         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                       July 2000 Session

               STATE OF TENNESSEE v. JAMES HENRY DAVIS

                      Appeal from the Criminal Court for White County
                           No. CR 247    Leon Burns, Jr., Judge



                     No. M1999-02467-CCA-R3-CD - Filed August 2, 2000


The Defendant pleaded guilty to the offense of second degree murder. Sentencing was left to the
discretion of the trial court. Following a sentencing hearing, the trial judge sentenced the Defendant
to twenty-four years in the Department of Correction. On appeal, the Defendant challenges the
length of his sentence. We modify the sentence to twenty-two years.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which ALAN E. GLENN, J., and CORNELIA
A. CLARK , SP. J., joined.

John B. Nisbett, III, Cookeville, Tennessee, for the appellant, James Henry Davis.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Bill Gibson, District Attorney General; William M. Locke, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                             OPINION

        The Defendant, James Henry Davis, has a long history of mental illness. At the time the
victim was killed, she and the Defendant had been “dating,” although the record is unclear
concerning the duration or nature of their relationship. On August 11, 1997, the victim returned to
her home from the White County Hospital, where she was employed. She arrived at her home a few
minutes after eleven p.m. Her daughter, who was about fourteen years old at the time, was at home
when she returned. Hearing her mother arrive at the house, the victim's daughter turned on the porch
light and went to the door to meet her mother. At that time, the Defendant, who apparently had been
waiting for the victim's return, came running up to the victim and viciously attacked her with a
butcher knife. The victim attempted to defend herself, but she was stabbed and slashed numerous
times about her face, arms and torso. She died shortly thereafter. Immediately after the attack, the
Defendant ran from the scene. A short time after the killing, the Defendant apparently turned
himself in at the White County Sheriff's Department.
       The Defendant was indicted for the premeditated first degree murder of the victim.
Following a mental evaluation and treatment, and after numerous pretrial motions, the Defendant
entered into a negotiated plea agreement, under which he pleaded guilty to the lesser-included
offense of second degree murder. After a sentencing hearing, the trial judge sentenced him to
twenty-four years in the Department of Correction, which is one year less than the twenty-five year
maximum sentence for a Class A felony. It is from the sentence imposed by the trial judge that the
Defendant appeals.

       When an 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 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. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn.
Code Ann. §§ 40-35-102, -103, -210.

        The presumptive sentence for a Class A felony is the mid-point of the range if there are no
enhancement and mitigating factors. Tenn. Code Ann. § 40-35-210(c). If there are mitigating and
enhancement factors, the sentencing court must start at the middle of the range, enhance the sentence
based upon applicable enhancement factors, and then reduce the sentence based upon applicable
mitigating factors. Id. § 40-35-210(e). The weight to be given to each factor is within the discretion
of the sentencing court so long as the record supports the court's findings and the court complies with
the 1989 Sentencing Act. See State v. Shropshire, 874 S.W.2d 634, 642 (Tenn. Crim. App. 1993).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify 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 presentence report reflects that at the time of sentencing, the Defendant was forty-six
years old and divorced, with two children. He dropped out of school in the ninth grade. He had not
been employed during the sixteen years preceding his arrest on this charge, and during this time he
had been receiving social security disability payments. He had no prior record of arrests or
convictions.



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        Attached to the presentence report were various records concerning the Defendant's mental
illness and history of mental health treatment. The Defendant was apparently hospitalized and/or
treated at several institutions beginning in approximately 1981 and continuing until the time of his
incarceration. He was hospitalized and/or treated at the Plateau Mental Health Center in Cookeville,
the Middle Tennessee Mental Health Center in Nashville, the HCA Parthenon Pavilion in Nashville,
the Parkview Medical Center in Nashville and the Mocassin Bend Mental Health Institute in
Chattanooga. His diagnoses included schizophrenia, “chronic psychiatric disease, possibly related
to organic brain syndrome,” and possible “manic depressive” type illnesses.

         Dr. William T. Kenner, a medical doctor who specializes in psychiatry, testified for the
defense. He stated that the Defendant had a long, seventeen-year history of mental illness. He
testified that he had reviewed the Defendant's medical records and had seen the Defendant on two
separate occasions. He stated the Defendant had been diagnosed as psychotic and that in the course
of his treatment and hospitalization at the Parthenon Pavilion, Vanderbilt Hospital, Middle
Tennessee Mental Health Institute, Mocassin Bend Mental Health Institute and Plateau Mental
Health Center, the Defendant's diagnosis had remained as that of schizophrenia. He stated that early
during the course of the Defendant's illness, he was diagnosed as paranoid schizophrenic, but as his
illness progressed, the diagnosis had moved on toward “undifferentiated schizophrenia with paranoid
features.” He said this change was typical with individuals who are schizophrenic in that they
experience “a gradual and severe deterioration in their overall personality.” He testified that the
Defendant was hospitalized at Mocassin Bend just two months before the crime, and at that time he
was again described as schizophrenic and quite disorganized, and “his ability to function then was
extremely poor.” He stated that when the Defendant stayed on his prescribed medications he would
get better, but that his medication had detrimental side effects, and the Defendant, like many other
patients, would sometimes stop taking his medication. Dr. Kenner testified that in his opinion, at
the time the victim was murdered, the Defendant's mental condition would have supported and
merited an insanity defense.

       In arriving at the Defendant's sentence, the trial court applied four enhancement factors which
he found would be sufficient to raise the sentence to the maximum of twenty-five years: (1) the
Defendant treated or allowed a victim to be treated with exceptional cruelty during the commission
of an offense; (2) the personal injuries inflicted upon the victim were particularly great; (3) the
Defendant possessed or employed a deadly weapon during the commission of the offense; and (4)
the Defendant had no hesitation about committing a crime when the risk to human life was high.
See Tenn. Code Ann. § 40-35-114(5), (6), (9), (10).

         As mitigating factors, the trial court first found as the “strongest of all the mitigating factors”
that the Defendant was suffering from a mental condition that significantly reduced his culpability
for the offense. See id. § 40-35-113(8). While the judge stated that he did not know the extent to
which the Defendant's culpability was reduced due to his mental condition, the court clearly found
that this mitigating factor should be applied. As additional mitigating factors, the court stated that
it was considering the Defendant's lack of any history of previous criminal behavior or criminal
convictions and the Defendant's good reputation in the community. See id. § 40-35-113(13).


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        After weighing the mitigating factors against the enhancement factors, the trial court set the
Defendant's sentence at twenty-four years, which was one year less than the maximum. It appears
that the trial court found the four enhancement factors were sufficient to enhance the sentence to the
maximum and that the mitigating factors were sufficient to reduce the sentence one year below the
maximum.1

         Although the Defendant does not specifically contest the applicability of the enhancement
factors, based on our de novo review we must conclude that the trial judge erred in its application
of two of the enhancement factors. Enhancement factors may not be considered if the factors
themselves are essential elements of the offense. See id. § 40-35-114. In a homicide case, the
personal injuries inflicted upon the homicide victim are by definition “particularly great.” The
killing of a person necessarily includes the infliction of great bodily injury. For this reason,
enhancement factor (6) is inapplicable. See State v. Williamson, 919 S.W.2d 69, 82 (Tenn. Crim.
App. 1995). Likewise, we must conclude that the trial court erred in applying as an enhancement
factor that the Defendant had no hesitation about committing a crime when the risk to human life
was high. This enhancement factor cannot be used to enhance the Defendant's sentence because it
is inherent in the offense of second degree murder. State v. Belser, 945 S.W.2d 776, 792 (Tenn.
Crim. App. 1996); see also State v. Butler, 900 S.W.2d 305, 314 (Tenn. Crim. App. 1994).
Although this factor may be applicable to a sentence for a homicide if a defendant created a high risk
to a life other than that of the victim, see State v. Bingham, 910 S.W.2d 448, 452-53 (Tenn. Crim.
App. 1995), in the case at bar, there is no evidence in the record to support a finding that the
Defendant's actions created a high risk to the life of the victim's daughter, who was the only other
person present. She testified that she did not know if the Defendant even saw her.

        In the case at bar, the trial court found that the four enhancement factors it applied were
sufficient to raise the sentence from the presumptive starting point of twenty years to the maximum
of twenty-five years. Because we have concluded that the trial court erred in its application of two
of the four factors, we believe the remaining enhancement factors justify raising the sentence to
twenty-three years. At the sentencing hearing, the State argued that the Defendant's mental condition
was a factor which was considered in allowing the Defendant to plead guilty to second degree
murder instead of facing trial for first degree murder. We recognize that a trial court may look
behind a plea agreement and consider the nature of the offense committed. See State v.
Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983); State v. Biggs, 769 S.W.2d 506, 507 (Tenn.
Crim. App. 1998). In this case, the trial judge determined that the Defendant's mental condition
should be considered as a mitigating factor. See Tenn. Code Ann. § 40-35-113(8). Based on our
review of the record, we agree with the trial court's finding in that regard. We also note that the trial
court gave some consideration to other factors in mitigation. See id. § 40-35-113(13). Based on our
de novo review of the record in this case, we modify the Defendant's sentence by ordering that he
serve twenty-two years in the Department of Correction.



         1
            According to the transcript, the court reporter's recording device malfunctioned, and the last one m inute of
the trial cour t's ruling wa s not availa ble as a par t of the transc ript.

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      ___________________________________
      DAVID H. WELLES, JUDGE




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