             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            JANUARY 1997 SESSION


STATE OF TENNESSEE,             )
                                )     No. 02-C-01-9512-CR-00372
      Appellee,                 )

v.
                                )
                                )
                                )
                                      Shelby County

                                      L. T. Lafferty, Judge
                                                              FILED
KERWIN L. WALTON,               )
                                )     (Aggravated Arson)      September 17, 1997
      Appellant.                )
                                                              Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk




FOR THE APPELLANT:                    FOR THE APPELLEE:

W. Mark Ward                          John Knox Walkup
Asst. Shelby County Public Defender   Attorney General & Reporter
147 Jefferson, Suite 900              500 Charlotte Avenue
Memphis, TN 38103                     Nashville, TN 37243-0497
(On Appeal)
                                      Susan Rosen
Betty Jo Thomas                       Assistant Attorney General
Asst. Shelby County Public Defender   450 James Robertson Parkway
201 Poplar Avenue, Suite 2-01         Nashville, TN 37243-0493
Memphis, TN 38103-1947
(At Trial)                            William L. Gibbons
                                      District Attorney General
OF COUNSEL:                           201 Poplar Avenue, Suite 3-01
                                      Memphis, TN 38103-1947
A C Wharton, Jr.
Shelby County Public Defender         Kevin R. Rardin
201 Poplar Avenue, Suite 2-01         Assistant District Attorney General
Memphis, TN 38103-1947                201 Poplar Avenue, Suite 3-01
                                      Memphis, TN 38103-1947

                                      Karen Cook
                                      Assistant District Attorney General
                                      201 Poplar Avenue, Suite 3-01
                                      Memphis, TN 38103-1947




OPINION FILED: ____________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, Kerwin L. Walton (defendant), was convicted of aggravated arson,

a Class A felony, by a jury of his peers.1 The trial court, finding the defendant was a

standard offender, imposed a Range I sentence of confinement for twenty-five (25) years

in the Department of Correction. The defendant presents one issue for review. He

contends the sentence imposed by the trial court was excessive because the trial court

“improperly applied enhancement factors” and “improperly relied on non-statutory

enhancement factors.” After a thorough review of the record, the briefs submitted by the

parties, and the law governing the issue presented for review, it is the opinion of this Court

that the judgment of the trial court should be affirmed.

       The defendant and his girlfriend lived together in his mother’s residence. On

December 18, 1993, the defendant agreed to keep his girlfriend’s baby before she went

to her mother’s residence. The following evening, December 19, 1993, the defendant

invited friends to visit him at his mother’s residence. They played video games and

smoked marijuana. When the baby began to cry at approximately 9:00 p.m., the defendant

went to the bedroom to see if he could get the child to stop crying. When the baby

continued to cry, the defendant struck the baby in the stomach with his fist. The child

began to gasp for breath. Death ensued shortly after the blow.

       Although the defendant saw his girlfriend at her mother’s residence later that night,

he did not tell her he had killed her baby. Nor did he tell anyone else the baby was dead.

When the defendant returned home during the early morning hours of December 20, 1993,

he lay on the couch in the living room of his mother’s residence. He began to conceive a

way to conceal the fact he had killed the baby. He decided he would start a fire in the

bedroom where the child slept. He thought this would make it appear the child died as a

result of the fire.

       The defendant’s brother and cousin were asleep in another bedroom. Nevertheless,

he entered the bedroom where the dead baby was situated and set fire to the drapes with



       1
       The defendant was also tried for first degree murder. The jury could not reach a
unanimous verdict. A mistrial was entered by the trial court as to this indictment.

                                              1
a cigarette lighter. The drapes were close to the bed in which the baby was lying. The

defendant immediately left the room and returned to the living room. He did not advise

either his brother or his cousin of the fire. However, they awoke when the smoke sensor

was activated. Eventually, all three left the residence. The defendant’s brother was asked

to call the fire department. Shortly thereafter, the firemen arrived and extinguished the fire.

When the baby was found by the firemen, it was horribly burned. The firemen had difficulty

in determining what they discovered was a human being.

       An investigation was triggered to determine the source of the fire. The fire marshal

examined the child. Based upon this examination, the fire marshal determined the child

was dead before the fire was started. His examination also revealed the fire was the result

of arson -- it was started by a human being. An autopsy revealed the cause of death was

blunt trauma to the child’s abdomen. The pathologist concluded the child was dead before

the fire was started.

       The defendant eventually confessed to the murder of the child. He admitted he set

the fire to conceal the death of the child. He was aware his brother and his cousin were

in an adjoining bedroom.

       When an accused challenges the length and manner of service of a sentence, it is

the duty of this Court to conduct a de novo review on the record with a presumption that

“the determinations made by the trial court from which the appeal is taken 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 sentencing principles and all

relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The presumption does not apply to the legal conclusions reached by the trial court in

sentencing the accused or to the determinations made by the trial court which are

predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim.

App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App.), per. app. denied

(Tenn. 1994); State v. Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993). However,

this Court is required to give great weight to the trial court’s determination of controverted

facts as the trial court’s determination is based upon the witnesses’ demeanor and

appearance.



