including a skull fracture, black eyes, a swollen cheek, scratches and cuts to his shoulder, and a broken ring finger on the victim's left ha

nd. As tothe vandalism, the State advised the Court that the defendan t was in

a highly intoxicated state from alcohol or drugs when he broke into the home of Linda Slaughter and caused over one thousand dollars ($1,000) in damage.

SENTENCING HEARING

Ronald Joines, a probat io n officer, testif ied that he talked

to the seventen-y

ear-old victim, whose version o f the assaul t was consistent with that of the defendant. Joines testified that the victim incurred over

twenty thousand dollars ($20,000) in medical bills, and lost five (5) months of employment

from his injuries as a result of the attack. Joines stated that the defendant told him that he thought the victim had stolen his wallet, but later realized that he had left his wallet at the victim's home. Joines stated that three (3) months after the assault of Potts, the defendant burst into the home of Linda Slaughter (“owner”), who shot the defendant when he came back and tried to break in her front door. The owner did not know the defendant. Damage to the owner 's home totaled approximately

three thousand two hundred six dollars and seven cents ($3,206.07). The defendant told Joines that he had several drug charges and has used marijuana, LSD, Valium, Zanax, a nd various pills. As to the vandalism ch arge, the defe

ndant could not re

callif he was on drugs at the time. Joines stated that when the d efendant was ar rested for vanda

lism, he had LSD in his possession.

Joines advised the trial court that in 1998, the defendant was arrested f or possession of a weapon wi th intent to g o armed. He received a ten-dollar ($10) fine and thirty (30) days in carceration

with fifteen (15) days suspended. As a juvenile, the defendant was ch arged wit h possession of a weapon, but this offense was dismissed on November 21, 1995. The defendant was instead found guilty

of possession of marijuana and truancy and was transferred to the Department of Youth Services. Joines testified that the defendant obtained a GED at Lebanon High School and workedfor Rich’s Electric Service. In cross-examination, Joines corrected his testimony about the defendant being committed to

the Department of Youth Services by stating that the defendant was putwith the Department of Human Services for psychological treatment. The defendant ’s placement withthe Department of Human Services was not for criminal acts. Joines testified that the defendant did not violate any conditions of probation as a juvenile.

Linda Slaughter (“owne

r”), testi fie d that it would cost three thousand one hundred and thirtyone dollars ($3,131) to repair her home. She stated that she had never seen the defendant before he forced his way into her home. The pre-sentence report established that the owner was sitting on the couch at her home when the defendant broke through her back door and ra

n through her house

to the front door. The defendant then turned around and ran out the back door. He

subsequently trie

d to br eak in the front door, w

hen Mrs. Slaughter

grabbed a .25 ca

liber handgun and

shot t hrough th e door, striking the defendant in the left inner thigh. During the arrest, the defendant made sever al attempts to flee. He became so aggressive that the deputies placed leg shack les on him. The1 It is unclear from the record whether this “Mr. Potts” was the victim of the assault, Brian Potts, or his father.

-3- defend ant’s pupils were enlarged and unresponsive to light. Deputies found a folded p iece o f aluminum foil with a reddish-brown substance in the defendant’s possession.

Heather Potts, mother of victim Brian Potts, testified that their medical bills exceeded twen

ty thousand dollars ($20,000). She stated that she knew nothing about the defendant’s wallet.

Sara Russell, the defendant's grandmother, testified that her grandsonhas lived with her and his grandfather off and on. She described the defendant as a kind, gentle, sweet person. She stated her belief that his crimes were totally out of character. Although her grandson had stated in apresentence report that his ch ildhood had been no

rmal, thiswas not true. The grandmother stated that
t he defendant’s father and mother were divorced, and her son’s second wife ha d a nervous breakdown. She described her grandson as very remorseful for what he had done. She stated that the defendant has wo

rked steadily so he

could go to

college. Mrs. Russ

ell testified that s

he did not know her grandson had used drugs, but tha t he was not living with them when these offenses occurred.

Paul Markahn testified

that he has known the defendant for about nine (9) years. The defendant had been a frie

nd of Mr. Markahn ’s sons sinc e the sixth (6 th ) grade. At the time of the offenses,the defendant was living with Mr. Markahn off and on. He did not consider the defendant to be a violent perso

n and stated that th

e defendant cou

ld live with him if give

n probation. In cr

ossexamination, Mr. Markahnstated that, years ago, the defendant had spoken of violent feelings, but that he had never seen the defendant take action on those feelings.

