Summary
holding that application of factor, based on risk to children in house, was inappropriately applied to defendant's reckless homicide conviction when defendant received separate reckless endangerment conviction for risk caused to children
Summary of this case from State v. HarberOpinion
No. E1999-00344-CCA-R3-CD.
Decided June 15, 2000.
Appeal from the Circuit Court for Cocke County, Ben W. Hooper, II, Judge, Nos. 6925, 6926.
Affirmed.
Edward Cantrell Miller, District Public Defender, and Dennis C. Campbell, Assistant District Public Defender, Sevierville, Tennessee, for the appellant Ricky Williams.
Paul G. Summers, Attorney General and Reporter, Clinton J. Morgan, Assistant Attorney General, Al C. Schmutzer, Jr., District Attorney General, and James B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.
Defendant Ricky Williams was convicted by a jury of reckless homicide and reckless endangerment. Following a sentencing hearing, the trial court sentenced Defendant as a Range I standard offender to consecutive terms of four years for reckless homicide and two years for reckless endangerment. Defendant challenges his sentences, raising the following issues: (1) whether the trial court erroneously imposed excessive sentences; and (2) whether the trial court erred when it imposed consecutive sentencing. The judgment of the trial court is affirmed.
OPINION
I. FACTS
Angela Holloway testified that on January 19, 1997, Defendant came to her house and told her that he was having problems with his girlfriend, April Hawthorne. At approximately 8:00 or 9:00 p.m., Defendant left and took Holloway's two children with him to spend the night at his residence. Defendant subsequently returned and spent approximately three hours talking to Holloway before he left again. Defendant returned to Holloway's residence at approximately 2:30 a.m. to use the telephone to call 911 and report that Hawthorne had been shot.
Deputy Richard Caldwell of the Cocke County Sheriff's Department testified that he responded to a report of a shooting at the residence of Defendant and Hawthorne. When Caldwell arrived at the residence, he saw two very young children sitting on a couch. Caldwell also observed that Defendant was holding Hawthorne, who had a bandage on her head. Caldwell also observed that Defendant was hollering and screaming for someone to help Hawthorne.
Richard Caldwell testified that he found a .22 rifle in the kitchen of the residence. Caldwell also discovered two shell casings and he observed that there was a bullet hole in a cabinet and another bullet hole in a blanket that was hanging in a doorway between the kitchen and the room where the victim was found.
Detective Robert Caldwell of the Cocke County Sheriff's Department testified that three empty shell casings were discovered at the scene of the shooting. Two shell casings were in the kitchen and one shell casing was in the playroom between the kitchen and the room where the victim was shot. Caldwell subsequently learned during his investigation that the two children had been sleeping on a couch about six feet from where the blanket with a bullet hole in it was hanging.
Robert Caldwell testified that Defendant gave a written statement on January 20, 1997. Defendant stated that after he took Holloway's children to his residence, Hawthorne became angry about having to babysit. Defendant stated that he then went back to Holloway's residence, and he returned to his residence at approximately 2:00 a.m. Defendant stated that he took a rifle from his car and took it into the house where Hawthorne was sleeping in a bed and the children were sleeping on a couch. Defendant stated that he went into the kitchen and then fired one shot at a cabinet, one shot toward the playroom, and another shot at the blanket between the kitchen and the living room. Defendant stated that at this point, he heard a thump, and when he went into the living room, he saw that Hawthorne had been shot. Defendant stated that he then tied a shirt on Hawthorne's head and he went back to Holloway's residence to call 911.
Dr. Cleland Blake testified that he performed an autopsy of the body of April Hawthorne. Dr. Blake observed that there was a .22 caliber bullet wound in the left center of the forehead. Dr. Blake also discovered a .22 caliber bullet in the back of the head.
Defendant testified that he was drinking beer all day on January 19, 1997. Defendant testified that when he entered his home at approximately 2:00 a.m., he observed that Hawthorne was in a bed to his left and Holloway's children were on a couch to his right. Defendant then walked through the doorway where the blanket was hanging and he went to the kitchen. Defendant took his rifle and fired one shot at a cabinet, a second shot toward the playroom or the bathroom, and a third shot at the blanket. Defendant admitted that he knew that it was dangerous to fire a gun in a house, but he denied that he was trying to hurt anyone.
Defendant testified that after he fired the third shot, he heard a thump. Defendant then went into the other room and saw that Hawthorne had been shot in the head. Defendant tried to stop the bleeding by tying a shirt on Hawthorne's head and he then went to Holloway's residence to call 911.
II. LENGTH OF SENTENCES
Defendant contends that the trial court erroneously imposed longer sentences than he deserves for his convictions.
"When reviewing sentencing issues . . . including the granting or denial of probation and the length of sentence, the appellate court shall conduct a de novo review on the record of such issues. Such review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d) (1997). "However, the presumption of correctness which accompanies the trial court's action is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we must consider all the evidence, the presentence report, the sentencing principles, the enhancing and mitigating factors, arguments of counsel, the defendant's statements, the nature and character of the offense, and the defendant's potential for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 Supp. 1999); Ashby, 823 S.W.2d at 169. "The defendant has the burden of demonstrating that the sentence is improper." Id. Because the record in this case indicates that the trial court did not consider the sentencing principles and all relevant facts and circumstances, our review is de novo without a presumption of correctness.
Defendant was convicted of reckless homicide and reckless endangerment with a deadly weapon, which are Class D and Class E felonies respectively. See Tenn. Code Ann. §§ 39-13-103(b), -215(b). The sentence for a Range I offender convicted of a Class D felony is between two and four years and the sentence for a Class E felony is between one and two years. Tenn. Code Ann. § 40-35-112(a)(4)-(5) (1997). If there are enhancement but no mitigating factors, the court may set the sentence above the minimum but still within the range. Tenn. Code Ann.§ 40-35-210(d) (1997). If there are enhancement and mitigating factors, the court must start at the minimum sentence in the range, enhance the sentence within the range as appropriate for the enhancement factors, then reduce the sentence within the range as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e) (1997).
A.
The record indicates that in determining that Defendant should receive a sentence of four years for his reckless homicide conviction, the trial court found that the following enhancement factors applied: (1) Defendant has a previous history of criminal convictions or behavior in addition to those necessary to establish the appropriate range; (8) Defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release into the community; (9) Defendant used a firearm during the commission of the offense; (10) Defendant had no hesitation about committing an offense when the risk to human life was high; (13)(C) Defendant committed the offense while on probation for a prior felony conviction; (16) the crime was committed under circumstances where the potential for bodily injury to a victim was great; and (20) Defendant was adjudicated to have committed delinquent acts as a juvenile that would have been felonies if committed by an adult. See Tenn. Code Ann. § 40-35-114(1), (8), (9), (10), (13)(C), (16), (20) (1997). The trial court also found that none of the enumerated mitigating factors of Tennessee Code Annotated section 40-35-113 were applicable.
Defendant does not challenge the application of enhancement factor (1), and we conclude that it was properly applied. The presentence report indicates that Defendant has previous convictions for burglary, theft, DUI, and reckless endangerment. In addition, the presentence report indicates that Defendant admitted using Valium and marijuana while incarcerated in the Cocke County jail.
Defendant does not challenge the application of enhancement factor (8), but we conclude that it was improperly applied. The trial court apparently applied this factor because Defendant committed the offenses in this case while he was on probation for previous convictions. However, this Court has previously held that factor (8) cannot be applied simply because a defendant committed the offense for which he or she is being sentenced while on probation. See State v. Hayes, 899 S.W.2d 175, 186 (Tenn.Crim.App. 1995). Thus, factor (8) was not applicable.
Defendant does not challenge the application of enhancement factor (9) and we conclude that it was properly applied. Use of a firearm is not an essential element of the crime of reckless homicide and thus, factor (9) may be applied to enhance a sentence for a reckless homicide conviction. See State v. Bobby Joe Russell, No. 03C01-9608-CR-00319, 1997 WL 573475, at *6 (Tenn.Crim.App., Knoxville, Sept. 16, 1997), app. denied, (Tenn. April 27, 1998).
