### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs S ep te m be r 21, 200 5

STATE OF TENNESS EE v . LONNI E LEE OWE NS

Appeal f romthe Circ uit Court for F ranklin County No. 15356 Bud dy D. P err y, Judge

No. M2005- 00362-CCA -R3-C D - F iled October 18, 2005

The De fenda nt, L onnie L ee Ow en s , was c onvicted by a jury of sec ond deg ree murder, a buse of a corpse , and thef

t over $10,000. The trial co u rt sentenc ed the De fendant as a Rang e I , standard offe nder to twe nty -five y ear s for the murde r, one y ear for the a buse of a corpse , and four

y ear s for the theft. The trial court or dere d these senten ce s t o b e ser ved conse cutively in the Depa

rtment of Correc tion for an e ffe ctive term of thirty y ear s. I n this direct appe al, the De fendant challeng es the leng th of his sentence for the mur der and also challeng es t he trial c ourt’s orde r that his sentenc es be

serve d consec utively . We reduc e the De fendant’s sentenc e for the sec ond deg ree murder c onviction to twenty -four

y ear s. We further r ever se the trial c ourt’s imposition of consecutive se ntence s.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Reve rsed in Par t; Sentence M odif

ied

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which N OR MA M C G EE O G LE a ndJ.C. M C L IN , J J ., joined.

Rob e rt T. Cart e r andRog e r J. B e a n, Tu llaho ma , T e nn e sse e , f or the app e lla nt, L on nie L e e Ow e ns

.
Paul G. Sum me rs , Atto rn e y Ge ne ra l andRe po rt e r; B ri a n C. John so n, As sis tant A tto rn e y Ge ne ra l; J. Mic ha e l T a y lor , D ist

ri c t A tto rn e y

Ge ne ra l; a ndSte ve B lou nt, As sis ta nt D ist ri c t At torne y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

The re cord be fore this Court does not contain a t ransc ript of t he Defendant’s trial, but does

co n t ai n a t ransc ript of the De fenda nt’s sentenc ing he aring , including a copy of the De fenda nt’s prese ntence report, which was ma de an e x hibit to the hearing. Fr om the materia ls be fore us, we ha ve g le a ne d th a t th e De fe nd a nt kill e d h is e str a ng e d wi fe
, He a the r Ow e ns , inMa y 20 03 wh e n s he c a me to his house to pick up their two y oung children. The Def endant struc k the victim and then bound her w ith duct tape. The Def endant wra

pped duct tape over the victim’s mouth and nose, such that she suffoc ated to de ath. The couple’ s children wer e in the house at the time of the homicide. The-2-

Def endant subseque ntly

buried the vic tim’s body and disposed of he r pick-up tr u ck

. The Def endant’ s g irlfriend a ssisted in the disposal of the victim’s truck.

At the sentenc ing he aring , the vi ctim’s mother and brother testified about the ef fec ts of the murder on the m, their family and the c hildren. JudyBolin, the victim’s mother, test i fi ed t h at the Def endant “ can . . . be a g ood person at times, but j ust in a snap he’ s off like a

rock. H e’ll tell y ou off in a minute, a nd he’ll do whatever he can t o y ou to hurt y ou.” Ms. B olin also stated that the Def endant “ controlled every thing [t he victim] did,” including how she spent money and wher e she spent her time. Ms. B olin ex pl ai n ed t h at the De fendant murdere d her daug hter on Ms. B olin’s birthday , and that he kne w he wa s doing so.
Doug Smit h testified on beha lf of the De fend an t , ex p laining that the Def endant wa s an employ ee of

his for seve n or eig ht months. Mr. S mith described the D efe n d an t as a “ g ood employ ee.” Ba

rry Rhoads also testified on beha lf of the De fendant. Mr. Rhoads explained that he is a minister as well as the owner of an e ng ineering c onsulting firm. Mr. Rhoads met the De fenda nt and the victim in 1998 beca use they wer e attending the chur ch at whic h he wa s serving as co- pastor. Th e De fe nd a nt w a s a c tiv e ly inv olved i n th e c hu rc h, be c omi ng a de a c on a ndinv olv ing him se lf “hea vily ” with the y outh. Sometime in 2000, the victim spoke to him about the marital troubles she

a ndthe De fe nd a nt w e re e xpe ri e nc ing . Fro m th a t po int un til la te 20 01 or

e arl y 20 02 , M r. Rho a ds ’ contac t with the Defe ndant and his wife b ecame infre quent. L ater , he saw the Def endant more fre quently

as he trie d to help t he De fendant “work his way throug h separ ation and then the divor ce.”

