           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                        FEBRUARY 1998 SESSION




STATE OF TENNESSEE,        )
                           )      NO. 02C01-9707-CC-00243
           Appellee,       )
                           )      GIBSON COUNTY
VS.                        )
                           )      HON. DICK JERMAN, JR.,
SHANE PILLOW,              )      JUDGE
                           )
           Appellant.      )      (Second-Degree Murder and
                           )       Aggravated Assault)



FOR THE APPELLANT:                FOR THE APPELLEE:

JERALD M. CAMPBELL, JR.           JOHN KNOX WALKUP
       -and-                      Attorney General & Reporter
L. L. HARRELL, JR.                425 Fifth Ave., North
N.W. Court Sq.                    Nashville, TN 37243-0497
Trenton, TN 38382
                                  ELIZABETH T. RYAN
                                  Asst. Attorney General
                                  425 Fifth Ave., North
                                  Nashville, TN 37243-0493

                                  CLAYBURN L. PEEPLES
                                  District Attorney General
                                  110 College St., Suite 200
                                  Trenton, TN 38382-1841

                                  GARRY G. BROWN
                                  Asst. District Attorney General
                                  110 College St., Suite 200
                                  Trenton, TN 38382-1841




OPINION FILED: ______________________________


AFFIRMED


JOHN H. PEAY,
Judge
                                              OPINION

                  The defendant was convicted of second-degree murder and aggravated

 assault. The trial court sentenced him to twenty-three years confinement for second-

 degree murder and five years confinement for aggravated assault, to run concurrently.

 In this appeal as of right, the defendant presents the following issues for review:

                  I. whether the evidence contained in the record is insufficient, as a matter
                  of law, to support his convictions;

                  II. whether the trial court erred by denying his motion to suppress
                  statements made to law enforcement officers;

                  III. whether the trial court abused its discretion by permitting the State to
                  reopen its case-in-chief to identify the victim’s body;

                  IV. whether the sentence imposed by the trial court is excessive; and

                  V. “whether any other reversible error was committed by the trial court.”

 Finding no merit in the defendant’s contentions, we affirm.



                  According to the record, the defendant, Brian Dunn (co-defendant), and the

 two victims, Robert Reynolds and Donnie Box, had attended school together. The

 defendant described Dunn, Reynolds, and Box as his closest friends. According to the

 defendant, he had frequently smoked marijuana and “huffed paint”1 with them.



                  On March 21, 1996, the defendant, Dunn, Reynolds, and Box had contact

 with each other several times during the day. Around 9 a.m., the defendant went to

 Reynolds’ home and tried to get him to go somewhere with him, but Reynolds declined.

 Later that day, the defendant tried to track down Reynolds at a friend’s house. When

 Reynolds returned the defendant’s call, they discussed a set of drums they jointly owned.

 Although the drums were at the defendant’s house, the defendant told Reynolds he had

 sold them and had Reynolds’ share of the profit. Reynolds told the defendant he and Box


        1
          “Huffing paint” was described as spraying gold spray paint into a bag and inhaling the vapors in order
to “get high .”

                                                       2
would be at the defendant’s house in a few minutes to pick up the money. The defendant

told Reynolds he might not be home when Reynolds and Box arrived, but Reynolds

replied he was coming to his house anyway. When Reynolds and Box arrived, the

defendant would not answer the door. Reynolds and Box drove down the road, only to

return a few minutes later to find the defendant driving out of his driveway. The

defendant promised Reynolds that if he followed him, he would give him his share of the

profit. Reynolds followed him to Dunn’s house, but when he demanded his money, the

defendant refused. Reynolds then left.



             When Reynolds later learned the defendant had not sold the drums, he and

Box began searching for him.      When they found him and Dunn, Reynolds again

demanded his money. The defendant told Reynolds and Box to follow him to his house.

On the way there, the defendant pulled to the side of the road and tried to get Reynolds

to get in his car. Reynolds would not and instead continued to drive with Box towards the

defendant’s house. When the defendant flashed his lights, Reynolds and Box pulled to

the side of the road. Telling Reynolds he had some money with him, the defendant

enticed Reynolds to get in his car. Meanwhile, Dunn exited the defendant’s car and

began talking with Box. After Reynolds entered the defendant’s car, the defendant

stabbed him in the abdomen, penetrating his liver and bile duct. Reynolds then pinned

the defendant behind the steering wheel, used his elbow to blow the car horn, escaped

from the defendant’s car, and ran to Box’s car. The car horn had alerted Box, who began

walking towards the defendant’s car, even though Reynolds warned against it. The

defendant exited his vehicle and stabbed Box in the middle of his chest. Box turned and

ran away. When Box failed to return, Reynolds drove to a relative’s home where he could

get help.



