         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      July 16, 2003 Session

            STATE OF TENNESSEE v. KEVIN SCOTT OLMSTEAD

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 2001-B-877    Cheryl Blackburn, Judge



                    No. M2002-02120-CCA-R3-CD - Filed August 15, 2003


The defendant, Kevin Scott Olmstead, pled guilty to two counts of aggravated assault. Following
a sentencing hearing, the trial court imposed two consecutive five-year sentences. On appeal, the
defendant contends his sentences are excessive. We affirm the judgments of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and ALAN E.
GLENN, JJ., joined.

David L. Raybin (on appeal) and Edward S. Ryan (at hearing), Nashville, Tennessee, for the
appellant, Kevin Scott Olmstead.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        On August 26, 2000, the defendant wounded the two victims, Nathaneal Shearon and Bobby
Hunter, when he fired numerous shots into their vehicle. The defendant was indicted on two counts
of attempted first degree murder but entered “open” guilty pleas to two counts of the amended
charge of aggravated assault, a Class C felony. The trial court conducted a sentencing hearing and
imposed consecutive five-year sentences. The defendant argues the trial court erred in imposing an
effective ten-year sentence.

                                   PROOF AT SENTENCING

        Nathaneal Shearon, a college football player, testified at sentencing that he had been involved
in an altercation with the defendant’s stepbrother, Michael Fox, approximately one month prior to
the offenses. Shearon stated that on the date of the offenses at about 1:30 a.m., he was a passenger
in a car with Bobby Hunter when they spotted Fox and the defendant gathered with a group of
people in a parking lot. Shearon said he and Hunter were traveling home when they saw a green
Cadillac speed past them. Shearon testified they noticed the defendant, who was driving, and Fox
were inside the Cadillac when they stopped beside it at a stoplight. According to Shearon, Fox also
noticed him and indicated he wanted to fight. When the light turned green, the defendant drove
away.

        Shearon testified they then observed the Cadillac stopped in the right lane about fifty yards
ahead of them. Shearon said that when Hunter drove past, the defendant “hit the gas,” moved ahead
of their vehicle, and began to swerve in front of it. Shearon testified the defendant stayed in front
of them, and the defendant eventually stopped his car and motioned for Hunter to pass him. Shearon
said that as Hunter drove past, the defendant sped up and blocked Hunter’s car by cutting his wheels
to the left.

       Shearon, who was in the front passenger’s seat of Hunter’s car, testified the defendant fired
numerous shots at them and then drove off. Shearon was shot in the hand and leg. He recounted
how he felt “two bullets . . . rip through [his] hand” and later “realized [his] hand was pretty much
gone.” He said other bullets shattered his kneecap and lodged in his thigh muscle. Shearon stated
he was hospitalized for over a week and underwent several surgeries and extensive rehabilitation.
Shearon testified that neither he nor Hunter was armed with any kind of weapon.

       Bobby Hunter testified he was shot in the hand, elbow, and upper arm, and that his injuries
required surgery. He stated neither he nor Shearon was armed.

        The defendant testified that on the night of the offenses, he and Fox had been to a nightclub
with some friends. He said they were traveling home when the victim’s car pulled behind them at
a red light. The defendant stated he heard a car door slam, and he turned to see Shearon holding a
pistol and running toward his car. The defendant said the victims pursued them after he drove off
and ran the red light. According to the defendant, when he slowed to make a turn, the victims pulled
along side his car, and Shearon stuck a gun out the window. The defendant admitted he fired into
the victims’ car until he emptied all nine rounds from his .40 caliber Glock handgun; however, he
contended he shot while his car was traveling fifty miles an hour. The defendant conceded the
victims fired no shots at him and no weapon was found in the victims’ car.

        The defendant admitted that he was convicted of an aggravated assault in 1992 in which a
victim was shot. At sentencing, he denied committing the prior offense, but eventually conceded
he provided the gun used to shoot the victim. He was sentenced to four years of community
corrections for the 1992 conviction. He testified he violated the terms of his sentence due to his
“drug problem,” but after successful completion of the Lifelines drug treatment program, was again
released on community corrections. The defendant indicated he had not used drugs since that time.
The defendant admitted he was aware that he could not possess a firearm as a result of his prior
felony conviction and that he illegally purchased the gun used in the instant offenses.

        Other witnesses testified the defendant was a good employee, had successfully completed
the Lifelines program after his prior revocation, and had helped other young people to secure
rehabilitative treatment.

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                                       TRIAL COURT’S FINDINGS

        The trial court applied the following enhancement factors: factor (2), the defendant had a
previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range; factor (9), the defendant had a previous history of unwillingness to
comply with the conditions of a sentence involving release into the community; factor (10), the
defendant possessed or employed a firearm during the commission of the offense; and factor (12),
the felony resulted in bodily injury and the defendant had previously been convicted of a felony that
resulted in death or bodily injury. See Tenn. Code Ann. § 40-35-114(2), (9), (10), (12) (Supp.
2002).1 The trial court also found the defendant’s decision to plead guilty and proof that he had
“conquered a drug problem” were proper mitigating factors. See Tenn. Code Ann. § 40-35-113(13).
Weighing these factors, it imposed a five-year sentence for each conviction.

        The trial court then imposed consecutive sentencing based on its finding that the defendant
was a dangerous offender whose behavior indicated little or no regard for human life, and no
hesitation about committing a crime in which the risk to human life was high. See Tenn. Code. Ann.
§ 40-35-115(b)(4) (1997). The trial court noted the defendant fired nine shots at the victims with
his semi-automatic weapon, and the defendant’s 1992 aggravated assault conviction also involved
a shooting which resulted in bodily injury to the victim. The trial court found that the aggregate
term of the consecutive sentences reasonably related to the severity of the offenses and the public
needed protection from any further criminal conduct by the defendant.

