### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Jul y 1, 200 8
STA TE OF TEN NES SEE v. JOHN DA VID MC DA NIEL

Direc t Appeal from the Circ uit Court forObion County No. CO7-172 William B. Acre e, Jr., Judge

No. W2008-00008-C CA-R 3-CD - Filed October 2, 2008

The de fendant, John D avid McDaniel, was c onvicted of thre e counts of f raudule ntly obtaining a Schedule I I co n t rol led substance , one count of felony e vading ar

rest, one c ount of misdemeanor evading a rre st, and one c ount of theft of pr operty with a value of l ess t han $500. The de fendant was sentenc ed to four years for his convictions for f raudule ntly obtaining a Schedule II controlled
su bs ta nc e a ndfelon y evad in g a rr e st. He re c e ive d a

se nte nc e of

11 mon ths a nd29 days fo r h is convictions for misdemeanor eva ding arre st and theft of property with a value of less than $500. The defe ndant filed a motion for new t rial which was denied afte r a hearing be fore the trial court. The defe ndant filed a timely notice of appea l. The de fendant argue s on appea l that the trial court e rre d by sentenc i n g t h e d ef

en dant to the maximum sentence within the range for his convic tions. In response , the state a

rgues that the a

ppellate c ourt does not have jurisdiction to con sider the defe ndant’s appe al. The state further argue s that the sentenc ing determination made by the trial court was not i n err or. Following our review of the parties’ brief s, the rec ord, and the applicable law, we
a ff ir m th e jud gme nts of

the tr ia l c ou rt

. Te nn. R . A pp. P . 3 App e al a s o f R igh t; Judg me nt s o f the Ci r c uit Co ur t A ff

ir me d

J. C. M C L IN , J., delivere d the opinion of t he court, in which J OHN E VERET T W I L L I AMS and A LA N E. G LE NN , JJ., joined.

Jo se ph P. A tni p, Di stric t Pu bli c De fe nd e r, a ndW ill ia m K . Rand olp h, As si stant D ist ri c t Pu bli c De fe nd e r, fo r the app e lla nt, Jo hn Da vidMc Danie l.

Robert E

. C o oper, Jr ., Attorney Ge nera l and Reporter ; Rachel W est Harmon, Assistant Attorney Gene ral; Thomas A. Thoma s, District Attorney Ge nera l; and Jam es C annon, Assistant District Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.
OP IN ION

I. BACKGROUND

James Turne r testified that he was e mployed as a pha rmac ist at the Kenton Drug Company in Kenton, Tenne ssee, on Febr uary 19, 2007. Accor ding to Mr. Turne r, on that day, a presc ription2

for Lortab was pr esente d to the ph ar m ac y for a patient named “ David McD aniel.” Mr . Turner
e xp la ine d th a t L orta

b w a s th e br a ndna me fo r the na rc oti c pa in r e lie ve r H yd ro c od on e , a Sc he du le II c on tr oll e d s ub stanc e . T he pr e sc ri pti on wa s w ri tte n to pe rm it o ne re fi ll.

Mr. Turne r further testified that on February 26, 2007, another presc ription for Lortab was submitt ed to the pharmacy for a patient wit h the name “Linda Moran.” The pre scription was mar ked “no re fills.” Shortly thereaf ter, Mr. Turner wa s contac ted by another pharma cist who alerted Mr. Turner to the pos sibili ty that the t wo prescriptions were fraudulent. Mr. Turne r fa xed a c opy of the presc riptions to Dr. Cox, the doctor who ha d purportedly issued the presc riptions. Dr. Cox informed Mr. Turne r that he ha d not written presc riptions f or Mr. McDa niel or Ms. Mor an. Three or four days later, Mr . Turner

was c ontacted ove r the telephone about a refill of the de fendant’s presc ription. Mr. Turner spoke with the def

endant ove r the phone and informe d him that it was too soon for the presc ription to be ref

illed. The def

endant told M r. Turner he w as going out of town and ne eded the medici n e

. M r

. T u r n e r

in f o r me d h im

th a t h e w o u ldma

k e a n e x c e p ti o n f

o r th e d e f e n d a n t. T he de fe nd a nt i nd ic a te d th a t he wo uldarrive wi thi n a n h ou r t o p ic k u p h is r e fi ll.

Mr. Turne r testified that after ending his phone call with the defendant, he walked a cross the street a nd spoke with K enton Police Chief Steve Meeks. Chief Mee ks came to the store and w aited for the de fendant to come and pick up his pre scription. Within the hour, the de fendant a rrived at the pharma cy and Mr . Turner filled the pre scription. Immediately there afte r, Chief Mee ks walked up behind the def

endant an d i n fo rm ed h im that he was unde r ar rest for forging pre scriptions. The defe ndant broke fre e from Chief Meeks whe n he attempted to plac e him in custody and ra n from the store. Mr. Turner and Chief Meeks chase d the defe ndant from the store to his carp ar k ed near by. Ac c or din g to Mr . T urne r, he la st s a w the de fe nd a nt as he dr ov e of f with a K e nto n Po lic e Of fi c e r i n pu rs uit

. Gre gory Cox testified t hat he was a medical doctor in Fult on, Kentucky. H e identified the two fraudulent presc riptions written for Lortab and c onfirmed that his signature on the pre scriptions ha d b e e n f

or ge d. Dr . Co x s ta te d th a t he did no t kn ow ho w the de fe nd a nt o btaine d th e pr e sc ri pti on s, beca use the pre scription pads we re normally kept in a locked sa fe in his offic e.
On c ro ss- e xa min a tio n, Dr . Co x te sti fi e d th a t L orta b was a con tr oll e d s ub stanc e be c aus e it
was a ddictive. He stated that he would neve r write a presc ription for 20 pills per day be cause Lortab
a lso c on ta ine d T yle no l, a dr ug wh ic h is tox ic to the liv e r i n la rg e a mou nts . D r. Cox op ine d th a t if the def endant c onsumed twenty Lorta b p er d ay, he would be too impaired or intoxicated to drive safe ly. Dr. C o x a c k n o w le d g e d th a t i t w a s p o s s ib le f o r th e d e f e n d a n t t o d e v e lo p a

to le r a n c e f

or Lo rt ab. He c on c e de d th a t w itha hig he r t ole ranc e , it mig ht b e po ssi ble fo r the de fe nd a nt t o c on su me a hig he r q ua nti ty o f L orta

b a ndma int a in f

un c tio na lit y f

or c e rt a in t a sk s.
Steve Mee ks testified t hat he wa s the Chief of the K enton Police Depa rtment when he was contac ted by Jim Turner on Ma rch 2, 2007, and informed that a n individ u al wa s co m i n g to the pharma cy to pick up a f

orged p re s cripti on. Chief Mee ks alerte d Offic er Bra dford, who w aited outside the pharma cy in a patrol car

. Chief Meeks enter ed the pharma cy and w aited in an of fice for the def endant to pick up the pr escription. The defenda nt arrived wit hin the hour, and as Mr. Turne r filled the pre scription, one of the pharma cy employee s came to the office and informe d Chief Mee ks3

that the def

endant wa s at the counter

. Chief Meeks walked up to the defe ndant at the counte r and
a dv ise d h im that he wa s u nd e r a rr e st f or fo rg ing pr e sc ri pti on s.
Chief Meeks testified that the defe ndant ran from the store, dropped his hat, sungla sses, and watch be fore jumping into his c ar. Chief Meeks wa s able to dete rmine the make , color a nd partial license plate of the defendant’s car. From that information, he was able to asce rtain the de fenda nt’s identity and determine that the defe ndant lived near Union City. C hief Mee ks contac ted the Union City P olice De partment who subse quently appre hended the defe ndant in Union City. C hief Mee ks trave led to the Union City P olice De partment a nd was pr es ent during t he questioning of the defe ndant. The de fendant a dmitted f orging the presc riptions a nd attempting to get them filled at the Kenton Dr

ug Company. Chief Meeks identified the defendant as the m an he struggle d with in the pharma cy.
Thomas B radf

ord t estified that he was an police of fice r with the Ke nton Poli ce D epartment on Marc h 2, 2007 when Chi ef Meeks called him on his cell phone and asked him to bring the patrol
car to the p h armacy. He stated that he w aited outside until he saw the de fendant run from the pharma cy with Chief Mee ks and Mr. Turner in pur suit. Offic er Bradfor d stated that he attempted to block the def

endant’ s car , but the defendant was able to pull away from the c urb and drive away. Offic er Bra dford a ctivated his blue lights and pursued the defe ndant out of t own at speeds up to 100 mil e s p e r h ou r. Af

te r b ri e fl y c ha sin g th e de fe nd a nt, Of fi c e r B ra df

or d b ro ke of

f h is p ur su it d ue to his conce rn for

public safe ty. Investigator Chris Cummings of the Union City P olice Depa rtment testified that on Marc h 2, 2007, he was alerted by Chief Meeks of the Kenton Police Depa rtment about t h e d ef

en d ant’s actions and notified that an ar rest wa rra nt had bee n issued. Inv est igator Cummings l ocate d and
arr ested the de fendant at Linda Mora n’s hous e. Investigator Cumm ings stated that Linda Moran was the de fe nd a nt’ s si ste r. A s e arc h o f the de fe nd a nt’ s v e hic le wa s p e rf orm ed inc ide nt t o th e arr e st. Offic ers r ecove red a

presc ription pad from the H illview Medical Center . Offic er s also rec overe d
sc ra ps of no te bo ok pa pe r on wh ic h it

app e are d th a t th e de fe nd a nt h a d p ra c tic e d w ri tin g p re sc ri pti on s. Investigator Cummi ngs questioned the defe ndant who voluntarily agre ed to give a stateme nt. The defe ndant adm itted to writing two prescriptions for nine ty Lortab. The defe ndant wrote one presc ription under the na me “Da vid McDanie l,” and the othe r pre scr i p tion under the de fenda nt’s sister’s name , “Linda Mor an.” I n his written statement, the de fendant asserte d that he did not steal the pr e sc ri pti on pad . H e c la ime d th a t th e pa d w a s g ive n to him by a frie ndwh om h e re fu se d to name. I n his statement, t he defenda nt acknow ledged that he practice d writing the pre scriptions on a piec e of note book paper which was rec overe d from his ca r. Inve stigator Cummi ngs testified that during questioning and while making his statement to police offic ers, the de fendant was ca lm and cooper ative and did not appea r to be intoxicate d or impaired. I nvestigator Cummings identified the de fe nd a nt a s th e ind ivi du a l w ho ma de the state me nt, ini tia le d it , a ndsig ne d it

.

Chanee McDa niel testified that the defe ndant was her husband. She stated that the def endant had struggled with an a ddiction to Lortab for at least two yea rs. She stated that the de fendant took

“ a lot ” of Lo rt ab. Ac c or din g to Ms

. McD anie l, i f the de fe nd a nt d id n ot h a ve his pil ls, he be c a me un be ara ble . T he de fe nd a nt h a d a ru ptu re d d isc in his ba c k wh ic h c aus e d h im i mme ns e pa in. Ms.4

Mc Danie l st a te d that sin c e his arr e st, the de fe nd a nt ha d be e n pla c e d on a dif fe re nt dru g f

or the la st month called Suboxen which w as p resc ribed for chronic pain re lief to individuals who did not respond we ll to narcotic pa in medication. She stated that ove r the la s t m o n t h , t he def endant ha d
wo rk e d c le a nin g a ndre bu ild ing ho us e s.
The de fendant testified that he had first been placed on Lortab in 1997 due to a back injury. He state d that the L5 disc in his back ha d ruptured, but at the time was not consider ed serious enough to w arr ant surgical repair. He stated that within a year or two, the ruptu re d d i s c worsened dramatically and re quired surge ry in 2000. Despite s u rg er y, the def endant c ontinued to suffer chronic , sever e pain. The def en d an t stated that he ne eded another surge ry, but did not have insurance to pay for the operation.

The de fendant testified that afte r his initial inj ury, his doctor ha d l egitimately presc ribed Lortab, 120 pe r month, or four pe r day, f or his chronic back pain. In addition, the doctor pr escribed Soma, a muscle re laxer , three times per day. T he def en dant conf

essed that he had built up a toleranc e for

and addic tion to Lortab which ca used hi m to commit the offense s in the instant case. He state d that he did not reme mber much about M arc h 2, 2007. The defenda nt testified t hat at the time of his arre st, h e was taking twe nty ten milli gram Lortab pills per day, the highe st dosage permit te d b y p r e s c r ip ti o n

. T h e d e f e n d a n t s tate d th a t s in c e h is arr e s t, h e h a d c e a s e d ta k in g L o r tab and cur rently took Suboxen, a non-na rcotic pain relieve r.
On cr oss-exa mination, the defe n d an t ac knowledged that he may have forge d the two presc riptions, but he was unable to rec all. He s t at ed t h at he did not remember taking the presc riptions to the pha

rmac y on February 19th and Februa ry 26th. He a lso did not remember te lling In ve sti gator

Cum min gs that he pr a c tic e d f or gin g th e pr e sc ri pti on s on the no te bo ok pa pe r f ou ndin his c ar. He wa s un able to re c a ll c on ta c tin g the ph arm a c y f or a re fi ll o r g oin g to pic k u p th e re fi ll at the pharmacy on Ma

rch 2nd. H e also could not reme mber running from C hief Meeks or driving at high speeds to eva de Of fice r Bradf

ord. Howe ver, the defe ndant re membere d hi s arr est by In ve sti gator

Cum min gs , b ut h e didno t r e c a ll m akin g, ini tia lin g o r s ign ing his state me nt.
The de fendant was found guilty of four Class D felonies, including thre e co unts of fraudulently obta ining a controlled substance and one count of felony evading arr est. The de fenda nt was also convicted of misdemeanor evading arr est and theft of property w ith a v al u e o f l es s than $500, both Class A misdemeanors. At sentenc ing, the trial court de termined that the de fendant had two p r io r c o n v ic ti o n s : a

tw e n ty

- y e ar

o ldf e lo n y , a n d a

r e c e n t C la s s C m is d e me a n o r

. T h e court further determined that the def

endant wa s a Range I , standard offe nder. The court noted that in the
rec ent case where the jury found t he defenda nt guilty of a Class C misdemeanor , the def endant ha d been indicte d for a ggravated burglary, aggra vated a ssault and aggravate d robbery – all felony of fe ns e s. Th e c ou rt

no te d th a t it

wa s lo ok ing be yo ndthe ju ry verdic t a ndfo un d th a t th e fa c ts underlying the indi ct ed offe nses constituted prior c riminal behavior. T he trial c ourt imposed a sentenc e of f

our yea rs for his Class D fe lonies, and 11 months, 29 days for his Class A misdemeanor convictions based on the defe ndant’s prior convic tions and prior criminal behavior. The defe ndant’s sentenc es we re or dere d to run concur rently for a tot al of four years in conf inement. The de fendant fi le d a tim e ly n oti c e of

app e a l.5 II. AN AL YSI S On appe al, the def

endant a rgues that the trial court erre d by sentenc ing the defe ndant to the
ma ximum w ith in the rang e fo r h is f e lon y c on vic tio ns a ndto th e st atutory maximum f or his mis de me a no r c on vic tio ns

. Ho we ve r, be fo re we un de rt ake re vie w o f the iss ue raise d b y th e de fe nd a nt, w e mus t f ir st
a dd re ss a thr e sh oldiss ue of

jurisd ic tio n r a ise d b y th e state . Sp e c if ic a lly , th e state arg ue s th a t th is court doe s not have the jurisdiction to consider the defe ndant’s appe al bec ause the appellate rec ord
c on ta ins no writt e n o rd e r d e ny ing the de fe nd a nt’ s mo tio n f or ne w t ri a l.

The Te nnessee Rules of Appellate Procedur e re quire us to determine in every case whether we ha ve the jurisdiction to consider the appea l. Tenn. R. App. P

. 13(b). In criminal cases, a n appea l
as a matter of right lies from a final j udgment of conviction. Tenn. R. App. P

