         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 23, 2002

                    STATE OF TENNESSEE v. MARK A. BALES

                 Direct Appeal from the Criminal Court for Sullivan County
                            No. S42,269    R. Jerry Beck, Judge



                                  No. E2001-01075-CCA-R3-CD
                                          May 9, 2003

The defendant, Mark Anthony Bales, pled guilty to attempted second degree murder. After accepting
his plea, the trial court sentenced the defendant to serve eleven years as a Range I standard offender.
The defendant now appeals his sentence arguing that the trial court erred (1) by finding that when
the defendant committed the instant crime, he treated the victim with exceptional cruelty; (2) by
giving insufficient weight to two applicable mitigating factors, the defendant’s excellent social
history and his lack of a criminal record; and (3) by sentencing the defendant to a term of years that
made him ineligible for consideration for an alternative sentence. After a thorough review of the
record, we find that none of the defendant’s allegations merit relief and accordingly affirm his
sentence.


      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE G. RILEY,
JJ., joined.

Bob McD. Green, Johnson City, Tennessee, for appellant, Mark A. Bales.

Paul G. Summers, Attorney General & Reporter; Peter M. Coughlan, Assistant Attorney General;
Greeley Wells, District Attorney General; and Todd Martin, Assistant District Attorney General, for
appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

       The defendant is divorced from Sharon Houchins, who is currently married to the victim,
Emory Houchins. The defendant and Ms. Houchins have a daughter from their marriage. After the
defendant and Ms. Houchins divorced, Ms. Houchins was given primary custody of the defendant’s
daughter, who, at the time of this incident, lived in a house with Ms. Houchins, the victim, and the
children from Ms. Houchins’s marriage to the victim. The defendant’s daughter stayed with the
defendant in his home every other weekend.

         According to the victim, the defendant called the victim’s home late one evening, after 9:00
p.m., asking to speak to his daughter. The defendant spoke with his daughter for some time, and
then Mr. Houchins told her to end the conversation because of the late hour. When she became
visibly upset while on the phone, Mr. Houchins took the telephone from her and explained to the
defendant that he should not be calling at this late hour. Mr. Houchins further explained to the
defendant that the defendant should not be mad at his daughter; she had ended their telephone
conversation at his instruction. According to Mr. Houchins, the defendant responded to him angrily,
telling Houchins that he (the defendant) would speak with his daughter anytime he wanted to speak
with her. After the defendant hung up, Mr. Houchins decided to add the defendant’s number to a
list of phone numbers that were blocked from the Houchins phone number. Although Mr. Houchins
claimed that he routinely activated the phone block at night and turned it off in the morning, he
admitted that due to his busy schedule during the time period before the incident at issue, he may
have failed to turn off the phone block.

        On the night in question, the defendant, who had discovered that his home phone number had
been blocked from reaching the Houchins’ home phone number, drove to the Houchins’ home and
spoke with his ex-wife. According to the defendant, Ms. Houchins denied any knowledge of the
phone block. After leaving the Houchins’ home, the defendant encountered Mr. Houchins, who was
traveling home in his automobile. The defendant followed Mr. Houchins and flashed his headlights
at Houchins. Mr. Houchins, believing that he was being signaled to pull over by a law enforcement
official, rolled down his window and pulled over to the side of the road. The defendant then
approached Mr. Houchins’ vehicle and asked him why he had blocked the defendant’s telephone
number. Mr. Houchins began to answer the defendant’s question when the defendant pointed a
pistol at him and told him, “[y]ou’re a dead man.” The defendant then began shooting at Houchins
through the open car door window. Mr. Houchins recounted that the defendant attempted to shoot
him five times. The first bullet that the defendant fired hit Houchins in his left side and lodged itself
a millimeter and a half from his spine, where it still remained at the time of the sentencing hearing.
The second bullet entered Mr. Houchins on the left lower portion of his rib cage, traveling upward
and injuring his spleen, which was later surgically removed. The third bullet missed the victim, who
had dodged its path, and entered the upper portion of the driver’s seat. Mr. Houchins then managed
to grapple with the defendant over the pistol and was able to reposition the pistol, resulting in the
fourth shot missing a direct hit to Houchins and instead hitting his ankle. The victim required twelve
stitches in his ankle to repair the wound. As the defendant attempted to fire a fifth shot, Mr.
Houchins was able to prevent the defendant from firing the pistol by placing his finger “between the
trigger.” Houchins required six stitches in his finger to repair the resulting injury. After the
defendant attempted to fire this fifth shot, Mr. Houchins rolled up his car window, put his car in
drive, and began to pull away. As a result, the defendant was required to drop his pistol into the
victim’s car in order to pull his hands through the window opening. Mr. Houchins then drove home,
where Ms. Houchins called 911 and had the victim transported to a hospital.