Mr. Rhoads testified that he never knew the Def endant to be mean, a g g ressive, c ontrolling or dishonest. After the victim disappe are d, howeve r, he beg an to suspe ct that the Def endant mig ht be somehow involved. Eve ntually , the Def endant c onfesse d to him that he had killed his estrang ed wife. In Mr. Rhoads’ o p i n i on, the Def endant ha d repe nted of his ac tions and “his confe ssion and his a sk ing fo r f

or g ive ne ss w a s a s g e nu ine a s a ny bo dy e lse ’s .” Mr . Rh oa ds c on tin ue d to min ist e r t o the Def endant a fter his c onfinement a nd continued to consider the Def endant a friend.

On c ro ss- e xami nat io n, Mr . Rh oa ds a c kn ow le dg e d th a t th e De fe nd a nt d id n ot c on fe ss h is crime until afte r he r ealized the police w ere coming to arre st him.

The De fenda nt testified on his own behalf. H e stated that he met his w ife, the victim, in 1996 when he was twe nty -seve n and she was nineteen. They marrie d in J uly 1997 and had two c hildren. During the marriag e he w ork e d repa iring heavy -duty equipment. They

separ ated in September

2002. He killed the victim ni ne or ten months later. The Def endant state d that, prior to the victim’s death, he neve r struck he r or thre w anything at her.
During the sepa

ration, the De fendant beg an keeping a deta iled diary including notations on the victim’s wher eabouts. The Def endant s t at ed t h at he kept this diary beca use he w as af

raid of

acc usations the victim was making. The beg inning of the di vorce proce eding s wer e “very hot,” he said, but settled down af

ter some time passe d. Howeve r, the De fendant beg an dating Kar a Matthew s-3-

in May 2003. After he beg an seeing Ms. Matthews, he stated, he “starte d rec eiving threats. There

was va ndalism to [ his] house and pr operty .”

Th e De fe nd a nt m a int a ine d th a t he ha d n ot p la nn e d to kil l th e vic tim . H e state d th a t he “ jus t wish[ed] it ne ver happene d” and that, as a result, he felt “like [hi s] whole inside h as b ee n ri pped out.” He testified, “I

don’t know how to desc ribe the e mptiness and the tore a part fe eling s that I

have or how I could eve r re pay . No way I would want to them [sic] to suffer anything. I ’m -- I ’m sorry from the bottom of my

heart. I just don’t know how to describe it.”

On cr oss-examination, the Defe ndant ac knowledg ed that, a da y o r t wo after burying the vic tim , h e lie d to the vic tim ’s mothe r a bo ut h e r w he re abo uts . T he De fe nd a nt m a int a ine d th a t hi s
own family never inquired about wher e she was or what had happene d to he r afte r her disappe ara nce. Acc ording to the Defenda nt, their children made no inquiries for the two weeks be fore their mother’ s body was found.

The De fendant also admitted that, within an hour of killing the victim, he called he r cellphone and left a me ssag e on it. He a lso a dmitted to leaving child support chec ks for her afte r her death. He claimed, howe ver, that he t ook these a ctions not to deceive the police but bec ause he “didn’t know what to do.” He a dmitted to having g otten rid of the victim’s vehicle after killing her

. He admitte d to g e tti ng ri d o f h e r b od y a ft e r kill ing he r. He a dmi tte d to ha vin g inv olv e d M s. Matthews in disposing of the victim’s truck.

