                                                   FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE
                                                  September 29, 1998
                           JUNE 1998 SESSION
                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )
            Appellee,               )    C.C.A. No. 01C01-9708-CC-00338
                                    )
vs.                                 )    Montgomery County
                                    )
GERALD D. LOVELACE,                 )    Hon. Robert W. Wedemeyer, Judge
                                    )
            Appellant.              )    (Attempted Second Degree Murder -
                                    )    2 counts, Reckless Endangerment)
                                    )




FOR THE APPELLANT:                       FOR THE APPELLEE:

GREGORY D. SMITH                         JOHN KNOX WALKUP
Attorney at Law                          Attorney General & Reporter
One Public Square, Suite 321
Clarksville, TN 37040                    GEORGIA BLYTHE FELNER
                                         Counsel for the State
                                         425 Fifth Ave. N., 2d Floor
                                         Nashville, TN 37243-0493

                                         JOHN WESLEY CARNEY, JR.
                                         District Attorney General

                                         WILLIAM CLOUD
                                         Asst. District Attorney General
                                         204 Franklin St., Suite 200
                                         Clarksville, TN 37040




OPINION FILED:________________

AFFIRMED

CURWOOD WITT, JUDGE
                                      OPINION

                The defendant, Gerald D. Lovelace, appeals from his convictions of

two counts of attempted second degree murder and one count of reckless

endangerment. Lovelace received his convictions at the conclusion of a jury trial

in the Montgomery County Circuit Court. The trial court sentenced him to serve

concurrent sentences of eleven years, six months for each of his two attempted

second degree murder convictions and two years for his reckless endangerment

conviction. In this direct appeal, Lovelace challenges the length of his effective

sentence. After a review of the record and the briefs of the parties, we affirm the

judgment of the trial court.



                It appears from the sparse record before us that Lovelace, who was

seventeen years old at the time of his crimes but was transferred from juvenile court

to criminal court, received his convictions based upon his conduct of firing a shotgun

into an occupied establishment known as “Showboat.” The crimes may have been

gang related.



                Lovelace complains that the trial court erred in the application of

enhancement factors (3),1 (9)2 and (10).3 In determining whether the trial court has

properly sentenced an individual, this court engages in a de novo review of the

record with a presumption that the trial court's determinations were correct. Tenn.

Code Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

       1
       "The offense involved more than one (1) victim[.]” Tenn. Code Ann. § 40-
35-114(3) (1997).
       2
       "The defendant possessed or employed a firearm, explosive device or
other deadly weapon during the commission of the offense[.]” Tenn. Code Ann.
§ 40-35-114(9) (1997).
       3
      "The defendant had no hesitation about committing a crime when the risk
to human life was high[.]” Tenn. Code Ann. § 40-35-114(10) (1997).

                                          2
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 the

evidence at sentencing, the presentence report, the sentencing principles, the

arguments of counsel, the statements of the defendant, the nature and

characteristics of the offense, any mitigating and enhancement factors, and the

defendant’s amenability to rehabilitation. Tenn. Code Ann. §§ 40-35-210(b), 40-35-

103(5) (1997); Ashby, 823 S.W.2d at 168. The party appealing the sentencing

determination has the burden of showing that it is improper. Tenn. Code Ann. § 40-

35-401(d), Sentencing Comm’n Comments (1997); Ashby, 823 S.W.2d at 169.



              In the case at bar, the record affirmatively reflects the trial judge’s

thoughtful consideration of the relevant criteria for sentencing. Accordingly, our de

novo review is accompanied by the presumption of correctness.



              Beginning with enhancement factor (3), Lovelace has two complaints.

First, he posits that the trial court erroneously applied this enhancement factor

because it found the factor related to possession of a firearm, rather than the

presence of multiple victims. We disagree with his interpretation of the trial judge’s

findings at the sentencing hearing.



              Second, Lovelace argues that factor (3) should not be applied

because there were separate convictions for two counts of attempted second

degree murder for his two victims. The state offers a concession of the point. We,

however, disagree with both the defendant and the state, who have overlooked a

third victim. The presentence report contains a victim impact statement from Bobby

Baggett, the owner of Showboat.4 In his statement, Mr. Baggett describes property


       4
       Such statements are properly included in presentence reports. See
Tenn. Code Ann. § 40-35-207(8) (1997).

                                          3
damage caused by Lovelace’s unlawful conduct and includes receipts for $617.63

related to repairs to the damaged property. Based upon this evidence, we find no

error in the trial court’s application of enhancement factor (3).



              Lovelace also challenges the trial court’s application of enhancement

factor (9) to his attempted second degree murder convictions. He claims the trial

court enhanced his sentence once because he possessed a firearm during the

offenses and a second time because he employed a firearm during the offenses.

We disagree with this characterization of the record. To the contrary, the record

demonstrates that the trial court applied enhancement factor (9) only once to each

of the attempted second degree murder convictions.



              Finally, Lovelace challenges the application enhancement factor (9)

in conjunction with factor (10). In a novel argument, he claims that possession of

a shotgun is necessary for shooting the shotgun, and the act of shooting a shotgun

necessarily entails increased risk to the life of the intended target. Therefore, he

argues, the application of factors (3) and (9) yields sentences for attempted second

degree murder which have been “triple enhanced.” We are unpersuaded. Second

degree murder may be attempted in many ways, one of which is with a shotgun.

Thus, possession or use of a shotgun is not an element of that offense. Further, the

trial court found that the defendant created a risk to individuals other than the

victims named in the indictments who were in the vicinity when Lovelace fired a

shotgun into a business establishment. Lovelace did not hesitate to commit these

acts when the risk to human life, other than the lives of his intended targets, was

high. We see no inequity in the application of both factors (9) and (10) to the

defendant’s attempted second degree murder convictions.



              Because we find no error in the trial court’s application of

                                          4
enhancement factors, its judgment is affirmed.



                                        _______________________________
                                        CURWOOD WITT, JUDGE



CONCUR:



_____________________________
JOE G. RILEY, JUDGE



_____________________________
R. LEE MOORE, JR., SPECIAL JUDGE




                                       5
