IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED MARCH SESSION , 1999 April 22, 1999 Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9808-CC-00329 ) Appellee, ) ) ) MAURY COUNTY VS. ) ) HON. JIM T. HAMILTON, KING DAVID JOHNSON, ) JUDGE ) Appe llant. ) (Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF MAURY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE: HERSHELL D. KOGER JOHN KNOX WALKUP North First Street Attorney General and Reporter P.O. Box 1148 Pulaski, TN 38478 MARVIN E. CLEMENTS, JR. Assistant Attorney General Fifth Avenu e North Nashville, TN 37243 MIKE BOTTOMS District Attorney General P.O. Box 459 Lawrenceburg, TN 38464

OPINION FILED ________________________ SENTENCE MODIFIED; REMANDED DAVID H. WELLES, JUDGE OPINION The Defendant, King David Johnson, appeals as of right his sentence of twenty years in the D epartm ent of C orrect ion for th e sec ond d egree murd er of his girlfriend. Defenda nt was indicted in 1 993 for first degree m urder, and a jury convicted him of second degree murder in February 1996. Following a sentencing hearing, the trial court sentenced him to twenty years as a Range I offender. In his first appeal to this Court, Defendant challenged the sufficiency of the evide nce an d the leng th of his se ntence . This Court affirmed his conviction for second degree murder, but remanded his case for resentencing because the trial judge failed to place on the record what enhancement or mitigating factors he found, as well as findings of fact, in accordance with the mandate of Tennessee Code A nnotated § 4 0-30-210(f). State v. King David Johnson, No. 01C01-9610-CC-00430, 1997 WL 661501, at *4 (Tenn. Crim. App., Nashville, Oct. 24, 1 997).

The trial judge held a second sentencing hearing on March 13, 1998, and he again sen tenced Defen dant to tw enty years as a Ra nge I offen der. In this appeal of his resentencing, Defendant argues the sa me s ubsta ntive iss ues a s in his first app eal: (1) the trial court erred by relying upon inapplicable enhancement factors, (2) the trial court erred by failing to apply applicable mitigating factors, and (3) the trial court erred by placing excessive weight on the enhancement factors.1

Defendant presented no argument on his second and third assignments of error. We note that the trial court clearly accepted and applied the mitigating factors proffered by Defendant, as acknowledged infra in the discussion of the trial court’s findings.

-2- When an accused challenges the length, range, o r mann er of service of a sentence, this Court has a duty to conduct a de novo review of the sen tence w ith a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirm ative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 19 91).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arg umen ts as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant regarding sentencing; and (g) the potential or lack of potential for rehab ilitation or treatm ent. State v. S mith, 735 S.W.2d 859, 863 (Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).

-3- Upon resentencing, the trial ju dge p laced on the record his consideration of the specific enhancement and mitigating factors, as well as his consideration of the sentencing principles and applicable facts and circumstances. Therefore, we conduct ou r de novo review with a presum ption that th e sente nce is co rrect.

Howeve r, because we find that the trial court erred by relying upon enhancement factors which are inapplicable to this case, we conclude that the sentence must be reduced. We therefore modify Defendant’s sentence from twenty years to sevente en years .

I. ENHA NCE MEN T FAC TOR S TH REE AND SIX Defendant argues that the trial court improperly applied enhancement factors three an d six. See Tenn. Code Ann. § 40-35-114(3), (6). Th e State concedes that the trial court erred by a pplying the se factors in the cas e at bar.

First, § 40-35-114(3) states that a sentence may be enhanced if the “offense involved more than one (1) victim .” The trial cou rt relied u pon th is factor because the killing caused the victim’s two young c hildren to become motherless.

This Court previously held that the term “victim,” as used in § 40-35-114(3), “does not include a person who has lost a loved one or a means of support because the perpetrator of the crime killed a relative.” State v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. A pp. 199 4); see also State v. Alexander, 957 S.W.2d 1, 6 (Tenn. Crim. App . 1997).

Second, § 40-35-114(6) states that the “personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particu larly great.” Beca use “p articula rly grea t” perso nal inju ry is an element of -4- the offense of second degree murder, application of this enhancement factor was error. Tenn. Code Ann. § 40-35-114 (stating that enhancement factors may be applied if “appropriate for th e offense ” and “no t thems elves ess ential elem ents of the offens e”); State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995) (factors which constitute essential elements of the underlying offense may not enhan ce a sen tence).

