# FILED
September 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE FEBRUA RY, 1997 SESSI ON

STA TE OF TENN ESSEE, ) ) Appellee, ) No. 01C01-9603- CR-00122 ) vs. ) Davidson C ounty ) TERRY A NTONIO LAWRENCE , ) Honorable J. Randall W yatt, Jr. ) Judge Appellant. ) ) (Attempted First Degree Murder)

FOR TH E APPEL LANT: FOR THE APPELLEE: MS. THERESA W. DOYLE JOHN KNOX WALK UP Attorney At

Law Attorney Gen eral & Repor ter 211 Printer’ s Alley Building, Suite 400 Nashvil le, TN 37201 PETER COUGHLA N Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 VICTOR S. JOH NSON, III Distric t Attorney General PAUL D eWITT Asst. Dist rict Attor ney General Washington Square, Suite 50 0 222 Second Avenue, North Nashvil le, TN 37201-1649

OPINION FILE D: _____________
AF FIRMED
CURWOOD W ITT, JUDGE1 Initially , the defendant filed a N otice of Appeal in Davidson C ounty

Criminal C ourt case number 95-A-723, a theft case in whi ch this defendant pleaded guil ty on Januar y 25, 1996, al though the Noti ce referenced “t he final judgment entered in this cause on the 24th day of Octobe r, 1995.” The case now before the court, wher ein the final judg ment was entered on October 24, 1995, was ca se number 95-A- 719 in the tri al court. The t rial court clerk, si gnaled by the 723 docket number, certif ied and filed with this court a technical record from no. 723, althoug h counsel for the d efendant obtained and filed a transcri pt of the sentencing hearing in the case sub judice , no. 719. Apparent ly counsel did not exami ne the record fil ed by the tr ial court c lerk, and upon ou r revi ew of the case, w e discover

ed the error and advised counsel. Counsel responded w ith a motion to suppleme nt the record but failed to take steps to amend the Notice of Appeal, orig inally styled in case no. 723, to show the desired case from the trial cour t. We denied the request, recognizi ng this cour t had no appellate jurisdiction over case no. 719 and declining to supp lement the appellate record of the case that was appealed w ith records from another case t hat was not appealed. Howeve r, after affording counsel some ti me in whic h to assess the vulnerabi lity of the pe nding appeal i n case no. 723, and realizi ng that no further mot ion wa s fo rthc omin g, we en tere d an o rder on Ju ly 16, 1997 , wher eby we assumed from th e circumstances that the “def endant intended to appeal case no. 95-A-719 from bel ow and did not intend to appeal case no. 95- A-723 " (emphasis added) and caused the capt ion of the Notice of Appeal to be accordingl y amended. By this order, the exist ing appellat e record was supplemented by the technical record in no. 719. We recite the history of this appeal in order to encour age counsel w ho appear in this

court to be aware of the appellate records that are filed and to be responsible i n initiatingcorrectiv e action w hen needed.
2 OPINION

The defendant, Terry Antonio Lawr ence, appe als from the sen tence imposed bythe Criminal Court of Dav idson County . He was indicted on one count of attempt to commit premeditat ed first degree murder and one count of especially aggrav ated robbery. Pursuant to a pl ea agreement, he p leaded guilt yto the count of attempt to commit first de gree murder, a Class A felo ny, and the r obbery count was dismissed. After th e hearin g, the tria l court se ntence d the de fend ant as a Range I offender to twenty-five years to serve i n the Department of C orrection. He asserts the misapplicati on of enhancementand mitigating factors in sentencing him to the maximum sentence wi thin the range. Upo n a thoro ugh review of the record before the court, 1 we affi rm.3 The facts o f the cr ime are uncontrov erted. Accor

ding tothe testimony of the v icti m, Jack Rainey , and the defendant aspresented to the trial cour t in the sentencing hearing, M r. R aine y was in the process of caretaking at a Nashville apartment comple x on April 8, 1994, when, in the midafternoon, three young men accosted him on the outsi de of the building

. One of them, the defendant, pul led a pisto l, and another of the gr oup demanded Mr. R ainey’s w allet. Mr . Rainey complied immediately and testified that “when I did that, that’s when [thedefendant] took a step and shot me r ight then.”Mr. R ainey, mar ried and t he f athe r of t wo children, was

unar med at thetimeof th e in cid ent a nd off e red no res istance whatsoever. He did not know his assailants, a fact confirmed by t he testimony of the defendant who ack now ledged that he did not know the victi m and had no particular

reason for sele cting Mr . Rainey a s a victi m. Mr. Rai ney was shotin the mouth. The bullet destr oyed some teeth, traveled through his tongu e, and b ecame lodged in his neck

near his spi ne. The bullet was surgical lyremoved, but Mr. Rainey testified that he underwent a l ot of “tooth wo rk” and that, due to neurolog ical damage, half of his ton gue remains nu mb.

The defendant’s mother testified that shewas thir teen when the defendant was born. As a child, the defendant alternated l iving with his mother and his father, but his fat her died of heart f ailure in the defenda nt’s presence when the defendant was fifteen. The def endant expressed remorse f or shooting Mr. Rainey and testified he felt des erted when hi s father died. H e wassixteen at the time of the offense, and he testified th at the othe r two assailants were seventeen and nineteen. He stated that he shot the vi ctim because he w as scared.

The tr ial court ex pressed shock and outrage concerning t he natu r e and circumstanc es of the offense. The trial judge reci ted certain pas sages from the presentence repo rt, but the report its elf was not i ncluded in the r ecord on appeal. He found the p re sence of one mitig ating factor, that due to the defendant’ s youth he lacked subst antial judg ment in committingthe offense, Tenn. Code Ann. § 40-2 At the sentencinghearing, t he state argu ed for the applicat ion of

enhancement factors ( 1), (2), ( 6), (9), and (10). The state did not arguefor the application of factor

(5), that thedefendant treated the v ictim wi th exception al cruelty. In annou ncing his ru ling, the trial judge referre d to the crime as b eing a “very cruel act under the enhancement f actors.” The trial judge specifically mentioned fa ctors (1), (2), and (9), but not (6), that particularly great injuries were inflicted upon the victim. Howeve r, after stati ng that he was not apply ing factor (10), he stated that he was “going to go with the first three or four that were mentioned, prior

criminal be havior, l eader, cruelt y, firearm.”

Factor (6 ) was one of the “three or fou r” that were mentioned by the district attorney, and it is, therefore, unclear if the trial court meant to include f actor (6).
4 35-113(6) (1990) , but the trial court found tha t this mitigating factor was greatly outweighed by the applicable enhancem ent factors listed under Tennessee Code Annotated section 40-35- 114: factor (1), the defendan t had a previ ous history of criminal behavior in addition to that nece ss ary to est ablish the appr opriate rang e; fa ct or (2), the defendant w

as a leader i n the commission of the offense involv ing t wo or more actor

s; factor (5) , the defendant treated t he victi m with exceptiona l
crue lty; and factor (9), the defendant employed a firearm duri ng the commission of the offen se. Tenn. Code Ann. § 4 0-35-114 (Supp. 1996 ). 2

When there is a challenge t o the length, range, or manner of service of a sentence, it i s the duty of this court to conduc t a de no voreview of the record with a presumpt ion tha t the determinati ons made by the t rial court are correc

t. Tenn. Code Ann. §40-35- 401(d). This p resumpti on is “conditioned upon the aff irma tive showing in the recor d that the tria l court cons idered the senten cing principles

and all relevant facts an d circumstances.” State v. Ash by , 823 S.W.2d 1 66, 169 (Tenn. 1991). “The burden of show ing that the s entence i s improper i s upon the appellant.” Id . In the event the r ecord fails t o demonstrate the required consideration by the tria l cour t, re view of the s ente nce i s pur ely de no vo . Id . If appellate review

reflects the trial court properl y consider ed all relev

ant factors and its findings of

fact are adequately supported by the record, this court must aff irm the sentence, “even if we would have preferred a diff erent result.” State v. Fl etcher , 805 S.W .2d 785, 789 (Tenn . Crim. App. 1991).5 In making its

sent encing determination, t he trial cour t, at the “conclusion of the sentencing hearing,” determines the r

ange ofsentence and then determines the specific s entence and the propr iety of sente ncing alter natives by considering(1) the ev idence, if any, rec eived at thetrial and the sen tencin g hearing; (2) the presentence report; (3) the principl es of sentencing and arguments a s to sentencing alternative; (4) the natur e and ch aracteristics of the criminal condu ct involved; (5) evi dence and information offered by the parties on the enhancement and m i tigating factors; (6) any statements the defendant wis hes to make in the defendant ’s behalf about sentenci ng; and (7) the potential for r ehabilita tio n or treatment. Ten n. Code Ann. §40-35-210( a), (b) ( Supp. 1996); Tenn. Co de Ann. §40-35-103(5)(1990); State v. Ho lland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

In the absence of enh anc ement and mitigat ing factors, the pres ump tive length of sentenc e of a Class A felony committed before Jul y 1, 1995, is the min imu m in th e statutory range. Tenn. C ode Ann. §40-35-210( c) (1990) (amend ed, Acts 19 95, Ch. 493, § 1) . The weig ht afforded an enhancement or mitigatingfactor is l eft to the dis cretion of the trial court so long as the trial court complies with the purposes and principles o f the Tennessee Cri minal Sentencing Reform Act of 1989 and its finding s are supporte d by the record. State v. Hayes , 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995), perm. app. denied (Tenn. 1995).

The record reflec

ts that the tri al court cons idered and ap pli ed the applica ble sent encing pr inciples and ma de fin dings of fact which are stated in the record. Also, the findi ngs are suppo rted in the record. Accordingly, the trial court’s judgment is accompanied by the presumption of correctne ss.

In finding that enhancement factor (1) a pplies, the tr ial court w as justified in rely ing upon a theft which the defendant committed on August 20, 1994, several weeks after the assault upon M r. Rainey . The s entencing hear ing in the
case now before us was held on October 24, 1995. “[T]rial j udges can con sid er6

criminal conv ictions or any other c riminal behav ior whi ch occurred prior to the sentencing hearing as constituting a previous history of crimin al con victions or criminal behavior, regardles s of whet her the con victions or behavior occurred before
or after the cr imina l conduct under consideration .” State v. Chad Douglas Poole , No. 02C01-9506-CC -00178, slip op. at5-6 (Tenn. Cr im. App., Jacks on, January 31, 1996), aff’d (decided on unrelated grounds ), Stat e v. Poole , 945 S.W.2d 93 (Tenn. 1997). See also State v. Ed W aters , No. 01C01-910 6-CR-00158(Tenn. Crim. App., Nashv ille, Februa ry 20, 199 2). The defen dant’s criminal behavior , even tho ugh (and perhaps especi ally becau se) it occu rred after the at tack on Mr. Rainey, j ustifies the applicatio n of factor (1).

Furthermore, the trial court recited information abo ut othe r criminal acts committed by the defendant before April 8, 1994, referri ng to thefts mentioned in the presentence report. Althoug h the defendantin his brief challenges the use of this infor mati on on the basis t hat the referenced c harges were dismisse d, the record in this case does not incl ude the presentencereport. We cannot review the report in order to assess the accuracy or vali dity of

the defendant’s chal lenge to the
use of these earlier inst ance s of c riminal behav ior. It is the appellant’s

duty to
ensure that the record on appeal con tains all of the evidence relevant to those issues which are the bases of appea l. Tenn. R. App. P. 24(b); State v. Banes , 874 S.W.2 73, 82 (Tenn. Cri m. App. 1993); State v. Deborah Gladish , No. 02C01-940 4- CC-00070 (Tenn. Crim. App., Jackson, November 21, 1995), perm. app. denied (May 6, 1996) . In the absence of such a record, the affected is sues are waived. State v. Oody , 823 S.W.2d 554, 55 9 (Tenn. Crim

. App. 1991). “ In the absence of
an adequate record on appeal, this cour t must p resume that th e trial cou rt’s rulings were supported by sufficient evidence. ” Id.

Accordingly, the trial court properly applied factor (1).

The lower court al so properly applied factor ( 2). Althoug h the3 See ftn. 2, supra . 7

defendant asserts that , because he was the young er of the group of

assailants and that the others encouraged him to com mit the robbery , the trial cour t was not justified in finding th at he was a leader in the commission of the offense. The st ate correctlypoints out that Tennessee Code Annotated section 40-35- 114(2) req uires onlythat the defendant be a leader, not that he be the leader. The record reflects that the defendant assumed a l eading rolein the cri me in that he held and used the firear m. The trial court could have reasonably concluded from the defendan t’s testimony

that he selecte d the vict im, and furthermore, the trial j udge summariz ed the pre senten ce repor t passage that describes the defe ndant’s actions in dividin g among his companions the mon ey taken from the victim’s wallet. There is ample proof that the defendant was a leader i n the commission of this offense.

Factor (5) was

properly

applied. The unar med victim offered no resistance to the robbers . He handed over his wallet complia ntly, hopi ng, no doubt, to surviv e the robbery

and to return t o his wi fe and two chil dren. However, the defendant ’s response to the victim’s compliance was to shoot him at close range in the face. The trial court was cor rec t in finding t his to be an act of exceptional
crue lty.

Factor

(6), i f not ap plied, should have been. 3 The injuries inflicted upon Mr. Rainey were particular ly great. The testimony reflects that M r. Rainey is “luckyto be alive.” The injuries were grievous and, as of the time of the sentencing hearing a year and a h alf after the assault , the injuri es were di sabling. Upon our de
novo review

we may consider an y enhanc ement (or miti gating) factors support ed bythe record ev

en if such factors were not relied upon by t he trial cour

t. Stat e v. Adams , 864 S.W.2d 31, 34 (Tenn. 1993). Accor dingly , enhancement factor ( 6) applies.

Factor

(9) was properly

applied. The defen dant emp loye d a fire arm.8

The use of a firearm is not an element of the offense of attempt to commit premeditated first degree murder . Tenn. Code Ann. § 3 9-12-101 (1991) ; § 39-13- 202(a) (Supp. 1996). This factor justifiably

enhances the senten ce.

Fina lly, we exami ne the defendant’s assert ion thatthe trial court failed to consider the defenda nt’s background information in mitigation of the senten ce and that the trial co urt wasimproperly motivated by

a desire for det errence. The defendant offered very little pr oof that could be cons idered mitig ating. The death of his father was certainl y a sig nificant event in this young man’s li fe, but we obse rve that many young people ex perience the l oss of one or both parents w ithout
co mmitting an unprovoke d, barbaric act of gunning down an innocent, unarme d person. The trial co urt was w illing to an d did cons ider the youthful age and inadequate judgment of the defendant w hen it applied the statutory mitigatingfactor (1). Furthermore , any additi onal mitigat ing ef f ect that could h ave resul ted from consideringthe demonstra ted biographical facts is cl early outweighed by the enhancement f actors.

Also, the trial court’s expressi on of shock or outr age does not eq uate to an unprincipled subservience to deterren ce when, as in this case, the trial court clearlyfollowed the mandates and prin ciples of the sent encing law and made a decision that is supported in the record. If a defendant’s a ctions are particularly reprehensibl e, then surely society should not be deni ed the opportunity to tell him
so. Perhaps the onl y mechani sm by which that may be done is

through the sentencing trial judg e, who mir rors soci ety’s concern for peace and order and w ho, in case, addressed the offender an d remonstrated ag ainst his co nduct. Since the trial judge proc eeded properly and fairly under the sentenci ng law, we find no cause for critici zing hi m in his ex pression of const ernation.

The issues rai sed by the defendant are meritles s, and the judg ment of the trial court is aff irmed in all respects.9 ________________________ CURWOOD W ITT, JUDGE CONCUR:

___________________________ GARY R. WADE, JUDGE

___________________________ DAVID G. HA

YES, JUDG E