             Meanwhile, the defendant and Dunn had found Box, who was still breathing.

They placed Box in the trunk of the defendant’s car, took him to a bridge spanning the

                                           3
Rutherford Fork of the Obion River, and pushed him into the river. The defendant and

Dunn then fled the state of Tennessee. The next day, they surrendered themselves to

law enforcement officers in Indianola, Mississippi, who contacted the Gibson County

Sheriff’s Department in Tennessee.         Deputies from the Gibson County Sheriff’s

Department traveled to Indianola with the defendant’s and Dunn’s fathers.



              When the Gibson County deputies arrived in Indianola, they examined the

defendant’s car. They found the murder weapon and a larger knife on the front seat of

the car. Blood was found on the back bumper and on a plastic tarpaulin in the trunk. The

defendant gave several statements to Lt. Jimmy Hand of the Gibson County Sheriff’s

Department. He told him that he had stabbed Reynolds. He also admitted stabbing Box,

even though Box did nothing to threaten him. He said that he and Dunn chased Box after

he ran away, and when they found him, he was still breathing. He then identified the

bridge where they pushed Box into the river. Box’s body was later found in the Obion

River near the bridge the defendant identified. The autopsy of Box’s body revealed he

was alive when he was pushed into the river, even though the stab wound penetrated his

heart. The cause of death, however, was attributed to the stab wound, not to drowning.



                                             I.

              The defendant first challenges the sufficiency of the evidence with regards

to his conviction for second-degree murder. When an accused challenges the sufficiency

of the convicting evidence, this Court must review the record to determine if the evidence

adduced at trial is sufficient "to support the finding by the trier of fact of guilt beyond a

reasonable doubt." T.R.A.P. 13(e). This Court may not reweigh or reevaluate the

evidence or substitute its inferences for those drawn from circumstantial evidence by the

trier of fact. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). To the

contrary, this Court is required to afford the State the strongest legitimate view of the

evidence contained in the record as well as all reasonable and legitimate inferences

                                             4
which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).



              Questions concerning the credibility of the witnesses, the weight and value

to be given the evidence, and the factual issues raised by the evidence are resolved by

the trier of fact, not this Court. Id. "A guilty verdict by the jury, approved by the trial

judge, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the theory of the State." State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

Since a verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused, as the appellant, has the burden of illustrating to this

Court why the evidence is insufficient to support the verdict. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). This Court will not disturb a verdict of guilt on a sufficiency

challenge unless the facts in the record are insufficient, as a matter of law, for a rational

trier of fact to find the accused guilty beyond a reasonable doubt. Id.



              Under the facts of the instant case, the State had to prove beyond a

reasonable doubt that the defendant knowingly killed Box. T.C.A. § 39-13-210. Reynolds

testified that Box and the defendant had met between the two cars. He did not see the

defendant stab Box, but he heard Box exclaim, “Oh, s---, Shane,” and he saw Box run

from the defendant. The defendant admitted in his confession that he had stabbed Box,

even though Box had not threatened or attempted to harm him. The autopsy revealed

the stab wound was in the middle of Box’s chest and the knife penetrated his heart.

Although Box was thrown into the river while he was still alive, the cause of death was the

stab wound.



              To contrast, the defendant testified during the trial his confessions were

false and that he and Dunn had agreed to tell three different stories. He also testified

Dunn killed Box. The jury obviously rejected this testimony, which was their prerogative

                                             5
in evaluating each witness’s credibility. See Cabbage, 571 S.W.2d at 835. The evidence

was sufficient beyond a reasonable doubt to support the jury’s verdict that the defendant

knowingly killed Box.      T.R.A.P. 13(e); Jackson v. Virginia, 443 U.S. 307 (1979).

Therefore, the defendant’s argument is without merit.



                                              II.

              Next, the defendant contends the trial court reversibly erred by denying his

motion to suppress three statements made to Gibson County deputy sheriffs. He

predicates his argument upon Tennessee Rules of Juvenile Procedure 7 and 30. He also

argues he did not knowingly and voluntarily waive the rights afforded by Miranda v.

Arizona, 384 U.S. 436 (1966). The State counters that the Tennessee Rules of Juvenile

Procedure are inapplicable here because the defendant was tried as an adult. The State

also contends the defendant knowingly and voluntarily waived his Miranda rights.



