         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  January 15, 2002 Session

               STATE OF TENNESSEE v. MICHAEL W. COOPER

                    Appeal from the Criminal Court for Davidson County
                       No. 2000-B-655    Cheryl Blackburn, Judge



                    No. M2001-00440-CCA-R3-CD - Filed March 6, 2002


The Defendant, Michael W. Cooper, pled guilty to one count of aggravated burglary and one count
of aggravated assault. His plea agreement provided that he would be sentenced as a Range II
offender; however, the length and manner of service of his sentences were left for the trial court’s
determination. After a hearing, the trial court sentenced the Defendant to nine years incarceration
for each offense, to be served consecutively. The Defendant now appeals, contending that the trial
court misapplied an enhancement factor; that the trial court erred in sentencing him to equivalent
terms for each offense in spite of finding fewer enhancement factors applicable to the aggravated
assault; and that the trial court erred in ordering his sentences to run consecutively. We affirm the
judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER , JJ., joined.

Zack Griffith, Nashville, Tennessee, for the appellant, Michael Cooper.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

        The facts adduced at the sentencing hearing established that the Defendant arrived at the
victims’ home at approximately eleven o’clock p.m. in a car driven by Michael E. Garrett. Garrett
had told the Defendant that the victims had drugs. The Defendant went to the door of the residence
wearing a mask and carrying a gun. Hearing a noise at the door, Christy Keith sent Jeffrey Keith to
investigate. Jeffrey opened the door and beheld the Defendant standing there. The Defendant stated,
“I’m coming in,” and a struggle ensued, during which the Defendant’s gun fired. The noise awoke
Christy’s eight-year-old daughter, who was also in the residence. The Defendant put his gun in
Jeffrey’s stomach and threatened to shoot him. Eventually Jeffrey subdued the Defendant and the
Defendant stated that, if let go, he would leave. Jeffrey released the Defendant and he left, returning
to the car in which he arrived. A high speed chase by the police ensued, with the Defendant and
Garrett eventually being apprehended. Both victims testified that they had never before seen the
Defendant, and Christy further testified that they had never sold drugs.

        The Defendant testified that he had “always been a pot smoker” and that, several months
before this incident, began using cocaine. Due to his cocaine usage, he owed some people some
money, and feared for his life as a result. He stated that he went to the victims’ residence intending
to recover drugs and/or money.

       The trial court applied four enhancement factors to both offenses:
               (a) The defendant has a previous history of criminal convictions or
               criminal behavior in addition to those necessary to establish the
               appropriate range;

               (b) The defendant was a leader in the commission of an offense
               involving two (2) or more criminal actors;

               (c) The defendant has a previous history of unwillingness to comply
               with the conditions of a sentence involving release in the community;
               [and]

               (d) The defendant had no hesitation about committing a crime when
               the risk to human life was high.

Tenn. Code Ann. § 40-35-114(1), (2), (8), (10). With respect to the aggravated burglary conviction,
the trial court also applied as an enhancement factor that the Defendant employed a firearm during
the commission of the offense. See id. § 40-35-114(9). The court found as a mitigating factor that
the Defendant pled guilty, but gave this factor no weight because the Defendant failed to appear for
his initial sentencing hearing.

        The Defendant initially contends that the trial court erred in finding that he was a leader in
the commission of the offenses. He argues that the proof demonstrated that the driver of the car,
Garrett, knew nothing about the Defendant’s intent to burglarize the victims’ home, and did not see
or know that the Defendant had the mask and gun. The Defendant testified at his sentencing hearing
that Garrett “was basically just a ride.”

       When an accused challenges the length, range, or 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 court are correct. See 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


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principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

         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 arguments 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
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        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 result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        We first note that the facts to establish an enhancement factor need be proven by only a
preponderance of the evidence. See State v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000). Moreover,
a finding that a defendant was a leader in the commission of an offense may be made irrespective
of whether another alleged perpetrator is convicted, acquitted, or even charged with the offense. See
State v. James Hill, Jr., No. W2000-02194-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 566, *10
(Jackson, July 20, 2001). Rather, the State need prove only that the offense involved two or more
criminal actors, and that the Defendant was a leader in the commission of the offense. See Tenn.
Code Ann. § 40-35-114(2).