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       As aforementioned, the defendant pled guilty to attempted second degree murder. His plea
agreement left the determination regarding the length of his sentence to the discretion of the trial
court. The trial court held a sentencing hearing to determine the length of the defendant’s sentence
and whether the defendant is a suitable candidate for alternative sentencing.

        At the defendant’s sentencing hearing, Mr. Houchins testified for the state and recounted the
incidents as set forth above. A police officer who investigated the incident also testified and reported
that the evidence indicated that the defendant attempted to fire his pistol as many as seven times.
Additionally, the defendant testified on his own behalf. While testifying, the defendant read a
written statement that he had prepared in advance. In his statement, he expressed remorse that he
committed the instant crime. He also spoke of his immense love for his daughter and his extensive
health problems. Several other witnesses, including several good friends of the defendant’s, his
former co-workers, and his brother testified on the defendant’s behalf. They all agreed that they
believe that the defendant has a peaceable character, that this incident was extremely out of
character, that the defendant suffers from extensive and debilitating health problems, and that the
defendant loves his daughter very much. The trial court also admitted a letter written by one of the
defendant’s treating physicians. In this letter, the physician stated that the defendant suffered
extensively due to his various health problems. However, despite his obvious pain, the defendant
had never requested pain medication. The physician stated that it was his opinion that this stoicism
was unusual and evidenced strong character.

        In rebuttal to this proof regarding the defendant’s peaceable character, the state introduced
the testimony of Ms. Houchins. Ms. Houchins testified that after her divorce from the defendant,
some fourteen years ago, she was awarded custody of their daughter. However, on one occasion, the
defendant refused to relinquish custody of their daughter after his period of visitation had expired.
Ms. Houchins brought the matter before a court, and the court ordered the defendant to relinquish
custody of their daughter to Ms. Houchins. When Ms. Houchins, accompanied by her family
members, arrived at the defendant’s residence and attempted to regain custody of their daughter, the
defendant and his father assaulted Ms. Houchins’s father. Ms. Houchins’s father was unable to
corroborate this testimony as he was deceased at the time of this hearing.

        After hearing this proof, the trial court found that enhancement factor (5), that the defendant
treated the victim with exceptional cruelty during the commission of the offense; factor (6), that the
victim suffered exceptional injury as a result of the defendant’s actions; and factor (9), that the
defendant used a firearm in the commission of the offense, were all applicable to the defendant’s
sentence. See Tenn. Code Ann. § 40-35-114(5), (6), (9) (1997).1 The trial court also found that the
victim’s impact statement was relevant to support the finding of the applicability of enhancement
factors (5) and (6). The trial court then determined that it would give some weight to several of the

         1
                   The 2002 A mendme nt to Tenn essee Co de Annotated section 40-35 -114 ad ds a new sub-section (1)
to the statute and accordingly redesignated former sub-sections (1) through (22) as (2) through (23 ). See Tenn. Code
Ann. § 40-35-114 (Supp. 2002). Thus, the current codification of this statute designates the sub-sections (5), (6), and
(9), discussed infra, as sub-se ctions (6 ), (7), and (10). See id. We will be using the enumeration applicable at the time
of the sentencing hearing as co dified in the 19 97 edition o f Ten nessee Code A nnotated. See id. § 40-35-114 (1997).

                                                           -3-
defendant’s proposed mitigating factors. Specifically, the court found that the defendant’s expressed
remorse and his present medical condition were applicable mitigating factors but that it would afford
them slight weight. The court also found that the defendant’s lack of a criminal record and his
reputation as a good citizen in his community were applicable mitigating factors. The trial court
ultimately concluded that the applicable enhancement factors far outweighed the applicable
mitigating factors, finding that the weight of the enhancement factors was sufficient to elevate the
defendant’s sentence to the maximum within his sentencing range, twelve years, and that the
mitigating factors merited reducing that sentence by one year, resulting in an eleven-year sentence.

