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State v. Adams12/20/1999
entences.
With respect to the aggravated burglary conviction, the trial court found the following enhancement factors:
(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range;
(9) The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of the offense;
(11) The felony resulted in death or bodily injury or 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;
(16) The crime was committed under circumstances under which the potential for bodily injury to a victim was great; . . . . See Tenn. Code Ann. § 40-35-114.
The Defendant challenges the applicability of factors (11) and (16) to this conviction. As previously determined, the prior felony conviction supporting the application of factor (11) to all of the convictions was properly introduced into the record and relied upon by the trial court. Factor (16), however, was improperly applied. Aggravated burglary is the burglary of a habitation. Tenn. Code Ann. § 39-14-403. It is "aggravated" only because it is the burglary of a habitation as opposed to some other type of structure. See id.; id. § 39-14-402. As this Court has previously noted, the General Assembly has enhanced the punishment for aggravated burglary and " n doing so, the General Assembly recognized that the potential for bodily injury to the victim is great when these crimes are committed. Thus, a trial court should not apply this factor absent extraordinary circumstances." State v. Smith 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994). We do not believe extraordinary circumstances are present in this case which would allow the application of this factor. However, the trial court found the presence of three other enhancement factors, giving great weight to two of those factors, and it did not find any mitigating factors. We believe that the maximum sentence for the aggravated burglary was appropriate considering the three enhancement factors.
Finally, the Defendant challenges the imposition of consecutive sentences. Pursuant to Tennessee Code Annotated § 40-35-115(b)(2), (4), the trial court ordered consecutive sentences after finding by a preponderance of the evidence that the Defendant is an offender whose record of criminal activity is extensive and that the Defendant is a dangerous offender whose behavior indicates little or no regard for human life and no hesitation about committing a crime in which the risk to human life is high. While either of these factors would support consecutive sentencing, see Tenn. Code Ann. § 40-35-115(b), both factors are supported by the record.
The Defendant stipulated his prior criminal history. The presentence report reflects seven prior felony convictions and six prior misdemeanor convictions. These convictions range in time from April 1978 to May 1993 and include such crimes as assault, aggravated assault, escape, burglary, and sexual battery. The presentence report also reflects pending coercion of a witness charges stemming from the letters and pictures sent to Ms. Lewis, as well as twenty-seven arrests that did not result in convictions or have unknown dispositions. These arrests range in time from May 1978 to December 1993. Based on the Defendant's prior criminal record, the evidence does not preponderate against the determination that the Defendant is an offender whose record of criminal activity is extensive; thus this finding supports the imposition of consecutive sentencing. See State v. Lee, 969 S.W.2d 414
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