          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE          FILED
                           SEPTEMBER 1998 SESSION
                                                      November 13, 1998

                                                    Cecil W. Crowson
                                                  Appellate Court Clerk
STATE OF TENNESSEE,              )   No. 01C01-9802-CC-00054
                                 )
      Appellee                   )
                                 )   Williamson County
vs.                              )
                                 )   Honorable Donald P. Harris, Judge
SANDY RENITA COBB,               )
                                 )   (Aggravated Burglary, Theft)
      Appellant.                 )



FOR THE APPELLANT:                   FOR THE APPELLEE:

JOHN M. HENDERSON                    JOHN KNOX WALKUP
District Public Defender             Attorney General & Reporter

EUGENE HONEA                         CLINTON J. MORGAN
Assistant Public Defender            Assistant Attorney General
407-C Main St.                       Criminal Justice Division
P.O. Box 68                          425 Fifth Ave. North
Franklin TN 37065-00068              2d Floor, Cordell Hull Bldg.
                                     Nashville, TN 37243-0493

                                     JOSEPH D. BAUGH, JR.
                                     District Attorney General

                                     DEREK K. SMITH
                                     Assistant District Attorney General
                                     Williamson County Courthouse
                                     Suite G-6
                                     P.O. Box 937
                                     Franklin, TN 37065-0937




OPINION FILED: ____________________


AFFIRMED


JAMES CURWOOD WITT, JR., JUDGE
                                     OPINION

              The defendant, Sandy Renita Cobb, pleaded guilty in the Williamson

County Circuit Court to aggravated burglary and theft of property valued at more

than one thousand dollars. Pursuant to the negotiated plea agreement, the trial

court dismissed a third count for exercising control over stolen property. After a

sentencing hearing, the trial court ordered her to serve concurrent sentences of six

years for aggravated burglary and four years for theft.1 In this appeal, the defendant

contends that her sentences are excessive because the trial court applied

inappropriate enhancement factors and failed to give the applicable mitigating

factors appropriate weight. Based on the record before us and the applicable law,

we affirm the judgment of the trial court.



              The victim and the defendant testified at the sentencing hearing.

Barbara Meachum testified that when she arrived home from work at about 6:00

p.m. on March 3, 1995, she discovered that her front door was ajar. She ran to a

nearby neighbor’s house to call the police. Upon their arrival, the police found no

one in her house; however, Ms. Meachum found that property including two VCRs,

two guitars, a number of compact disks, and two diamond rings were missing. She

estimated that the value of the missing items was between two and three thousand

dollars. She reported that none of the property had been returned. Because she

and her son no longer felt safe in their home, she sold the property and moved into

Franklin.



              The twenty-two-year old defendant admitted that she had pleaded

guilty to aggravated burglary and theft in both Hickman County and Davidson

County. She was on probation for the Hickman County offenses when she and her

co-defendants burglarized the Meachum residence in Wiliamson County. The

offenses in Davidson County occurred the day before the Williamson County


       1
            The defendant must serve these sentences consecutively to the
sentences she received on another aggravated burglary conviction in Hickman
County.

                                             2
burglary. 2 The defendant, who had dropped out of high school at age sixteen, had

been steadily employed except for the time she was incarcerated. She had been

married briefly and lost her baby in an automobile accident. She testified that she

did not enter the Meachum residence or any of the other houses they burglarized.

Although she helped her friend sell some of the stolen goods to her uncle, the

defendant said that she had no need for or interest in any of the property that was

taken. She participated in the crime partly because she was dependent upon her

friends’ approval and partly because it was a game. When the prosecutor asked

her if she had taken part because it was exciting, she responded that she had. She

denied having any problems with drug or alcohol but admitted that she had attended

a session on anger management. While she was incarcerated for the Hickman

County burglary, she earned her General Education Diploma.



              At the conclusion of the sentencing hearing, the trial court sentenced

the defendant to the maximum Range I sentences of six years for aggravated

burglary, a Class C felony, and four years for theft of property valued at more than

$1,000, a Class D felony. The sentences are to be served concurrently with each

other but consecutively to the sentences she was currently serving.



              In this appeal, the defendant contends that trial court erred in imposing

maximum sentences and in applying Tennessee Code Annotated section 40-35-

114(7) to enhance her sentence. She also argues that the trial judge erred in giving

little weight to mitigating factor (1) and that, because her role in the offense was a

minor one, she is entitled to mitigation under Tennessee Code Annotated section

40-35-113(4).



              In determining whether the trial court has properly sentenced an

individual, this court engages in a de novo review of the record with a presumption




       2
            The state did not enter into evidence copies of the Hickman and
Davidson county judgments.

                                          3
that the trial court’s determinations were 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). To facilitate

meaningful appellate review, the trial court must place on the record its reasons for

arriving at the final sentencing decision, identify the mitigating and enhancement

factors found, and explain how the mitigating and enhancement factors have been

evaluated and balanced in determining the sentence. State v. Jones, 883 S.W.2d

597, 599 (Tenn. 1994).



