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

         STATE OF TENNESSEE v. DANIEL CHRISTIAN RUSSELL

                   Direct Appeal from the Circuit Court for Wilson County
                          Nos. 98-1204, 98-2253   J. O. Bond, Judge



                     No. M1999-00202-CCA-R3-CD - Filed July 27, 2000


The appellant, Daniel Christian Russell, referred herein as “the defendant,” appeals as of right from
the judgment of the Wilson County Circuit Court imposing concurrent sentences for aggravated
assault and vandalism. The trial court imposed sentences totaling five (5) years to be served
concurrently in the Department of Correction. The defendant presents two appellate issues: 1)
whether the length of the sentences imposed by the trial court are excessive; and 2) whether the trial
court erred by denying the defendant’s request for probation. Because the defendant received illegal
concurrent sentences, we vacate the judgments of conviction and remand the case for further
proceedings.

      Tenn. R. App. P. 3; Judgments of the Circuit Court are Vacated and Remanded.

L. TERRY LAFFERTY, SR. J., delivered the opinion of the court, in which JOSEPH M. TIPTON, J., and
DAVID H. WELLES. J., joined.

Steve McEwen, Mountain City, Tennessee, Comer L. Donnell and Virginia M. Townzen, Lebanon,
Tennessee, for the appellant, Daniel Christian Russell.

Paul G. Summers, Attorney General and Reporter, and Marvin E. Clements, Jr., Assistant Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

       In indictment No. 98-1204, the Wilson County Grand Jury charged the defendant with two
counts of aggravated assault and attempted murder first degree of Brian Potts (“the victim”), on June
8, 1998. In indictment No. 98-2253, A, B, and C, the Wilson County Grand Jury accused the
defendant of aggravated burglary of the habitation of Linda Slaughter, vandalism by damaging the
contents of the habitation of Linda Slaughter, and resisting arrest on September 12, 1998. On March
31, 1999, the defendant entered open ended pleas of guilty to aggravated assault, vandalism over the
value of one thousand dollars ($1,000), and resisting arrest. As part of the plea agreement, the State
would enter a nolle prosequi to the charges of attempted murder first degree, aggravated burglary,
and possession of a Schedule I controlled substance. As to the facts surrounding the offenses, the
State advised the trial court that the defendant was in the home of the victim on June 8, 1998. The
defendant placed a pool ball in a sock and struck the victim in the head, causing him serious bodily
injuries, including a skull fracture, black eyes, a swollen cheek, scratches and cuts to his shoulder,
and a broken ring finger on the victim's left hand. As to the vandalism, the State advised the Court
that the defendant was in a highly intoxicated state from alcohol or drugs when he broke into the
home of Linda Slaughter and caused over one thousand dollars ($1,000) in damage.

                                     SENTENCING HEARING

        Ronald Joines, a probation officer, testified that he talked to the seventen-year-old victim,
whose version of the assault was consistent with that of the defendant. Joines testified that the
victim incurred over twenty thousand dollars ($20,000) in medical bills, and lost five (5) months of
employment from his injuries as a result of the attack. Joines stated that the defendant told him that
he thought the victim had stolen his wallet, but later realized that he had left his wallet at the victim's
home. Joines stated that three (3) months after the assault of Potts, the defendant burst into the home
of Linda Slaughter (“owner”), who shot the defendant when he came back and tried to break in her
front door. The owner did not know the defendant. Damage to the owner's home totaled
approximately three thousand two hundred six dollars and seven cents ($3,206.07). The defendant
told Joines that he had several drug charges and has used marijuana, LSD, Valium, Zanax, and
various pills. As to the vandalism charge, the defendant could not recall if he was on drugs at the
time. Joines stated that when the defendant was arrested for vandalism, he had LSD in his
possession.

