         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 21, 2005

                STATE OF TENNESSEE v. LONNIE LEE OWENS

                      Appeal from the Circuit Court for Franklin County
                            No. 15356    Buddy D. Perry, Judge



                    No. M2005-00362-CCA-R3-CD - Filed October 18, 2005


The Defendant, Lonnie Lee Owens, was convicted by a jury of second degree murder, abuse of a
corpse, and theft over $10,000. The trial court sentenced the Defendant as a Range I, standard
offender to twenty-five years for the murder, one year for the abuse of a corpse, and four years for
the theft. The trial court ordered these sentences to be served consecutively in the Department of
Correction for an effective term of thirty years. In this direct appeal, the Defendant challenges the
length of his sentence for the murder and also challenges the trial court’s order that his sentences be
served consecutively. We reduce the Defendant’s sentence for the second degree murder conviction
to twenty-four years. We further reverse the trial court’s imposition of consecutive sentences.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed in Part;
                                    Sentence Modified

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.
MCLIN , JJ., joined.

Robert T. Carter and Roger J. Bean, Tullahoma, Tennessee, for the appellant, Lonnie Lee Owens.

Paul G. Summers, Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General;
J. Michael Taylor, District Attorney General; and Steve Blount, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

        The record before this Court does not contain a transcript of the Defendant’s trial, but does
contain a transcript of the Defendant’s sentencing hearing, including a copy of the Defendant’s
presentence report, which was made an exhibit to the hearing. From the materials before us, we have
gleaned that the Defendant killed his estranged wife, Heather Owens, in May 2003 when she came
to his house to pick up their two young children. The Defendant struck the victim and then bound
her with duct tape. The Defendant wrapped duct tape over the victim’s mouth and nose, such that
she suffocated to death. The couple’s children were in the house at the time of the homicide. The
Defendant subsequently buried the victim’s body and disposed of her pick-up truck.                The
Defendant’s girlfriend assisted in the disposal of the victim’s truck.

        At the sentencing hearing, the victim’s mother and brother testified about the effects of the
murder on them, their family and the children. Judy Bolin, the victim’s mother, testified that the
Defendant “can . . . be a good person at times, but just in a snap he’s off like a rock. He’ll tell you
off in a minute, and he’ll do whatever he can to you to hurt you.” Ms. Bolin also stated that the
Defendant “controlled everything [the victim] did,” including how she spent money and where she
spent her time. Ms. Bolin explained that the Defendant murdered her daughter on Ms. Bolin’s
birthday, and that he knew he was doing so.

        Doug Smith testified on behalf of the Defendant, explaining that the Defendant was an
employee of his for seven or eight months. Mr. Smith described the Defendant as a “good
employee.” Barry Rhoads also testified on behalf of the Defendant. Mr. Rhoads explained that he
is a minister as well as the owner of an engineering consulting firm. Mr. Rhoads met the Defendant
and the victim in 1998 because they were attending the church at which he was serving as co-pastor.
The Defendant was actively involved in the church, becoming a deacon and involving himself
“heavily” with the youth. Sometime in 2000, the victim spoke to him about the marital troubles she
and the Defendant were experiencing. From that point until late 2001 or early 2002, Mr. Rhoads’
contact with the Defendant and his wife became infrequent. Later, he saw the Defendant more
frequently as he tried to help the Defendant “work his way through separation and then the divorce.”

        Mr. Rhoads testified that he never knew the Defendant to be mean, aggressive, controlling
or dishonest. After the victim disappeared, however, he began to suspect that the Defendant might
be somehow involved. Eventually, the Defendant confessed to him that he had killed his estranged
wife. In Mr. Rhoads’ opinion, the Defendant had repented of his actions and “his confession and
his asking for forgiveness was as genuine as anybody else’s.” Mr. Rhoads continued to minister to
the Defendant after his confinement and continued to consider the Defendant a friend.

       On cross-examination, Mr. Rhoads acknowledged that the Defendant did not confess his
crime until after he realized the police were coming to arrest him.

        The Defendant testified on his own behalf. He stated that he met his wife, the victim, in 1996
when he was twenty-seven and she was nineteen. They married in July 1997 and had two children.
During the marriage he worked repairing heavy-duty equipment. They separated in September 2002.
He killed the victim nine or ten months later. The Defendant stated that, prior to the victim’s death,
he never struck her or threw anything at her.

