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

Briefs A pril 9, 200 2
STATE OF TENN ESSEE v. DAVID TYRONE DOWELL

Appeal from the Circuit Court for Tipton County No. 4102 Joseph H. Walker, Judge

No. W2001-02161-CCA-R3-CD - Filed June 18, 2002

The defenda

nt, David Tyrone D owell, ap

peals the sentence imposed by the trial court on his guiltyplea-based

aggravated

assault conviction. Because the record supports the trial court’s sentencing determination, we affirm.

Tenn. R. App.P. 3; Judgm ent of the Circuit C ourt Aff

irmed.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID H. W ELLES and D AVID G. H AYES , JJ., joined. Gary F. A

ntrican , Covington , Tennes see, for the Appellant, Da

vid Tyron e Dowell

. Paul G. Summers, Attorney Genera l & Reporte

r; Christine M. Lapp s, Assistant Attorney Genera l; Elizabe th T. Rice, District Attorney General; and Kim Linville, Assistant District A ttorney G eneral , for the Appellee, State of Tennessee.
OPINION

The facts leading to the defendant’s guilty plea to aggravate d assault are gleaned fr om the sentencing hearing in which both the victim and thedefendant testified. On September 29, 2000, the defendant went to the victim LarryStafford’s residence twice to collect a $40 debt. After being turned away the first time, the defendant returned with a pistol. Although he claimed that he carried t he pistol for

protect ion, he sho t the victi m in the right leg whe n the vict im blocke d him fro m entering the victim’s house.

The defenda

nt pleade d guiltyto aggra vated as sault via

the use of a deadly weapon,
see Tenn. Code Ann. § 39-13-102(a)(1 )(B) (199 7), but sub mitted his c ase to the trial cou rt to determine the length and manner of service of the sentenc e, see T enn. R. Crim. P. 11(e). The presentenceinvestigative report revealed that, at the time of the sentenc ing, the d efenda nt was 24 years old. His prior criminal record consists of convictions for criminal trespass (2000) , driving without a license (2000), assault (1999), disorderly conduct (1998), possession of marijuana (1998),-2-

r esisting arrest (1997), possession of marijuana (1997), failure to stop at the scene of an acciden t (1995), speeding (1996), and failure to yield (1995). In six of the first seven convictions listed, the defendant was awarded probation, either at the inception of the sentences or after short periods of jail confinement. In the present case, the trial court impo sed a sen

tence of five yea rs, six months and denied any form

of sentencing alternative to incarceration. In his appe al, the defendant challenges only the length of his Department of Corrections sentence.

When there is a challenge to the length, range, or manne r of service of a

sentence, it is the duty of this court to conduct a de novo review of the reco rd with a presumption that the determinations made by the trial court are correc t. Tenn. Cod e Ann. §40- 35-401(d ) (1997) . This presumption is “conditioned u pon the af firmative 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). “The burden of showing that the sentence is improper is upon the appellant.” Id. I n the event the record fails to demonstrate the required consider ation by the trial court, review o f the sen

te n ce is purely de novo

. Id. If appellate review reflec ts the trial court properl y considered all relevant factors and its findings of fac t are adequatel y suppor ted by the record, this court must affirm the sentence, “even if we would ha ve pr eferr ed a dif ferent result.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In making its sentencing determination, the trial court, at the “conclusion of the sentencing hearing,” determines the range of sentence and

then determines the specific sentence and the propriety of sentencing alternatives by considering (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence re port; ( 3) the pr

inciples o f senten cing and a rguments as to sentencing alternatives; (4) the nature and characteristics of the c riminal conduct involved; (5) evidence and information offered by the parties on the enhancement and

mitigating factors; (6) any statemen ts the defendant wishes to make in the defendant’s beha lf about sentencing; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §40-35-210(a) , (b) (1997); Tenn. Code Ann. §40- 35-103(5 )(1990) ; State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

In the pres ent case , the appl icable sentencing range is three years to six years. Tenn. Code Ann. § 39-13-102(a)(1)(B), (d) (1997) ( establishing aggrava ted assa ult via the use or display of a deadly weapon a s a Class C felony) ; id. § 40-35-112(a)(3) (1997) (establishing sentence range for Class C offenses). As a C lass C fel o ny, the starting point for the court’s calculation of the sentence is the minimum sentence of three years. Id. § 40-35-210(c) (Supp. 2001). The trial court found no mitigating factors. It enhanced the sentence based upon (1) the defendant’s prior criminal record, see id. § 40-35-114(1) (2001), and (2) “the facts of this case, [includin g] carr ying a pist

ol to someone else’s house and shooting through a door and striking them.”

