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State v. Adams12/20/1999
more probably than not affected the verdict, so its erroneous admission was not reversible error. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b).
III.
The Defendant complains that his sentences are excessive and that they should be served concurrently instead of consecutively. He was sentenced to the maximum sentence in the range for each offense. The applicable range for the attempted second degree murder was twelve to twenty years, and the applicable range for aggravated burglary and each of the aggravated assaults was ten to fifteen years. The trial court ordered the sentences served consecutively, except for the aggravated burglary conviction, creating an effective sentence of fifty years.
When an accused challenges the length, range, or manner of service of a sentence, 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 sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement made by the defendant regarding sentencing; and (g) the potential or lack of potential for rehabilitation or treatment. State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, - 210.
If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court's findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
At the sentencing hearing, the trial court went through the statutory enhancement factors, finding applicable factors for each conviction and setting forth the facts supporting those factors. The trial court specifically stated that it did not find any mitigating factors, though urged by the Defendant to do so. With respect to the attempted second degree murder conviction, the trial court found the following statutory 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;
(5) The defendant treated or allowed a victim to be treated with exceptional cruelty during the commission of the offense;
(6) The personal injuries inflicted upon or the amount of damage to property sustained by or taken from the victim was particularly great;
(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; . . . . See Tenn. Code Ann. § 40-35-114.
The Defendant argues that the trial court erred in applying factors (5) and
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