     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT   KNOXVILLE
                                                   FILED
                        DECEMBER 1994 SESSION
                                                       June 25, 1997

                                                  Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk



                                 D
                                 5
STATE OF TENNESSEE,              5
            Appellee             5   No. 03C01-9404-CR-00144
                                 5
      vs.                        K   SULLIVAN COUNTY
                                 5
                                 5   Hon. Edgar P. Calhoun, Judge
CLYDE DEWAYNE WESEMANN,          5
            Appellant            5   (1st Degree Murder)
                                 E




FOR THE APPELLANT:                       FOR THE APPELLEE:

Stephan M. Wallace                       Charles W. Burson
District Public Defender                 Attorney General & Reporter
P.O. Box 839
Blountville, TN. 37617                   Merrilyn Feirman
                                         Assistant Attorney General
Greg L Lauderback                        Criminal Justice Division
Attorney at Law                          450 James Robertson Parkway
Lauderback & Lauderback                  Nashville, TN 37243-0493
434 Shelby Street
Kingsport, TN. 37660                     H. Greeley Wells, Jr.
                                         District Attorney General

                                         Rebecca H. Davenport
                                         Asst Dist. Attorney General
                                         Blountville, TN. 37617




OPINION FILED: _______________________




AFFIRMED

Robert E. Burch
Special Judge
                               OPINION

     Following a jury trial, Appellant was found guilty of Murder

in the First Degree, Aggravated Burglary and Theft of less than

five hundred ($500)Dollars.   The jury sentenced Appellant to life

for the murder and the trial court sentenced him to ten years for

the burglary and eleven months twenty-nine days for the theft.

The trial court ruled that the burglary sentence shall be served

consecutively to the murder sentence.    He appeals of right to

this Court assigning four issues for review:

          1). Whether the proof of deliberation was insufficient

to sustain a conviction of murder in the first degree.

          2). Whether evidence of a prior theft from the victim

by the appellant was improperly admitted.

          3). Whether the confession of the appellant was

improperly admitted.

          4). Whether the trial court erred in sentencing the

appellant in that mitigating factors not listed in the statute

were not considered and whether consecutive sentencing was

proper.

     We find that none of these issues constitute prejudicial

error and affirm the conviction.

                                FACTS

     On June 11, 1992, at approximately eight p.m., Mrs. Virginia

Trusley was found dead in the living room of her home in rural

Sullivan County.   The house had been ransacked and Mrs. Trusley

had apparently been shot as she dozed in front of the television

with her Bible open on her lap.

     Very quickly, suspicion centered upon Appellant, who had

mowed Mrs. Trusley’s yard.    Appellant’s girlfriend led police to

an out-of-the-way bridge under which she had watched Appellant

hide the murder weapon, which had been stolen from the home of

the deceased.   When brought in for questioning, Appellant

confessed to this crime.

                                   2
       In his confession, Appellant stated that he entered the

house about five a.m. on the day that the body was discovered by

breaking the glass in a back door.    He searched the kitchen but

found nothing which he considered worth taking.     Appellant then

walked down the hall to the bedroom.    First searching the closet,

he found a .410 shotgun.   Upon discovering the shotgun, Appellant

walked back up the hall to the living room where Mrs. Trusley was

sleeping.   He aimed the shotgun at her and pulled the trigger.

The shot entered Mrs. Trusley’s temple, instantly killing her.

Appellant stated that the shot surprised him because he “didn’t

know for sure” that the gun was loaded.    Appellant stated that he

immediately regretted what he had done. After killing Mrs.

Trusley in her sleep, Appellant resumed searching the house.

After the search, he left with the only possession of the

deceased which he considered valuable, the shotgun.

       After leaving the house, Appellant then went home and went

to bed.   The following day, Appellant talked to several people

about selling the shotgun.    The police questioned Appellant

briefly but he denied any knowledge of the murder.     The following

day, Appellant learned that the police were again searching for

him.   Since Appellant’s car would not start, he called his

girlfriend who drove him to the Sensabaugh Hollow bridge where he

hid the shotgun.

                SUFFICIENCY OF PROOF OF DELIBERATION

       In his first issue presented for review, Appellant insists

that the evidence introduced at his trial is not sufficient as a

matter of law to sustain a conviction of murder in the first

degree.