The defendant does not challenge the use of the first enhancement factor. Indeed, the defendant’s “previous history of crimin al convic tions or c riminal be

havior in addition to

those necessary to establish” the range justifies sen tenc e enhancement. See id. Instead, given that the defendant’s prior criminal record consists of misdemeanors, the defendant complains that the trial court ex cessively weighe d his rec ord of cr iminal con

victions.-3- The defendant’s claim notwithstanding, o ur law is settled that a tri al court that follows the sentencing principles and guidelines has discretion to weigh the applica ble enhancement and mitigating factors in determining the length of a defendant’s sentenc e. State v. Hayes , 899 S.W.2d 175, 185 (Ten

n. Crim. Ap

p. 1995). The ambit

of the tri al court ’s discre

tion in weighing the factors is suff iciently broad that, if the court follows the pertinent guidelines, we will not disturb the sentence even if we would have preferr ed a different result. State v. M oss , 727 S.W.2d 229, 238 (Tenn. 1986); Fletcher , 805 S.W.2d at 789. Enhancement factor (1) clearly applies, and we will not quibble with the trial court’s weighing of the factor. In passing, we comment that the defendant’s criminal conduct became more active as he got older . He firs t committed traffic offenses, then committed offenses such as resisting arrest and possession of marijuana, and more recently, he was convictedof assault, driving on a s uspende d li cense, and criminal trespass, the latter conviction emanating from

an offense that occurred

only six months prior to the offense presently at issue. We think it also instructive that one of th e prior offenses was an assault and another was criminal trespass.

In short, the t rial c ourt followed the sentencing principles and guidelines, and we defer to its weighing of enhancement factor ( 1).

We now address the

defendant’s complaint about the second enhancing factor used by the trial court, that the defendant took a gun to the victim’s house and shot him through the door. It is u nclear to which of the statutory enhancement fa ctors the trial judge was referring when he articulated

this enhancement consideration. The defendant con strues the trial judge’s remark as referring to statutory factor (9), that the de fendant “p ossessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense.” See Tenn. Code Ann. § 40- 35-11 4(9) (Supp. 200 1). He c orrect ly states t hat fac tor (9) is inapplic able bec ause the use of a deadly weapon i s an element of the conviction offense. See id. § 39-13-102(a)(1) (1997) (“a person commits aggravated assault who . . . [r]ecklessly commits an assault [that intentionally, knowingly
or reckle ssly caus es bodily

injury] a nd. . . [u] ses or dis plays a de adly wea pon.”); see generally id. § 40-35-11 4 (Supp. 20 01); State v. Jones , 883 S.W.2d 597, 601 ( Tenn. 199 4) (appr opriate enhancement factors not themselves essential elements of the offense may be applied). The state, however , posits that the trial judge intended to apply factor (10), that “the defenda nt had n o hesitation about committing a crime when the risk to human life was high.” Tenn. Code Ann. § 40- 35-114(10) (Supp. 2001).

Although it is unclear whether the trial judge intended to apply factor (10) , upon our de novo review , we hold that factor (10) app lies in the

present case. W e realiz e that “th

ere is
necessa rily a high ris k to human l ife and t he grea t potentia l for bodi ly inju ry whenever a d eadly weapon is used.” State v. Nix , 922 S.W.2d 894 (Tenn. Crim. App. 1995). Consequently, factor (10) embraces an element of the conviction offense of aggra vated assault. Id.; see Tenn. C ode A nn. § 39-13-102(a)(1) (1997). Thus, fa ctor (10 ) is not applicable merely because the victim was place d at risk; however, the factor may be applied when the defendant’s actions crea te risk to one or more individuals other than the victim. State v. Ruane , 912 S.W.2 d 766, 784 (Tenn. Cri m. App. 1995); Stat e v. Makoka , 885 S.W.2d 366, 373 (Tenn. Crim. App. 1994). At the sentencing hearing, the-4-

proof showed th at the vic tim’ s five-y ear-ol d stepdau ghter wa s in the hou se and witnessed a t least
a portion of

the incid ent. The defenda nt testifie d that, not only did he know that the victim’s stepdaughter

was in the victim’s house on the evening of Sept ember 29, 2000, but he left the victim’s house the first time because of the child’s presence . Yet, when he re turned, h e fired the pistol into this house, ri sking not on ly the victim’s life but also that of the child. We hold that factor (10) applies because of the risk to a third party.

Based upon the application of two enhancement factors and no mitigating fac tors, we conclude that t

he trial c ourt’ s sentence of five years and six months is supported in the record. Accordingly, the judgment below is affirmed.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE