         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 7, 2003

              STATE OF TENNESSEE v. TOMMY LEE MIDGETT

                  Direct Appeal from the Circuit Court for Madison County
                           No. 00-225    Donald H. Allen, Judge



                     No. W2002-00295-CCA-R3-CD - Filed July 24, 2003


The defendant was tried on two counts of first degree premeditated murder and convicted of two
counts of facilitation of first degree murder for which he received consecutive twenty-four-year
sentences. In his appeal, he presents the following claims: (1) the evidence was insufficient to
support his convictions; (2) the trial court erred in excluding evidence of others having motives to
kill the victims; (3) the State made an improper statement during its closing argument that
constituted plain error; and (4) the trial court erred in sentencing. Following our review, we affirm
the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT
WILLIAMS, JJ., joined.

Didi Christie, Brownsville, Tennessee (on appeal); George M. Googe, District Public Defender; and
Vanessa D. King, Assistant District Public Defender (at trial), for the appellant, Tommy Lee Midgett.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
James G. Woodall, District Attorney General; and Shaun A. Brown and Stacy M. McEndree,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

       The defendant was convicted of facilitation in the murders of Jasper Williams and James
Hicks at Williams’ residence in Jackson on October 14, 1999.
                                           State’s Proof

       John Floyd testified that on October 14, 1999, he was a twelfth grade student at North Side
High School in Jackson and had broken up a fight between the defendant, Tommy Lee Midgett, and
Jasper “Lil’ Pac-Man” Williams, one of the victims, on the school bus after school that day.
According to Floyd, Williams initiated the fight. After the fight had ended, the defendant said “that
he was going to set Lil’ Pac-Man up.” Because of this and other altercations, the bus was stopped
and the police were called to the scene where they removed Floyd from the bus, because he was
involved in another fight. According to his testimony, he got off the bus at the Boys & Girls Club.
At school the following day, Floyd and the defendant “g[o]t into it” when the defendant told him,
“Boy, come here. I want to tell you something. Go in that bathroom with me.” Floyd refused to
comply with the defendant’s demands. On cross-examination, Floyd admitted that he had prior
juvenile adjudications for burglary and theft.

        Annette Davis, a bus driver for the Jackson-Madison County School System, testified about
the fight that Floyd described. She said that she had to stop the bus she was driving on October 14,
1999, because of the fight in the back of the bus between Williams and the defendant. She described
the fight:

               They were just holding one another . . . and I tried to get them to . . .
               let each other go, you know. But obviously, they didn’t want to.
               They just had each other in . . . a hold, and they wouldn’t release
               themselves. So, you know, I didn’t know what else to do.

She then called her boss who notified the police. They arrived about ten minutes later, but did not
remove either person from the bus. Davis resumed her route and when she dropped Williams off
at his stop, the defendant also got off the bus, although that was not his usual stop. She said that
when the defendant and Williams left the bus “they seemed like they was (sic) in good demeanor,
you know, like there was just a spat or whatever that went on and . . . they had pretty much . . . was
(sic) getting over it, you know, like it was no big deal or anything.”

        However, Davis said she did not recall John Floyd being on the bus, anyone trying to break
up the fight, or any threats being made. Also, she did not remember any other fights on the bus that
day. She said she did not speak to “an Investigator with the Police Department” or, specifically,
“Investigator Jeff Austin” a few days after the incident. When shown a signed statement bearing her
name, Davis said, “It looks like my signature,” but “I don’t remember signing this,” and “[T]his is
my first time of really seeing this.”

        Pamela Jones, the mother of Williams, said that the school bus was late dropping her son off
on the afternoon of October 14. Looking for her son, she went to the school and learned that the bus
had left the school on time. She returned home just after 3:00 p.m. and saw her son walking out the
front door and the defendant sitting on the front porch. Williams went back into the house and the
defendant left. Sometime after 8:30 p.m., Williams left to go to his sister’s house and was told to


                                                 -2-
be home by 10:00 p.m. Jones spent the night next door at her boyfriend’s house, going to bed “about
10:30” p.m. She returned to her house at 6:00 a.m. to wake up her son, as she did every morning.
She noticed that a key was stuck in the front door, which was unlocked. Jones opened her son’s
bedroom door and saw him on his bed, with his friend, James “Little Head” Hicks, who had spent
the night, nearby. Thinking they were still asleep, she said, “Get up, Pac. Y’all get up before you
miss the bus,” but received no response. Jones continued:

                       Then I went over to the bed and I pulled him up like that
               (indicating), and a big puddle of blood came out of the back of his
               head. And Little Head was sitting on the couch straight up like that
               (indicating). And I went over there and touched him and he was real
               cold. And so, I ran out of the house and called the police.

