        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE            FILED
                         JANUARY SESSION, 1998       November 16, 1998

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,              )   C.C.A. NO. 01C01-9701-CC-00035
                                 )
           Appe llant,           )
                                 )   MAURY COUNTY
V.                               )
                                 )
                                 )   HON . JAME S L. W EATH ERF ORD ,
PHILLIP DREW CANTWELL,           )   JUDGE
                                 )
           Appellee.             )   (ENVIRONMENTAL VANDALISM)



FOR THE APPELLEE:                    FOR THE APPELLANT:

GARY M. HOWELL                       JOHN KNOX WALKUP
P.O. Box 442                         Attorney General & Reporter
Columbia, TN 38402
                                     ALBE RT L. P ARTE E, III
DELILAH A. SPEED                     Assistant Attorney General
P.O. Box 973                         2nd Floor, Cordell Hull Building
Columbia, TN 38402                   425 Fifth Avenue North
                                     Nashville, TN 37243

                                     T MICHAEL BOTTOMS
                                     District Attorney General

                                     ROBERT C. SANDERS
                                     Assistant District Attorney General

                                     JESSE DURH AM
                                     Assistant District Attorney General
                                     P.O. Box 459
                                     Lawrenceburg, TN 38478



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION

      Phillip Drew Cantwell, the Defendant and o wner o f Can twell Enterpris es, Inc.,

was indicted by the Maury County Grand Jury on one (1) count of violating the Water

Quality Act and five (5) counts o f environm ental van dalism. Two (2) of the five (5)

counts of environme ntal vandalism were classified as Class B felon ies, two (2) were

classified as Class C felonies, and one (1) as a Class E felon y. Follow ing a ju ry trial,

the Defenda nt was convicte d of two (2) lesser grade Class D counts of

environmental vandalism a nd acquitted o f all other charges. Dallas Cantwell and

Sher ill Sanders, co-defendants, were also indicted on similar charges.             Dallas

Can twell is the Defend ant’s father, and She rill Sanders was th e ma nage r of Ca ntwell

Enterprises. Both co-defendants were acquitted of all charges.             Following the

sentencing hearing, the Defendant was sentenced to serve two (2) years for each

count of environmental vandalism, to be serv ed con currently. The sen tences were

suspended with Defendant placed on probation. The Defendant was also ordered

to pay $1,5 24.71 in c ourt costs . He filed a m otion for ne w trial, but it was denied

following a hearing. The Defendant did not appeal. The State appeals from the trial

court’s se ntencing order. W e affirm the judgm ent of the tria l court.



       W hile the sufficien cy of the ev idence is not an iss ue, a summ ary of the fa cts

is necessary for our sentencing review. Dick Wilson, an aquatic biologist employed

by the Tennessee Wildlife Resources Agency, received a complaint on December

1, 1994, from Vance Owen who was hunting near Columbia and obse rved a poss ible

contamination problem with the water in some seep springs. On December 2, 1994,

Wilson and a field agen t, Wayn e Pressler, accompanied Owen to the seep springs



                                            -2-
for testing and observation. These seep spring s were locate d on H enry D aimw ood’s

property. A plant operated by Cantwell Enterprises, Inc., was located up a slope

from the seep springs, and it appeared to Wilson that a large amount of discolored

water had come down the slope. There were many dead trees and vegetation in the

area. Wilson observed the plant and found ditches full of discolored water with

yellow and black stains. Wilson went to the plant and spoke with Sherill Sanders,

a co-defend ant and the p lant mana ger. Sande rs told Wilson that he was aware of

the complaints and had already taken a sample from the seep springs but had not

yet had it an alyzed.



      On February 22, 1995, Wilson led in the execution of a search warrant at the

Can twell Enterprises, Inc., plant during which liquid and solid samples were taken.

Industrial wastes from three (3) different directions were observed by Wilson as

flowing through a series of hoses, ditches and spillways towards the dead zone of

vegetatio n and tre es.



