### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 21 , 2003 Ses sion STATE OF TENNESSEE v. DEXTER LEE SPENCE Appeal from the Criminal Court for Sevier County No. 8536 Rex Henry Ogle, Judge

No. E2002-02193-CCA-R3-CD June 4, 2003 The defendant, Dexter

Lee Spence, ente

red a guilty

plea to second degree

murder. The trial court imposed a twenty

-five-y ear sen tence. I n this appeal of right, the defendant argues that the sentence was excessive. The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed G ARY R. W ADE , P.J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J AMES C URWOOD W ITT , J R ., JJ., joined. Edward C. Miller, District Public Defender, for the appellant, De xter Lee Spence. Paul G. Summers, A

ttorney Genera l & Repor ter; John H. Bledsoe , Assistan t Attorne y General ; and Steven R. Hawkins, Assistant District Attorney Ge neral, for the appellee, State of Tennessee. OPINION On January 17, 2001, the

ninety -six-year-ol d victim, A lleen Sta nsberry , was fa

tally shot in the head. On the following day , a neighbor discovered her body wi thi n six feet of the door to her residence. Because the defendant had been seen in the area of the victim's re sidence on the date of the shoot ing, he was qu estioned by l aw enfo

rcemen t office rs. Although the defendant claimed that his shotgun had accidently discharged when he stopped at the re sidence to ask the vict im for permission to hunt on her property , Dr. Cleland Blake, a forensi c patholo gist, co ncluded t hat the pa th of the wound was in a downward motion through the body of the victim. It wa s his opinion that the victim was falling as she was shot and that the barrel of theweapon was no more than a foot away when it discharged. The defendant, who pled

guilty to second de gree murder as charged in the indictment, was twenty years old a

t the time of his plea. He had completed the eleventh grade before

dropping out of school. T

he prese ntence r eport ind icates th at the defendant had committed severa l juvenile offenses beginning as early as age 13, including four sepa rate theft offenses, two malicious mischief1 Effective July 4, 2 002 , the legislatu re has a men ded Te nnesse e Co de A nnota ted sec tion 40 -3 5-114 by

renumbering original enhancement f actors (1) thru (2) and incl uding as enhanc ement f actor (1) that

"the of fense was an act of ter rorism , or wa s related to an a ct of terro rism." -2- offense s, an agg

ravate d burgla

ry , and two p

robation violati ons. As a

n adult, the defendant was charged with misdemeanor theft, which resulted in the deferral of a disposition upon the payment of costs and the issua

nce of a restraining ord

er. He w as sente

nced to th irty day s' prob ation and

fifty hours of community service for a criminal trespass conviction.
At the sentenc ing hearing , Dr. Eri c S. Engu m, a clinic al psy

cholog ist specia

lizing in neuro psycholo gy

and fore nsic psy cholog y, t

estifie d t hat he had performed an evaluation of the defenda nt. Dr. Engum

concluded that the defendant had an I .Q. of 83 and performed at a fifth-gr ade level. The defendant had a long history of impulse control difficulties and had received treatment at Family Ministrie s, Peninsul a

Psychiatric Hospital, and the Youth Eme rgency Shelter. There were indications of attention deficit disorder, immaturity, and f amily instability . The defendant exhibited severe behavior

al proble ms after b eing se

xually assaulte d by

three ol der boy s at a re sidential facility and was transferred from Family Ministries to Peninsula Psychiat ric Ho spital. Dr. Engum concluded that the defendant was not psy chotic but had the social and emotional development of only a ten- or eleven-y ear-old. It wa s his opinio n that although the defenda nt h ad a major de pressive disorder which required treatment, he was competent to stand trial, understood the na ture of the lega l procee dings, and was able t o effec tivel y interact with his at torne y. Dr. Engu m conceded tha t the defendant was fully awa

re of his behavior and

capable of appreciating

the wron gfulne ss of his actions. The trial court found three enhancement fa c tors under Tennessee Code Annotated section 40-35-114: 1 (1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (4) a victim of the offense was particularly vulnerable because of ag e or physica l or mental disability; and (9) the defendant possessed or employ ed a fir earm, e xplosive device, or

other de adly weapon during the commission of the offense. Tenn. Code Ann. § 40-35-114(1), (4), (9) (1997). In mit igation , the tria

l court ma

de the fo llowing o

bservat ions: [T]his young ma

n does not possess the normal attributes of the average citizen. And he does have some serious psychologic al problems. And this [c]ourt does take that into consideration. However, because of the range of punishment and starting at the midpoint of this, the [c]ourt does so find that the enha nce ment factors by f ar and away dominate

