          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE           FILED
                             MARCH 1999 SESSION
                                                          July 1, 1999

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 ) C.C.A. No. 01C01-9806-CR-00241
      Appellee,                  )
                                 ) Davidson County
V.                               )
                                 ) Honorable Steve R. Dozier, Judge
                                 )
TERRENCE T. WIGGINS,             ) (Attempted Voluntary Manslaughter;
                                 ) Reckless Endangerment)
      Appellant.                 )




FOR THE APPELLANT:                  FOR THE APPELLEE:

KARL DEAN                           PAUL G. SUMMERS
District Public Defender            Attorney General & Reporter

JEFFREY A. DEVASHER                 LUCIAN D. GEISE
LAURA C. DYKES                      Assistant Attorney General
Assistant Public Defenders          425 Fifth Avenue North
1202 Stahlman Building              Nashville, TN 37243
Nashville, TN 37201
                                    VICTOR S. (TORRY) JOHNSON III
                                    District Attorney General

                                    MARIAN FORDYCE
                                    MARY CAMPBELL
                                    Assistant District Attorneys General
                                    222 Second Avenue North, Suite 500
                                    Nashville, TN 37201




OPINION FILED: ___________________

AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                      OPINION

          The defendant, Terrence T. W iggins, was convicted of attempt to commit

voluntary manslaughter and felony reckless endangerment and sentenced to

concurrent terms of seven and three years, respectively. The trial court then

ordered split confinement with twenty-one months confinement and the balance

on probation. On this appeal, the defendant argues that the trial court

misapplied certain enhancement factors and that his sentences are, therefore,

excessive. He further asserts that his confinement violates Tennessee Code

Annotated § 40-35-306(a). We AFFIRM the judgment of the trial court.



                                    BACKGROUND

          On April 4, 1996, Kevin Ezzell observed the defendant quarreling with

Fatima Mattox, the defendant’s former girlfriend, in a parking lot near Ezzell’s

workplace. Ezzell intervened, and the defendant pulled a handgun from his

pocket and pointed it at Ezzell. When the defendant looked away for a moment,

Ezzell punched him in the face and tried to subdue him. The defendant wrestled

free and fired several shots at Ezzell. He then forced Mattox into his car and fled

the parking lot.



          Ezzell followed in his own car, attempting to get the defendant’s license

plate number. During the chase, the defendant reloaded and fired several more

shots at Ezzell. Ezzell testified that the defendant also pointed the gun at Mattox

and that she repeatedly opened the passenger-side door of the defendant’s

moving vehicle in apparent attempts to escape. Police officers ultimately joined

the pursuit and apprehended the defendant when he turned onto a dead-end

street.



          The defendant was indicted on twelve counts, ranging from attempted

second degree murder to failure to possess a driver’s license. Four counts were

dismissed before trial, and the trial court granted judgment of acquittal on five


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additional counts following the state’s proof at trial. The remaining three counts--

attempted second degree murder and two counts of reckless endangerment--

were submitted to the jury. The jury returned guilty verdicts on both counts of

reckless endangerment and found the defendant guilty of attempted voluntary

manslaughter on the attempt charge. The trial court subsequently granted the

defendant’s motion for arrest of judgment on one of the reckless endangerment

counts, thus leaving convictions of one count each attempted voluntary

manslaughter and reckless endangerment.



        At the defendant’s sentencing hearing, the trial court found five

enhancement factors applicable to both offenses:

        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(1);

        The defendant has a previous history of unwillingness to comply
        with the conditions of a sentence involving release in the
        community, Tenn. Code Ann. § 40-35-114(8);

        The defendant possessed or employed a firearm . . . during the
        commission of the offense, Tenn. Code Ann. § 40-35-114(9);

        The defendant had no hesitation about committing a crime when
        the risk to human life was high, Tenn. Code Ann. § 40-35-114(10);

        The crime was committed under circumstance under which the
        potential for bodily injury to a victim was great, Tenn. Code Ann. §
        40-35-114(16).


Partially offsetting these enhancements, the trial court found as mitigating factors

that the defendant had acted under strong provocation, see Tenn. Code Ann. §

40-35-113(2), and that the defendant had avoided trouble during the eleven

months immediately prior to his sentencing hearing. Based on these findings,

the trial court imposed a mid-range sentence of three years on the reckless

endangerment count and a sentence of seven years on the attempt count.1 The



         1
           Based on his convictions of two prior felonies, the trial court found the defendant to be a
range II of fender . Attem pted volun tary ma nslaugh ter is a Clas s D felon y, carrying a ran ge II
senten ce of fou r to eight years . See Tenn. Code Ann. §§ 39-12-101; 39-12-107(a); 39-13-211;
40-35-1 12(b). R eckles s enda ngerm ent com mitted w ith a dead ly weapon is a Class E felony, with
a range II sentenc e of two to four years . See Tenn . Code A nn. §§ 39 -13-103 (b); 40-35 -112(b) (5).
The presumptive sentence for a Class D or E felony is the minimum sentence in the range,
absen t enhanc eme nt or m itigating facto rs. See Tenn. Code A nn. § 40-35-210(c).

