           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                            APRIL 1999 SESSION        FILED
                                                        July 15, 1999

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,          )                      Appellate Court Clerk
                             )     C.C.A. No. 02C01-9810-CC-00319
     Appellee,               )
                             )     Decatur County
v.                           )
                             )     Honorable C. Creed McGinley, Judge
JOHNNY LYNN CRUSE,           )
                             )     (Sentencing)
     Appellant.              )




FOR THE APPELLANT:                 FOR THE APPELLEE:

J. Michael Ivey                    Paul G. Summers
36 Tennessee Avenue South          Attorney General & Reporter
P. O. Box 127
Parsons, TN 38363                  Georgia Blythe Felner
                                   Assistant Attorney General
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   G. Robert Radford
                                   District Attorney General
                                   111 Church Street
                                   P. O. Box 686
                                   Huntingdon, TN 38344-0686

                                   Jerry W. Wallace
                                   Assistant District Attorney General
                                   P. O. Box 637
                                   Parsons, TN 38363-0637




OPINION FILED: ______________________________


AFFIRMED PURSUANT TO RULE 20


L. T. LAFFERTY, SENIOR JUDGE


                                 OPINION
       The appellant, Johnny Lynn Cruse, appeals as of right from the judgment of the

Decatur County Circuit Court imposing a sentence of twenty-five years following his guilty

plea to murder second degree. The appellant submits one appellate issue: whether the

trial court erred in imposing the maximum sentence of twenty-five years as a Range I,

violent offender.



       After a review of the entire record, briefs of the parties, and appropriate law, we

AFFIRM the trial court’s judgment.



       On February 16, 1998, the Decatur County grand jury indicted the defendant

(Johnny Lynn Cruse), Daniel Lynn Matthews, and Terry Dale Miller for the premeditated

murder of Thomas L. Hay on December 1, 1997. On May 7, 1998, the defendant, in the

presence of his attorney, entered a plea of guilty to the reduced offense of murder second

degree and requested that the trial court determine the appropriate sentence. The trial

court ordered a presentence report.



       At the sentencing hearing on June 22, 1998, the defendant testified he did not wish

to call any witnesses, nor did he wish to testify. The presentence report was submitted to

the trial court for consideration of the appropriate sentence. After the defendant’s arrest,

he gave a statement to the Decatur County Sheriff’s Department, which was incorporated

into the presentence report. Prior to the shooting, the defendant, Daniel Matthews, and

Terry Miller were at a friend’s house drinking beer. Miller started talking about how some

guy had “f----- them.” The defendant did not know who they were talking about. After

riding around, they arrived at “Hook’s” house. Matthews had a rifle, and he and Miller

cleaned the bullets with Windex and loaded the rifle. They drove up the victim’s driveway.

Miller went up to the house, returned to the car, and told Matthews to “go do it. . . . He’s

sitting in the chair. Go do it or we’ll leave.” Matthews got out, walked up to the house, and

fired several shots through the door. The defendant drove off, but stopped down the road,

and all three returned to the house, where Miller took some rocks and arrowheads.



                                             2
Matthews took two long guns, a lever-action rifle, and something in a “zip-up” bag. The

defendant admitted that he knew “we were going to kill that man. . . . My only participation

was that I was driving them around, went back to the house after the man was dead, and

talked to them about not parking down the road, when the planning was going on.”



       The State submitted three enhancement factors for the purpose of enhancing the

defendant’s sentence: (1) the defendant has a previous history of criminal convictions or

criminal behavior; (2) the defendant was a leader in the commission of an offense involving

two or more criminal actors; and (3) the defendant possessed or employed a firearm in the

commission of the offense. Tenn. Code Ann. § 40-35-114(1), (2), and (9). The trial court

found enhancement factors (1) and (9) applicable. The defendant stipulated there were

no mitigating factors, but took issue that he was a leader in the commission of the offense.

The trial court rejected the application of factor (2), the defendant was a leader in the

commission of the offense. In the absence of any mitigating factors, the trial court imposed

the maximum sentence within Range I for murder second degree at twenty-five years in

the Department of Correction.



       When the accused challenges the length, range, or manner of service of a

sentence, this Court has a duty to conduct a de novo review of the sentence with a

presumption of correctness 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).



       When conducting a de novo review of a sentence, this Court must consider: (a) the

evidence, if any, received at the trial and sentencing hearing; (b) the presentence report;

(c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature

and characteristics of the criminal conduct involved; (e) any statutory mitigating or

enhancement factors; (f) any statement made by the defendant regarding sentencing; and

(g) the potential or lack of potential for rehabilitation or treatment. State v. Smith, 735



                                             3
S.W.2d 859, 863 (Tenn. Crim. App. 1987); Tenn. Code Ann. §§ 40-35-102, -103, -210.



       From a review of the record, the trial court followed the sentencing principles of the

Tennessee Criminal Sentencing Reform Act of 1989, thus this review is de novo with a

presumption of correctness. As part of his argument, the defendant contends that the trial

court should have applied the following mitigating factors: (4) the defendant played a minor

role in the commission of the offense; and (10) the defendant assisted the authorities in

locating and recovering the gun and stolen property. Tenn. Code Ann. § 40-35-113(4) and

(10). From our review of the record, we have been unable to find any evidence in support

of factor (10), Tenn. Code Ann. § 40-35-113. In denying the State’s request to apply

enhancement factor (2), Tenn. Code Ann. 40-35-114, namely, that the defendant was a

leader in the commission of the offense, the trial court found the evidence was not clear

as to which of the three defendants was the “leader” of the offense. However, the

evidence was clear that “there was substantial involvement by all” of the defendants. Thus,

the trial court was not in error for failing to apply mitigating factor (4), Tenn. Code Ann. §

40-35-113.



       The trial court found that the defendant was an offender whose record of criminal

activity is extensive. See Tenn. Code Ann. § 40-35-115(b)(2) (1997). The record of the

defendant’s prior criminal history and behavior is uncontroverted and more than adequately

supports the trial court’s conclusion. The sentence imposed by the trial court reasonably

relates to the severity of this offense and was necessary to protect society from the

defendant’s criminal activity. State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). If

appellate review reflects that the trial court properly considered all relevant factors and its

findings of fact are adequately supported in the record, this Court must affirm the sentence,

“even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785,

789 (Tenn. Crim. App. 1991).



       The judgment of the trial court is affirmed pursuant to Rule 20 of the Tennessee

Court of Criminal Appeals.



                                              4
                                ________________________________________
                                L. T. LAFFERTY, SENIOR JUDGE



CONCUR:




___________________________________
JOSEPH M. TIPTON, JUDGE




___________________________________
DAVID G. HAYES, JUDGE




                                  5