      Gordon Caruthers, an Environmental Specialist with the Tennessee

Department of Environmental Control (TDEC), performed an inspection of the plant

in Janua ry 1992 a nd foun d molte n sulphu r and am moniu m bisu lfite. Caruthers

spoke with the Defe ndan t as the repres entativ e for C antwe ll Enterprises, Inc.

Caruthers explained to the De fendan t the environ menta l problem s with the plant and

described the state requirements for prevention and control of environmental spills.

The Defendant responded that he would obtain the permits and construct the

containment structures as required.       After Caruthers tried to demonstrate the

consequences of these spills, Defen dant indicated tha t he understoo d the dang ers

of the unla wful disch arges into the enviro nmen t.

                                           -3-
      Ann Rochelle, an environmental specialist and employee of the Water

Pollution Control division at the TDEC, visited the Cantwell plant site on January 17,

1992, pursua nt to a prior c ompla int under the W ater Qu ality Contro l Act. The plant

had no pe rmit to d ischa rge industrial wastes under th e W ater Qu ality Contro l Act.

As a result of her inspection, Rochelle sent a notice of non-compliance to the

company and asked that containment structures be built. During March 1992,

Roch elle inspe cted th e plan t on two occa sions and fo und fu rther sp ills and no

containment structures in place.



      Margaret Morgan, an owner of land damaged by the s pills from the Ca ntwell

plant, testified that she gave no one permission to discharge chemicals or industrial

waste on her prope rty. She desc ribed th e prop erty as a wide strip with abso lutely

nothing, only bare dirt and gullies.



      Glenn Hulen ow ns pro perty o n whic h Colu mbia Conc rete is lo cated . This

property borders the Cantwell plant to the south, west and north. Since the Cant well

plant had been in operation, Hulen noticed areas of dead vegetatio n on his p roperty

which used to be “a jungle.”



      Tim Stewar t, employee of the Superfund Division of the TDEC, assessed

property damage caused by the environmental spillage from C antwe ll enterprises.

Stewart calculated the damage to be $500,000.00.



      Wayne Chapman, a former employee of Cantwell Enterprises, testified that

while he worked at the plant he noticed leaking hoses around different parts of the

plant. When these hoses leaked, the containment trench around the operating block

                                          -4-
of the plant would overflow. Chapman recalled that the Defendant was there at

times when the overflow occurred. After Chapman brought the leaking hoses to

Defe ndan t’s attention, the Defendant instructed Chapman to try to stop the leaks or

to cover them up as best as he could. Chapman worked with the Defendant to clean

out railroad tank cars. The ammonium bisulfite would be either poured out of the

trucks on to the gro und or p umpe d up on the ban k and b lown on to the gro und.



       James Robert Orr, employee of Environmental Resources Management

Southe ast, an environmental consulting firm, assessed the environmental impact of

the spillage at the Cantwell plant.     In his opinion, the cost for restoration for the

Morgan property ranged from $179,342.00 to $207,044.00.                 The cost for the

restoration of the property owned by Glenn Hulen and Columbia Concrete was

estima ted at a ran ge of $6 9,692.0 0 to $76 ,580.00 .



       When the length, range or the manner of service of a sentence is challenged,

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 affirmative showing in the

record that the trial court considered the se ntenc ing prin ciples and a ll relevant fac ts

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



       In conducting a de novo review of a senten ce, this court mu st consider: (a) the

evidence, if any, received at the trial and the sentencing hearing; (b) the presentence

report; (c) the principles of senten cing and argum ents as to sentencing alternatives;

(d) the nature and characteristics of the criminal conduct involved ; (e) any statutory

mitigating or enhancement factors; (f) any statement that the defen dant m ade o n his

                                            -5-
own behalf; an d (g) the p otential or lac k of poten tial for rehab ilitation or treatm ent.

Tenn. Code Ann. §§ 40-35-1 02, -103 , -210; see State v. S mith, 735 S.W.2d 859,

863 (Ten n. 1987).



