         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     May 21, 2003 Session

               STATE OF TENNESSEE v. DEXTER LEE SPENCE

                      Appeal from the Criminal Court for Sevier County
                             No. 8536   Rex Henry Ogle, Judge



                                 No. E2002-02193-CCA-R3-CD
                                         June 4, 2003

The defendant, Dexter Lee Spence, entered a guilty plea to second degree murder. The trial court
imposed a twenty-five-year sentence. In this appeal of right, the defendant argues that the sentence
was excessive. The judgment of the trial court is affirmed.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JAMES
CURWOOD WITT, JR., JJ., joined.

Edward C. Miller, District Public Defender, for the appellant, Dexter Lee Spence.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General; and
Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        On January 17, 2001, the ninety-six-year-old victim, Alleen Stansberry, was fatally shot in
the head. On the following day, a neighbor discovered her body within six feet of the door to her
residence. Because the defendant had been seen in the area of the victim's residence on the date of
the shooting, he was questioned by law enforcement officers. Although the defendant claimed that
his shotgun had accidently discharged when he stopped at the residence to ask the victim for
permission to hunt on her property, Dr. Cleland Blake, a forensic pathologist, concluded that the path
of the wound was in a downward motion through the body of the victim. It was his opinion that the
victim was falling as she was shot and that the barrel of the weapon was no more than a foot away
when it discharged.

       The defendant, who pled guilty to second degree murder as charged in the indictment, was
twenty years old at the time of his plea. He had completed the eleventh grade before dropping out
of school. The presentence report indicates that the defendant had committed several juvenile
offenses beginning as early as age 13, including four separate theft offenses, two malicious mischief
offenses, an aggravated burglary, and two probation violations. As an adult, the defendant was
charged with misdemeanor theft, which resulted in the deferral of a disposition upon the payment
of costs and the issuance of a restraining order. He was sentenced to thirty days' probation and fifty
hours of community service for a criminal trespass conviction.

        At the sentencing hearing, Dr. Eric S. Engum, a clinical psychologist specializing in
neuropsychology and forensic psychology, testified that he had performed an evaluation of the
defendant. Dr. Engum concluded that the defendant had an I.Q. of 83 and performed at a fifth-grade
level. The defendant had a long history of impulse control difficulties and had received treatment
at Family Ministries, Peninsula Psychiatric Hospital, and the Youth Emergency Shelter. There were
indications of attention deficit disorder, immaturity, and family instability. The defendant exhibited
severe behavioral problems after being sexually assaulted by three older boys at a residential facility
and was transferred from Family Ministries to Peninsula Psychiatric Hospital. Dr. Engum concluded
that the defendant was not psychotic but had the social and emotional development of only a ten- or
eleven-year-old. It was his opinion that although the defendant had a major depressive disorder
which required treatment, he was competent to stand trial, understood the nature of the legal
proceedings, and was able to effectively interact with his attorney. Dr. Engum conceded that the
defendant was fully aware of his behavior and capable of appreciating the wrongfulness of his
actions.

       The trial court found three enhancement factors under Tennessee Code Annotated section
40-35-114:1

         (1) The defendant has a previous history of criminal convictions or criminal behavior
         in addition to those necessary to establish the appropriate range;
         (4) a victim of the offense was particularly vulnerable because of age or physical or
         mental disability; and
         (9) 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(1), (4), (9) (1997).

         In mitigation, the trial court made the following observations:

         [T]his young man does not possess the normal attributes of the average citizen. And
         he does have some serious psychological problems. And this [c]ourt does take that
         into consideration. However, because of the range of punishment and starting at the
         midpoint of this, the [c]ourt does so find that the enhancement factors by far and
         away dominate . . . any mitigation in this sentence.


         1
           Effective July 4, 2002 , the legislature has amended Tennesse e Co de A nnotated sec tion 40 -35-114 by
renumbering original enhancement factors (1) thru (2) and including as enhancement factor (1) that "the offense was an
act of terrorism , or was related to an act of terro rism."

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                       *                     *                         *
        I gave him some weight for his mental deficiencies, but find that the aggravating
        factors so outweigh any mitigating factors that, in effect, there are none.

      In this appeal, the defendant argues that the following mitigating factors are applicable under
Tennessee Code Annotated section 40-35-113:

        (3) Substantial grounds exist tending to excuse or justify the defendant's criminal
        conduct, though failing to establish a defense;
        (6) the defendant, because of his youth, lacked substantial judgment in committing
        the offense;
        (8) the defendant was suffering from a mental condition that significantly reduced his
        culpability for the offense.

See Tenn. Code Ann. § 40-35-113(3), (6), (8). The defendant also asserts that the trial court should
have attributed more weight to the mitigating factors, particularly his relative youth and his mental
condition.

         When there is a challenge to the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review with a presumption that the determinations made by
the trial court 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); see State v.
Jones, 883 S.W.2d 597, 600 (Tenn. 1994). “If the trial court applies inappropriate factors or
otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls.” State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments
provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code
Ann. § 40-35-401, Sentencing Commission Comments.

        Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing
hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel
relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating
or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the
defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210;
State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). If the trial court's findings of fact
are adequately supported by the record, this court may not modify the sentence even if it would have
preferred a different result. State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991).

       In calculating the sentence for a Class A felony conviction, the presumptive sentence is the
midpoint within the range if there are no enhancement or mitigating factors. Tenn. Code Ann. §
40-35-210(c). If there are enhancement factors but no mitigating factors, the trial court shall set the
sentence at or above the midpoint. Tenn. Code Ann. § 40-35-210(d). If there are mitigating factors
but no enhancement factors, the trial court shall set the sentence at or below the midpoint. Id. A


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sentence involving both enhancement and mitigating factors requires an assignment of relative
weight for the enhancement factors as a means of increasing the sentence. Tenn. Code Ann. §
40-35-210(e). The sentence must then be reduced within the range by any weight assigned to the
mitigating factors present. Id.

         In this case, the record establishes that the trial court addressed the appropriate sentencing
principles. The trial judge concluded that the applicable enhancement factors so outweighed any
mitigation to which the defendant was entitled because of his youth, lack of judgment, or mental
condition that a twenty-five-year sentence, the maximum within the range, was appropriate.
Although the defendant's diminished mental condition would not justify a brutal murder of this
nature, the record establishes that he may have lacked judgment due to his youth or mental condition.
It is our view, however, that while this court and perhaps others might have imposed a more lenient
sentence due to the existence of mitigating factors, the trial court acted within its discretionary
authority by attributing limited weight to those factors.

       Accordingly, the judgment is affirmed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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