After hearing the above testimony
, the trial court issued its ruling from the be nch. The trial court noted that th e De fe n d ant was be ing se ntence d as a Rang e I , standard of fende r and that the presumptive sente nce f

or the De fenda nt’s second deg ree murder conviction was twenty y ear s. As a mitigating f

actor , the trial court found that the Defenda nt had no prior criminal history . The trial court then a

pplied two enhanc ement fa ctors: (1) the Def endant tre ated the vic tim with ex ceptional

crue lty in the commission of the offe nse, and (2) the pe rsonal injuries inflicted on the victim during the c omm iss ion of

the of fe ns e we re pa

rt ic ula rl y g re a t. Wei g hin g the sin g le mit ig a tin g fa c tor a g a ins t the two enha nceme nt fac tors, the t rial court found t hat t he max imum sentenc e of twenty -five y ear s was the a ppropriate sentenc e for

the sec ond deg ree murder c onviction.

The trial court found no enhanc ement fac tors applicable to the abuse of a cor pse off ense and imposed the minimum sentenc e of one y ear for that c onviction.

Wit h respe ct to the theft off ense, the trial court applied as a sing le enha nceme nt fac tor that the Def endant wa s the leade r in the commission of that crime. Acc ording ly
, the trial court imposed a sente nce of

four y ear s for that off

ense, out of a

possible rang e of thre e to six y ear s.

The trial court then determined that the sentenc es should all run conse cutively to one another on the basis that the De fenda nt is a “dang erous of fende r.”-4-

The Def endant now appea ls the trial court’s ruling on his se ntence s. Specific al l y , t he Def endant c ontends that the trial court e rre d in apply ing the two enhanc ement fa ctors to his murder

c on vic tio n; d id n ot a

pp ly su ffi c ie nt w e ig ht t o mi tig a tin g fa c tor s; ande rr on e ou sly or de re d h is sentenc es to be serve d consec utively

. The State conce des that the trial court err ed in a pply ing one of the e nhance ment fac tors to the m urder conviction but arg ues t hat t he overall eff ective se ntence of thirty y ear s should be aff

irmed.

STA ND AR D O F RE VI EW Be fore a trial c ourt imposes a sentence upon a convicted criminal defe ndant, i t must consider (a) the evidenc e adduc ed at the trial and the se ntencing hearing; ( b) the pre sentenc e re port; (c) the principles of se ntencing and ar g uments as to sentenc ing a lternatives; (d) the nature and char acte ristics of the criminal conduct involved; (e) evidenc e and inf ormation offe red by

the parties on the enha nceme nt and mitigating fac tors set forth in Tenne ssee Code A nnotated sec tions 40-35- 113 and 40-35- 114; and (f) any statement the de fendant wishes to make i n t h e d ef endant’ s own behalf about sentenc ing. See Tenn. Code Ann. § 40-35-210( b); State v. I mfeld, 70 S.W.3d 698, 704 (T e nn . 2 00 2) . T o f

a c ili ta te app e llat e revie w, the tr ia l c ou rt is r e qu ir e d to pla c e on the re c or d it s
rea sons for imposing the specific sentenc e, including the identification of the m i t i gati ng and enhanc ement fa ctors found, the specific fac ts supporting e ach e nhance men t fa ct o r found, and the

me tho d byw h i c h t h e m i t i g a t i n g a n d e n h a n c e m e n tf a c t o r s h a v e b e e n e v a l u a t e d a n d b a l a n c e d in determining the se ntence . See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).
Upon a c halleng e to the sente nce imposed, this court has a duty to conduct a de novo re view of the sente nce w ith a presumption that the determinations made by the t rial court are corr ect. See Tenn. Code Ann. § 40- 35-401(d)

. Howeve r, this presumption “is conditioned upon the af firmative sh ow ing in the re c or d th a t th e tr ia l c ou rt c on sid e re d th e se nte nc ing princ ipl e s a nda ll r e le va nt f a c ts and cir cumstance s.” State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991)

. I f our r eview r efle cts that the trial court followed the statutory sentenc ing pr ocedur e, that the court imposed a lawf ul sentence afte r having g iven due c onsideration and pr oper w eig ht to the fac tors an d principles set out under the sentenc ing la w, and that the trial court’s finding s of fac t a re adequately supported by the re cord, then the pre sumption i s ap p l i ca b l e, and we may not modify

the sentenc e eve n if we w ould have pref err ed a dif

fer ent result. See S tate v. Fletc her, 805 S.W .2d 785, 789 (Tenn. Crim. App. 1991)

. We will uphold t he sente nce imposed by the trial court if (1) the sentenc e complies with the purposes and principles of the 1989 Sentencing Act, and ( 2) the trial c ourt’s finding s are adequately supported by the rec ord. See State v. Arnett, 49 S.W .3d 250, 257 (Tenn. 2001) . The burde n of showing that a sente nce is improper

is upon the appea ling pa

rty

. See Te nn. Code Ann. § 40-35- 401 Sentencing Commi ssion Com ments; Arnett, 49 S.W.3d at 257.