        Joines advised the trial court that in 1998, the defendant was arrested for possession of a
weapon with intent to go armed. He received a ten-dollar ($10) fine and thirty (30) days
incarceration with fifteen (15) days suspended. As a juvenile, the defendant was charged with
possession of a weapon, but this offense was dismissed on November 21, 1995. The defendant was
instead found guilty of possession of marijuana and truancy and was transferred to the Department
of Youth Services. Joines testified that the defendant obtained a GED at Lebanon High School and
worked for Rich’s Electric Service. In cross-examination, Joines corrected his testimony about the
defendant being committed to the Department of Youth Services by stating that the defendant was
put with the Department of Human Services for psychological treatment. The defendant’s placement
with the Department of Human Services was not for criminal acts. Joines testified that the defendant
did not violate any conditions of probation as a juvenile.

        Linda Slaughter (“owner”), testified that it would cost three thousand one hundred and thirty-
one dollars ($3,131) to repair her home. She stated that she had never seen the defendant before he
forced his way into her home. The pre-sentence report established that the owner was sitting on the
couch at her home when the defendant broke through her back door and ran through her house to the
front door. The defendant then turned around and ran out the back door. He subsequently tried to
break in the front door, when Mrs. Slaughter grabbed a .25 caliber handgun and shot through the
door, striking the defendant in the left inner thigh. During the arrest, the defendant made several
attempts to flee. He became so aggressive that the deputies placed leg shackles on him. The


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defendant’s pupils were enlarged and unresponsive to light. Deputies found a folded piece of
aluminum foil with a reddish-brown substance in the defendant’s possession.

       Heather Potts, mother of victim Brian Potts, testified that their medical bills exceeded twenty
thousand dollars ($20,000). She stated that she knew nothing about the defendant’s wallet.

        Sara Russell, the defendant's grandmother, testified that her grandson has lived with her and
his grandfather off and on. She described the defendant as a kind, gentle, sweet person. She stated
her belief that his crimes were totally out of character. Although her grandson had stated in a pre-
sentence report that his childhood had been normal, this was not true. The grandmother stated that
the defendant’s father and mother were divorced, and her son’s second wife had a nervous
breakdown. She described her grandson as very remorseful for what he had done. She stated that
the defendant has worked steadily so he could go to college. Mrs. Russell testified that she did not
know her grandson had used drugs, but that he was not living with them when these offenses
occurred.

        Paul Markahn testified that he has known the defendant for about nine (9) years. The
defendant had been a friend of Mr. Markahn’s sons since the sixth (6th) grade. At the time of the
offenses, the defendant was living with Mr. Markahn off and on. He did not consider the defendant
to be a violent person and stated that the defendant could live with him if given probation. In cross-
examination, Mr. Markahn stated that, years ago, the defendant had spoken of violent feelings, but
that he had never seen the defendant take action on those feelings.

        Arlene Markahn testified that she has known the defendant since he was in the sixth (6th)
grade with her two sons. She stated that the defendant was very kind, very respectful, and like a
brother to her sons. She testified that she and her husband were separated at the time of the criminal
offenses.

         Douglas Russell, the defendant's father, testified that the defendant’s home life was not
normal. He stated that he and his wife divorced when the defendant was four and one-half (4-1/2)
years old. The mother moved away to Florida and had very little contact with the defendant. Mr.
Russell testified that he remarried when the defendant was nine (9) years old. After six months of
marriage, his second wife had a breakdown and developed severe mental problems. At age twelve
(12), the defendant’s girlfriend had taken a large amount of pills in an attempt to commit suicide.
As a result, the defendant drank some of his father’s turpentine. As for the juvenile weapon charge,
Mr. Russell testified that his son had a pocket knife in his jacket, which was found at school. The
knife had been given to the defendant as a gift by Mr. Potts.1 He stated that the defendant was in the
tenth (10th) grade at the time and was placed on probation under house arrest. Mr. Russell testified
that he worked twelve (12) hours a day, a situation which left the defendant home alone. This home
restriction began to bother the defendant. Mr. Russell stated that his son was talking to a friend on
the phone when the friend suggested to the defendant that if he said he would hurt somebody, they


       1
           It is unclear from the record whether this “Mr. Potts” was the victim of the assault, Brian Potts, or his father.

                                                            -3-
would put him in an institution where other people would be around all the time. He stated that his
son was sent to an institution for thirty (30) days and then returned home. Mr. Russell testified that
his son’s violent actions were totally out of character. As to the missing wallet, he stated that the
police would not do anything about it, so his son took matters into his own hands. Mr. Russell
testified that he did not know that his son used drugs.

        Sergeant Eddie Fitzpatrick of the Wilson County Sheriff Department, testified that the
defendant had been in custody since September 13, 1998. The defendant had no write-ups or
violations of rules or regulations and never complained.

        The defendant elected not to testify, but the pre-sentence report, marked as an exhibit to the
hearing, contains the defendant’s version of the offenses. “My version of what I have done is
unexplainable and [i]nexcusable. I gravely regret what I have done.” In imposing sentences of five
(5) years for aggravated assault, four (4) years for vandalism, and eleven (11) months and twenty-
nine (29) days for resisting arrest, to be served concurrently, the trial court found six (6)
enhancement factors and no mitigating factors. Based upon the pre-sentence report, the victim
impact statements, and the record, the trial court found the defendant to be a dangerous person for
a number of years. The trial court denied split confinement as an alternative, because the defendant
would be back out into society too soon.

                                        LEGAL ANALYSIS

        The defendant asserts that the trial court erred in finding inapplicable enhancement factors
and no mitigating factors in its imposition of sentences of five (5) years for aggravated assault and
four (4) years for vandalism. Further, the defendant contends that the sentence of eleven (11) months
and twenty-nine (29) days is invalid, in that the defendant is guilty of a Class B misdemeanor for
resisting arrest, since a deadly weapon was not used in the commission of this offense. The State
counters that there is ample evidence in the record to support the trial court’s imposition of
incarceration but concedes that the trial court erred in imposing a sentence of eleven (11) months and
twenty-nine (29) days for resisting arrest. The State agrees that the defendant did not utilize a deadly
weapon in resisting arrest, and, thus, the proper range of punishment would be that for a Class B
misdemeanor offense.

        From our review of the record, we find the sentences imposed by the trial court are illegal
and, therefore, the judgments of conviction must be vacated and this case remanded to the trial court.
The record establishes that the defendant was released on bail after the commission of the offense
for aggravated assault committed in June 1998. In September 1998, the defendant committed the
offense of felony vandalism to the home of Mrs. Linda Slaughter. Tenn. R. Crim. P. 32(c)(3)
provides:
                (3) Mandatory Consecutive Sentences. - Where a defendant is convicted of
        multiple offenses from one trial or where the defendant has additional sentences not
        yet fully served as the result of the convictions in the same or other court and the law
        requires consecutive sentences, the sentence shall be consecutive whether the
        judgment explicitly so orders or not. This rule shall apply:

                                                  -4-
        (A)     To a sentence for a felony committed while on parole for a felony;
        (B)     To a sentence for escape or for a felony committed on escape;
        (C)     To a sentence for a felony where the defendant was released on bail and the
                defendant is convicted of both offenses; and
        (D)     Any other ground provided by law.

See also Tenn. Code Ann. § 40-20-111(b).

        Therefore, these judgments must be vacated and the case remanded for a new sentencing
hearing. Since this case involves open-ended negotiations for pleas of guilty and the convictions for
these offenses require mandatory consecutive sentences, the trial court may wish to consider the
validity of the defendant's guilty pleas. In the event the defendant should enter new pleas of guilty,
we elect to address the application of enhancement factors found by the trial court.

        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is
“conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and/or sentencing hearing; (b) the pre-sentence report; (c) the principles
of sentencing; (d) the arguments of counsel as to sentencing alternatives; (e) the nature and
characteristics of the offense; (f) any statutory mitigating or enhancement factors; (g) any statements
made by the defendant in his own behalf; and (h) the defendant's potential or lack of potential for
rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103, -210; State v. Smith, 735 S.W.2d
859, 863 (Tenn. Crim. App. 1987).

         A defendant who “is an especially mitigated or standard offender convicted of a Class C, D
or E felony is presumed to be a favorable candidate for alternative sentencing options in the absence
of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6). Our sentencing law also provides
that “convicted felons committing the most severe offenses, possessing criminal histories evincing
a clear disregard for the laws and morals of society, and evincing failure of past efforts at
rehabilitation shall be given first priority regarding sentencing involving incarceration.” Tenn. Code
Ann. § 40-35-102(5). Thus, a defendant sentenced to eight (8) years or less, who is not an offender
for whom incarceration is a priority, is presumed eligible for alternative sentencing, unless sufficient
evidence rebuts the presumption. However, the act does not provide that all offenders who meet the
criteria are entitled to such relief; rather, it requires that sentencing issues be determined by the facts
and circumstances presented in each case. See State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim.
App. 1987).

        In addition, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve

                                                   -5-
the purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2) and (4). The trial
court should also consider the potential for rehabilitation of the defendant in determining the
sentence alternative. Tenn. Code Ann. § 40-35-103(5).

       We must now determine from the record the correctness of the trial court’s imposition of
sentences of five (5) years and four (4) years.

                                    LENGTH OF SENTENCE

         In this appeal, the defendant asserts that the trial court erred in finding six (6) enhancement
factors and the absence of any mitigating factors. The defendant contends that he should have
received the minimum sentences of three (3) years for aggravated assault and two (2) years for
vandalism. The State responds that the defendant has not overcome the presumption of correctness
of the trial court’s judgment, although some enhancement factors were not applicable to the sentence
for aggravated assault.

        The trial court specifically stated that it must consider the proof developed at the guilty plea
entry and the evidence adduced at the sentencing hearing. The trial court stated that it was
considering all information as well as the sentencing principles and purposes of sentencing. In
finding that sentences of five (5) years and four (4) years were appropriate for the defendant, the trial
court applied six (6) enhancement factors and no mitigating factors. Pursuant to § 40-35-114, the
trial court found that: (1) the defendant had a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range; (6) the personal injuries
inflicted upon or the amount of damage to property was particularly great; (8) the defendant has a
previous history of unwillingness to comply with the conditions of a sentence involving release in
the community; (9) the defendant possessed a deadly weapon 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 (13) the offense was committed while the defendant was released on bail from a prior felony
conviction and is ultimately convicted of such prior felony.

        The defendant asserts that his juvenile finding of delinquency for carrying a weapon is a
Class C misdemeanor and, therefore, should be given little weight for enhancement. We agree. In
1995, the legislature amended Tennessee Code Annotated § 40-35-114 by adding enhancement
factor (20), which allows for enhancement of a sentence if “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.” Tenn. Code Ann. § 40-35-114(20) (1997). This enhancement factor took effect on July 1,
1995, and applies to sentencing of any defendant committing an offense on or after that date; State
v. Brent Brown, No. 02C01-9710-CC-00419, 1998 WL 742350 (Tenn. Crim. App. Oct. 26, 1998);
See State v. Carla Marie Parrish, No. 01C01-9801-CR-00017, 1999 WL 173963 (Tenn. Crim. App.
Mar. 30, 1999). Thus, it would be an error for the trial court to consider the defendant's finding of
delinquency for carrying a weapon, a Class C misdemeanor. However, a defendant's drug use as an
adult is evidence of a history of criminal behavior, which can be properly applied as enhancement.
State v. Alexander, 957 S.W.2d 1, 7 (Tenn. Crim. App. 1997). The pre-sentence report reflects that
the defendant admitted to using drugs, such as marijuana, Valium, LSD, Zanax and other pills.

                                                  -6-
However, the record is not clear as to whether the defendant was an adult at the time of such usage.
Therefore, we cannot agree with the trial court that enhancement factor (1) applied to the defendant.

        The defendant argues that the trial court was incorrect in applying enhancement factor (6),
that the personal injuries inflicted or the amount of damages to property were particularly great, in
that this factor is inherent in both of the offenses of aggravated assault and vandalism. In support
of his position, the defendant cites State v. Jones, 883 S.W.2d 597 (Tenn. 1994) and State v.
Grissom, 956 S.W.2d 514, 518 (Tenn. Crim. App. 1997). The State argues that this factor is
applicable to these offenses.