              In conducting our de novo review, we must consider the evidence at

sentencing, the presentence report, the sentencing principles, the arguments of

counsel, the statements of the defendant, the nature and characteristics of the

offense, any mitigating and enhancement factors, and the defendant’s amenability

to rehabilitation. Tenn. Code Ann. §§ 40-35-210(b), 40-35-103(5) (1997); Ashby,

823 S.W.2d at 168. On appeal, the appellant has the burden of showing the

sentence imposed is improper. Tenn. Code Ann. § 40-35-401(d), Sentencing

Comm’n Comments (1997); Ashby, 823 S.W.2d at 169.



              In this case, the trial court’s findings are brief. The judge did not

clearly articulate every step of the process by which he arrived at his sentencing

decision. However, our review of the record indicates that the trial court considered

the appropriate sentencing considerations and made sufficient factual findings to

satisfy its statutory obligations. Therefore, we afford the court’s determination the

presumption of correctness.



              The record reflects that the trial court found three enhancement

factors:

              (1)    The defendant has a previous history of
                     criminal convictions or criminal behavior
                     in addition to those necessary to establish
                     the appropriate range . . .


                                         4
              (7)    The offense involved a victim and was
                     committed to gratify the defendant’s
                     desire for pleasure or excitement . . . and

              (13)(C) The felony was committed while . . . on probation.

Tenn. Code Ann. § 40-35-114 (1997). The trial judge also found that her criminal

conduct neither caused nor threatened serious bodily injury, although he accorded

the mitigating factor little weight because, he stated, there was always a chance that

someone would come home and interrupt a burglary. At the conclusion of the

hearing, the trial judge found that the defendant was not a good candidate for

alternative sentencing because she had recently been placed on probation and had

failed to abide by the conditions of her release.



              The defendant first contends that factor (7) may not be used to

enhance her sentence because the state failed to prove that she committed the

offense to gratify her desire for excitement.       The record, however, indicates

otherwise. When the prosecutor asked the defendant why she had committed the

burglary, she responded that she did not do it for money. Although she said that

she was a very co-dependent person who followed the lead of her friends, she also

said that being present during the burglary was like a game for her and that she

participated out of boredom. When the prosecutor characterized her remarks as

indicating that she did it for the excitement, she readily agreed. The state did not

put words into her mouth. The record supports the trial court’s conclusion that the

defendant participated in the burglary to gratify her desire for excitement.



              The defendant also argues that factor (7) is inappropriate in this

instance because the crimes of aggravated burglary and theft do not involve a

“victim” in the sense required by statute. The defendant cites no authority in support

of this argument nor does she explain in what sense the term “victim” as used in

factor (7) is different from that used in other contexts. Although it is certainly true

that enhancement factor (7) has most often been applied in convictions for sexual

offenses such as rape and aggravated rape, the factor has been found appropriate



                                          5
in convictions for other offenses if the evidence was sufficient to justify its

imposition. In State v. Lynda Gayle Kirkland, No. 03C01-9606-CR-00248, slip op.

at 6-7 (Tenn. Crim. App., Knoxville, Feb. 12, 1997), this court affirmed the use of

factor (7) to enhance convictions for theft and computer fraud. The factor was also

used to enhance a sentence for conspiracy to commit first-degree murder in State

v. Christa Gale Pike, No. 03C01-9611-CR-00408, slip op. at 29-30 (Tenn. Crim.

App., Knoxville, Nov. 26, 1997), aff’d in State v. Pike, -- S.W.2d --, No. 03S01-9712-

CR-00147 (Tenn., Knoxville, Oct. 5, 1998), and to first-degree murder convictions

by unlawfully throwing, placing or discharging a destructive device. State v. Thomas

Shawn Noles, No. 01C01-9301-CC-00003, slip op. at 10 (Tenn. Crim. App.,

Nashville, Nov. 18, 1993), perm. app. denied (Tenn. 1994).



               This court has defined the word “victim,” as used in Tennessee Code

Annotated section 40-35-114(3)3 as “a person or entity that is injured, killed, had

property stolen, or had property destroyed by the perpetrator of the crime.” State

v. Raines, 882 S.W.2d 376, 384 (Tenn. Crim. App. 1994). Nothing in our review of

the applicable law convinces us that the Raines definition of “victim” is not equally

appropriate in section 40-35-114(7).       Ms. Meachum lost property valued at

approximately two thousand dollars as result of the defendant’s conduct. Therefore,

the offense for which the defendant was convicted involves a victim as required by

the statute.



               Factor (7) may be used to enhance a sentence for any offense in

which the trial court finds that there was a victim involved and that the defendant

committed the crime to gratify a desire for pleasure or excitement. In this case, the

evidence in the record does not preponderate against the trial court’s findings. The




       3
             Subsection 3 of Tennessee Code Annotated section 40-35-114
permits sentence enhancement if the offense involves more than one (1)
“victim.”

                                          6
trial court did not err in applying enhancement factor (7) to the defendant’s

sentences.4



               In addition, our de novo review indicates that the defendant’s

probation in the Hickman County convictions was revoked for failure to report in

1996.5 Therefore, enhancement factor (8) which applies to those who have a

previous history of unwillingness to comply with the conditions of release in the

community may be used to enhance her sentences.