Arlene Markahn testified that she has known the defendant since he was in the sixt h (6 th ) grade with her two sons. She stated that the defendant was very kind, very respectfu l , and like a brother to her sons. She testified

that she and her h

usband were sep

arated at the time

of the criminal offenses.

Douglas Russell, the defendant's father, testified that the defendant’s home life was not normal. He stated that he and his wife divorced when the defendant was four and one-half (4-1/2) years old. The mother moved away to Florida and had very little contact with the defendant. Mr. Russell testified that he remarried when the defendant was nine (9) years old. After six months of marriage, his second wife had a breakdown and developed severe mental problems. At age twelve (12), th e defe ndant’s girlfriend had taken a large amount of pills in an attempt to commit suicide. As a result, the defendant drank some of his father’s turpentine. As for the juvenile weapon charge
, Mr. Russell

testified that his son had a pocket knife in his jacket, which was found at school. The knife had been given to the defendant as a g ift by Mr. Potts. 1 He statedthat the defendant was in the tenth (10 th ) grade at the time and was placed on probation under house arrest. Mr. Russell testified that he worked twelve (12) hours a day, a situation which left the defendant home alone. This

home restriction began to bother th e defendant. Mr

. Russell stated that his son was talking to a friend on the phone when the friend suggested to the defendant

that if he said he would hurt somebody, they-4-

would put him in

an institution where other people would bearound all the time . He stated that his

son was sent to an institution for thirty (30) days and then returned home. Mr. Russell testified that hi s son’s violent actio

ns were totally out

of character.

As to the missing wall

et, he stated that

th e police would not do anything ab out i t, so his son took matte rs into his own hands . Mr. Russell testified that he did not know that his son used drugs.

Sergeant Eddie Fitzpatrick of the Wilson County Sheriff Department, testified that the defendant had been in custody since Septembe r 13, 1998. The defendant had no write-ups or violations of rules or regulations and never complained.

The defendant

elected not to testify, but the pre-sentence report, marked as an exhibit to the hearing, contains the defendant’s version of the offenses. “My ve

rsion of what I ha

ve done is unexplainable

and [i]nexcusable. I gravely regret what I have done.” In imposing sentences of five (5) years for aggravated assault, four (4) years for vandalism, and eleven(11) months and twentynine (29) days for resisting arrest, to be served concurrently, the trial court found six (6) enhancement

factors and no mitigating fact ors. Based upon the pre-sen tence report, th

e victim impact statements, and the record, the trial court found the defendant to be a dangerous person for

a number of years.

The trial court de

nied split confinement as an alternative, because the defendant would be back out into society too soon.

LEGAL ANALYSIS

The defendant

asserts that the trial court erred in finding inapplicable enhancement factors and no mitigating factors in its imposition of sentences of five (5) years for aggravated assault and four (4) years for vandalism. Further, the defendant contends that the sentence of eleven (11) months and tw enty-nine (29) days is invalid, in that the defendant is guilty of a Class B misdemeanor for resisting arrest, since a deadly weapon was not used in the commission of this offense. The State counters that there is ample evidenc e in the recor d to support the trial court’s imposition of incarceration

but concedes tha

t the trial court e

rred in imposing a sentence of eleven (11) months and twenty-nine (29) days for resisting arr est. The State agr

ees that the defe

ndant did not utilize a dead

ly weapon in resisting arrest, and, thus, the proper ra nge of punishmen t would be that for a Class B misdemeanor offense.

From our review of the record, we find the sentences imposed by the trial court are illegal and, therefore, the judgments of conviction must be vacated and this case remanded to the trialcourt. The record establishes that the defendant was released on bail

after the commiss

ion of the offense for aggravated ass

ault committed in June 1998. In September 1998, the defendant committed the offense of f elony vandalism to the home of Mrs. Linda Slaughter. Tenn. R. Crim. P. 32(c)(3) provides: (3) Mandatory Consec utive Sentences.

- Where a defe

ndant is convicted of multiple offenses from one trial or where the defendant has additional sentences not yet fully served as the result of the convictions in the same or other court and the law requires consecutive sen tences, the sente

nce sha ll be consecutive whether the judgment explicitly so orders or not. This rule shall apply:-5-

(A) To a sentence for a felony committed while on parole for a felony; (B) To a sentence for escape or for a felony committed on escape; (C) To a sentence for

a felony where the

defendant was released on bail and the defendant is convicted of both offenses; and (D) Any other ground provided by law.

See also Tenn. Code Ann. § 40-20-111(b).

