        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE           FILED
                         MARCH SESSION , 1999         April 22, 1999

                                                  Cecil W. Crowson
STATE OF TENNESSEE,         )                   Appellate Court Clerk
                                 C.C.A. NO. 01C01-9808-CC-00329
                            )
      Appellee,             )
                            )
                            )    MAURY COUNTY
VS.                         )
                            )    HON. JIM T. HAMILTON,
KING DAVID JOHNSON,         )    JUDGE
                            )
      Appe llant.           )    (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF MAURY COUNTY


FOR THE APPELLANT:               FOR THE APPELLEE:

HERSHELL D. KOGER                JOHN KNOX WALKUP
131 North First Street           Attorney General and Reporter
P.O. Box 1148
Pulaski, TN 38478                MARVIN E. CLEMENTS, JR.
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 MIKE BOTTOMS
                                 District Attorney General
                                 P.O. Box 459
                                 Lawrenceburg, TN 38464



OPINION FILED ________________________

SENTENCE MODIFIED; REMANDED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, King David Johnson, appeals as of right his sentence of

twenty years in the D epartm ent of C orrect ion for th e sec ond d egree murd er of his

girlfriend. Defenda nt was indicted in 1 993 for first degree m urder, and a jury

convicted him of second degree murder in February 1996.                     Following a

sentencing hearing, the trial court sentenced him to twenty years as a Range I

offender. In his first appeal to this Court, Defendant challenged the sufficiency

of the evide nce an d the leng th of his se ntence . This Court affirmed his conviction

for second degree murder, but remanded his case for resentencing because the

trial judge failed to place on the record what enhancement or mitigating factors

he found, as well as findings of fact, in accordance with the mandate of

Tennessee Code A nnotated § 4 0-30-210(f). State v. King David Johnson, No.

01C01-9610-CC-00430, 1997 WL 661501, at *4 (Tenn. Crim. App., Nashville,

Oct. 24, 1 997).



       The trial judge held a second sentencing hearing on March 13, 1998, and

he again sen tenced Defen dant to tw enty years as a Ra nge I offen der. In this

appeal of his resentencing, Defendant argues the sa me s ubsta ntive iss ues a s in

his first app eal: (1) the trial court erred by relying upon inapplicable enhancement

factors, (2) the trial court erred by failing to apply applicable mitigating factors,

and (3) the trial court erred by placing excessive weight on the enhancement

factors.1



       1
         Defendant presented no argument on his second and third assignments of error. We
note that the trial court clearly accepted and applied the mitigating factors proffered by
Defendant, as acknowledged infra in the discussion of the trial court’s findings.

                                           -2-
      When an accused challenges the length, range, o r mann er of service of a

sentence, this Court has a duty to conduct a de novo review of the sen tence w ith

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 affirm ative

showing in the record that the trial court considered the sentencing principles and

all relevant facts and circumstanc es.” State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 19 91).



      When conducting a de novo review of a sentence, this Court must

consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b)

the presentence report; (c) the principles of sentencing and arg umen ts as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. State v. S mith, 735 S.W.2d 859, 863

(Tenn . Crim. A pp. 198 7); Ten n. Cod e Ann. §§ 40-35-102, -103, -210.



      If our review reflects that the trial court followed the statutory sentencing

procedure, that the court imposed a lawful sentence after having given due

consideration and proper weight to the factors and principles set out under the

sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sentence even if we would have

preferred a different re sult. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).




                                        -3-
       Upon resentencing, the trial ju dge p laced on the record his consideration

of the specific enhancement and mitigating factors, as well as his consideration

of the sentencing principles and applicable facts and circumstances. Therefore,

we conduct ou r de novo review with a presum ption that th e sente nce is co rrect.

Howeve r, because we find that the trial court erred by relying upon enhancement

factors which are inapplicable to this case, we conclude that the sentence must

be reduced. We therefore modify Defendant’s sentence from twenty years to

sevente en years .



                I. ENHA NCE MEN T FAC TOR S TH REE AND SIX

       Defendant argues that the trial court improperly applied enhancement

factors three an d six. See Tenn. Code Ann. § 40-35-114(3), (6). Th e State

concedes that the trial court erred by a pplying the se factors in the cas e at bar.



       First, § 40-35-114(3) states that a sentence may be enhanced if the

“offense involved more than one (1) victim .” The trial cou rt relied u pon th is factor

because the killing caused the victim’s two young c hildren to become motherless.

This Court previously held that the term “victim,” as used in § 40-35-114(3), “does

not include a person who has lost a loved one or a means of support because the

perpetrator of the crime killed a relative.” State v. Raines, 882 S.W.2d 376, 384

(Tenn. Crim. A pp. 199 4); see also State v. Alexander, 957 S.W.2d 1, 6 (Tenn.

Crim. App . 1997).



       Second, § 40-35-114(6) states that the “personal injuries inflicted upon or

the amount of damage to property sustained by or taken from the victim was

particu larly great.” Beca use “p articula rly grea t” perso nal inju ry is an element of

                                          -4-
the offense of second degree murder, application of this enhancement factor was

error. Tenn. Code Ann. § 40-35-114 (stating that enhancement factors may be

applied if “appropriate for th e offense ” and “no t thems elves ess ential elem ents

of the offens e”); State v. Nix, 922 S.W.2d 894, 903 (Tenn. Crim. App. 1995)

(factors which constitute essential elements of the underlying offense may not

enhan ce a sen tence).



                        II. ENHANCEMENT FACTOR TEN

       The State disputes Defenda nt’s contention tha t the trial court erred by

applying § 40-35-114(10): that Defendant “had no hesitation about committing a

crime when the risk to human life was high.” Although application of this factor

is improper in a homicide case when the “human life” considered is the victim,

see State v. Butler, 900 S.W .2d 305, 313 (Tenn. Crim . App. 1994 ); it may

prope rly be con sidered for “risk to hu man life” o ther than the victim. See State

v. Johnson, 909 S.W .2d 461 , 464 n.1 (T enn. C rim. App. 1995). However, the

victim or victims must be “subject to injury” for this factor to be app licable. State

v. Sims, 909 S.W .2d 46, 50 (T enn. Crim. A pp. 1995).



       The opinion of this Court upon appeal from the original conviction reflects

that the victim’s two small children were sleeping in the living room and that the

murder of the victim occurred in a “back bedroom.” We find that the children

were not subje ct to injury su ch tha t Defe ndan t create d a risk to their lives during

commission of the offense against the victim. The facts of this case are most

similar to the cas es of State v. Samuel D. Braden, No. 01C01-9610-CC-00457,

1998 WL 85285 (Tenn . Crim. A pp., Nashville, Feb. 18, 1998), and State v. Robe rt




                                          -5-
Kevin Moore, No. 01C01-9606-CC-00255, 1997 WL 40948 1 (Ten n. Crim. A pp.,

Nashville, July 23, 19 97).



       In Braden, the defendant and the victim engaged in the fatal confrontation

outside of their home, while the defendant’s daughters were inside the house.

Braden, 1998 WL 85285, at *5. We stated, “Though the defendan t’s daughters

were inside the house , there is no evidence of record that they w ere likely to

come outsid e durin g the c rimina l episo de wh ich res ulted in the victim’s death .”

Id.   Likewise, in Moore, we rejected application of enhancement factor ten

because , “[w]hile the victim’s children we re present in the house, they were not

in the room w here the inciden t occurred.” Moore, 1997 WL 409481, at *5.



       The State argues that the facts at hand are most similar to State v. Ray

Armstrong, No. 01C01-9407-CC-00260, 1995 WL 316288 (Tenn . Crim. A pp.,

Nashville, May 25, 1995), in which this Court approved the trial court’s application

of enhancement factor ten. That case appears to be distinguishable because the

record reflected testimon y that three guns hots were fired “from somew here in the

vicinity of where [the victim’s yo ung children] w ere sleeping.”           Id. at *1.

Therefore, in the case at bar we must conclude that the trial court erred by relying

on enhancement factor ten.



                      III. ENHANCEMENT FACTOR NINE

       Defendant does not challenge the applicability of enhancement factor nine:

that he “possessed or employed a firearm” during commission of the offense.

Because use of a deadly weapon is not an element of second degree murder, the

trial cou rt’s reliance on this factor was pro per. See Raines, 882 S.W.2d at 385

                                         -6-
(“[T]he use o f a firearm is not an elem ent of m urder in the second degree, and,

if the ac cuse d com mits m urder in the second degree by shooting the victim with

a firearm, this sentencing factor can be used to enh ance the ac cuse d’s

sentence.”); see also State v. Butler, 900 S.W.2d 305, 312-13 (Tenn. Crim. App.

1994).



                                  IV. CONCLUSION

         Seco nd de gree m urder is a class A felon y. At the time o f this conviction,

the senten cing st atutes dem ande d the c ourts to presu me th at the m inimum

sentence was appropriate for class A felonies. Thus, the trial court in this case

shou ld have presumed a fifteen-year sentence, prior to applying any

enhancement or mitigating factors. Because the trial court minimized the weight

of Defendant’s mitigating factors—that Defendant committed the crime under

such unus ual circ ums tance s that it is unlikely tha t a sustain ed intent to violate the

law motivated his conduct, and that he had a positive work and education

history—we remain satisfied that the one applic able enhancement factor

outweighs the mitigating factor s prese nt in this cas e. W e therefo re elevate

Defenda nt’s sentence from the presum ptive minimum of fifteen years to a term

of seventeen years.



         The State co ncede s that the trial judge erred by applying two sentence

enhancement factors. We conclude that the trial judge also erred by applying a

third factor. Because the trial court considered three enhancement factors which

are inapplicable to this case, we modify the Defendant’s sente nce from twenty

years to seventeen years in the Department of Correction as a Range I offender.




                                           -7-
This case is rem anded to the trial court for entry of an order in ac cordan ce with

this opinion.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
JOHN EVERETT WILLIAMS, JUDGE




                                        -8-