        The defendant now appeals this sentence on the basis that the trial court applied an
inapplicable enhancement factor to his sentence and gave insufficient weight to two applicable
mitigating factors and that the resulting excessive sentence made him ineligible for consideration for
an alternative sentence. For the reasons set forth below, we find that the trial court properly
sentenced the defendant and therefore affirm the trial court’s judgment.


                                      Sentencing Challenge

        As mentioned supra, the defendant challenges the trial court’s imposition of an eleven-year
sentence for his attempted second degree murder conviction as excessive. “When reviewing
sentencing issues . . . , the appellate court shall conduct a de novo review on the record of such
issues. Such review shall be conducted with a presumption that the determinations made by the
court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). “However, the
presumption of correctness which accompanies the trial court’s action is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In
conducting our review, we must consider the defendant’s potential for rehabilitation, the trial and
sentencing hearing evidence, the pre-sentence report, the sentencing principles, sentencing
alternative arguments, the nature and character of the offense, the enhancing and mitigating factors,
and the defendant’s statements. See Tenn. Code Ann. §§ 40-35-103(5), -210(b); Ashby, 823
S.W.2d at 169. We are to also recognize that the defendant bears “the burden of demonstrating that
the sentence is improper.” Ashby, 823 S.W.2d at 169.

        Turning more specifically to the facts of this case, the defendant was convicted of attempted
second degree murder. Since this offense is a Class B felony, the starting point for sentencing
determinations is the minimum sentence within the defendant’s sentencing range. See Tenn. Code
Ann. § 40-35-210(c). Undisputably, this defendant was a Range I offender; thus, the defendant’s
sentencing range is eight to twelve years. See id. § 40-35-112(a)(2). Accordingly, the trial court was
required to start with the defendant’s presumptive sentence, eight years, increase his sentence by
applying any relevant enhancement factors, and then reduce his sentence by applying any relevant
mitigating factors. See id. § 40-35-210(e). No particular weight for each factor is prescribed by the
statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App. 1995). The weight given



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to each factor is left to the discretion of the trial court as long as it comports with the sentencing
principles and purposes of our code and as long as its findings are supported by the record. Id.

         We first note that the record reveals that the trial court carefully considered the sentencing
principles as well as all relevant facts and circumstances when sentencing the defendant.
Accordingly, we will review the trial court’s sentence determination de novo with a presumption that
the trial court’s sentencing determinations are correct. See Tenn. Code Ann. § 40-35-401(d); Ashby,
823 S.W.2d at 169.

        The defendant challenges the applicability of enhancement factor (5) to his sentence. He
claims that this enhancement factor is inapplicable to the facts of his case because there is no
evidence to demonstrate that he treated the victim with exceptional cruelty during the commission
of his offense, i.e. “cruelty above that needed to effectuate the crime.” State v. John Dennis Rushing,
No. 01C01-9501-CR-00020, 1996 WL 63920, at *11 (Tenn. Crim. App. at Nashville, Feb. 13, 1996).
The state counters that the trial court properly applied this factor to the defendant’s sentence, arguing
that while exceptional cruelty is often found in cases involving torture of the victim, courts have
routinely applied the application of this enhancement factor in cases involving multiple gunshot
wounds.