              The defendant’s reliance upon the Rules of Juvenile Procedure is

misplaced. The Rules of Juvenile Procedure apply to judicial proceedings in a juvenile

court and have no applicability where, as here, the juvenile is transferred to a court of

original jurisdiction with criminal jurisdiction for trial as an adult. See State v. Lundy, 808

S.W.2d 444, 446 (Tenn. 1991); Colyer v. State, 577 S.W.2d 460, 462 (Tenn. 1979); State

v. Turnmire, 762 S.W.2d 893, 896 (Tenn. Crim. App. 1988). Thus, the defendant’s

reliance on the Rules of Juvenile Procedure will not afford him relief on appeal.



              Moreover, the record is clear that the defendant knowingly and voluntarily

waived his Miranda rights prior to giving his statements to the police. When determining

whether an accused has voluntarily and knowingly waived the Miranda rights, this Court

must consider the totality of the circumstances existing when the accused waived these

rights. State v. Middlebrooks, 840 S.W.2d 317, 326 (Tenn. 1992); Lundy, 808 S.W.2d

at 446. This includes the defendant’s age, education, mental competence and ability,

                                              6
and the facts surrounding the waiver of these rights. Benton, 759 S.W.2d 427, 431-32

(Tenn. Crim. App. 1988). No single factor is conclusive; rather, it is the cumulative effect

of these factors that is significant in determining whether the accused voluntarily waived

his rights. Id. at 431.



              Here, the day after the incident, Lt. Hand interviewed the defendant in the

sheriff’s department in Indianola. The interview lasted just over two hours, beginning at

9:30 p.m. and ending at 11:35 p.m. Deputy Norvell and the defendant’s father were

present during every interview with the defendant. Lt. Hand advised the defendant of his

Miranda rights. The defendant told Lt. Hand he understood these rights and was willing

to waive them. The defendant and his father signed a waiver of rights form. On several

occasions, Lt. Hand told the defendant he was entitled to a lawyer and that he could stop

answering questions at any time, but the defendant repeatedly stated he did not want to

confer with a lawyer or have a lawyer present. Lt. Hand took a recorded statement from

the defendant and then told the defendant to give a written statement of what occurred.

The defendant complied. Not believing the defendant’s statement, Lt. Hand asked the

defendant if he would give him a third statement. Again, the defendant complied, stating

he would give a truthful statement.



              Prior to trial, the defendant moved to suppress these statements. In

denying the defendant’s motion, the trial court noted that the totality of the circumstances

indicated the defendant knowingly and voluntarily waived his constitutional rights and

freely and voluntarily gave these three statements to the police. During trial, the State

introduced these three statements into evidence.



              Based on the totality of these circumstances, we agree with the trial court

that the defendant was fully advised of his Miranda rights before he knowingly and

voluntarily chose to waive those rights. See State v. Van Tran, 864 S.W.2d 465, 472

                                             7
(Tenn. 1993); Middlebrooks, 840 S.W.2d at 326; State v. Gordon, 642 S.W.2d 742, 745

(Tenn. Crim. App. 1982). Accordingly, the defendant’s argument that the trial court

should have granted his motion to suppress must fail.



              The defendant also argues that the trial court erred in allowing a fourth

statement given to Deputy Currie to be used to impeach his trial testimony. We treat this

argument as waived, however, by the defendant’s failure to cite any supporting authority.

T.R.A.P. 27(a)(7); Rules of the Court of Criminal Appeals of Tennessee 10(b); State v.

Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988).



                                             III.

              Next, the defendant contends the trial court committed reversible error by

permitting the State to reopen its case-in-chief to identify the body recovered from the

river as Donnie Box’s body. When the State rested its case-in-chief, the defendant

moved for judgment of acquittal on the ground the State failed to prove Box was in fact

dead. The defendant argued a body was found in the Rutherford Fork of the Obion River,

but it was never identified as Box’s body. The district attorney general stated he had an

agreement with defense counsel that the identity of the body was not required and that

the entire evidence of the chain of custody of the body, including identification of the body

by Box’s father, would be stipulated. On the other hand, defense counsel stated he

believed it was only the testimony of the ambulance personnel who took Box’s body to

the coroner in Memphis that would be stipulated. The trial court found there was an

agreement, but that counsel misunderstood the scope of the argument. The court

granted the district attorney general’s motion to reopen the State’s case-in-chief in order

to establish the body recovered from the river was that of Box. The State did so.



