          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                            JANUARY SESSION, 1999          May 6, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TE NNE SSE E,              )   C.C.A. NO. 01C01-9801-CR-00037
                                    )
            Appellee,               )   DAVIDSON COUNTY
                                    )
V.                                  )   HON . CHE RYL BLAC KBU RN,
                                    )   JUDGE
GEO RGE DEN NIS FIE LDS ,           )
                                    )   (SOL ICITATIO N TO COM MIT
            Appe llant.             )   (FIRST DEGREE MURDER)



FOR THE APPELLANT:                      FOR THE APPELLEE:

KARL DEAN                               JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

JEFFREY A. DeVASHER                     TIMOTHY BEHAN
Assistant Public Defender               Assistant Attorney General
(On A ppea l)                           2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
RICHARD TENNENT                         Nashville, TN 37243
Assistant Public Defender
1202 Stahlman Building                  ELIZABE TH T. RY AN
Nashville, TN 37201                     Assistant Attorney General
(At Tr ial)
                                        VICTO R S. JO HNS ON, III
                                        District Attorney General

                                        ROGER MOORE
                                        Assistant District Attorney General
                                        Washington Square, Suite 500
                                        222 2nd Avenue North
                                        Nashville, TN 37201-1649



OPINION FILED ________________________

AFFIRMED AS MODIFIED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Defendant, George Dennis Field s, app eals a s of righ t followin g his

sentencing in the Da vidson C ounty C riminal C ourt.           Defe ndant p led guilty to

solicitation to commit first degree murder. No agreement was determined as to the

length or ma nner o f service of the sentence. The trial court sentenced Defendant

as a Range I Standard Offender to eleven (11) years of incarceration. Defendant

filed a timely notice of appeal. Subsequently, Defendant timely filed a motion for

reduction of his sentence pursuant to Rule 35(b) of the Tennessee Rules of Criminal

Procedure. Following the denial of this m otion, D efend ant filed a sep arate a ppea l.

Both appeals were consolidated by order of this court. We affirm the judgment of

the trial cou rt.



       When an accused challenges the length, range or the mann er 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. Tenn. Code

Ann. § 40-35-401(d). This presumption is “conditioned upon the affirm ative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



       In conducting a de novo review of a sentence, this court must consider: (a) the

evidence, if any, received at the trial and the 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 enha ncem ent factors ; (f) any statement that the defendant mad e on h is

own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

                                             -2-
Tenn. Code An n. §§ 40 -35-102 , -103, an d -210; see State v. S mith, 735 S.W .2d

859, 86 3 (Ten n. Crim. A pp. 198 7).



        The State summarized its proof at the guilty plea hearing as follows:

      . . . [P]rior to Aug ust 29, 1996, Deputy Mike Watson of the Sumner
      Coun ty Sher iff’s Dep artme nt rece ived info rmatio n from an informant, an
      individu al, actually, it was Butch V aughn , to the effect that he had been
      contacted or had conve rsation with this Defendant about a possib le hit;
      that is, a solicitation to commit murder, the victim being a Mr. Paul
      Martin. Deputy Watson contacted agents of the Tennessee Bureau of
      Investigation and Age nt Richard Stout, who is present here today, was
      assigned to the case.

      They arranged for another agent, Joe Copeland, to play the part of a hit
      man, and arrangements w ere mad e to meet w ith the Defend ant, Mr.
      Fields, on August 29, 1996; that meeting took place at the Knight’s Inn
      on Trinity Lane, here in Davidson County, Tennessee . . and the
      meeting was videotap ed. Presen t in the room we re the undercover
      agent, Mr. Copeland, Butch Vaughn, and the Defendant, and during the
      course of the recording, the discussion w as mad e to have Mr. Martin
      killed. Financ es were discuss ed. Mr. Fields left the first meeting and
      returned at approximately 12:30 p.m., and again, all this is on
      videotape; counted out or paid a thousand dollars ($1,000.00) as down
      payment on the contract with Mr. Copeland, who, again, was posing as
      the hit man. Mr. Fields was arrested at that time.



      Videotapes and audiotapes of telephone conversations between the

Defendant, Copeland, and Vaughn were also admitted into evidence.