II. ENHANCEMENT FACTOR TEN The State disputes Defenda nt’s contention tha t the trial court erred by applying § 40-35-114(10): that Defendant “had no hesitation about committing a crime when the risk to human life was high.” Although application of this factor is improper in a homicide case when the “human life” considered is the victim, see State v. Butler, 900 S.W .2d 305, 313 (Tenn. Crim . App. 1994 ); it may prope rly be con sidered for “risk to hu man life” o ther than the victim. See State v. Johnson, 909 S.W .2d 461 , 464 n.1 (T enn. C rim. App. 1995). However, the victim or victims must be “subject to injury” for this factor to be app licable. State v. Sims, 909 S.W .2d 46, 50 (T enn. Crim. A pp. 1995).

The opinion of this Court upon appeal from the original conviction reflects that the victim’s two small children were sleeping in the living room and that the murder of the victim occurred in a “back bedroom.” We find that the children were not subje ct to injury su ch tha t Defe ndan t create d a risk to their lives during commission of the offense against the victim. The facts of this case are most similar to the cas es of State v. Samuel D. Braden, No. 01C01-9610-CC-00457, 1998 WL 85285 (Tenn . Crim. A pp., Nashville, Feb. 18, 1998), and State v. Robe rt

-5- Kevin Moore, No. 01C01-9606-CC-00255, 1997 WL 40948 1 (Ten n. Crim. A pp., Nashville, July 23, 19 97).

In Braden, the defendant and the victim engaged in the fatal confrontation outside of their home, while the defendant’s daughters were inside the house.

Braden, 1998 WL 85285, at *5. We stated, “Though the defendan t’s daughters were inside the house , there is no evidence of record that they w ere likely to come outsid e durin g the c rimina l episo de wh ich res ulted in the victim’s death .” Id. Likewise, in Moore, we rejected application of enhancement factor ten because , “[w]hile the victim’s children we re present in the house, they were not in the room w here the inciden t occurred.” Moore, 1997 WL 409481, at *5.

The State argues that the facts at hand are most similar to State v. Ray Armstrong, No. 01C01-9407-CC-00260, 1995 WL 316288 (Tenn . Crim. A pp., Nashville, May 25, 1995), in which this Court approved the trial court’s application of enhancement factor ten. That case appears to be distinguishable because the record reflected testimon y that three guns hots were fired “from somew here in the vicinity of where [the victim’s yo ung children] w ere sleeping.” Id. at *1.

Therefore, in the case at bar we must conclude that the trial court erred by relying on enhancement factor ten.

III. ENHANCEMENT FACTOR NINE Defendant does not challenge the applicability of enhancement factor nine: that he “possessed or employed a firearm” during commission of the offense.

Because use of a deadly weapon is not an element of second degree murder, the trial cou rt’s reliance on this factor was pro per. See Raines, 882 S.W.2d at 385 -6- (“[T]he use o f a firearm is not an elem ent of m urder in the second degree, and, if the ac cuse d com mits m urder in the second degree by shooting the victim with a firearm, this sentencing factor can be used to enh ance the ac cuse d’s sentence.”); see also State v. Butler, 900 S.W.2d 305, 312-13 (Tenn. Crim. App. 1994).

IV. CONCLUSION Seco nd de gree m urder is a class A felon y. At the time o f this conviction, the senten cing st atutes dem ande d the c ourts to presu me th at the m inimum sentence was appropriate for class A felonies. Thus, the trial court in this case shou ld have presumed a fifteen-year sentence, prior to applying any enhancement or mitigating factors. Because the trial court minimized the weight of Defendant’s mitigating factors—that Defendant committed the crime under such unus ual circ ums tance s that it is unlikely tha t a sustain ed intent to violate the law motivated his conduct, and that he had a positive work and education history—we remain satisfied that the one applic able enhancement factor outweighs the mitigating factor s prese nt in this cas e. W e therefo re elevate Defenda nt’s sentence from the presum ptive minimum of fifteen years to a term of seventeen years.

The State co ncede s that the trial judge erred by applying two sentence enhancement factors. We conclude that the trial judge also erred by applying a third factor. Because the trial court considered three enhancement factors which are inapplicable to this case, we modify the Defendant’s sente nce from twenty years to seventeen years in the Department of Correction as a Range I offender.

-7- This case is rem anded to the trial court for entry of an order in ac cordan ce with this opinion.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JOE G. RILEY, JUDGE

___________________________________ JOHN EVERETT WILLIAMS, JUDGE

-8-