         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   November 6, 2007 Session

               STATE OF TENNESSEE v. NICHLOUS MAXWELL

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 03-08392   James C. Beasley, Jr., Judge



                   No. W2006-01213-CCA-R3-CD - Filed October 15, 2008


Following a jury trial, Defendant, Nichlous Maxwell, was convicted of second degree murder. He
was sentenced to twenty-five years’ incarceration. On appeal Defendant argues (1) the trial court
committed reversible error by permitting the prosecutor to elicit a hearsay statement under the
excited utterance exception to the hearsay rules, (2) that the trial court erred in its response to jury
questions regarding the instruction on criminal responsibility for the conduct of another, and (3) the
trial court erred in enhancing Defendant’s sentence based on facts not found by a jury. After a
thorough review of the record, we affirm the judgments of the trial court as to the hearsay statements
and the jury instruction and modify the judgment as to sentencing from twenty-five to twenty-three
years.

                          Tenn. R. App. P. 3 Appeal as of Right;
           Judgment of the Criminal Court Affirmed in Part and Modified in Part

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.,
and JOHN EVERETT WILLIAMS, JJ., joined.

Lorna S. McClusky, Memphis, Tennessee, for the appellant, Nichlous Maxwell.

Robert E. Cooper, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; Lee Coffee, Assistant District Attorney; and Stacey
McEndree, Assistant District Attorney, for the appellee, the State of Tennessee.

                                              OPINION

I. Background

       In the early morning hours of May 26, 2003, Prentice Moore (also known as “Twin One”)
was shot and killed in the parking lot of an Exxon gas station in Memphis. Earlier that morning,
Defendant and the victim were involved in an altercation at the Denim and Diamonds nightclub.
Gregory Livingston, the director of security for the club, was summoned to the security office via
portable radio after one of his employees reported a fight that had occurred at the pool tables. When
Mr. Livingston arrived at the office he found the victim and his twin brother, Prenston Moore (also
known as “Twin Two”) there. Mr. Livingston found the twins to be agitated and upset. When Mr.
Livingston asked the twins what happened, the victim responded that “some other guys jumped him
and his brother.” The victim also informed Mr. Livingston that Defendant said he was going to kill
them. Because the twins were concerned for their safety, the security guards escorted them out of
the building about thirty minutes after the fight occurred.

        Prenston Moore testified that the problems between the victim and Defendant began in
October 2002 when Defendant poured a beer on the victim’s girlfriend. This caused a fight between
the victim and Defendant at the nightclub. The fight was broken up by security and both men went
on their way. The victim and Prenston Moore did not see Defendant again until the night of May
25, 2003 at the nightclub. When Prenston Moore, the victim, and their friends were leaving the club
in the early morning hours of May 26, 2003, they walked past Defendant. Prenston Moore testified
that he heard Defendant say he was “dumping n-----s.” Prenston Moore stated that this statement
was slang for killing someone. After this comment, the victim began fighting with Defendant.
Prenston Moore joined the fight and hit Defendant several times with a pool cue and then chased him
out of the nightclub.

        After being escorted out of the club by security, the victim, Prenston Moore, and their cousin,
Pat Grant, drove to a nearby Exxon station. The victim was driving the car, while Prenston Moore
was in the backseat and Mr. Grant was in the front passenger seat. After circling the Exxon parking
lot twice, the men stopped in the parking lot. Very soon after parking, Prenston Moore heard shots
fired. The victim reached in the backseat and pushed Prenston Moore’s head down. At this point,
Prenston Moore felt blood fly into his face and he thought he had been shot. Within a few seconds,
however, he realized that it was the victim who had been shot. Prenston Moore looked to the back
of the vehicle and saw a bullet hole. Prenston Moore also saw a person he identified as Defendant
running away from the rear of the car. Prenston Moore testified that Defendant was carrying an
assault rifle. Prenston Moore stated that he did not see anyone with Defendant and that, even though
Defendant had something covering part of his face, he recognized Defendant by his bald head.
During the incident, Prenston Moore heard three or four shots fired and testified that all the shots
were fired from the rear of the vehicle. After the shots stopped, the victim “pulled off” the lot onto
Mendenhall and hit another car. The victim was able to drive a short distance further to Cottonwood
and then “fell back.” Prenston Moore grabbed the wheel and managed to stop the car. Once the car
was stopped, Prenston Moore pulled the victim out of the car and covered him up.