        Lola Williams, Williams’ older sister, testified that Williams, along with James Hicks and
Octavius Gatlin, came over to her house “around nine or 9:30” on the night of October 14. They
stayed for “[a]bout thirty or forty-five minutes” and “talk[ed] to a preacher about the Bible” before
leaving together.

         Octavius Gatlin testified that, after he, James Hicks, and Jasper Williams went to Williams’
sister’s house on the evening of October 14, 1999, they walked to the front of her apartment complex
to wait “on a ride for somebody to pick them up.” An African-American man, driving “probably
about a cream color” Cadillac, picked up the victims and gave them a ride. Gatlin did not go with
them.

        Carlos Henning testified that he had given Williams and another person a ride to Williams’
house in his burgundy Buick LeSabre. When they arrived at Williams’ house, the defendant and two
others were standing in the front yard. Henning, who left after dropping off the victims, noticed that
“everybody was shaking hands.” On October 18, 1999, Henning identified the defendant from a
photographic lineup as one of the people standing outside when he dropped the victims off at
Williams’ house. On cross-examination, Henning denied owning a cream-colored Cadillac and
admitted having a 1997 conviction for theft of property under $500.

       Officer John Hasz of the Jackson Police Department testified that he was dispatched to Jasper
Williams’ house at approximately 6:30 a.m. on October 15, 1999. When he arrived, Pamela Jones,
who “seemed hysterical,” was in the front yard. Noticing no signs of forcible entry, Hasz entered
the house and observed “two black males, one lying on a mattress and another sitting . . . on a
couch,” both of whom were noticeably deceased due to the “large amount of blood” by each victim.
He learned that the victims were Jasper Williams and James Hicks. He testified that the neck of
Williams’ T-shirt was unusually “stretched out.”

        Investigator Jeff Austin of the Jackson Police Department testified that he interviewed
Annette Davis on October 19 about the altercation that occurred on her bus on October 14. He
identified a signed statement made by Davis in which she said that she “saw Jasper Williams, John


                                                 -3-
Floyd, and [the defendant] laying [sic] over the seat. They had ‘hold of each other.” Her statement
further acknowledged that “John Floyd got off at the Boy’s and Girl’s Club.”

        Austin testified that the defendant was taken into custody, waived his Miranda rights, and
gave a statement. As to his scuffle with Williams on the bus, the defendant said that when they got
off the bus together, he “thought everything was cool. We got everything straight.” The defendant
told Austin that, on the night of the murders, he and his girlfriend returned home from the store
“about 6:40 p.m.,” and he then “stayed home the rest of the night” until 5:45 a.m. the next morning
when he left to meet his girlfriend. During the making of the statement, the defendant became upset,
“[t]ears started to come down his face,” and he told Austin that he “needed to start over.” The
defendant gave a complicated explanation of his activities the night the two victims were killed,
implicating a Sherrod Manuel in the shootings:

               Sherrod Manuel drove up in a four-door maroon car with a donut tire.
               The car was driving [sic] by a black male named Schooder. Sherrod
               asked me if I had a cigarette, and I told him no. I asked them what
               they were doing, and they told me they were just riding around.
               Schooder asked me if I wanted to ride. I got into the car and left with
               them. It was about 9:45 p.m. when I got into the car. We rode
               around Lincoln Courts and Hillcrest Circle. We was [sic] going to go
               to Old Hickory when Schooder said that we needed to go ahead and
               take care of this business. I asked Schooder, “What are you going to
               do?” And he told me he was going to drop Sherrod off at a one-way.
               He drove to Pac-Man’s house and dropped Sherrod and me off. He
               drove the car to Hays and took a right like you were going to the
               store. Sherrod told me to chill across the street. Sherrod knocked on
               the door, and somebody let him in. He was in the house five or ten
               minutes. It was about ten when he went into the house. The door
               was open, and I could see mattresses on the floor and someone was
               sitting on it. Sherrod walked to the right. After the five or ten
               minutes there that he was in the house, I heard two shots. I turned
               and ran up the street behind some tennis courts and ran more when I
               looked back and saw Sherrod running up the street. He had black
               pants, black shoes with red and white strings, and a red shirt and a
               black and red pullover jacket on. When I saw him, I waited on him.
               I asked him what happened. He told me that the pistol dropped and
               it hit him. He told me to come on and . . . get the car. We saw the
               car, and Schooder was sitting on the back of it. When he saw us
               coming, he started the car and met us. When we got in the car, I
               asked Sherrod if Pac had a gun. He told me no. He said that he had
               a .32 or a .38. I can’t remember which one he said. They turned the
               music up, and they dropped me off on Tomlin Street. Schooder told



                                                -4-
               me that they had to go take care of some business. I got home at
               about 11:35 p.m.

        Austin said that he had “released nothing” to the media regarding the details of the shootings,
and that both Manuel and Schooder, whose real name is Christopher Hardy, were taken into custody
based on the defendant’s statement, but no charges were brought against either.

       Sherrod Manuel said that, on October 14, he was at home with his mother from
approximately 7:30 p.m. until the following morning. He was friends with Christopher Hardy from
school and knew him to drive either a light blue or gray car, but never a burgundy car. He denied
being with the defendant on the evening of October 14.

         Special Agent Shelly Betts, a Tennessee Bureau of Investigation (“TBI”) forensic scientist,
testified that the slugs taken from the victims were of a “.38 Special or a .357 Magnum caliber” and,
in her opinion, fired from the same weapon. Because a possible murder weapon was not recovered,
she did not attempt to match the slugs to a particular pistol.

        Reggie Lowry, the Madison County Assistant Medical Examiner, testified that he was called
to the crime scene on October 15, 1999, arriving at 8:00 a.m. In the front room of the residence, he
observed Williams’ body on a mattress on the floor and Hicks’s body reclined on a couch. Williams
had a gunshot wound above his left ear, and Hicks had a gunshot wound “just over his right eye at
his hairline.” Both victims’ bodies were taken to the medical examiner’s room at a local hospital
and then sent to Memphis that same day for autopsies.

        Dr. O’Brien Cleary Smith, the Shelby County Medical Examiner, testified that he performed
autopsies on the victims on October 15, 1999. He determined that Williams died as a result of a
single gunshot wound to the head, and Hicks died from a “near gunshot wound to the head,” each
shot instantly incapacitating the victims and rendering them incapable of voluntary movement. As
to Williams’ wound, Dr. Smith testified that he found no powder burns. Thus, the distance between
the barrel of the gun and Williams’ head was either more than twenty-four inches or there was an
intermediate object which absorbed the powder burns but not the bullet. The distance between the
barrel of the gun and Hicks’s head was probably between six and twenty-four inches. According to
Dr. Smith, a gunman standing between the two victims while shooting, not a dropped gun
discharging, was “one scenario amongst many that [could] explain the anatomic findings at autopsy
of how the bullets went through each [victim’s] head.” Drug screens revealed the presence of
cocaine and marijuana in both victims.

        Mike Turner, a crime scene investigator and evidence custodian with the Jackson Police
Department, testified that he went to the crime scene to take photographs on October 15, 1999,
around 7:45 a.m. The house was a duplex, and the bodies of the victims were in the living room,
one on a mattress on the floor next to a couch and the other seated on the couch with his feet propped
on the mattress. Turner said that the blinds on both windows were closed, the only light in the room



                                                 -5-
was from a lamp in the corner, and the room was “very dim. It was hard to see in there. We used
flashlights quite a bit to take a closer look at things.”

        Turner testified that he again went to Williams’ house the night of May 19, 2001, “[t]o see
what was visible from the street through the front door” in order to determine whether it was possible
to see inside the house as the defendant said he had done. Standing across the street and at the curb
directly in front of the house, Turner took photographs, sixteen of which were admitted into
evidence, in which the lighting conditions and the position of the front doors were varied. Under
none of the circumstances was he able to see inside the house, as the defendant claimed he had done.

                                            Defense Proof

        Violent Crimes Investigator Cathy Ferguson of the Jackson Police Department testified that
she collected evidence at the crime scene, including “two baggies of marijuana seeds,” “three small
marijuana roaches,” and four bags of what appeared to be crack cocaine. Additionally, “[e]ight to
ten” slips of paper with “names and phone numbers” were collected.

       TBI Special Agent Forensic Scientist Lisa Mays said she examined the bags of evidence
received from Investigator Ferguson, and the only controlled substance she found was marijuana.
The bags originally thought to contain cocaine tested negative for any controlled substances.

        Investigator Jeff Austin was recalled by the defendant and testified that “[t]here is a group
called the Hoover Crips that use the [number] 107 as a symbol.” Earlier, during cross-examination,
Dr. Smith, who performed the autopsies on the victims, had testified that Williams had a tattoo on
his upper arm that possibly could be described as the number “107.”

                                             ANALYSIS

                                   I. Sufficiency of the Evidence

       The defendant argues that the evidence at trial was circumstantial and insufficient to support
his convictions of facilitation of first degree murder.

        When the sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560,
573 (1979); see also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835
S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P. 13(e) (“Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.”). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues are
resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).


                                                  -6-
“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). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

         In State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002), petition for cert. filed (U.S. Apr. 11,
2003), our supreme court restated the holding of State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993),
which cited State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985), that “[a] conviction may be based
entirely on circumstantial evidence where the facts are ‘so clearly interwoven and connected that the
finger of guilt is pointed unerringly at the Defendant and the Defendant alone.’” We now will
determine whether the evidence in this case was sufficient to support the defendant’s convictions for
facilitation of first degree murder.

        First degree murder is the “premeditated and intentional killing of another.” Tenn. Code
Ann. § 39-13-202(a)(1). Facilitation is established by proof that the accused knew another person
intended to commit a specific felony and knowingly furnished substantial assistance in the
commission of the felony. Id. § 39-11-403(a). Therefore, the State was required to prove the
commission of a specified felony and the assistance the defendant gave to the person committing the
specified felony. State v. Parker, 932 S.W.2d 945, 950-51 (Tenn. Crim. App. 1996).

        Here, the evidence viewed in the light most favorable to the State established that the
defendant got into a fight with Jasper Williams on the afternoon of the murders, saying afterwards
“that he was going to set [Williams] up.” The defendant got off the bus at Williams’ stop instead
of his own. Later that night, he was seen with two other men in front of Williams’ house as
Williams arrived home. The next morning, Williams and James Hicks were found dead, each from
a single gunshot wound to the head and both bullets coming from the same pistol. The defendant
gave a statement to the police in which he initially denied any knowledge of the murders before
becoming emotional, stating that he needed to “start over,” and then giving a second, different
statement, in which he claimed he was “riding around” with Sherrod Manuel and Christopher
“Schooder” Hardy in a maroon car on the night of the murders. Neither Manuel nor Hardy had
access to a maroon car, and Manuel, whom the police did not charge, denied the defendant’s claim,
saying that he was at home all night. Investigator Turner testified that at the point across the street
from which the defendant claimed to have seen the interior of Williams’ house and the position of
one of the bodies, such a view was not possible. Because no details of the crime had been made
public, the defendant’s information that there were only two gunshots and one of the victims was on
the mattress could only be known by someone present inside the house where the bodies were found.
Inconsistent statements following the event indicate a “consciousness of guilt from which the jury
could infer unlawful conduct.” Hackney v. State, 551 S.W.2d 335, 339 (Tenn. Crim. App. 1977).
Accordingly, we conclude that the evidence was sufficient to support both of the convictions.




                                                  -7-
                              II. Admissibility of Motive Evidence

        The defendant contends additionally that the trial court improperly excluded “certain letters
found in the home of Jasper Williams and a green notebook containing gang insignia.” According
to the defendant, these would have “tended to prove it was likely the deaths of the victims were
related to a vengeful lover or lovers or were related to gang activity.”

        Tennessee Rule of Appellate Procedure 27(a)(7) requires the defendant to make appropriate
references to the record in the argument section of his brief and to cite relevant authority in support
of the contentions therein. Moreover, “[i]f reference is made to evidence, the admissibility of which
is in controversy, reference shall be made to the pages in the record at which the evidence was
identified, offered, and received or rejected.” Tenn. R. App. P. 27(g). Failure to do so will
ordinarily constitute a waiver of the issue. State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App.
1997). No references are made to testimony about these letters or the notebook, nor are they
identified by exhibit number. Accordingly, we conclude that this issue is waived. Even if not
waived, the claim would be without merit, as we will explain.

         Our review of the record on appeal shows that, during the trial, the defense advised the trial
court that “several letters . . . from various females,” as well as a letter from Williams to a female,
were found at Williams’ residence. Asked by the court to explain the relevance of these letters to
the crimes, counsel stated, “[T]he relevance is that there was not just one letter from one significant
other – that there were several letters from various girls, and maybe one was jealous enough to do
something about it.” As for the green notebook, defense counsel said that it was found inside
Hicks’s book bag at Williams’ residence. The court described this notebook as “all empty pages
except the very first page has some writing in pencil.” The defense contended that this writing was
a “gang tag,” and that “as a gang member . . . there would be another motive for the murder of both
[victims].” Defense counsel gave a negative response when asked by the trial court if the defendant
had “any witnesses at all that are going to say that this shooting incident was somehow gang related
or that it was somehow related because of some jealous girlfriend or friend.” After reviewing the
letters, the court determined that they were irrelevant, explaining that “there’s nothing about these
letters that would indicate any kind of jealously or hatred toward [the victims].” Likewise, the court
determined that the green notebook was irrelevant, explaining that there was no proof as to who had
made the notations in Hicks’s notebook, that he was a gang member, or that the killings were in any
way gang related. The record on appeal fully supports these determinations. Additionally, we note
that the defense was allowed to present proof of marijuana, fake crack cocaine, and slips of papers
bearing names and numbers found at the Williams residence, as well as a possible gang tattoo on
Williams’ body. During final argument, the defense pointed to the items, saying as to the fake drugs
and slips of paper, “It sounds like a drug dealer or somebody posing as if they’re selling drugs.”
Additionally, the defense argued, “Other reasonable hypotheses for the death of these two young
men. Obvious gang connections. And it could be retribution for purchasing some of those fake
drugs. It could be. We don’t know.” In fact, the defense was allowed to put alternative theories
before the jury. Thus, even if this issue had not been waived, we would conclude that it is without
merit.


                                                 -8-
                                        III. Closing Argument

         The defendant claims that the State made an improper statement during the rebuttal portion
of its closing argument that constituted plain error.

         Before the State’s rebuttal, however, defense counsel, in closing argument, attempted to
characterize the State’s case against the defendant and stated, “What the State has done – it has put
on the defendant’s statement and said, ‘No. Don’t believe that. He’s a liar.’” Because no such
remarks were made as part of the State’s initial closing argument, defense counsel was actually the
first to utilize the word “liar.” During rebuttal, the State, making reference to the defendant’s claim
that he could see inside the victim’s house from across the street, remarked, “We know that’s not
true. We know that’s a lie.” Then, referring to the defendant’s inconsistent statements, the State
commented that the defendant “lied to you through his statement about where he was and what he
did . . . lied to you about what he could or could not see[.]” Defense counsel made no
contemporaneous objections to any of the remarks made by the State during closing arguments.

        Tennessee courts “have traditionally provided counsel with a wide latitude of discretion in
the content of their final argument” and trial judges with “wide discretion in control of the
argument.” State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). However, it is
preferable for counsel in criminal cases to limit their commentary to the facts and circumstances of
each case. Id. “The general test to be applied is whether the improper conduct could have affected
the verdict to the prejudice of the defendant.” Harrington v. State, 385 S.W.2d 758, 759 (Tenn.
1965). The defendant has made no such showing and we cannot say that the State’s three comments,
viewed in the context of the entire closing argument, are so inflammatory that they affected the
verdict.

         In any event, the failure to object contemporaneously to testimony in this case constitutes a
waiver. See Tenn. R. App. P. 36(a), Advisory Commission Cmts. (“The last sentence of this rule
is a statement of the accepted principle that a party is not entitled to relief if the party invited error,
waived an error, or failed to take whatever steps were reasonably available to cure an error.”); State
v. Smith, 24 S.W.3d 274, 279-80 (Tenn. 2000); see also Hill v. State, 513 S.W.2d 142, 143 (Tenn.
Crim. App. 1974) (stating that to allow evidentiary questions to be raised at anytime would
“undercut the very function of the trial process, for it would become a tactical matter of defense to
allow a bit of constitutionally inadmissable evidence into the record, in the hope for an acquittal but
secure in the knowledge that a new trial would result”). Here, the defendant failed to object to the
comments he now challenges on appeal. Accordingly, this issue is waived.

                                            IV. Sentencing

       The defendant argues that the trial court improperly imposed consecutive twenty-four-year
sentences. Specifically, he challenges the trial court’s application of sentencing factors.



                                                   -9-
                                       A. Standard of Review

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that “the determinations
made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d).
This presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal conclusions reached
by the trial court in sentencing the accused or to the determinations made by the trial court which are
predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App.
1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d
163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9
(Tenn. 2000). However, this court is required to give great weight to the trial court’s determination
of controverted facts as the trial court's determination of these facts is predicated upon the witnesses’
demeanor and appearance when testifying.

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused's potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210; State v. Scott, 735 S.W.2d 825, 829 (Tenn.
Crim. App. 1987).

        The party challenging the sentences imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence
imposed by the trial court is erroneous.

                                       B. Length of Sentence

        In sentencing the defendant, the trial court applied the following enhancement factors:

                (1) The defendant has a previous history of criminal convictions or
                criminal behavior in addition to those necessary to establish the
                appropriate range;

                (2) The defendant was a leader in the commission of an offense
                involving two (2) or more criminal actors;

                (8) The defendant has a previous history of unwillingness to
                comply with the conditions of a sentence involving release in the
                community; and


                                                  -10-
               (20) The defendant was adjudicated to have committed a delinquent
               act or acts as a juvenile that would constitute a felony if committed
               by an adult.

See Tenn. Code Ann. § 40-35-114(1), (2), (8), (20) (1997). Factors (1), (8), and (20) were given
“great weight.” Based on these factors, the trial court imposed sentences of twenty-four years for
each count of facilitation of first degree murder.

        The trial court found the following two mitigating factors applicable:

                (6) The defendant, because of youth or old age, lacked substantial
                judgment in committing the offense; and

                (8) The defendant was suffering from a mental or physical
                condition that significantly reduced the defendant's culpability for the
                offense.

See Tenn. Code Ann. § 40-35-113(6), (8) (1997). The trial court afforded the mitigating factors
“very little weight.” The application of factor (8) was based on a finding that the defendant was “at
the mildly retarded to borderline range of intellectual functioning at the time of the crime,” as well
as suffering from “chronic Attention Deficit Hyperactivity Disorder which did significantly reduce
his ability to utilize substantial judgment.”

       There is no mathematical formula of evaluating the enhancement factors to calculate the
appropriate sentence. See generally State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996).
“Rather, the weight to be afforded an existing factor is left to the trial court's discretion so long as
the court complies with the purposes and principles of the 1989 Sentencing Act and its findings are
adequately supported by the record.” Id. at 475-76 (citations omitted).