              While “[t]here must be an end of the calling of witnesses at some time,”

Hughes v. State, 126 Tenn. 40, 78, 148 S.W. 543, 552 (1912), the State may be granted

                                             8
permission to reopen its case immediately after it has rested, State v. Harrington, 627

S.W.2d 345, 348 (Tenn. 1981); White v. State, 497 S.W.2d 751, 754 (Tenn. Crim. App.

1973). For instance, on occasion, the State may need to reopen its case-in-chief

because the district attorney general failed to prove an essential element or introduce

relevant evidence due to an oversight. See, e.g., Harrington, 627 S.W.2d at 348; White,

497 S.W.2d at 754. The State’s motion to reopen its case-in-chief for the purpose of

introducing additional evidence addresses itself to the sound discretion of the trial court.

Harrington, 627 S.W.2d at 348; Hughes, 126 Tenn. at 74-75, 148 S.W. at 552; State v.

Tuttle, 914 S.W.2d 926, 931 (Tenn. Crim. App. 1995); White, 497 S.W.2d at 754. An

appellate court will not interfere with the exercise of this discretion unless clear abuse

appears on the face of the record. Tuttle, 914 S.W.2d at 931; State v. Bell, 690 S.W.2d

879, 882 (Tenn. Crim. App. 1985); White, 497 S.W.2d at 754.



              Here, the record clearly reflects the district attorney general and defense

counsel entered into an agreement, but that there was an honest disagreement regarding

the scope of the agreement. A miscarriage of justice would have resulted if the State’s

motion to reopen its case-in-chief had been denied. For these reasons, the trial court did

not abuse its discretion by permitting the State to reopen its case-in-chief in order to

prove the victim’s identity.



                                            IV.

              The defendant contends the sentences imposed by the trial court are

excessive. He argues the trial court erred by using certain enhancement factors and

refusing to apply certain mitigating factors.



              The trial court applied six enhancement factors in determining the length

of the defendant’s sentences: (a) the offense involved more than one victim, T.C.A.

§ 40-35-114(3); (b) the defendant treated or allowed the victim to be treated with extreme

                                                9
cruelty, T.C.A. § 40-35-114(5); (c) the defendant has a previous history of an

unwillingness to comply with the conditions of a sentence involving release into the

community, T.C.A. § 40-35-114(8); (d) the defendant had no hesitation about committing

a crime when the risk to human life was high, T.C.A. § 40-35-114(10); (e) the defendant

was on probation for a former felony conviction, T.C.A. § 40-35-114(13); and (f) the

defendant was adjudicated to have committed a delinquent act or acts as a juvenile which

would have constituted a felony if committed by an adult, T.C.A. § 40-35-114(20).



              The defendant contends the trial court should not have used enhancement

factor (5), the defendant treated or allowed the victim to be treated with extreme cruelty.

T.C.A. § 40-35-114(5). This enhancement factor is not an element of either second-

degree murder or aggravated assault. Moreover, the record reflects the defendant and

Dunn put Box in the trunk of the defendant’s car and transported him to the bridge

spanning the Rutherford Fork of the Obion River. Box was near death and should have

been taken to a hospital. Although both the defendant and Dunn were aware Box was

still alive, they pushed him into the river and then fled the jurisdiction. This conduct was

extremely cruel. This subissue is without merit.



              Next, the defendant contends the trial court erroneously applied

enhancement factor (8), the defendant has a previous history of an unwillingness to

comply with the conditions of a sentence involving release into the community. T.C.A.

§ 40-35-114(8). When sentencing the defendant, the trial court stated on the record that

it was relying upon the presentence report. However, the record on appeal does not

contain the presentence report, which makes it impossible for this Court to conduct an

appropriate de novo review of this issue pursuant to T.C.A. § 40-35-401(d) or determine

whether the trial court erred. State v. Hayes, 894 S.W.2d 298 (Tenn. Crim. App. 1994).

Instead, this Court must conclusively presume that the trial court correctly used this

enhancement factor to enhance the defendant’s sentences. State v. Coolidge, 915

                                            10
S.W.2d 820, 826-27 (Tenn. Crim. App. 1995); State v. Embry, 915 S.W.2d 451 (Tenn.

Crim. App. 1995); State v. Locust, 914 S.W.2d 554, 557 (Tenn. Crim. App. 1995).



