          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                             FILED
                                 AT KNOXVILLE
                                                            October 18, 1999

                         SEPTEMBER 1999 SESSION            Cecil Crowson, Jr.
                                                          Appellate Court Clerk




STATE OF TENNESSEE,                   )
                                      )
             Appellee,                )    C.C.A. No. 03C01-9903-CC-00104
                                      )
vs.                                   )    Cocke County
                                      )
CARY CARL CAUGHRON,                   )    Hon. Rex Henry Ogle, Judge
                                      )
                    Appellant.        )    (4 cts. Felony Murder,
                                      )    Aggravated Arson,
                                           Attempted First Degree Murder)

FOR THE APPELLANT:                         FOR THE APPELLEE:
EDWARD CANTRELL MILLER                     PAUL G. SUMMERS
District Public Defender                   Attorney General & Reporter

SUSANNA LAWS-THOMAS                        GEORGIA BLYTHE FELNER
Asst. District Public Defender             Counsel for the State
102 Mims Ave.                              425 Fifth Ave. North
Newport, TN 37821-3614                     2d Floor, Cordell Hull Bldg.
                                           Nashville, TN 37243-0493

                                           ALFRED G. SCHMUTZER
                                           District Attorney General
                                           125 Court Ave., Rm. 301-E
                                           Sevierville, TN 37862




OPINION FILED:________________


AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE
                                      OPINION

              The defendant, Cary Carl Caughron, is before this court for the third

time for his convictions of four counts of felony murder, one count of aggravated

arson, and one count of attempted first degree murder. He received his convictions

at a jury trial in the Cocke County Circuit Court, and the jury set the punishment for

each of the murder convictions at life imprisonment. Thereafter, the trial court

imposed 25-year sentences for aggravated arson and attempted first degree

murder. The court ordered the life sentences each served consecutively to each

other, but concurrently to the aggravated arson and attempted first degree murder

convictions. The defendant appealed, and we affirmed the convictions but modified

the imposition of consecutive sentencing to concurrent service of all six sentences.

See State v. Cary Caughron, No. 03C01-9310-CR-00181 (Tenn. Crim. App.,

Knoxville, Sept. 20, 1994) (Caughron I). Thereafter, the supreme court granted

application to appeal for the purpose of remanding the case to this court for

reconsideration in light of State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995)

(consecutive sentencing). On remand, we found the record devoid of the necessary

findings for reconsideration of consecutive sentencing under Wilkerson. See State

v. Cary Caughron, No. 03C01-9310-CR-00181 (Tenn. Crim. App., Knoxville, Jan.

26, 1996) (Caughron II). Therefore, we remanded the matter to the trial court, which

conducted a hearing, made findings, and imposed the life sentences consecutively

to each other and concurrently to the other two sentences.               It is from this

determination that the defendant now appeals. Upon review of the record, the

briefs of the parties, and the applicable law, we affirm.



              The facts of this case are divulged in detail in this court’s first opinion.

See Caughron I, slip op. at 2-4. Briefly, the defendant set fire to a building which

contained several apartments because one of the tenants had taken a knife from

him, and he had been unable to get the woman to return the knife. Four individuals

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perished in the fire.



              At the resentencing hearing, the trial court received an updated

presentence report and heard the testimony of the defendant and his wife. Both

testified about the events of the night of the offenses. The defendant claimed he

had been unable for several years to recall the events of the night in question;

however, after he stopped taking medication and seeing psychiatric caregivers

about three years ago, his memory started to return.1 He claimed that he did not

intend to harm anyone; he only wanted to scare the woman who took his knife. He

testified he and his wife broke into the building and knocked on all the apartment

doors, but no one answered. They then tried to borrow a shotgun from an

acquaintance, but they were unsuccessful. They went home, and the defendant

siphoned some gasoline from one of their vehicles. The defendant’s wife drove

him to the apartment building; he went inside and poured the gas down in the

hallway and started the fire. They left the scene but returned later, and the

defendant was arrested.2 The defendant claimed his wife could have stopped him

that night. However, he believes she may have manipulated him that night so he

would end up in prison and she could be with her alleged lover.3



              In this appeal, the defendant questions whether the trial court properly

imposed consecutive sentences for each of the felony murder convictions. When

       1
        According to the defendant’s wife, she was the defendant’s legal
guardian for purposes of receiving his Social Security checks. Apparently, the
Social Security Administration had determined that the defendant was unable to
manage his own funds. The presentence report reveals that the Social Security
payments were for mental disability. The defendant has a family and personal
history of mental illness. The defendant has also struggled with alcohol and drug
abuse.
       2
        Contrary to the defendant’s testimony, his wife’s testimony minimized her
culpability for and knowledge of the defendant’s crimes.
       3
      The defendant’s wife denied she was having an affair at the time of the
defendant’s crimes.

                                          3
there is a challenge to the length, range, or manner of service of a sentence, it is

the duty of this court to conduct a de novo review of the record with a presumption

that the determinations made by the trial court are correct. Tenn. Code Ann. §40-

35-401(d) (1997). This presumption 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).

“The burden of showing that the sentence is improper is upon the appellant.” Id.

In the event the record fails to demonstrate the required consideration by the trial

court, review of the sentence is purely de novo. Id. If appellate review reflects the

trial court properly considered all relevant factors and its findings of fact are

adequately supported by the record, this court must affirm the sentence, “even if we

would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991).



              In the present case, the trial court considered the proper factors and

made appropriately supported factual findings on the record. Thus, our review is

de novo with the presumption of correctness.



              Consecutive sentencing may be imposed in the discretion of the trial

court upon a determination that one or more of the following criteria exist:

       (1)    The defendant is a professional criminal who has knowingly
              devoted himself to criminal acts as a major source of
              livelihood;

       (2)    The defendant is an offender whose record of criminal activity
              is extensive;

       (3)    The defendant is a dangerous mentally abnormal person so
              declared by a competent psychiatrist who concludes as a




                                           4
             result of an investigation prior to sentencing that the
             defendant's criminal conduct has been characterized by a
             pattern of repetitive or compulsive behavior with heedless
             indifference to consequences;

      (4)    The defendant is a dangerous offender whose behavior
             indicates little or no regard for human life, and no hesitation
             about committing a crime in which the risk to human life is
             high;

       (5)    The defendant is convicted of two (2) or more statutory
              offenses involving sexual abuse of a minor with consideration
              of the aggravating circumstances arising from the relationship
              between the defendant and victim or victims, the time span of
              defendant's undetected sexual activity, the nature and scope
              of the sexual acts and the extent of the residual, physical and
              mental damage to the victim or victims;

       (6)    The defendant is sentenced for an offense committed while on
              probation; or

       (7)    The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b) (1997). In State v. Wilkerson, 905 S.W.2d 933,

937-38 (Tenn. 1995), the supreme court imposed two additional requirements for

consecutive sentencing under the dangerous offender category -- the court must

find consecutive sentences are reasonably related to the severity of the offenses

committed and are necessary to protect the public from further criminal conduct.



              After receiving the evidence, the trial court found that the defendant

was a dangerous offender.4 See Tenn. Code Ann. § 40-25-115(b)(4) (1997).

Specifically, the court observed that the defendant knew he was creating a high risk

to human life, yet he chose to proceed. Further, the court found that he had never

presided over a case in which human life had been taken so needlessly. The court


      4
          The defendant argues in his brief that the trial court found,
inappropriately, that he was “a professional criminal who has knowingly devoted
[his] life to criminal acts as a major source of livelihood.” See Tenn. Code Ann. §
4035-115(b)(1) (1997). Although the court commented that the defendant was
“an offender whose record of criminal activity is extensive,” we view this
comment as part of its rationale in finding the defendant a dangerous offender.
In any event, even if the court had made an inappropriate finding of professional
criminality, consecutive sentencing is independently supported because the
defendant is a dangerous offender, as discussed below.

                                         5
observed, “If ever a case supports these factors in 40-35-115, if the facts in this

case don’t support it, then there is no person who deserves consecutive

sentencing.” With respect to the Wilkerson factors, the court found consecutive

sentences reasonably related to the severity of the offense in that the defendant set

fire to an occupied building on a “whim.” The court expressed “no doubt that under

similar circumstances” the defendant would commit the crimes again; accordingly,

the court found that society could not be protected from the defendant except

through extensive incarceration.



              Upon de novo review accompanied by the presumption of correctness,

we conclude that the trial court’s findings of fact are adequately supported by the

record. Moreover, the findings comport with the requirements of the Sentencing

Reform Act and Wilkerson. The trial court properly imposed consecutive sentences

for the defendant’s four felony murder convictions.



              In so holding, we have rejected the defendant’s argument that the

state’s failure to introduce any evidence at the resentencing hearing mandates a

reversal. The state introduced and the court received the presentence report at the

resentencing hearing. Additionally, the court properly considered the evidence

previously received by the court at trial, as well as the evidence the defendant

offered at the hearing, in making its assessment. See Tenn. Code Ann. § 40-35-

210(b) (Supp. 1998).




              We affirm the judgment of the trial court.




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                                  ________________________________
                                  JAMES CURWOOD WITT, JR., JUDGE


CONCUR:




_______________________________
GARY R. WADE, PRESIDING JUDGE



_______________________________
JERRY L. SMITH, JUDGE




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