LEN G TH OF IN DI VI DU AL SEN TEN CE S Th e De fe nd a nt d oe s n ot c ha lle ng e the min imu m se nte nc e imp os e d for his abu se of a c or ps e conviction. Acc ording ly , we ne ed not addr es s t h at s en tence . As to his other two sentenc es, the De fe nd a nt ide nti fi e s a s iss ue nu mbe r tw o in his ini tia l app e llate brie f that the tr ia l c ou rt “ e rr e d in sentenc ing the Def

endant to the m axim um sentenc e in the rang e for second deg ree murder and theft of prope rty .” I n fa ct, the trial c ourt did not sentence the Def endant to the maximum for his theft-5-

offe nse. The De fenda nt’s theft convic tion is a Class C felony . See Te nn. Code Ann. § 39-14- 105(4). As a Rang e I , standard of

fende r, the De fendant fac ed a se ntencing rang e of thre e to six y ear s for that offe nse. See id. § 40-35- 112(a) (3). The presumptive Rang e I sentenc e for a Class C felony

is three y ear s. See id. § 40-35-210( c). The trial court incr ease d the Def endant’ s presumptive sente nce f or that crime by

only one y ear , based on the enhanc ement factor for being a leade r i n the commission of the off ense. See id. § 40-35-114( 3). The Defendant tacitly admitted during the sentenc ing he aring that Ms. Matthews took direc tion from him i n co njunction with their joint effort to dispose of the vic tim ’s truc k. Th e Defen dan t off e rs no arg ume nt i n e ith e r h is i nit ia l app e llate brie f o r h is r e ply brief that the trial court e rre d in apply ing this enhanceme nt fac tor. Acc ording ly , this issue is waived. See Tenn. Ct. Crim. App. R. 10( b). Furthermore
, we see no err or by the trial court in its application of this enhanc ement fa ctor to the thef t offense . There fore
, the Def endant ha s failed to esta

blish that he is entitled to any

reduc tion in his sentenc e for the theft off

ense.

We turn now to the Def

endant’ s sentence for his murder of t h e v i ctim. Second deg ree
m u r d e r i s a C l a s s A f

e l o n y

. S e e T e n n

. C o d e A n n

. § 3 9

- 1 3

- 2 1 0 ( b )

. T h e D e f e n d a n ti s a

R a n g e I, sta nd ardof

fe nd e r. Th e Ra ng e I se nte nc ing rang e fo r a Cla ss Afe lon y

is f if te e n to tw e nty -f

ive y e ars

. See id. § 40-35-112( a)( 1). The presumptive sentenc e for a Class A felony

is midpoi nt in the rang e, see id. § 40-35- 210(c) , o r t we n t y y ea rs i n this inst ance . “Should there be enhanc ement and mitigating fac tors for a

Class A felony , the court must st art at the midpoint of t he rang e, enhance the sentenc e withi n the rang e as appropriate for the enhanceme nt fac tors, and then r educe the sentenc e within the rang e as a

ppropriate for the mitig ating fac tors.” I d. § 40-35-210( e).

The trial c ourt enhanc ed the Def endant’ s sentenc e for his se cond deg ree murder c onviction on the basis that the De fenda nt “t re at ed . . . a victim . . . with exceptional crue lty during the commission of the offe nse” a nd that “[t] he per sonal injuries inflict ed u p o n

. . . the victim w[ere] particula rly g reat.” I d. § 40-35-114( 6), (7) . The State c oncede s in its appellate br i ef that the trial court e rre d in apply ing f actor (7) be cause t h e personal injuries inflicted in eve ry homicide ar e “particularly

g reat” and this fac tor is theref ore an essential ele ment of the off ense suc h that it may not be applied to enhance the Def endant’ s sentenc e. See id. § 40-35-114; State v. Wil liamson, 919 S.W .2d 69, 82 (Tenn. Crim. App. 1995) . Acc ording ly , the trial court should not have enha nced the De fe nd a nt’ s se nte nc e fo r the se c on d d e g re e mur de r o n th is b a sis