        Edward Reynolds, Omar Edwards, and Roy Washington were friends of the victim and were
with him at the nightclub that night. Mr. Reynolds and Mr. Edwards saw the fight between the
victim, Prenston Moore, and Defendant. Mr. Reynolds, Mr. Edwards, and Mr. Washington left the
club after the fight in Mr. Edward’s white Tahoe. The men also drove to the Exxon station and
circled the parking lot. They then pulled up next to a gas pump, and the victim was on the other side
of the same gas pump. Mr. Reynolds looked back and saw Defendant holding an assault rifle. Mr.
Edwards saw Defendant carrying a gun with a “banana clip.” Mr. Washington saw Defendant
carrying a “machine gun with a long clip.” All three men acknowledged that Defendant had
something covering part of his face, but they could tell the Defendant was bald. None of the men
saw another person with Defendant. Mr. Reynolds saw the victim push Prenston Moore’s head

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down before he was shot. Mr. Edwards saw a bullet “knock out” the back window. Mr. Washington
saw a bullet strike the victim.

        Bryan Cohran was also at the Exxon station early that morning. Mr. Cohran was not a friend
of the victim or Defendant, but was “relieving himself” behind the Exxon station when he saw
Defendant and a taller, lighter complected man run towards the victim’s car and start shooting. Mr.
Cohran noticed that the Defendant had an assault rifle and the other man had a handgun. Mr. Cohran
saw shots fired from the rear of the victim’s vehicle. After Defendant and the other man fired
several shots, they ran back the way they came, and someone in a green Tahoe started shooting at
them.

         Inside the green Tahoe were Tim Scott and Larry Moore. Mr. Scott had followed the victim
and Mr. Edwards from the club to the Exxon. When they arrived, they could not find a parking
space and were waiting for someone to leave when they saw two men come around the building.
Both men testified that the bald man (identified as Defendant) was carrying an assault rifle and the
other man was carrying a handgun. Both men also testified that the man carrying the assault rifle
had gold teeth. At trial, Defendant demonstrated for the jury that he has gold teeth. Larry Moore
testified that he saw Defendant fire several shots and that he saw the other man shoot. Larry Moore
also saw the victim push Prenston Moore’s head down before he was shot. Mr. Scott began
shooting at Defendant and the other man once he realized what was happening.

        Fredrick Rodgers also witnessed the fight at the club and the shooting at the Exxon. He saw
Defendant carrying an assault rifle and fire into the back of the victim’s car. Mr. Rodgers also stated
that there was another man with Defendant and that he recognized Defendant because of his gold
teeth.

         Several members of the Memphis Police Department testified for the State. Officer David
Payment testified that he investigated the area at Cottonwood and Mendenhall where the victim’s
car came to a stop as well as the Exxon station where the shooting occurred. At the Cottonwood
scene Officer Payment recovered a spent nine millimeter shell casing (fired into the air by Mr. Grant
when a car drove by after Prenston Moore had pulled the victim out of the car) and a live nine
millimeter bullet near the victim’s car. He also recovered a nine millimeter handgun from the
victim’s car. Prenston Moore testified that the victim carried a gun in his car. At the Exxon station,
Officer Payment recovered three spent 7.62 x 39 shell casings, four spent nine millimeter shell
casings, and a nine millimeter bullet fragment on the front dash of the victim’s car. Officer Payment
also testified that the front windshield of the car had a bullet hole in it, although he was unable to
testify as to whether the bullet hole was an entrance or exit hole. Sergeant James Fitzpatrick testified
that he observed two bullet holes in the rear window of the victim’s car. In Sergeant Fitzpatrick’s
opinion, the bullet fragment found on the front dash came from the rear of the vehicle, hit and passed
through the victim, struck the front windshield, and then “lost its power and bounced back.”

        Sergeant John Palsey identified Defendant as a suspect. Several eye witnesses identified
Defendant in a photo spread and also mentioned another man named either Terrell or Chris. The
officers were not able to positively identify this person, although they did confirm that there were
nine millimeter shell casings found at the Exxon station consistent with a second shooter.

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        Dr. O’Brian Cleary Smith, the Shelby County Medical Examiner, performed the autopsy on
the victim’s body. Dr. Smith determined that the victim was killed by a high velocity gunshot
wound that entered through his right eye and exited through the back of his head. Typically, an
example of a high velocity gun is an assault rifle, and a handgun is not a high velocity weapon.

         Monica Allen, Defendant’s girlfriend at the time of the shooting, testified on his behalf. Ms.
Allen testified that she saw the fight at the club and saw Defendant run out of the club. Ms. Allen
testified that she left a short time later after “the crowd cleared out.” When Ms. Allen arrived home,
Defendant was there with injuries sustained from the fight. She testified that she gave him a rag to
clean himself with and then they both went to bed. She was unsure of the time they went to bed but
guessed it was around three o’clock in the morning. Ms. Allen also agreed on cross-examination that
because she was asleep she did not know if Defendant left during the night, even though he was there
when she woke up the next morning.

II. Analysis

        Defendant argues on appeal that the trial court committed reversible error by permitting the
prosecutor to elicit a hearsay statement under the excited utterance exception to the hearsay rules,
that the trial court erred in its response to jury questions regarding the instruction on criminal
responsibility for the conduct of another, and the trial court erred in enhancing Defendant’s sentence
based on facts not found by a jury.

        A. The Hearsay Statements

       The issue of whether the admission of hearsay evidence violated a defendant’s rights under
the Confrontation Clause is purely a question of law. State v. Maclin, 183 S.W.3d 335, 342 (Tenn.
2006) (citing Lilly v. Virginia, 527 U.S. 116, 125, 119 S. Ct. 1887, 1894, 144 L. Ed. 2d 117 (1999)),
abrogated on other grounds as stated in State v. Cannon, 254 S.W.3d 287 (Tenn. 2008). The
application of the law to the facts found by the trial court is a question of law that this Court reviews
de novo. Id. at 343 (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997); Beare Co. v. Tenn.
Dept. of Revenue, 858 S.W.2d 906, 907 (Tenn.1993)).

         In the instant case, the statement at issue was determined by the trial court to be an excited
utterance and therefore admissible under Tennessee Rule of Evidence 803(2). The statement at issue
occurred after the victim and Prenston Moore were brought to the security office following a fight
with Defendant. Mr. Livingston, the head of security, was called to the office about four minutes
after the fight and the twins told him what happened. The victim told Mr. Livingston that Defendant
had “threatened to get a gun and kill them.” Mr. Livingston stated that Prenston told him the same
thing.

         Defendant contends that the statement first violated the Supreme Court’s decision in
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). However, we
conclude that Defendant has waived any objection to Mr. Livingston’s testimony on the ground that
it violates Crawford because he failed to raise this objection at trial and in his motion for a new trial.
See Tenn. R. App. P. 3(e). Our rules of appellate procedure provide that an issue may not be raised

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for the first time on appeal. Tenn. R. App. P. 36 (a). As such, Defendant’s failure to raise this
objection either at trial or in his motion for new trial precludes him from doing so now. However,
even if not waived, we find no error in the admission of the challenged statement.

         The Sixth Amendment to the United States Constitution provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him
. . . .” This amendment was made applicable to the states through the Fourteenth Amendment.
Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1067, 13 L. Ed. 2d 923 (1965). Additionally,
the Tennessee Constitution Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to meet the witnesses face to face . . . .” Tenn. Const. art. I, § 9.

        In Crawford, the Supreme Court, in determining the admissibility of hearsay evidence within
the constraints of the Confrontation Clause, recognized that the right to confront one’s accuser is not
absolute. See Crawford, 541 U.S. at 51, 124 S. Ct. at 1364. The Court concluded that the
Confrontation Clause was only intended to protect a defendant from testimonial hearsay statements,
not all statements that are hearsay. Id. In rejecting a bright-line “testimonial” definition, the
Crawford Court nonetheless provided guidance by providing three examples or “formulations”
which qualify a hearsay statement as “testimonial:”

        (1) ex parte in-court testimony or its functional equivalent such as affidavits,
        custodial examinations, prior testimony which a defendant was unable to cross-
        examine, or similar pre-trial statements which declarants would reasonably expect
        to be used prosecutorially; (2) extrajudicial statements contained in formalized
        testimonial materials such as affidavits, depositions, prior testimony, or confessions;
        and (3) statements made under circumstances which would lead an “objective
        witness reasonably to believe that the statement would be available for use at a later
        trial.

Id. at 51-52, 124 S. Ct. at 1364. The Court noted that, at a minimum, the term “testimonial
statements” applied to police interrogations and “[s]tatements taken by police officers in the course
of interrogations.” Id. at 52; 124 S. Ct. at 1364. In contrast, the Court noted that a casual comment
to an acquaintance, business records, or statements in furtherance of a conspiracy are not testimonial.
Id. at 51, 56, 124 S. Ct. at 1364, 1367. The Court in Crawford reaffirmed that the standard to be
applied for determining admissibility of non-testimonial hearsay remained the standard articulated
in Ohio v. Roberts, which permitted admission of an unavailable witness’ statement against a
defendant if the statement bore “adequate ‘indicia of reliability.’” Crawford, 541 U.S. at 68, 124
S. Ct. at 1374; Ohio v. Roberts, 448 U.S. at 66, 100 S. Ct. at 2539.

        The Tennessee Supreme Court, following the decision of Crawford, held that a testimonial
statement “involves a formal or official statement made or elicited with a purpose of being
introduced at a criminal trial.” Maclin, 183 S.W.3d at 346. The court noted that the implication of
Crawford “is that statements made to police while they are performing an ‘investigative and
prosecutorial function’ are testimony.” Id. “The common denominator in . . . determining whether
a particular statement to a police officer is ‘testimonial’ is whether the declarant was acting in the
role of a ‘witness’ at the time the statement was made.” Id. at 348-49.

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        However, since our Supreme Court’s decision in Maclin, the Supreme Court has issued two
later opinions interpreting Crawford. In Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165
L. Ed. 2d 224 (2006), and its companion case, Hammon v. Indiana, 547 U.S. 813, 126 S. Ct. 2266,
165 L. Ed. 2d 224 (2006) the Court departed from Roberts, concluding that only testimonial
statements “cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause”
and determining that “[i]t is the testimonial character of the statement that separates it from other
hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.” Davis, 547 U.S. 126 S. Ct. at 2273, 126 S. Ct. 2266. In State v. Lewis, 235
S.W.3d 136 (Tenn. 2007), our Supreme Court held, “the ruling in Davis that the Confrontation
Clause is inapplicable to nontestimonial hearsay conflicts with our interpretation in Maclin that the
Roberts test should be used to determine the admissibility of nontestimonial hearsay.” Lewis, 235
S.W.3d at 143. Our Supreme Court went on to quote the difference between testimonial and
nontestimonial hearsay as follows:

       Statements are nontestimonial when made in the course of police interrogation under
       circumstances objectively indicating that the primary purpose of the interrogation is
       to enable police assistance to meet an ongoing emergency. They are testimonial
       when the circumstances objectively indicate that there is no such ongoing emergency,
       and that the primary purpose of the interrogation is to establish or prove past events
       potentially relevant to later criminal prosecution. Id. at 144 (quoting Davis, 126 S.
       Ct. at 2273-74).

Our Supreme Court then determined that, like the federal constitution, the Tennessee Constitution
does not require that nontestimonial hearsay be analyzed under Roberts. Id. at 145. The Court held
that when hearsay evidence is nontestimonial and falls within one of the exceptions under the Rules
of Evidence no additional analysis is needed. Id.

        When analyzing the statement in the instant case under Crawford and Lewis, we must
determine if the statement that was admitted was testimonial in nature. Because Mr. Livingston was
not a law enforcement officer, the statement was not elicited for the purposes of prosecution, and
because the statement was elicited in order to address an ongoing emergency situation, it was not
testimonial. Mr. Livingston stated he was the head of private security hired by the club, not a police
officer. He also stated that to his knowledge no police were never contacted about the fight or the
threat made by Defendant. Lastly, because Mr. Livingston did not know where Defendant was after
the fight, it was necessary for him to determine what happened in order to protect the twins and the
other people in the club from another fight or emergency situation. Because the statements were
nontestimonial, there is no Crawford issue, and Defendant is not entitled to relief.