       If our rev iew refle cts tha t the trial court followed the statutory sentencing

procedure, impo sed a lawful s enten ce afte r havin g given due consideration and

proper weight to the factors and principles set out u nder the sentencing law, and

made finding s of fac t adeq uately supported by the record, then we may not mo dify

the senten ce even if we wou ld have p referred a different res ult. State v. Fletcher,

805 S.W .2d 785 , 789 (T enn. C rim. App . 1991).



       The State a rgues that the trial court imposed the “absolute rock bottom

sentence” for Defendant to serve. The trial court ordered Defen dant to serve two (2)

concurrent sentences of two (2) years for each count of Class D environmental

vandalism. The sentencing range for a Class D felony for a Range I offender is two

(2) to four (4) years. Tenn. Code Ann. §§ 40-35-105(b), -112(a)(4). Following the

sentencing hearing, the trial court stated as follows:

       Now, the law requires the court in this sentencing act to take certain
       things into co nside ration in deciding how many years out of that close
       range, or what period o f time out of that close ra nge that the co urt
       shou ld set sentence. And really, as far as enhancement factors, the
       only enhancement factor I see that would apply, that I would be
       com fortable with applying, is that the offense involved more than one
       victim. Of cou rse, this situation, the debris, chemical debris was
       running off in fairly well all directions and I think that without question
       it damaged more than one p erson . I’m sa tisfied fro m the proof th at it
       did that. T hat’s really th e only en hancin g factor tha t I see.

       As far as mitigating factors, of course the main one, I guess, is the fact
       that there was nobody physically injured like in an aggra vated assa ult
       case. These other mitigating factors set forth through the pleading filed
       by the defendant, I don’t think really would be applicable.




                                             -6-
      Another thing that I’m taking into consideration is the jury didn’t fix any
      fine in any of these cases, in either of these cases. The defendant has
      not been previously convicted of anything that I can determine from the
      pre-sen tence re port.

      I’m going to impose a sentence of two years in each of these cases and
      in considering whether or not these sentences should run co nsecutive
      or concurrent, again, in looking at the matters that the court has to take
      into consideration, I really don’t find any of the factors set forth in the
      40-35-115 that would app ly, so I’m going to let those sentences run
      concurren tly.

      As far as th e cos t for the p repar ation o f this ca se, the court w ill take into
      consideration the fact tha t there w ere oth er cou nts ag ainst th is
      defendant that he was acquitted on.                   I’m going to take into
      consideration the fact that there were two other defen dants that were
      totally acquitted and I’m really not familiar with requiring a defen dant to
      pay the cost for preparation for this type suit. I do n’t think that the re’s
      been all that m any su its of this sort in th is state . I would be inclined to
      require this defendan t to pay $10,000.00 in the expenses or preparation
      or whatever you want to call it, if there can be any authority submitted
      to me by the State where that’s been done and approved in any
      criminal case. T his, of cou rse, is an u nusua l case. We had a lot of
      technical witnesses, chemists and those type people and I know that it
      was tremendously expensive. If the State can find me any proof that
      I think would substantiate him paying $10,000.00 toward these
      expenses in bringing this thing to court, then I would req uire that as part
      of his probation.



      Our review of this se ntenc e is de novo, without a presumption of correctness,

as the trial court did not specify the weight afforded to the enhancing and mitigating

factors, nor did it discuss all the enhancement factors as urged by the State at the

sentencing hearin g. In ad dition, th ere is no m ention in the record of the factors the

trial court relied upon in granting the Defendant full probation as an alternative

sentence. In dete rminin g the le ngth o f the D efend ant’s s enten ce, the trial court

relied upon the evidence at trial and the sentencing hearing . The trial court relied

upon the pre-sentence report in determining that the Defendant had no prior criminal

record. As the D efendant is a sta ndard offender convicted of Class D felonies, he




                                              -7-
was presu med to be a favora ble candidate for alternative sentencing options. Tenn.

Code Ann. § 4 0-35-10 2(6).



      The trial court found that the offense involved more than one (1) victim as the

environmental spill clea rly affected more than one (1) person. Tenn . Code Ann. §

40-35-114 (3). This enhancem ent factor was a pplied erroneo usly as there we re

separa te convictions for each victim. State v. Hoyt, 928 S.W.2d 935, 948 (Tenn.

Crim. App. 1995 ) (citing State v. Lam bert, 741 S.W.2d 127, 134 (Tenn. Crim. App.

1987)). It is not appro priate in this c ase to count as “victims” those who were named

in counts o f the indictm ent whe re Defe ndant w as acq uitted. After finding that no

other enha ncem ent fac tors ap plied, the trial court reasoned that no one was

physic ally injured during the com mission of the crim inal offens es. Tenn. Code Ann.

§ 40-35-113(1). The trial court also determined that the Defendant had no prior

convictions. Tenn. Code Ann. § 40-35-113(13). The trial court considered the fact

that the jury did not fine the Defendant as a cond ition of h is convictions, but we do

not place muc h weig ht upo n this factor. While Defendant urged that other mitigating

factors were applicable, the trial court did not agree.



      The State urg es that fou r (4) other e nhanc emen t factors ap ply.   First, the

State argues that Defendant was a leader in the commission of an offense involving

two (2) or more crim inal actors becau se his em ployees were dire cted to make illegal

environmental discharges. Tenn. Code Ann. § 40-35-114(2). The application of

enhancement factor 2 contemplates on offense involving two (2) or more criminal

actors. State v. Carter, No. 03C01-9603-CC-00102, Greene Coun ty, slip op. at 11

(Tenn. Crim. App., at Knoxville, March 4, 1997) (No Rule 11 application filed)




                                          -8-
(citations omitted). As reflected in the jury’s verdict, this offense involved only one

(1) crimin al actor, the Defen dant.



      In light of the additional crimes with which Defen dant wa s charg ed, the S tate

argues that Defendant’s criminal behavior shou ld resu lt in the e nhan cem ent of h is

sentence. Ten n. Co de An n. § 40 -35-1 14(1) . The S tate urg es this court to consider

the case of State v. Carico, _____ S.W.2d _____, No. 03S01-9610-CR-0009,

Hawkins County (Tenn ., at Knoxville, December 29, 1997), as authority that

Defe ndan t’s prior criminal behavior for which there has been no conviction may be

used to enhance a sentence. In Carico, the defend ant was a ccus ed of m ultiple

incidences of sexual abuse. The defendant was ultimately convicted of only one (1)

offense per time period as alleged in the indictment and the court held that other

incidences of condu ct could b e used to enha nce the senten ce. Carico, slip op. at

17.   However, in the case sub judice, the jury was allowed to consider other

incidences of criminal conduct as alleged in the indictments and found Defendant not

guilty. Mere charges are not considered prior criminal behavio r. State v. Buck meir,

902 S.W.2d 418, 424 (Tenn. Crim. App. 1995). Defendant was not convicted of

those incidences of criminal conduct for which he was charged and tried and found

not guilty. Therefore, it would have been improper for the trial court to use them in

enhan cing the D efenda nt’s sente nce.



      The State also urges this court to find that the amount of property taken from

the victims was particularly great. Tenn. Code Ann. § 40-35-114(6). The trial court

declined to apply this factor on the basis that the jury failed to fix any fines against

the Defendant. Testimony was given that the damage to property relevant to the two

(2) convictions approached $280,000.00. In light of the proof in the record of the

                                          -9-
amount of damage done to the properties involved, this enhancement factor shou ld

have be en app lied.



        Finally, the State argues that the Defendant abused a special skill in a manner

that significantly fa cilitated the c omm ission of the offenses . Tenn. Code Ann. § 40-

35-114(15 ). The State contends that the Defendant’s edu cation and e xpertis e in

using chem icals prove s he “kne w better th an to do as he did .” While Defendant may

have specialized knowledge regarding the manufacturing of chemicals, there is no

evidence in the record that his skill was so specialized as to facilitate the commission

of the acts o f environm ental van dalism. T he State cites the ca se of State v. Candler,

728 S.W.2d 756 (Tenn. Crim. App. 1986), in which the defendant businessman

wrote worthless checks used to defraud a bank. In addition to the fact tha t Candler

was decided prior to the 1989 Sentencing Act, the State’s relianc e is misplac ed. In

Candler, the court held that the Defendant’s conduct in writing the worthless checks

was in reckless disregard of the interests of stockholders, depositors, and borrowers.