      The Defendant’s proof at the sentencing hearing consisted of several

character witnesses. Leslie Cunningham Greer testified that she had known the

Defendant for twenty (20) years, first meeting him when he wa s a po lice office r in

Fairview. She d escrib ed the Defe ndan t as a g ood frie nd an d fathe r, howe ver he did

become depressed in the summer of 1996 due to his marital problems. Defendant

was distressed because his wife had left him for another man and had taken their

son with her. As a result, the Defendant was not sleeping or eating, and he was not

                                           -3-
thinking rationally. Recently, Greer had seen an im prove men t in the D efend ant’s

mental health.



      Cathy DeM artelli met the Defendant in 1981 while he served as a police

officer. DeMartelli is legally blind and she had been assisted on several occasions

by the De fenda nt. She desc ribed th e relatio nship be tween the De fenda nt and his

son as “about the closest father and son I have seen.” DeMartelli did not believe

Defenda nt would brea k the law unless the situation was “life or de ath.”



      Linda Mallory stated she had known the Defendant for twenty-five (25) years

through their work in law enforcement. Defendant was “one of the best” police

officers she had ever known.        Mallory recalled that the victim, Paul Martin,

telephoned the Belle Meade Police Department on one occasion while she was

working as dispatcher. Martin advised her to tell Defe ndan t that M artin wa s on h is

way to the p olice sta tion and that he intended to kill the Defendant by “putting a

bullet right between his eyes.” Mallory further described some recordings of

telephone conversations made by the Defendant of calls made by Martin to him.

During these phone calls, Martin told Defendant that, “I’ve got your wife. I’ve got

your child. I’m going to g et your hom e and I’m go ing to get your job.”



      Mallory also described the depression Defendant suffered following the

separation from his family, losing forty (40) to fifty (50) pounds during the summer

of 1996. While the Defendant stated that he hated Martin and wished he were dead,

she believed the Defendant “just broke” and “lost it mentally” when he solicited

someone to kill Martin.




                                          -4-
       Jo Ann Sloan, next-door neighbor to the Defendant, described Defendant as

a good neighbor and noted an incident wherein the Defendant had captured a man

who was burglarizing her home. Sloan also knows the victim, Paul Martin, and she

described him as someone who uses and s ells drugs. Sloan notified Defendant of

Martin’s d rug involve ment w hen his w ife and ch ild move d in with M artin.



       Edward DeM artelli met th e Def enda nt while he served as a police officer and

they eventu ally became friends . He de scribe d vario us ac ts of kin dnes s towa rd his

mother by Defe ndant. While Defendant was devastated by the loss of his job as a

police officer followin g his arres t, Defend ant had regaine d contro l of his life since he

reconciled with his wife.



       Defe ndan t’s wife, Deborah Fields, testified that they had been married for ten

(10) years and that he was “a very good husband.” However, they did encounter

marital difficulties in the spring of 1996, leading to her moving into the home of Paul

Martin. Martin was providing Deborah Fields with marijuana. The Defendant was

only allowed to see his son on one (1) occasion between late June and August 29,

1996. Fields overh eard M artin advise the Defendant on several occasions over the

telephone that he had taken the Defen dant’s wife and so n and w as plann ing to take

his house and job as well. She knew that Defendant was emotionally devastated by

losing her and their son during tha t summ er.



       Deborah Fields testified that she is not able to work outside of the home as

she cares for her invalid stepfather, and that Defendant must work to support them

all. Since their recon ciliation, Ma rtin has co ntinued to call her an d threate ned to

have the Defendant imprisoned because she left Martin.                Furthermore, if the

                                             -5-
Defendant was n ot imp risone d, Ma rtin advised her that he would “take care” of the

Defen dant him self.



       Defendant testified that at the time of the offense, he hated the victim because

the victim h ad tak en eve rything away fr om h im in life that was importa nt. Durin g this

period he wished Martin were dead, and he lost more than sixty (60) pounds.

Defendant met Butch Vaughn while Vaughn was renovating a house in Belle Meade.

He told Va ughn abou t his m arital pro blem s and aske d Vau ghn fo r assis tance in

discovering where Martin was selling drugs on Dickerson Road. Two (2) months

later, Vaughn called Defendant and stated, “I’ve got someone to take care of your

problem .” While Defendant claimed he thought this meant that Vaughn had located

a confid ential in forma nt who would buy drugs from Martin, he acknowledged that he

later met with Vaughn a nd an u nderco ver agen t and ag reed to p ay $1,00 0.00 to

have Martin killed. Defendant admitted he was ashamed of his actions.



       Defendant was working for CSX Railroad at the time of the sentencing hearing

and worked as much as he was allowed. He served in the Vietnam War and was

injured during that time. Defendant requested alternative sentencing so that he

could be a father to his son and because his status as a former police officer

subjected him to possible physical attacks by other inmates.



       The trial court sentenced Defendant to serve eleven (11) years in the

Tennessee Depa rtment o f Correc tion. After considering each relevant sentencing

factor, including statutory law, the facts and circumstances of the case, the

presentence report and arguments as to sentencing alternatives, the trial court went

through the applicable mitigating and enhancem ent factors. First, the trial court

                                            -6-
found that enhancement factor (1) applied as Defe ndant had a previous history of

criminal behavior in addition to that necessary to esta blish his se ntencing range.

Tenn. Code Ann. § 40-35-114(1). The trial court base d this u pon D efend ant’s

admission on the audiotapes wherein D efenda nt describ ed the figh t he had with

Martin while Ma rtin asserte d that Defendant held a gun to his head. In addition,

recordings of later telephone conversations Defendant had after he was arreste d in

this case and was released on bond demonstrated that he was still seeking to have

Martin killed. Also, there is testimony in the record by the investigating TBI agent

that Defendant desired to have Butch Vaughn, the original informant, killed after

Defen dant’s arre st.



         The trial court found that factor (9) applied because Defendant possessed a

handgun during the commission of his offense. The trial court also noted that the

Defendant discussed having another handgun which he offered to use as part of the

payment for the contract to kill Mr. Martin . In addition to his verbal admonition that

he was carrying his police gun, the gun is evident in the videotape showing

Defendant soliciting the murder of Paul Martin. Finally, the trial court applied factor

(15) in that the Defendant abused a position of public or private trust or used a

special skill in a manner that significantly facilitated the commission or the fulfillment

of the offense. The tr ial cou rt base d this a buse of trust u pon D efend ant’s status as

a police officer and relied upon State v. Dockery, 917 S.W.2d 258 (Tenn. Crim. App.

1995) overruled on other grounds by State v. Troutman, 979 S.W.2d 271 (Tenn.

1998).



         In finding that enhancement factor (15) applied, the trial court stated as

follows:

                                            -7-
      Factor number fifteen does apply, in that the defendant abused a
      position of public or private trust, or used a special skill in a manner that
      signific antly facilitated the commission or the fulfillment of the offense.
      It is clear from the case law in this state that a police officer is in a
      position of public trust, and when he violates the law, this factor can be
      used, and I cite for authority, State v. Docke ry, which is fou nd at 917
      S.W.2d 258, a case that arose out of Davidson County where a police
      officer was charged with DUI, and clea rly, his position of public trust
      was used to enhance the sentence in that case. It can be used here.

      In addition, there was testimony replete throughout the sentencing
      hearing that the defendant was, I assume, a role model for young
      children as a police officer. Peo ple looke d up to him , trusted him . He
      was in a position of public trust. The public trusted him to have a
      weapon. He ha d it with h im wh en he solicited som eone to kill another
      person. Mr. Fields knew what th e proc edure s were . If there is
      violations of the law, if there are threats, if there are matters involving
      your family that can’t be handled, you go to the authorities. You hire
      lawyers. You call the police. You do not hire other people to kill other
      people , and facto r numb er fifteen do es app ly.

(Emph asis added ).



      The trial court reviewed the mitigating factors which Defendant asserted we re

applicable, but she found that the only one applicable was factor (13). The trial court

cited the De fenda nt’s service in the military, his heart condition, and the great deal

of supp ort he ha d from h is family as “catchall” m itigating facto rs which a pplied.



       The Defendant argues that the trial court erred in app lying factors (1), (9), and

(15) of Ten ness ee Co de An notate d sec tion 40-35-114. Defendant asserts that

factor (1), that the Defendant has a previous history of criminal convictions or

crimin al beh avior, is ty pically applied where a defendant has an extensive criminal

record. Also, De fendan t cites the ca se of State v. Mars hall, 870 S.W.2d 532, 541-42

(Tenn. Crim. App. 1993), for the proposition that an arrest or charge is not

considered evidence of the commission of the crime. While we agree that a mere

arrest is not evidence of proof of criminal behavior as stated in Mars hall and State


                                            -8-
v. Newsome, 798 S.W.2d 542, 543 (Tenn. Crim. App. 1990), there was more than

evidence of arrests as proof of Defenda nt’s crimin al beha vior.        In addition to

Defe ndan t’s own description of his assault upon the victim, audiotapes of telephone

conversations were als o entere d as pro of of Defendan t’s continued criminal behavior

in attempting to solicit someone to kill the victim. As aptly stated by a pane l of this

court, the rule in Marshall prohibits the use of arrest records to enhance a

defendant’s sentence, but in this case, however, the testimony of witnesses went

further than mere arrest records to demonstrate the Defendant’s prior criminal

behavior. See State v. Ted Norris , No. 0 3C0 1-960 6-CC -0021 2, slip op. at 5, Scott

Coun ty (Tenn . Crim. A pp., at Knoxville, Decem ber 9, 19 97), perm. app. denied

(Tenn. 19 98).



      Defendant further argues that factor (9), that the Defendant possessed or

employed a firearm during the commission of the offense, should not have been

applied by the trial court. He asserts that nothing in the record suggests that the gun

had any con nection to the offens e for which he was convicted . Defendant cites an

opinion by a pa nel of this court in which the court held that “the facts must show

some reasonable connection between the defendant’s conduct or state of mind and

the firearm” if the enhancement factor in questio n is to be a pplied. State v. John nie

M. Burns, No. 1, slip op. at 3, Ob ion County (T enn. Crim. A pp., at Jackson , January

6, 1988), perm. app. denied (Tenn. 1988). However, as the trial court noted, the

Defendant made reference to another handgun he owned which he offered to use

as partial paym ent for the solicitation of the m urder.



      A more recent opinion of this court held that factor (9) only requires a showing

that the defend ant possessed or employed a firearm . . . during the commission of

                                           -9-
the offense.” State v. Johnn y Wa yne Tillery, No. 01C01-9506-CC-00182, Giles

Coun ty (Tenn. Crim. A pp., at Na shville, Mar ch 30, 19 98), perm. app. denied (Tenn.

1998). In Tillery, the court reasoned that the weapons were confiscated from the

same room w here co caine w as foun d and th at, unde r those circ umsta nces, a

reaso nable connection between the defendant’s involvement in the commission of

crime and the posse ssion of th e firearm was m ade. Id., slip op at 19. S imilarly , a

reaso nable connection can be made from th e Def enda nt’s possession of a handgun

in his vehicle at the motel during the commission of the offense and he offered the

handgun as partial payment for the killing of Martin.



       The Defendant contends that the trial court’s application of factor (15), that he

abused a position of public trust or used a special skill in a m anne r that sig nifican tly

facilitated the commission or the fulfillment of an offense, was in error. There is no

question that Defendant, at the time of the offense, held a position of public trust as

a police officer. However, we respectfully disagree with the trial court’s analysis of

State v. Dockery, 917 S.W .2d at 262, and her application of fac tor (15). The

pertinent requirement for application of (15) is that the Defendant “abused” the

position of pub lic or priv ate trust. This re quires m ore proo f than the fa ct that a

defendant holds a position of public or private trust at the time he or she commits a

criminal offense. Dockery is not in conflict with this reasoning. In Dockery , our court

noted that the trial court had appropriately placed considerable we ight to

enhancement factor number (15), where the Defenda nt, an off-duty police officer had

“used his knowledge as a police officer to find a business willing to sell alcohol

beyond the time provided by law.” Dockery , at 262-6 3. (Emp hasis ad ded).




                                            -10-
      In her findings at the conclusion of the sentencing hearing, as quoted above,

the trial court did not specify any particular proof in the record showing how the

Defendant in this case used h is particular k nowled ge or skill as a police o fficer to

com mit this offense. W e have carefully reviewed the record, including the audio-

visual tape of the Defen dant co mm itting the offen se, and we are u nable to find

anythin g in the re cord w here th e State was a ble to p rove th at De fenda nt use d his

position as a police officer to commit the offense.



      Thus, we conclude that enhancement factor (15) is not applicable in this case.

In applyin g enh ance men t and m itigating factors in order to sentence Defendant, the

trial court stated as follows:


      I find, even though I found factors one, nine, and fifteen, I’m not going
      to give m uch w eight a t all to fac tor num ber nin e [pos sess ion or
      employment of firearm], some weight to factor number one; however,
      the greate st weig ht I’m g iving is to factor number fifteen, and that is the
      fact that Mr. Fields was a police officer who was in a positio n of pu blic
      trust. He was a role model to young children, and to suggest that he
      has      suffered enough is           just not appropriate under these
      circum stance s. . . .

      Though I have considered the factors, the enhancing factors or the
      mitigating factors, I’m going to enhance your sentence to twelve years.
      I’ll reduce it by one year to eleven years, based on your prior history.



It is obvious from the record th at the tria l court g ave co nside rable w eight to this

factor (15) in reaching a sentence of eleven (1 1) years. Howeve r, under our de novo

review, we disagree with the weight given to factor (9) by the trial court. The

Defendant anticipated using a firearm as part of the payment to a person who he

believed to be a professional killer. We feel that some additional weight should be

attached to enhancement factor (9). Therefore, taking into consideration that factor

(15) was erroneously applied, but that factor (9) was not given the appropriate weight

                                           -11-
by the trial c ourt, we modify the sentence to ten (10) years incarceration in the

Depa rtment o f Correc tion.



      In his motion for reduction of sentence, Defenda nt argu ed tha t there is

sufficient evidenc e that De fendan t was suffe ring from a mental condition that

signific antly reduced his culpability for the offense such that mitigating factor (8) of

Tennessee Code Annotated section 40-35-113 should have been applied. In the

language of the motion and at the hearing, the Defendant argued that this evidence

of a psychological test report prepared by a clinical psychologist was not discovered

until after the sentencing hearing. The report reflects a finding that the Defendant

suffers from “bo rderline psycho sis with antisocial tende ncies.”



      A sentence may only be modified under Rule 35(b) of the Tennessee Rules

of Criminal Proc edure by the trial cou rt where “an alteration of the sentence may be

proper in the interes ts of justice.” Tenn. R. Crim. P. 35(b), Committee Comments.

The trial court considered the written report of Joa n Schleiche r regarding the

Defe ndan t’s mental state, but it was not persuaded that this evidence co uld not have

been presented at the prior sentencing hearing. At the hearing, Defendant’s counsel

explained that Defendant’s daughter knew of the Defendant’s prior diagnosis

concerning his mental state and had provided the informatio n to prio r coun sel.

Howeve r, for some reason unknown to current counsel, this information was not

passed on to him by the former counsel.            In addition, while Defendant had

undergone a brief mental health evaluation prior to his sentencing hearing in which

Defendant was determined to have “inadequate personality,” Defendant did no t have

the monetary fun ds to secure further mental testing prior to the sentencing hearing.

The trial court found that the Defendant “had ample opportunity to obtain and

                                          -12-
present evidence of his mental state before the original sentencing hearing and that

the interests of justice do not require a red uction in senten ce in this case.”



       The standard of review for a Rule 35(b) motion is whether the trial court has

abused its discretion . State v. Irick, 861 S.W.2d 375, 376 (T enn. Crim. A pp. 1993).

There is nothing in the reco rd to indicate that the trial court a buse d its disc retion in

denying the motion to reduce the sentence pursuant to Rule 35(b). This issue is,

therefore , without m erit.



       Finally, we address the Defendant’s contention that he should have been

granted an alternative sentence.         Defendant argues that since the tria l court

misapplied three (3) enhancement factors, the sentence of eleven (11) years was

excessive and a sentence of eight (8) years is appropriate. A defendant who

receives a sentence a eight (8) years or less, except for certain offens es, is elig ible

for probation. Tenn. Code Ann. § 40-35 -303( a). Ho weve r, in spite of Def enda nt’s

arguments, this court has upheld the findings of the trial court as to the application

of two (2) enhancement factors, factors (1) and (9) of Tennessee Code Annotated

section 40-35-114. Even though Defendant’s sentence has been modified to ten

(10) years, he is still ineligible for any type of probatio n, including split confine ment,

which h e spec ifically reques ts on app eal. This is sue is with out me rit.



       The sentence of Defendant is modified to ten (10) years in the Tennessee

Depa rtment o f Correc tion.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



                                            -13-
CONCUR:



___________________________________
JOHN H. PEAY, Judge


___________________________________
DAVID H. WELLES , Judge




                               -14-
