             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            JANUARY SESSION, 2000


STATE OF TENNESSEE,
                     FILED          *
                 March 14, 2000     *      No. W1999-01485-CCA-R3-CD
     Appellee,                      *
                Cecil Crowson, Jr. *       MADISON COUNTY
vs.           Appellate Court Clerk *
                                    *      Hon. Roger Page, Judge
KELLY HAYNES,                       *
                                    *      (Aggravated Assault)
     Appellant.                     *


For the Appellant:                   For the Appellee:

Clifford K. McGown, Jr.              Paul G. Summers
Attorney for Appellant               Attorney General and Reporter
113 North Court Square
P. O. Box 26                         J. Ross Dyer
Waverly, TN 37185                    Assistant Attorney General
                                     Criminal Justice Division
(ON APPEAL)                          425 Fifth Avenue North
                                     2d Floor, Cordell Hull Building
                                     Nashville, TN 37243-0493
George Morton Googe
District Public Defender
227 West Baltimore Street
Jackson, TN 38301                    James G. (Jerry) Woodall
                                     District Attorney General
(AT TRIAL)
                                     James W. Thompson
                                     Asst. District Attorney General
                                     State Office Building, Suite 201-A
                                     Post Office Box 2825
                                     Jackson, TN 38302


OPINION FILED:

SENTENCE MODIFIED



David G. Hayes, Judge
                                        OPINION



       The appellant, Kelly Haynes, was indicted by a Madison County grand jury for

aggravated assault. On February 12, 1999, he entered a guilty plea to the charged

offense. At a subsequent sentencing hearing, the trial court ordered that the

appellant serve a sentence of five years confinement in the Department of

Correction. On appeal, the appellant argues that his sentence is excessive and

based upon the misapplication of certain enhancement factors.



       After review, we modify the appellant’s sentence to reflect a sentence of four

years confinement in the Department of Correction.




                                      Background



       At the sentencing hearing, the victim, Debbie McClish, testified that, on May

13, 1998, she and the appellant were living together at 71 Birchwood Lane in

Jackson. On this date, Ms. McClish retired to bed. While she was asleep, the

appellant threw hot water on her resulting in second and third degree burns to the

upper part of her body. She could offer no reason why the appellant would harm

her; “[she] did nothing to harm him or hurt him.” However, the previous day, she

had told the appellant that she was moving out of the residence they shared. She

related, “He had told me that he understood, . . . There was no argument or

anything.” Ms. McClish was hospitalized for two weeks as a result of her injuries

and has permanent scarring on her back, neck, right arm and ear. After being

released from the hospital, she underwent physical therapy for about a month. The

injuries still cause her to suffer in pain. The hospital bill for her treatment and care

amounted to over $50,000. Of the $50,000, Ms. McClish is personally responsible

for paying approximately $17,306.


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       The presentence report reveals that the appellant is thirty-six years old and is

a United States Army veteran of the Gulf War. He served in the U.S. Army from

1984 to 1994 and received an honorable discharge. He has a previous conviction in

the state of Kansas for theft of property, specifically, unemployment security fraud.

He received a three year probated sentence for this offense. Although the State did

not produce a certified copy of this conviction, the appellant previously conceded the

existence of this prior conviction at his guilty plea hearing, and did not dispute its

validity at the sentencing hearing.



       The appellant is married with two children. However, the two children are in

foster care and, apparently, he does not maintain a relationship with his wife who

lives in another state. The appellant has held employment as a security guard with

Wells Fargo for four months in 1995. The appellant admits that he is a recovering

alcoholic and drug addict. In 1984, he completed inpatient treatment at a Veteran’s

Administration medical center.



        He has also received mental health counseling in 1995-1996 and in 1997-

1998 during which time he was diagnosed as bipolar II with psychotic features. The

appellant receives disability benefits due to his mental condition. After being

arrested on the present charge, the appellant was admitted and evaluated by

Western Mental Health Institute. The evaluation indicated that the appellant was

competent to stand trial and that he was not insane, by legal definition, at the time of

the offense. Notwithstanding, the report revealed that the appellant was diagnosed

as having a severe mental disease or defect.




       The appellant also has performed volunteer services, including Salvation

Army bell ringer, Lifeline Blood Service volunteer, and American Red Cross


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volunteer blood donor. He also participated in a Walk for Life fundraiser,

volunteered as a sandbagger in the Midwest floods, and participated in the Nashville

Food Harvest, Jerry Lewis Telethon, United Negro College Fund program, and

Youth Camp services.