                         Standard of Review

            On appeal, the State is entitled to the strongest

legitimate view of the evidence and all reasonable or legitimate

inferences which may be drawn therefrom.      State v. Cabbage 571

S.W.2d 832 (Tenn. 1978).     A verdict of guilt, approved by the

                                  3
trial judge, accredits the testimony of the State's witnesses and

resolves all conflicts in testimony in favor of the State.      State

v. Townsend 525 S.W.2d 842 (Tenn. 1975).   The presumption of

innocence is thereby removed and a presumption on guilt exists on

appeal. Anglin v. State 553 S.W. 2d 616 (Tenn. Crim. App. 1977).

The defendant has the burden of overcoming this presumption.

State v. Brown 551 S.W. 2d 329 (Tenn. 1977).

     When the sufficiency of the evidence is challenged on

appeal, the test is whether, after reviewing the evidence in a

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt. State v. Duncan 698 S.W. 2d 63 (Tenn. 1985);

Rule 13(e), T.R.A.P.

                            Analysis

     In this appeal, able counsel for Appellant have sagely

narrowed the focus of their evidentiary sufficiency attack upon

the single element of deliberation.    Under the law as it existed

at the time of this crime, if this essential element of the crime

of murder in the first degree was not established by the proof, a

conviction of first degree murder could not stand.

     At the time of the commission of this crime, first degree

murder not committed in the perpetration of a specific felony

required the "intentional, premeditated and deliberate killing of

another." T.C.A.§ 39-13-202 (a)(1) (1992 Supp.). A death caused

by the intentional act of another was then and is now presumed to

be second degree murder. State v. Brown 836 S.W.2d 530, 543

(Tenn. 1992). Thus, at the time of the trial of this case, the

State must have proven premeditation and deliberation to raise

the offense to first degree murder. Id. Premeditation

necessitates "the exercise of reflection and judgment," T.C.A.§

39-13-201(b)(2) (1992 Supp.), requiring "a previously formed

design or intent to kill." State v. West 844 S.W.2d 144, 147



                               4
(Tenn. 1992). Deliberation, on the other hand, was defined as a

"cool purpose . . . formed in the absence of passion." Brown, 836

S.W.2d at 538.   It involved the process of weighing matters such

as the wisdom of proceeding with the killing, the manner in which

it will be accomplished, and the likely consequences if

apprehended. Brown 836 S.W.2d at 540-41.   Deliberation also

required "some period of reflection, during which the mind is

free from the influence of excitement." Id. The deliberation and

premeditation must be akin to the deliberation and premeditation

shown for a murder performed by poisoning or lying in wait. Brown

836 S.W.2d at 539 (quoting Rader v. State 73 Tenn. 610, 619-620

(1880))

     No specific time is required to form the requisite

deliberation. State v. Gentry 881 S.W.2d 1(Tenn. Crim. App.

1993).    Deliberation is present when the circumstances suggest

that the murderer contemplated the manner and consequences of his

act. West 844 S.W.2d at 147. Though similar, deliberation and

premeditation are defined separately and are distinct elements of

the crime of murder in the first degree. See State v. Brooks 880

S.W.2d 390, 392-93 (Tenn. Crim. App. 1993). Each may be inferred

from the circumstances where those circumstances affirmatively

establish that the defendant premeditated his assault and then

deliberately performed the act. State v. Richard Nelson

(unreported) 1993 Tenn. Crim. App., No. 02C01-9211-CR-00251

(Tenn. Crim. App., at Jackson, Oct. 13, 1993). This court has

previously held that the holding in Brown requires "proof that

the offense was committed upon reflection, 'without passion or

provocation,' and otherwise free from the influence of

excitement" before a second degree, intentional murder can be

elevated to murder in the first degree. State v. David L. Hassell

(unreported) 1992 Tenn. Crim. App., No. 02C01-9202-CR-00038, slip

op. at 3 (Tenn. Crim. App., at Jackson, Dec. 30, 1992).    The



                                 5
circumstances must suggest that the murderer reflected on the

consequences of the act and that the thought process took place

in a cool mental state. State v. David Hassell, supra.

     The elements of premeditation and deliberation were

questions for the jury and may have been inferred from the

circumstances surrounding the killing. State v. Gentry, supra.

Still, a jury may not engage in speculation.   State v. Bordis 905

S.W.2d 214, 222 (Tenn. Crim. App.1995).

     Premeditation and deliberation, like intent to kill, are

subjective states of mind. Often there is no witness to the

killing; and even if there is a witness, the killer does not

always speak aloud what is in his mind. Therefore, the existence

of the facts of premeditation and deliberation must be determined

from the defendant's conduct (so far as we can learn of it,

usually from circumstantial evidence) in the light of the

surrounding circumstances. Substantive Criminal Law, 2nd, LaFave

and Scott (1986) at Section 7.7.

     We now examine the facts of this case in light of the above

authorities.

     The only proof of deliberation in this case comes from the

physical evidence found in the house of the deceased and from the

confession of the appellant.

     Appellant’s statement indicated that he approached

Deceased’s home about five a.m. and found her asleep in a chair

in the living room(she could be seen from the door). Entry was

accomplished by forcing a screen door and breaking the glass in

the door.   In his signed statement, Appellant states that he does

not remember what he used to break the glass but police notes of

the statement reflect that Appellant said a garden tool container

was used.   The physical evidence indicates that it may have been

a can of paint, the top of which came loose during the process.

After entry, Appellant determined that the deceased remained

asleep.

                                6
       Although not in his signed statement, police notes indicate

that Appellant stated that as soon as he “pulled the screen

door”, he “went berserk”.    In his signed statement, Appellant

indicated that he was “very anxious” that the deceased would wake

up.

       The signed statement then reflects that Appellant opened the

back door and went into the kitchen.   He then searched all of the

kitchen cabinets but failed to find anything which he considered

worth taking.    Appellant then walked past the deceased into the

bedroom.   He looked into the closet and found the .410 shotgun.

Appellant took the shotgun, walked back up the hall to the living

room where the deceased was asleep, aimed the shotgun at her and

pulled the trigger.   In his signed statement, Appellant stated

both that he did not know “for sure that the gun was loaded” and

that he “figured the gun was loaded” because county people often

keep a gun loaded so that it may be used quickly, if needed. In

his statement, Appellant stated that he “immediately regretted

shooting her”.   If this is true, subsequent facts give no

indication of it.     After killing the deceased in her sleep,

Appellant searched the living room, then returned to the kitchen

where he searched a hutch.   He then returned to the bedroom from

whence he had taken the shotgun and searched that room, including

the closet where he had found the gun.   Upon concluding his

search and finding nothing which he considered valuable,

Appellant returned to the kitchen and used a towel to wipe the

house for fingerprints.   He then took the shotgun and left the

house.   After trying to sell the shotgun, Appellant disposed of

it under a culvert when he heard that the police had asked about

him.

       Exhibits ## 24 through 42 (pictures of the entry and inside

of the house) are instructive.   From these pictures, it can be

determined that the deceased kept a neat house, with everything

in its place with the possible exception of some personal papers

                                 7
on the kitchen table.    It can also be determined that Appellant

methodically searched the house looking for items of value.        He

threw the contents of the dresser drawers on the floor but

otherwise disturbed very little other than he left the drawers

open.    We note that nothing has been knocked over in spite of

there being numerous small items on the kitchen counter and the

end table in the living room.

        In looking at the evidence to determine Appellant’s state of

mind at the time of the killing, we initially note that he said

he went “berserk” as soon as he entered the residence.        We do not

know what meaning Appellant ascribes to that word, but it seems

unlikely to be the dictionary definition.      The word “berserk”

means “destructively or frenetically violent; deranged”. American

Heritage Dictionary of the English Language American Heritage

Publishing Co.,Inc. New York 1969.      In fact, the word has its

derivations in Norse mythology and describes warriors who were

considered to be so uncontrollably inflamed with the fury of

fighting that they were dangerous to friend and foe alike.        These

warriors shunned coats of chain mail armor in favor of a bear

skin fastened over one shoulder.      They were thus called

“berserkers”, from the Norse words for “bear” and “shirt”. Funk,

Charles E., Litt.D. Thereby Hangs a Tale, Stories of Curious Word

Origins, Harper & Row New York 1950.      The word connotes

uncontrollable frenzy.     We see no evidence of any such frenzy in

the photographs of the crime scene nor do we detect any

indication of it in Appellant’s narrative of the killing.        In the

only other mention of his mental state prior to the killing,

Appellant said he was “very anxious”.      This is certainly an

understandable state of mind on the part of one who is

burglarizing the occupied house of another but it is certainly

not berserk.     We must conclude, therefore, that Appellant’s

meaning of berserk is not that shared by the population in

general or that he was being untruthful.

                                  8
     The events narrated by Appellant and the photographs in fact

paint quite a different story.   The appellant entered the house,

methodically searched the kitchen then proceeded to the bedroom

where he found the shotgun in a closet.    Up until this point, we

have no difficulty accepting the fact that Appellant had no

intention to kill the deceased but only to steal her belongings.

We note, however, that it was at this point that Appellant

temporarily abandoned his methodical search of the house for

items to steal and walked back down the hall with the shotgun.

The only motive for this action which can be derived from the

proof is that Appellant left the bedroom with the intention of

shooting the deceased.   In light of subsequent events, there

could have been no other reason for his action.    Therefore,

Appellant had formed the intention to kill before he left the

bedroom and walked up the hall to the living room.    He certainly

had an opportunity for premeditation and deliberation.

These circumstances “affirmatively establish that the defendant

premeditated his assault and then deliberately performed the

act”. State v. Richard Nelson, supra.     For these circumstances to

fail to establish deliberation, one would have to assume that

Appellant was simply passing the vicinity of the deceased on

another errand when he spontaneously decided to shoot her.      This

explanation defies logic.   There is absolutely no indication of

any mental state except that of calm deliberation.    The pictorial

exhibits show that Appellant methodically searched the house both

before and after the shooting.   Nothing was knocked over nor

displaced, only the contents of drawers and cabinets examined.

The only indications of the search of the house were the cabinets

and drawers having been left open and the contents thereof having

been thrown to the floor.   The facts negate any agitation on the

part of Appellant. The term “in cold blood” aptly describes the

circumstances of this killing.   The circumstances affirmatively

establish that the murderer reflected on the consequences of the

                                 9
act and that the thought process took place in a cool mental

state. See State v. David Hassell, supra.

       In his signed statement, Appellant stated that he pulled the

trigger, not knowing for sure that the gun was loaded (emphasis

supplied).   He stated that it surprised him when the gun went

off.   Appellant gave as the reason for his action, “I shot her

because I never killed anyone before”.    A note to his statement,

which was not signed by Appellant but was presented to the jury

added the phrase, “...and I wanted to know what it felt like”.

Apparently, this was the “consequences” of the act upon which he

reflected before he killed the deceased.      In another part of

Appellant’s unsigned statements to the police, he admitted that

he expected the gun to be loaded because country people who keep

guns for protection usually do keep them loaded.     Certainly the

fact that Appellant stated that he did not “know for sure that

the gun was loaded” is not indicative of a lack of deliberation.

If he actually thought the gun might not be loaded, we cannot

imagine any reason at all for his trip back up the hall.

       For the reasons above stated, we are convinced that the

facts affirmatively establish that this murder was accomplished

only after both premeditation and deliberation.     The issue is

without merit.

                       ADMISSION OF STATEMENT

       We next deal with Appellant’s third issue because it is

necessary to our examination of his second issue.

       Appellant submits that the trial court erred when it refused

to suppress Appellant’s statement or, at least, redact same.

                         Standard of Review

       A determination by the trial court that a confession has

been given voluntarily and without coercion is binding upon the

appellate court in the absence of a showing that the evidence

preponderates against the ruling.     Lowe v State 584 S.W.2d 239



                                 10
(Tenn. Crim. App. 1979).    On appeal, the appellant has the burden

of showing that the evidence preponderates against the findings

of the trial court.   Brasiel v State 529 S.W.2d 501(Tenn. Crim.

App. 1975). With regard to the claim that a confession was

involuntary, a trial court's determination at a suppression

hearing is presumptively correct on appeal. This presumption of

correctness may only be overcome on appeal if the evidence in the

record preponderates against the trial court's findings. State v.

Kelly 603 S.W.2d 726, 729    (Tenn. 1980).   The appellate courts of

this state are bound to accept that determination by the trial

court that a confession was freely and voluntarily given unless

the evidence in the record preponderates against that finding.

State v. Adams 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992).

Findings of fact made by the trial judge after an evidentiary

hearing of a motion to suppress are afforded the weight of a jury

verdict, and an appellate court will not set aside the trial

court's judgment unless the evidence contained in the record

preponderates against the findings of the trial court.     State v

Odom 928 S.W.2d 18 (Tenn. 1996).

     The determination of whether a confession has been obtained

improperly, by coercive or improper inducement, can only be made

by examining all the surrounding circumstances involving the

interrogation leading to the confession. Monts v State 400 S.W.2d

722(Tenn. 1966).   The question in each case is whether the

conduct of the law enforcement officers was such to undermine the

accused's free will and critically impair his capacity for

self-determination so as to bring about an involuntary

confession. Columbe v. Connecticut 367 U.S. 568, 602, 81 S. Ct.

1860, 1879, 6 L Ed. 2d 1037, 1057-58 (1961); State v. Kelly 603

S.W.2d 726, 728(Tenn. 1980).

                               Analysis

     Appellant insists that his interrogation for four hours by


                                  11
two detectives in a five foot by ten foot room constituted a

coercive environment and that his interrogators used coercive

tactics, including shouting at the appellant to overpower his

will and bring about the confession.    In addition, Appellant

submits that his interrogators made a promise to him that his

girlfriend would not be charged if he confessed to this crime,

thus inducing him to confess.

     Appellant agrees that he was read his Miranda rights and did

sign a waiver of them.    He does not contest the validity of the

waiver, but focuses upon the actions which followed the waiver.

     The trial court, after a hearing on the motion to suppress,

found that the confession had been voluntary.    In the ruling on

the motion, the trial court stated, “There was no threat or undue

pressure placed on him.   There was never any threat to charge

Marlene Waters (Appellant’s girlfriend) or to hold her until he

confessed... “.

     Obviously, the trial court accepted the testimony of the

officers present at the interrogation that they were not

oppressive in their manner.     It was also accepted by the trial

court that the officer ignored the advice, passed to him in the

form of a note, to “invade his (Appellant’s) space” and to “bear

down on him”.   The trial court likewise found that the confession

was not induced by any promises with respect to Appellant’s

girlfriend.   From an examination of the record, we find no reason

to disagree with the findings of the trial court with respect to

the voluntariness of the confession.

     Appellant argues in the alternative that the confession

should have been redacted because additions were made to

Appellant’s signed statement after he had signed it.    He cites no

authority for this proposition.

     At the beginning of the interrogation, Appellant denied

committing the crime, mentioning as possible suspects “Waldo” and

“John”.   After about an hour and a half, Appellant admitted

                                  12
committing the crime.    Obviously, the four hour conversation

included many subjects, including inquiries concerning

Appellant’s comfort.    One of the officers wrote a three page

statement containing the pertinent facts and Appellant signed it.

Thereafter, the officer discovered that he had omitted some facts

which he considered important and interlineated them into the

confession.    Appellant refused to initial the changes because

“they were incriminating”.    The Sheriff then questioned Appellant

about his statement and had him sign the same again, this time

using his full name.    When asked by the Sheriff whether he had

made the statements contained in the interlineations, Appellant

admitted that he had.

     At the hearing of the motion to suppress, the trial court

ruled the additions to the original statement to be an accurate

reflection of what Appellant actually said.    We cannot disagree.

     The interlineations were explained to the jury and it was

told to them that they were added after Appellant had signed the

statement.    The procedure was not misleading.

     The issue is without merit.

                       EVIDENCE OF EARLIER THEFT

     Appellant insists that it was error to admit evidence of

Appellant having stolen some rings from the deceased and a

confrontation some ten days before the killing between the

deceased and the appellant concerning this theft.    There are two

closely related questions presented in this issue:

             1). The admissibility of evidence of the confrontation;

             2). The admissibility of evidence of the theft.

     With regard to the confrontation, Beverly Jones, the

daughter of the deceased, testified that the deceased told her

that she had confronted Appellant and accused him of stealing

four rings from her house.    The trial court instructed the jury

that this evidence could only be considered by them to show the

Appellant’s “state of mind and his intent”.    The trial court had

                                  13
previously ruled that this evidence was admissible to establish

the motive of the appellant to premeditate and deliberate to kill

the deceased.

     There are two principal problems with this evidence.      First,

although the accusation itself was not hearsay, the testimony of

the witness to the accusation was hearsay, second, the evidence

was not relevant.

        The testimony of Ms. Jones was not that she heard her

mother make the statement, but that her mother told her that she

made the statement.     Thus the out-of-court declarant (the

deceased) told the witness that the declarant had made the

statement.    The witness was not present when the accusation was

made.    Ms. Jones’ testimony was hearsay.   It was offered to show

that the statement from the deceased declarant to the witness was

true (the deceased had accused the appellant).     The statement

testified to by Ms. Jones was not an expression of a state of

mind but a narrative of events which did not occur in her

presence.    Rule 802, Tenn. R. Evid. provides that hearsay is not

admissible unless it comes within a recognized exception to the

rule.    This statement does not.    The testimony was improperly

admitted.

        Appellant submits that the hearsay exception of Rule 803(3)

Tenn. R. Evid.(generally known as the “state of mind” exception)

does not allow the introduction of the accusation.     The State

concedes that the testimony of Ms. Jones does not fit this

exception but correctly points out that the accusation was not

hearsay.    We would also add that the trial court did not rule at

the trial that the accusation fit within the 803(3) exception.

The trial court ruled that it was not hearsay.     The statement is

not hearsay.    It was not admitted for the proof of the fact

contained in the accusation but rather that the deceased had

accused Appellant of the theft and that accusation was a motive

for the murder.     It should also be noted that Appellant’s

                                    14
assertion that the accusation does not fit within the Rule 803(3)

exception would be correct if the statement were hearsay.     Rule

803(3) does not allow the admission of a statement to show a non-

declarant’s state of mind. Darron Keith Daniel vs. The Atlanta

Casualty Co. (unreported) Tenn. App.(W/S) No.02A01-9508-CV-00167

opinion filed December 31, 1996.

     Even if the accusation had been properly admitted, it was

irrelevant.   There exists no other evidence in the record that

Appellant was motivated by this accusation to kill the deceased.

As has been pointed out with respect to the first issue presented

for appeal, Appellant was unarmed when he broke into the home of

the deceased and did not initially harm her.   His intention when

he entered the house was burglary, not homicide.   For the jury to

find that this accusation was a motive for murder in this case

would have required rank speculation.   This evidence was not

relevant.   No objection upon this ground was made by Appellant.

Without such an objection and subsequent inquiry by the trial

judge, there is no way that the trial judge can know whether

evidence is relevant.   The trial judge is not privy to the

planned testimony in a case and must rely upon counsel to insure

that evidence is relevant or to object when it is not so that

inquiry can be made as to its relevance.

     The error in this case was compounded when Appellant’s

statement admitting the theft of the rings was introduced into

evidence.   The trial court recognized that this was proof of

other crimes and allowed its introduction to establish intent and

motive.   An additional basis for the ruling by the trial court

was that it established that the allegations of the deceased

(mentioned above) were true.   It was also ruled that the

probative value of the proof of the prior theft outweighed its

prejudicial effect.

     The procedure to be followed in this situation is controlled

by Tenn. R. Evid. 404(b).

                                15
             Other Crimes, Wrongs, or Acts. Evidence
          of other crimes, wrongs, or acts is not
          admissible to prove the character of a person
          in order to show action in conformity with
          the character trait. It may, however, be
          admissible for other purposes. The conditions
          which must be satisfied before allowing such
          evidence are:

                 (1) The court upon request must hold a
          hearing outside the jury's presence;

                 (2) The court must determine that a
          material issue exists other than conduct
          conforming with a character trait and must
          upon request state on the record the material
          issue, the ruling, and the reasons for
          admitting the evidence; and

                 (3) The court must exclude the
          evidence if its probative value is outweighed
          by the danger of unfair prejudice.


     The trial court basically complied with the procedural

requirements of Rule 404 (b).   The question now becomes whether

the trial court’s determination that the prior theft was

admissible to establish Appellant’s motive and intent and to show

that the deceased’s accusation was accurate was proper.

      Evidence of other crimes is excluded unless it falls within

certain well-defined exceptions. State v. Rickman 876 S.W.2d 824,

827 (Tenn. 1994). Even if other crimes evidence is relevant to a

disputed material issue, it is still excluded "if its probative

value is outweighed by the danger of unfair prejudice." Tenn. R.

Evid. 404(b)(3). After hearing the evidence and arguments of

counsel outside of the presence of the jury, a trial court must

determine whether the proffered evidence is relevant to a

disputed, material issue in the case (other than the propensity

of a defendant to commit crimes) and whether the state has

established that relevance by clear and convincing evidence. If

relevant, the court must then weigh the probative value of the

evidence against its potential for unfair prejudice by

considering the unique facts and circumstances of the case. These

circumstances include (1) the similarities between the other


                                16
conduct and that charged, (2) the time that has elapsed between

the two events, (3) the strength of other evidence in the state's

case to prove the disputed issue, and (4) the strength of the

evidence of and connecting the defendant to the other crime. If

the probative value of the other crimes evidence and the

legitimate inferences which may be drawn therefrom are

sufficiently strong to outweigh its prejudicial effect, the

evidence may be admitted. If the unfair prejudice is "dangerously

close to tipping the scales," the court must exclude the evidence

despite its relevance to some material issue. State v. Luellen

867 S.W.2d 736, 741.

       Tennessee recognizes three instances in which evidence of

uncharged crimes may be admissible: (1) to prove identity

(including motive and common scheme or plan); (2) to prove

intent; and (3) to rebut a claim of mistake or accident if

asserted as a defense. State v McCary 922 S.W.2d 511 (Tenn.

1996).

       According to the ruling of the trial court, admission of

this statement in order to show that the accusation of the

deceased was true was indicative of motive on the part of the

appellant.