        Here, the Defendant testified that Garrett told him that there were drugs at the residence.
Garrett then drove the Defendant to the residence, waited while the Defendant was inside, and then
drove the Defendant away, engaging in a high speed chase as the police sought to pull the vehicle
over. Clearly, Garrett knew that the Defendant went to the residence for an illegal purpose, and the
proof supports an inference that the Defendant told Garrett to take him there and wait for him. In
sum, we think the State met its burden of proving the applicability of this factor, and that the trial
court did not err in relying upon it in sentencing the Defendant. This issue is without merit.

       The Defendant next challenges the length of his aggravated assault sentence, arguing that
because fewer enhancement factors apply to that offense, the sentence should be less than, rather
than equal to, the sentence he received for his aggravated burglary conviction. While defense
counsel argued this point very persuasively during oral argument, we decline to reduce the
Defendant’s aggravated assault sentence on this basis.




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        Both the Defendant’s aggravated assault and aggravated burglary convictions are Class C
felonies. See Tenn. Code Ann. §§ 39-13-102(d); 39-14-403(b). The presumptive sentence for a
Class C felony is the minimum in the relevant range, increased by applicable enhancement factors,
and decreased by applicable mitigating factors. See id. § 40-35-210(c), (e). A Range II sentence for
a Class C felony is six to ten years. See id. § 40-35-112(b)(3). Thus, the trial court enhanced each
of the Defendant’s sentences from the minimum of six years to nine years, one year short of the
maximum.

         As this Court has previously recognized, a defendant’s sentence “is not determined by the
mathematical process of adding the sum total of enhancing factors present then subtracting from this
figure the mitigating factors present for a net number of years.” State v. Boggs, 932 S.W.2d 467,
475 (Tenn. Crim. App. 1996). Rather, the weight to be afforded applicable enhancement factors is
left to the sound discretion of the trial court. Id. Here, the trial court weighed the Defendant’s prior
criminal history the most heavily. That enhancement factor applied equally to both convictions.
While we appreciate the Defendant’s objection to the apparent inconsistency between his two
sentences, we reiterate that the sentencing decision is not a purely mathematical one. The trial judge
complied with the purposes and principles of the Sentencing Act and we see no abuse of discretion
in her sentencing determination. Accordingly, the Defendant is entitled to no relief on this issue.

        Finally, the Defendant contends that the trial court erred in ordering his sentences to run
consecutively. The trial court based this decision on a finding that the Defendant “is an offender
whose record of criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2). The record
supports this finding. The Defendant’s prior record includes multiple burglary convictions as well
as various drug convictions, an assault conviction, and at least one weapons conviction. Although
many of these convictions are misdemeanors and/or were committed a number of years ago, we find
unpersuasive the Defendant’s argument that his record is therefore insufficient to render him eligible
for consecutive sentences. The Defendant’s record meets one of the criteria determined by our
legislature to be appropriate for the imposition of consecutive sentences. Moreover, the effective
eighteen year sentence is “justly deserved in relation to the seriousness of the offense,” Tenn. Code.
Ann. § 40-35-102(1), and is “no greater than that deserved for the offense[s] committed.” Id. § 40-
35-103(2). See also State v. Lane, 3 S.W.3d 456, 460 (Tenn. 1999). This Defendant forcibly entered
the home of a couple and their young child, late at night, wearing a mask and carrying a gun. He
threatened to shoot one of the victims, and did, in fact, fire his gun. Home invasions of this sort are
extremely serious crimes and deserve appropriate sentences. Accordingly, we find no error in the
trial court’s imposition of consecutive sentences, and this issue is therefore without merit.

        The judgment of the trial court is affirmed.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE

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