# FILED
September 23, 1997 Cecil Crowson, Jr
. App ellate C ou rt Clerk IN THE COUR

T OF CRIMIN AL APPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1997 SESSION
STATE OF TENNESSEE, ) C.C.A. No. 03C01-9606-CR-00241 ) Appellee, ) HAMIL TON CO UNTY ) VS. ) HON. DOU GL AS A. M EYER, JUDG E ) CHARLES STEVE MILLER, ) (Facilitation of Murder 2nd, ) A buse of Corpse) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : JE RR Y S . S LO AN JOHN KNOX WALKUP 730 Cherry

Street, Suite C Attorney Gen eral and Repor ter Chattanooga, TN 37402 ME RR IL YN FE IR MAN Assistant Attorney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 WILLIA M H. COX, III Distric t Attorney General DAVID DENNY Assistant D istrict A

ttorney Gener

al 600 Market Str

eet Chattanooga, TN 37402

OPINI ON FI LED:
AF FIRMED

CHRIS CR

AF T, SPECIA L JUDGE

O P I N I O N1 In 1990, the legislature a mended T.C.A. § 39-13-210, adding § 39-13-210(a)(2), which additiona lly d efines M urder 2n d Degr ee as a “ reckle ss killing

of anothe r which r esults from the u

nlawful d istribution of any

Schedule I or S chedule

II drug when such d

rug is the proximate cause of the death of the user.” The dr ug which caused the death of the victi m in t his ca se was cocain e, a Sc hedul e II drug. 2 The defendant, CharlesSteve Mill er, appeals as of right from a sentence imposed by the Hamilton County Criminal Court after hi s guilty plea to Facilitat ion of Murder Second Degree. He received a 10 year sentence to be served in the custody of the D epartment of Correcti on. The defendant contends t hat 1) his se ntence was excessive, and 2) that he s hould have been granted an alternativ e sentence to confinement. We affirm the judgment of the tri al court. The defendant was i ndicted for Mur der Second Degr

ee, 1 a Class A felony, and Abuse of a Corpse, a C lass E felony

. Pursuant to a plea agr eement, the defendant entered a guil ty plea to the lesser included offense of Faci litation of Mur der Second Degree, a C las s B felony, asa Range One, Standard Offender, leav ing the determination of punishment, which would fall b etween 8 and 12 years, to the trial court. He also pled guil ty to Abuse of a Corpse, ag reeing to a 2 year sentence, to be served concurrentl y wi th the sentence he w ould ultimately

receive on his more ser ious charge. Wh en an appe al c hall eng es t he l eng th, r ang e, or mann er o f ser

vi ce of a sentence, this Co urt con ducts a de novo review with a pr

esumption that the determination of the trial court was correct. T. C . A. § 40-35-401( d). Howev er, the presumption of correctnessis "conditi oned upon the affirmative showing in the record thatthe trial court consid ered the sentencing principles and all rel evant facts and circumstances ." Stat e v. Ashby , 823 S.W .2d 166, 169 (Tenn . 1991). In the event that the record fails to demonstrate such consideration, review of the sentence is purely de
novo. In this review , we must consider (1) the evidence, i f any, receiv ed at the trial and sentencing hearing, ( 2) the presentence r eport, (3) t he principl es of sentencing and arguments as to sentenci ng alternati ves, (4) the nature and cha racteristi cs of the criminal conduct, (5)

any mit igating or statutory enhancement factors, (6) any statement

that the defendant made on his own behalf and ( 7) the potential for reha bilitation or treatment. T.C .A. §§ 40-35-102, -103 and -210; s ee Ashby , 82 33

S.W.2d at 168; State v. Moss , 727 S.W.2d 229, 236-37 (Tenn. 1986). The facts of defendant’s offense are uncontroverte d. He had know n the vic tim, Phyllis Miller, from 1966 until her death in 1993. They

had date d off and on , were married in 1974, divorced in 1984, and then after thedivorce continued to li ve together up until the ti me of the victi m’s death, ev en tho ugh having no further sex ual relationshi p. Their living together a ppeared to be for financ ial and drug -related purposes only, as the victi m had a date planned w ith anot her ma n the night of her death. From the time of their ma rriage the y both use d illegal dr ugs on a weekly basis. She used coc aine an d he use d PCP, in h is words, un til it “just about go t where you couldn’t find it,” and th en he switched to cocaineas well . The two of them would inject cocaine “just abo ut every weekend.” The weekend of her death, the defendant testified that [I]tstarted on Thurs day, and we’d been doi ng some Thursday night. She had to go to work F riday, and she did.... And t hen during th e day, she’d get a break and I’d go over and meet her and she’d do some more. And that afternoon w hen she got off of work, we went str aight from her job down to w here we pi ck our drug s up and bought some mor e, and we we nt home...and we did one when we got home, each of us, and then we was doing another one and she was fix ing to take a shower.. .and all of a sudden, she just laid back.”
The defendant removed her from the bathtub, placed h er on the bed, and tr ied to revive her for about 45 minu tes, to no avail. There is n o proof in t he record he ever attempted to call for