Therefore, these judg ments mu st be vacated and the case remanded for a new sentencing hearing. Since this case involves open-ended negotiations for pleas of guilty and the convictions for these offenses require mandatory consecutive sentences, the trial court may w ish to consider the validity of the defendan

t's guilty pleas. In

the event the def

endant should

enter new pleas of guilty, we elect to addr

ess the applicatio

n of enhancemen

t factors found by

the trial court.

When an accused challenges the length, range, or manner

of service of a sentence, this Court has a duty toconduct a de novo review of the sentence with a presumption that the determinations made by the trial court are c orrect. Tenn. Co de Ann. § 40-35-40 1(d). This presump tion is “conditionedupon th e af

firmative showing in the record that the trial court considered the sentencing princi ples 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/or sentencing hearing; (b) the pre-sentence report; (c) the principles of sentencing; (d) the arguments of counsel as to sentencing alternatives; (e) t he nature and characteristics of the offense; (f) any statutory mitigating or enhancement fa

ctors; (g) any sta

tements made by the defendant in his own behalf; and (h) the defendant 's potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103, -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

A defendant who “is an especially mitigated or standard offender convicted of

a Class C, D

or E felony is presume

d to be a favorable candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6). Our sentencing law also provides that “convicted

felons committing the most severe offenses, possessing criminal histories evincing

a clear disregar

d for the laws and

morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority regarding sentencing involving incarceration.” Tenn. Code Ann. § 40-35-102(5). Thus, a defendant sente

nced to eight (8) years or less, who is not an offender for whom incarcera

tion is a priority, is

presumed eligible

for alternative sentencing, unless sufficient evidence rebuts the presumption. However, the act does not provide that all offenders who meet the criteria are entitled to such relief; rather, it requires that sentencing issues be determined by the facts and circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 ( Tenn. Crim. App. 1987).

In addition, the principles of sentencing reflect that the sentence should be no greater than that deserved for the offense committed and should be the least severemeasure necessary to achieve-6-

the purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2)and (4). The trial
court should also consider the potential for rehabilitation of the defendant in de termini ng the sentence alternative. Tenn. Code Ann. § 40-35-103(5).

We must now determine from the record the correctness of the trial court’s imposition of sentences of five (5) years and four (4) years.

LENGTH OF SENTENCE

In this appeal, the defendant asserts that the trial court erred in finding six (6) enhancement factors and the absen c e of any mitigating factors. The defendant contends that he should have received the minimum sentences of three (3) years for aggravated assault and two (2) years for vandalism. The State responds that the defendant has not overcome the presumption of cor rectness of the trial court’s judgment, although some enhancement factors were not applicable to the sentence for aggravated assault.

The trial court

specifically stated that it must consider the proof developed at the guilty plea entry and the evidence adduce d at the se ntencing hearing. The trial court stated that it was considering all information as well as th

e sentencing principles and purposes of sentencing. In finding that sentences of

five (5) years a

nd four (4) year

s were appropri

ate for the defendant, the

trial court applied six (6) enhancement factorsand no mitigating factors. Pursuant to § 40-35-114, the trial court found that: (1) the defendant had a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (6) the personal injuries inflicted upon or

the amount of

damage to proper

ty was particular

ly great; (8) the d

efendant has a previous history of unwilling ness to comply with th

e conditions of a se

ntence involving r

elease in the community; (9) the defendant possessed a deadly weapon during the commission of the offense; (10) the defendant

had no hesitation a

bout committing a cr

ime when the risk to human life was high; and (13) the offense was committed while the defendant was released on bail from a p rior felony conviction and is ultimately convicted of such prior felony.

The defendant asse

rts that his juvenile

finding of delinque

ncy for carryin

g a weapon is a Class C misdemeanor and, therefore, should be given little weight for enhancement. We agree. In 1995, the legislature a mended T ennessee Code Annotated § 40-35-114 by adding enhancement factor (20), which allows for enhancement of a sentence if “the defendant was adjudicated to have committed a delinquent act or acts as a juven

ile that would

constitute a felony if committed by an adult.” Tenn. Code Ann. § 40-35-114(20) (1997). This enhancement factor took effect on

July 1, 1995, and applies to

sentencing of any defendant commit ting an offense on

or after that da

te; State

v. Brent Brown , No. 02C01-9710-CC-00419, 1998 WL 742350 (Tenn. Crim. App. Oct. 26, 1998); See State v. Carla Marie