        As to the aggravated assault offense, the indictment alleges that the defendant did
intentionally or knowingly cause bodily injury to Brian Potts by the use or display of a deadly
weapon.

       Tennessee Code Annotated § 39-13-102 defines aggravated assault as:

       (a) A person commits aggravated assault who:
              (1) intentionally or knowingly commits an assault as defined in § 39-13-101 and:
                      (A) Causes serious bodily injury to another; or
                      (B) Uses or displays a deadly weapon.

Bodily injury includes “a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary
illness or impairment of the function of a bodily member, organ, or mental faculty.” Tenn. Code
Ann. § 39-11-106(a)(2). In State v. Jones, our Supreme Court held that proof of serious bodily
injury will always constitute proof of particularly great injury. Jones, 883 S.W.2d at 602. Thus,
factor (6), causing serious bodily injury, is an element of the offense of aggravated assault and
cannot be used to enhance the defendant’s sentence. Since the State did not allege the element of
serious bodily injury but the use of a deadly weapon for the offense of aggravated assault, we find
that the facts in this case are distinguishable from State v. Jones. The victim, Brian Potts, sustained
a skull fracture, black eyes, a swollen cheek, scratches and cuts to his shoulder, and a broken ring
finger on his left hand. As a result of the fracture, the victim was hospitalized for five (5) days,
where bone fragments were removed from his brain. The victim’s medical bills exceeded twenty
thousand ($20,000) dollars. We find that enhancement factor (6) is applicable to the facts in this
case.
        As to the damages sustained by Mrs. Slaughter to her home in the amount of three thousand
one hundred and thirty one dollars ($3,131), we find that enhancement factor (6) is not applicable.
A person who knowingly causes damage to or the destruction of any real or personal property of
another, knowing that he does not have the effective consent of the owner, is guilty of vandalism.
Tenn. Code Ann. § 39-14-408. Acts of vandalism are punishable as theft under Tenn. Code Ann.
§ 39-14-105. Thus, the amount of damage sustained by Mrs. Slaughter is punishable as a Class D
felony, with a range of two (2) to four (4) years. To enhance the sentence for vandalism based upon
damages caused by the defendant would constitute double enhancement in violation of the
sentencing statutes. Grissom, 956 S.W.2d at 518.


                                                 -7-
        The defendant complains that the trial court improperly applied enhancement factor (8), that
the defendant has a previous history of unwillingness to comply with the conditions of a sentence
involving release in the community. The defendant maintains that, as a juvenile, he was placed on
probation, but the State failed to prove that any violations of probation occurred. The defendant
argues that a charge of “in-state runaway” was an informal adjustment by a Youth Service officer.
Thus, this informal adjustment was not adjudicated, nor was the defendant sentenced on the charge
of “in-state runaway.” The State disagrees.

        A defendant's juvenile record may be considered by a trial court in determining if
enhancement factor (8) may be utilized by the trial court in increasing a sentence from the minimum
range. See State v. Griffin, 914 S.W.2d 564, 568 (Tenn. Crim. App. 1995); State v. Mika, No.
02C01-9508-CR-00244, 1997 WL 76812, at *3 (Tenn. Crim. App. Feb. 25, 1997). From our review
of the record, the defendant was charged in 1993 with being an “in-state runaway” and ordered to
report to a Youth Services officer for an informal adjustment. In May 1993, the defendant missed
school and failed to report to the Youth Services officer, whereupon the charge of “in-state runaway”
was reinstated in an order to Juvenile Court for a formal hearing. In November 1995, the defendant
was placed on intensive probation with the Department of Youth Services. In December 1995, the
defendant was placed with the Department of Human Services for intensive psychological treatment,
because he made statements that he was out of control and might hurt someone. Upon the
defendant’s release from the Department of Human Services, he was placed back on intensive
juvenile probation. In the health comments of the pre-sentence report in 1997, we note that the
defendant was sent to Pine Point Treatment Center in Jackson, Tennessee, for using marijuana
during his juvenile probation. Other than this one episode, we find no violations of conditions of
release from prior sentences imposed on the defendant. We are of the opinion that a formal charge
and an informal adjustment of “in-state runaway” are not sentences within the meaning of
enhancement factor (8). Also, we believe that the removal of the defendant for psychological
treatment during intensive probation does not fall within the determination of an unwillingness to
comply with the conditions of release. We find that the trial court was in error in applying this
enhancement factor.

