         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs May 14, 2003

        STATE OF TENNESSEE v. WINSTON CHADRICK McCLAIN

                     Appeal from the Circuit Court for Marshall County
                              No. 14990   Charles Lee, Judge



                     No. M2002-02178-CCA-R3-CD - Filed July 15, 2003


The defendant, Winston Chadrick McClain, pled guilty in the Marshall County Circuit Court to
aggravated robbery, a Class B felony, with the length of the sentence to be determined by the trial
court. The trial court sentenced him as a Range I, standard offender to eleven years in the
Department of Correction (DOC). The defendant appeals, claiming that his sentence is excessive
because the trial court improperly applied enhancement factors and failed to apply and give proper
weight to mitigating factors. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID H. WELLES and ALAN E.
GLENN, JJ., joined.

N. Andy Myrick, Jr., Fayetteville, Tennessee, for the appellant, Winston Chadrick McClain.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;
William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        This case relates to the robbery of Christie Moore. At the defendant’s guilty plea hearing,
the state gave the following account of the crime: On the night of March 18, 2002, the victim and
her boyfriend were in bed when some men forced their way into her home. The men wore masks
and pointed a long-barrel gun at the victim and her boyfriend. The men also pointed the gun at one
of the victim’s three children and threatened the child. The men took the victim at gunpoint into her
living room, stole her purse, which contained $30, and fled. A short time later, the police captured
two of the robbers. The robbers told the police that someone named Chad had also participated in
the crime. Several days later, the police arrested the defendant, who told them the following: He
and some men went to the victim’s home in order to rob it. One of the men had a gun and kicked
open the front door. The defendant and the man with the gun went into the victim’s bedroom, and
the defendant demanded that the victim give them money. Someone in the house gave the defendant
an envelope, the defendant put the envelope into the victim’s purse, and the defendant and the men
fled.

        At the defendant’s sentencing hearing, Christie Moore testified that on the night of March
18, four men entered her home by kicking in her back door and robbed her. Another woman, the
victim’s three young children, and the victim’s boyfriend were also in the home. She said that during
the robbery, her five-year-old daughter was awakened when one of the robbers stepped on the little
girl’s puppy. She said that her daughter came out of a bedroom and tried to comfort the puppy. She
said that the robbers pointed the pistol at her daughter and told her daughter that if she did not make
the puppy be quiet they were going to shoot her and the dog. She said that before the robbery, she
had received $43,600 from an insurance settlement and that she had told some people about the
money. She said that the robbers only took $30, that she could not identify them because they wore
masks, and that she saw two guns, a rifle and a pistol.

        Detective James Whitsett of the Lewisburg City Police Department testified that he
investigated the robbery. The police found a rifle in the yard next to the victim’s home and arrested
two men. The men gave the police the defendant’s name, and seven or eight days later, the police
arrested the defendant. On cross-examination, Detective Whitsett testified that the defendant gave
a statement in which he confessed to the crime.

        Judy Byrd from the Parole and Probation Department testified that she prepared the
defendant’s presentence report. She said the defendant had a juvenile adjudication for aggravated
assault. The defendant also had been on probation as a juvenile and was on escape status when he
committed the present offense. The defendant and his three codefendants stated that the defendant
had entered the victim’s home during the robbery. On cross-examination, Ms. Byrd testified that the
defendant cooperated with her and did not deny his involvement in the robbery.

        Elizabeth West, the Director of Juvenile Court Services, testified that the defendant was
originally charged as a juvenile with aggravated robbery and that his case was bound over from
juvenile to circuit court in order for him to be tried as an adult. At the time of the crime, the
defendant was on escape status from an alcohol and drug treatment facility. According to the
defendant’s presentence report, on March 9, 2000, the defendant kicked a boy in the head and caused
the boy to lose consciousness.

