          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           DECEMBER 1998 SESSION
                                                          FILED
                                                            March 25, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

STATE OF TENNESSEE,              )
                                 ) C.C.A. No. 02C01-9805-CC-00160
      Appellee,                  )
                                 ) Fayette County
V.                               )
                                 ) Honorable Jon Kerry Blackwood, Judge
                                 )
ANTONIO COACH,                   ) (Second Degree Murder)
                                 )
      Appellant.                 )




FOR THE APPELLANT:                  FOR THE APPELLEE:

GARY F. ANTRICAN                    JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter
P.O. Box 700
Somervillle, TN 38068               DOUGLAS D. HIMES
                                    Assistant Attorney General
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    ELIZABETH T. RICE
                                    District Attorney General
                                    302 Market Street East
                                    Somerville, TN 38068




OPINION FILED: ___________________


AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                  OPINION

       The appellant, Antonio Coach, pleaded guilty to second degree murder

and was sentenced to twenty years in the Tennessee Department of Correction.

In this direct appeal, he argues that this sentence is excessive due to the trial

court's failure to consider certain mitigating factors. We AFFIRM the sentence of

the trial court.



                                      FACTS

       On September 29, 1997, the appellant became involved in an argument

with the victim, Craig Drake, at a football game. Later that evening, the appellant

and others of a group who identified themselves as the “VLs” or “Vice Lords”

went to Drake’s home and attempted, unsuccessfully, to provoke him to come

outside and fight. The following afternoon, the appellant and several others

followed Drake off the school bus at Drake’s home. Marco Hardaway, a co-

defendant of the appellant at the trial court, was waiting on the corner near the

bus stop with a gun. A brief scuffle ensued in the Drakes’ driveway, and Drake

fled toward his house. Drake's mother had come out of her house and was

watching from the carport. As the victim paused to talk to his mother, Hardaway

handed the appellant the gun. The appellant stepped from the group and fired

one shot, hitting and fatally wounding Drake.



       The appellant, who was sixteen years of age at the time of his offense,

was transferred from juvenile court to be tried as an adult in the Fayette County

Circuit Court. There, he pleaded guilty as indicted to second degree murder.



       Second degree murder is a class A felony, carrying a range I sentence of

fifteen to twenty-five years. See Tenn. Code Ann. §§ 39-13-210(b); 40-35-

112(a)(1). The presumptive sentence for a class A felony is the midpoint of the

sentencing range, absent enhancement or mitigating factors. See Tenn. Code

Ann. § 40-35-210(c).


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       At the sentencing hearing, the trial court found applicable one

enhancement factor--that the appellant “had no hesititation about committing a

crime when the risk to human life was high.” Tenn. Code Ann. § 40-35-114(10).

The trial court also found one mitigating factor--that the appellant admitted his

guilt. Concluding that the weight of these factors offset, the trial court imposed

the presumptive mid-range sentence of twenty years. The appellant argues that

the trial court erred in failing to apply additional mitigating factors and that his

sentence is, therefore, excessive .



                              STANDARD OF REVIEW

       When an accused challenges the length or manner of service of a

sentence, it is the duty of this Court to conduct a de novo review on the record

“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). This

presumption “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 de novo review, we must consider (1) the evidence, if

any, received at the trial and the sentencing hearing; (2) the presentence report;

(3) the principles of sentencing and arguments as to sentencing alternatives; (4)

the nature and characteristics of the criminal conduct involved; (5) any statutory

mitigating or enhancement factors; (6) any statement made by the accused in his

own behalf; and (7) the potential or lack or potential for rehabilitation or

treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Smith, 735

S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appellant carries the burden of

showing that his sentence is improper. See Tenn. Code Ann. § 40-35-401(d)

sentencing comm’n cmts; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim.

App. 1996).




                                          -3-
       The record in this case fails to reflect findings of the trial court relative to

its application or rejection of enhancement and mitigating factors. We therefore

conduct our review de novo, unaccompanied by the presumption of correctness.



                                      ANALYSIS

       The appellant does not challenge the applicability of enhancement factor

(10), and we notice no error. While risk to the life of the victim is inherent in the

offense of second degree murder, this enhancement is still applicable when the

lives of persons other than the victim were also at risk. See e.g., State v. Sims,

909 S.W.2d 46, 50 (Tenn. Crim. App. 1995). In the present case, the victim’s

mother was standing close behind the victim when the appellant shot in her

direction. The appellant’s lack of hesitation in producing this risk to the

appellant’s mother supports application of enhancement factor (10).



