        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE            FILED
                      OCTOBER SESSION, 1997       December 16, 1997

                                               Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
STATE OF TENNESSEE,        )   C.C.A. NO. 03C01-9611-CC-00427
                           )
      Appellee,            )
                           )
                           )   COCKE COUNTY
VS.                        )
                           )   HON. REX HENRY OGLE
TREVA STRICKLAND,          )   JUDGE
                           )
      Appe llant.          )   (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CIRCUIT COURT OF COCKE COUN TY


FOR THE APPELLANT:             FOR THE APPELLEE:

DAVID B. HILL                  JOHN KNOX WALKUP
301 E. Broadway                Attorney General and Reporter
Newport, TN 37821
                               TIMOTHY F. BEHAN
                               Assistant Attorney General
                               425 5th Avenu e North
                               Nashville, TN 37243

                               AL SCHMUTZER, JR.
                               District Attorney General

                               JAMES B. DUNN
                               Assistant District Attorney General
                               339A East Main Street
                               Newport, TN 37821



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                       OPINION

      The Defendant, Treva Strickland, appeals as of right pursuant to Rule 3 of

the Tennessee Rules of Appellate Procedure. She was convicted by a Cocke

Coun ty jury of one c ount of ag gravated arson a nd one count of a ttempte d first

degree murder. 1 The trial court sentenced her as a Range I standard offender

to twenty-five ye ars imp risonm ent with the Depa rtment of Correction on each

count, with the se ntence s to run co ncurren tly. In this appeal, the Defendant

argues that the trial court erred in sentencing her to twenty-five years

incarceration. After reviewing the record, we conclude that the Defendant’s issue

lacks m erit. Accord ingly, we affirm the judgm ent of the tria l court.



      Although the Defendant does not challenge the sufficiency of the evidence,

we begin with a summary of the pertinent facts. In September of 1994, the

Defendant was ma rried to the victim, Avery S trickland. At that time, how ever,

they were having marital difficulties and the Defen dant wa s actually living with

Robert Jenkins in a home behind Brock’s Marke t. On the night of September 25,

1994, the Defendant called Avery Strickland three times. She told him that she

had made a mistake in leaving him, that she wished to reconcile, and that she

was afraid of Robert Jenkin s. She asked Strickland to meet her at a location

near her home. Avery Strickland declined on the first two occasions when the

Defenda nt called. On the third o ccasion, how ever, he agree d to meet he r.




      1
          Tenn. Code A nn. §§ 39-14-302(a)(1), 39-12-101 , 39-13-202(a)(1).

                                                 -2-
      Avery Strickland picked up the Defendant at a gas station near her home.

By this time, it was approaching the early morning hours of September 26, 1994.

Strickland stated that he wanted to get some coffee at Brock’s Market, but the

Defendant told him that she already had some for him and handed him a cup of

coffee. She the n directed him to drive to a remo te location on Bluff Road, saying

that she was going to give him “something [he had] always wanted.” Strickland

took this comment to mean oral sex. He drove to the remote location and

parked. They talked about a possible reconciliation and began to kiss. Strickland

then passe d out. He awake ned later to see the Defen dant ou tside the c ar. She

told him that she was urinating, and he fell back asleep. The next time he

awakened, both he and the car were on fire.



      Strickland scram bled ou t of the car a nd beg an to sea rch for the D efenda nt.

He was unab le to locate her and soon ran to the highway to get help. Police

officers eventually arrived at the scene. According to Deputy Sheriff Doug

Adkins, Strickland was burned, seemed disoriented, and appeared to be worried

about the Defendant. He was taken to a hospital where he w as treated for a bu rn

wound to his head.



      Officers searched the area near Strickland’s car but were unable to find the

Defen dant. They located her several hours later at her reside nce b ehind Brock ’s

Market. Upon questioning, she denied that she h ad see n Stricklan d that nigh t,

saying that she had spent the night at home with Robert Jenkins. She added that

she “wo uldn’t be c aught d ead with Avery Stric kland.”




                                         -3-
      Strickla nd’s car was destroyed by the fire.          Roy Shinall, an arson

investigator, determined that the a fire had been deliberately set in the floor of the

front passenger side of the vehicle. Shinall’s investigation revealed that the fire

had been started with papers and other solid accelerants.