             Next, the defendant contends the trial court erroneously applied

enhancement factor (10), the defendant had no hesitation about committing a crime when

the risk to human life was high. T.C.A. § 40-35-114(10). This Court has previously held

this factor is not applicable in second-degree murder cases, State v. Butler, 900 S.W.2d

305, 313-14 (Tenn. Crim. App. 1994), or aggravated assault cases, State v. Hill, 885

S.W.2d 357, 363 (Tenn. Crim. App. 1994). Thus, the trial court erred in using this factor

to increase the defendant’s sentences.



`            Although the defendant does not challenge the use of enhancement factor

(3), the offense involved more than one (1) victim, T.C.A. § 40-35-114(3), the State

correctly states in its brief this factor may not be used to enhance the defendant’s

sentences. In this case there were two victims, but the defendant was convicted of

committing a crime against each victim. The appellate courts have consistently held

enhancement factor (3) may not be used to enhance a sentence under these

circumstances. State v. Freeman, 943 S.W.2d 25, 31 (Tenn. Crim. App. 1996); State

v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim. App. 1995); State v. Clabo, 905 S.W.2d

197, 206 (Tenn. Crim. App. 1995). Thus, the trial court erred in using this factor to

increase the defendant’s sentences.



             The defendant also does not challenge the use of enhancement factor (13),

that the felonies here were committed while the defendant was on probation from a prior

felony conviction. T.C.A. § 40-35-114(13)(C). It appears clear from the record that the

defendant was on probation for a juvenile offense, not a felony conviction, when he

committed the instant crimes, thus rendering enhancement factor (13) inapplicable.

Thus, the trial court also erred in using enhancement factor (13) to increase the

                                           11
defendant’s sentences.



                 There are certain enhancement factors that the trial court did not apply,

even though they are supported by the record. The defendant testified he smoked

marijuana frequently and sold drugs on occasion. Each time the defendant possessed

or sold drugs constituted criminal behavior.2 See State v. Keel, 882 S.W.2d 410, 419

(Tenn. Crim. App. 1994). Thus, the trial court should have applied enhancement factor

(1), the defendant had a previous history of criminal convictions or criminal behavior.

T.C.A. § 40-35-114(1). Additionally, the defendant used a deadly weapon, a knife, to kill

Box. Since the use of a deadly weapon is not an element of second-degree murder, the

defendant’s sentence for second-degree murder should have been enhanced pursuant

to enhancement factor (9), the defendant possessed a deadly weapon during the

commission of the crime. T.C.A. § 40-35-114(9); Butler, 900 S.W.2d at 312-13; Sills v.

State, 884 S.W.2d 139, 145 (Tenn. Crim. App. 1994).



                 The trial court applied one mitigating factor, finding that the defendant

lacked substantial judgment in committing the offenses due to his young age, which was

seventeen. T.C.A. § 40-35-113(6). The defendant argues the trial court should have also

considered the following mitigating factors: (a) he acted under strong provocation, T.C.A.

§ 40-35-113(2); (b) substantial grounds existed which tended to excuse or justify the

defendant’s criminal conduct although it failed to establish a defense, T.C.A.

§ 40-35-113(3); and (c) he committed the offenses under such unusual circumstances

that it is unlikely there was a substantial intent to violate the law which motivated his

conduct. T.C.A. § 40-35-113(11). We disagree.



                 This entire matter began when the defendant lied to Reynolds by telling him

        2
         Apparently, the defendant also had several convictions as a juvenile. However, this Court cannot
consider these convictions since the presentence report has not been inc luded in the record. Embry , 915
S.W.2d at 451.

                                                   12
he had sold the drum set. The defendant then antagonized Reynolds by repeatedly

refusing to give him his share of profits from the “sale.” The defendant continued to

provoke Reynolds by arguing with him about profits from a sale that did not even occur.

Moreover, there is no question the defendant was always the aggressor. He attempted

to get Reynolds to go somewhere with him early that morning, and later, he tried to get

Reynolds to ride with him in his car. Reynolds refused to do so. The defendant flashed

his lights to entice Reynolds and Box to pull to the side of the road. The defendant

stabbed both Reynolds and Box for no apparent reason. Given these circumstances, the

trial court properly refused to apply the three mitigating factors advanced by the

defendant.



               In sum, while there were some enhancement factors the trial court should

not have used to enhance the defendant’s sentences, there were other factors the trial

court should have used to enhance his sentences. Further, the trial court properly

applied the only mitigating factor it could under the circumstances of this case, i.e., that

the defendant lacked substantial judgment in committing the offenses due to his young

age. See T.C.A. § 40-35-113(6). Thus, we find no error with the sentences imposed by

the trial court.