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court ordered these sentences to run concurrently and to be probated except for

a period, in addition to time served, of six months day-for-day confinement.



       The defendant contests the imposed six-month period of confinement. He

further argues that his sentences are excessive due to misapplication of

enhancement factors (10) and (16) as to both offenses and misapplication of

factor (9) as to the reckless endangerment count. The defendant does not

challenge the applicability of enhancement factor (1) or (8) as to either offense or

of factor (9) as to the attempt conviction.



                              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). The

appellant carries the burden of showing that the 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).



                                     ANALYSIS

       The defendant argues that the trial court erroneously applied

enhancement factor (9) to his conviction of felony reckless endangerment. We

agree. Use of a deadly weapon is an essential element of felony reckless

endangerment. See Tenn. Code Ann. § 39-13-103(b). As such, enhancement

factor (9) is inapplicable to that offense.




                                          -4-
       Similarly, the defendant argues that factors (10) and (16) are essential

elements of both attempted voluntary manslaughter and reckless endangerment

and, therefore, could not properly enhance either offense. The trial court

recognized that these factors are inherent in both of the defendant’s convicted

offenses but nevertheless applied both factors based upon risk to others--

specifically, risk to other drivers and bystanders in the vicinity of the car chase

and gunshots. Each member of this panel agrees that the trial court properly

applied enhancement factor (10) to the facts of this case. However, the

defendant’s argument as to the application of factor (16) raises an issue as to

which this Court is divided.



       My learned colleagues would hold that the trial court correctly applied

enhancement factor (16) to the facts of this case consistent with the holding of

State v. Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995). Sims holds that both

factors (10) and (16) may be applied in situations where individuals other than

the victim are in the area and are subject to injury. See id. at 50. I, on the other

hand, would differ and hold that the trial court incorrectly applied enhancement

factor (16) to the facts of this case consistent with the holdings of State v.

Bingham, 910 S.W.2d 448 (Tenn. Crim. App. 1995). Bingham holds that

enhancement factor (16) may not be applied to a conviction for vehicular

homicide by recklessness. See id. at 452; see also State v. Charles Justin

Osborne, No. 01C01-9806-CC-00246 (Tenn. Crim. App. Filed, May 12, 1999, at

Nashville). I am in the minority on this panel when I conclude that factor (16) is

inapplicable to the defendant’s convictions based on risk to persons other than a

victim of the convicted offenses. This conclusion notwithstanding, I would not

require alteration of the defendant’s sentences.



       For these reasons, this panel concludes that the trial court’s application of

enhancement factor (9) was erroneous as to the defendant’s reckless

endangerment conviction. A majority of this panel concludes that enhancement



                                         -5-
factors (10) and (16) are properly applied to both offenses. These conclusions,

however, do not require alteration of the defendant’s sentences. Five

enhancement factors remain on the attempt count and four enhancement factors

remain on the reckless endangerment count. The trial court did not indicate the

weight accorded to the various sentencing factors. This panel finds that

enhancement factors (1), (8), and (10) are each entitled to significant weight on

the facts of this case--more than sufficient to warrant maximum sentences on

both counts. In contrast, the mitigating factors allowed by the trial court are

slight. The imposed sentences are appropriate.



       Finally, the appellant asserts that, considering his presentence jail credit,

the imposed period of confinement was greater that one year and, therefore,

violative of Tennessee Code Annotated § 40-35-306(a). Due to unusual delays,

the defendant had served four hundred and thirty-two days confinement and was

released prior to sentencing. At his sentencing hearing, the trial court ordered

that the defendant serve an additional six months day-for-day confinement.

Thus, the defendant’s effective period of confinement was approximately twenty-

one months, all of which the defendant completed prior to this appeal. Because

the defendant has served his entire period of confinement and there exists no

remedy for the alleged error, we find this issue moot.



                                  CONCLUSION

       The judgment of the trial court is AFFIRMED.




                                               ______________________________
                                                JOHN EVERETT WILLIAMS, Judge




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CONCUR:




_______________________________
DAVID H. WELLES, Judge




_______________________________
JOE G. RILEY, Judge




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