        During the separation, the Defendant began keeping a detailed diary including notations on
the victim’s whereabouts. The Defendant stated that he kept this diary because he was afraid of
accusations the victim was making. The beginning of the divorce proceedings were “very hot,” he
said, but settled down after some time passed. However, the Defendant began dating Kara Matthews



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in May 2003. After he began seeing Ms. Matthews, he stated, he “started receiving threats. There
was vandalism to [his] house and property.”

       The Defendant maintained that he had not planned to kill the victim. He stated that he “just
wish[ed] it never happened” and that, as a result, he felt “like [his] whole inside has been ripped
out.” He testified, “I don’t know how to describe the emptiness and the tore apart feelings that I have
or how I could ever repay. No way I would want to them [sic] to suffer anything. I’m -- I’m sorry
from the bottom of my heart. I just don’t know how to describe it.”

        On cross-examination, the Defendant acknowledged that, a day or two after burying the
victim, he lied to the victim’s mother about her whereabouts. The Defendant maintained that his
own family never inquired about where she was or what had happened to her after her disappearance.
According to the Defendant, their children made no inquiries for the two weeks before their mother’s
body was found.

        The Defendant also admitted that, within an hour of killing the victim, he called her
cellphone and left a message on it. He also admitted to leaving child support checks for her after her
death. He claimed, however, that he took these actions not to deceive the police but because he
“didn’t know what to do.” He admitted to having gotten rid of the victim’s vehicle after killing her.
He admitted to getting rid of her body after killing her. He admitted to having involved Ms.
Matthews in disposing of the victim’s truck.

        After hearing the above testimony, the trial court issued its ruling from the bench. The trial
court noted that the Defendant was being sentenced as a Range I, standard offender and that the
presumptive sentence for the Defendant’s second degree murder conviction was twenty years. As
a mitigating factor, the trial court found that the Defendant had no prior criminal history. The trial
court then applied two enhancement factors: (1) the Defendant treated the victim with exceptional
cruelty in the commission of the offense, and (2) the personal injuries inflicted on the victim during
the commission of the offense were particularly great. Weighing the single mitigating factor against
the two enhancement factors, the trial court found that the maximum sentence of twenty-five years
was the appropriate sentence for the second degree murder conviction.

      The trial court found no enhancement factors applicable to the abuse of a corpse offense and
imposed the minimum sentence of one year for that conviction.

        With respect to the theft offense, the trial court applied as a single enhancement factor that
the Defendant was the leader in the commission of that crime. Accordingly, the trial court imposed
a sentence of four years for that offense, out of a possible range of three to six years.

        The trial court then determined that the sentences should all run consecutively to one another
on the basis that the Defendant is a “dangerous offender.”




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         The Defendant now appeals the trial court’s ruling on his sentences. Specifically, the
Defendant contends that the trial court erred in applying the two enhancement factors to his murder
conviction; did not apply sufficient weight to mitigating factors; and erroneously ordered his
sentences to be served consecutively. The State concedes that the trial court erred in applying one
of the enhancement factors to the murder conviction but argues that the overall effective sentence
of thirty years should be affirmed.

                                    STANDARD OF REVIEW
        Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider
(a) the evidence adduced at the trial and the 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) evidence and information offered by the parties
on the enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-
113 and 40-35-114; and (f) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. See Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704
(Tenn. 2002). To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and the
method by which the mitigating and enhancement factors have been evaluated and balanced in
determining the sentence. See State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

         Upon a challenge to the sentence imposed, 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. See
Tenn. Code Ann. § 40-35-401(d). However, 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). 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 the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported
by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that
a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401 Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.

                          LENGTH OF INDIVIDUAL SENTENCES
       The Defendant does not challenge the minimum sentence imposed for his abuse of a corpse
conviction. Accordingly, we need not address that sentence. As to his other two sentences, the
Defendant identifies as issue number two in his initial appellate brief that the trial court “erred in
sentencing the Defendant to the maximum sentence in the range for second degree murder and theft
of property.” In fact, the trial court did not sentence the Defendant to the maximum for his theft