       Although not found by the trial court, the record also supports the

applicability of enhancement factors (9) and (16)--that the appellant used a

firearm in the commission of the offense and that the crime was committed

under circumstances involving great potential for bodily injury to a victim. See

Tenn. Code Ann. § 40-35-114(9), (16); Sims, 909 S.W.2d at 50 (holding that like

enhancement factor (10), factor (16) may be applied where persons other than

the victim are in the area and subject to injury); State v. Butler, 900 S.W.2d 305,

313 (holding that the use of a firearm is not an element of second degree

murder). We accord significant weight to the appellant’s use of a weapon.

However, because the facts supporting factors (10) and (16) are identical and

because these facts are accounted for by application of factor (10), we accord

little additional weight to factor (16) in the present case.



       As for mitigating factors, the trial court found applicable only that the

appellant had admitted his guilt. Accord Butler, 900 S.W.2d at 315 (allowing




                                           -4-
mitigation for admission of guilt). The appellant proposes that he is also entitled

to mitigation of his sentence based on the following five factors:

       (1) The appellant, because of his youth, “lacked substantial
       judgment in committing the offense,” see Tenn. Code Ann. § 40-
       35-113(6);

       (2) The appellant “committed the offense under such unusual
       circumstances that it is unlikely that a sustained intent to violate the
       law motivated the criminal conduct,” see Tenn. Code Ann. § 40-35-
       113(11);

       (3) The appellant does not have an extensive criminal record;

       (4) The appellant’s family background suggests that it is unlikely
       that he had “every opportunity” to learn right from wrong; and

       (5) The appellant has shown remorse.



       In determining whether the appellant, “lacked substantial judgment” in

committing this offense because of his youth, we “consider the concept of youth

in context, i.e., 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). In the present

case, we find that the appellant’s age, education, and experience warrant

application of this factor.



       We find no merit in the appellant’s argument that he committed this

offense under such unusual circumstance that it is unlikely that a sustained

intent to violate the law motivated his conduct. Counsel for the appellant argued

at his sentencing hearing that it was “highly probable that [the appellant] showed

up at [the murder site] not even thinking anything about a gun or hurting anybody

else.” The record, however, indicates that the argument leading to the victim’s

murder had been continuing for nearly twenty-four hours and that the appellant

repeatedly pursued the victim during this time. The appellant clearly had a well-

sustained intent to, in some manner, assault the victim.




                                         -5-
       The appellant next proposes that his lack of an extensive criminal record

should have been accorded some weight in mitigation. The appellant, however,

does have a record of juvenile convictions for simple possession and for assault

and battery. In State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993), the Tennessee

Supreme Court concluded that a record of juvenile criminal conduct “may be

taken into account in fashioning an appropriate sentence.” Accordingly, in State

v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App. 1995), this Court refused to

mitigate an offender’s sentence for lack of criminal history due to the offender’s

juvenile record. We likewise find that, because of his juvenile record, the

appellant is not entitled to mitigation of his sentence for lack of a criminal history.




       As to the appellant’s family circumstances and remorse, we do not find

that either justifies mitigation in the present case. The appellant asserts that his

family situation made it “unlikely that he had every normal opportunity to learn

right from wrong.” To the extent that the appellant's family experiences or lack

thereof have any bearing, they are considered under mitigating factor (6) and his

diminished judgment in committing this offense.



       We also decline to give any weight to the appellant’s alleged remorse.

Although this Court has held that remorse is a proper consideration under

mitigating factor (13), see, e.g., State v. Latavis Diray Bailey, No. 02C01-9703-

CC-00115 (Tenn. Crim. App. filed Mar. 26, 1998, at Jackson), the record simply

does not indicate any significant expression of remorse by the appellant.



       In sum, we find applicable enhancement factors (9), (10), and (16), as well

as mitigating factors (6) and (13)--that the appellant admitted his guilt. Although

we accord significant weight to enhancements (9) and (10), the cumulative

weight of these enhancements is counterbalanced by the mitigating factors.

Therefore, the mid-range twenty-year sentence imposed below is appropriate.



                                          -6-
                               CONCLUSION

     Based upon the foregoing, the judgment of the trial court is affirmed.




                                            __________________________

                                            JOHN EVERETT W ILLIAMS, Judge




CONCUR:




_____________________________

GARY R. WADE, Judge




_____________________________

THOMAS T. W OODALL, Judge




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