               With respect to the mitigating factors, the defendant argues that the

trial court failed to give sufficient weight to mitigating factor (1) and erred by refusing

to find that she had played a minor role in the offense. See Tenn. Code Ann. § 40-

35-113(1); -(4). The judge found that the defendant’s conduct neither threatened

nor caused serious bodily injury. However, he declined to place much weight on the

factor because even if a burglary is committed during daylight hours in an empty

house, there is always the chance that someone will return home.



               The state argues that a burglary is not an appropriate offense for

mitigation under subsection (1) of the statute but has cited no authority to support

this contention. Our research has uncovered several instances in which this court

has found that this particular mitigating factor applies to burglaries of unoccupied

buildings.6 Moreover, in State v. James E. Winston, No. 01C01-9301-CR-00069


       4
              The defendant does not contest the use of enhancement factors
(1) or (13)(C). She readily admitted to her previous convictions for aggravated
burglary and theft during her testimony and explained to the court the rather
complicated time frame for her arrests, convictions, and probationary periods.
       5
             The Hickman County court then placed her in the Community
Corrections program. When she was arrested for the Davidson County burglary,
she was incarcerated.
       6
               See State v. Scotty Wayne White, No. 02C01-9709-CC-00372
(Tenn. Crim. App., Jackson, Apr. 13, 1998), perm. app. filed May 12, 1998; State
v. Bill Teal, No. 01C01-9611-CC-00482 (Tenn. Crim. App., Nashville, Dec. 10,
1997), perm. app. denied (Tenn. 1998); State v. Stephon Matthew Fearn, No.
01C01-9606-CC-00246 (Tenn. Crim. App., Nashville, July 23, 1997), perm. app.
denied (Tenn. 1998); State v. Clyde Dewayne Wesemann, No. 03C01-9407-CR-
00260 (Tenn. Crim. App., Knoxville, Oct. 16, 1995); State v. Randy Atkins, No.

                                            7
(Tenn. Crim. App., Nashville, July 28, 1994), perm. app. denied (Tenn. 1994), the

defendant reached in an open window and snatched the victim’s pants and wallet

as the victim watched. This court held that because only the defendant’s arm

entered the premises, no serious bodily injury was caused or threatened. Winston,

slip op. at 16-17. In the present case, no one was at home when the house was

burglarized during the daylight hours.7 The defendant testified that she neither

entered the house nor approached the front door. Under these circumstances the

trial court did not err in finding that the defendant’s conduct neither caused nor

threatened serious bodily injury.



              The record, however, does not support the defendant’s contention that

she was a minor participant in the burglary. The fact that she remained outside may

indicate that she was the “look-out” while her two co-defendants entered the house.

Moreover, she testified that she helped to hide the stolen property, found a

purchaser for some of the items, and shared in the spoils. 8 The trial court did not

err by refusing to apply mitigating factor (4).



              To summarize, the record supports the application of enhancement

factors (1), (7), (8) and (13)(A) and mitigating factor (1). However, the defendant

is not entitled to less than a maximum sentence simply because the court found that

a mitigating factor exists. State v. Bill Teal, No. 01C01-9611-CC-00483, slip op. at

15 (Tenn. Crim. App., Nashville, Dec. 10, 1997), perm. app. denied (Tenn. 1998).

A sentence is not determined by a mathematical process of adding the sum total

of enhancement factors and then subtracting the mitigation factors to obtain a net

total of years. State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App.), perm. app.



134 (Tenn. Crim. App., Knoxville, June 28, 1991), perm. app. denied (Tenn.
1992); State v. Billy D. Elrod, No. 138 (Tenn. Crim. App., Knoxville, Apr. 26,
1991), perm. app. dismissed (Tenn. 1991).
       7
             Apparently, all of the burglaries were committed during the day at
times when the residents were away from home.
       8
              She testified that she had received perhaps $200 as result of the
three burglaries.

                                           8
denied (Tenn. 1996). The weight to be given to an existing factor is left to the trial

court’s discretion as long as the court complies with the purposes and principles of

the Sentencing Act and the findings are adequately supported by the record.

Boggs, 932 S.W.2d at 476. The legislature has left the weight of the applicable

factors to the guided discretion of the trial judge who must balance the relative

degrees of culpability within the totality of the circumstances. See State v. Moss,

727 S.W.2d 229, 238 (Tenn. 1986).



              In this case, the trial court gave the single mitigating factor slight

weight in comparison to the great weight given the enhancement factors. We agree

that the defendant’s past criminal history, her violation of probation, and her

persistence in criminal activity after her conviction in Hickman County outweigh the

only mitigating factor. On this record, we cannot say that the trial court erred by

giving little weight to the mitigating factor and imposing the maximum sentence in

each conviction.



              The judgment of the trial court is affirmed.




                                           ______________________________
                                           JAMES CURWOOD WITT, JR., Judge




CONCUR:



______________________________
GARY R. WADE, Presiding Judge



______________________________
THOMAS T. W OODALL, Judge




                                          9
