         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs July 20, 2005

           STATE OF TENNESSEE v. STEVEN BRADLEY HEFLIN

                Direct Appeal from the Criminal Court for Davidson County
                          No. 2000-C-1768    Steve Dozier, Judge



                  No. M2004-02680-CCA-R3-CD - Filed September 28, 2005


The defendant, Steven Bradley Heflin, was originally indicted for aggravated assault with a deadly
weapon, a Class C felony. The defendant entered an open plea of guilty to reckless aggravated
assault with a deadly weapon, a Class D felony, pursuant to Tennessee Code Annotated section 39-
13-102(a)(2)(B), as a Range I, standard offender. The defendant was sentenced to four years, to
serve nine months with the remainder on probation. The defendant now appeals the sentence,
contending that certain enhancement factors were applied in error and that one mitigating factor was
improperly rejected. After review, we remand the cause to modify the sentence to three years, to
serve nine months and the remainder on probation.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Remanded for
                                Modification of Sentence

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT W. WEDEMEYER , JJ., joined.

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher (on appeal) and Richard Tennent
(at trial), Assistant Public Defenders, for the appellant, Steven Bradley Heflin.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and James F. Todd and Tammy Meade,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION

      During the plea colloquy, the State summarized the factual basis for the plea in the following
manner:
      Assistant Attorney General: Had this matter gone to trial, the State’s witnesses
             would testify that on April the 6th of 1999, Officer Steven Duncan was
             dispatched to the area of Millwood Drive and Murfreesboro Road here in
                Nashville, Davidson County. He arrived at that area, was waiting for backup.
                While he was waiting for backup, the defendant walked up to his marked
                police cruiser and kicked it. The suspect yelled, come on, mother [expletive
                deleted]. At that time, he yelled at the officer, he pulled up his shirt,
                exposing a large knife. Officer Duncan exited the police vehicle. The
                defendant then pulled the knife from his belt area. Officer Duncan ordered
                the defendant to drop that knife. Officer Duncan then began retreating to the
                rear of his vehicle. The defendant then advanced toward Officer Duncan
                stating, mother [expletive deleted], kill me, I want to die. Officer Duncan
                retreated again to the passenger side of his cruiser. The defendant advanced
                again. At that time, Officer Duncan fired one shot from - - fired one shot at
                the defendant, hitting him in the lower right abdomen. All the events
                occurred here in Davidson County. Based on those facts, the State
                recommends the previously announced disposition.1

       Testimony at the sentencing hearing was heard from the victim, the defendant, the
defendant’s father, and Mary Ann Hea, a licensed clinical social worker. The trial court also had
available for its consideration the presentence report and arguments of counsel.

        Steven Duncan, the officer-victim, described how the defendant, armed with a large knife,
advanced on him and repeatedly pleaded for Duncan to shoot and kill him. Although the defendant
never lunged at Officer Duncan, he ignored the officer’s demands to surrender the weapon and kept
advancing until Officer Duncan felt compelled to shoot him. The victim said that this experience
bothered him emotionally then and that it bothered him to relive the experience through his
testimony at the sentencing hearing.

        The defendant, who was seventeen at the time of the offense, testified that he was suffering
from depression and suicidal thoughts at that time. He related an unusual childhood that included
his parents’ divorce when he was ten. He described his mother as confined to a wheelchair and as
a very devout person, even “somewhat fanatical.” The mother viewed the defendant’s homosexual
father as the “root of all evil.” The defendant’s mother had sent the defendant to live with a cousin
in Biloxi, Mississippi. When the defendant returned, he lived with his father and the father’s partner,
whom the defendant described as alcoholic and prone to exposing his genitals in the home.

       The defendant underwent two weeks of unconsciousness and the near loss of his right leg due
to the shooting. He received psychological counseling at Vanderbilt and took antidepressant
medications for five to six months. Since the offense, the defendant has been able to hold
employment and was eligible to enter Pizza Hut management training before discovery of his
outstanding charges was made.



        1
          The disposition was a plea to reckless aggravated assault with a deadly weapon, under Tennessee Code
Annotated section 39-13-102(a)(2)(B), as a Range I, standard offender.

                                                     -2-
       Steven Lynn Heflin, the defendant’s father, is blind and suffers from degenerative spine
disease. He lives alone in Nashville in a one-bedroom apartment. His sole income is a disability
check. He testified that the defendant could reside with him on his release.

        Mary Ann Hea, a licensed clinical social worker in the Public Defender’s office, testified
concerning her meetings with the defendant and a review of his psychological records. She stated
that the defendant’s records reflected that he was suffering from major depression at the time of the
offense. Ms. Hea did not observe any symptoms of depression by the defendant at the present but
recommended further individual counseling for referral to psychiatric counseling if needed.

        After the sentencing hearing, the trial court found the following four statutory enhancement
factors to be applicable:
        (1)     The defendant has a previous history of criminal convictions or criminal
                behavior in addition to those necessary to establish the appropriate range.
                Tenn. Code Ann. § 40-35-114(2).
        (2)     The personal injuries inflicted upon the victim [were] particularly great.
                Tenn. Code Ann. § 40-35-114(7).
        (3)     The defendant had no hesitation about committing a crime when the risk to
                human life was high. Tenn. Code Ann. § 40-35-114(11).
        (4)     The victim of the aggravated assault was a law enforcement officer. Tenn.
                Code Ann. § 39-13-102(d)(1).

       The trial court applied the following statutory mitigating factors:
       (1)     The defendant was suffering from a mental . . . condition that significantly
               reduced the defendant’s culpability for the offense. Tenn. Code Ann. § 40-
               35-113(8).
       (2)     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. Tenn. Code Ann. § 40-35-113(11).

         The defendant, in challenging his sentence, alleges that the trial court erred in applying the
first three enumerated enhancement factors and erred in placing “great weight” on the fourth
enhancement factor. The defendant also argues that, in effect, no weight was given the enumerated
applicable mitigating factors and that an additional factor, that due to the defendant’s youth he lacked
substantial judgment, Tennessee Code Annotated section 40-35-113(6), was inappropriately rejected.

        The State concedes that enhancement factor (11), the defendant’s actions caused high risk
to human life, was applied in error. However, the State points out that only minimal weight was
given this factor by the trial court. The State maintains that, even after excluding enhancement factor
(11), the sentence imposed is justified by the record.

       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


                                                  -3-
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). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

        The burden is upon the appealing party to show that the sentence is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210, to consider the following factors
in sentencing:
        (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2) [t]he
        presentence report; (3) [t]he principles of sentencing and arguments as to sentencing
        alternatives; (4) [t]he nature and characteristics of the criminal conduct involved; (5)
        [e]vidence and information offered by the parties on the enhancement and mitigating
        factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the defendant wishes
        to make in the defendant’s own behalf about sentencing.

        If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses 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 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. Nevertheless,
should there be no mitigating factors but enhancement factors are present, a trial court may set the
sentence above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); State v. Imfeld,
70 S.W.3d 698, 704 (Tenn. 2002).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after giving due consideration and proper weight to the factors and principles set
out under sentencing law, and 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 result.
State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        The defendant argues that the enhancement factor for a previous history of criminal
convictions or criminal behavior, Tennessee Code Annotated section 40-35-114(2), should not have
been accorded even the minimal weight given it by the trial court. The defendant bases his objection
on the fact that the misdemeanor offense was self-reported during the preparation of the pre-sentence
report. The defendant cites to State v. George J. Johnson, No. M2002-1054-CCA-R3-CD, 2002



                                                  -4-
Tenn. Crim. App. LEXIS 1060 (Tenn. Crim. App. at Nashville, Dec. 10, 2002), wherein it was
stated:
        Although a relevant factor, we remain mindful of the fact that the pre-sentence report
        was never intended to serve the purpose of gathering incriminating evidence to
        punish the offender. The offender is encouraged to be truthful and participate in the
        preparation of the pre-sentence report in order that information provided may be
        utilized by the sentencing court in arriving at an individualized sentence. To use the
        offender’s statements within the report against the offender is counterproductive in
        that it discourages truthfulness and is inconsistent with the purposes of the pre-
        sentence report.
Id. at *6.

        However, George J. Johnson was an appeal from denial of judicial diversion and the self-
reported offense was the sole basis for denial of diversion by the trial court. In our view, it is
distinguishable from the case at hand as we did in State v. Consuela P. Carter, No. M2002-01100-
CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 269, at *11 (Tenn. Crim. App. at Nashville, Mar. 27,
2003), appeal denied, State v. Carter, 2003 Tenn. LEXIS 991 (Tenn., Oct. 13, 2003). We conclude
that the self-reported offense was relevant but was due only minimal weight as ascribed by the trial
court.

        Next, the defendant objects to the application of the enhancement factor, that the victim
suffered “particularly great” injuries, under Tennessee Code Annotated section 40-35-114(7). The
injury which the victim-police officer testified concerning was that it bothered him that he was
forced to shoot the defendant. In finding this factor applicable, the trial judge noted that the officer
was “about to cry ” during his testimony. No other evidence, expert or lay, was offered to show that
the psychological injury was particularly great. State v. Arnett, 49 S.W.3d 250 (Tenn. 2001),
addressed the amount of proof required to find that psychological or emotional injuries were
particularly great under this enhancement factor. “Specific objective examples . . . of the disabling
effects of the victim’s mental injury obviate the need for expert proof. On the other hand, where the
State does not offer specific evidence of the victim’s particularly serious injuries, the trial court will
not be justified in applying the enhancement factor.” Id. at 261.

         Two cases of non-expert proof, which set forth examples of specific and objective evidence
of mental injury justifying application of this enhancement factor, were discussed in Arnett. Id. at
260. In State v. Smith, 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994), the rape victim was unable
to live in her home for three months after the attack, had sought counseling, and arose every thirty
minutes to check the security of the locks on the doors and windows while staying overnight with
a friend.

       In State v. Williams, 920 S.W.2d 247, 259-60 (Tenn. Crim. App. 1995), the victim suffered
periods of depression and low esteem, was often unable to work, missed five weeks of college, and
availed herself of counseling sessions.



                                                   -5-
        These types of specific and objective examples were conspicuously lacking in the present
case. Unquestionably, the experience of being forced to shoot an unstable and threatening
individual, who by all outward manifestations sought to commit suicide by policeman, “bothered”
the victim policeman. However, the State has not met the test of providing specific and objective
examples of disabling or disruptive effects that would make this enhancement factor appropriate.
We note that in concluding this enhancement factor was inappropriately applied, it was given only
minimal weight by the trial court but was considered in determining the length of the sentence.

       The defendant also asserts that bodily injury was an element of the offense. However, the
defendant pled to reckless aggravated assault under Tennessee Code Annotated section 39-13-
102(a)(2)(B), requiring the defendant to use or display a deadly weapon, as opposed to Tennessee
Code Annotated section 39-13-102(a)(2)(A), which relies on bodily injury as an element of the
crime. Application of the enhancement factor would be appropriate for the reason stated.

        The State does not challenge the defendant’s contention that enhancement factor (11), high
risk to human life, was improper. We agree. This enhancement factor, as to the victim, is an
essential element of the offense and thus precluded for enhancement by Tennessee Code Annotated
section 40-35-114. There was no evidence of any other person endangered by the defendant’s
actions.

         The defendant contends that the trial court should have applied an additional mitigating factor
that, because of his youth, the defendant lacked substantial judgment in committing the offense.
Tenn. Code Ann. § 40-35-113(6). The record established that the defendant was seventeen years old
at the time of the offense and that the case was transferred from the juvenile court. The State argues
that the defendant was less than a year from becoming eighteen and was “not a novice to the criminal
justice system.” The evidence, however, does not support the State’s contention. The defendant did
not have an extensive record of offenses and was the product of a deeply conflicted family, which
exacerbated his immaturity. We conclude that the evidence supports the applicability of this
mitigating factor.

                                             Conclusion

        As a result of our review, there are two remaining enhancement factors: a previous history
of criminal convictions or criminal behavior, Tenn. Code Ann. § 40-35-114(2); and the victim of the
aggravated assault was a police officer, Tenn. Code Ann. § 39-13-102(d)(1). The trial court assigned
minimal weight to the first and great weight to the second enhancement factor. There are three
mitigating factors: (1) the defendant was suffering from a mental condition that significantly reduced
the defendant’s culpability, Tenn. Code Ann. § 40-35-113(8); (2) 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, Tenn. Code Ann. § 40-35-113(11); and (3) that
because of his youth, the defendant lacked substantial judgment in committing the offense, Tenn.
Code Ann. § 40-35-113(6).



                                                  -6-
        Accordingly, we modify the sentence to three years, with nine months to be served in
incarceration and the remainder on probation. All conditions of mental assessment contained in the
original judgment shall remain in effect. The cause is remanded for modification of judgment.




                                                     ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




                                               -7-