        The defendant testified that at the time of the sentencing hearing and the crime, he was fifteen
years old. He said that on March 22, he, Wayne Harris, Mark Beard, and Calvin Oliver robbed the
victim. He said that when they arrived at the victim’s home, Mr. Harris had a gun and kicked in the
door. He said that Mr. Beard went into a front bedroom of the home and that he and Mr. Harris went
into the victim’s bedroom. He said that Mr. Harris pointed the gun at the victim and her boyfriend
and that the defendant demanded money from the victim. He said that he and Mr. Harris then went
into a room in the front of the house and that someone told him the money was in a purse and on a
table. He said that someone handed him an envelope, that he put the envelope in the victim’s purse,


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and that he and the men fled the house. He said that he was younger than his codefendants and that
at least one of them was over twenty years old. He said that Mr. Harris had heard the victim had
received some money and that it was Mr. Harris’s idea to rob the victim. He said that at the time of
the crime, he was on the run. He said he felt bad about robbing the victim and regretted going to the
victim’s house with his three codefendants. He said that at the time of the hearing, he had been in
jail for four months and two weeks. He said that he wanted to get his GED and that he had been
diagnosed with attention deficit hyperactivity disorder, which makes him hyperactive and do things
without thinking.

        On cross-examination, the defendant acknowledged that he did not regret committing the
crime until he had spent time in jail and thought about what he had done. He said that after robbing
the victim, he went to Columbia, Tennessee and spent one night in a hotel. He said that he then
returned to Lewisburg and stayed at a friend’s house. He said that he had been in the juvenile court
system since he was ten or eleven years old and that he had been sent away from home about three
times. He acknowledged pleading guilty to aggravated assault as a juvenile in 2000 but said that he
only hit the boy and did not kick him in the head. He said that in 2000, he also was convicted of
carrying an automatic pistol. He said that during the robbery in question, he never held a gun but
told the victim and her boyfriend to give him the money. He said that to his knowledge, the victim’s
children were asleep during the entire incident. He said that after he and his codefendants left with
the victim’s money, he abandoned the money because the police were chasing them. He said that
Mr. Harris, Mr. Oliver, and Mr. Beard talked about the robbery for ten to fifteen minutes before he
decided to participate in it.

        Upon being questioned by the trial court, the defendant testified that he began using
marijuana when he was eight years old and cocaine when he was twelve. He said that he had been
in two alcohol and drug treatment programs and that he had been on probation and supervised by the
juvenile court since he was ten years old. He said that during the robbery, Calvin Oliver stayed on
the front porch to serve as a lookout and that he never saw a pistol.

        According to the defendant’s presentence report, in addition to being found delinquent for
aggravated assault and possession of an automatic weapon, the defendant also has juvenile
adjudications for possession of marijuana and cocaine, evading arrest, disorderly conduct, and
criminal trespassing. The report shows that the defendant dropped out of high school during the
tenth grade and ran away from home. In the report, the defendant stated that he has no mental
problems but that he has had a problem with high blood pressure for a couple of years. He also
stated that he began using alcohol when he was ten years old, used marijuana on a daily basis from
age eleven until he was incarcerated, and began using cocaine when he was twelve. The defendant
stated that he sometimes used cocaine on a daily basis and that he spent twenty-eight days in an
alcohol and drug treatment facility. He said that he failed a drug test, was returned to the facility,
and had to spend another three months in a treatment program.

        The trial court noted that as a Range I offender, the defendant’s range of punishment was
eight to twelve years in confinement. See Tenn. Code Ann. § 40-35-112(a)(2); see also Tenn. Code


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Ann. § 40-35-210(c) (providing that the presumptive sentence for a Class B felony is the minimum
in the range if no enhancement or mitigating factors are present). The trial court stated that it was
shocked by the information contained in the defendant’s presentence report and that the juvenile
court system had tried unsuccessfully to deal with the defendant since the defendant was eleven years
old. It ruled that enhancement factors (2), that the defendant “was a leader in the commission of an
offense involving two (2) or more criminal actors;” (8), that the defendant “has a previous history
of unwillingness to comply with the conditions of a sentence involving release in the community;”
(11), that the felony “involved the threat of death or bodily injury to another person and the
defendant has previously been convicted of a felony that resulted in death or bodily injury;” and (14),
that the defendant committed the felony while on escape status, applied to his sentence. See Tenn.
Code Ann. § 40-35-114(2), (8), (11), (14) (Supp. 2001) (amended 2002).1 In addition, the trial court
applied enhancement factor (20), that the defendant “committed acts as a juvenile that would
constitute a felony if committed by an adult,” and determined that the factor was entitled to
considerable weight. See Tenn. Code Ann. § 40-35-114(20) (Supp. 2001) (amended 2002).