Parrish , No. 01C01-9801-CR-00017, 1999 WL 173963 (Tenn. Crim. App. Mar. 30, 1999). Thus, it w ould be an error for the trial

court to consider the defendant's finding of delinquency for carrying a w eapon, a Class C

misdemeanor. However, a defendant's drug use as an adult is evidence of a history of criminal beha vior, which can be

properly applied

as enhancement

. State v. Alexander , 957 S.W.2d 1, 7 (Tenn. Crim. App. 1997). The pre-sentence report reflects that th e defe ndant admitted to us ing drugs, such as m

arijuana, Valium

, LSD, Zanax and ot

her pills.-7-

However, the record is

not clear as to whether the defendant was an adult at the time of such usage. Therefore, we cannot

agree with the trial cour

t that enhanceme

nt factor (1) ap

plied to the defen

dant.

The defendant argues that the trial court was incorrect in applying enhancement factor (6), that the personal injuries inflicted or the amount of

damages to prope

rty were partic

ularly great, in that this factor is inherent in both of the offenses of aggravated assault and vandalism. In support of his position, the def

endant cites State v. Jones, 883 S.W.2d 597 (Tenn. 1994) and State v. Grissom, 956 S.W.2d 514, 518 (Tenn. Crim. Ap p. 1997). The State a rgues that this fac

tor is applicable to the

se offenses.

As to the aggravated assault offense, the indictment alleg es tha t the defendant di d intentionally

or kn owingly cause bod ily injury to Brian Pot

ts by the use or displ

ay of a deadly weapon.

Tennessee Code A

nnotated § 39-13- 102 defines aggr avated assault a

s:
(a) A person commits aggravated assault who: (1) intentionally or knowingly commits an assault as defined in § 39-13-101 and: (A) Causes serious bodily injury to another; or (B) Uses or displays a deadly weapon.

Bodily injury includes “a cu t, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the f unction of a bodily member, organ, or mental faculty.” Tenn. Code Ann. § 39- 11-106(a)(2). In State v. Jones, our Supreme Court held that proof of serious bo dil y injury will always constit ute proof of part

icularly great injury. Jones , 883 S.W.2d at 602. T hus, factor (6), causing serious bodily injury, is an element of th e offense of aggravated assault and cannot be used

to enhance the defendant’s sentence. Since the State did not allege the element of serious bodily injury but the use of a deadly weapon for the offense of aggravated assault, we find that the facts in this ca

se are distinguish

able from State v. Jones. The victim, Brian Potts, sustained

a skull fracture, black eyes, a swollen cheek, scratches and cuts to his shoulder, and a broken ring finger on his left hand. As a result of the fracture, the victim was hos pitalized for fiv e (5) days, where bone fragments were removed from his brain. The victim’s medical bills exceeded tw enty thousand ($20,000) dollars. We find that enhancement factor (6) is applicable to the fac ts in th is

case. As to the damages sustained by Mrs. Slaughter to her home in the amount of three thousand

one hundred and thirty one dollars ($3,131), we find that enhancement factor (6) is not applicable. A person who knowingly causes damage to or the destruct ion of any real or personal property of another, knowing that he does not have the effective consent of the own

er, is guilty of van

dalism. Tenn. Code Ann. § 39-14- 408. Actsof vandalism are punishable as theft under Tenn. Code Ann. § 39-14-105. Thus, the amount of damage sustained by Mrs. Slaughter is punisha ble as a Class D felony, with a range of two (2) to four (4) years. To enhance the sentence for vandalism based upon da m ages caused by the defendant would constitute double enhancement in violation of the sentencing statutes. Grissom, 956 S.W.2d at 518.-8-

The defendant complains that the trial court improperly applied enhancement factor (8), that the defendant has a previous history of unwillingness to c

omply with the conditions of a sentence involving release in the c

ommunity. The defe

ndant maintains tha

t, as a juvenile, he was placed on probation, but the State failed to prove that any violations of probation occurred. The def endant argues that a charge of “in-state runaway” was an informal adjustment

by a Youth Service officer. Thus, this informal adjustment was not adjudicated, nor was the defendant sentenced on the charge of “in-state run

away.” The State

disagrees.

