### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs J

une 13, 2001 STATE OF TENNESSEE v. JACQUELINE HURT
Appeal from the Criminal Court for Shelby County Nos. 99-11968, 99-11969, 99-11970, and 99-11971 W. Otis Higgs, Jr., Criminal Court Judge

No. W2000-02193-CCA-R3-CD - Filed August 16, 2001

Pursuant to a plea agreem

ent, the appellan

t, Jacqueline Hurt

, entered open gu

ilty pleas to two counts of attempted first degree murde r, one co unt of especially aggravated robbery, and one count of especially aggravated kidn

aping, all Class A

felonies. She received an effectivesentence of seventyfive years. The appellant contends that the trial court imposed an excessive sentence because it erred in applying one enha

ncement factor

and because

it imposed consecutive sentences. We affirm the judgment of the tria

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

C ORNELIA A. C LARK , S P

. J., delivered the opinion of the court, in which J OE G. R ILEY and N ORMA M C G EE O GLE , JJ., joined.

Robert Little, Timothy Williams, Ke ndall Reeves, Mike

Gatlin, attorneys

for appellant,

Jacqueline Hurt.

Paul G. Summers, State Attorney General, Kim R. Helper, Assistant Attorney General, William L. Gibbons, District Attorney General, Karen Cook, Assistant District Attorney General, attorneys for the appellee, State of Tennessee.

OPINION

The salient facts in this case were summarized by the trial judge in

his Sentencing Order and adopted verbatim

by the appellant in

her brief. We a

lso adopt them:

On Thursday, April 15, 1999, at a pproximately

four o’clock in the morning, the Defendant went to the apartment of the victim, Carnomas Manning. The Defendant

knocked on Ms. Manning’s door, and asked for some money the Defendant

maintains was owed her by the victim. Ms. Manning responded that she didnot have the money. The defendant then asked if she could come in for a drink-2-

of water. Ms. Manning allowed the Defendant into her apartment at t his request. According to the victim’s o w n testimony, the victim, who was seven months pregnant, sat down on the couch in the front room of th e apartment and dozed off. She was awakened when she was hit by the Defendant in the side of the face by a quart size bottle o

f beer. The def

endant immediatel

y began to

stab the victim with the broken beer bottle. Accordingto the victim, the Defendant put a pillow over her headto muffle her screams, then opene d the fro nt door to look outside and see if anyone had heard the fighting. The Defendant shut the door, and at this point went into the kitchen and retrieved a bu tch er’s knife. The Defendant then covered the victim witha bed linen, straddled the victim’s stomach, and began stabbin g her with the butcher’s knife. When the victim stopped struggling, the Defend ant tied the victim’s hands together, a nd also bo und her feet together. She then dragged the victim into her own bedro

om a nd left her there. The Defendant testified that the above described altercation lasted about ten minutes. At this point, the D efe ndant left the victim and took a shower in th e victim’s bathroom while the victim lay he lpless and bleeding on he r bed. The Defe

ndant also washed

her clo thes at th e victim’s apartment. When she got out of the shower, the Defendant noticed that the victim was struggl in g to free herself from her binds. The Defendant tightened the ties on bot h the hands and feet of the victim, and then “hog-tied” the victim. The Defendant then placed a towel around the victim’s neck, and two plastic bags over the victim’s head, an

d secured them in

place by wrapping a

phone cord around the victim’s neck. The victim te stified that the en

tire time thi s was happening, the Defendant was ta

lking to the victim.

The Defendant then p

ut her cigarette

out on the victim’s face, and left the apartment. She re turned only a few minutes later, took some money from the victim’s purse, then left the apartment again. The victim worked to free herself when the Defendant

left. However, the victim’s terror had not yet ended. The Defendant returned to the apartment yet again. Upon returning to the apartment, the Defendant
saw that the victim was again attempting to free herself. The Defendant took a meat cleaver and chopped into the victim’s forearm, retied her, and then covered the victim withcovers and went into the living room. During the entire ordeal, the victim’s small children, ages two and three years old, were in the apartmen t. The victim testified that while laying on the bed, she could hear the Defendant in her living room pickin g up glass, and that she could hear her two children crying. The Defen dan t returned to the bedroom, and began talking to the victim. The Defendant informed the victim that she didn’tlike her and that she had been planning this for a while. The Defendant laugh

ed at the vic

tim and told her she wouldn’t be “such hot stuff” anymore. The victim continued to try to talk to the Defendant . She ask ed the Defendant

for some water. The Defendant r eturned with

a glass of water,

poured it all over the victim’s body, and began whipping her with a belt. W hen the victi

m stopped moving, the Defendant retired to the living room to watch television with the children. The victim descri bed in detail how sh