                                              2
       In conducting a de novo review of a sentence, this Court must consider (a) any

evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the

principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives,

(e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g)

any statements made by the accused in his own behalf, and (h) the accused’s potential or

lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210;

State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).

       When the accused is the appellant, the accused has the burden of establishing that

the sentence imposed by the trial court was erroneous.             Sentencing Commission

Comments to Tenn. Code Ann. § 40-35-401; Ashby, 823 S.W.2d at 169; Butler, 900

S.W.2d at 311.

       The trial court found the following enhancement factors were supported by the

evidence: (1) the defendant had a previous history of criminal convictions and criminal

behavior, Tenn. Code Ann. § 40-35-114(1); (2) the defendant had no hesitation about

committing a crime when the risk to human life was high, Tenn. Code Ann. § 40-35-

114(10); and (3) the crime was committed under circumstances under which the potential

for bodily injury to a victim was great, Tenn. Code Ann. § 40-35-114(16). The trial court

should have used the following enhancement factors to increase the defendant’s sentence:

the defendant had a previous history of unwillingness to comply with the conditions of a

sentence involving release into the community, Tenn. Code Ann. § 40-35-114(8); and the

defendant abused a position of private trust, Tenn. Code Ann. § 40-35-114(15).

       The trial court properly used enhancement factor (1) to enhance the defendant’s

sentence within the appropriate range. The defendant was previously convicted of

indecent exposure, criminal trespass, simple possession of an illicit drug, and driving while

his license was suspended. The defendant admitted he smoked marijuana on the evening

he murdered the baby. He had to possess the marijuana in order to smoke it. The

defendant also admitted he killed the baby hours before he set fire to the residence. The

latter two transgressions constitute criminal behavior.

       The trial court properly used enhancement factor (10) to enhance the punishment

within the appropriate range. Contrary to the argument advanced by the defendant, his



                                              3
criminal act placed others in harm’s way. When a deputy sheriff learned there was a baby

inside the residence, he charged into the dwelling in an effort to rescue the baby. The

heat, flames, and smoke were so intense the deputy was unable to enter the bedroom

where the baby was located. In addition, firemen had to enter the residence to extinguish

the fire. These men could have been seriously injured. The fire was intense; the ceiling

in the bedroom had fallen to the floor. Also, the defendant’s brother and cousin were in

danger of being harmed. They were in an adjoining bedroom.

       The trial court should not have used enhancement factor (16) to enhance the

sentence within the appropriate range. This factor refers to the “potential for bodily injury

to a victim was great.” The victims in this instance were the defendant’s brother and his

cousin. Their presence in the residence was an element of the offense of aggravated

arson. Moreover, the General Assembly elevated arson to aggravated arson based upon

the fact a person was inside the dwelling when the fire was started. Obviously, the

motivation for this enhancement was because the potential for bodily injury to an arson

victim was great.

       The trial court should have used enhancement factor (8) to enhance the defendant’s

sentence within the appropriate range. The defendant was convicted of possessing illicit

drugs and placed on probation. He subsequently violated the terms of his probation.

       The trial court should have used enhancement factor (15) to enhance the sentence

within the appropriate range. The defendant’s girlfriend left the baby in his custody, and

he agreed to care for the baby in her absence. Striking the baby with his fist in the

abdomen constituted a breach of this private trust.

       This Court agrees a trial court can only enhance a sentence by using the statutory

enhancement factors. State v. Dykes, 803 S.W.2d 250, 258 (Tenn. Crim. App.), per. app.

denied (Tenn. 1990). Contrary to the defendant’s contention and argument, the trial court

did not use a non-statutory enhancement factor to enhance his sentence. The defendant

has taken certain statements made by the trial court out of context to support his claim.

These statements were made in conjunction with the court’s discussion of enhancement

factor (1). The indictment alleges “there were persons present in said 5001 Larkwood at

the time” the defendant set fire to the drapes. In this case, the fact one or more persons



                                             4
were inside the dwelling when the fire was set enhanced the crime of arson to aggravated

arson. Tenn. Code Ann. § 39-14-302(a)(1). This is the sole factor which could enhance

the offense since a fireman or law enforcement officer did not suffer serious bodily injury

incident to the fire. Tenn. Code Ann. § 39-14-301(a)(2). The trial court made it known it

was using the murder of the baby as criminal behavior. The murder of the baby, and the

setting of a fire to conceal the fact of the murder, are separate and distinct incidences.

Second, the trial court did not use enhancement factor (13) to enhance the defendant’s

sentence as he contends. The trial court noted the defendant was smoking marijuana on

the night in question. He also alluded to the fact he had previously been convicted of

possessing illicit narcotics. Again, the trial court was simply advising the defendant he was

using the marijuana possession on the night in question as criminal behavior. The court

did not mention the defendant was on probation at the time the offense was committed.

In fact, the defendant’s probation had been previously revoked.        The defendant has

failed to overcome the presumption that the findings of fact made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d).




                                   ____________________________________________
                                        JOE B. JONES, PRESIDING JUDGE



CONCUR:



_________________________________________
       DAVID G. HAYES, JUDGE




_________________________________________
     THOMAS T. WOODALL, JUDGE




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