A defendant's juv enile rec ord may be conside red by a trial cou

rt in determining if enhancement

factor (8) may be utilized by the trial court in increasing a

sentence from the minimum range. See State v. Griffin, 914 S.W.2d 564, 5 68 (Tenn. Crim. App. 1995); State v. Mika, No. 02C01-9508-CR-00244, 1997 WL 76812, at *3 (Tenn. Crim. App. Feb. 25, 1997). From our review of the record, thedefendant was charged in 1993 with being an “in-state runaw

ay” and ordere

d to report to a Youth Services officer for an informal adjustment. In May 1993, the defendant missed school and failed to report to the Youth Services officer, whereupon the charge of “in-state runaway”

was reinstated in an o

rder to Juvenile Court

for a formal hearing. In November 1995, the defendant

was placed on intensive probation with the Department of Youth Services. In December 1995, the defendant was placed with the Department of Human Services for intensive psychological treat ment, because he made s tatements that he was out of control and might hurt someone. Upon the defendan t’s re lease from the Department of Human Services, he was placed back on intensive juvenile probation. In the health comments of the pre-sentence report in 1997, we note that the defendant was sent to Pine Point Treatment Center in Jackson, Tennessee, for using marijuana during h is juvenile probation. Other than this one episode, we find no violations of conditions of release from prior

sentences imposed on the defendant. We are of the opinion that a formal charge and an informal adjustment of “in-state runaway” are no t sentences within the meaning of enhancement

factor (8). Also, we b elieve thatthe removal of the defendant for psychological treatment during intensive probation does not fall within the determination of a n unwillingness to complywith the conditions of release. We f ind t hat the trial cour

t was in error in a

pplying this enhancement factor.

The defendant asserts that the trial court er

red in applying enhancement factor (9), that the defendant possessed or employed a firearm, explosive device, or other deadly weapon during the commission of the offense. The State conced es that the defen

dant did not possess a

deadly weapon at the commission of the v and alism and that the application of this enhancement factor was improperly

considered by t

he trial cour t. Also, the State contends the application of the use of a deadly weapon, enhanc

ement factor (9

), is questionable as to

the offence of a

ggravated assa

ult. We do not find this application questionable.

The indictment charged the defendant with “bodily injury to Brian Potts by the use or display of a deadly weapon, to wit: a pool ball in a sock.” A deadly weapon means “[a]nything that in the

manner of its use or intend

ed use is capable

of causing death

or serious bodily injury.” Tenn. Code Ann. § 39-11-106(a)(5)(B). This Court agrees that this enhancement factor (9) i s not applicable, because the use of th

e pool ball, used as a deadly weapon, was an element of the offense of aggravated

assault. State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App.), perm. app. denied, (Tenn.-9-

1997); State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App.), perm. app. denied , (Tenn. 1995). The trial court erred in applying enhancement factor (9).

As to enhancement factor (10), the defendant asserts that the trial court erred in applying

this factor to the offenses of

aggravate

d as sault and vandalism. The State concedes that enhancement factor (10), that the defendant had no hesitation about committing a crime when the risk to human life was high, is not appl

icable to the off

ense of aggravated assault but was properly applied to the offense of vandalism.

We agre e with the State that the high r isk to human life is no

t inherent in all va

ndalism offenses. The actions of the defendant in

this case certainly had the potential for a high risk of life

or serious bodily injury on the part of the victim, Mrs. Slaughter. The application of enhancement factor (10), in this case, is a close question. However, we believe that under the proof in this record, the trial court properly applied enhancement factor (10). The pre-sentence re port sets forth the defendant’s encounter with Mrs. Linda Slaughter. The defendant broke in the back door, ran through the house while Mrs. Slaughter was sitting on the couch, and then ran to t he front door. The defendant turned around and

ran out the back door. Mr

s. Slaughter calle

d 911, obtained a pi

stol, and while the defendant was breaking in the front door, she shot the defend ant in the thigh. Notwithstanding his gunshot wound, the defendant was so out of control, that the arresting deputies had to shackle him. Apparently, the defendant wa s under the influe

nce of LSD. If Mrs

. Slaughter had not shot the defend

ant before he ga

ined entrance,

she would

hav e been confronted by a drug crazed individual who was ve ry capable of inflicting physical harm. We find no error in the trial court's applicat

ion of enhanceme

nt factor (10) in

this case of vanda

lism.

As to the aggravated as sault offen se, we find that the trial court improperly applied enhancement

factor (10), because there was no proof of a risk to the life of a person other than to the victim. The risk involved here was an essential element of the offense of aggravated assault. See State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App.), perm. app. denied, (Tenn. 1996).

The defendant asserts that the trial court improperly applied enhancement factor (13) to the offense of aggravated assault but concedes it was properly

applied to the vand

alism offense. Th

is factor states that the felony was committed wh ile the defend ant was released on bail and was ultimately

convic ted of such prior felony. The State argues that enhancement factor (13) was properly applied to the off

ense of vandalism

, but there is n

othing i n the record to sho w that this factor was applied to the offense of aggravated assault.