        The defendant asserts that the trial court erred in applying enhancement factor (9), that the
defendant possessed or employed a firearm, explosive device, or other deadly weapon during the
commission of the offense. The State concedes that the defendant did not possess a deadly weapon
at the commission of the vandalism and that the application of this enhancement factor was
improperly considered by the trial court. Also, the State contends the application of the use of a
deadly weapon, enhancement factor (9), is questionable as to the offence of aggravated assault. We
do not find this application questionable.

        The indictment charged the defendant with “bodily injury to Brian Potts by the use or display
of a deadly weapon, to wit: a pool ball in a sock.” A deadly weapon means “[a]nything that in the
manner of its use or intended use is capable of causing death or serious bodily injury.” Tenn. Code
Ann. § 39-11-106(a)(5)(B). This Court agrees that this enhancement factor (9) is not applicable,
because the use of the pool ball, used as a deadly weapon, was an element of the offense of
aggravated assault. State v. Baker, 956 S.W.2d 8, 17 (Tenn. Crim. App.), perm. app. denied, (Tenn.

                                                -8-
1997); State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App.), perm. app. denied, (Tenn. 1995). The
trial court erred in applying enhancement factor (9).

        As to enhancement factor (10), the defendant asserts that the trial court erred in applying this
factor to the offenses of aggravated assault and vandalism. The State concedes that enhancement
factor (10), that the defendant had no hesitation about committing a crime when the risk to human
life was high, is not applicable to the offense of aggravated assault but was properly applied to the
offense of vandalism.

         We agree with the State that the high risk to human life is not inherent in all vandalism
offenses. The actions of the defendant in this case certainly had the potential for a high risk of life
or serious bodily injury on the part of the victim, Mrs. Slaughter. The application of enhancement
factor (10), in this case, is a close question. However, we believe that under the proof in this record,
the trial court properly applied enhancement factor (10). The pre-sentence report sets forth the
defendant’s encounter with Mrs. Linda Slaughter. The defendant broke in the back door, ran through
the house while Mrs. Slaughter was sitting on the couch, and then ran to the front door. The
defendant turned around and ran out the back door. Mrs. Slaughter called 911, obtained a pistol,
and while the defendant was breaking in the front door, she shot the defendant in the thigh.
Notwithstanding his gunshot wound, the defendant was so out of control, that the arresting deputies
had to shackle him. Apparently, the defendant was under the influence of LSD. If Mrs. Slaughter
had not shot the defendant before he gained entrance, she would have been confronted by a drug
crazed individual who was very capable of inflicting physical harm. We find no error in the trial
court's application of enhancement factor (10) in this case of vandalism.

        As to the aggravated assault offense, we find that the trial court improperly applied
enhancement factor (10), because there was no proof of a risk to the life of a person other than to the
victim. The risk involved here was an essential element of the offense of aggravated assault. See
State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App.), perm. app. denied, (Tenn. 1996).

        The defendant asserts that the trial court improperly applied enhancement factor (13) to the
offense of aggravated assault but concedes it was properly applied to the vandalism offense. This
factor states that the felony was committed while the defendant was released on bail and was
ultimately convicted of such prior felony. The State argues that enhancement factor (13) was
properly applied to the offense of vandalism, but there is nothing in the record to show that this
factor was applied to the offense of aggravated assault.