Id. at 762 . Beca use th at defe ndan t took a dvant age o f a spe cial trus t, this conduct

justified conse cutive sentences. Id. Candler does n ot deal with the issue that a

defen dant’s abuse of a special skill justifies the application of enhancement factor

(15).



        The State also filed supplemental authority supporting their argument that

Defendant abuse d a spe cial skill. See U.S. v. Roggy, 76 F.3d 18 9 (8th Cir. 1996).

In Roggy, the defendant was an expert in pesticides an d utilized his knowle dge to

use a prohibited pesticide which was financially beneficial to him. In the case sub

judice, the De fenda nt did not use any special expertise in committing these offenses.

In fact, the Defend ant’s actions we re committed openly such that the State filed a

                                            -10-
non-compliance complaint against him three (3) years prior to the execution of the

search warrant which led to criminal charges. Defendant did not use any special

knowledge to conce al his acts, th erefore, Roggy is distinguis hable. In any event, the

ruling in Roggy does not bind this court. The United States Supreme Court is the

only federal court Tenn essee cou rts are bound to follow. See State v. McKay, 680

S.W .2d 447 , 450 (T enn. 19 84); cert. denied, 105 S.C t. 1412 (1 985).



      The State then argue s that probation w as an inapp ropriate alternative

sentence given the type o f crime D efenda nt com mitted. A defend ant sen tenced to

eight (8) years or less who is not an offender for who m inc arcera tion is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the

presumption. Rebuttal evidence includes:


      A) Conf inement is necessary to protect society by restraining a
      defend ant who has a lon g history of c riminal co nduct;

      B) Confinem ent is necess ary to avoid depreciating the seriousness of
      the offense or confinement is particularly suited to provide an effective
      deterrence to others likely to commit similar offenses; or

      C) Measures less restrictive than confinement have frequently or
      recently b een ap plied uns uccess fully to the de fendan t.

Tenn. Code Ann. § 40-35-103.

However, the act does not provide that all offenders who meet the criteria are

entitled to such relief; rather, it requires that sentencing issues be determined by the

facts and c ircum stanc es pre sente d in each case. See State v. Taylor, 744 S.W.2d

919, 922 (T enn. Crim. A pp. 1987).



      In determ ining whe ther to gra nt proba tion, the trial court must consider the

nature and circumstances of the offense, the defen dant’s crimin al reco rd, his


                                          -11-
background and social history, his present condition, including his physical and

mental condition , the deterrent effect on other criminal activity, and the likelihood that

probation is in the be st interests of both the public an d the de fendan t. Stiller v.

State, 516 S.W .2d 617 , 620 (T enn. 19 74).



       W hile the defen dant on appea l usually ha s the bur den of e stablishing his

suitability for full probation and demonstrating to this court that probation best serves

the ends o f justice, the pu blic an d him self, the State a ppea ls the g rant of fu ll

probation in this case. Tenn. Code Ann. § 40-35-303(b); State v. Bingham, 910

S.W.2d 448, 455-46 (Tenn. Crim. App. 1995). The burden is thus on the appellant

to show that the sentencing in granting probation was erroneous. Tenn. Code Ann.

§ 40-35-402, Sentencing Commission Comm ents.



       Defendant does not have a long history of criminal conduct nor does he need

confinement to avoid depreciating the seriou sness o f the offens e. Tenn. Code Ann.

§ 40-35-103(1). While the State contends that a sentence of incarceration would be

a deterrence to further acts of environmental damage, we see no reason to impose

a sentence of incarceration when the State has failed to point to any portion of the

record which reflects proof presented of the need for deterrence in the jurisdiction.

