# FILED
August 14, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JUNE 1998 SESS ION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9707-CR-00252

) ) Hamilton County v. ) ) Honorable Stephen M. Bevil , Judge ) ALGERNON WILLIE RICE, ) (Second degree murder) ) Appellant. ) For the Appellant : For the Appellee : Ardena J. Garth John Knox Walkup District Public Defender Attorney General of Tennessee and and Richard K. Mabee Clinton J. Morgan Assistant Public Defender Assistant Attorney Gener al of Tennessee 701 Cherry Street, Suit e 300 425 Fifth Avenue North Chattanooga, TN 37402 Nashville, TN 37243-0493 (AT TRIAL) William H. Cox, III Ardena J. Garth District Attorney General District Public Defender and and Bates W. Bryan, Jr. Donna Robinson Miller Assistant District A ttorney General Assistant Public Defender 600 Market Street, Suite 310 701 Cherry Street, Suit e 300 Chattanooga, TN 37402 Chattanooga, TN 37402 (ON APPEAL)

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Algernon W illie Rice, appeals as of right from his conviction upon a guilty plea in the Hamilton C ounty Criminal Court for second degree murder, a Class A felony. The trial court sentenced the defendant as a Range I, standard offender to twenty y ears in the Department of Corr ection. The defendant contends that the trial cour t erred by applying

enhancement factors and by failing to consider mitigating factors. We affirm the judgment of conviction.

This case involves the stabbing death of Amy Simon, an eighty-six-yearold neighbor of the defendant. The defendant was charged with first degree murder, and he entered a guilty pl ea to second degree murder pur suant to an agreement.
At the sentencing hearing , the defendant testified that he had no pri or felony convictions, but he admitted that he had been convicted of assault and battery approximately ten y

ears earlier. The defendant denied hi s guilt for this prior conviction. He said that he stayed at a mental health facility for thi rty days after the commis sion of the assault and battery. He stated that he had received psychiatric treatment all of his life and that he had to take medicine for a nerve condition. The defendant ex plained that he was in a wrec

k that caused brain damage and r esulted in nineteen operations. The defendant admitted that he had drug and al cohol problems and that he recei ved treatment for his addictions. Regarding his employ ment history, the defendant testified that he had tried to work but that he was unable to do so because he suffered from arthritis and back pain. The defendant denied killing the v ictim, who he described as being like his aunt, and he claimed that he would nev er hurt anyone. The defendant claimed that he was at the w rong place at the wron g time.3 On cross-examination, t he defendant testified that on the night of the offense, he drank some beer and the n went to the victim’s apartment to tell her to turn her television down because the volume was too loud. He stated that the victim’s apartment door was open a little. The defendant said that when he knocked on the door, it opened and he saw the victim lying face down in blood. He testified that he asked two neighbors for help and that one of the neighbors c alled the ambulance. The defendant testified that he then left with his brother.

The defendant testified that he was q uestioned on three occasions regarding the victim’s death. He said that on the first two occasions, he told the office rs that he did not kill the victim. He acknowledged that he told the officers during the f irst questioning that he had been cutting pork and during the second questioning that he had been cutting chicken. The de fendant testified that he confessed when q uestioned the third time. The defendant testified th at he did not stab the victi m. The defendant claimed that he lied when he told the officers that he killed the victim because he w as intoxicated, medicated and sc ared. He stated that he told the officers that he had been drinking and taking medi cation on the night of the offense.

The defendant acknowledged that he g ave a statement to police detai ling that the victim said, “

Oh, my God,” when he stabbed her, but he claimed that he concocted the story. He said that he also made up other st atements that he told the officers, including that he w ent back to his apartment, ri nsed off the knife, went back to the victim’s apartment, and called the police. The defe ndant asserted that the knife did not have any blood on it. The defendant testified that he did not hav e an explanation for why he made up the details of the crime.

John Rice, the defendant’s brother, testified that he was paralyzed as a result of an accident two years earlier. He stated that the defendant cared for him. He4

said that the defendant had been a good br other to him. He stated that the defendant had mental problems.

The presentence report reflects that the then thirty-seven-year-old defendant graduated from high school and that he was unemployed. It shows that the defendant denied committing the cri mes and claimed that he confessed to ki lling the victim after repeated questioning because he had a bad nervous cond ition. The report states that the defendant had been treated s everal times for mental probl ems resulting from an automobile accident when he was two years old. The report describes t he defendant’s psychiatric hi story as extensiv e. The presentence report states that the defendant’s medical records are attached to the report. How ever, the medical recor ds are not included in the record on appeal. The report refle cts that the defendant said that he was in poor health, suffering from arthritis, back problem s, and poor nerves. He also reported that he began dr inking alcohol at the ag e of twelve, and he said tha t he drank as much as a case and a half of beer at a time, even while taking medication. The defendant said that he began using crack cocaine at the age of tw enty-seven and that he used it as often as possibl e, at least three times a w eek. It states that the investigating officer

did not believe that the defendant planned to kill the vic tim. The presentence report reflects t hat the defendant had no prior felony c onvictions but that he had been convicted of a misdemeanor assault and battery in 1987.

At the conclusion of the sentencing hearing, the trial cour

t sentenced the defendant as a Range I, standard offender to twenty years in the Department of Correction. In sentencing the defendant, the court found that the statement given by the defendant to police accurately reflected the events that occurred on the night of the offense. It determined that the defendant’s tes timony was not truthful. It applied the following enhancement factors pursuant to T.C.A. § 40-35-114:5 (1) the defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; (4) the victim was particularly vulnerable because of age; and (9 ) the defendant possessed or employed a deadly weap o n during the commission of the offense. In applying factor (4) , the trial court stated t hat although age does not by itself show vulnerab ility, it be lieved tha t judicia l notice m ay be take n of the fact tha t an eight y-sixyear-old person is not

able to defend himself or herself and is less likely to sur

vive an attack. With respect to mitigation, the trial court found that the defendant su ffered from a mental or physical condi tion that reduced his culpabi lity for the offense. See T.C.A. § 40-35-113(8).

Appellate review of sentencing is de novo on the record with a presumption that the trial co urt's determinations are c orrect. T.C.A. § 40-35-401( d). As the Sentencing Commission C omments to this section notes, the burden is now on the defendant to show that the sentence is improper. T his means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due consideration and proper weight to the fa ctors and principles that are r elevant to sentencing under the 1989 Sentencing Act, w e may not disturb the sentence even if a different result were pr eferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, "the presumpti on of correctness which ac companies the trial court's action is condit ioned upon the affirmative showi ng in the record that the tr ial court considered the sentenci ng principles and all relevant facts and circums tances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of meaning ful appe llate revie w,

the trial court must place on the record its reasons for arriv ing at the final sentencing decision, identif y th e mitigating and enhancement factors found, state the specific facts supporting6 each enhancement factor found, and articulate h ow the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. T.C.A. §40-35-2 10(f) (1990). State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994). In conducting a de novo review, we must consider (1) the ev idence, if any, receiv

ed at the trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives, (4) the

nature and characteristic s of the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on his own behalf and (7) the potential for rehabilitation or tre atment. T.C.A. §§ 40-35-102, -103 and -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229, 236-37 (Tenn. 1986).

The defendant contends that the trial cour t erred by applying enhancement factors (1) and (4) and by failing to consider in mitigation the defendant’s lack of a felony record and the defendant’s caring for his si blings. See T.C.A. § 40-35- 113(13). He argues that t he trial court did not pr operly weigh the enhancement and mitigating factors and that a minimum sentence was w arranted under the circumstances of the case.

Initially, we note

that the record on appeal does not contain a transcript of the guilty plea heari ng at which the conv icting evidence w

ould have been presented by stipulation or testimony. In order for us to conduct a proper de novo review, the gui lty plea hearing transcri pt should be made a part of the record on appeal. The defendant must prepare a transcript o f the evidence that is necessa ry to convey a fair , accurate and complete account of what trans pired with respect to those issues that are rais ed on appeal. T.R.A.P. 24(b).

The defendant contends that the trial cour t erred by applying enhancement factor (1). He argues that one conviction for misd emeanor assault7

occurring approximately ten years earlier did not demonstrate significant criminal history such as to require approp riate enhancement. We disagree. The proof show ed that the defendant not only had a prior c riminal conviction but also that he had a previous history of criminal behav ior in that he used crack cocaine.

Next, the defendant asserts that the trial court erred b

y applying enhancement factor (4), the vi ctim was particular ly vulnerable becaus

e of her age. In making its sentencing d etermination regarding the application of factor (4), the trial court should consider w hether the proof establishes that because of the victim’s ag e or physical or mental attr

ibutes, the victim w

as unable to resist, summon help or testify at a later date. State v. Kissinger, 864 S.W.2d 482, 487 (Tenn. 1996); State v. Ada ms , 864 S.W.2d 31, 35 (Tenn. 1993); State v. Poole , 945 S.W.2d 93, 96 (Tenn. 1997). The state bears the burden of provi ng the victim’s li mitations that render him or her particularly vul nerable, in addition to the v ictim’s age, relativ

e to the offense committed. Adams , 864 S.W.2d at 35. It cann ot be presumed that the victim was particularly vulnerable based solely on the victim’s age. Poole , 945 S.W.2d at 98.
In this respect, we do no t believe that the trial

court could take judicia l notice that the victim w as particularly v

ulnerable solely becaus e of her age, rather than relying upon the ev

idence. However, w

e cannot be certain that the ci rcumstances disclosed at the guilty

plea do not support such a finding . Absent a record of the guil ty plea hearing, we are u nable to perform a complete de novo review. Giv en the state of the record, we presume the trial court was cor rect in its determinations regarding factor (4). See State v. Jones , 623 S.W.2d 129, 13 1 (Tenn. Crim. App. 1981).

As for the defendant’s argument that the trial court erred by

failing to consider the defendant’s lack of a prior felony record in mitigation, we disagree. The8

defendant had a misdemeano r conviction and had a prior history of criminal behavior in that the defendant admitted using cr ack cocaine.

However, the trial court should have considered the defendant’s contributions to the support of his family. See State v. McKnight , 900 S.W.2d 36, 55 (Tenn. Crim. App. 1994) (“The defendan t would normally be due some favorable consideration based upon his famil y contributions . . . . ”). However, w e hold that the mitigating factor is not

entitled to much weight

.
As for the defendant’s argument that the trial court improperl

y weighed the enhancement and mitigating factor s, we note that the wei ght to be afforded an existing factor is left to the trial c ourt’s discretion so l ong as it complies wi th the purposes and principles of the 1989 Sentencing Act and its findings are ad equately supported by the record. T.C.A. § 40-35-210, S entencing Commission Comments; Moss , 727 S.W.2d at 237; Ashby , 823 S.W.2d at 169. The record before us supports the weight given t o the applicable enhancement and mitigating factors by the trial court. Th e record also supports the twenty-

year sentence imposed by the trial court.
In consideration of the foregoing and the record as a whole , we affirm the judgment of conviction.

____________________________ Joseph M. Tipton, Judge

CONCUR:9

___________________________ John H. Peay, Jud ge

___________________________ David G. Hayes, Judge