       Although there is ample evidence that Appellant is the one

who perpetrated this crime, it can be argued that motive

(normally an identity issue) and intent are contested issues in

the trial of Appellant because they could establish the elements

of premeditation and deliberation.    The problem is that they do

not.   The theft of the rings and subsequent accusation are not

connected by other evidence in any way to the crime for which

Appellant is on trial.   In another murder case, evidence such as

this may be admissible but in the case before us there is simply

no evidence from which a reasonable person could infer that the

appellant went to the home of the deceased that morning in order

to murder her because of her accusation.   In fact, the evidence

                                 17
in the case refutes such a theory.      It is highly unlikely that

Appellant would have gone unarmed to the house that morning if he

had intended homicide.   Even if he had done so, Appellant’s

actions once in the house are those of one who came to steal, not

those of one who came to murder.       From the evidence, it can only

be inferred that Appellant only decided to kill the deceased

after he had entered the house.    The accusations of ten days

earlier had no bearing upon his decision.      To infer homicidal

intent from the accusation of theft would have required the jury

to engage in rank speculation.

     Admission of the statement of the appellant in which he

admitted stealing the rings was error.

     The question now becomes whether these errors were

prejudicial to a fair trial of the appellant in this case.      We

hold that they were not.

     There is ample evidence of Appellant’s guilt.      His detailed

confession is corroborated by the physical evidence.      Appellant’s

girlfriend led police to the bridge under which Appellant had

hidden the murder weapon.   Several people saw Appellant with the

stolen shotgun after the crime.    Likewise, the evidence of

Appellant’s premeditation and deliberation are strong.      As noted

with respect to Appellant’s first issue presented for review,

there can be no other explanation for Appellant’s walk up the

hall with the shotgun except that he did so intending to kill the

deceased when he finished his travel.      The prejudicial effect of

proof that Appellant stole four rings from the deceased prior to

the homicide is slight especially when the proof of the homicide

involved proof that the appellant was stealing from the deceased

when he committed the murder.    We further find that the proof of

other crimes added no "new dimension to the jurors' view of the

defendant". See State v. Carter 714 S.W.2d 241, 247, 248 (Tenn.

1986).   The situation in this case is not unlike the one dealt

with by our Supreme Court in State v. Harris 839 S.W.2d 54 (Tenn.

                                  18
1992).    In the Harris case (a murder prosecution), admission of

evidence that a few days before the killings, defendant and

codefendant stole credit cards and jewelry was harmless error

under Rule 36(b), T.R.A.P.    This rule states:


            (b) Effect of Error. A final judgment from
            which relief is available and otherwise
            appropriate shall not be set aside unless,
            considering the whole record, error involving
            a substantial right more probably than not
            affected the judgment or would result in
            prejudice to the judicial process.


     We have considered the whole record and are of the certain

opinion that the error did not rise to the level required by Rule

36(b).

     The error is harmless.

                              SENTENCING

     As his last issue presented for review, Appellant insists

that the trial court erred in sentencing the defendant.

Appellant does not quarrel with the sentence of life as the

result of the first degree murder conviction.     He does cite two

alleged errors in sentencing by the trial judge on the burglary

and theft convictions:

            1). That the trial court did not give proper weight to

the non-statutory mitigating factors presented at the sentencing

phase of the murder trial in setting the sentence for the

burglary and theft.

            2). That the trial court erred in ordering the

sentences to be served consecutively to the life sentence for

murder.

                         Standard of Review

     The standard of review in sentencing in criminal cases is a

de novo review with a presumption that the sentence set by the

trial court is correct if the record shows that the trial court

followed the principles of the Sentencing Act of 1989, considered



                                 19
the relevant factors and made proper findings of fact in the

record. State v Fletcher 805 S.W.2d 785, 789 (Tenn. Crim. App.

1981).   If this is done, then we must affirm even if we would

have preferred a different result. Id.    The burden of showing

that the sentence is improper is upon the Appellant. Id.

     A portion of the Sentencing Reform Act of 1989, codified at

T.C.A. § 40-35-210, established a number of specific procedures

to be followed in sentencing. This section mandates the court's

consideration of the following:

           (1) The evidence, if any, received at the trial and the

               sentencing hearing;

           (2) the presentence report;

           (3) the principles of sentencing and arguments as to

               sentencing alternatives;

           (4) the nature and characteristics of the criminal

               conduct involved;

           (5) evidence and information offered by the parties on

               the enhancement and mitigating factors in §§

               40-35-113 and 40-35-114; and

           (6) any statement the defendant wishes to make in his

               own behalf about sentencing.

     The record before us indicates that the trial judge

considered all of the above factors which applied to this case.

                             Analysis

     Appellant insists that the trial judge did not give

sufficient weight to the non-statutory mitigating factors in his

determination of his sentence.

