             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                           SEPTEMBER 1997 SESSION
                                                             FILED
                                                            September 19, 1997

                                                            Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )     No. 02-C-01-9610-CR-00368
            APPELLEE,           )
                                )     Shelby County
v.                              )
                                )     Leonard T. Lafferty, Judge
JAMES DUMAS,                    )
                                )     (Sentencing)
            APPELLANT.          )




FOR THE APPELLANT:                    FOR THE APPELLEE:

Edwin C. Lenow                        John Knox Walkup
Attorney at Law                       Attorney General & Reporter
100 North Main Building               500 Charlotte Avenue
Suite 2325                            Nashville, TN 37243-0497
Memphis, TN 38103
                                      Deborah A. Tullis
                                      Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      William L. Gibbons
                                      District Attorney General
                                      201 Poplar Avenue, Suite 3-01
                                      Memphis, TN 38103

                                      Kenneth R. Roach
                                      Assistant District Attorney General
                                      201 Poplar Avenue, Suite 3-01
                                      Memphis, TN 38103




OPINION FILED: ________________________________


AFFIRMED


Joe B. Jones, Presiding Judge




                                    OPINION
       The appellant, James Dumas (defendant), was convicted of first degree murder by

a jury of his peers. This Court was of the opinion the conviction for first degree murder

should be reduced to second degree murder, a Class A felony, and this case was

remanded to the trial court for a sentencing hearing. State v. James Dumas, Shelby

County No. 02-C-01-9502-CR-00031 (Tenn. Crim. App., Jackson, October 4, 1995). On

remand the trial court found that the defendant was a standard offender and imposed a

Range I sentencing consisting of confinement for twenty-five (25) years in the Department

of Correction. In this Court, the defendant contends the sentence imposed by the trial

court is excessive because the trial court erroneously applied certain enhancement factors

to increase the length of the sentence within the appropriate range. After a thorough

review of the record, the briefs submitted by the parties, and the law governing the issue

presented for review, it is the opinion of this Court that the judgment of the trial court

should be affirmed.

       The defendant was described as a trafficker in illicit narcotics. In this Court’s initial

opinion, a panel of this Court stated the victim “was shot and killed by the [defendant] in

what may be called ‘a drug deal gone bad.’” The defendant shot the victim while the victim

sat in his motor vehicle.

       The trial court found three enhancement factors. The factors included (a) the

defendant had a history of criminal behavior, Tenn. Code Ann. § 40-35-114(1), (b) he

employed a firearm during the commission of the murder, Tenn. Code Ann. § 40-35-

114(9), and (c) the defendant had no hesitation about committing a crime when the risk to

human life was high. Tenn. Code Ann. § 40-35-114(10). The court found the record did

not support any mitigating factors.

       The defendant argues the trial court erred in finding that he had engaged in criminal

behavior based upon the presentence report. He asserts the presentence report reflects

he was arrested on several occasions, but the report does not establish the disposition of

any of the arrests. The record reflects the juvenile court records pertaining to the

defendant’s criminal conduct were marked as an exhibit during the sentencing hearing.

These records reveal the defendant was convicted of shoplifting, theft under $500, and



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assaulting a police officer.

       The juvenile record of an accused can be considered by a trial court when

determining whether the state has established Tenn. Code Ann. § 40-35-114(1). See

State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993); State v. Crowe, 914 S.W.2d 933, 939

(Tenn. Crim. App. 1995), per. app. denied (Tenn. 1996); State v. Stockton, 733 S.W.2d

111, 112-13 (Tenn. Crim. App. 1986), per. app. denied (Tenn. 1987). Thus, the trial court

properly considered the juvenile record of the defendant when finding the defendant had

a history of criminal behavior.

       The evidence introduced during the trial established that the defendant engaged in

the sale of illicit narcotics in the neighborhood where the murder occurred. While the

defendant has not been convicted of a drug offense, this evidence constituted criminal

behavior within the meaning of Tenn. Code Ann. § 40-35-114(1). See State v. Keel, 882

S.W.2d 410, 419 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). Although the trial

court did not consider this evidence to support its finding of criminal behavior, this Court

may consider it in determining whether the trial court properly concluded enhancement

factor one had been established. Adams, 864 S.W.2d at 34; State v. Pearson, 858 S.W.2d

879, 885 (Tenn. 1993).         This Court concludes the trial court properly applied this

enhancement factor to enhance the defendant’s sentence within the proper range.

       It has long been established that the employment of a firearm to commit the offense

of murder in the second degree may be used to enhance a defendant’s sentence within

the appropriate range. Tenn. Code Ann. § 40-35-114(9). See State v. Butler, 900 S.W.2d

305, 312-13 (Tenn. Crim. App. 1994); State v. Raines, 882 S.W.2d 376, 385 (Tenn. Crim.

App.), per. app. denied (Tenn. 1994); State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim.

App. 1992), per. app. denied (Tenn. 1993). The use of a firearm does not constitute an

element of the offense of second degree murder. Thus, the trial court properly considered

this enhancement factor to enhance the defendant’s sentence within the appropriate range.

       The trial court properly used Tenn. Code Ann. § 40-35-114(10) to enhance the

defendant’s sentence within the appropriate range. This crime occurred in a residential

neighborhood. The trial evidence established there were at least two people who were

outside when the shooting occurred. This evidence established this factor. See State v.



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Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995); State v. Sims, 909 S.W.2d 46, 50

(Tenn. Crim. App.), per. app. denied (Tenn. 1995); State v. Makoka, 885 S.W.2d 366, 373

(Tenn. Crim. App.), per. app. denied (Tenn. 1994).

       The weight to be given enhancement factors rests within the sound discretion of the

trial court. Shelton, 854 S.W.2d at 123. This Court is of the opinion the trial court did not

abuse its discretion when determining the length of the sentence in this case.

       In conclusion, the defendant failed to overcome the presumption of correctness

afforded the trial court’s findings of fact regarding sentencing issues. Tenn. Code Ann. §

40-35-401(d). There are no errors of law contained in the record.




                                          ________________________________________
                                              JOE B. JONES, PRESIDING JUDGE


CONCUR:



___________________________________
     DAVID H. WELLES, JUDGE



___________________________________
        JOE G. RILEY, JUDGE




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