        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs July 20, 2011

            STATE OF TENNESSEE V. JEFFERY B. JOHNSON, JR.

                   Appeal from the Circuit Court for Dickson County
                  No. 22CC-2008-CR-172      George C. Sexton, Judge


                  No. M2010-01721-CCA-R3-CD - Filed June 20, 2012


The defendant, Jeffrey B. Johnson, Jr., was tried on two counts of first degree (premeditated)
murder, and after a jury trial was found guilty of two counts of voluntary manslaughter, Class
C felonies. The defendant was sentenced as a Range I, standard offender to five years on
each count, with the sentences to be served consecutively, for an effective sentence of ten
years. The defendant challenges the sentences imposed by the trial court, claiming error in
the trial court’s application of certain enhancement factors, its failure to apply certain
proffered mitigating factors, and its decision to order the defendant’s sentences to be served
consecutively. Considering the State’s concession that the trial court’s application of two of
the enhancement factors was error, the trial court’s failure to consider all of the evidence that
was presented at trial during sentencing, and the state of the record before us, we conclude
that this case should be remanded to the trial court for resentencing consistent with this
opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Vacated and
                                    Remanded

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

William B. (Jake) Lockert, III, District Public Defender, and Dawn Kavanagh, Kathleen
Mitchell, and Connie Jones, Assistant Public Defenders, for the appellant, Jeffery Byrd
Johnson, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Dan Mitchum Alsobrooks, District Attorney General; and Carey Thompson and Ray Crouch,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION
                         FACTS AND PROCEDURAL HISTORY




       On New Year’s Eve of 2007, the victims in this case, Ms. Mary Clark and her mother-
in-law, Ms. Gail Clark, were killed by two foster children they cared for – the defendant and
his co-defendant, Mr. James Garett. Each victim was executed by a single shot to the head.
After initially blaming the killings on a mysterious “dark figure,” both the defendant and the
co-defendant gave statements to police identifying the other as the shooter. Both were
charged with two counts of first degree premeditated murder.

       Co-defendant Garett eventually pled guilty to two counts of second degree murder in
exchange for his testimony against the defendant. After a trial on April 1-9, 2009, a jury
found the defendant guilty of two counts of criminal responsibility for the conduct of another
in committing voluntary manslaughter. On November 25, 2009, the trial court sentenced the
defendant as a Range I, standard offender to five years on each count, for a total effective
sentence of ten years to be served in the Department of Corrections.

        At the defendant’s sentencing hearing, the State relied upon the witnesses and proof
produced at trial, as well as the defendant’s pre-sentence report. The State also urged the
trial court to take judicial notice of numerous juvenile records that were contained in the trial
court’s file (which had been transferred to it by the juvenile court). The defendant
strenuously objected to the trial court’s use of the defendant’s juvenile records for sentencing
purposes. The defendant urged that he was “not given notice the state intended to use [the
defendant’s] criminal history” and urged that the criminal history contained therein was not
included in the defendant’s pre-sentence report.

        The State argued that the defendant’s juvenile records reflected that the defendant was
on probation in juvenile court on the offenses of assault and theft at the time the crime was
committed. The defendant argued that he was not on probation and requested a continuance
in order to get the appropriate records. The State argued that the entire juvenile record was
part of the trial court’s file and “speaks for itself,” urging that the State was not required to
provide notice that it was going to be used against the defendant and, moreover, that the
defendant should already have been aware of, and was in fact aware of, the existence of those
records in the trial court’s files. The trial court overruled the defendant’s request for
continuance. Prior to passing sentence, the trial court took a brief recess and reviewed its
internal files. However, the court trial did not state that it was taking judicial notice of some
or all of those files or otherwise indicate that they were entered into evidence.

       The State argued that the trial court should find and apply the enhancement factors set

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forth in the defendant’s presentence report, including the facts that: (1) a firearm was used
in the commission of the offense; (2) the defendant was a leader with respect to the
commission of the offense, which involve two or more actors; (3) the offense involved more
than one victim; (4) the defendant had no hesitation about committing a crime when the risk
to human life was high; and (5) the victim of each offense was particularly vulnerable. In
addition, the State argued that the defendant’s sentences should be enhanced because the
defendant committed the offenses while on probation, and because the defendant had
committed one or more acts as a juvenile which would have constituted a felony if committed
as an adult.