     T.C.A. § 40-35-210 provides that if there are enhancing and

mitigating factors in the record, the court must start at the

minimum sentence in the range and enhance the sentence as

appropriate for the enhancement factors and then reduce the

sentence within the range as appropriate for the mitigating

factors.

                                   20
     The Act further provides that "whenever the court imposes a

sentence, it shall place on the record either orally or in

writing, what enhancement or mitigating factors it found, if any,

as well as findings of fact as required by § 40-35-209." T.C.A. §

40-35-210(f).   This was done.

      The weight, if any, to be afforded to enhancement and

mitigating factors is left to the trial judge's discretion. State

v. Moss 727 S.W.2d 229, 237 (Tenn. 1986); State v. Shelton 854

S.W.2d 116, 123 (Tenn. Crim. App. 1993).

     In this case, the trial judge found four enhancing factors:

            1). A previous history of criminal convictions and

behavior beyond that necessary to establish the sentencing range.

Appellant had two felony and numerous misdemeanor convictions

above and beyond that required to enhance his sentencing range to

Range II.

            2). The victim was particularly vulnerable because of

her age and physical disability.

            3). Appellant had a previous history of unwillingness

to comply with the conditions of a sentence involving release

into the community.

            4). The crime was committed while Appellant was on

probation for another crime.

     After rejecting the mitigating factor of the appellant’s age

(24), the trial court found two mitigating factors:

            1). At the time of the crime, Appellant was suffering

from a mental condition which significantly reduced his

culpability of the offences.

            2). The crime did not involve violence or injury.

     As to the last mitigating factor, the trial judge obviously

treated the burglary and theft entirely separately from the

murder.   This he is required to do.   The trial judge reasoned

that the burglary was complete upon entering the house and found

that Appellant entered the house with the intent to commit theft.

                                 21
This is entirely supported by the record as has been discussed

above.   From his comments on the record, we can easily determine

that the trial judge gave this factor little, if any, weight.      We

agree.

     Appellant insists that the trial judge gave insufficient

weight to the mitigating factor of the appellant’s unfortunate

childhood.   We disagree.   The record affirmatively shows that the

trial judge considered in detail the childhood of the appellant

in his determination of Appellant’s mental state which reduced

his culpability for the offense.      The proof showed, and the trial

judge recognized, that Appellant’s childhood had caused his

present mental state. The record shows that the trial judge

considered this factor.

     It might be argued that the trial judge gave no weight to

the mitigating factor of mental condition because he assessed the

maximum sentence.   This is not true.    This mitigating factor was

simply outweighed and overwhelmed by the enhancing factors.

Appellant had an extensive criminal history and this history

established that Appellant was unwilling to comply with the

requirements of a sentence involving release into the community.

In fact, this crime was committed while Appellant was on

probation for another crime.    The facts of this case establish a

need to protect the citizens of Sullivan County from Appellant

and that this can only be done by removing him from society for a

long period of time.

     In the case of State v James Taylor (unreported) Tenn. Crim.

App. at Nashville No. 89-93-III, opinion filed April 25, 1990, we

considered a very similar factual situation.     After a de novo

review (as required by the law at that time), we considered the

case of a defendant who had a criminal history similar to that of

Appellant and affirmed a maximum sentence for burglary during

which a murder was committed.    Admittedly, in the Taylor case,

there were no mitigating factors found.     Again we point out that

                                 22
the enhancing factors in this case simply inundated the

mitigating factor.   Although the mitigating factor existed, in

view of the enhancing factors, no reduction from the maximum

sentence was called for.

     We agree with the sentence of the trial judge.

     Next, Appellant insists that the trial judge erred in

ordering the sentences for burglary and theft to be served

consecutively to the life sentence for murder but fails to cite

any authority therefor.

     T.C.A.§ 40-35-115 (b) allows consecutive sentencing if,

inter alia:

     (2) The defendant is an offender whose record of criminal

          activity is extensive.

     (4) The defendant is a dangerous offender whose behavior

          indicates little or no regard for human life, and no

          hesitation about committing a crime in which the risk to

          human life is high.

     (6) The defendant is sentenced for an offense committed

          while on probation.

     The trial court found these three factors in Appellant’s

case. In addition, the trial court found it necessary to

incarcerate Appellant for the protection of the public.    We

cannot disagree.

     This issue is without merit.

     The judgment of the trial court is affirmed.



                                         _________________________

                                              Robert E. Burch,
                                              Special Judge


CONCUR:

_________________________
 Gary R. Wade, Judge



                                   23
_________________________
 Joseph M. Tipton, Judge




                            24