Defendant contends that the trial court erred when it applied enhancement factor (10) and the State agrees that this factor was not applicable. The general rule is that an enhancement factor may not be applied when the factor is inherent in the crime itself. See State v. Claybrooks, 910 S.W.2d 868, 872 (Tenn.Crim.App. 1994). However, this Court has held that even when factor (10) is an element of the offense, it may still be applied where the defendant creates a high risk to the life of a person other than the victim. State v. Bingham 910 S.W.2d 448, 452 (Tenn.Crim.App. 1995). There can be no question that a high risk to human life is inherent in the crime of reckless homicide. Although Defendant did create a risk to the lives of the two small children in the residence when he committed the reckless homicide, he received a separate conviction for reckless endangerment for the risk he created to the lives of the children. Thus, application of factor (10) was inappropriate.
Defendant does not challenge the application of enhancement factor (13)(C), and we conclude that it was properly applied. There is no dispute that Defendant committed the offenses in this case while he was on probation for a prior felony burglary conviction.
Defendant does not challenge the application of enhancement factor (16), but we conclude that it was improperly applied. As previously noted, an enhancement factor may not be applied when the factor is inherent in the crime itself. See Claybrooks, 910 S.W.2d at 872. A great potential of bodily injury to a victim is clearly inherent in the crime of reckless homicide. There is a split of authority about whether enhancement factor (16) can be applied when it is inherent in the offense and there is a great potential of bodily injury to someone other than the victim. See State v. Sims, 909 S.W.2d 46, 50 (Tenn.Crim.App. 1995) (holding that the factor may be applied); Bingham, 910 S.W.2d at 452 (holding that the factor may not be applied). However, we need not resolve this dispute because in this case, Defendant was convicted of the separate offense of reckless endangerment for the risk of bodily injury that he created to the children who were not the victims of the reckless homicide offense. Thus, factor (16) was improperly applied.
Defendant does not challenge the application of enhancement factor (20), and we conclude that it was properly applied. The presentence report indicates that Defendant was adjudicated as a juvenile of the delinquent acts of aggravated burglary and second degree burglary, which would have been felonies if committed by an adult. See Tenn. Code Ann. §§ 39-1-103 (1982); 39-3-403 (1982); 39-14-403 (1997).
Defendant apparently contends that the trial court erred when it failed to apply mitigating factor (3), that substantial grounds exist tending to excuse or justify Defendant's criminal conduct, although not establishing a defense. See Tenn. Code Ann. § 40-35-113(3) (1997). We conclude that this factor was not applicable. There was absolutely no justification or excuse for Defendant's action of firing several gunshots inside a residence occupied by three other people.
Defendant apparently contends that the trial court erred when it failed to apply mitigating factor (6), that Defendant lacked substantial judgment in committing the offense because of his age.See Tenn. Code Ann. § 40-35-113(6) (1997). When determining the applicability of this mitigating factor, the sentencing court should consider "the defendant's age, education, maturity, experience, mental capacity or development, and any other pertinent circumstance tending to demonstrate the defendant's ability or inability to appreciate the nature of his conduct."State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993). The record indicates that Defendant was twenty-four years old when he committed the offenses in this case and he was well-acquainted with the criminal justice system. Factor (6) was clearly not applicable.
Defendant contends that the trial court erred when it failed to apply mitigating factor (11), that Defendant committed the crime under such unusual circumstances that it is unlikely that his criminal conduct was motivated by a sustained intent to violate the law. See Tenn. Code Ann. § 40-35-113(11) (1997). We conclude that in light of the fact that Defendant willfully fired a gunshot in the general area where he knew the victim and two small children were sleeping, factor (11) was not applicable.
Even though we hold that the trial court erred in applying three enhancement factors, a finding that enhancement factors were erroneously applied does not equate to a reduction in the sentence. State v. Keel, 882 S.W.2d 410, 423 (Tenn.Crim.App. 1994). We conclude in our de novo review that four enhancement factors and no mitigating factors apply to the reckless homicide sentence. Under these circumstances, a sentence of four years is entirely appropriate. Defendant is not entitled to relief on this issue.
B.