emergency medical help during this time. He left her body on the bed from that Friday aft ernoon until sundown Saturday, at which time he placed it in the hatchback of his car, intend ing to dispose of it secretly. He continued to use cocaine that Friday and Saturday. He also made a tri p back to the drug house where they had bought thei r weekend cocaine during thi s time, and kept up a pretens e with the victim’ s family that all was well. When he ran out o f coca ine Sun day morn ing, he finally called her famil y and the poli ce, still “high” by his ow n admission when he tal ked to the police about what had h appened. He at fir st gave the police a detailed fabrication a bou t how the v ictim had died at another locat ion, and that one of her friends had calle d him to co me p ick up her b ody, which he had then placed in his car. When he re alize d the polic e did not b elie ve him, he then told them the tr uth about the2 T.C.A. § 40-35-1 14(1)
3 T.C.A. § 40-35-1 14(7)

4 T.C.A. § 40-35-114(13)(C) 4 circumstances

surrounding her death. The presentence r

eport reve als that the defenda nt has a crimi nal record of substance abuse going bac k t o 1974, when he was conv icted of glue s niffing and marijuana possession. His convictions include cocaine possession , mult ip le DUI convictions, and possession of drug paraphernalia

. His only felony conv iction was for Felonious Operation of a Motor Vehicle, f or whic h he recei ved one ye ar in the workhouse. He had also be en placed on a communi ty correctio ns program in 1994. He has a hig h school degr ee and some colleg e, dropping o ut when his wife became pregnant. Atthe time of his sentencing hearing, he was unem ployed, even though his former employer stated it would be glad to have him return to work, despite his past drug use. He cur rently l ived in a free apartment w ith another w oman who was on disa bilit y. The defendant admitted that he had been using cocaine for 25 years, hav ing received treatment for hisaddiction thr ee times at Moc casin Bend. He claimed tohave stopped using cocaine on his ow n in May, 1995, about 22 mo nths after the victim’s death, 7 months prior

to the hearing

. The defendant was on p robation at the time of the commission of the offense. The trial cour

t imposed a 10 year

sentence in the Department of Corr ection, finding t hree enh ancement factors: 1) that the defendant had a pr evious his tory of criminal convicti ons or

criminal behavior in additional to those nece ssary to establish the appropriate r

ange, 2 2) that the offe nse involved a vict i m and was commi tted to gratify the defendant ’s desire for pleasure or exci tement, 3 and 3) that the felo ny was committed whi le the defendant was on probation. 4

That the d efe nda nt ha s a pre vi ous hi story of cr iminal conv ictions or criminal behavior is amply supported by the record. The presentence repo rt showed ele ven prior misdemeanor convictions, primarily for drug o r alcohol abus e, and one felony driving convicti on. Although n ot mentioned by the trial cour t, this Cour

t can and does5

al so consider the constant abuse of cocaine or PCP and othe r substances o ver th e last 25 years as “cr imin al be havio r,” eve n when no cri mina l con victio ns ha ve resulted from such behavi or. State v. H unter , 926 S.W.2d 744, 748-749 (Tenn. Cri m. App. 1995). That this offense wascommitted to gratify the defendant’s pleasu re is borne out by the defendan t’s test imony in the hearing a s to their l ong partners hip in drug use, and his statement tothe police abou t the ir usi ng dru gs toge ther to en sure thei r saf ety. He stated in his confessi on, when asked if he used cocaine w hile the v ictim took her last “hit” before she died, that “I didn’t rig ht then. I let her do hers. I like to watch her. I don’t want to be s keetso if something hap pens.” She, likewise, would watch him when he “did his. ” Defendant admits in his bri ef that the type o f relations hip that he and the victim had “was one where they both procured and shared dru gs ob tained from a st reet

deal er. ” Theunl awfu l di str ibut ion of cocaine resulting in the victim’s death therefore was committed f or their mutual pleasure , in the context of the facts of this case. Althoug h the trial co urt found that the defendant see med to get pleasure from watching her use drugs, for which there is little proof in the record, i t is clear that the defendant’s obtaini ng drugs for their mutual use aided his use of drugs, and was therefore committed to gratify his desire for the pleasure of his own drug use, as well as hers. The trial cour

t’s finding as an enh ancement factor that the defendant was on probation at the time of the offense was err or. T.C.A. § 40- 35-114(13) pr ovides that itis an enhancement

factor if the felony

was committed while o n “any of the foll owing forms of release stat us,” listing probation in s ubsection (c) as one quali fying form of release status, only “if such release status is from a prior felony conviction.” T h e presentence repo rt sho ws that although the def endant was on probation, it was for a misdemeanor

offense, not a felony. Therefore, this factor cannot be used to enhance defendant ’s sentence. How ever, becaus e the record s hows that defend ant bought, delivered to the victim, and used cocaine repea tedly while on probation, this Court finds an additional e nhancement factor, that the defendant

“has a prev ious histor

y of unwillingness to comply w ith th e con ditions of a sentence involv ing releas e into the5 T.C.A. § 40-35-1 14(8)
6 T.C.A. § 40-35-1 13(4)

7 T.C.A. § 40-35-1 13(9)
8 T.C.A. § 40-35-1 13(11)
9 T.C.A. § 39-11-403 6 community,” 5 due to his constant purchase and use of illegal drugs w hile on probati on. The trial courtalso found three mi tigating factors: 1) tha t the defendant played
a minor role i n the commission of the offense, 6 2) that he ass isted the aut horities i n apprehending other

persons w ho had committed the offense, 7 and 3) that there were unusual circu msta nces surro und ing th e dea th of the vi ctim, the trial court stating t herefore that “maybe t hat was not a sustained intent to viol ate the l aw.” 8 Eac h mitigating circumstance the court found “somewhat,”which thi s Court takes to mean thatalthough the t rial court found th e mitigating factors to exist, it gave them little weight. From the record before us, the trial court was very generous tothe defendant in givin g these t hree factors any weight at all. The defendant a dmitted to prepar ing
one of the “hits” of cocaine the v ictim took theafternoon she died, and in fact took her to buy th e cocaine, and too k her cocaineto use whi le she was at work the day sh e died, which would hardly qualify as a “minor r ole.” The defendant w as convic

ted of Facilitati on, 9 defined as knowingly furnishing s ubstantial ass istance in thecommission of the fe lony, alth ough lacking the necessary intent to be criminally responsible for the felony itself. He clearly had a major role in furnishing t his assistance, even thoug h not intending the death of the victim. Also , althou gh the defendant eventual ly “ass isted the authorities” by telli ng the authori ties whot he person was who sol d him the cocaine , and admitting towhat he hims elf had done, he at firs t led them on w hat could be de scribed as a “wil d goos e chase ,” pur poseful ly mi sdire cting the in vest igat ion. Th e third miti gato r the trial cour t fo und , sta ted f ully in T.C.A. § 40-35-113(11) as that the defendant, “although g uilty of the crime, committed the offense under such unu sual circumstances

that it is unlikely

that a sustaine d intent

to violate the law motivated his conduct ,” is not supported by the proof. T he trial judge stated, when findin g thi s mitigating factor present, that10 T.C.A. § 40-35-3 06 (a)
11 T.C.A. § 40-35-3 03(a) 7 Number 11, about the unusual circumstance, it’s not r eally unus ual in that sense, but there was a mutu al sharing of drugs, so may be that was not a sustained intent

to violate the law s o again, I find those somewhat. The defen dant’s steady use of illegal d rugs ov er 25 years, and particularly obtaini ng for and shooting cocaine with this particular victim weekly for at least 9 years before her death, does not show at all that “i t is unlikely that a s ustained intent to violate the law motivated hi s conduct.” The “substantial assistanc e” he fur nish ed was clea rly a violatio n of the law. Also, the defen dant was well aware at t he time of the offense that he or the victim could die from the “hits” they injected, and watched each other fo r this purpose, so that to the defend an t, the vic tim’s death w

as not at all under “unusual circumstances .” According to the defendant’s testimony , he and the vi ctim had even made a promise to eac h other “ov er the year s” that if eith er one of them di ed of an overdose, t he other woul d dispose of the body , planning for such an event. The record suppor

ts the applica tion of enhancement factors (1) and (7) , and althou gh the applicati on of enhancement factor (1 3) is not pr oper due to the def endant’ s being on only misdemeanor probatio n, enhancemen t factor (8) is applicable to defendant ’s co nviction. Mitig ating factor ( 11) is not su pported by th e record, and the two remaining mitigating factors, (4) and (9), are entitled to little w eight. The record ther

efore fully suppo rts the sentence of ten years g iven the defendant b y the trial j udge. The defendant also contends that he should hav e receive d “split confinement” pursuant to T.C.A. § 40-3 5-306. We disagree. Split confinement o nly appli es to defendants receivi ng probation. 10 The defend ant is ineligible for probation becau se his

sentence is in excess of eight years. 11 Therefore the def endant is ineligible for “split confinement.” The judgment of the trial court is AFFIRMED.8 CHRIS CR

AFT, SPECIAL JU DGE

CONCUR:

JERRY L. SMITH, JUDG E

JOE RILEY, JUDGE