.
We f in d n o e rr o r , h o w e v e r , inth e tria l c o u r t’ s ap p li c a ti o n o f e n h a n c e me n t f

a c to r (6). Although w e do not have any medical testimony about the victim’s de ath in the rec ord befor e us, the trial court did make a finding for the rec ord during the sentenc ing hearing that “this was a de ath by str a ng ulatio n w he re the la dy wa s d uc t ta

pe d. ” Th e De fe nd a nt a dmi tte d that he a ssa ult e d the vic tim in his house while their c hildren we re c lose by . The pre sentenc e re port admitted into evidence at the

se nte nc ing he ari ng wi tho ut o bje c tio n s e ts f orth i n p art

that th e De fe nd a nt
used duct tape to tape the victim’s leg s toge ther and her hands behind he r bac k. He then t aped her face from the chin t o just under her ey es cove ring her mouth and nose

.

. . . Dr. Charles Har lan noted in the autopsy report that . . . [ h]e . . . found trac es of duct tape in the vic tim’s lung. Dr . Har lan conc luded that the victim’s death wa sT he D ef endan t t es t i f

i ed dur i ng t he s ent enc i ng hea r i ng t hat t he chi l dren wer e 30 t o 40 feet awa y wh en he ki l l ed 1

t h e v i c t i m.

T h e p re se n te n c e re p o rt inc lud e s the se c irc u m sta n c e s o f t h e o ff e n se in the se c tio n ti tled “O ff ic ia l V e rs io n .” 2

-6- cause d by s u f

f o c a ti o n a s a r e s u lt o f h a v in g h e r mo u th a n d n o s e c o v e r e d w ith duct tape.

The De fenda nt does not contest these f acts but conte n d s t hat the method by which he killed the victim did not i nvolve abuse or torture and that this enhanc ement fa ctor is t here fore inapplicable.

The use of

exceptional crue lty

in the killing of the vic tim is not an ele ment of sec ond deg ree
mur de r andma y

the re fo re , w he re app ro pria te , be c on sid e re d a s a n e nh a nc e me nt f a c tor . Se e State

v. Gra y , 960 S.W .2d 598, 611 (Tenn. Crim. App. 1997) . The prope r application of this factor in a murder c ase r equire s evidenc e that denote s the infliction of pain or suffe ring for its own sake or fr om t h e gra t i fi cation derived there from, and not mer ely the pain or suf

fering inf licted as the me ans of

acc omplishi ng the murder. See Arne tt, 49 S.W .3d at 258. Our supr eme c ourt has re cog nized that this enhance ment fac tor may be applica

ble wher e ther e is proof of extensive psy cholog ical abuse or tortur e . Se e id. a t 25 9. F or e xamp le , th e app lic a tio n o f this e nh a nc e me nt f a c tor to an e sp e c ia lly ag g ravated ro b b er y conviction has be en upheld whe re the defe ndant executed two pe rsons by g unshots after ha ving f

orce d them onto the floor of a walk-in cooler

. See State v. Reid, 91 S.W .3d 247, app. 311 (Te nn. 2002) (f inding that the de fendant committed the espe cially ag g ravated robbe ry with exceptional crue lty

beca use “[t] h e an gu i s h ex perie nced by the victims at this point [i n the

c oo le r] w hil e the y a wa ite d the ir e xec uti on is u nf a tho ma ble ” ). I n u ph old ing the app lic a tio n o f this enhanc ement fac tor in the Reid case , this Court also noted the defe ndant’s “c alculate d indiffer ence toward suf

fering.” I d.
We think the facts support the application of this enhance ment fac tor to the means by which the Def endant killed his estra nged wife . The re cord be fore us indicates that the De fendant bound the v ic ti m’ s h a n d s a n d f

e e t a n d th e n c o v e r e d h e r mo u th a n d n o s e w ith d u c t ta p e

. T h e Def

endant committed these ac tions while the victim was in his house and whil e h er children w ere mere fee t

away

. The autopsy

of the victim reve aled tra ces of duct t ape in one of the victim’s lung s: indicating 1 how desper ately she tried to c ontinue breathing. After the victim wa s dead, the Def endant took her bo dy to an is la ndin T ims F or d L ake a ndbu ri e d it in a sh a llo w g ra ve . H e the n r e turne d to his ho us e and had se x with his girlfriend. These fac ts indicate that this Defendant treate d the victim with a 2 calc ula te d in d if

f e r e n c e to h e r

s u f f e r in g a n d th a t h e a c h ie v e d s o me f o r m o f g r a ti f ic a ti o n f r om murdering his wife. These f acts a lso establish that the victim tried desperately to continue bre athing bu t e ve ntu a lly su ff

oc a te d to de a th. We ha ve no tr ou ble c on c lud ing that th e vic tim ’s su ff e ri ng wh ile she strug g led to live was “ unfathomabl e” an d was the dire ct re sult of the method used by the De fe nd a nt t o a c c omp lis h th e kil lin g . A s n ote d b y Judg e Sc ott , “ I f s tr angulatio n, wi th the vic tim vigor ously

fig hting f

or anothe r bre ath, is not ex ceptional c ruelty , I don’t know what is.” State v. Bobby L ee Knight, No. 87-234-I I I
, 1989 WL 24436, at *4 (Te nn. Crim. App., at Nashville, Mar . 21,T h e S ta te a rg u e s in its a p p e llate b rie f t h a t t h e D e fen d a n t ha s w a ive d this issu e b e c a u se his la w ye r sp e c ifi c a lly 3

m ent i o ned only t he l ack o f t he D efend ant ’ s cri m i nal reco rd as a mit i gat i ng f act o r duri ng cl o si ng remarks at t he sent enci ng h e a rin g . H o w e v e r, d e fen se c o u n se l ha d fi le d a c o m p re h e n siv e l is ti n g o f m itig a ting fac to rs fo r th e trial c o u rt’s

cons i dera t i on pri or t o t he hea r i ng

. M oreove r , proof of t he D ef endan t ’ s wor k h i s t ory an d chu r ch act i vi t i es was adduced
at t he he aring

. W e w i l l
, ac co rd i ng l y, ad d ress thi s i ssue o n the m erit s.

T hes e c i r cums t anc es ar e n ot s peci f i cal l y codi f

i ed as mi t i gat i ng f act ors i n our Cri mi nal Sent enc i ng Ref orm Act 4

o f 1 9 8 9
, b ut m ay b e co nsi d ered a s such i f t he t ri al co urt de t erm i nes t hem t o be ap p rop ri at e fo r t he o f fense and “consi st ent

w ith the p u rp o se s o f” th e A c t. S e e T e n n . C o d e A n n . § 4 0 -3 5 -1 1 3 (1 3 ).

-7- 19 89 ) ( Sc ott , J., dis se nti ng ). Th e De fe nd a nt’ s a sse rt ionthat th e tr ia l c ou rt e rr ed in app ly ing thi s
e nh a nc e me nt f

a c tor to h is c on vic tio n f

or se c on d d e g re e mur de r i s w ith ou t me ri t.

Th e De fe nd a nt a lso arg ue s th a t th e tr ia l c ou rt e rr e d in app ly ing e nh a nc e me nt fa c tor s to his sentenc e on the ba sis of the United States Supreme Court’s de cision in B lakely v. Washington, 124 S.Ct . 2531 (2004). The Blakely decision hol ds that the Six th Amendment to the fe dera l Consti tution permits a def

endant’ s sentence to be incre ased only if the enhan ce m en t fac tors relied upon by the jud g e are ba se d o n f

a c ts r e fl e c te d in the jury ve rd ic t or ad mit te d b y the de fe nd a nt. Se e id. , 1 24 S.Ct

. at 2537. The only basis upon which enhanceme nt is otherwise permitted is t he def endant’ s previous criminal history : where the def endant ha s prior convic tions, the trial court may enhanc e the de fe nd a nt’ s se nte nc e wi tho ut an a dmi ssi on or jury fi nd ing . Se e Ap pr e nd i v. Ne w J e rs e y , 530 U. S. 466, 490 (2000); Blakely at 2536. Subsequent to the Def endant’ s appea l of

this case, the T ennesse e Supreme Court consider ed the impact of Blakely on Tenne ssee’ s sentenc ing scheme a nd conclude d that the Criminal Sentenc ing Reform Act of 1989, pursuant to w hich the Def endant wa s sentence d, does not violate a de fenda nt’s Six th Amendment rig hts. See State v. Gomez, 163 S.W .3d 632, 661 (T e nn . 2 00 5) . A c c or din g ly , th e De fe nd a nt’ s a rg ume nt o n th is b a sis ha s n o me ri t.