The record indicates that in determining that Defendant should receive a sentence of two years for his reckless endangerment conviction, the trial court found that the following enhancement factors applied: (1) Defendant has a previous history of criminal convictions or behavior in addition to those necessary to establish the appropriate range; (8) Defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release into the community; (13)(C) Defendant committed the offense while on probation for a prior felony conviction; and (20) Defendant was adjudicated to have committed delinquent acts as a juvenile that would have been felonies if committed by an adult. See Tenn. Code Ann. § 40-35-114(1), (8), (13)(C), (20) (1997). The trial court also found that none of the enumerated mitigating factors of Tennessee Code Annotated section 40-35-113 were applicable.
We conclude that for the same reasons enhancement factors (1), (13)(C), and (20) are applicable to the reckless homicide sentence, they are also applicable to the reckless endangerment sentence. Likewise, for the same reason that enhancement factor (8) was not applicable to the reckless homicide sentence, it was not applicable to the reckless endangerment sentence. As with the reckless homicide sentence, no mitigating factors are applicable to the reckless endangerment sentence.
We conclude in our de novo review that three enhancement factors and no mitigating factors apply to the reckless endangerment sentence. Under these circumstances, a sentence of two years is entirely appropriate. Defendant is not entitled to relief on this issue.
III. CONSECUTIVE SENTENCING
Defendant contends that the trial court erred when it imposed consecutive sentencing in this case.
Consecutive sentencing is governed by Tennessee Code Annotated section 40-35-115. The trial court has the discretion to order consecutive sentencing if it finds that one or more of the required statutory criteria exist. State v. Black, 924 S.W.2d 912, 917 (Tenn.Crim.App. 1995). The record indicates that the trial court based its order of consecutive sentencing on the following factors from section 40-35-115: (2) Defendant is an offender whose criminal record is extensive; (4) Defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high; and (6) Defendant's sentences in this case are for offenses that he committed while on probation. See Tenn. Code Ann. § 40-35-115(b)(2), (4), (6) (1997).
We need not address the propriety of the trial court's determination that Defendant is a dangerous offender because the record clearly supports the trial court's imposition of consecutive sentencing based on the other determinations. First, Defendant is clearly an offender whose criminal record is extensive. Defendant's prior adult criminal record consists of convictions for burglary, theft, DUI, and reckless endangerment. Defendant's juvenile record consists of adjudications for aggravated burglary, second degree burglary, theft, and public intoxication. This Court has previously stated that "[e]xtensive criminal history alone will support consecutive sentencing."State v. Adams, 973 S.W.2d 224, 231 (Tenn.Crim.App. 1997). Second, there is no dispute that Defendant committed the offenses in this case while he was on probation.
In short, we conclude that the trial court did not abuse its discretion when it imposed consecutive sentencing in this case based on a finding that Defendant had an extensive criminal record and he committed the offenses in this case while he was on probation. Defendant is not entitled to relief on this issue.
IV. PROBATION
At the conclusion of his challenge to the length of his sentences, Defendant makes the conclusory allegation that "if mitigating and enhancing factors were properly applied he would have been given a lighter sentence and placed on probation." At the conclusion of his challenge to the imposition of consecutive sentencing, Defendant makes the conclusory allegation that "[t]he appellant having served thirteen months should be placed on probation for the remainder of his three year sentence."
It is extremely unclear whether Defendant is attempting to challenge the trial court's denial of probation. Indeed, although Defendant makes two vague references to probation in his brief, his statement of the issues contains absolutely no mention of probation. These casual references are completely insufficient to raise an issue relating to a denial of probation. Moreover, even if these casual references were sufficient to raise the issue of probation, the fact remains that this issue is unsupported by any argument as to why probation would be appropriate, is unsupported by any reference to parts of the record that are relevant to a grant or denial of probation, and is unsupported by any authority relevant to the grant or denial of probation. Thus, any complaint about the denial of probation has been waived. Tenn. Ct. Crim. App.R. 10(b).
V. CONCLUSION
In conclusion, sentences of four years for reckless homicide and two years for reckless homicide are appropriate in this case. Moreover, the imposition of consecutive sentencing was proper. Accordingly, the judgment of the trial court is AFFIRMED.
Riley, J. and Glenn, J. joined.