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

Briefs M arch 19, 2003 STATE OF TENN ESSEE v. ROBERT LE E FOX Appeal from the Criminal Court for Hamilton County No. 234538 Stephen M. Bevil, Judge

No. E2002-01585-CCA-R3-CD June 10, 2003 The Appellant, Robert Lee Fox, appeals the sentencing decision of the Hamilton County Criminal Court. Fox entered a Tennessee Rule of Criminal Procedure 11( e)(1)(B) “open” plea to conspiracy to commit fir st degr

ee murde r and wa s sent enced to twenty -two year s in the Department of Correction. On appea

l, Fox arg ues that th

e se ntenc e is improper because (1) it is disparate to the sentence received by

his co-defendant and (2) four enhancement factors were e rroneously applied. After r eview, w e find no e

rror an d affirm

the deci sion of the

trial cou rt. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

Affirme d.
D AV ID G. H AYES , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined.
Mela nie R. Snipe s, Cha

ttano oga , Ten

ness ee, f or the Appellant , Robe

rt L ee F ox. Paul G. Summers , Attorne y General and Repor

ter; Mich ael Moore, Solicitor Genera l; Helena Walton Yarbrough, Assistant

A tto rney Ge

neral; William H. Cox III , District Attorney Gene ral; and Christopher

David Poole, Assistant DistrictAttorney Gene ral, for the Appellee, State of Tennessee.

OPINION
Factua l Background

Over a four-month period, the Appellant, h is girlfr iend, Mar y Jea n Cain, an d her sons , Brandonand Benjamin Cain, conspired to murder Dean Cain, Sr., the ex-husband of Mary Jean and father of Brandon and Benjamin. The plot to murder Mr. Cain originated with Mary Jean, the motive being to collec t a $460,0 00 life ins urance policy upon the victim’s death. Various a ttempts to murder the victim

proved unsucces sful. The conspira tors firs t attempte d to boil tob acco do wn to its poisonous form and placeit in the victim’s tea. Because the tea was undrinkable, this attempt failed.1 At the time of thi s offense, Benjamin Cain was a juvenile and it appears from th e record t hat Benjamin was

charged as a juveni le. -2- Next, the conspirators purchased a gun with the intent to shoot out

the victim ’s tires a

nd cause a fatal wreck; however , this atte mpt also fa

iled. The group th en decid ed to push t

he victim o

ut of his fishing boat, knowing that he could not swim. This effort was abandoned after ten day s because too many pe op le we re pr es en t. Fi na ll y, the conspirators decided to murder the victim in his home and later dump his bod

y in the rive r. In further ance of the conspiracy , an alumi num baseb all bat, mask and gloves were purchased. Ag ain, this plan went awry . After Brandon brutally beat his fathe r with the bat, he left the house and announced to Benjamin that the victim was de ad. Upon their return to dispose of the body, they found the elder Cain still breathing. The two men drag ged the victim outside where he was lef

t lying in a parking lot because they were unable to get

him into the truck. The n ext day, the victim’s virtually

naked a nd bleeding body

was disco vered. A

lthough M

r. Cain survived , he suff

ers fro m serious, permane nt, and dis abling injuries.
On October 25, 2000, a Hamilton Count y grand jury returne d a two-count indictment chargingthe Appellant, Mary Jean Cain, a

nd Brandon Cain 1 for attempted first degree murder and conspiracy

to commit first degree murder. On November 9, 2001, the Appellant entered an “ope n” plea of guilty to conspi

ra cy to commit first degree murder, and the attempted murde r charge was dismissed. As part of h

is plea a greem ent, the Appellant agreed to testify against the co-defendant Mary Jean Cain; ho wever, she late r enter ed a gu ilty plea, and the Appe

llant’s te stimony

became unnecessary
. At the March 4, 2002 sentencing hearing, the trial c ourt, applying f our enhancement and two mitigating factor s, sentenced the A ppellant to twenty

-two y ears inc arcer

ation for his involveme nt in th e c on sp ir ac y. Analysis
On appeal, the A ppella

nt asserts the impropriety of his sente nce. When an accused challenges the leng

th, rang e, or man

ner of se ntence, this cour

t has a dut y to conduct a de novo review of the sente nce with a presumption that the determinations made by the trial c ourt are correct. Tenn. Code Ann. § 40-35-4 01(d); State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is “conditioned upon the affirmative sho wing in the record that the trial court considered the sentencing principle s and all r elevant facts a nd circu ms tances. ” Ashby , 823 S.W.2d at 169. The burden is on the de

fendant to show the

improprie

ty of t he sentence. Tenn. Code Ann. § 40-35- 401(d), S entencing Commiss ion Comment s. When conducting a de novo review o f a sente nce, thiscourt mus tconsider: (a) the evidence, if any, rec eived at trial and

the sentencing hearing; (b) the pre-sentence report; (c) the pr inciples of sentencing and arguments as to sen tenci ng alternatives; (d) the nature and c haracteristics of the criminal conduct involved; (e) any statutory mitigating

or enhancement factors; (f) any statemen ts that the Appellant made on his own behalf; and (g) the pote ntial or lack