        Defendant next contends that even if the statements were deemed to be nontestimonial, that
admission of them violated the Tennessee Rules of Evidence. Tennessee Rule of Evidence 803(2)
states an exception to the hearsay rule as, “a statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or condition.” In the
instant case, the statements made by the twins were made just a few minutes after the fight (the
startling event) occurred. Mr. Livingston testified that he knew the twins well and that he could tell
they were agitated, upset, and scared. He stated that their voices were raised and they were talking

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very fast. The trial court determined that “it would qualify as an excited utterance under the
circumstances. It was close in time to the incident involved. Emotions are still high . . .” We
conclude that the trial court did not err in allowing Mr. Livingston to testify as to the excited
utterances made by the victim and Prenston Moore. Accordingly, Defendant is not entitled to relief
as to this issue.

       B. Jury Instruction on Criminal Responsibility

       Defendant next contends that the trial court erred in its instruction to the jury as to criminal
responsibility and in its response to a jury question regarding criminal responsibility. Defendant
expressed concerns with the criminal responsibility instruction during a jury out hearing at trial.
Defendant’s concerns involved the possibility that the jury would determine that Mr. Scott was
responsible for the victim’s death. The trial court responded as follows:

       There’s got to be proof that [Defendant] would be criminally responsible for Mr.
       Scott if the jury believes that. They’ve got to have some proof that he was
       criminally responsible for Mr. Scott’s actions.

        ...

       I mean, the proof is completely devoid of anything that would indicate that he could
       be held criminally responsible for Mr. Scott.

The trial court then went on to instruct the jury on the criminal responsibility statute in the jury
instructions. After the jury had begun deliberations they presented the trial court with three
questions regarding criminal responsibility. The jury asked

       1. Can you explain criminal responsibility to us?

       2. If someone did it & and [Defendant] did not know until after the fact[,] is he still
       guilty because he benefitted?

       3. Is the indictment accusing [Defendant] of being the actual shooter or can we find
       him guilty if we believe he is criminally responsible?

       The trial court held a jury out hearing to discuss with the State and Defendant the appropriate
answer to these questions. During the hearing, Defendant asked that the judge instruct the jury to
make a specific finding of fact whether it found Defendant guilty on the basis of criminal
responsibility of another.

        Defendant asked that the jury be sent a form that listed the options for indicating the person
whose conduct Defendant was found to be criminally responsible for. Defendant argues that if the
jury found that Defendant was criminally responsible for the actions of Mr. Scott then they “are in
the wrong place on criminal responsibility.” The trial court determined that while Defendant’s
argument was “novel,” it was not willing to comply because to do so would be an impermissible

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comment on the evidence. The trial court, instead, decided to reread the criminal responsibility
instruction to the jury. The trial court then brought the jury in and reread the instruction. The trial
court also explained that “that is the only answer I’m allowed by law to give you. Any other specific
answers would be a comment on the evidence, which the law does not permit me to do.” An hour
later, the jury returned a verdict of guilty of murder in the second degree.

         When the trial court’s instructions to the jury correctly, fully, and fairly state the applicable
law, it is not error to refuse to give a special requested instruction. State v. Inlow, 52 S.W.3d 101,
107 (Tenn. Crim. App. 2000); State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995).
While Defendant did not specifically ask for a special instruction in the instant case, the trial court
did not err in refusing to give the jurors the form Defendant suggested. This court must review the
entire jury charge; we can find error only if, when read as a whole, the charge fails to fairly submit
the legal issues or misleads the jury as to the applicable law. State v. Phipps, 883 S.W.2d 138, 142
(Tenn. Crim. App. 1994). Further, the trial court did not err when it responded to the jury questions
by rereading to them the charge for criminal responsibility, and the trial court was correct in stating
that it was impermissible for it to comment on the evidence. Accordingly, Defendant is not entitled
to relief as to this issue.

        C. Sentencing

        We note that the legislature has recently amended several provisions of the Sentencing
Reform Act of 1989, which became effective June 7, 2005. However, although Defendant was
sentenced after the effective date of the amended Act, Defendant’s crime in this case occurred prior
to June 7, 2005, and Defendant did not elect to be sentenced under the provisions of the amended
Act by executing a waiver of his ex post facto protections. See 2005 Tenn. Pub. Acts ch. 353 § 18.
Therefore, this case is not affected by the 2005 amendments, and the statutes cited in this opinion
are those that were in effect at the time the instant crimes were committed.

        Defendant was sentenced to twenty-five years for his second degree murder conviction. A
person convicted of second degree murder, a Class A felony, faces fifteen to twenty-five years in
prison. The presumptive sentence is twenty years.

        When a defendant challenges the length or the manner of service of his or her sentence, this
Court must conduct a de novo review with a presumption that the determinations made by the trial
court are correct. T.C.A. § 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). This
presumption, however, is contingent upon an affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances. State v. Pettus, 986
S.W.2d 540, 543-44 (Tenn. 1999).

        In making its sentencing determinations the trial court must consider: (1) the evidence
presented at the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct;
(5) any appropriate enhancement and mitigating factors; (6) the defendant’s potential or lack of
potential for rehabilitation or treatment; and (7) any statements made by Defendant in his own
behalf. T.C.A. §§ 40-35-103 and -210; State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim.

                                                   -8-
App.1995). The defendant bears the burden of showing that his sentence is improper. T.C.A. §
40-35-401(d), Sentencing Commission Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

        The sentencing hearing in this case was held on March 8, 2006. In Blakely, the United
States Supreme Court concluded that “‘[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.’” Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New
Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000)). In
Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), the Supreme
Court held “[b]ecause circumstances in aggravation are found by the judge, not the jury, and need
only be established by a preponderance of the evidence, not beyond a reasonable doubt . . .
[California’s sentencing scheme] violates Apprendi’s bright-line rule: Except for a prior conviction,
‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.’” Cunningham, 549 U.S. at ___, 127
S. Ct. 856. (citing Apprendi, 530 U.S. at 490, 120 S. Ct. at 2348).

        Our Supreme Court has concluded that other than a defendant’s previous history of criminal
convictions or criminal behavior admitted to by the defendant, the application of enhancement
factors which increases the defendant’s sentence over the statutorily presumptive sentence deprives
the defendant of his or her Sixth Amendment right to have a jury determine whether those
enhancement factors applied. State v. Gomez, 239 S.W.3d 733, 739-40 (Tenn. 2007) (citing
Cunningham, 127 S. Ct. at 860).

        The trial court found five enhancement factors that it felt made the twenty-five year sentence
appropriate. The trial court based the enhancement on: the fact that Defendant did have a prior
criminal record, that Defendant was a leader in the commission of a felony involving two or more
criminal actors, that the defendant has a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community, that Defendant possessed a firearm
during the offense, and that Defendant had no hesitation about committing a crime when the risk to
human life was high. See T.C.A. § 40-35-114(2), (3), (9), (10), (11). The court found one mitigating
factor being that Defendant “assisted the authorities in uncovering offenses committed by other
persons or in detecting or apprehending other persons who had committed the offenses.” T.C.A. §
40-35-114(9). However, the trial court also determined that this mitigator should not be given much
weight and did not “come anywhere close to off-setting, or over-coming the enhancement factors
that have been found.”

       The State concedes that under Gomez, the trial court erred in enhancing Defendant’s
sentence based on enhancement factors, other than criminal history or behavior, not found by a jury.
However, the State contends that because of Defendant’s criminal history the enhancement from
twenty years to twenty-five years is still valid.

       Defendant’s criminal history consists of six misdemeanor drug possession convictions, one
evading arrest conviction, two driving with a suspended license convictions, and one simple assault
conviction. His convictions date from 1997 through 2000. The trial court during sentencing stated,

                                                 -9-
“I do find that [Defendant’s criminal history] is a factor and I am going to put a great deal of
emphasis on the continual violation of law by [Defendant] . . . The Defendant has been . . .
previously placed on probation and has, again, violated that probation, which shows a lack of respect
. . . I do find that there is a history of unwillingness to comply with conditions of a sentence
involving release in the community.” While, the trial court clearly placed a great deal of emphasis
on Defendant’s criminal history as a reason for the enhancement, it also placed a great deal of
emphasis on the other enhancement factors. A modification is thus necessary. Accordingly, we
modify Defendant’s sentence from twenty-five years to twenty-three years.

                                          CONCLUSION

        For the foregoing reasons, the judgments of the trial court are affirmed as to all issues except
the use of enhancement factors in the sentencing of Defendant. As to sentencing, the we modify the
sentence from twenty-five to twenty-three years based on Defendant’s criminal history.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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