We agree with the State t hat the record is not clear as to whether the trial court applied enhancement

factor (13) to th

e offense of ag

gravated assau

lt. However, thetrial court did find that the defendant was on bail when he committed the vandalism offense. We find t hat the tria

l court pr operly assigned enhancement factor (13) to the defendant, since he was ultimately convicted of aggravated assault for the offense of vandalism.-10-

The defendant contends that the trial court erred in

failing to find any

mitigating factor

s in considering an appropriate sentence for both offenses. The State argues that the record supports the trial court’s findings.

The defendant would argue that because of h is youth, he lacked substa ntial judgment in committing these offenses. Tenn. Code Ann. § 40-35-113(6). This factor is supported by the fact that the defendant was institutionalized for his mental behavior, and he was only 18 years old at the time of the commission of these offenses.

In determining the applicability of this mitigating factor (6), trial courts should consider the defend ant’s age, education, maturity, experience, mental capacity or development, and any othe r pertinent circumstance tending to demonstrate the defendant’s ability or inability to appreciate the nature of his conduct. State v. Carter, 908 S.W.2d 410, 413 ( Tenn. Crim. App.), perm. app. denied, (Tenn. 1995)(citing State v. Adams, 864 S.W.2d 31, 33 (Tenn. Crim. App. 1993)). At the time of the offenses, the defendant was 18 years old, had obtained a GED, and had an excellent work record. However, the defendant used drugs and was obviously

on drugs at the time of the commission of the vandalism

offense. As a juvenile, the de fendant was tre

ated for psycholo

gical problems de

aling with violenttendencies. We

believe that mitiga

ting factor (6) w

as applicable to

the offense of

vandalism and that the trial court was in err or for failure to apply this facto r to the offense o

f vandalism. However, we do not find that th e trial court err

ed in failing to apply

factor (6) to the aggravated assault offense. Based upon the facts of the aggravated assault, there is n

othing toindicate that the defendant’s age, maturity, experience, mental capacity or development ca used an in ability to appreciate the nature of his assault on Brian Potts.

The defendant c

ontends that the tr

ial court failed t

o consider other mitigating factors, such

as his remorse, outstanding employment record, and exemplary behavior while in custody for eight (8) months, pursuantto § 40-35-113(13). The State points out that the trial court did not have the opportunity

to evaluate

the defendant’s sincerity as to remorse, since the defendant did not testify. We agree. The only evidence of remorsefulne

ss in this record is

the defendant’s pre-sentence report
statement and his grandmothe

r’s testimony. We c

annot find that the

trial court was in error for faili ng to apply any remorse as a mitigating factor. However, we believe that the defendant has established that he has a good work record, as reflected in the pre-sentence report by a letter from

a Nissan dealer who is willing to re-hire the defendant. Also, we believe that the defendant’s period of incarceration should be considered in assessing an appr

opriate sentenc

e. Here, the re

cord reflects that during his eight(8) month confine ment, the defendant ha

s been a model inma

te. We find this to be a mitigating factor pursuant to § 40-35-113(13).

Since we have determined that the trial court misapplied certain enhancement fac tor s, we condu ct our review withou

t a presumption of c

orrectness purs

uant to § 40-35-401 (d). In determin in g
an appropriate sentence, the trial court must start at the minimum sentence in the range, enhance the sentence within the range as appropriate for the enhancement factors, and then reduce the sentence within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). In our de novo review of the record, we find that the record supports the application of enhancement factors (6) for the offense of aggravated assault, (10) for the offense of vandalism, and (13) for the offense-11-

of vandalism. We find that the record does not support the applications of enhancement factor (1) for the offenses of aggrav ated a ssault and vandalism, (6) for the offense of vandalism, (8) for the offenses of aggravated assault and vandalism, (9) for the o ffenses of aggravated assault and vandalism, and (10) f

or the offense of aggravated assault. We hold that the record supports the application of two mitigating fa ctors, the defen

dant’ s work re cord and his model period of incarceration. In conclusion, we find enhanceme

nt factor (6) fo

r the offense of

aggravated ass

ault and two enhancement

factors (10) and (13) for the offense of vandalism, and t

wo mitigating facto

rs. Moreover, we cannot say that the trial court erred in denying probation for a five-year se ntence.

The trial court’s judgments are vacated and the case is remanded for a new sentencing hearing.

___________________________________ L. TERRY LAFFERTY, SENIOR JUDGE