The De fenda nt also complains that the t rial court did not rec og nize and/or a ccor d sufficie nt

we ig ht t o s e ve ra l mi tig a tin g fa c tor s. Th e De fe nd a nt a sse rt s in his ini tia l a pp e llate brie f that, i n 3

a dd iti on to ha vin g no c ri min a l re c or d, he “ ha d a g re a t a mou nt o f f a mil y su pp ort, h a d a

g oo d, ho ne st

a ndste a dy

wo rk re c or d, a ndwa s a

c hu rc h an d co mmu nity le a de r. ” He fu rthe r state s tha t “ha d th e se 4 fac tors been pr operly

considere d, the sentenc e ca lculation would have be en .

. . at t he lower end of the ra ng e.”

I n imposing the twe nty -five y ear term for the Def endant’ s second de g ree murder of fense , the trial court r ecog nized the Defe ndant’s lac k of a c riminal history as a mitig ating fac tor but determined tha t it e n t i t l e d t h e D e f

e n d a n tt o n o d o w n w ar d m o v e m e n t“ a ta l l ” i n t h e s e n t e n c i n g r a n g e

. A s t his Court has previously

re cognized, “[p] rovided the tria l court complies with the purpose s and principles of the Criminal Sentencing Reform Ac t of 1989 and its finding s are adequately supported by the rec ord, the weig ht a ffor ded to e nhance ment and mitigating fac tors is le ft to the trial court’s discretion.” State v. Souder , 105 S.W .3d 602, 606 (Tenn. Crim. App. 2002). We find no abuse of discretion by

the trial court in r efusing to r educe the Def endant’ s sentenc e on this ba sis. Nor do we find any abuse of discretion by

the t rial court in failing to re cog nize or weig h the additional

m i t i g a t i n g f

a c t o r s u r g e d b y t h e D e f

e n d a n t

. T h e D e f

e n d a n tm u r d e r e d h i s w i f

e

. H e d i d s o b y aT he reco rd c o n ta ins n o t est i m o ni al s b y t he D efend ant ’ s f am i l y m em b ers as t o t he l evel of supp o rt t hey are 5

a lleg e d ly willing to p ro v id e him

. -8- proce ss that was most certainly ag onizi ng to the victim. He did so while his children we re in the ho us e wi th h im a ndthe vic tim

. Th e De fe nd a nt’ s p a st g oo d d e e ds a nda lle g e d f a mil y su pp ort simply

5 do not e ntitle him to a sente ncing benef it under the fa cts and c ircumstance s of this case. T his issue is without m erit.

Given our de termination that the trial court properly applied only

one enhanceme nt fac tor to t h e Defenda nt’s sentenc e for his second deg ree murder c onviction, we must modify the De fe nd a nt’ s se nte nc e fo r that c ri me to t we nty -f ou r y e ars

.
CO NSE CU TIV E SEN TEN CE S We turn n ow to the De fe nd a nt’ s c on te nti on s r e g ard ing the tr ia l c ou rt ’s or de r that he se rv e his sentenc es consec utively

. A trial court may order a convicted defe ndant to se rve his or he r sentenc es
consec utively

upon finding by

a pre ponderance of

the evidenc e that the defendant “is a dang erous offe nder w hose beha vior indicates littl e o r n o reg ard f or human life, and no hesitation about committing a c rime in which the risk to huma n life is hig h.” Tenn. Code Ann. § 40- 35-115(b) (4). Howeve r, bef

ore imposing consec utive sentenc es upon this b as i s , t he trial c ourt must further f ind that “the terms i m p o s ed are rea sonably related to the seve rity

of the off

enses c ommitt ed and a

re
nece ssary in order to pr otect the public f rom furthe r criminal acts by t h e o ff ender .” State v. Wil kerson, 905 S.W.2d 933, 938 (Tenn. 1995).