. . . any mitigation in this sentence

.-3- * * * I gave him some weight for his ment al def iciencies, but find that the aggrava ting factors so outweigh any

mitigating factors that, in effect, ther e are none. In this appeal, the defendant argues that the following mitigating factors are

applicable under Tennessee Code Annotated section 40-35-113: (3) Substantial grounds exist tending to excu se or jus tify the defe ndant's criminal conduct, though f

ailing to establish a defen se; (6) the defendant, because of his y outh, lacked substantial judgment in committing the offense; (8) the defendant was suffer ing fro m a mental

condition that sig nifican

tly r educed his culpability for the off

ense. SeeTenn. Code Ann. § 40-35-113(3), (6), (8). The defendant also asserts that the trial court should have attributed more we

ight tothe mitigating factors, particularly his relative youth and

his mental condition. When there is a challenge to the leng th, range, or manner of servic e of a sent ence, it is the duty of this court

to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial cou

rt consid ered the sentenc ing principles a

nd all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 1 66, 169 (Tenn. 1991 ); see State v. Jones , 883 S.W.2d 597, 600 (Tenn. 1994). “If the trial cour t app lies inappropriate factors or otherwis e fails to follow the 1989 Sentencing Act, the presumption of corre ctness falls.” State v. Shelton , 854 S.W.2d 11 6, 123 (Te nn. Crim. App. 1992 ). The Se ntencing Commission Co mments provide that the burden is on the defendant to show t he impropriety of the se ntence. Tenn. Code Ann. § 40- 35-401, Se

ntencing Commission Co mments. Our review requires an analy sis of (1) the evidence, if any , received at the trial and sentencing hearin g; (2) the presentence rep ort; (3) the principles of sentencing and the arg uments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any

mitigating or enhancing factors; (6) any statements made by the de fendant in his own behalf; and (7) the defend ant's potential for rehabilitation or tre atmen t. Tenn. Code Ann. §§ 40-35-102, -103, -210; Statev. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). If the trial court' s findings of fact are adequa

tely supported by the record, this court may not modify

the sentence even if it would have preferred a differe

nt result. State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. App. 1991).
In calculating the sentence for a Class A felony conviction, the presumptive sentence is the midpoi nt withi n the range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). If th

ere ar e enhancement f

actors but no mitig ating f

actors, the trial

court sha ll set the sentence at or above the midpoint. Tenn. Code Ann. § 40-35-210(d). If there ar e mitigating factors butno enhancement f

actors, the trial

court sha ll set the sentence at or below the midpoint. Id. A-4-

sentence involving both enhancement and mitigating fac tors requires an assignment of rel ative weight for the e nhance ment facto rs as a me ans of increasing the sentence. Te nn. Code Ann. § 40-35-210( e). The sentence must then be reduced within the rang e by any weight assigned to the mitigating factors present. Id.
In this case, the record establishes that the trial court addre ssed the appr opriate sentencing principle s. The trial judge concluded that the applicable e nhancement factors so outweighe d any mitigati on to which the defendant was entitled because of his youth, lack of judgment, or mental condition that a twe

nty -five-y ear sen tence, t he maximum w ithin the r ange, was appropriat e. Althou gh t he defe

ndant' s diminishe d mental c ondition wo uld not justi fy

a brutal murder o f this nature, the record establishes that he may have lacked judgment

due to his youth or mental condition. It is our view, however, that while this court and perhaps others might have imposed a more lenient sentence due to the

existence

of miti gating fa ctors, the trial court acted within its discretionary authority by a ttributing limited we

ight to those fac tors. Accordingly , the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE