           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                     May 18, 2011 Session

            STATE OF TENNESSEE v. JAMES EARL GARRETT, JR.

                    Appeal from the Circuit Court for Dickson County
                    No. 22CC-2008-CR-171       Larry Wallace, Judge




                  No. M2010-01391-CCA-R3-CD - Filed August 23, 2011


The defendant appeals the 20-year effective sentence imposed for his Dickson County Circuit
Court convictions of two counts of the facilitation of second degree murder, claiming that
the trial court erred by misapplying the enhancement factors and by imposing consecutive
terms. Discerning no reversible error, we affirm.

              Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J.C. M CL IN, JJ., joined.

Jerred A. Creasy, Dickson, Tennessee, for the appellant, James Earl Garrett, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindy Paduch Stempel, Assistant
Attorney General; Dan M. Alsobrooks, District Attorney General; and Ray Crouch, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

              Originally charged with two counts of first degree premeditated murder, the
defendant was convicted following a bench trial of two counts of facilitation of second
degree murder for his role in the death of his foster mother, Mary Clark, and her mother-in-
law, Gail Clark, on New Year’s Day 2008.1

               At 4:39 a.m. on January 1, 2008, the 17-year-old defendant and his foster



       1
        A superseding indictment charging the defendant with second degree murder replaced the original
indictment charging first degree premeditated murder.
brother, 15-year-old Jeffrey Johnson, telephoned 9-1-1 and reported that an unidentified
individual had broken into the Clark residence in White Bluff, shot Mary and Gail Clark, and
left through an open window. The boys claimed that they had run from the home and were
hiding in a van in the driveway of the residence. Officers responding to the scene discovered
the women’s bodies inside the residence, one in the hallway and one in the master bedroom.
One of the boys told arriving officers that an unidentified individual exited the home, ran
across the road, and fled into a nearby field. The officers handcuffed both the defendant and
co-defendant and placed them into separate patrol cars, but the officers told the boys that they
were not under arrest and that the confinement was only for their safety.

               During an interview conducted at the scene, the defendant said that he and the
co-defendant were watching television in the defendant’s bedroom when they “heard a bang”
followed by “another boom.” The defendant said that he told the co-defendant to hide under
the bed while he hid in the closet and that while he was hiding in the closet, he “saw a dark
figure run past [his] window.” The two boys left the room and encountered Gail Clark’s
body in the hall. They ran outside, and the co-defendant telephoned 9-1-1. The co-defendant
also provided a statement at the scene, and his statement confirmed the defendant’s version
of events.

              In later statements, however, the defendant admitted that the co-defendant shot
the women and that the two conspired to cover up the crime. Other evidence established that
the defendant stole the handgun used in the shootings from a neighbor before Christmas.
Autopsies revealed that both women died from a close range gunshot wound to the head and
that death was nearly instantaneous in both cases.

               The defendant told officers that the co-defendant had been “wishing” Mary
Clark dead since the defendant had moved into the residence. After the murders, the
defendant and co-defendant took Mary Clark’s van to Clarksville, where they visited with
friends, got something to eat, obtained money from an ATM, and purchased gas. They then
returned to the Clark residence, called 9-1-1, and provided the false police report.

                Based upon his procuring the murder weapon and providing the co-defendant
with access to the weapon, the trial court convicted the defendant of two counts of
facilitation of second degree murder.

             At the November 9, 2009 sentencing hearing, Martha Garrett, the defendant’s
               2
stepmother, explained that the defendant was originally taken into custody as a juvenile



       2
           Although some portions of the record indicate that Ms. Garrett is the defendant’s mother, defense
                                                                                               (continued...)

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because he had taken her truck without permission and had left his eight-year-old brother
home alone. She said that she and the defendant’s father initiated the juvenile proceeding
in hopes that “tough love would straighten him out.” Ms. Garrett stated that she and her
husband, former military service members with a combined 42 years of service, could not get
the defendant to follow the rules at home and hoped that a placement in state custody would
help. She said that just before the offenses, she and her husband had agreed to reunification
with the defendant.

               Ms. Garrett testified that if the defendant was given a sentence involving
release into the community, she and her husband were willing to allow the defendant to live
with them and agreed to take responsibility for him.

                At the conclusion of the hearing, the trial court imposed a sentence of 10 years
for each conviction, finding enhancement factors (1), that the defendant had a history of
criminal convictions or criminal behavior in addition to that necessary to establish the range;
(6), that the injuries inflicted upon the victims was particularly great; (9), that the defendant
possessed or employed a firearm during the commission of the offense; (10), that the
defendant had no hesitation about committing a crime when the risk to human life was high;
and (16), that the defendant had a juvenile adjudication for an offense that would have been
a felony for an adult, were applicable to the defendant’s case and warranted more than the
minimum sentence. See T.C.A. § 40-35-114 (2006). The court also ordered the 10-year
sentences to be served consecutively based upon its finding that the defendant was a
dangerous offender. See id. § 40-35-115(b)(4).

                In this appeal, the defendant challenges the sentence imposed by the trial court,
arguing that the trial court imposed the individual terms as well as consecutive sentencing
in error. When considering challenges to the length and manner of service of a sentence this
court conducts a de novo review with a presumption that the determinations of the trial court
are correct. T.C.A. § 40-35-401(d) (2006). This presumption, however, “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). The appealing party, in this case the defendant, bears the burden of
establishing impropriety in the sentence. T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also Ashby, 823 S.W.2d at 169. If our review of the sentence establishes that
the trial court gave “due consideration and proper weight to the factors and principles which
are relevant to sentencing under the Act, and that the trial court’s findings of fact . . . are


        2
            (...continued)

counsel established her relationship to the defendant via her marriage to the defendant’s father. The record
is clear, however, that Ms. Garrett had at least served as the defendant’s “mother” for his entire life.
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adequately supported in the record, then we may not disturb the sentence even if we would
have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.
1991). In the event the record fails to demonstrate the required consideration by the trial
court, appellate review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

              In making its sentencing decision, the trial court was required to 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) Evidence and information offered by the parties on the
              mitigating and enhancement factors set out in §§ 40-35-113 and
              40-35-114;
              (6) Any statement the defendant wishes to make in the
              defendant’s own behalf about sentencing.

T.C.A. § 40-35-210(b). The trial court should also consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed.” Id. § 40-35-103(5).

              The defendant first asserts that the trial court erroneously applied all five
enhancement factors. The State concedes that the trial court misapplied four of the five
enhancement factors, acknowledging that factors (1), (6), (10), and (16) are inapplicable to
the defendant’s convictions. Nevertheless, the State argues that the imposition of factor (9),
that the defendant possessed or employed a firearm during the commission of the offense,
supports the 10-year sentence imposed in each case.

               Initially, we agree with the parties that the trial court should not have applied
enhancement factor (1) because the defendant had no record of criminal activity as an adult
or factor (16) because the record did not conclusively establish that the defendant received
a juvenile adjudication for an offense that would have been a felony for an adult.
Additionally, the trial court should not have applied enhancement factors (6), that the injuries
inflicted upon the victims were particularly great, or (10), that the defendant had no
hesitation committing a crime where the risk to human life was high, because those factors
are necessarily included within the offense of facilitation of second degree murder. In light
of the misapplication of these factors, our review is de novo with no presumption of
correctness.

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               With regard to factor (9), that the defendant possessed or employed a firearm
during the commission of the offense, the defendant asserts that this factor is inapplicable
because although there was proof that the defendant possessed the firearm before the
commission of the homicides, no proof showed that he possessed it during the homicide
offenses. The defendant also argues that because his prior possession of the gun was the sole
evidence supporting a finding that he facilitated the victim’s murder, use of enhancement
factor (9) in his case would run afoul of Code section 40-35-114’s prohibition on using as
enhancement those factors that are elements of the conviction offense. We disagree.

                The proof presented at trial established that the defendant took the handgun
used to kill the victims from his neighbor’s house and secreted it on his person in the ensuing
days. The State also presented ample proof to support the trial court’s conclusion that the
defendant provided the co-defendant with access to the weapon despite the defendant’s
knowing that the co-defendant had been “wishing” Mary Clark dead for months. Indeed, the
defendant does not contest the fact that the co-defendant obtained the murder weapon from
him. The defendant was convicted of facilitation of second degree murder for providing
substantial assistance to the co-defendant in the commission of the murders. Clearly, the
defendant possessed the gun when he committed the facilitation offense by providing the gun
to the co-defendant. Furthermore, neither second degree murder, see, e.g., State v. Moss, 13
S.W.3d 374, 388 (Tenn. Crim. App. 1999); State v. Butler, 900 S.W.2d 305, 312-13 (Tenn.
Crim. App. 1994), nor, by extension, facilitation of second degree murder, see T.C.A. § 39-
11-403(a), has as an element the possession of a firearm such that its application would be
precluded by Code section 40-35-114. Accordingly, the trial court did not err by applying
enhancement factor (9) to the defendant’s convictions.