        Regarding mitigating factors, the trial court held that factors (6), that the “defendant, because
of youth or old age, lacked substantial judgment in committing the offense,” and (13), that the
defendant had taken responsibility for the crime, applied. See Tenn. Code Ann. § 40-25-113(6),
(13). However, the trial court stated that those factors were entitled to very little weight. The trial
court enhanced the defendant’s sentence to twelve years and then reduced his sentence by one year
for the mitigating factors for a sentence of eleven years in the DOC. See Tenn. Code Ann. § 40-35-
210(e).

        The defendant appeals, claiming that his sentence is excessive. He contends that the trial
court erred by applying enhancement factor (2) regarding his being a leader in the commission of the
offense because the evidence showed that he was merely a participant in the crime. In addition, he
claims that the trial court erred by applying enhancement factor (11), that the felony “involved the
threat of death or bodily injury to another person and the defendant has previously been convicted
of a felony that resulted in death or bodily injury,” because the trial court improperly considered his
juvenile adjudication for aggravated robbery as the previous felony that resulted in death or bodily
injury. As to mitigating factors, the defendant argues that the trial court did not give sufficient
weight to factor (6) regarding his lack of judgment due to youth. Finally, he contends that the trial
court erred by refusing to apply factor (12), that he acted under the domination of another person.
The state concedes that the trial court improperly applied enhancement factor (11) because the
defendant was found delinquent of aggravated assault as a juvenile. However, it argues that the
defendant’s sentence is not excessive because the trial court properly applied the other enhancement
and mitigating factors and because it should have applied enhancement factor (10), that the
defendant had no hesitation about committing a crime when the risk to human life is high, to his



        1
          The legislature’s 2002 amendment to Tenn. Code Ann. § 40-35-114 added as the new enhancement factor (1)
that the “offense was an act of terrorism” but chan ged the existing enhancement factors only by increasing their
designating numb er by o ne.

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sentence. See Tenn. Code Ann. § 40-35-114(10) (Supp. 2001) (amended 2002). We conclude that
the defendant’s sentence is not excessive.

       Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing
Commission Comments to this section note, the burden is now on the defendant to show that the
sentence is improper. This means that if the trial court followed the statutory sentencing procedure,
made findings of fact that are adequately supported in the record, and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        However, “the presumption of correctness which accompanies the trial court’s action 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 this respect, for the purpose of 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, state the specific facts supporting each enhancement
               factor found, and articulate how the mitigating and enhancement
               factors have been evaluated and balanced in determining the sentence.
               T.C.A. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

        The sentence to be imposed by the trial court is presumptively the minimum in the range for
a Class B felony unless there are enhancement factors present. Tenn. Code Ann. § 40-35-210(c).
Procedurally, the trial court is to increase the sentence within the range based upon the existence of
enhancement factors and, then, reduce the sentence as appropriate for any mitigating factors. Tenn.
Code Ann. § 40-35-210(d)-(e). The weight to be afforded an existing factor is left to the trial court’s
discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act and
its findings are adequately supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing
Commission Comments; State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986); see Ashby, 823 S.W.2d
at 169.

        In conducting our de novo review, we must consider (1) the evidence, if any, received at the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
-103, -210; see Ashby, 823 S.W.2d at 168; Moss, 727 S.W.2d at 236-37.



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        As to the defendant’s claim that no factual basis exists for the application of enhancement
factor (2), that he was a leader in the commission of the offense, the evidence revealed at the guilty
plea and sentencing hearings shows that the defendant, Wayne Harris, and Mark Beard entered the
victim’s home while Calvin Oliver waited outside. Mr. Beard went into a front bedroom, and the
defendant and Mr. Harris went into the victim’s bedroom, where they pointed guns at the victim and
her boyfriend. The defendant then demanded the victim’s money, and he and Mr. Harris forced her
into the living room. The defendant then took the victim’s purse and an envelope from the home.
The evidence shows that Calvin Oliver and Mark Beard participated in the crime, but to a lesser
degree than Mr. Harris and the defendant. We conclude that the evidence does not preponderate
against the trial court’s finding that enhancement factor (2) applied.

        Regarding enhancement factor (11), the state correctly concedes that the trial court should
not have applied the factor based on the defendant’s prior adjudication for aggravated assault as a
juvenile. See State v. Carl Johnson, No. W2000-00278-CCA-R3-CD, Shelby County, slip op. at 11
(Tenn. Crim. App. Apr. 4, 2001) (holding that trial court improperly applied factor (11) based upon
the defendant’s juvenile adjudication for involuntary manslaughter). A juvenile delinquency
adjudication is not a felony conviction. However, the state contends that the trial court should have
applied enhancement factor (10), that the defendant had no hesitation about committing a crime
when the risk to human life was high. See Tenn. Code Ann. § 40-35-114(10) (Supp. 2001)
(amended 2002). We agree. As charged in the indictment, the defendant pled guilty to aggravated
robbery accomplished with a deadly weapon. See Tenn. Code Ann. § 39-13-402(a)(1).
Enhancement factor (10) is inapplicable to the conviction because “there is necessarily a risk to
human life and the great potential for bodily injury whenever a deadly weapon is used.” State v. Nix,
922 S.W.2d 894, 903 (Tenn. Crim. App. 1995). Nevertheless, this court has held that when factor
(10) is inherent in the offense relative to the victim, it still may apply if a person other than the
victim was in the area of high risk. See State v. Lambert, 741 S.W.2d 127, 134 (Tenn. Crim. App.
1987); see also State v. Jones, 883 S.W.2d 597, 603 (Tenn. 1995). In this case, the evidence reveals
that the victim’s boyfriend was in bed with her when the defendant entered the room and pointed the
gun at them. Thus, factor (10) is applicable.

         The defendant also claims that the trial court erred by giving little weight to mitigating factor
(6), that he lacked substantial judgment in committing the offense because of his youth. The trial
court held that this factor was entitled to extremely little weight because of the defendant’s prior
contact with the juvenile system. As previously stated, as long as the trial court followed the
sentencing purposes and principles, the weight to be afforded an existing factor is left to the trial
court’s discretion. Moreover, our supreme court has held that a defendant’s youth should be
considered in the context of the defendant’s education, maturity, experience, mental capacity or
development, and any other pertinent circumstance tending to demonstrate the defendant’s ability
or inability to appreciate the nature of his conduct. State v. Adams, 864 S.W.2d 31, 33 (Tenn. 1993).
In this case, the defendant has been using alcohol since he was ten, marijuana on a daily basis since
he was eleven, and cocaine since he was twelve. He has been in an alcohol and drug treatment
facility twice, dropped out of high school in the tenth grade, and has a lengthy juvenile record. He
testified at his sentencing hearing that he was on the run when he committed the offense in question,


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and his crimes are becoming more serious. We find nothing in the record to indicate that the
defendant was unable to appreciate the nature of his conduct.

         Finally, the defendant contends that the trial court should have applied mitigating factor (12),
that he acted under the domination of another person, because it was Wayne Harris’s idea to rob the
victim and because he is younger than all of his codefendants. However, at no time did the
defendant testify that he acted under the control of any of his codefendants. To the contrary, he
testified that he heard the three men talking about committing the crime for about ten to fifteen
minutes and that he decided to join them. Nothing in the record supports the application of this
factor, and the trial court did not err by refusing to apply it to the defendant’s sentence. The trial
court properly sentenced the defendant to eleven years in the DOC.

        Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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