                                         STANDARD OF REVIEW

        This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). The burden
is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d),
Sentencing Commission Comments.

        If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for a Class C felony shall
be the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d 803, 806
(Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such
factors do exist, a trial court should enhance the minimum sentence within the range for
enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn.
Code Ann. § 40-35-210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). No particular weight
for each factor is prescribed by the statute, as the weight given to each factor is left to the discretion
of the trial court as long as the trial court complies with the purposes and principles of the


         1
         The trial court recited the enhancement factors utilizing the numbe rs prior to the amendment of the statute.
See Tenn. Co de A nn. § 4 0-35 -114 (1997). We have used the num bers that coincide w ith the amended statute. See id.
§ 40-35-114 (Supp. 2002 ).

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sentencing act and its findings are supported by the record. State v. Madden, 99 S.W.3d 127, 138
(Tenn. Crim. App. 2002); see Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments.
The range of punishment for the Class C felony of aggravated assault as a Range I offender is from
three to six years. See Tenn. Code Ann. § 40-35-112(a)(3).

                               I. LENGTH OF THE SENTENCES

        The defendant contends the use of the firearm was an element of the offenses because the
indictment charged the defendant with attempted first degree murder of each victim “by shooting
[the victim] with a firearm” and was, therefore, improperly applied as an enhancement factor. See
id. § 40-35-114(10) (Supp. 2002). The defendant pled guilty under the indictment to the amended
charges of aggravated assault. The use or display of a deadly weapon is one of the alternative elements
of the offense of aggravated assault. See id. § 39-13-102(a)(1)(B). However, the other alternative
element of the offense is the infliction of “serious bodily injury.” See id. § 39-13-102(a)(1)(A). At
the beginning of the defendant’s sentencing hearing, the prosecutor made reference to these
alternative theories and informed the trial court that the state was relying upon the “serious bodily
injury” theory as an element of aggravated assault. The trial court then correctly observed that
enhancement factor (7), particularly great personal injuries, is an element of that offense and could
not be an enhancement factor. See id. § 40-35-114(7) (Supp. 2002). Because the use of a firearm was
not an element of these aggravated assaults, the trial court properly relied upon enhancement factor
(10). See State v. Carter, 986 S.W.2d 596, 598 (Tenn. Crim. App. 1998).

       The defendant contends enhancement factor (12), the felony resulted in bodily injury and the
defendant had a prior felony conviction resulting in bodily injury, is inapplicable because there was
no evidence that the prior aggravated assault resulted in bodily injury. See Tenn. Code Ann. § 40-
35-114(12) (Supp. 2002). To the contrary, the defendant testified the victim of the prior assault was
shot and he paid restitution toward the victim’s hospital bill. The trial court properly applied this
enhancement factor.

        The defendant contends the trial court erred in not applying four mitigating factors:
mitigating factor (2), the defendant acted under strong provocation; mitigating factor (3), substantial
grounds exist tending to excuse or justify the defendant’s criminal conduct, though failing to
establish a defense; mitigating factor (11), the defendant, although guilty of the crime, committed
the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the
law motivated his conduct; and mitigating factor (12), the defendant acted under duress. See id. §
40-35-113(2), (3), (11), (12) (1997). The only proof in the record supporting the application of these
factors was the defendant’s testimony, which the trial court specifically rejected after finding it was
not credible. This court is in no position to second-guess the trial court’s credibility determinations.
Therefore, we cannot conclude the trial court erred in failing to apply these factors.

        The defendant further argues the trial court erred in not applying in mitigation the
defendant’s positive work record, assisting young people in getting into treatment programs,
refraining from drug usage, and being a “useful, respected citizen.” See id. § 40-35-113(13) (1997).
However, none of these miscellaneous attributes were specifically argued as mitigating factors.
Regardless, we are unable to conclude that their consideration justifies a reduction in the sentences.

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       In summary, we find the trial court properly applied four enhancement factors and properly
considered the mitigating factors argued by the defendant. The five-year sentences are proper.

                                    II. CONSECUTIVE SENTENCING

        The defendant maintains the trial court erred in finding him to be a “dangerous offender.”
A court may order sentences to run consecutively if the court finds by a preponderance of the
evidence that the 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.
Tenn. Code Ann. § 40-35-115(b)(4); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
Furthermore, in the event the trial court finds a defendant is a “dangerous offender,” it must also
determine whether the consecutive sentences (1) are reasonably related to the severity of the
offenses committed; and (2) serve to protect the public from further criminal conduct by the
offender. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). The record before us clearly
establishes that the trial court made these exact findings. Further, the trial court’s conclusions are
supported by the record. Therefore, the defendant has failed to establish that the trial court erred in
imposing consecutive sentences.

                                                  CONCLUSION

        At oral argument, defense counsel stated his ultimate request is that the sentences be
modified to an effective term of six years so that the defendant will be eligible for certain
rehabilitative programs in Davidson County. In this case, the trial court has imposed a lawful
sentence by following the statutory sentencing procedure, has given due consideration and proper
weight to the factors and sentencing principles, and has made findings of fact adequately supported
by the record; thus, this court may not modify the sentence even if it would have preferred a
different result.2 State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). We affirm the judgments of the trial
court.




                                                                 JOE G. RILEY, JUDGE




       2
           By using this term inology, we are not suggesting that we would, in fact, have preferred a different result.

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