. 3(b). An appea l may be ini tiate d if

fi le d w ith in thirty ( 30 ) d a ys of the date of

fi na l ju dg me nt. Te nn . R. Ap p. P. 4 (a ). Rul e 4(c) states that if the de fendant files a timely motion for new tria l, “the ti me for appea l for all parties shall run from entry of the order denying a ne w trial or gr anting or denying a ny other such motion
or pe tit ion .” Te nn . R. Ap p. P. 4 (c ); see State v . Jame s Lee Forem an, II ., No. M2002-02595-CCAR3-CD, 2004 WL 404696, at *2 (Te nn. Crim. App. at Nashville, Mar . 4, 2004). In Foreman , th is court c oncluded that “ [u]ntil the trial court denies the motion for new t rial, this [c]ourt does not have jurisdiction to hear the a

ppeal.” Id . In re ndering its decis i o n , t h e court in Foreman no te d th a t in order for a denial of a

motion for new trial to be valid, the court must i ssue a written order and the order must be entere d into the court’s minu tes. Id .; se e als o S tat e v . La nd y G. Kas h , No. 01C01- 9705-CR-00179, 1998 WL 74352 (Tenn. Crim. App. at Nashville, Feb. 23, 1998) (internal citations omitted). Upon re view, we note that the appe llate re cord in this case contains a copy of the de fenda nt’s mot ionfo r n e w t

ri a l a nda tr a ns c ri pt o f the he ari ng he ld o n th e de fe nd a nt’ s mo tio n f or ne w t ri a l. Also included in the rec ord is a copy of an “Or der Nunc Pro Tunc Denying Mot ion for Ne w Trial.” This written order

was filed w ith the court on May 28, 2008, and dates back to a n order enter ed on the trial court’s docket on De cembe r 5, 2007, denying the defendant’s motion for new tria l. The defe ndant’s notice of appea l w as filed in this case on Dec ember 28, 2007. The filing of the notice of appe al was w ell within the thirty-day period running from the date of the e ntry of t he orde r on the trial court’s doc ket. See Tenn. R. App. P

. 4(a)

. Because t his written order reflec ts the entry of the same orde r on the trial court’s docket on Dec ember 5, 2007, the def endant’ s motion for new trial wa s properly denied. The ref

ore, w e conc lude that this appea l is properly bef o re t his court. See Tenn. R. App. P. (3); (4)(a )-( c).

We turn now to the issue raised by the def endant. The defe ndant ar gues that the trial c ourt err ed by improperly en h ancing his sentences to the maximum within the range for his fe lony convictions and to the s tatutory maximum for his misdemeanor convictions. The de fendant explains that in a prior c ase he was i n d i ct ed for aggra vated bur glary, a ggravated assault and a ggravated robbery. Howeve r, af

ter c onsidering the evide nce, a j u ry found him gui lty of criminal trespa ss, a Class C mi sdemea nor. The defenda nt argue s that the t rial court improperly enha nced his sente nces6

afte r fi n d ing that the alleged f acts surr ounding the char ges for which he ha d been a cquitted in the prior ca se constituted “c riminal behavior.”

When a defe ndant cha llenges the length a nd manner of ser vice of

a sente nce, this court conducts a

de novo re view of the rec ord with a presumption that the trial court’s determinations are
corr ect. Te nn. Code Ann. § 40-35- 401. This presumption of corr ectne ss is conditio n ed u p o n an a ff irmativ e 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 rele vant fa cts and c ircumstance s. State v. Pe ttus , 986 S.W.2d 540, 543-44 (T en n

. 1999). Furthermore , we e mphasize that fac ts releva nt to sentencing must only be establ i s h ed b y a preponde ranc e of the evidenc e and not be yond a reasonable doubt. Sta te v . W inf ie ld , 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v. Carico , 968 S.W .2 d 280 , 287 (T e nn . 199 8) ). If ou r r e vie w r e fl e c ts that the trial court followed the stat u t o ry sentencing proce dure, imposed a lawful sente nce a fter having given due c onsideration and pr oper w eight to the fac tors and princ iples set out under the sentenc ing law, and made findings of fac t that a re adequately supported by the rec ord, then we may not modify the s entenc e even i f we would have pr efe rre d a diffe rent re sult. State v. Fletc her , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991) . Howeve r, if the rec ord shows that the trial court failed to consider the se ntencing princ iples and all re levant fa cts and c ircumstance s, then revie w of the challenge d sentenc e is purely de novo without the presumption of corre ctness. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991)

. On appe al, the party challenging the se ntence imposed by the trial court has the burd en of establishing that the sentenc e is err oneous. See Tenn. Code Ann. § 40- 35-401, Sentenc ing Commi ssion Com ments. We will uphold the s entenc e im posed by the t rial court if: (1) the sentence complies with our sentenc ing statutes, and (2) the trial cour t’s findings are adequately supported by the re cord. Se e Sta te v . A rn e tt , 49 S.W .3 d 25 0, 25 7 (Tenn. 20 01 ); see also Tenn. Code Ann. § 40-35-210. I f this court dete rmines t hat t he sentence is er roneous, it “may a ffirm, va cate , set aside, inc re a se or

re du c e the se nte nc e imp os e d o r r e ma ndthe c a se or di rect th e entry o f an a pp ro pria te order .” Te nn. Code Ann. § 40-35- 402(c)

. The mec han ics of ar

riving at an a

ppropriate sentenc e ar e spelled out in the Criminal Sentencing Reform Act of 1989 and its amendments. The trial court is fr ee to se lect any se ntence within the applicable r ange so long a s the length of the sen t en ce co m p l ies with the purposes a nd p r in c ip le s o f th e Se n te n c ing A ct. Id

. § 40- 35 -2 10 ; see also State v. Carter , 254 S.W.3d 335, 343 (Tenn. 2008) (n o t i n g t h at s uch princ iples encompa ss themes of punishment fitting of the crime, de te rr e nc e , a nd re ha

bil itatio n)

. Ho we ve r, the tr ia l cou rt is re qu ir e d to con sid e r: (1 ) the e vid e nc e , if any, re ceive d at the trial a nd the sentenc ing he aring; (2) the prese ntence report; (3) the princ iples of
sen tencing and a

rguments as to sentenc ing alternatives; (4) the nature a nd char acte ristics of the criminal conduc t involved; (5) evidenc e and inf ormation offe red by the parties on the enhanc ement and mitigating factors se t fo rt h in Tennesse e Code Annotated sec tions 40-35-113 and 40-35- 114; (6) a ny statistical information provided by the A dminist rative Office of t he Courts as to Tenne ssee se nte nc ing pr a c tic e s f

or sim ila r of fe ns e s; an d (7) a ny state me nt the de fe nd a nt wis he s to mak e on his
own b eh alf a

bout sentencing. Te nn. Code Ann. § 40-35- 210(b). Rega rding the application of enhanc ement and mitigating fa ctors, we find the following instruction by our supre me court succinct
a ndhe lpf ul:7

[A] trial court’s w eighing of various mit igating and enh an ceme nt fac tors has bee n left to the trial court’s sound discretion. Since the Sente ncing Act ha s been r evised to r e n d e r t h e s e f a c t o r s m e r e l y a d v i s o r y , t h a td i s c r e t i o n h a s b e e n b r o a d e n e d

. T h us , even if a trial court rec ognizes and enunciates sever al applicable enhancement fac tors, it does not abuse its discretion if it does not incre ase the sentenc e beyond the minimum on the basis of those f actor s. Sim ilarly, if the trial c ourt recognizes a nd
e nu nc ia te s sev e ra l app lic able mit igatin g f a c tor s, it d oe s n ot a

bu se its dis c re tio n if

it does not reduc e the sentence from the maximum on the basis of t hose factors. The appellate courts ar e therefor e left with a narr ower set of cir cumstance s in which they might find that a trial c ourt has abuse d its discretion in setting the length of a defe ndant’s sente nce.
Carter , 254 S.W.3d at 345-46. Upon re view of the availa b l e re co rd, we note that the trial c ourt enha nced the defe ndant’s sent en ce s b as ed i n p ar t , u p o n i t s co n s i d er at i o n o f t h e u n d er l y i n g fa ct s an d ci rc u m s t an ce s surrounding the def endant’ s previous trial and c onviction for misdemea nor criminal trespassing. Specif ically, the court stated:

[The de fendant] was indicted in Case No. 7-70 in this court for sever al crimes, those be ing aggra vated bur glary, a ggravated assault and aggr avate d robbery. Aggra vated r obbery is a Class B felony, aggra vated a ssault and aggr avate d burglary
are Cla ss C fe lon ie s. [T he de fe nd a nt] we nt to tr ial

. He was fo un d g uil ty b y th e jury o f a c la ss C misdemeanor. In t hat particular case, the evidenc e was quite – or t he verdict of the jury w a s a

ve ry inc on sis te nt v e rd ic t. T he e vid e nc e pr e se nte d b y th e State in the c a se was th at [ the de fe nd a nt] we nt i nto a n e lde rl y g e ntl e ma n’ s h ome a ndfo rc e fu lly robbed him and a ssaulted him, and broke into the home. T h e j u ry fo und him not gu ilt y o f tho se of

fe ns e s; h ow e ver, th ey di d f indhim gu ilt y o f b e ing the re , b e c aus e the y f ou ndhim gu ilt y o f the Cla ss C mis de me a no r o f c ri min a l tr e sp a ss. I’m entitled to, under

the sentenc ing laws, to consider e vidence prese nted in another tr ia l, e ve n th ou gh that mi gh t – the re ma y n ot b e a c on vic tion the re . T he Cou rt is satisfied in that ca se that the e vidence prese nted would have supported a c onviction of aggr avate d robbery, aggra vated a ssault and aggr avate d burglary.
In short, the C ourt is considering that evidenc e in that other c ase in de termining the sentenc e to be a

pplied in this case; that is, criminal conduc t i n ad d i t ion to that
nece ssary to establish a r ange, se ntencing enhancing fa ctor number 1.

The trial c ourt consider ed the of fense s for which the def

endant wa s acquitted in the prior trial as “c riminal behavior” and used them as a basis for enhanc ement of the defe ndant’s sente nces. See Te nn . Co de An n. § 4 0- 35 -1 14 (1 ). W e no te that our su pr e me c ou rt ha s pre vio us ly co nc lud e d th a t a trial court may c onsider fa cts and c ircumstance s ar i s i n g in another c ase e ven if it results in anW e not e t hat t he defenda nt a r gues t hat t he t r i al c our t e r r ed by c ons i der i ng t he i ndi ct ed of f ens es unde r l yi ng 1

t h e d efe ndant ’ s pr i or m i s dem ea nor cr i m i nal t r es pas s i ng convi ct i on i n vi ol at i on of t he U ni t ed St at es Supr em e C o u rt dec i s i ons i n A pp r endi v. New Je r s ey , 530 U

. S. 466 ( 2000) a nd B l akel y v
. W as hi ngt on , 54 2 U

. S. 29 6 (20 0 4 ). C o n t rary t o t he as s er t i on m ade by t he defenda nt , t he Cour t ’ s de ci s i ons i n Appr endi a nd B la k e ly do no t a ff ect t h e t ri al co u rt ’s aut hor i t y or a bi l i t y t o a ppl y t hi s e nhanc i ng f ac t or under t he 2005 am endm ent s t o t he Se nt enc i ng A ct

. The defenda nt
w as s ent enc ed i n 2007.
8 a c q u itta l o f th e c h ar g e s a g a in s t th e d e f e n d a n t. State v . W

inf ie ld , 23 S.W.3d 279, 282-83 (Te nn. 2000). Specific ally, our supre me court has stated:
[A ] v e rd ic t of ac qu itt a l do e s n ot p re c lud e the [c ou rt ] f ro m c on sid e ri ng fa c ts un derly in g a c ha

rg e fo r w hic h th e re ha s b e e n a n a c qu itt a l, p ro vid e d th a t th e fa c ts have be en esta

blished by a pre pondera n ce o f the e vidence . [ See U nited States v. Wa tts , 519 U.S. 148, 156 (1997)]. The rationale [is] twofold: first, a n acquittal require s a finding of re asonable doubt by the jury b u t d o es not establish fac tual innocenc e; and se cond, fa cts re l evant to sentencing must be proven by a preponde ranc e of the evidenc e and not be yond a re asonable doubt. Id

. Id

. at 282-83 (c iting Un ite d S tat e s v . W att s , 519 U.S. 148, 156 (1997)). The supreme c ourt furthe r noted that allowing a se ntencing court to “consider f acts unde rlying a cha

rge f or which the re ha s been an acquittal is a lso c onsistent with the overa ll statutory scheme under the Criminal Sentencing Reform Ac t of 1989.” Wi nfi e ld , 2 3 S

