IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 21, 2003 Session

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, entered a guilty plea to second degree murder. The trial court

imposed a twenty-five-year sentence. In 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

GARY R.WADE, P.J., delivered the opinion of the court, in which THOMAS T.WOODALL and JAMES

CURWOOD WITT, JR., JJ., joined.

Edward C. Miller, District Public Defender, for the appellant, Dexter Lee Spence.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and

Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On January 17, 2001, the ninety-six-year-old victim, Alleen Stansberry, was fatally shot in

the head. On the following day, a neighbor discovered her body within six feet of the door to her

residence. Because the defendant had been seen in the area of the victim's residence on the date of

the shooting, he was questioned by law enforcement officers. Although the defendant claimed that

his shotgun had accidently discharged when he stopped at the residence to ask the victim for

permission to hunt on her property, Dr. Cleland Blake, a forensic pathologist, concluded that the path

of the wound was in a downward motion through the body of the victim. It was his opinion that the

victim was falling as she was shot and that the barrel of the weapon was no more than a foot away

when it discharged.

The defendant, who pled guilty to second degree murder as charged in the indictment, was

twenty years old at the time of his plea. He had completed the eleventh grade before dropping out

of school. The presentence report indicates that the defendant had committed several juvenile

offenses beginning as early as age 13, including four separate theft offenses, two malicious mischief
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Effective July 4, 2002, the legislature has amended Tennessee Code Annotated section 40-35-114 by

renumbering original enhancement factors (1) thru (2) and including as enhancement factor (1) that "the offense was an

act of terrorism, or was related to an act of terrorism."

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offenses, an aggravated burglary, and two probation violations. As an adult, the defendant was

charged with misdemeanor theft, which resulted in the deferral of a disposition upon the payment

of costs and the issuance of a restraining order. He was sentenced to thirty days' probation and fifty

hours of community service for a criminal trespass conviction.

At the sentencing hearing, Dr. Eric S. Engum, a clinical psychologist specializing in

neuropsychology and forensic psychology, testified that he had performed an evaluation of the

defendant. Dr. Engum concluded that the defendant had an I.Q. of 83 and performed at a fifth-grade

level. The defendant had a long history of impulse control difficulties and had received treatment

at Family Ministries, Peninsula Psychiatric Hospital, and the Youth Emergency Shelter. There were

indications of attention deficit disorder, immaturity, and family instability. The defendant exhibited

severe behavioral problems after being sexually assaulted by three older boys at a residential facility

and was transferred from Family Ministries to Peninsula PsychiatricHospital. Dr. Engum concluded

that the defendant was not psychotic but had the social and emotional development of only a ten- or

eleven-year-old. It was his opinion that although the defendant had a major depressive disorder

which required treatment, he was competent to stand trial, understood the nature of the legal

proceedings, and was able to effectively interact with his attorney. Dr. Engum conceded that the

defendant was fully aware of his behavior and capable of appreciating the wrongfulness of his

actions.

The trial court found three enhancement factors 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 age or physical or

mental disability; and

(9) the defendant possessed or employed a firearm, explosive device, or other deadly

weapon during the commission of the offense.

Tenn. Code Ann. § 40-35-114(1), (4), (9) (1997).

In mitigation, the trial court made the following observations:

[T]his young man does not possess the normal attributes of the average citizen. And

he does have some serious psychological 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 enhancement factors by far and

away dominate . . . any mitigation in this sentence.
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* * *

I gave him some weight for his mental deficiencies, but find that the aggravating

factors so outweigh any mitigating factors that, in effect, there 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 excuse or justify the defendant's criminal

conduct, though failing to establish a defense; 

(6) the defendant, because of his youth, lacked substantial judgment in committing

the offense;

(8) the defendant was suffering from a mental condition that significantly reduced his

culpability for the offense.

See Tenn. Code Ann. § 40-35-113(3), (6), (8). The defendant also asserts that the trial court should

have attributed more weight to the mitigating factors, particularly his relative youth and his mental

condition.

When there is a challenge to the length, range, or manner of service of a sentence, 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 court considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see State v.

Jones, 883 S.W.2d 597, 600 (Tenn. 1994). “If the trial court applies inappropriate factors or

otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls.” State v.

Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments

provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code

Ann. § 40-35-401, Sentencing Commission Comments.

Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing

hearing; (2) the presentence report; (3) the principles of sentencing and the arguments 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 defendant in his own behalf; and (7) the

defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;

State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). If the trial court's findings of fact

are adequately supported by the record, this court may not modify the sentence even if it would have

preferred a different 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

midpoint within the range if there are no enhancement or mitigating factors. Tenn. Code Ann. §

40-35-210(c). If there are enhancement factors but no mitigating factors, the trial court shall set the

sentence at or above the midpoint. Tenn. Code Ann. § 40-35-210(d). If there are mitigating factors

but no enhancement factors, the trial court shall set the sentence at or below the midpoint. Id. A
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sentence involving both enhancement and mitigating factors requires an assignment of relative

weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. §

40-35-210(e). The sentence must then be reduced within the range by any weight assigned to the

mitigating factors present. Id.

In this case, the record establishes that the trial court addressed the appropriate sentencing

principles. The trial judge concluded that the applicable enhancement factors so outweighed any

mitigation to which the defendant was entitled because of his youth, lack of judgment, or mental

condition that a twenty-five-year sentence, the maximum within the range, was appropriate.

Although the defendant's diminished mental condition would not justify a brutal murder of 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 mitigating factors, the trial court acted within its discretionary

authority by attributing limited weight to those factors.

Accordingly, the judgment is affirmed.

___________________________________ 

GARY R. WADE, PRESIDING JUDGE