of potential for rehabilitation2 M rs. Cain’s se ntence , unlike the App ellant’s sente nce, was an agreed twenty- year sentence, established by t he terms o f the plea agree men t. -3- or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -21 0; Ashby , 823 S.W.2d at 168. Furthermore, we emphasize that facts relevant t o sentencing must be established by a preponderance of the evidence and not beyond a re asonable doubt. State v. W infield, 23 S.W.3d 279, 283 (Tenn. 2000) (citi ng State v. P

oole , 945 S.W.2d 93, 96 (Tenn. 1997)).
If our review reflects that the trial court, following the statutory sentencing proc ed ure, imposed a lawful sentence, after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and made findings of fact that are adequately

supported by the record, then we may not modify the sentence

even if we would have pre fe rred a different result. State v. Fletcher , 805 S.W.2d 78 5, 789 (Te nn. Crim. App. 1991). However, where the trial court fails to com ply with statu tory prov isio ns of s enten cing, appella te review is de novo withouta presumpt ion of cor rectne ss. A. Disparate Sentence
The Appellant

contends that his twenty-two y ear sentence, as compared to that of Mary Jean Cain’s twenty-y

ear sentence, is “disparate” and “unfair.” 2 Relying upon Te nnessee Code Annotated § 40-35-102(2), he argues that our Sentencing Act encourages the elimination of

dispara te sentences to assure “fair and consistent treatment of all def endants.” The App ell ant mi sre ads th e st atu te. It is true that prior to the adoption of the Ac t, our general assembly expressed concern in the wide disparity of sente nce ter ms acros s the state , which we re being imp osed o n similarly situated offenders who were c onvicted of the sa me crimes. However, this concern was spec ifically addre ssed withthe enactment of

the TennesseeCriminal Sentencing Reform Act of 1989, effective November 1, 1989, which inclu ded as a centr al pur pose, the el imin ation of unj usti fied d ispar ity in se ntenc ing. Tenn. Code Ann. § 40-35-102(2). This Act e liminated disparity by incorpor

ating se ntence r anges , enhancing and mitigating factors, sentencing presumpt ions, and other var

ious sente ncing p rinciple s. Thus, today , if the tr

ial cour t, in arri ving at its sentencing decision, pr operly considers the sentencing principles and rele

vant statu tes, inhe rent with in that de cision is th

e fact th at sente

ncing d isparity is elimi nated. Accordingly , appellate review of a sentence is not g uided by whether

the impos e d sentence was “equitable” or “fair” but, rather, whether principles of sentencing and relevant statutes were properly

applied in order to eliminate unjustified disparity in sente ncing.
B. Enhancement Factors
The Appellan

t cont ends that

the trial court er roneousl y r elied on f

our inapp

ropriate enhancement

factors in determining his sente nce: (1) a previous history of criminal convictions; (2) the victim was treated with exceptional cr uelt y; ( 3) the pe

rsonal in juries inf licted up on the vic tim3 We note tha t bec ause of t he 2002 re numberi ng of the enhancements fact ors under this s ection, the record refers to these factors as (1), (5 ), (6), an d (9 ). -4- were particularly

great ; and (4) use of a deadly weapon during the commission of the offense. Tenn. Code Ann. § 40-35-114 (2), (6), (7), and (10). 3
The Appellant asserts that factor (2), a previous history of criminal convictions, should not have been applied because the State failed to put forth suffic ient pr oof to establish its existence. Sp ec if ic al ly, the Appellant argues that the State’s failure to pre sent certified cop ies of t he prior judgmen ts precludes reliance on those convictions to enhance his sentence. The trial court applied this factor

based up on the pre -sentence repo rt, whic h was e ntered into evidence, and contained reference to two prio

r offen se s , one being an undefined felony and the other a misdemeanor theft charge. The Appellant enter ed n o objecti on to the a dmission of

this repo rt and, in deed, the

only argument presented by

the Appellant at sentencing in rega rd to this factor was that the convictions were too remote in time, as they occurred in 1984 and 1991, to be used as enhance ments.
We find the Appellant’s argument clearly misplaced. Our law provides that the pre-sentence report , which includesa recor d of the de

fendant ’s prior c onviction s, be con sidered as evide nce in arriving at the appropriate sentence. T enn. Code Ann. § 40-35-210(b)(2). As the report wa s admitted without objection, we find that the convictions contained therein were properl y ut ilized to enhance the Appellant’s sentence under Tennessee Code Annotated § 40-35-114(2).
The Appellan

t also ar gu es th at fa ct or s ( 6) , t he vi ct im wa s t re at ed wi th ex ce pt io na l c ru el ty, and (7), the personal injuries inflicted on the victim were particularly great, were improperly

applied. He argues that both factors are elementsof the cr

ime of co nspirac y to

commit first degree murder and, in addition, the State failed to provide any proof to establish the existence of the factors.
We acknowledge that enhance ment factors may

not be applied if the factors are “themselves essential elements of the offense as charg ed in the indictment.” Tenn. Code Ann. § 40-35-114. However, the Appellant’s argument that the se two fa

ctors re present elementsof conspi

racy to commit fir st degr

ee murde r is withou

t merit. Th

e offen se of cr

iminal con spiracy

is define d as:

two (2) or mo

re peopl e, each

having the culpa ble menta l state required f

or the of fense which is the object of the conspiracy and each act

ing for the purpose of promoting or facilitating commission of an offense, agr ee that one (1) or more

of the m will engage in conduct which c onstitutes such offense.
Tenn. Code Ann. § 39-12-1 03. A cons piracy to commit a

crime is a different offense from the c

rime that is the object of the conspiracy

. Smith v. S tate , 273 S.W.2d 143, 146 (Tenn.1954). Conspiracy is an attempt to commit an offense, since its object need not be attained. State v. Long , 800 S.W.2d 507, 509 (Tenn. Crim. App. 1990). Thus, while particul arly great pe rsonal injuries would be an essentia l element in a first deg ree mur der conv iction, it i s not an el ement of conspira cy to commit first degre e murder . Like

wise, fa ctor (6) , the vict

im was tre ated or a

llowed to b e treated with-5-

exceptional cruelty during the commission of the of

fense, i s not an el ement of conspira cy to commit first degree murder. A

reading of the

statute de

fining c onspiracy be

lies such an inter pretatio n, as a defendant may

be convicted of

conspiracy

without any proof

that the defendant treated or allowed the victim to be treated with exceptional cruelty

. Ad di ti on al ly, the Appellant’s contention that the State failed to prove these factor s wer e applica ble in this case is also without merit. Supporting the factor of exception cruelty, t he trial court not ed: [a]fterbeing hit, and by

some of the testimony that he was still alive and he was alive when they

dragg ed him outs ide afte r hitting him numero

us times wit

h a ball ba

t, according to Mr. Brandon Cain’s testimony , ten times. . . .
The Appellant’s own confession supports the fact that the victim

was vicio usly attacke d with a baseball bat, dragged outside, a nd left exposed to the el ements. We find this more than sufficient proof of exceptional cruelty inflicted upon the victim.
The trial court based application of factor (7), the victim suffer ed parti cularly

great injuries, in part, on a video tapeof the victim, which is not included in the appellate record. However, after review of other

portions o f the re cord, we also conclude that the factor is applicable. The victim is no longer able to wo

rk or live alone asa

result of the injuries inflicted upon him, clearly suggesting injuries of a par

ticularl y g reat mag nitude. Th

is conclu sion is supported by the fact that in preparing the pre-sentence report, the investiga tor chose not to attempt to ob tain a vict im impact statement because of the victim’s “extensive injuries.”
The Appellan

t’s final contenti on is that f

actor ( 11), use o f a dead

ly w eapon, w as improp erly used to en

hance h is sentence. The

court, r ely ing on the Appellan t’s conf ession, noted that:

. . . they purchas ed the Glo ck 40, an d I do find that t

hat is an en hancement factor, because it was involved in the conspiracy , although not in t hat par ticular a ct, this particular act that ca used the injury , the seve re injury to Mr. Cain , Sr. So I

will ackno wledge it as an enhancement factor, but not give it as much we ight, of course, as it would have been if it had been used in the particular incide nt.
The Appellant’s contention is erroneous, as the factor prop erly ap plies to the case before us. The trial court relied on the purchase of the g un and the co-conspirators plans to use it to shoot out Mr. Cain’s tires but gave the factor less weig ht, as the gun was not used in the incident which actually caused injury to the

victim. The court recognized that, while the gun wa s not used to harmMr. Cain, the gun was part of th

e conspir acy . We agr

ee with th e trial c ourt. Cons piracy

is a continu

ing cou rse of conduct, whichterminates when the objectives of the conspiracy are completed or the

agreement is abandoned. Tenn. Code Ann. § 39-12-103(e)(1) . In addition, the State is correct in their asse rtion that the factor would have

also applied because a baseball bat, a dea dly weapon, wa s purchased by the Appellant and wielded by Brandon Cain during the attack on Mr. Cain. Under the theory of a-6-

co ns pi ra cy, the Appellant is responsible for his co-conspirators ac ts in fu rt he ra nc e o f t he co ns pi ra cy. Randolph v. State , 570 S.W.2d 8 69, 871 (Tenn. Crim. App. 1978 ). Under these ci rcumstan ces, application of this factor was appropriate.
As a Range I offender, the

sentencing range for

conspiracy

to commit first degree murder, a class A felony, is fif

teen t o twenty-fi ve yea

rs. The trial court is required to begin its sentencing consideration at the midpoint of the range. Tenn. Code Ann. § 40-35-210(c)

. From this presumptive sentence, the trial

court s ho uld enhan

ce the se ntence a s appropr

iate con sidering

applica ble enhancement

factor, and then reduce the sentenc e for any applica

ble mitigating factors. Tenn. Code Ann. § 40-35-210(e). Having found four applicable enhancing fa ctors and two applicable mitigating fact ors, the c ourt impose d a se nten ce of twen ty -two ye ars. We find the sentenceis justified under the facts presented. Accordingly , the judgment of the Hamilton County Criminal Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE