### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Jun e 15, 200 4
STA TE OF TEN NES SEE v. STA NLE Y C RA IG HUG HES

Direc t Appeal from the Cr im inal Cou rt for Bradley County

No. M- 01-413 Car roll L. Ross, Jud ge

No. E2004-00105-CC A-R3- CD- F iled Septem ber 24, 2004

Def endant, Stanley

Craig Hug hes, wa s indicted for one count of sec ond deg ree murder, one count of ag g ravated assault, two counts of rec kless endang erme nt, and one count of unlaw ful possession of a w eapon. The State enter ed a no lle pros e qu i on the unlawf ul possession of a we apon cha rg e, and Def endant wa s tried on the other ch ar g es. De fenda nt’s first trial ende d in a mistrial. At the conclusion of De fenda nt’s second tria l, the jury found De fenda nt guilty

of aggravated assault and
no t gu ilt y

o f t h e c h ar g e o f

s e c o n d d e g r e e m u r d e r

a n d b o t h c o u n t s o f

r e c k l e s s e n d a n g e r m e nt. Following a sente ncing h ea ring , the trial court sentence d Def endant to six y ear s in the Tennesse e Depa rtment of Corre ctio n
. O na p p e a l, D efe ndant ar g ues that the e vidence was insuffic ient to support his conviction for a g g ravated assault, and that the t rial court improperly applied enhanceme nt fac tors and failed to consider mitig ating fac tors in determining the leng th of Def endant’ s sentence . After
a tho ro ug h r e vie w o f the re c or d, we a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Trial Court Affirm ed

T H O M A S T. W O O D A LL , delivere d the o p i n i o n o f the c ourt, in which J OS EP H M. T I PTON and J OHN E VE R E TT W I L L I AMS , J J ., joined.
Charles M. Corn, District Public Def ender ; and A. Way ne Carte r, Assistant Public Defe nder, f or the
app e lla nt, Sta nle y

Cr a ig Hu g he s.
Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Kathy D. As lin g e r, As sis ta nt A tto rn e y Ge ne ra l; J erry N. Estes, District Attorney Gene ral; and Shari Tay loe, Assistant District Attorney Gene ral, for the appe llee, the State of

Tenne ssee.
OP IN ION Ging er Sample and her mother, Evely n Sample, wer e driving toward Cleve land, Tenne ssee, wh e n the y ob se rv e d a g re e n c ar a tte mpt ing to pu ll in be tw e e n a truc k a nda

Ho nd a a uto mob ile . M s. Sample said that the g ree n car then hit the back e nd of the truc k. Def endant, the driver of the g ree n car , g ot out of his ve hicle and walked toward the truck. Although Ms. Sample said that she did not-2-

see D efe ndant’s fa ce, he appea red ang ry and was y elling. Ms. Sample sa id that Defe ndant re turned to h is c ar t o r e tr ie ve so me thi ng , b ut s he didno t se e wh a t th e ob je c t w a s.
Ev e ly n Sa mpl e sa id tha t th e truc k, the g re e n c ar andthe Ho nd a sto pp e d af te r D e fe nd a nt h it the re ar e nd of the truck. The driver of the truck and Def endant started running toward e ach othe r. Ms. Sample called 911 on he r ce ll phone beca use the two men looke d like they wer e g oing to fig ht
eac h other.

Gre g Calfee also observe d the altercation. He was driving home from work when he saw the three vehicles stopped on the other side of the road. Mr. Calfee said that Def endant thre w something at the victim, the driver of the pick-up truck, but the victim wa s not hit. The victim walked towar d De fendant who g ot back into his car . Mr. Calfee said that Def endant ba cked his c ar up but drove up ov e r the Ho nd a ’s ho odwh ic h w a s pa rk e d be hin d him

. De fe nd a nt’ s tir e s sp un a ndsmo ke c a me out from the tires. The fema le driver of the Honda

g ot out of her car and started g esturing at the two
me n. Th e vic tim

le a ne d in to D e fe nd a nt ’s car up to the m idd le of his sto ma c h, sw ing ing his fi sts

. The victim them bac ked out of Def endant’ s car , hunched over. Def endant g ot out of

his car, a nd he
a ndthe vic tim

sta re d a t e a c h o the r b e fo re De fe nd a nt r a n a c ro ss the ro a d. Mr

. Ca lf e e sa id that he did not see De fenda nt stab the victim and left bef ore the emer g ency

vehicles a

rrived.