        The defendant argued that no enhancement factors should apply. The defendant
claimed that the proof at trial did not establish that the defendant was a leader with respect
to the offenses and moreover established that co-defendant Garett was the leader and the
defendant was the follower with respect to the offenses. The defendant claimed that the
enhancement factor concerning offenses involving more than one victim did not apply
because the defendant was convicted of a separate offense with respect to each victim. The
defendant argued that the enhancement factor involving the commission of a crime when the
risk to human life was high was inapplicable because the only risk to human life created by
the defendant’s crimes was the risk to the victims, and this risk was already an inherent
element of each offense. The defendant argued that the enhancement factor concerning the
age and vulnerability of the victims was inapplicable because both victims were slain by
gunshot wounds to the head, and their age would not have affected their vulnerability with
respect to this type of attack. Concerning his use of a firearm to commit the offenses, the
defendant argued that, by its verdict, the jury had necessarily concluded that co-defendant
Garrett was the actual shooter, and therefore there was no evidence that the defendant had
used a firearm to commit the offenses.

       The defense also proffered several mitigating factors. First, the defendant argued that
he was acting under duress created by co-defendant Garrett when he committed the offenses
and that, as reflected by the jury’s verdict of manslaughter, he acted under strong
provocation. The defendant also urged that the strong influence that co-defendant Garrett
exerted over him established both that he played a minor role in the offenses and that grounds
existed to excuse his criminal conduct. Consequently, both of these mitigating factors should
also be applied. Furthermore, the defendant argued that the mitigating factor concerning the
defendant’s lack of substantial judgment in committing the offenses due to youth should
apply because he was fifteen at the time of the killings. In addition, the defendant argued
that the overwhelming influence that co-defendant Garrett had over him meant that the
mitigating factor concerning the presence of unusual circumstances rendering it unlikely that
the defendant’s conduct was motivated by a sustained intent to violate the criminal law was
applicable. Finally, the defendant argued that the mitigating factor that he had acted under

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the duress or domination of another person also applied to his crimes, again based on the
overwhelming influence the defendant claimed that his co-defendant held over him.

       After hearing these arguments, the trial court found that the defendant was a Range
I, standard offender. As such, the applicable sentencing range for each of his Class C
felonies was three to six years. The trial court held that two enhancement factors were
applicable: (1) that the defendant had no hesitation in committing a crime when the risk to
human life was high, and (2) that the defendant had a previous history of criminal behavior
above that necessary to establish his range. The trial court declined to find that the defendant
had committed the crimes at issue while on probation, stating that after going through the
defendant’s juvenile court records (contained in its own internal files) the court “could not
find for certain that he was on probation.” It appears, however, that the trial court did rely
on these records to support its finding that the defendant had engaged in criminal activity
above that necessary to establish his range.

       The trial court found only one mitigating factor to be applicable: that the defendant
lacked substantial judgment in committing the offenses due to his youth. The trial court
proceeded to weigh the aggravating factors and the mitigating factors and concluded that the
former greatly outweighed the latter. The trial court sentenced the defendant to five years
on each count.

      Concerning how these two sentences should be served, the State argued that the
defendant should serve at least a portion of these sentences in prison and that he should serve
the two sentences consecutively because he was an especially dangerous offender. The
defendant argued that his sentences should not be served consecutively, and that he should
be permitted to serve them on probation. The trial judge denied alternative sentencing and
imposed consecutive sentences.