         Treatment of one’s victim with “exceptional cruelty” is not an element of attempted second
degree murder. See Tenn. Code. Ann. §§ 39-13-210; 39-12-101. Therefore, this enhancement factor
is applicable to the offense of attempted second degree murder. As the defendant correctly notes,
exceptional cruelty is “usually found in cases of abuse or torture.” State v. Williams, 920 S.W.2d
247, 259 (Tenn. Crim. App. 1995). Moreover, our supreme court recently held that before a trial
court may apply enhancement factor (5) to increase a defendant’s sentence, the facts of the case must
support a “finding of cruelty under the statute ‘over and above’ what is required to sustain a
conviction for [the] offense.” State v. Arnett, 49 S.W.3d 250, 258-59 (Tenn. 2001). However, as the
state correctly argues, this Court has held that the infliction of multiple wounds is sufficient to
support the application of enhancement factor (5). See, e.g., State v. Darrin Bryant, No. W2000-
01136-CCA-R3-CD, 2001 WL 792616, at *7 (Tenn. Crim. App. at Jackson, July 11, 2001) (finding
that the defendant’s infliction of “up to” eight stab wounds on the victim, who was asleep at the time
of the attack, was sufficient to warrant the application of enhancement factor (5) to the defendant’s
conviction for attempted first degree murder); State v. David Scarborough, No. E1998-00931-CCA-
R3-CD, 2001 WL 775603, at *22 (Tenn. Crim. App. at Knoxville, July 11, 2001) (finding that the
defendant’s infliction of five and seven gun shot wounds on his two victims, who were living at the
time they received the wounds, was sufficient to warrant the application of enhancement factor (5)
to the defendant’s conviction for aggravated burglary); State v. Cedric E. Stampley, No. 02-C-01-
9409-CR-00208, 1996 WL 465557, at *8 (Tenn. Crim. App. at Jackson, Aug. 16, 1996) (finding that
the trial court appropriately applied enhancement factor (5) to the defendant’s attempted first degree
murder conviction because Stampley shot his unarmed victim seven times, and “the infliction of
numerous wounds satisfies [the application of enhancement] factor [(5)]” and citing, as support for
this proposition, cases in which this Court has found that the infliction of multiple wounds was
sufficient to trigger the application of this factor: State v. William R. Waters, Jr., No. 01C01-9404-


                                                  -5-
CR-00145, 1994 WL 714246 (Tenn. Crim. App. at Nashville, Dec. 22, 1994); State v. Mallory
Michael Roberts, No. 01C01-9309-CR-00295, 1994 WL 406166 (Tenn. Crim. App. at Nashville,
Aug. 4, 1994); State v. Terry Joseph Million, No. 01C01-9303-CC-00100, 1993 WL 488323 (Tenn.
Crim. App. at Nashville, Nov. 24, 1993)).

        Affording the trial court’s sentence determination a presumption of correctness, we find that
the trial court appropriately applied enhancement factor (5) to the defendant’s conviction for
attempted second degree murder. As the trial court stated on the record, the defendant waylaid the
victim in his neighborhood when the victim was traveling to his nearby home. In response to the
defendant’s flashing automobile lights, the victim pulled over to the side of the road and rolled down
his driver’s side window. Shortly thereafter, the defendant told the victim that he was a “dead man”
and began firing his pistol into the passenger compartment of the automobile. The defendant
attempted to shoot the victim as many as seven times and was only thwarted in his aim of killing the
victim by the victim’s evasive maneuvering. As in Stampley, we find that the defendant’s firing of
multiple gunshots on an unarmed victim is sufficient to support the trial court’s application of
enhancement factor (5) to the defendant’s attempted second degree murder conviction.

        The defendant contests the lack of weight that the trial court afforded to two applied
mitigating factors, the defendant’s excellent social history and his lack of a criminal record, both of
which the trial court applied to the defendant’s conviction pursuant to the catch-all mitigating factor,
factor (13). See Tenn. Code Ann. § 40-35-113(13). However, the weight given to each enhancement
or mitigating factor is within the discretion of the trial court, provided that the trial court has
complied with the purposes and principles of the Sentencing Act and provided that its findings are
supported by the record. See State v. Zonge, 973 S.W.2d 250, 259 (Tenn. Crim. App. 1997);
Santiago, 914 S.W.2d at 125. As discussed supra, we find that the trial court properly considered
the principles of the Sentencing Act and all relevant facts and circumstances of the defendant’s case
and that the court’s findings are supported by the record. Accordingly, we will not second guess the
trial court’s assignment of slight weight to these two mitigating factors.

        In summary, because we find that the trial court properly applied enhancement factor (5) to
the defendant’s conviction, because the defendant does not challenge the applicability of the other
enhancement factors, and because we decline to second guess the trial court’s assignment of slight
weight to the two mitigating factors challenged by the defendant, we find that the defendant’s
resulting eleven-year sentence is appropriate. Therefore, despite the defendant’s argument to the
contrary, we find that the defendant was appropriately sentenced.




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                                           Conclusion

      For the foregoing reasons, we find that the defendant’s sentencing challenge lacks merit.
Accordingly, the judgment of the trial court is AFFIRMED.




                                                    ___________________________________
                                                    JERRY L. SMITH, JUDGE




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