. W. 3 d at 283. Se e als o S tat e v . W alt e r M artin , No. W2006-01148- CCA-R3-CD, 2007 WL 3005356, at *9 (Tenn. Crim. App. at Jackson, Oc t. 16, 2007) pe rm
. app
. denied (Tenn. A pr. 7, 2008). Howeve r, this court has been car eful to ac knowledge that 1 “mer ely being arr ested or char ged with a crime is not ‘criminal be havior’ w ithin the meaning of the statute.” Carico , 968 S.W.2d at 287 (interna l citations omit ted). Upon re view of the rec ord , i t appea rs that the indictment and subseque nt trial of the de fe nd a nt o c c ur

re d inthe sa me tr ia l c ou rt a s in the ins ta nt c a se

. As su c h, the tr ia l c ou rt wa s u niq ue ly positioned to consider t he facts underlying the acquitted offe nses. The trial court provided a brie f
rec itation of those fac ts before determining that the defendant’s criminal beha vior wo u ld have supported the de fendant’s conviction on cha rges of aggra vated r obbery, a ggravated assault and aggra vated bur glary. Thus, the tr i al co u rt found that the fa cts underlying the prior offe nses supported enhanc e ment of the de fendant’s sentenc es beyond a rea sonable doubt. This determination
exce eds the standa

rd set in W

i n f i e ld that fac ts supporting enhance ment on this basis must only be established by a preponde ranc e of the evidenc e. Se e Wi nfi e ld , 23 S.W.3d at 283. We conclude that the trial court’s consideration of those underlying fa cts for the pur pose of e nhancing the de fenda nt’s sentenc e s in th e in s tan t c a s e w a s ap p r o p r iate

. T h e r e f o r e , w e d is c e r n n o e rr o r in th e tria l court’s
e nh a nc e me nt o f the de fe nd a nt’ s se nte nc e s o n th is b a sis

. Th e tr ia l cou rt a lso e nh a nc e d the de fe nd a nt’ s se nte nc e s b a se d u po n h is t wo prior c on vic tio ns

. Specifica lly, the trial court stated:9

The Court finds that [the defe ndant] is a R ange I standar d offe nder. H e has two prior convictions: one which occur red about 20 year s ago, was a felony, and the other was a misdemea nor which oc curr ed re cently . . . .

. . . . . . . I re alize that one of the offe nses occur red about 20 yea

rs ago whe n Mr. Mc Danie l w a s 2 1 y e ars of a ge . I wo uld

no t pl a c e part icu lar sig nif ic a nc e on that,
exce pt for the – we re it not for the most rece nt crime.

The sente ncing sche me has be en re vised to permit the trial court discretion to adjust the defe ndant’s sentenc es “a s appropriate, by the pr esenc e or a bsence of m itigating and enhanceme nt fac tors set out in § § 4 0- 35 -1 13 a nd 40 -3 5- 11 4. ” Te nn . Co de An n. § 4 0- 35 -2 10 (c )( 2) (2 00 6) . “ [T ]h e tr ia l c ou rt is fr e e to sel ect any se nte nc e wi thi n th e app lic able rang e so lon g a s th e le ng th o f the se nte nc e is “consistent with the purposes and principles of [the Sentencing Ac t].” Carter , 254 S.W.3d at 343; see also Tenn. Code Ann. § 40- 35-210(d) . A def endant’ s sentence may be e nh ance d when “ [t]he de fe nd a nt h a s a pre vio us his tory of crimi na l con vic tio ns or c ri min a l beh a vio r, in a dd iti on to tho se nece ssary to establi s h t h e appropriate range.” T enn. Code Ann. § 40- 35-114(1) . We pe rce ive no
err or in the trial court’s r eliance upon the def endant’ s prior convic tions to enhance the def endant’ s sentenc es to the maximu m wi t h i n the statutory ra nge. Se e id . Acc ordingly, we c onclude that the tr ia l c ou rt didno t e rr

by e nh a nc ing the de fe nd a nt’ s sen te nc e ba se d u po n it s c on sid e ratio n o f the fa c ts un de rl yin g h is p ri or , a c qu itt e d o ff e ns e s, or bas ed up on its c on sid e ratio n o f h is p ri or c on vic tio ns

. There fore , the def

endant is not entitled to relief as to this issue.
CO NC LU SION

For the fo re go ing re a so ns , w e a ff ir m th e jud gme nts of

the tr ia l c ou rt

.

_______ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _____________ J.C. McLIN, JUDG E