        At the defendant’s sentencing hearing, the trial court relied on his juvenile adjudications in
the application of enhancement factor (1). Juvenile court orders show that he was found to have
committed aggravated assault, aggravated burglary, and theft of property over $1000, all of which
were relied upon at sentencing. In State v. Jackson, 60 S.W.3d 738, 742 (Tenn. 2001), our supreme
court held that enhancement factors (1) and (20) are mutually exclusive and, therefore, factor (1)
must necessarily apply only to adult criminal conduct and factor (20) must apply exclusively to
juvenile adjudications of delinquent acts. On appeal, the State concedes that the trial court should
not have relied on these juvenile adjudications in support of application of factor (1). We agree that
these convictions do not support application of enhancement factor (1), but they do support factor
(20), as the trial court found. See Tenn. Code Ann. § 40-35-114(20) (1997).




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       Additionally, we cannot conclude that there was evidence to support the application of
enhancement factor (2), that the defendant was a leader in the commission of an offense involving
two (2) or more criminal actors. See id. § 40-35-114(2) (1997).

        However, factor (8) was correctly applied. The defendant had a previous history of
unwillingness to comply with the conditions of a sentence involving release in the community, see
id. § 40-35-114(8), demonstrated by his failure to abide by the conditions of his probation.

       The mere number of existing enhancement factors is not relevant as the important
consideration is the weight to be given each factor. State v. Hayes, 899 S.W.2d 175, 186 (Tenn.
Crim. App. 1995). We conclude, upon de novo review, that the defendant’s sentences are not
excessive and are “the least severe measure necessary to achieve the purposes for which the sentence
is imposed.” Tenn. Code Ann. § 40-35-103(4). This issue is without merit.

                                   C. Consecutive Sentencing

       In ordering consecutive sentencing, the trial court stated:

               The Court is going to order that he serve these twenty-four year
               sentences consecutively, which will mean he’ll have a forty-eight year
               sentence to serve as a Range 1 Offender.

                     Now, The Court does want to make sure it’s clear that this forty-
               eight year sentence is being done in order to protect the public from
               [the defendant’s] future criminal conduct because there’s no doubt in
               my mind that if he ever got released on probation in the next few
               years that he would go out and commit criminal conduct again. His
               history indicates that.

                     And, again, The Court feels like any chance of rehabilitation,
               he’s already lost that. I just don’t – at this point, I don’t see that [the
               defendant] would ever be rehabilitated by any other alternative type
               program. So, The Court is going to sentence him to serve these in the
               Tennessee Department of Corrections. Of course, obviously, he’s not
               eligible for probation. He’s not eligible for any type of alternative
               sentencing. So, he is sentenced to the Tennessee Department of
               Corrections.

                    I do want to state, too, that part of the circumstances The Court
               is considering in ordering consecutive sentencing is that in The
               Court’s opinion this was an execution type murder. No question
               about it. These two young men, based upon the facts and
               circumstances, came home that night. There were some people there


                                                  -12-
               waiting – [the defendant] and perhaps two of his friends, from the
               proof, and that these two individuals were forced into that residence.
               One was told to sit down on the couch. One was told to sit down on
               the mattress. And at some point thereafter, . . . this one gun was used
               to shoot and kill both of them. There’s just no question that this was
               an execution type murder. And because of that, that’s the reason The
               Court feels like a forty-eight year sentence is appropriate under the
               circumstances that were presented at trial and also testified by all the
               witnesses.

       The trial court found the following consecutive sentencing criteria applicable:

               (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; and

               (6) The defendant is sentenced for an offense committed while on
               probation.

Tenn. Code Ann. § 40-35-115(b)(2), (4), (6). As a general rule, consecutive sentences are imposed
at the discretion of the trial court upon its consideration of one or more of the above statutory
criteria. These criteria are stated in the alternative; therefore, only one need exist to support the
appropriateness of consecutive sentencing. The trial court found criteria (2), (4), and (6) applied.

         The defendant argues that “the court took great pains to state that the defendant was a violent
offender from whom the public should be protected. However, there was inadequate proof in the
record to support this position[.]” Assuming arguendo that this assertion is correct and criterion (4)
was erroneously considered, the defendant’s argument still must fail because the application of
criteria (2) and (6) is supported by the record.

                                          CONCLUSION

        Based on the foregoing authorities and reasoning, the defendant’s convictions and sentences
for facilitation of first degree murder are affirmed.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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