I n this case, the trial court found that, based upon the Def endant’ s murder of

the victim, he is a dang ero u s offe nder. The trial court f urther f ound that the ef

fec tive term of thirty

y ear s was
rea sonably related t o the s everity of the De fendant’s crimes. As to the r equire ment that consec utive

se rv ic e is n e c e ssa

ry to p ro te c t the pu bli c fr om fu rthe r o ff e ns e s b y the De fe nd a nt, the tr ia l c ou rt tol d the Defenda nt that “notwithstanding y our t estimony about re morse and y our apolog y to this C ourt I was convinced from y our testimony that every thing y ou said was se lf serving and done to pr otect y ou and that y ou’ll continue to protec t y ou r o wn i ntere st.” This finding by the trial court was consistent with its earlier g ener al finding that the Def endant’ s t es t i m ony

during his sentencing hearing was not cre dible but, rathe r, “totallyself serving.” Acc ording ly , the trial court determined that the public nee ded prote ction from the De fendant, appar ently on the basis that the De fendant’s willingness to testify in a self serving as opposed to a truthful manner indicated that the Def endant

wo ulda lso be wi lli ng to e ng a g e in f urthe r c ri min a l a c ts i f n e c e ssa ry to p ro te c t hi mse lf

in s ome reg ard.

We are constraine d to respec tfully disag ree with the t rial court on this point . The De fenda nt has no previous his tory of serious criminal offenses. The instant crimes were committed ag ainst the Def endant’ s e s tr a n g e d w if

e d u r in g th e p e n d e n c y

o f d iv o r c e p r o c e e d in g s

. A c c o r d in g to the Def endant’ s testimony , these proc eed i n gs h ad been he ated a nd hostile, at least sporadic ally . The Def endant ha d beg und ati n g s omeone prior to the divorce becoming final. The D efe ndant committed the murder s ho rt ly

a ft e r h is n e w r omanti c re la tio ns hip be g a n a nda ft e r the vic tim wa s a lle g e dly-9-

threatening him. These cir cumstance s point not to an exist ing or future pattern of c riminal behavior du ri ng wh ic h th e g e ne ra l pu bli c is p ut at r isk
, bu t rathe r to a n iso la te d e ve nt o c c ur ri ng in the mid st of do me sti c dif

fi c ult ie s. We d o n ot i mpl y that thi s v iol e nt mur de r i s n ot d e se rv ing of ha rs h p u n i s h m en t

. Ho we v er , a s i n gl e e p i s o d e o f c ri m i n al v i o l en ce d i re ct ed at a fa m i l y m em b erd u ri n g a tim e of strif e do e s n ot i nd ic a te , in a ndof its e lf
, a pr op e ns ity to c omm it fu tur e vio le nt a c ts so a s to establish that the public nee ds protection fr om “furthe r criminal acts” by the offe nder. In short, we conclude that the proof in this ca se is not s u ff i ci ent to establish that consec utive sentenc es ar e
nece ssary to protect the public f

rom further criminal conduct by the Defenda nt, as re quired by the Wil kerson de cision. See 905 S.W .2d at 938. Acc ording ly
, we have no c hoice but to overturn the trial court’ s imposit ion of co n s ecutive se ntence s on the basis that the De fendant is a “dang erous offe nder.”

CO NC LU SION The trial c ourt err ed whe n it enhance d the Def endant’ s sentence for t

h e sec ond deg ree murder

con v i ct i o n o n the basis that the murde r involved particularly g reat personal injuries. We have there fore reduc ed the De fenda nt’s sentenc e for this c onviction f rom twenty -five y ear s to twenty -four y ear s. We have furth er d et er mined that the trial court erre d when it orde red the Def endant’ s sentenc es to be served conse cutively

. Ac cordingly , we r ever se that portion of the tria l court’s judgme nts and rema nd this matter such that the judg ments ag ainst the Def endant may

be cor rec ted to refle ct the modification of his second degree m u rd er s entenc e and that his sentences a re to be

serve d concur

rently . I n all other re spects, we aff irm the judg ments of the trial c ourt.

___________________________________ DAVID H. WELLES, J UDGE