                                                 -4-
offense. The Defendant’s theft conviction is a Class C felony. See Tenn. Code Ann. § 39-14-105(4).
As a Range I, standard offender, the Defendant faced a sentencing range of three to six years for that
offense. See id. § 40-35-112(a)(3). The presumptive Range I sentence for a Class C felony is three
years. See id. § 40-35-210(c). The trial court increased the Defendant’s presumptive sentence for
that crime by only one year, based on the enhancement factor for being a leader in the commission
of the offense. See id. § 40-35-114(3). The Defendant tacitly admitted during the sentencing hearing
that Ms. Matthews took direction from him in conjunction with their joint effort to dispose of the
victim’s truck. The Defendant offers no argument in either his initial appellate brief or his reply
brief that the trial court erred in applying this enhancement factor. Accordingly, this issue is waived.
See Tenn. Ct. Crim. App. R. 10(b). Furthermore, we see no error by the trial court in its application
of this enhancement factor to the theft offense. Therefore, the Defendant has failed to establish that
he is entitled to any reduction in his sentence for the theft offense.

        We turn now to the Defendant’s sentence for his murder of the victim. Second degree
murder is a Class A felony. See Tenn. Code Ann. § 39-13-210(b). The Defendant is a Range I,
standard offender. The Range I sentencing range for a Class A felony is fifteen to twenty-five years.
See id. § 40-35-112(a)(1). The presumptive sentence for a Class A felony is midpoint in the range,
see id. § 40-35-210(c), or twenty years in this instance. “Should there be enhancement and
mitigating factors for a Class A felony, the court must start at the midpoint of the range, enhance the
sentence within the range as appropriate for the enhancement factors, and then reduce the sentence
within the range as appropriate for the mitigating factors.” Id. § 40-35-210(e).

        The trial court enhanced the Defendant’s sentence for his second degree murder conviction
on the basis that the Defendant “treated . . . a victim . . . with exceptional cruelty during the
commission of the offense” and that “[t]he personal injuries inflicted upon . . . the victim w[ere]
particularly great.” Id. § 40-35-114(6), (7). The State concedes in its appellate brief that the trial
court erred in applying factor (7) because the personal injuries inflicted in every homicide are
“particularly great” and this factor is therefore an essential element of the offense such that it may
not be applied to enhance the Defendant’s sentence. See id. § 40-35-114; State v. Williamson, 919
S.W.2d 69, 82 (Tenn. Crim. App. 1995). Accordingly, the trial court should not have enhanced the
Defendant’s sentence for the second degree murder on this basis.

        We find no error, however, in the trial court’s application of enhancement factor (6).
Although we do not have any medical testimony about the victim’s death in the record before us, the
trial court did make a finding for the record during the sentencing hearing that “this was a death by
strangulation where the lady was duct taped.” The Defendant admitted that he assaulted the victim
in his house while their children were close by. The presentence report admitted into evidence at the
sentencing hearing without objection sets forth in part that the Defendant

       used duct tape to tape the victim’s legs together and her hands behind her back. He
       then taped her face from the chin to just under her eyes covering her mouth and nose.
       . . . Dr. Charles Harlan noted in the autopsy report that . . . [h]e . . . found traces of
       duct tape in the victim’s lung. Dr. Harlan concluded that the victim’s death was


                                                  -5-
         caused by suffocation as a result of having her mouth and nose covered with duct
         tape.

The Defendant does not contest these facts but contends that the method by which he killed the
victim did not involve abuse or torture and that this enhancement factor is therefore inapplicable.

        The use of exceptional cruelty in the killing of the victim is not an element of second degree
murder and may therefore, where appropriate, be considered as an enhancement factor. See State
v. Gray, 960 S.W.2d 598, 611 (Tenn. Crim. App. 1997). The proper application of this factor in a
murder case requires evidence that denotes the infliction of pain or suffering for its own sake or from
the gratification derived therefrom, and not merely the pain or suffering inflicted as the means of
accomplishing the murder. See Arnett, 49 S.W.3d at 258. Our supreme court has recognized that
this enhancement factor may be applicable where there is proof of extensive psychological abuse or
torture. See id. at 259. For example, the application of this enhancement factor to an especially
aggravated robbery conviction has been upheld where the defendant executed two persons by
gunshots after having forced them onto the floor of a walk-in cooler. See State v. Reid, 91 S.W.3d
247, app. 311 (Tenn. 2002) (finding that the defendant committed the especially aggravated robbery
with exceptional cruelty because “[t]he anguish experienced by the victims at this point [in the
cooler] while they awaited their execution is unfathomable”). In upholding the application of this
enhancement factor in the Reid case, this Court also noted the defendant’s “calculated indifference
toward suffering.” Id.

        We think the facts support the application of this enhancement factor to the means by which
the Defendant killed his estranged wife. The record before us indicates that the Defendant bound
the victim’s hands and feet and then covered her mouth and nose with duct tape. The Defendant
committed these actions while the victim was in his house and while her children were mere feet
away.1 The autopsy of the victim revealed traces of duct tape in one of the victim’s lungs: indicating
how desperately she tried to continue breathing. After the victim was dead, the Defendant took her
body to an island in Tims Ford Lake and buried it in a shallow grave. He then returned to his house
and had sex with his girlfriend.2 These facts indicate that this Defendant treated the victim with a
calculated indifference to her suffering and that he achieved some form of gratification from
murdering his wife. These facts also establish that the victim tried desperately to continue breathing
but eventually suffocated to death. We have no trouble concluding that the victim’s suffering while
she struggled to live was “unfathomable” and was the direct result of the method used by the
Defendant to accomplish the killing. As noted by Judge Scott, “If strangulation, with the victim
vigorously fighting for another breath, is not exceptional cruelty, I don’t know what is.” State v.
Bobby Lee Knight, No. 87-234-III, 1989 WL 24436, at *4 (Tenn. Crim. App., at Nashville, Mar. 21,



         1
          The Defendant testified during the sentencing hearing that the children were 30 to 40 feet away when he killed
the victim.

         2
             The presentence report includes these circumstances of the offense in the section titled “Official Version.”

                                                            -6-
1989) (Scott, J., dissenting). The Defendant’s assertion that the trial court erred in applying this
enhancement factor to his conviction for second degree murder is without merit.

        The Defendant also argues that the trial court erred in applying enhancement factors to his
sentence on the basis of the United States Supreme Court’s decision in Blakely v. Washington, 124
S.Ct. 2531 (2004). The Blakely decision holds that the Sixth Amendment to the federal Constitution
permits a defendant’s sentence to be increased only if the enhancement factors relied upon by the
judge are based on facts reflected in the jury verdict or admitted by the defendant. See id., 124 S.Ct.
at 2537. The only basis upon which enhancement is otherwise permitted is the defendant’s previous
criminal history: where the defendant has prior convictions, the trial court may enhance the
defendant’s sentence without an admission or jury finding. See Apprendi v. New Jersey, 530 U.S.
466, 490 (2000); Blakely at 2536. Subsequent to the Defendant’s appeal of this case, the Tennessee
Supreme Court considered the impact of Blakely on Tennessee’s sentencing scheme and concluded
that the Criminal Sentencing Reform Act of 1989, pursuant to which the Defendant was sentenced,
does not violate a defendant’s Sixth Amendment rights. See State v. Gomez, 163 S.W.3d 632, 661
(Tenn. 2005). Accordingly, the Defendant’s argument on this basis has no merit.

        The Defendant also complains that the trial court did not recognize and/or accord sufficient
weight to several mitigating factors.3 The Defendant asserts in his initial appellate brief that, in
addition to having no criminal record, he “had a great amount of family support, had a good, honest
and steady work record, and was a church and community leader.”4 He further states that “had these
factors been properly considered, the sentence calculation would have been . . . at the lower end of
the range.”

         In imposing the twenty-five year term for the Defendant’s second degree murder offense, the
trial court recognized the Defendant’s lack of a criminal history as a mitigating factor but determined
that it entitled the Defendant to no downward movement “at all” in the sentencing range. As this
Court has previously recognized, “[p]rovided the trial court complies with the purposes and
principles of the Criminal Sentencing Reform Act of 1989 and its findings are adequately supported
by the record, the weight afforded to enhancement and mitigating factors is left to the trial court’s
discretion.” State v. Souder, 105 S.W.3d 602, 606 (Tenn. Crim. App. 2002). We find no abuse of
discretion by the trial court in refusing to reduce the Defendant’s sentence on this basis. Nor do we
find any abuse of discretion by the trial court in failing to recognize or weigh the additional
mitigating factors urged by the Defendant. The Defendant murdered his wife. He did so by a


         3
           The State argues in its appellate brief that the Defendant has waived this issue because his lawyer specifically
mentioned only the lack of the Defendant’s criminal record as a mitigating factor during closing remarks at the sentencing
hearing. However, defense counsel had filed a comprehensive listing of mitigating factors for the trial court’s
consideration prior to the hearing. Moreover, proof of the Defendant’s work history and church activities was adduced
at the hearing. W e will, accordingly, address this issue on the merits.

