         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE           FILED
                          AUGUST SESSION, 1998      September 30, 1998

                                                   Cecil W. Crowson
STATE OF TENNESSEE,           )                  Appellate Court Clerk
                                  C.C.A. NO. 01C01-9711-CR-00511
                              )
      Appellee,               )
                              )
                              )   WILSON COUNTY
VS.                           )
                              )   HON. J. O. BOND
FLO YD W AYNE SMIT H, II,     )   JUDGE
                              )
      Appe llant.             )   (Sentencing)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF WILSON COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

GREGORY D. SMITH                  JOHN KNOX WALKUP
One Public Square, Ste. 321       Attorney General and Reporter
Clarksville, TN 37040
                                  TIMOTHY F. BEHAN
KAR EN C HAF FIN                  Assistant Attorney General
Assistant Public Defender         425 5th Avenu e North
213 N orth Cu mberla nd St.       Nashville, TN 37243
Lebanon, TN 37087
                                  TOM P. THOMPSON, JR.
                                  District Attorney General

                                  DAVID DURHAM
                                  Assistant District Attorney General
                                  111 Cherry Street
                                  Lebanon, TN 37087




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION

      The Defendant was convicted on a jury verdict of second d egree m urder.

For this Class A felony offense, he was sentenced to serve twenty years in the

Department of Correction as a Range I standard offende r. He app eals the le ngth

of his sen tence. W e affirm the judgm ent of the tria l court.



      At approximately midnight on the evening of February 18, 1995, a fifteen-

year-o ld high school sophomore was killed after a fight broke out among several

individu als in a shopping center par king lo t. The caus e of de ath wa s a sing le

stab wound to the victim’s chest which penetrated his heart. Immediately prior

to the killing, the group of young people gathered on the parking lot had been

involved in some sort of an altercation. Although the evidence demonstrated that

the Defendant inflicted the fatal knife wound to the victim, the Defendant argued

that he acted in self defense. The jury rejected his defen se and found h im guilty

of second degree murder as charged. After conducting a sentencing hearing, the

trial judge sentenced the Defendant as a Range I standard offend er to twen ty

years in the Department of Correction, which is a mid-range sentence for this

Class A felony. It is from the length of the sentence imposed by the trial judge

that the D efenda nt appe als.



      When an accused challenges the length, range, or manner of service o f a

sentence, this court has a duty to conduct a de novo review of the senten ce with

a presumption that the determinations made by the trial court are correct. Tenn.

Code Ann. § 40-35-401(d). This presumption is ?conditioned u pon the affirma tive



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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).



      In 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 princip les of sen tencing a nd argu ments 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 defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatme nt. 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, 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

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



      The presentence report reflects that at the time of sentencing the

Defendant was twenty-one years old and unm arried. He dropped out of high

school in the eleventh grade. The report referenced a history of alcohol and drug

abuse. His rather brief em ploym ent his tory ha d bee n in co nstruc tion wo rk. His

juvenile record consisted of adjudications for theft, destruction of property, being

unruly, unauthorized use of emergency equipment, and violation of probation.

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As a juvenile, he was committed to the Department of Youth Development, under

whose custody he remained until he was discharged after his nineteenth birthda y.

At the time of his sentencing , burglary of an autom obile and theft cha rges were

pending ag ainst him in ano ther county.



      In sente ncing the De fenda nt, the tria l court fo und a nd ap plied as

enhancement factors that the Defendant had a history of criminal convictions or

criminal behavior, that the Defendant was a leader in the commission of the

offense, that the offense was committed to gratify the Defendant’s desire for

pleasure or excitement, and that the Defendant poss esse d or em ployed a dea dly

weapon during the com mission of the offen se. Tenn. C ode Ann . § 40-35-114 (1),

(2), (7), (9). The trial court found no mitigating factors applicable.



      The Defendant argues that the trial court erred in setting his sentence at

twenty years because the evidence does not establish that he was a leader in the

commission of an offense involving two or more criminal actors. We disagree.

W e believe the record establishes that the Defendant and his companions

proceeded to the parking lot that night looking for a fight. The Defendant let it be

known to his co mpa nions that he was a rmed with a k nife and indicated that he

would use it if necessary. The Defendant stated tha t he “wo ndere d wha t it felt

like if someone got cut.” Although it appears clear that the Defendant acted

alone in stabbing and killing the victim, we cannot conclude that the trial judge

erred in finding that the Defendant was a leader in the commission of an offense

involving two or more criminal actors.




                                         -4-
      The Defendant also points out that the trial judge found the Defendant was

not “remo rseful” a bout h is conduct and argues that the court improperly applied

this finding as a “non-s tatutory” en hance ment fa ctor. Although the trial court was

clearly concerned over the Defe ndant’s apparent lack of remorse for killing the

victim, we believe the record is clear that th e court did not apply his lack of

remorse as an enhancement factor. The court specifically found and a pplied only

the four enhancement factors stated above.



      The Defe ndan t also a rgues that the trial cou rt erred in failing to find and

apply the following mitigating factors provided by Tenn. Code Ann. § 40-35-113:

the Defendant acted under strong provocation; substantial grounds exist tending

to excuse or justify the Defendant’s criminal conduct, though failing to establish

a defense; the Defendant, because of youth or old age, lacked substantia l

judgment in committing the offense; the Defendant, although guilty of the crime,

committed the offense unde r such unus ual circ ums tance s that it is unlikely that

a sustaine d intent to vio late the law motivate d the crim inal cond uct; and th e

Defendant expressed remorse, cooperated with the authorities and withdrew from

the fight once his “attack ers” left him alon e. See Tenn. Code Ann. § 40-35-113

(2), (3), (6), (11), (13). Based on our review of this record, we simply cannot

conclude that the trial judge erred by not finding or applying any of these

mitigating factors.



      W e are not persuaded that the trial judge erred or abused his disc retion in

setting the Defendant’s sentence in the middle of the applicable range. The

judgment of the trial court is accordingly affirmed.




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                         ______________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JERRY L. SMITH, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




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