          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                         OCTOBER 1998 SESSION
                                                    December 11, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk

STATE OF TENNESSEE,           )
                              ) C.C.A. No. 01C01-9709-CC-00404
      Appellee,               )
                              ) Giles County
V.                            )
                              ) Honorable Jim T. Hamilton, Judge
                              )
KEITH LAMONT SMITH,           ) (Burglary)
                              )
      Appellant.              )




FOR THE APPELLANT:               FOR THE APPELLEE:

Hershell D. Koger                John Knox Walkup
Attorney at Law                  Attorney General & Reporter
131 North First Street
P.O. Box 1148                    Elizabeth B. Marney
Pulaski, TN 38478                Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                 Mike Bottoms
                                 District Attorney General

                                 Stella Hargrove
                                 Richard Dunavant
                                 Assistant District Attorneys General
                                 P.O. Box 304
                                 Pulaski, TN 38478




OPINION FILED: ___________________


AFFIRMED

PAUL G. SUMMERS,
Judge
                                   OPINION


       While serving probation for an unrelated prior offense, the appellant, Keith

Lamont Smith, was convicted of burglary by a jury of the Giles County Circuit

Court. He was sentenced as a persistent offender to the Range III maximum of

twelve years’ confinement, with his sentence to run consecutively to any

revocation of his probation. On this appeal as of right, the appellant argues that

his sentence is excessive and that the trial court erred in ordering consecutive

sentencing. Finding no reversible error, we affirm the judgment of the trial court.



       Following a series of break-ins at the Coca-Cola bottling plant in Pulaski,

Tennessee, the local police installed motion detectors and remote alarms

throughout the plant. In the course of burglarizing the plant, the appellant tripped

one of these alarms. Three Pulaski police officers responded to the alarm and

observed the appellant fleeing from the plant. The officers pursued the appellant

and ultimately apprehended him from a trash dumpster where he was attempting

to hide.



       The appellant was indicted for the burglary in which he was apprehended,

two prior burglaries of the bottling plant, and three corresponding counts of theft.

The state subsequently entered a nolle prosequi to the final charge of theft. The

appellant was tried, and the jury returned verdicts of guilty on the burglary in

which he was apprehended and not guilty on all remaining charges.



       At the sentencing hearing, the state submitted proof of at least six prior

felony convictions of the appellant. Based on these convictions, the trial court

found the appellant to be a persistent offender. See T.C.A. 40-35-107. The trial

court also found applicable the following five statutory sentencing enhancement

factors:




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               (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;
               (10) The defendant had no hesitation about
       committing a crime when the risk to human like was high;
               (13) The felony was committed while on any of the
       following forms of release status if such release is from a
       prior felony conviction: . . . Probation . . . .


T.C.A. § 40-35-114(1), (2), (8), (10), (13). The appellant proffered two mitigating

factors, both of which the trial court rejected:

                (1) The defendant’s criminal conduct neither caused
       nor threatened serious bodily injury;
                (11) The defendant, although guilty of the crime,
       committed the offense under such unusual circumstances
       that it is unlikely that a sustained intent to violate the law
       motivated the criminal conduct.


T.C.A. § 40-35-113(1), (11). Pursuant to these findings, the trial court sentenced

the appellant to the maximum Range III sentence of twelve years.



       The appellant argues that this sentence is excessive. He does not

challenge the applicability of enhancement factors (1), (8), or (13) or the court’s

rejection of mitigating factor (11). He does, however, argue that the trial court

erred in applying enhancement factors (2) and (10) and in declining to apply

mitigation factor (1).



       When an accused challenges the length or 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.” T.C.A. § 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 appellant carries the




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burden of showing that his sentence is improper. See State v. Jernigan, 929

S.W.2d 391, 395 (Tenn. Crim. App. 1996).



      The appellant first challenges the trial court’s finding that the appellant

had no hesitation about committing a crime when the risk to human life was high.

See T.C.A. § 40-35-114(10). The trial court stated its basis for applying this

enhancement as follows:

      Although this conviction did not involve a weapon or any
      fight or any bodily injury, anytime that the police have to
      answer to a call such as that [i.e., a building alarm at night
      and the apprehension of a fleeing felon] there is a risk of
      some bodily injury although I’ll have to agree with counsel
      that there was no proof in this case that there was a weapon
      involved.

      To uphold this enhancement on such reasoning would implicate sentence

enhancement in virtually every instance that police are called upon to respond to

a crime or apprehend a defendant, with no regard for the character of the crime

or circumstances. We do not believe that the legislature intended such a result.

Thus, we find this basis for imposing the enhancement to be overly broad.

Moreover, the enhancement is unsupported by the evidence. The trial court’s

findings simply do not amount to a high risk to human life absent proof of some

additional circumstance. We, therefore, find this issue in favor of the appellant.