      The Defendant later gave two statements in which she im plicate d hers elf

and Robert Jenkins in the burning of Avery Strickland’s car. On January 15,

1995, she gave a statement to Roy Shinall. She told Shinall that on the night of

the fire, she had called Avery Strickland and asked to meet him. He agreed and

Robert Jenkins gave he r some thing to pu t in Stricklan d’s coffee . She gave

Strickland the coffee and, after drinking it, he pass ed out. Je nkins the n cam e to

Strickla nd’s car. The Defendant and Jenkins set some papers on fire in the front

floorboard of Stricklan d’s car and left togeth er.



      On Februa ry 7, 1995 , the Defe ndant ga ve a mo re detailed statem ent to

Detective Robert Caldwell of the Cocke County Sheriff’s Department. In that

statement, the Defendant still implicated herself in the burning of the car but

shifted more of the blame to Robert Jenkins. She stated that Jenkins had come

up with the plan “to get rid of Avery.” Jenkins took som e of the Defe ndan t’s

Valium pills and “mashed them up.” He showed the Defendant th e remo te

location on Bluff Road and instructed her to take Strickland there. She then

called Strickland and arranged the meetin g. Before meeting Strickland, she put

the crushed Valium in a cup of coffee, which sh e later gav e to Strickla nd. They

drove to the remote location, talked for a period of time, and Strickland passed

out. The Defendant then saw Jenkins drive up in her car. Jenkins pulled the

Defendant out of Strickland’s car, retrieved a gallon of gas and a sheet from the

                                         -4-
Defe ndan t’s car, an d walk ed ba ck to S trickland’s car. The Defendant saw

Strickland’s car on fire but left the scene, screaming and crying, with Jenkins.



      The State introduced proof that Avery Strickland had two life insurance

policies with the Defendant named as a beneficiary. One of the policies would

have paid the Defendant twenty-seven thousand dollars ($27,000) in the event

of Strickland’s natural death or one hundred thousand dollars ($100,000) in the

event of an accidental death. The other policy was in the amount of two hundred

thousand dollars ($2 00,000 ), and the Defen dant wo uld have received a one-s ixth

share, or appro ximately th irty-three thousand three hundre d thirty-three dollars

and thirty-three cents ($33,333.33) in the event of Strickland’s death.



      At trial, the Defendant testified that she was not involved in the fire which

consumed Avery Strickland’s car. She stated that she was home on the night of

September 25 to 26, 1994.         She admitted having made the incriminating

statements, but stated that she d id so at Strickland’s req uest becau se they were

still trying to reconcile. According to the Defendant, Strickland told her that she

could prove her love for him by making the statements. The Defendant admitted

that she knew she was a beneficiary of Strickland’s life insurance policies, but

claimed that she did not believe she would actually receive any mon ey from his

death.



      The Defendant was indicted on one count of aggravated arson and one

count of attempted first de gree murd er. She was tried on January 23, 1996.

After considering the proof presented at trial, the jury found the Defe ndant g uilty

as charged.

                                         -5-
         In her only issue on appeal, the Defendant argues that the trial court erred

in senten cing her to twenty-five ye ars incarc eration. Both aggravated arson and

attempted first degree murder are Class A felonies. Tenn. Code Ann. §§ 39-14-

302(b)(1), 39-12-107(a), 39-13-202. The authorized term of imprisonm ent for a

Range I standard offend er convicted of a C lass A felony is fifteen to twen ty-five

years.     Tenn. Code Ann. § 40-35-112(a)(1). The trial court sentenced the

Defendant to the m aximum allowable term of im prisonm ent for ea ch cou nt, with

the sentences to run concurrently. On appeal, the Defendant contends that her

sentence is excessive.



         When an accused challenges the length, range, or the 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 cour t are corre ct.

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 circums tances ." State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).



         In conducting a de novo review of a se ntenc e, this court must consider: (a)

the evidenc e, if any, rece ived at the tr ial and the sentencing hearing; (b) the

presentence report; (c) the principles of senten cing and argum ents as to

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

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

that the de fenda nt ma de on his own be half; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

                                          -6-
       If our review reflects that the trial court followed the statutory sentencing

procedure, 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 no t modify th e sentence even if we would have preferred a different

result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



       With the Defendant’s agreement, the trial court conducted the sentencing

hearing immediately after the jury had returned its verdict. The trial judge found

two enhancing factors applicable to each offense: 1) That the Defendant was a

leader in the commission of an offense involving two or more criminal actors, and

2) that the Defendant abus ed a po sition of priva te trust. See Tenn. Code Ann.

§ 40-35-114(2), (15). The Defendant suggested as a mitigating factor that she

was suffering fr om a men tal con dition th at sign ificantly re duce d her c ulpab ility,

pointing out that she had been treated at the Cherokee Mental Health C enter.

The trial court fou nd that the Defen dant ha d not offere d sufficient p roof to

establish that mitigating factor and found no other m itigating factors applicable.



       In setting the sentence, the trial judge commented as follows:

              All right, M s. Strick land, I’ve been on the Benc h now nearly six
       years, five and a half years, and I’ve seen some pretty heinous
       crimes. I’ve seen multiple murders, child abuse, aggravated rape of
       a child. And I cannot tell you how this case appears to this Court.
       I cannot think of much that is more low-down than the acts for which
       you have been convicted and th e circu msta nces surrou nding this
       offense.
              You lured this man away from his home upon the pre text of --
       of wanting to go b ack and live with him after you had plan ned --
       helped plan a very da stardly murder. And but for the grace of God
       this man would be dead and you very well could be facing the
       electric chair. I have watched you throughout this trial. I have sat
       and watched you. You are a -- are a -- a heartless woman. You are

                                           -7-
       a cool, calculating, deliberating woman. And I ju st don ’t know much
       worse than what you did in this case.

Based on the circumstances of the offense and the two enhancing factors, the

trial judge set the sentence a t the ma ximum in the rang e, twenty-five years. In

so doing, he stated that anything less would depreciate the seriousness of the

offenses.



       On appeal, the Defendant contends that the trial court improperly applied

the two enhan cing factors and failed to apply two m itigating factors. W ith regard

to the first enhancing factor, that the Defendant was a leader in the commission

of the offenses, we agree with the trial court that it is applicable to both

convictions. See Tenn. Code Ann. § 40-35-114(2). At trial, the State introduced

statem ents made by the Defendant indicating that both she and Robert Jenkins

were involved in th e com mission of the crim es. The statement made o n February

7, 1995, implies that the idea for the crimes originated with Jenkins.              That

statement also indicates that it was Jenkins alone who set the fire in the victim’s

car. Yet the statement made on January 15, 1995, indicates that the Defendant

was involved in the setting of the fire. Given the conflicting nature of these

statements, the Defe ndant’s p articipation in the actu al setting o f the fire is

unclear. It is clear, however, that it was the Defen dant wh o called th e victim to

set up the meeting, lured the victim o ut with ta lk of reco nciliatio n, gave the victim

coffee laced with Valium to render him u ncon sciou s, and directe d him to drive to

the remote location on Bluff R oad. A s this C ourt ha s previo usly no ted, this

enhancement factor does not require that the Defendant be the sole leader but

only that she b e “a” lead er. See State v. Hicks, 868 S.W.2d 729, 731 (Tenn.

Crim. App. 19 93).      W e believe th at the facts describing her role in the


                                           -8-
commission of the offen ses are sufficient to s upport th e applica tion of this

enhance ment factor.



          Furthermore, we believe that the trial court properly applied the second

enhancement factor, that the D efenda nt abus ed a po sition of priva te trust. See

Tenn. Code Ann. § 40-35-114(15). The Defendant argues on appeal that “the

defendant in this case was m arried to an other pe rson at the time of the

commission of the offen ses an d an ord inary prud ent person of common

intelligence is not justified in placing trust in a person whom they are meeting for

an adulterous relationship which is frowned on by our society.” Our reading of

the record reveals that the Defendant and the victim were, in fact, still married at

the time of the comm ission of the offenses.            Although the Defendant was

appa rently living with Robert Jenk ins at th at time , they did not m arry un til January

of 1995, approximately four months after the commission of the crimes. Thus,

it was the Defendant’s position as the victim’s e strange d wife that a llowed he r to

convince him to meet her with talk of reconciliation. Accordingly, we conclude

that the record supports the application of the abuse of private trust enhancement

factor.



          In addition, we believe that the record supports the applicati on of an

enhancement factor which the trial court did not find, namely that during the

commission of the felonies, the Defendant willfully inflicted bodily injury upon

another person . See Tenn. Code Ann. § 40-35-114(12). The record reveals that

the victim suffered a burn woun d to the head as a result of the fire set in his ca r.

Tennessee Code Annota ted sectio n 39-11 -106(a)( 2) defines “bodily injury” to

include a burn. Tennessee Code Annotated section 40-35-114 provides for the

                                           -9-
application of appro priate enhancement factors “if not themselves essential

eleme nts of the offense as charged in the indictment.” In the case sub judice, the

indictment for aggravated arson charged the Defendant with knowingly damaging

personal property (Avery S trickland’s car) with out the cons ent of a ll individu als

having a proprietary interest the rein while Avery Stricklan d was pres ent in the car.

See Tenn. Code Ann. § 39-14-302(a)(1). The indictment for attempted first

degree murde r charge d the De fendan t with attem pting to commit the

premeditated and intentiona l killing of Avery Strickland . See Tenn. Code Ann. §§

39-12-101, 39-13-202 (a)(1). Thus, bo dily injury was not an essential element of

aggravated arson or attempted first degree murder as charged in the indictment

against the Defe ndant.     See Tenn. C ode Ann . §§ 39-14-30 2(a)(1), 39-13-

202(a)(1), 39-12-1 01; see also State v. Freeman, 943 S.W.2d 25, 32 (Tenn.

Crim. A pp. 199 6); but see State v. Makoka, 885 S.W.2d 366, 374 (Tenn. Crim.

App. 1994). Accordingly, given the burn wound suffere d by the victim a s a res ult

of the fire, we conclude that the enhancement factor for willfully inflic ting bo dily

injury upon another person is applicable to both of the Defendant’s convictions.



      With regard to mitigating factors, the Defendant contends that the trial

court erred by not applying T ennesse e Code A nnotated se ction 40-35-11 3(8).

That section provides for mitigation if the “defendant was suffering from a mental

or physical condition that significantly reduced the defendant’s culpability for the

offense .” The Defendant argues that there was proof at trial that she was taking

Prozac and Va lium and that she had undergone treatment at the Cherokee

Mental Health Center. The record does not, however, contain any information

concerning the substance of that treatment or the reasons for her taking

prescription medication. Moreover, the Defendant offered no proof regarding

                                         -10-
how her alleged mental condition significantly reduced her culpability for the

offenses. From this record, we cannot conclude that the trial court erred in

denying this m itigating factor.



      The Defendant also contends that the trial court erred by failing to consider

her lack of a prior criminal record as a mitigating factor pursuant to Tennessee

Code Annotated section 40-35-113(13). The record indicates that the Defendant

had prior arrests but no prior convictions at the time of the present offenses. The

Defendant points out that this Court has previously held that the lack of a criminal

history may be considered as a mitigating factor pursuant to Tennessee Code

Annotated section 4 0-35-11 3(13). See State v. Bingham, 910 S.W.2d 448, 453

(Tenn. Crim. App. 19 95). W e note, however, that another panel of this Court has

held that although “absence of a prior criminal record may be considered under

the catch -all provision of Tennessee Code Annota ted sectio n 40-35 -113(13 ) . .

. this court is not required to consider this as a mitigating factor.”        State v.

W illiams, 920 S.W .2d 247 , 261 (T enn. C rim. App . 1995). E ven if we w ere to

conclude that the Defendant’s lack of a prior criminal record qualified as a

mitigating factor, its significa nce is n egligib le given the circ ums tance s of this

case. See Williams, 920 S.W.2d at 261.



      Thus, from our examination of the record, we believe that there are three

enhancement factors ap plicable to th e Defe ndant’s s entenc es. The sole possible

mitigating factor is entitled to little weight. While imposing sentence, the trial

court emphasized the egregious circumstances of the Defendant’s offenses. As

we no ted ab ove, the trial judg e’s impression of the Defendant after hearing her

testify at trial was not favorable. F rom our review , we believe that the trial judge

                                         -11-
gave due consideration to the applic able s enten cing p rinciple s and that his

findings were ad equate ly suppo rted by the record. Affording the sentences the

presumption of correctness, we cannot conc lude that the trial judge erred or

abused his discretion in sentencing the Defendant to the maximum term of

imprisonment or that her sentences are excessive.



       For the reas ons se t forth in the d iscussio n above , we con clude tha t the

Defe ndan t’s issue on appeal lacks merit. We therefore affirm the judgment of the

trial court.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, JUDGE



___________________________________
JERRY L. SMITH, JUDGE




                                        -12-