         In so doing, the trial judge observed that although the relevant statute, Tennessee
Code Annotated section 40-35-210(b), stated that he “shall consider,” in “determin[ing] the
specific sentence . . . that shall be imposed,” inter alia, “the evidence . . . received at the
trial,” he believed that he should limit his consideration only to the evidence presented at trial
that supported the lesser crimes of which the defendant stood convicted. Even so, the trial
court stated that the defendant’s convictions involved “two executions that occurred . . . New
Year’s night,” that these crimes were “aggravated,” and that the jury had found that the
defendant had “helped to cover it up.” Consequently, the trial court concluded that
“[c]onfinement of this defendant for an extended period of time [wa]s necessary to protect
society from the defendant’s unwillingness to lead a productive life in society” as well as his
continuing “antisocial lifestyle.” The trial court further concluded that the defendant’s
effective sentence of ten years reasonably related to the severity of the offenses of which he

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stood convicted.

        The defendant filed a timely motion for new trial, which was denied. The defendant
filed a timely notice of appeal to his sentence on August 5, 2005. This matter was submitted
on briefs on July 20, 2011. Our decision follows.

                                         ANALYSIS

        The defendant raises numerous challenges to the trial court’s application of
enhancement factors, the length of the sentences imposed, and the trial court’s decision to
order the defendant’s sentences to be served consecutively. The State concedes, and we
agree, that the trial court erred in applying both enhancement factors. Normally, this error
would prompt us to engage in a de novo review of the defendant’s sentencing, but the record
before this court is insufficient to allow us to properly evaluate the potential applicability of
several other aggravating factors. Consequently, we remand the case for resentencing with
the following principles in mind.

       “The burden of demonstrating that a sentence is erroneous is upon the party
appealing.” State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). If the trial court has
considered all the proper sentencing principles and relevant facts and circumstances, our
review of a defendant’s sentence is de novo with a presumption that the trial court’s
determinations are correct. Id. at 344-45. “If, however, the trial court applies inappropriate
mitigating and/or enhancement factors or otherwise fails to follow the Sentencing Act, the
presumption of correctness fails.” Carter, 254 S.W.3d at 345 (internal quotation omitted).

        An as initial matter, the trial court’s entire sentencing analysis in this case may have
been affected by an erroneous premise – that it could not or should not consider any evidence
presented at trial that was seemingly rejected by the jury when it found the defendant guilty
of only lesser included offenses. To the contrary, a trial judge “shall consider” all evidence
submitted at trial and at sentencing in reaching a decision concerning an appropriate
sentence. T.C.A. § 40-35-210(b) (2009). Consequently, consideration of all the proof
presented at trial is a statutory mandate, one which trial courts are not free to disregard. As
this court has stated, “the trial court is required to take into account all of the evidence
presented at the trial and the sentencing hearing,” and “if evidence of a . . . factor or factors
is presented at the trial or the sentencing hearing, the trial court is required to consider them
in the sentencing process.” State v. Lyle T. Van Ulzen and Billy J. Coffelt, No.
M2004-02462-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 1151, at *10 (Tenn. Crim. App.
Oct. 31, 2005). The fact that a jury finds the defendant guilty of, or a defendant pleads guilty
to, only a lesser included offense does not limit the evidence that must be considered by a
trial court in determining the appropriate sentence. See, e.g., State v. Terence Alan Carder,

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No. W2008-01450-CCA-R3-CD, 2009 Tenn. Crim. App. LEXIS 522, at **5-9 (Tenn. Crim.
App. June 30, 2009) (affirming sentence in pertinent part of a defendant who was sentenced
to confinement based on evidence presented at his sentencing hearing reflecting that he stole
approximate $200,000, even though he pled guilty to theft of less than $10,000); State v.
James R. Smith, No. M2005-00615-CCA-R3-CD, 2006 Tenn. Crim. App. LEXIS 105, at
**24-31 (Tenn. Crim. App. Jan. 31, 2006) (affirming denial of alternative sentencing to
defendant who was charged with two counts of aggravated rape and one count of attempted
aggravated kidnaping, but found guilty only of the lesser included offenses of rape, sexual
battery, and attempted false imprisonment). Instead, “trial court[s] [should] look beyond the
jury’s verdict to the actual facts or circumstances of the offense.” Smith, 2006 Tenn. Crim.
App. LEXIS 105, at *31. Upon remand the trial court shall consider all evidence presented
at trial and look beyond the jury’s verdict to arrive at an appropriate sentence.