       Based upon this proof, the trial court found four enhancement factors

applicable (1) the defendant has a previous history of criminal convictions or

criminal behavior; (5) the defendant treated or allowed a victim to be treated with

exceptional cruelty; (10) defendant had no hesitation about committing crime when

risk to human life is high; and (16) the crime was committed under circumstances

under which potential for bodily injury to a victim was great. With respect to

mitigating circumstances, the court found application of (8) the appellant has a

history of mental illness, and (13) he is a veteran of the U.S. Army. Weighing the

four applicable aggravators against the two applicable mitigators, the trial court

sentenced the appellant to five years.




                                         Analysis



       The appellant contests the trial court’s imposition of a sentence of five years.

Specifically, he asserts that the trial court misapplied all four enhancing factors

resulting in an excessive sentence.



       Review, by this court, of the length, range, or manner of service of a sentence

is de novo with a presumption that the determination made by the trial court is

correct. Tenn. Code Ann. § 40-35-401(d) (1997). This presumption only applies if

the record demonstrates that the trial court properly considered relevant sentencing

considerations. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The

presumption applies in the present case and the appellant bears the burden of


                                          4
showing the impropriety of the sentence imposed. Sentencing Commission

Comments, Tenn. Code Ann. § 40-35-401(d).



       Again, the appellant contends that the trial court erroneously 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;

       (5) The defendant treated or allowed a victim to be treated with
       exceptional cruelty during the commission of the offense;

       (10) The defendant had no hesitation about committing a crime when
       the risk to human life was high; and

       (16) The crime was committed under circumstances under which the
       potential for bodily injury to a victim was great.

See Tenn. Code Ann. § 40-35-114 (1), (5), (10), (16) (1997).



Tenn. Code Ann. § 40-35-114(1)

       With respect to Tenn. Code Ann. § 40-35-114(1), the appellant avers that,

because no certified copy of his prior conviction was produced, there is no

competent proof of his Kansas conviction. Additionally, he argues that, regardless

of there being competent proof, “it is improper for the court to rely upon a charge of

‘unemployment compensation fraud’ to enhance his sentence given the facts of this

case.” First, there is no restriction in our sentencing provisions limiting the type of

criminal convictions or behavior which may be used to support application of

enhancement factor one. Next, evidence of the appellant’s prior conviction from

Kansas was contained in the presentence report and verified by the parole officer

who confirmed the conviction with Kansas authorities. The appellant conceded this

conviction at the guilty plea hearing. Again, the appellant does not contest the

accuracy of his previous criminal history; rather, he avers that the State failed to

introduce certified copies of the conviction. This court has previously held that a trial

court may rely on the contents of the presentence report where the report indicates

that it is based upon reliable sources or is otherwise accurate. See, e.g., State v.

                                          5
Dewayne Foster, No. 01C01-9501-CC-0008 (Tenn. Crim. App. at Nashville, Nov.

21, 1995) (citing State v. Richard J. Crossman, No. 01C01-9311-CR-00394 (Tenn.

Crim. App. at Nashville, Oct. 6, 1994), perm. to appeal denied, (Tenn. Jan. 3,

1995)); State v. Anthony D. Hines, No. 01C01-9406-CC-00189 (Tenn. Crim. App. at

Nashville, May 25, 1995), perm. to appeal denied, (Tenn. Nov. 6, 1995); see also

Tenn. Code Ann. § 40-35-209(b) (1997). Nothing in the record suggests that the

information contained in the presentence report is inaccurate. Accordingly, we

conclude that the trial court properly applied enhancement factor (1). This issue is

without merit.



Tenn. Code Ann. § 40-35-114(5)

       Next, the appellant contends that the trial court improperly applied

enhancement factor (5), finding that the victim was treated with exceptional cruelty.

See Tenn. Code Ann. § 40-35-114(5). Specifically, he argues: “The weapon in this

case was hot water. Because it was hot water, it created an injury which led to the

charge of aggravated assault.” The appellant argues that the logical extension of

the trial court’s rationale would be to require the sentencing court in an aggravated

assault to determine whether the weapon used is “exceptionally” cruel.



       Tenn. Code Ann. § 40-35-114 provides that enhancement factors must be

“appropriate for the offense” and “not themselves essential elements of the offense.”

Accordingly, enhancement factors based on facts which are used to prove the

offense or which establish the elements of the offense are excluded. State v. Poole,

945 S.W.2d 93, 98 (Tenn. 1997). Moreover, because “exceptional cruelty” is

inherent in some offenses such as aggravated assault, the facts must demonstrate

a culpability distinct from and greater than that incident to the offense. Id.