e was struggling to b

reath [si c], to-3-

loosen herself, a

nd “actually just

to think”. After

a couple of hours, the Defendant returned to the bedroom, an

d fell asleep bes

ide the victim. The

victim continued to struggle to free herself, and after about two more hours, the vict im wa s able to
remove the tie that

bound her hands and feet together. At approximately 10:50 am [sic], with her arms still ti ed and the bags stil

l wrapped around

her head, the vic

tim managed to get to the front door, escape the apartment, and fled to the apartmen t manager’s office. The property manager cut the cords from the victim’s hands and the plastic from her face. After telling of her ordeal, several maintenance men were calledfor assistance. They proceeded to the victim’s apartment. Once they entered, they found the victim’s two young children in the living room, c overed in blood, but apparently

unharmed. At this point the Defendant emerged from the bedroom. The maintenance men held

her in the apartment until two uniformed officers arrived and took her into custody. When arr ested, the Defendant had $21.00 in cash, $20 of which she took from the vi ctim ’s purse, the victim’s identification, and the identification of the victi m’s dece ased mother. On Friday, April 16, 1999, the Defendant gave

a typed written sig

ned statement of a

dmission to this incide

nt.

On May 8, 2000, the defendant entered pleas of guilty to two counts of attempted first degree murder, one count of espec ially aggr avated robbery, and one count of especially aggravated kidnaping, all Class A felonies. She advised the court that she was enteringthe pleas to attempted murder in her best interest pursuant to North Carolina v. Alfor d , 400 U.S. 2 5, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

The trial cour t conduc ted a sentencing h earing on August 14

and 31, 2000. The st

ate presented the testimony of five witnesses, including the victim. Information from a neonatologist and a pediatricianindicated that the victim’s seven-month fetus was damaged during the attack on the victim, resulting in

the birth of a son w

ith cerebral pa

lsy, significant br

ain damage , and orthopedic proble

ms.
The de fendant tes tified in her own behalf and denied statements she made in the typed confessio n. She stated that she had been drinking continuously for several hours prior to t h e incident. She stated that she did not remember exactly what happened. She denied that she intended to hurt the victim or he

r children; she ju

st wanted to

get her money back. She acknowledged that she had given her prior statement voluntarily. She later acknowledged

understanding that she had hurt the victim. She admitted that she had hit the victim with a bottle. She also ac knowl edged hitting her with her

fist.

The trial court sentenced the defendant to serve twenty-five years on each of the four counts

. The two attempted murder charges were run consecutive to each other. The remaining counts were
run concurrent to ea

ch other, but cons

ecutiv e to the attempted murder counts, for an effective sentence of sev

enty-five year

s.-4-

When an accused cha

llenges the length

, range or the man

ner of service o

f a sentence, thi

s court has a duty to conduct a de novo review of the

sentence with a p

resumption that t

h e determina tions made by the trial court are correct. Tenn. Code Ann. §40-35-401 (d). Thi s presumption is, however, “conditioned upon the affirmative showing in the record

that the trial court considered

the sentencing principles andall relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

In conducting a de novo review of a sentence, this court must consider (a) the evidence, if
an y, received at the trial and the 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) an

y statements that the defen d ant made on his or her own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§4 0-35-102, -103, a

nd -210; See State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that

the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after havi ng given due consideration and proper weight to the factors and principles set outunder the sentencing law, and made findings of fact adequately supported by the record, then we may not modify this sentence even if we would have preferred a differe nt resu lt. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The sentence range

for a Range I off

ender convicte

d of a Class

A felony is fifteento twentyfive years. Tenn. Code

Ann. §40-35-112(

a)(1). The pre

sumptive sentence

for a Class A

felony is the mid-point of

the range if there are no enhancement or mitigating factors. Tenn. Code Ann. §40- 35-210(c). If the court finds that there are enhancement

factors but no mitigating factors, the trial court may set the sentence at or above the mid-point range. Tenn. Code Ann. §40-35-210(d).

The appellant ac knowledg es that she presented no mitigating evidence, and does not challenge the fa

ilure of the trial

court to find mitiga

ting factors.

The trial court found the existence of seven enhancement factor s under Tenn. C ode Ann. §40- 35-114: (1) previous histo ry of criminal con

victions or crimina

l behavior i n addition to those necessary to establish the appropriate range (applied to all counts); (3) the offense in

volved more than one victim (applied to all counts); (4) the victim was particularly vulnerable because of age or physical or mental disability (applied to all counts); (5) the defendant treated or allowed the vic

tim to be treated with exceptional cruelty during the commission of the

offense (applied to all counts); (6) pe rsonal injuries inflicted or amount of damaged property sustained by the victim wa s particularly

great (applie

d to the counts of attempted first degree murder); (8) previous history of unwillingness

to comply with the conditions of a s entence involving release in the community (appliedto all counts); and (9) defendant posse ssed or employed a

firearm, explosive device, or other deadly weapon during the

commission of the of

fense (applied t

o the counts

of attemptedfirst degree murder).-5-

The appellant does not contest the application of six of the enhancement factors. We agree that those factors apply. The appellant questions only the application of enhancement factor (3), the existence of multiple

victims. The trial c

ourt relied on two a

rguments in applying this enhancement factor: the fact that the v

ictim was pregnant at the time of the attack, causing her unborn child to be injured; and the fact that her two other children were witnesses to the crime.