       The appellant next argues that the trial court erred in finding him to be the

leader of an offense involving two of more actors. The appellant argues that “no

evidence was presented at trial or sentencing indicating that anyone else was

charged in connection with this crime.” (emphasis added). While this appears to

be accurate, the enhancement statute does not require that multiple offenders

be charged--only that there be multiple offenders and that the defendant be a

leader. The state introduced such evidence. For example, in his original

statement to the police, the appellant implicated two additional persons in the

series of burglaries and, more importantly, named one other who was involved in

the burglary for which he was convicted. He testified at trial that another person



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provided information on how to gain entrance to the bottling plant, thereby further

indicating that additional criminal actors were involved. The appellant candidly

admitted that the idea for the burglary was his. And, his admission that he

arranged sales and took advance orders for the drinks that he intended to steal

supports the conclusion that he orchestrated the crime. The trial judge,

therefore, had ample evidence upon which to base this enhancement; and we

find no abuse of discretion in his decision.



       Nevertheless, the appellant further argues that because the trial court did

not record findings to support this enhancement during the sentencing phase,

the enhancement should not be applied. While the failure to enter findings on

the record negates the presumption of correctness otherwise accorded to the

trial court, it does not, as the appellant seems to argue, preclude application of

the enhancement. Pursuant to our de novo review, we find the above noted

evidence sufficient to conclude that the offense involved multiple criminal actors

and that the appellant was a leader.



       As to mitigating factors, the trial court rejected the appellant’s argument

that his criminal conduct neither caused nor threatened serious bodily injury.

See T.C.A. § 40-35-113(1). As basis for this denial, the trial court reiterated its

prior reasoning that anytime the police are called upon to answer an alarm and

apprehend a fleeing felon there is “always the possibility of somebody getting

hurt.” Again, we do not think the evidence supports the sentencing court’s

finding. “Serious bodily injury” is defined as “bodily injury which involves . . . [a]

substantial risk or death; . . . [p]rotracted unconsciousness; . . . [e]xtreme

physical pain; . . . [p]rotracted or obvious disfigurement; or . . . [p]rotracted loss

or substantial impairment of a function of a bodily member, organ or mental

faculty.” T.C.A. § 39-11-106(34). The appellant’s crime was neither violent nor

intrinsically hazardous. In such a case, and absent evidence of some specific

hazardous circumstance, we cannot conclude that the appellant’s criminal



                                           -5-
activity threatened serious bodily injury. Although we do not think this factor is

entitled to great weight, we conclude that the trial court erred in not allowing this

factor in mitigation.



        Finally, the appellant argues that the court erred in imposing consecutive

sentencing. Essentially, the appellant argues that the trial judge failed to make

proper findings relative to consecutive sentencing and that the court’s order for

consecutive sentencing was predicated upon an improper statute.1 The

appellant concedes that the conditions of his offense include factors that would

warrant consecutive sentencing. He further concedes that the trial court

specifically found such factors during the sentencing hearing. He argues,

however, that the trial court’s recitation of these factors occurred during

consideration of enhancement factors rather than relative to the court’s order for

consecutive sentencing.



        The appellant correctly notes that the presumption of correctness

accorded to the sentencing court is dependant on proper application of T.C.A

§ 40-35-115. But it is a great leap to the appellant’s conclusion that the negation

of this presumption requires reversal of the trial court’s otherwise admittedly

correct decision. The trial judge clearly made findings during the sentencing

hearing that warrant consecutive sentencing, and we will not find the court’s

order defective simply because he did not restate those findings at each stage of

the sentencing hearing. Moreover, even if the appellant’s argument were

correct, the trial court’s failure to state its findings would only remove the

presumption of correctness otherwise accorded to the sentencing court. The

absence of this presumption would not alter our decision. The appellant is a


         1
           In ordering conse cutive sentenc ing, the trial judge stated: “I’m going to order that this
sentence be served consecutive to the twelve year sentence [for the appellant’s prior offense] in the
event the probation is revoked . . . . The court is making that ruling under the T.C.A. § 40-35-103
sentencing con siderations.” Th at statute states the gene ral sentencing co nsiderations, as op posed to
§ 40-35-115 which directly authorizes consecutive sentencing upon certain findings. We note,
however, that at lea st one of the trial court’s f indings under § 40 -35-103 would a lso authorize
consecutive sentencing unde r § 40-35-115(2 ): “One, the court fee ls that confinem ent is necessary to
protect society by restraining this defendant who has a long history of criminal conduct.” (emphasis
added).

                                                   -6-
career criminal, he has an extensive criminal record, and he was on probation at

the time of his offense. See T.C.A. § 40-35-115(b)(1), (2), (6). Thus, he meets

at least three of the alternative statutory requirements for consecutive

sentencing; and we believe it is appropriate here.



       For the reasons stated above, we hold that the trial court erred in its

finding that the appellant’s crime involved a high risk to human life. W e also

agree with the appellant that his criminal conduct did not cause or threaten

serious bodily injury. Nevertheless, four enhancement factors remain. These

four enhancements are clearly and abundantly established and are entitled to

significant weight. When balanced against the single mitigating factor, these

factors warrant enhancement of the appellant’s sentence to the twelve-year

statutory maximum.



       The judgment of the trial court is affirmed.




                                               __________________________
                                               PAUL G. SUMMERS, Judge


CONCUR:




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_____________________________
JOSEPH M. TIPTON, Judge




_____________________________
JOE G. RILEY, Judge




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