“Exceptional cruelty” when used as an enhancement factor denotes the infliction of

pain or suffering for its own sake or from the gratification derived therefrom, and not

merely pain or suffering inflicted as the means of accomplishing the crime charged.


                                          6
Thus, cruelty requires more than the physical infliction of serious bodily injury upon a

victim.



          This court has recognized that “exceptional cruelty” is a matter of degree.

State v. Moore, No. 02C01-9306-CC-00126 (Tenn. Crim. App. at Jackson, Jun. 8,

1994). The terms “serious bodily injury” and “exceptional cruelty” are not mutually

exclusive. Id. The proof in this case established that the appellant poured hot water

on his victim while she lay asleep. The intentional pouring of hot or near scalding

water on a helpless victim has foreseeable consequences. Based upon the manner

in which this crime was committed and its predictable consequences we find that the

appellant’s conduct established not only the infliction of serious bodily injury but also

a calculated indifference toward suffering. Thus, we find application of

enhancement factor (5) appropriate.



Tenn. Code Ann. § 40-35-114(10)

          With respect to Tenn. Code Ann. § 40-35-114(10), the defendant had no

hesitation about committing a crime in which the risk to human life is high, “this court

has consistently held that this factor should not be applied when the only person

subject to being injured is the victim. . . .” State v. Makoka, 885 S.W.2d 366, 373

(Tenn. Crim. App. 1994); see also State v. King, 905 S.W.2d 207, 213 (Tenn. Crim.

App. 1995). In this case, the only person subject to injury was the victim.

Accordingly, this factor is inapplicable to the appellant’s conviction.



Tenn. Code Ann. § 40-35-114(16)

          Enhancement factor (16) may not be applied where the “proof that the

potential for bodily injury was great would also prove an essential element of the

offense charged.” See State v. Jones, 883 S.W.2d 597, 603 (Tenn. 1994). Again,

the trial court relied upon the facts used to support the offense of aggravated

assault. Thus, the trial court improperly applied factor (16).


                                            7
         In summary, the record does not support the trial court’s application of

enhancement factors (10) or (16). Thus, the only remaining applicable

enhancement factors are (1), history of previous criminal conviction/behavior, and

(5), “exceptional cruelty.”1          Again, the trial court found and we agree that two

mitigating factors apply, i.e., (8) the defendant was suffering from a mental or

physical condition that significantly reduced the defendant’s culpability for the

offense and (13) the appellant served and was honorably discharged from the

military.



         In determining the appropriate sentence for a felony conviction, Tenn. Code

Ann. § 40-35-210(c) and (e) (1998 Supp.), instructs the sentencing court that “[t]he

presumptive sentence shall be the minimum sentence in the range . . . [s]hould

there be enhancement and mitigating factors, the court must start at the minimum

sentence . . ., 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.” The range I sentence for aggravated assault is three to

six years. See Tenn. Code Ann. § 40-35-112(a)(3) (1997). Upon consideration of

the facts and circumstances of the case and the applicable principles of sentencing,

a sentence of confinement for four years is found to be appropriate.



         Based upon the foregoing, the appellant's sentence is modified to reflect a

term of four years for the aggravated assault conviction. This case is remanded for

entry of a judgment of conviction consistent with this opinion.



         1
           The trial court did not apply factor (15), abuse of private trust, in its sentencing
determination. Similarly, after review, we do not find factor (15) proper. Judge Williams, howe ver,
in his d isse nt, find s us e of e nha nce me nt fac tor (1 5) ap prop riate. In light of our s upre me cour t’s
recent d ecision, State v. Gutierrez, 5 S.W .3d 641 ( Tenn . 1999), w e respe ctfully disagre e. In
Gutierrez, the court held: It follows that to use the mere sharing of a household or the existence of
a relations hip to deter mine whethe r a position o f private trus t exists be tween c omp etent adu lts
can res ult in an over ly-broad ap plication of th e enha ncem ent facto r. Id. at 645. In this regard, we
note that the sparse proof in the record suggests only a relationship between the appellant and
the victim based upon ec onom ic reaso ns, i.e., a sharing of the rent. The proof does establish that
the decision to separate was m utually reached and made w ithout “argument or anything.”
Bec aus e the degr ee an d nat ure o f the r elatio nsh ip in this cas e wa s co nsid erab ly less t han that in
Gutierrez, we find factor (15) inapplicable.

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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



_________________________________________
JOE G. RILEY, Judge



_________________________________________
JOHN EVERETT W ILLIAMS, Judge




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