                                                FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE
                                                September 29, 1998
                          JUNE 1998 SESSION
                                                Cecil W. Crowson
                                               Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )
            Appellee,             )    C.C.A. No. 01C01-9708-CC-00338
                                  )
vs.                               )    Davidson County
                                  )
SANFORD L. WILSON,                )    Hon. Cheryl Blackburn, Judge
                                  )
            Appellant.            )    (Reckless Endangerment)
                                  )




FOR THE APPELLANT:                     FOR THE APPELLEE:

THOMAS H. MILLER                       JOHN KNOX WALKUP
Attorney at Law                        Attorney General & Reporter
P.O. Box 681662
Franklin, TN 37068-1662                MARVIN E. CLEMENTS, JR.
                                       Asst. Attorney General
                                       425 Fifth Ave. N., 2d Floor
                                       Nashville, TN 37243-0493

                                       VICTOR S. JOHNSON, III
                                       District Attorney General

                                       DAN HAMM
                                       Asst. District Attorney General
                                       Washington Square
                                       222 Second Ave. N., Ste. 500
                                       Nashville, TN 37201-1649




OPINION FILED:________________

AFFIRMED

CURWOOD WITT, JUDGE
                                         OPINION

                  The defendant, Sanford L. W ilson, appeals from his conviction of

felony reckless endangerment. He received his conviction at the conclusion of a

jury trial in the Davidson County Criminal Court. The trial court imposed a two-year

sentence. In this direct appeal, Wilson appeals the length and manner of service

of that sentence. Having reviewed the record and the briefs of the parties, we find

no error of law requiring reversal and affirm the judgment of the trial court.



                  The defendant’s conviction arises from an altercation with a neighbor

and members of his neighbor’s family. At trial, a sharp factual dispute existed

regarding the altercation. The defendant admitted he threw paint thinner on the

neighbor and set him on fire, but he claimed he did so in self defense. The state’s

evidence did not support the defendant’s self-defense theory. The jury acquitted

the defendant of two counts of aggravated assault, one resulting from serious bodily

injury and the other from use of a deadly weapon,1 but convicted him of one count

of the lesser offense of felony reckless endangerment.2



                  At the sentencing hearing, the trial court thoroughly and thoughtfully

considered the relevant criteria. It imposed a maximum Range I sentence of two

years.



                  The defendant’s appellate grievances relate to the sentence imposed.

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 that the trial

court's determinations were correct. Tenn. Code Ann. § 40-35-401(d) (1997). This



         1
             See Tenn. Code Ann. § 39-13-102 (Supp. 1995) (amended 1996).
         2
             See Tenn. Code Ann. § 39-13-103 (1997).

                                             2
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). 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 that 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 the case at bar, we find the trial court’s determination is entitled to

the presumption of correctness.



              The defendant claims the trial court erroneously failed to apply certain

mitigating factors in sentencing him. First, he claims the trial court erred in failing

to apply mitigating factors (2) and (3), that “[t]he defendant acted under strong

provocation” and that “[s]ubstantial grounds exist tending to excuse or justify the

defendant’s criminal conduct, though failing to establish a defense[,]” respectively.

Tenn. Code Ann. § 40-35-113(2), (3) (1997). He claims these factors should be

applied because his act of dousing the victim in paint thinner and setting him on fire

came as a response to his fear for his own life and the life of his girlfriend during a

hostile invasion of his home by the victim and the victim’s nephew. The trial court

declined to apply these factors, finding they “were taken into consideration by the

jury in this case; that is, [the jury] reduced your offense from aggravated assault to

reckless endangerment[.]” We have previously observed that there is no per se

prohibition against “double mitigation” of a sentence by applying a mitigating factor

                                          3
even though the jury has extended leniency to the defendant on the same basis;

however, “double mitigation” is inappropriate if additional consideration of the

relevant facts is not merited. State v. Samuel D. Braden, No. 01C01-9610-CC-

00457, slip op. at 12 (Tenn. Crim. App., Nashville, Feb. 18, 1998) (citations

omitted). We find it implicit in the trial court’s finding that the defendant received all

of the mitigation relevant to factors (2) and (3) via the jury verdict to which he is

entitled. As noted above, the facts at trial were sharply disputed. The defendant

responded radically to what may well have been a mutually acrimonious

confrontation rather than the unprovoked attack he claims occurred. Furthermore,

we note that the defendant’s theory at trial was that he acted in self-defense, not

that he acted under provocation. See Samuel D. Braden, slip op. at 12.



               The defendant also argues for the application of mitigating factor (11),

that “although guilty of the crime, [he] committed the offense under such unusual

circumstances that it is unlikely that a sustained intent to violate the law motivated

his conduct.” Tenn. Code Ann. § 40-35-113(11) (1997). This factor was neither

urged by the defendant at the sentencing hearing nor its non-applicability

specifically addressed by the trial court.3 Notwithstanding, the record supports the

trial court’s failure to apply it. By the defendant’s own admission, he lived a life of

drug abuse at the time of his crimes. He claimed that drug abuse led him to commit

multiple criminal acts around the time of this offense. While the defendant may not

have had a sustained intent to set other human beings on fire, he had a sustained

intent at the time of this crime to abuse illegal drugs, and this drug use led him to

commit further violations of the law. The defendant has failed to sustain his burden

of demonstrating that mitigating factor (11) should have been applied.


       3
        However, the trial court addressed both enhancement and mitigating
factors in orderly form, and it essentially went down the statutory list of both. We
believe the court considered the factor, rejected it, and made no explicit findings
because no issue had been raised of the factor’s applicability.

                                            4
              The defendant also claims he should have received an alternative

sentence. However, the trial court found that confinement was necessary to protect

the public from the defendant and that measures less restrictive than confinement

had frequently or recently been applied without success. See Tenn. Code Ann. §

40-35-103 (1997). These findings are adequately supported by the record.



              As we observed in State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim.

App. 1991):

       If appellate review reflects that the trial court, by following the
       statutory sentencing procedure, imposed a lawful sentence, after
       having given due consideration and proper weight to the factors and
       principles which are relevant to sentencing under the Act, and that the
       trial court’s findings of fact upon which the sentence is based are
       adequately supported in the record, then we may not disturb the
       sentence even if we would have preferred a different result.

Fletcher, 805 S.W.2d at 789. Applied to the case at bar, Fletcher precludes us from

disturbing the trial court’s sentencing determination.



              The judgment of the trial court is affirmed.


                                          __________________________
                                          CURWOOD WITT, JUDGE

CONCUR:


_____________________________
JOE G. RILEY, JUDGE


_____________________________
R. LEE MOORE, JR., SPECIAL JUDGE




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