                                            V.

               The defendant has presented an issue captioned “[w]hether any other

reversible error was committed by the trial court,” under which he presents five separate

arguments. Although this Court does not favor the lumping of several unrelated issues

within a single issue, see State v. Williams, 914 S.W.2d 940, 947-48 (Tenn. Crim. App.

1995), each argument will be addressed in turn.



                                            A.

               The defendant sought to introduce two photographs.         One photograph

                                            13
depicted a confederate flag and the other photograph depicted a Nazi swastika. The

defendant contended that Dunn had painted these insignias on the bridge where Box was

pushed into the Obion River. The trial court did not abuse its discretion in ruling the

photographs should be excluded as evidence. See State v. Bowers, 744 S.W.2d 588,

590 (Tenn. Crim. App. 1987). This evidence was not relevant to any issue to be resolved

by the jury, and the prejudicial effect of admitting this evidence would far outweigh the

probative value, if any, of the photographs. See State v. Banks, 564 S.W.2d 947, 951

(Tenn. 1978). Furthermore, this argument has been waived, as the defendant has failed

to cite any supporting authority. T.R.A.P. 27(a)(7); Rules of the Court of Criminal Appeals

of Tennessee 10(b).



                                            B.

              The defendant contends the trial court erred by denying “his pre-trial motion

for funds for a [private] clinical psychologist.” We find no reversible error because the

defendant failed to comply with State v. Barnett, 909 S.W.2d 423 (Tenn. 1995).

Moreover, this argument has been waived for failure to cite authority. T.R.A.P. 27(a)(7);

Rules of the Court of Criminal Appeals of Tennessee 10(b).



                                            C.

              The defendant contends the trial court erred by denying his motions for a

judgment of acquittal on the first-degree murder charge and by instructing the jury on the

offense of first-degree murder. This issue is moot because the jury returned a verdict of

second-degree murder. See State v. Robert E. Sanderson, No. 01C01-9308-CR-00269,

Davidson County (Tenn. Crim. App. filed September 27, 1995, at Nashville). Additionally,

this argument has been waived for failure to cite authority. T.R.A.P. 27(a)(7); Rules of

the Court of Criminal Appeals of Tennessee 10(b).




                                            14
                                            D.

               The defendant contends the trial court erred in denying two motions for

continuance. Whether a continuance should be granted rests within the sound discretion

of the trial court. Mandina v. State, 749 S.W.2d 472, 473 (Tenn. Crim. App. 1985); State

v. Lambert, 741 S.W.2d 127, 131 (Tenn. Crim. App. 1987). This Court will not interfere

with the exercise of this discretion absent clear abuse appearing on the face of the

record. Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357, 358 (1966). Here, the

defendant has failed to show clear abuse of discretion.



                                            E.

               Finally, the defendant contends that under T.C.A. § 37-1-133(b), the trial

court erroneously allowed the assistant district attorney general to question him during

the sentencing hearing about his prior juvenile court proceedings and that the trial court

improperly used this evidence to enhance his sentence. The defendant’s reliance upon

§ 37-1-133(b) is misplaced. Section 37-1-133(b) states, “The disposition of a child and

evidence adduced in a hearing in juvenile court may not be used against such child in any

proceeding in any court other than a juvenile court, whether before or after reaching

majority, except in dispositional proceedings after conviction of a felony for the purposes

of a pre-sentence investigation and report.”       However, while evidence of juvenile

convictions is not admissible during the guilt phase of a criminal case, State v. Davis, 741

S.W.2d 120, 123 (Tenn. Crim. App. 1987), this Court has held that “a juvenile record of

criminal conduct may properly be considered in assessing a suitable sentence upon a

felony conviction by an adult.” State v. Stockton, 733 S.W.2d 111, 112-13 (Tenn. Crim.

App. 1986). The defendant’s argument lacks merit.



                                     CONCLUSION

               Each issue raised by the defendant is without merit. The judgment of the

trial court is affirmed.



                                                  _______________________________
                                                  JOHN H. PEAY, Judge

                                            15
CONCUR:



(Not participating)*
JOE B. JONES, Judge



______________________________________
THOMAS T. W OODALL, Judge




*Judge Joe B. Jones died May 1, 1998, and did not participate in this opinion.
                                                                             We acknowledge his faithful
service to this Court, both as a member of the Court and as its Presiding Judge.




                                                    16