Br andi Park, the vic tim’s daug hter-in- law, wa s following the victi m ’s truck in her Honda. She first saw Defenda nt driving on the ot her side of t he road. Def endant waved at the vi ctim and the n tu rn e d h is c ar a

ro un d. He sp e d p a st the Ho nd a a nd dr e w u p e ve n w ith the vic tim ’s truc k. Ms. Park said that Defenda nt then pulled his car in be tween the truck a nd her H onda, and Ms. Par k was fo rc e d to sto p in or de r t o a vo id h itt ing De fe nd a nt’ s c ar. Ms. Park sa id that D e fe nd a nt g ot out of his
car and thre w a ha mmer or an axe at t he victim ’s truck. The victim got out of his truck a nd started arg uing w ith Defe ndant. Ms. Park said that Def endant stabbe d the victim when the two men w ere standing next t o Def

endant’ s car . Def

endant g ot back into his car and, without looking in his rea r view mirror , backe d into her Honda . Def endant then r an aw ay
. Ms. Park said that she did not see what we apon De fenda nt used to stab the victim, and said that the victim was not arme d. Ms. Park
sa id tha t sh e didno t kn ow De fe nd a nt p ri or to the inc ide nt.
On cr oss-examination, Ms. P ark a dmitted that she initi ally told the police that the victim was stabbed whe n he leaned ins ide Defenda nt’s car
. Ms. Park agr eed that the vi ctim could have pulled into the rac eway

parking lot that was twenty to thirty fee t dow n the road wher e the ca rs would have ha d r oo m to man oeu ver . M s. Park sa id, ho we ve r, that D e fe nd a nt w a s n ot b loc ke d in . H e simply
c ou ld n ot p a ss the vic tim ’s c ar o n th e ri g ht b e c a us e of the g ua rdrail.
Chad Park, the victim’s son, wa s riding w ith his father in the truc k. He sa id that Def endant
wave d at them from the other side of the road, turned his c ar around, and pulled up beside the truck. Def endant swe rved towa

rd them and the n forc ed his ca r in be tween the truck and his wife’s Honda

. The victim stopped his truck. As the vic tim was g etting out of t h e vehicle, some object hit the truck’ s d o o r
. T h e v ic ti m a n d D e f e n d a n t me t h a lf

w a y a n d s ta

r te d f ig h ti n g
. M r
. Pa

rk s a id tha t De fe nd a nt r a n b a c k to his c ar a ndg ot i n, a ndthe vic tim fo llo we d h im. De fe nd a nt l e a ne d o ut of his-3-

car window and stabbe d the victim. Mr. Park g o t o u t o f t h e truck a nd went to assist his father. Def endant ba cked his c ar into Mr. Park’ s wife’ s Honda. De fenda nt then g ot out of his car a nd ran
acr oss the road. Mr. Park admitted that he initially told the police he wa s driving be cause his father ’s driver’ s license wa s revoke d. Mr. Park said that he did not know the victim was dea d when he g ave his state me nt t o th e po lic e . M r. Park sa id that he didno t kn ow De fe nd a nt p ri or to the inc ide nt.
On cr oss-examination, Mr. Park admitted that he initially told the police that Def

endant r an u p t o t h e truck with a knife, a nd that the victim was stabbed a s he tried to g et bac k into the truck. Mr . Pa rk a lso a dmi tte d that he kn e w L isa Smith, De fe nd a nt’ s g ir lf ri e nd , be c a us e Ms. Smith u se d to be his fathe r’s g irlfriend. M r. Park conc eded that the victim told hi m that the man who wa ved at them was Ms. Smith’s new boy friend. David Guy , a spec ial ag ent with the Tenne ssee Bu reau of Investig ation, assisted in the investigation of the incident. Ag ent Guy said that he found a hatchet in the front floor of the victim’s truck. Age n t Guy

said that there wer e no latent prints or blood stains on the hatchet. Ag ent Guy found a knife in Def

endant’ s car

under a VCR in the front seat a nd a scr ewdriver in the c ar’ s console. T h e v ic ti m’ s b lo o d w a s f o u n d o n th e k n if

e a n d th e d r iv e r ’ s s e a t o f D e f e n d a n t’ s c ar. The re w as ins uf fi c ie nt b loo d o n D e fe nd a nt’ s c ar d oo r t o s ub mit fo r t e sti ng . Agen t G uy

sa id that th e re wa s a larg e quantity of blood by Def endant’ s car door. The blood patterns on the road indicated that the victim walked over to Ms. Park’s Honda, stood f or an undetermined amount of time, then wa lked
aro un d th e fr on t of

De fe nd a nt’ s c ar, to the pa sse ng e r s ide of his truc k, the n b a c k to the re ar o f h is truck. Sharon Whaley , Def endant’ s neig hbor, said that De fenda nt came t o h er house af ter the inc ide nt a ndtol d he r that he an d the vic tim we re fi g hti ng a nd that D e fe nd a nt h a d s ta bb e d th e vic tim

. Ms. Whaley

later f ound a knife sheath be longing to Defe ndant behind her couch. Dr. Ronald Toolsie per formed the autopsy on the victim. He testified th at the victim died from hemorrhag ing cause d by a larg e laceration just below the a rmpit. Dr. Toolsie said that the knife blade lace rate d the front of both lobes of the lef

t lung. The re w ere nine contusions or abr asions on the bac k of the victim’s for earm an d l eft wrist and a lac eration on his l eft index finge r. A drug
scre en showe d the pre sence of amphe tamine and metha mphetamine in the victim’s body as well as atropine w hich had been administered by the emer g ency personne l. A lthough Dr . Toolsie could not tell when the dr

ug s wer e taken, he said that the amphetamines w ould have ha d a stimulant effe ct on the vic tim

. Dr. Toolsie testified that the kni fe’ s blade was ang led upward approximately thirty deg ree s when it enter ed the victim’s body . On cr oss-examination , Dr

. T oolsie said that entry wound was
c on sis te nt w ith De fe nd a nt s itt ing do wn a nd the vic tim sta nd ing wh e n D e fe nd a nt s ta bb e d th e vic tim

. Cindy Goodson testified for Def endant. She said that when she drove past the t hree parke d vehicles, she saw a

man re aching into a car

and y elling. Ms. Goodson c alled 911.-4-

Dr. Ne lson Thorenson’s testimony from De fenda nt’s first trial was r ead into the r ecor d. Dr. Th or ens on te sti fi e d th a t he e xami ne d D e fe nd a nt’ s e y e s o n Jun e 25 , 2 00 2 a ndsa id tha t hi s un c or re c te d v isi on in the ri g ht e y e wa s 20 /70 a nd 20 /60 in the le ft e y e . D r. Th or e ns on sa id tha t it would be impossibl e for Def endant to re cog nize the fac ial features of someone passing him in a car
o n t h e h i g h w a y.
Def endant testified in his own behalf. He said that he lived about a qua rter of a mile from the sit e of the inc ide nt. He a ndL isa Smith h a d b e e n d a tin g fo r a bo ut two y e ars
. Pr ior to that, M s. Smith h a d b e e n th e vic tim ’s g ir lf ri e ndfo r a

bo ut t e n y e ars . D e fe nd a nt d e sc ri be d s ever al inc ide nts wher e the victim acte d ag g ressively toward D efe ndant and Ms. Smith, including one time whe n the victim attacked D efe ndant with a jac k hammer.

Def endant said that he wave d at the victim whe n they passed eac h other on th e h i g hway beca use he thoug ht the victim was his brother- in-law. De fenda nt thought hi s brother- in-law wa s g oing to his house so he turned a round. When his car

drew even w ith the truck, De fenda nt rec og nized the victim. The v i ctim swerve d his truck towar d Def endant, a nd Def

endant dr opped ba c k, pu lli ng in be hin d the truc k so he co uld turn ar ou nd a t the ra c e way ’s pa rking lot . T he vic tim stopped his truck, howe ver, a nd Def endant ha d to stop also.

De fe nd a nt s a id tha t he sa w the vic tim re tr ie ve so me thi ng fr om ins ide his truc k, bu t he c ou ld not tell what the object wa s. Def endant picked up his hatchet fr om the floorboar d and g ot out of the
car . He thre w the hatc het at the victim’s fe et to slow him down, but the victim st epped a side, and t h e h at ch et h i t t h e tr u ck ’s d o o r. De fe n d an tgo tb ac k i n t o h i s ca r, an d t h e v i ct i mgra b b ed h i mt h ro u gh the window and tried t o d ra g h i m out of the ca r. De fenda nt said that he could not see what wa s be hin d him whe n he thr e w his c ar int o re ve rs e
. Th e c ar’ s move me nt, ho we ve r, kn oc ke d th e vic tim
awa y from the car
. After Def

endant’ s car hit the Honda, the victim c ame back to his ca r window. Def endant sa id that he knew he was tra pped so he g rabbe d his knife and stabbe d the victim in the side. Def endant sa id that he did not know how bad the vic tim was hurt but as soon as he de termined that th e vic tim

wa s n ot g oin g to fi g ht an y mor e , D e fe nd a nt r a n a c ro ss the ro a d in the dir e c tio n o f h is
ne ig hb or ’s ho us e . D e fe nd a nt s a id tha t he didno t in te ndto kill the vic tim

. On cr oss-examination, Defendant admitted that during the incident with the victim involving the jack ha mmer, De fenda nt was armed with a samurai sword. Def endant admitted that he told the police that the victim had a knife in ea ch hand. Defe ndant conc eded that he told Detec tive Ba rry Tharpe that the victim dropped one of the knives into his lap, and he u s ed that knife to stab the victim. De fenda nt e x plained that he said that he used the victim’s knife be cause he wa s on probation
re su lti ng fr om a

re c kle ss e nd a ng e rm e nt c on vic tio n a ndwa s n ot s up po se d to c arry kn ive s.
L isa Smit h, Def

endant’ s g irlfriend, te stified that the vi ctim was abusive toward he r during and af ter their r elationship. Ms. Sm ith s aid that she a nd Def endant swor e out a wa

rra nt for the victim’s arre st af

t er one of the hara ssment incidents. Gina Daub, the victim’s sister, testified on rebuttal that De fenda nt, not the vic tim, wa s abusive towar d Ms. Smi th, and that Ms. Smit h and the vic tim g ot a lon g we ll.-5-

B a se d o n th is e vid e nc e , the jury fo un d D e fe nd a nt g uil ty of a g g ra vate d a ssa

ult a ndno t g uil ty on the re ma ini ng c ha

rg e s.
I. Su ff iciency of the Evid ence
De fe nd a nt a

rg ue s th a t the we ig ht of the e vid e nc e su pp orts a fi nd ing that D e fe nd a nt a c te d in
se lf -d e fe ns e a ndthat hi s c onvi c tio n o f a g g ra vate d a ssa ult sh ou ld b e re ve rs e d. De fe nd a nt a lso contends that the jury ’s verdict finding him not g uiltyof sec ond deg ree murder implies that the jury believed he acte d in se lf-def ense and is the ref

ore inconsistent with a g uiltyverdic t on the ag g ravated assault cha

rg e.
Consist ency

betwee n verdic ts in a mul tiple count indictment, however , is not required. See W igg ins v . S tat e , 4 9 8 S

. W

. 2 d 9 2 , 9 3 (T en n
. 1 9 9 3 ). E ac h co u n t i s a se p ar at e in d i ct m en tev en t h o u gh the offenses may

arise out of

the same c riminal incident. Id. As our supreme court has re cog nized, we “ will not upset a seemingly inconsistent verdic t by specula ting as to the j ury ’s re asoning if we
are satisfied that the e vidence establishes g uilt of the o ffense upon which the conviction was returne d.” Id. at 93-94.

As stated in count one of the indictment, De fenda nt was cha rg ed with sec ond deg ree murder by unlawfully

and knowing ly

killing the victim. Tenn. Code Ann. § 39-13-210. I n count two of the indictment, Defe ndant was char g ed with a g g ravated assault by intentionally or knowing ly causing the vic tim to re a so na

bly fe ar immi ne nt bod ily inj ury by dis play ing or us ing a de a dly we apo n “ to w it: a hatc het.” Id. § 39-13-102. Although the jury found Defenda nt not g uilty of sec ond deg ree murder, that ve rd ic t is no t ne c e ssa ri ly inc on sis te nt w ith a

ve rd ic t of

g uil ty of a g g ra vate d a ssa

ult

. When a def

endant c halleng es the suff iciency of the convicting evidenc e, we must review the
e vid e nc e in a

lig ht m os t f

a vo ra ble to the Sta te in d e te rm ini ng wh e the r a ratio na l tr ie r of fa c t c ou ld have found all the essential elements of the crime be y ond a re asonable doubt. J ac k so n v . V irg ini a , 4 4 3 U

. S

. 3 0 7 , 3 1 9 , 9 9 S

. C t

. 2 7 8 1 , 2 7 8 9 , 6 1 L

. E d

. 2 d 5 6 0 ( 1 9 7 9 )

. O n c e a j u r y f i n d s a d e f e n d a n tg u i l t y, his or her pr esumption of innocenc e is remove d and re place d with a pre sumption of guilt. State v. Black , 8 15 S.W. 2d16 6, 17 5 ( Ten n. 19 91 ). The de fe nd a nt h a s th e bu rd e n o f o ve rc omi ng thi s pr e su mpt ion , a ndthe Sta te is e nti tle d to the str on g e st le g iti ma te vie w of the e vid e nc e a lon g wi th a ll
rea sonable infe renc es which ma y be dra wn from that e vidence

. Id .; Sta te v . Tu gg le , 639 S

. W.2d 91 3, 91 4 ( Te nn . 1 98 2)

. Th e jury is pr e su me d to ha ve re so lve d a ll c on fl ic ts a nddr a wn a ny re a so na ble infere nces in fa vor of the State. State v. Sheffield, 676 S.W .2d 542, 547 (Tenn. 1984) . Questions
conce rning the cre dibilit y of witnesses, the weig ht and value to be g iven the evidenc e, and a ll factua l issues raised by

the evidenc e ar e re solved by the trier of

fac t and not this court. State v. Bland , 958 S.W .2d 651, 659 (Tenn. 1997)

. A per son commits ag g ravated assault when he place s another in r easona ble fe ar of imminent bodily injury by display ing or

using a deadly wea pon. Tenn. Code Ann. § 39- 13-102(a )(1) (B ).-6-

Def endant a dmitted at trial that he g ot out of his car, took two steps, a nd threw the hatche t at the victim. Viewing the evidenc e in a lig ht most favorable to the S tate, the jury could have conclude d that the victim r easona bly believed that bodilyinjury was imminent when the hatchet sailed acr oss the road in his direc tion e ven if they cre dited Def

endant’ s testimonythat the victim had
some object in his hand. The victim ’s actions in stepping aside to avoid t he hatchet lends support to this finding. The jury could have also con cl u d ed that Def endant wa s the ag g ressor in the alt er ca tion at this poi nt and re jected D efe ndant’s def

ense of self-de fense as wa s their pre rog ative. This conclusion is not inconsistent with a finding that Def endant then r etre ated f

rom the alter cation by g e tti ng in h is c ar anda tte mp ti ng to dri ve a way . Re g ard le ss o f the jury ’s tho ug ht p ro c e sse s, ho we ve r, the e vid e nc e is s uf fi c ien t to su pp ort D e fe nd a nt’ s c on vic tio n f or a g g ra vate d a ssa

ult

. Def endant is not entitled to relief on this iss ue. II. Sentencing Issu es
D e f e n d a n t ar g u e s th a t th e tria l c o u r t e rr e d in ap p lyin g f o u r e n h a n c e me n t f

a ctors and no mitigating fac tors in determ i n i n g t h e l ength of his sentenc e. At the c onclusion of the sente ncing hearing, the trial court f

ound that the followi n g enhancement f actor s were applicable : fac tor (2), Def endant ha d a pre vious h i s t o ry of criminal behavior; fa ctor (9) , Def endant ha d a pre vious unwillingness to complywith the conditions of a sente nce involving rele ase in the c ommunity ; fac tor (11), De fenda nt had no h es itation about committi ng the offe nse whe re the risk to human life wa s high; a nd fac tor (14), D efe ndant committed th e off ense w hile on probation for a fe lony offe nse. Tenn. Code Ann. § 40-35-114(2) , (9), (11), and (14). The trial court did not assign as muc h weig ht to fac tor (11) a s it did t o the other thre e enhanceme nt fac tors and did not find that any m i t i gat i ng fac tors wer e applica

ble. The tri al court found that probation wa s inappropria te bec ause me asure s less restric tive than conf

inement had pr eviously

proved to be unsucce ssful and sente nced D efe ndant to six y ear s in the Tennesse e De partment of Corr ection.

Whe n a de fe nd a nt c ha lle ng e s the le ng th or the ma nn e r of se rv ic e of his or he r s e nte nc e , th is Court must conduct a de novo revie w with a pre sumption t hat the dete rminations made by the trial
c ou rt are c or re c t. Ten n. Cod e An n. § 4 0- 35 -4 01 (d ); Sta te v . I mf e ld , 70 S.W .3d 698, 704 (Tenn. 2002). This presumption, howeve r, is c ontinge nt upon an aff irmative showing in the rec ord that the trial court c onsidered the sentenc ing principles and a l l re l ev an t fac ts and circ umstances. State v. Pettus , 986 S.W .2d 540, 543 -4 4 (T en n . 1999). I f the re cord f ails to show such consider ation, the
r e v i e w o f t h e s e n t e n c e i s p u r e l y de novo

. State v. Shelton , 854 S.W .2d 116, 123 (Tenn. Crim. App. 1992).

I n making its sentencing determinations the trial court must co n s i d er : (1) the e vidence prese nted at the se ntencing hearing; ( 2) the pre -sentenc e re port; (3) the principles of sente ncing and
arg ume nts a s to se nte nc ing a lte rn a tiv e s; ( 4) the natur e a ndc ha ra c te ri sti c s o f the c ri min a l c on du c t; (5) a ny appropriate enhanceme nt and mitiga t i n g fa ctors; (6) the defe ndant’s potential or la ck of poten ti a l f

o r r e h ab il it a ti o n o r

tr e a tm e n t; a n d ( 7 ) a n y

s tate me n ts ma d e b y

D e f e n d a n t i n h is o wn beh alf

. Te nn . Co de An n. §§ 40 -3 5- 10 3 a nd-2 10 ; State v. W illiams , 9 2 0 S. W. 2 d 2 4 7 , 2 5 8 (Tenn. Crim. App. 1995). I f the trial c ourt has impos ed a lawful sentenc e by following the statutory-7-

sentenc ing pr ocedur e, g iven due c onsideration and pr oper w eig ht to the fac tors and sente ncing principles, and ma de finding s of fa ct ade quately supported by

the re cord, this Court may not modify the sentenc e eve n if it would have pre fer red a differ ent re sult. State v. Fletc her , 805 S.W .2d 785, 78 9 ( Te nn . Crim. Ap p. 19 91 ). Th e de fe nd a nt b e ars the bu rd e n o f s ho wi ng that hi s se ntenc e is imp ro pe r. Te nn . Co de An n. § 4 0- 35 -4 01 (d ), Se nte nc ing Commissio n Co mme nts ; State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 1991)

. The we ight plac ed on one f actor by the trial court m ay vary

from that assig ned to another , and the leg islature has spe cifica lly declined to a ssign a n u m er i cal va lue to mitigating and
e nh a nc e me nt fa c tor s. Te nn . Code An n. § 4 0- 35 -2 10 , Se nte nc ing Com mis sio n Co mme nts ; State v. Sp ra tt , 31 S.W .3d 587, 606 (Tenn. 2000). The weig ht acc orded e nhance ment and mitigating f actor s i s wi t h i n t h e t ri al co u rt ’s d i s cr et i o n s o l o n g as t h e r ec o rd s u p p o rt s i t s fi n d i n gs an d t h e f i n d i n gs comply with sentencing principles. Sta te v . Ke lly , 34 S.W .3d 471, 479 (Tenn. Crim. App. 2000)

. Def endant wa s convicted of

ag g ravated assaul t , a C l as s C felony . As a Rang e I , standard of fe nd e r, the se nte nc ing ran g e fo r a Cla ss C fe lon y

is n ot l e ss tha n th re e y e ars no r m or e tha n s ix y ear s. Tenn. Code Ann. § 40-35-112( a)( 3). The presumptive sentenc e for a C lass C felony is the minimum sent en ce i n t h e range if there are no enhanc ement or mitig ating fac tors. Id . § 40-35- 210(c)

. Should there be enhance ment but no mitigating fac tors, the trial court may set the sentenc e above the minimum but stil l within the rang e. Id. -210(d) . I f both enha ncing and mitigating f actor s are prese nt, the trial court m u s t s t ar t at the minimum sentence of the ra ng e, enhance the sentenc e wi thi n th e ra ng e a s a

pp ro pr ia te fo r the e nh a nc ing fa c tor s, a ndthe n r e du c e the se nte nc e a s a pp ro pr ia te for the mitig ating fac tors. Id . § -210(e ).

Def endant a rg ues that the trial c ourt err ed in apply ing enhanc ement factors (2) , (9) a nd (14) beca use the trial c ourt’s finding s are based on the same fa cts. At the most, Defe ndant arg ues that the thr e e fa c tor s sh ou ld b e me rg e d s o th a t on e e nh a nc e me nt fa c tor is a pp lie d, bu t he do e s n ot s ug g e st which fa ctor should s urvive. Certainly , Def endant ha s a long history of criminal convictions and behavior in addition to thos e nec essary to e stablish the a

ppropriate rang e. Id. § 40-35-114( 2). Since turning eig hteen in 1989, De fenda nt has amassed thirty -three convictions including two convictions for possession of m arijuana , one assault conviction, one vehicular assault conviction, one attempted burg lary conviction, one thef

t conviction, three misde me an o r r e c kle s s e n d an g e rme n t c o n v ictions and one fe lony

rec kless endang erme nt conviction. The trial c ourt properly applied enhanceme nt fac tor (2). Reg ardle ss of the extent of the defe ndant’s criminal hist ory , howeve r, a de fenda nt’s sentenc e ma y a lso be e nh a nc e d if

the re is e vid e nc e that th e de fe nd a nt h a s p re viousl y be e n u ns uc c e ssf ul i n c o mp lyin g w ith th e c o n d it io n s o f p robation. Id. 40-35-114( 9). F actor (14) may be applied if

the defe ndant comm i t s t h e o ff ense f or which he is being sentenc ed while on pr obation. Id. 40-35- 114(9).

Def

endant admitted that he committed the cur rent off ense w hile he wa s on probation for a prior felony conviction for rec kless endang erme nt w ith a deadly wea pon in P o l kC ounty

.-8-

Conside ra t i o n of fa ctor (14) in determining the leng th of Def endant’ s sentence was ther efor e appropriate.

We a g re e wi th D e fe nd a nt’ s a rg ume nt that th e tr ia l c ou rt ma y no t use the c ur

re nt o ff e ns e to support application of f

actor (9) be caus e fa ct o r (9) a pplies when ther e is a previous history of unwillingness to comply

wi t h t h e conditions of probation. State v. Hay es , 899 S.W .2d 175, 186 (Tenn. Crim. App. 1995) . Although it appe ars a s D ef en d ant arg ues that the trial c ourt relied pr ima ri ly on the re vo c a tio n o f hi s prob a tio n f or his fe lon y

re c kle ss e nd a ng e rm e nt c on vic tio n to su pp ort app lic a tio n o f f a c tor (9 ), the tr ia l c ou rt

a lso ob se rv e d th a t D e fe nd a nt h a d f a ile d to
succe ssfully

complete his probation for his misdemeanor convictions also. Def endant, f or example, was plac ed on probation for a period of three hundred a nd six ty -four day s on Dec ember

10, 1991 as
a re sult of a mis d emeanor theft c onviction. On J anuary 22, 1992, Def

endant wa s arr ested for
e va din g arr e st a ndre c kles s e nd a ng e rm e nt. I n a dd iti on , D e fe nd a nt w a s a rr e ste d f or drivi ng wh ile int oxic ate d on Ma

rc h 2 8, 19 92 , d ri vin g wi th a su sp e nd e d li c e ns e on Ma y 15 , 1 99 2, a ndsimple possession of marijuana on May 15, 1992. As part of his se ntence arising out of the April 3, 1992 DUI conviction, Def

endant wa s order ed to attend the CAD AS alcohol and dr ug treatment prog ram but failed to do so. Def

endant admitted that he did not attend the prog ram a lthough he testified that he a tte nd e d a

“ DU I sc ho ol. ” B a se d u po n o ur re vie w, we fi ndthat th e trial cou rt di d no t e rr in apply ing f

actor (9) in dete rmining the leng th of Def endant’ s sentence

. Def endant also arg ues that the trial court err ed in not considering any mitigation fa ctors but does not sug g est which fa ctors he be lieves the tri al co u rt s h ould have a pplied. At the sentenc ing he ari ng , D e fe nd a nt a

rg ue d th a t th e fo llo wi ng fa c tor s sh ou ld b e c on sid e re d in mit ig a tio n of the le ng th of his sentenc e: fa ctor (2) , Def endant acte d under strong provocation; fa ctor (3) , substantial gr ounds exis ted which tende d to justi fy or excuse D ef

en d an t ’s conduct; factor ( 11), De fenda nt committed the offe nse under

such unusual conditions that it is unli kely that a sustained intent to violate the law mot ivate d h is c on du c t; a ndfa c tor (1 2) , D e fe nd a nt acted un der dure ss. Th e tr ia l c ou rt de c lin e d to apply these mitigating f

actor s because it found that the evidenc e showed that De fenda nt rec og nized the victim, ga ve cha se, and se t up the s eq u en ce of eve nts culminating in the victim’s death. The evidenc e does not pre ponderate ag ainst the t rial court’s finding . Def endant is not entitled to relief on this iss ue.
CO NC LU SION The judg ment of the trial c ourt is affirmed.

___________________________________ THOMAS T. WOODAL

L , J UDGE