See State v. Zeolia , 928 S.W.2d 457, 461-62 (Tenn. Crim. App. 1996)(citations

omitted). In addition, measures less restrictive than confinement have not been

applied unsuccessfully to the Defendant. Tenn. Code Ann. § 40-35-103(1)(C). As

none of these factors apply, confinement would not have been a proper sentence

and the trial c ourt ap propr iately de termin ed tha t proba tion wo uld best serve the

interests of the Defendant and the public.




                                           -12-
       The State argues that the Defendant should be ordered by this court to pay

restitution to the victim, Margaret Morgan in the amou nt of $5,00 0.00. W e note that

a pane l of this co urt has previo usly he ld that the State does n ot have th e right to

appeal the issue of the trial cou rt’s failure to ord er restitution . See State v. Ke vin

Crespo, No. 03C01-9504-CR-00118, Sevier Coun ty, slip. op. at 1 (T enn. C rim. App .,

at Knox ville, April 29, 19 97) (No Rule 11 application filed). W e also no te that the

legislature has rece ntly enacte d Public A cts of 1998, chapter 796, effective April 23,

1998 allowing the State to appeal the trial court’s fa ilure to orde r the Defe ndant to

make reasonable restitution. In the case sub judice, and based upon the record

availab le to us, we cann ot conclude th at the trial court erred or a bused its discretion

in declining to order re stitution.



       The State also argues that the trial court erred by not ordering the Defendant

to pay “cos ts of enforc emen t.”     The State specifically asked for the cost of

enforcement reimbursement in the amount of $49,623.18.                  The State cites

Tennessee Code Annotated section 40-35-303(d)(9) in support of this issue and

argues that “cost of enforcement” as a condition of probation is “reasonably related

to the purpose of the offender’s sentence and not unduly restrictive of the offe nder’s

liberty, or incompatible with the offender’s freedom of conscience, or otherwise

prohibited by this cha pter.” Tenn. C ode Ann . § 40-35-303 (d)(9).



       Among the costs of prosecution which the State says should be reimbursed

by the Defendant are hourly wages of various Tennessee Wildlife Resources Agency

employees, mileage costs for agency vehicles, airplane, and video and still pictures.

Likewise, costs of laboratory and salary costs o f other w itness es we re inclu ded in

the total of $49,623.18.       It is the opinion of this court that Tennessee Code

                                           -13-
Annotated section 40-35-303(d)(9) does not authorize the relief sought by the State,

as that statute does not give unfettered authority to trial courts to place conditions

of probatio n upon a defen dant. See State v. Burd in, 924 S.W.2d 82, 87 (Tenn.

1996). Of course, a defendant could still ne gotiate a p lea agre emen t with the Sta te

that requires “cost of enforcement” to be paid as a condition of proba tion. In order

for a defendant absent a negotiated plea agreement to be ordered to pay the S tate

the costs of prosecuting the case as a condition of probation, we feel that this is a

matter more appro priately addre ssed in specific legislation by the G enera l Asse mbly

and not by judicial interpretation of Tennessee Code Annotated section 40-35-

303(d)(9).



      Even if that statute could be held to authorize the required condition of

probation sought by the State, we feel that the State failed to put sufficient proof

forward to mak e this reas onably re late to the c onvictions for which D efenda nt has

been placed on probation. He was charged with seven (7) counts and found not

guilty of five (5) of those counts. The two (2) convictions were of lessor grade

offenses. Two co-defendants were acquitted of all charges against them, which

were apparently the identical charges placed a gainst the Defen dant. While the trial

court stated that it wo uld order the Defendant to pay $10,000.00 towards the cost of

reimbursement if the State c ould cite any app ropriate leg al author ity authorizing the

trial court to do so, this figure of $10,000.00 is not supported by any proof in the

record.



      Upon our conclusion that one enhancement factor found by the trial court was

erron eous ly applied, b ut that ano ther enhancement factor should have been applied,




                                          -14-
and the finding of mitigating factors wa s appropriate, up on our de novo review of the

senten ce, we a ffirm the jud gmen t of the trial cou rt.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
DAVID H. WELLES , Judge


___________________________________
JERRY L. SMITH, Judge




                                            -15-