        We agree with the State that the record is not clear as to whether the trial court applied
enhancement factor (13) to the offense of aggravated assault. However, the trial court did find that
the defendant was on bail when he committed the vandalism offense. We find that the trial court
properly assigned enhancement factor (13) to the defendant, since he was ultimately convicted of
aggravated assault for the offense of vandalism.




                                                  -9-
        The defendant contends that the trial court erred in failing to find any mitigating factors in
considering an appropriate sentence for both offenses. The State argues that the record supports the
trial court’s findings.

        The defendant would argue that because of his youth, he lacked substantial judgment in
committing these offenses. Tenn. Code Ann. § 40-35-113(6). This factor is supported by the fact
that the defendant was institutionalized for his mental behavior, and he was only 18 years old at the
time of the commission of these offenses.

        In determining the applicability of this mitigating factor (6), trial courts should consider the
defendant’s age, education, maturity, experience, mental capacity or development, and any other
pertinent circumstance tending to demonstrate the defendant’s ability or inability to appreciate the
nature of his conduct. State v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App.), perm. app. denied,
(Tenn. 1995)(citing State v. Adams, 864 S.W.2d 31, 33 (Tenn. Crim. App. 1993)). At the time of
the offenses, the defendant was 18 years old, had obtained a GED, and had an excellent work record.
However, the defendant used drugs and was obviously on drugs at the time of the commission of the
vandalism offense. As a juvenile, the defendant was treated for psychological problems dealing with
violent tendencies. We believe that mitigating factor (6) was applicable to the offense of vandalism
and that the trial court was in error for failure to apply this factor to the offense of vandalism.
However, we do not find that the trial court erred in failing to apply factor (6) to the aggravated
assault offense. Based upon the facts of the aggravated assault, there is nothing to indicate that the
defendant’s age, maturity, experience, mental capacity or development caused an inability to
appreciate the nature of his assault on Brian Potts.

         The defendant contends that the trial court failed to consider other mitigating factors, such
as his remorse, outstanding employment record, and exemplary behavior while in custody for eight
(8) months, pursuant to § 40-35-113(13). The State points out that the trial court did not have the
opportunity to evaluate the defendant’s sincerity as to remorse, since the defendant did not testify.
We agree. The only evidence of remorsefulness in this record is the defendant’s pre-sentence report
statement and his grandmother’s testimony. We cannot find that the trial court was in error for
failing to apply any remorse as a mitigating factor. However, we believe that the defendant has
established that he has a good work record, as reflected in the pre-sentence report by a letter from
a Nissan dealer who is willing to re-hire the defendant. Also, we believe that the defendant’s period
of incarceration should be considered in assessing an appropriate sentence. Here, the record reflects
that during his eight (8) month confinement, the defendant has been a model inmate. We find this
to be a mitigating factor pursuant to § 40-35-113(13).

         Since we have determined that the trial court misapplied certain enhancement factors, we
conduct our review without a presumption of correctness pursuant to § 40-35-401(d). In determining
an appropriate sentence, the trial court must start at the minimum sentence in 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. Tenn. Code Ann. § 40-35-210(e). In our
de novo review of the record, we find that the record supports the application of enhancement factors
(6) for the offense of aggravated assault, (10) for the offense of vandalism, and (13) for the offense

                                                 -10-
of vandalism. We find that the record does not support the applications of enhancement factor (1)
for the offenses of aggravated assault and vandalism, (6) for the offense of vandalism, (8) for the
offenses of aggravated assault and vandalism, (9) for the offenses of aggravated assault and
vandalism, and (10) for the offense of aggravated assault. We hold that the record supports the
application of two mitigating factors, the defendant’s work record and his model period of
incarceration. In conclusion, we find enhancement factor (6) for the offense of aggravated assault
and two enhancement factors (10) and (13) for the offense of vandalism, and two mitigating factors.
Moreover, we cannot say that the trial court erred in denying probation for a five-year sentence.

       The trial court’s judgments are vacated and the case is remanded for a new sentencing
hearing.




                                                      ___________________________________
                                                      L. TERRY LAFFERTY, SENIOR JUDGE




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