        The State concedes that the trial court erred in sentencing the defendant by relying on
two enhancement factors that the record reveals were not applicable on the facts of this case.
Enhancement factor (1): “The defendant had a previous history of criminal convictions or
behavior, in addition to those necessary to establish the appropriate range,” T.C.A. § 40-35-
114(1), may not be applied in this case because it has been held to be mutually exclusive with
enhancement factor (16): “The defendant was adjudicated to have committed a delinquent
act or acts as a juvenile that would constitute a felony if committed by an adult,” T.C.A. §
40-35-114(16). See State v. Jackson, 60 S.W.3d 738, 742-43 (Tenn. 2001). Enhancement
factor (1) applies only to adult criminal conduct or behavior. See id. 742. The criminal
behavior at issue was committed while the defendant was a juvenile, and as such, could be
considered only for purposes of applying enhancement factor (16). See id.

        As the State also concedes, the trial court erroneously applied enhancement factor
(10): “The defendant had no hesitation about committing a crime when the risk to human life
is high,” T.C.A. §40-35-114(10), because, on the facts of this case, the entirety of the risk to
human life posed by the defendant’s conduct was subsumed into the elements of the offenses
of which he stood convicted. The evidence at trial established that the two victims in this
case were executed by single shots to the head while they were lying prone and helpless; their
lives were the only ones placed at risk by the defendant’s conduct, and their deaths are an
inherent element of the defendant’s voluntary manslaughter convictions. “To justify the use
of [enhancement factor 10], the state must prove the defendant ‘demonstrated a culpability
distinct from and appreciably greater than that incident to the offense for which he was
convicted,’” such as in the case of a homicide where the defendant’s conduct posed a threat
to a large number of people before a particular victim was killed. State v. Belser, 945 S.W.2d
776, 792 (Tenn. Crim. App. 1996) (quoting State v. Jones, 883 S.W.2d 597, 603 (Tenn.
1994)). Such additional culpability is not present in this case.



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        We discern no error with respect to the trial court’s rejection of the various mitigating
factors proffered by the defendant. All of these factors that were based on the same premise
– that co-defendant Garrett was the shooter, and that the defendant only assisted him in
carrying out these crimes under provocation and the duress, undue influence, and coercion
forced upon him by co-defendant Garrett. While the defendant claims the trial court erred
by rejecting these mitigating factors because the jury’s verdicts support his version of events,
there was ample evidence put forth by the State at trial – including the testimony of co-
defendant Garrett – that the defendant was the one who bore primary responsibility for
instigating the offenses and was, in fact, the one who shot the victims. The trial court was
free to rely upon this evidence to reject the defendant’s claim that he was a mere “patsy”
(whose sole role in events was to “take a charge” for co-defendant Garrett), and consequently
to reject each of the numerous mitigating factors advanced by the defendant based on this
theory.

         The trial court’s misapplication of enhancement factors would normally trigger pure
de novo review of the defendant’s sentences by this court. However, in this particular case
the state of the record on appeal convinces us that conducting such a de novo review of the
defendant’s sentences would be improvident. While the record is complete enough for this
court to make determinations on issues such as whether the defendant used a firearm in the
commission of the offenses, etc., there is a dearth of material in the record concerning two
potentially important factors aggravating factors – factor (13)(C), whether the defendant was
on probation at the time of the offense, and factor (16), concerning whether the defendant
committed a delinquent act as a juvenile that would have constituted a felony if committed
as an adult. See T.C.A. § 40-35-114(13) & (16). The material necessary to properly analyze
and apply these factors may be in the trial court’s internal files and/or in the files of other
courts, but regardless, it has not yet been entered into evidence and is not part of the record
on appeal. Consequently, in light of the unusual facts and posture of this case, we conclude
that it should be remanded to the trial court for resentencing consistent with this opinion.

                                       CONCLUSION

        Because the trial court erroneously limited its consideration of evidence at sentencing
to that which was supported by the jury’s verdict, erroneously applied two enhancement
factors, and because the state of the record renders appellate de novo review of the
defendant’s sentences improvident, on the facts of this case we elect to vacate the judgments
of the trial court and remand the defendant’s case for resentencing.

                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE



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