         4
          These circumstances are not specifically codified as mitigating factors in our Criminal Sentencing Reform Act
of 1989, but may be considered as such if the trial court determines them to be appropriate for the offense and “consistent
with the purposes of” the Act. See Tenn. Code Ann. § 40-35-113(13).

                                                           -7-
process that was most certainly agonizing to the victim. He did so while his children were in the
house with him and the victim. The Defendant’s past good deeds and alleged family support5 simply
do not entitle him to a sentencing benefit under the facts and circumstances of this case. This issue
is without merit.

       Given our determination that the trial court properly applied only one enhancement factor
to the Defendant’s sentence for his second degree murder conviction, we must modify the
Defendant’s sentence for that crime to twenty-four years.

                                 CONSECUTIVE SENTENCES
        We turn now to the Defendant’s contentions regarding the trial court’s order that he serve his
sentences consecutively. A trial court may order a convicted defendant to serve his or her sentences
consecutively upon finding by a preponderance of the evidence that 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.” Tenn. Code Ann. § 40-35-115(b)(4).
However, before imposing consecutive sentences upon this basis, the trial court must further find
that “the terms imposed are reasonably related to the severity of the offenses committed and are
necessary in order to protect the public from further criminal acts by the offender.” State v.
Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).

        In this case, the trial court found that, based upon the Defendant’s murder of the victim, he
is a dangerous offender. The trial court further found that the effective term of thirty years was
reasonably related to the severity of the Defendant’s crimes. As to the requirement that consecutive
service is necessary to protect the public from further offenses by the Defendant, the trial court told
the Defendant that “notwithstanding your testimony about remorse and your apology to this Court
I was convinced from your testimony that everything you said was self serving and done to protect
you and that you’ll continue to protect your own interest.” This finding by the trial court was
consistent with its earlier general finding that the Defendant’s testimony during his sentencing
hearing was not credible but, rather, “totally self serving.” Accordingly, the trial court determined
that the public needed protection from the Defendant, apparently on the basis that the Defendant’s
willingness to testify in a self serving as opposed to a truthful manner indicated that the Defendant
would also be willing to engage in further criminal acts if necessary to protect himself in some
regard.

        We are constrained to respectfully disagree with the trial court on this point. The Defendant
has no previous history of serious criminal offenses. The instant crimes were committed against the
Defendant’s estranged wife during the pendency of divorce proceedings. According to the
Defendant’s testimony, these proceedings had been heated and hostile, at least sporadically. The
Defendant had begun dating someone prior to the divorce becoming final. The Defendant committed
the murder shortly after his new romantic relationship began and after the victim was allegedly


        5
          The record contains no testimonials by the Defendant’s family members as to the level of support they are
allegedly willing to provide him.

                                                       -8-
threatening him. These circumstances point not to an existing or future pattern of criminal behavior
during which the general public is put at risk, but rather to an isolated event occurring in the midst
of domestic difficulties. We do not imply that this violent murder is not deserving of harsh
punishment. However, a single episode of criminal violence directed at a family member during a
time of strife does not indicate, in and of itself, a propensity to commit future violent acts so as to
establish that the public needs protection from “further criminal acts” by the offender. In short, we
conclude that the proof in this case is not sufficient to establish that consecutive sentences are
necessary to protect the public from further criminal conduct by the Defendant, as required by the
Wilkerson decision. See 905 S.W.2d at 938. Accordingly, we have no choice but to overturn the
trial court’s imposition of consecutive sentences on the basis that the Defendant is a “dangerous
offender.”

                                           CONCLUSION
        The trial court erred when it enhanced the Defendant’s sentence for the second degree murder
conviction on the basis that the murder involved particularly great personal injuries. We have
therefore reduced the Defendant’s sentence for this conviction from twenty-five years to twenty-four
years. We have further determined that the trial court erred when it ordered the Defendant’s
sentences to be served consecutively. Accordingly, we reverse that portion of the trial court’s
judgments and remand this matter such that the judgments against the Defendant may be corrected
to reflect the modification of his second degree murder sentence and that his sentences are to be
served concurrently. In all other respects, we affirm the judgments of the trial court.



                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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