We agree with the defendant that the mere witnessing of an attack on the victim by another is not covered by this interpretation of the word “victim”. See State v. Alexander , 957 S.W.2d 1 (Tenn. Crim. App. 1997). The presence of the victim’s two small children is not sufficient to make this enhancement factor applicable.

This court has also held that the mu ltiple victim enhancement factor cannot be applied when the defendant is convicted of separate offenses against each victim. See State v. Williamson , 919 S.W.2d 69, 82 (Tenn. Crim

. App. 1995). Since appellant was convicted of separate counts of attempted first degree murder of the victim and he

r unborn child, this

enhancement factor does not applyto those counts. Thus, the trial court erred in using this factor to increase t he app ellant’s sentences on those counts. The factor also should not have been used to enhance the convictions for especially aggravated kidn

aping and especi

ally aggravated robbery, since those involved only one victim - Carnomas Manning.

Be cause the trial court misa

pplied one enhanc

ement factor, ou

r review is de no vo withou t a presumption of c

orrectness.

The ap pellant pled guilty t o four Class A felo

nies. The proper

statutory starting

point f o r defendant’s sentence on each count is twenty years . Even without the use of factor (3), the trial judge pr ope rly applied four enhancement factors to all counts, and two additional enhancement factors to the attempted murder counts. We conclude that the existence of these enhancement factors is sufficient to justify im posing the maximum se

ntence of twenty

-five years on e

ach count. This issue has no merit.

The appellant also ch

allenges the impos

ition of consecuti

ve sentences. A t

rial court ma

y order sentences for multiple convictions to runconsecutively if it finds by a preponderance of the evidence that, inter alia ,

. . .

(2) the defendant is an of

fen der whose record of criminal activity is extensive, [or]

. . . (4) the defendant is a

dangerous offe

nder whose

behavior indicates little or
no regard for human life, and no hesitation about c

ommitting a crime wh

en risk to human life is high[.]-6-

Tenn. Code Ann. §40-35-115(b). In order to impose consecutive s entences on the basis that the de fendant is a dangerous offender, the trial court must make two additional findings: tha t a n extended sentence is necessary to protect the public a gainst further criminal conduct by the defendant,

and that the consecutive sentences reasonably relate to the severity of the offenses committed. See State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). Moreover, no matter what basis the trial court relies upon in imposing consecutive sentences, the actual length of the sentence must be “justly deserv

ed in relation to the

se rious ness of the offenses” and “no greater than that deserved for the offenses committed”. See Tenn. Code Ann. §§4 0-35-102(1), - 1 03(2); see also State v. Lane , 3 S.W.3d 456, 460 (Tenn. 1999).

The appellant had eight prior convictions, including several for theft. Thus, the court was justified in finding an extensive prio r criminal recor

d. Extensive crimi

nal activity

alone will support consecut ive sentencing. State v. Palmer, 10 S.W.3d 648, 649 (T enn. Crim. App. 1999

); State v. Chrisman , 885 S.W.2d 834, 839 (Tenn. Crim. App. 1994).

The court also

found that the appellant’s sustained vicious activity over an extended period indicated no regard for human life, making her clearly a dangerous offender. The trial judge noted:

This is one of the most vio lent, vicious crime

s this court h as ever seen . . . I might add, this is the most severe case that I’ve handled in thirty years as a judge.

The court found that the appellant was indifferent to the “high prob a bility of calamitous consequences”

to the victim and her children. The appellant repeatedly stabbed the pregnant vict

im
over a several-hour period, sat on her chest to suffocate her, taunted her, and refused to provide help, all while the victim’s small children were present. Persons who came to the scen e descri bed an apartment full of blood, and pieces of flesh strewn on the carpet. An unborn child was damaged for life. The recor

d fully supports the

imposition of this fa

ctor to support con

secutive sentenc

es.

In summary, we find that

the sentence len

gths were approp

riate, the exten

ded length

of the consecutive sentences reasonably relate to the severity of the crimes, and a lengthy sent ence is necessary to protect the public against further criminal conduct by the appellant. State v. Wilkerson , 905 S.W.2d 933, 939 (Tenn. 1995). Accordingly, the judgment of the trial court is affirme d in all respects.

____________________________________ CORNELIA A. CLARK, SPECIAL JUDGE