                                                                  FILED
                                                 November 16, 1998
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                 Cecil W. Crowson
                            AT NASHVILLE        Appellate Court Clerk

                              JANUARY SESSION, 1998




STATE OF TENNESSEE,                       )      C.C.A. NO. 01C01-9701-CC-00035
                                          )
              Appe llant,                 )
                                          )      MAURY COUNTY
V.                                        )
                                          )
                                          )      HON . JAME S L. W EATH ERF ORD ,
PHILLIP DREW CANTWELL,                    )      JUDGE
                                          )
              Appellee.                   )      (ENVIRONMENTAL VANDALISM)




         OPINION CONCURRING IN PART AND DISSENTING IN PART


      W hile I concur in most of the opinion of the Court, I must dissent from those

portions of the principal opinion which indicate that an acquittal of previous criminal

charges preclu des the Sta te from u sing the a ctivity alleged in the char ges to

enhance a senten ce. I can find no con stitutional or statutory prohibition on the

State ’s relitigation of activity alleged in criminal indictments resulting in acquittal

when the relitigation occurs at a subsequent proceeding where the standard of proof

is lower tha n a crim inal trial. Indee d, I find am ple case law to the effect that such a

relitigation is quite perm issible. See, United S tates v. W atts, 519 U.S. 148, 117 S.Ct.

633, 136 L.E d.2d 55 4 (1997 ); Dowling v. United States, 493 U.S. 342, 349, 11 0 S.Ct.

668, 672, 10 7 L.Ed.2d 7 08 (1990).



      In the case sub judice the majority holds that the following enhancement

factors at Tennessee Code Annotated Section 40-35-114 do not apply because of

acquittal in other charges arising out of this case of environmental vandalism:
              (1) the defendant has a p revious h istory of crim inal . . .
              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.

       With respect to enhancement factor (1) the m ajority fin ds tha t the ap pellan t’s

acquittal of additional counts charged in the indictme nt preclud es relitigation at a

sentencing hearing of those alleged criminal acts. Regarding enhancement factor

(2) the majo rity conc ludes that the acqu ittal of the appe llant’s emp loyees mak es this

a crime involving only one actor and that therefore application of this factor is

improper. However, the United States Supreme Court has held:



              “‘[A]n acquittal is n ot a finding of any fact. An acquittal can
              only be an ackno wledgm ent that the governm ent failed to
              prove an essential element of the offense beyond a
              reaso nable doub t. W ithout s pecific jury findin gs, no one
              can logically or realistically draw any factual finding
              inferences. . .’” (citation omitted)

Wa tts, 117 S.C t. at 637. Thus, at a sentencing hearing, criminal behavior which has

nevertheless resulted in an acquittal may be submitted on the issue of sentencing

since the sta ndard of proo f is lower, i.e., a preponderance of the evidence standard.

Id.; See, State v. Carter, 908 S.W.2d 410 (Tenn . Crim. A pp. 199 5); State v. Richard

J. Crossman, Wilson Co. No. 01C01-9311-CR-00394 (opinion filed Oct. 6, 1994 at

Nashville) app. denied (Tenn. January 3,1995) (holding that preponderance of

evidenc e stand ard app lies at sente ncing he arings.)



       Although the cases cited he reinabove largely deal with federal constitutional

and statutory law regarding the use at sentencing of charges which have resulted

in an acquittal, I find nothing in the Tennessee Constitution or our statutes which

would w arrant a d ifferent resu lt.



       Finally, although the trial court d id apply enhancement factor (3), i.e., that the

offense involved more than one victim, the majority finds it inappropriate to count as
“victims” those individu als named as victims in the counts of the indictment for which

the defendant was acquitted. Based on the reasoning outlined above, I would affirm

the use of this enhancement factor, however because the trial court never

considered enhance ment factors (1 ) and (2), I would reverse and remand this case

for a new sentencing hearing wherein these factors and facto r (3) are cons idered in

conjunction w ith one anothe r.



      For thes e reaso ns I conc ur in part an d dissen t in part.



                                         __________________________
                                         JERRY L. SMITH, JUDGE