              Moreover, we agree with the trial court’s assessment that this factor is entitled
to great weight. The defendant’s taking the gun from his neighbor, secreting it in the Clark
residence, and providing it to the co-defendant who had already expressed homicidal
intentions was integral to the offenses. Under these circumstances, the application of this
single enhancement factor is sufficient to warrant an upward adjustment of the individual
sentences to the midpoint within the range.

               The defendant also challenges the imposition of consecutive sentencing,
arguing that the record does not support the trial court’s finding that the defendant qualified
as a dangerous offender. When a defendant is convicted of multiple crimes, the trial court,
in its discretion, may order the sentences to be served consecutively if it finds by a
preponderance of the evidence that a defendant falls into one of seven categories listed in
Tennessee Code Annotated section 40-35-115. They are:

              (1) The defendant is a professional criminal who has knowingly

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              devoted such defendant’s life to criminal acts as a major source
              of livelihood;

              (2) The defendant is an offender whose record of criminal
              activity is extensive;

              (3) The defendant is a dangerous mentally abnormal person so
              declared by a competent psychiatrist who concludes as a result
              of an investigation prior to sentencing that the defendant’s
              criminal conduct has been characterized by a pattern of
              repetitive or compulsive behavior with heedless indifference to
              consequences:

              (4) 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;

              (5) The defendant is convicted of two (2) or more statutory
              offenses involving sexual abuse of a minor with consideration
              of the aggravating circumstances arising from the relationship
              between the defendant and victim or victims, the time span of
              defendant's undetected sexual activity, the nature and scope of
              the sexual acts and the extent of the residual, physical and
              mental damage to the victim or victims;

              (6) The defendant is sentenced for an offense committed while
              on probation; or

              (7) The defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b). The existence of a single category is sufficient to warrant the
imposition of consecutive sentences. See State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim.
App. 1997). Here, the trial court concluded that the defendant fit into the fourth category,
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. In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), the supreme court imposed two
additional requirements for consecutive sentencing when the “dangerous offender” category
is used: (1) the court must find consecutive sentences are reasonably related to the severity
of the offenses committed and (2) that consecutive sentences are necessary to protect the

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public from further criminal conduct. State v. Wilkerson, 905 S.W.2d 933, 937-39 (Tenn.
1995); see also State v. Imfeld, 70 S.W.3d 698, 707-08 (Tenn. 2002).

               Here, the trial court specifically addressed each of the Wilkerson factors,
finding that the defendant’s history of failure to follow the rules and requirements of his
juvenile court adjudications and adjustments along with his behavior following the murders
satisfied the two Wilkerson requirements. Upon our de novo review, we conclude that the
record supports the findings of the trial court.

               The record established that the defendant was originally placed in state custody
following charges from his parents that he had taken Ms. Garrett’s vehicle without
permission and left his 8-year-old brother home alone. The record establishes that the
defendant failed to comply with the terms of the original informal adjustment or the terms
of the subsequent juvenile adjudication. The defendant stole a handgun from the home of
a neighbor while serving a term of probation imposed by the juvenile court and later provided
that weapon to the co-defendant despite the co-defendant’s telling the defendant that he
wished to kill Mary Clark. After the murders, instead of telephoning emergency personnel,
the defendant drove the co-defendant in Mary Clark’s van to Clarksville, where he visited
with friends as though two women did not lay dead inside the Clark residence. Upon his
return to White Bluff, the defendant helped the co-defendant orchestrate a cover-up of the
offenses. The defendant’s history of rule-breaking combined with his astonishingly cavalier
attitude about the victims’ deaths supports a finding that the defendant is a dangerous
offender and the imposition of consecutive sentencing in this case.

              Accordingly, the judgments of the trial court are affirmed.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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