IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
STATE OF TENNESSEE v. JOHNNY EDD WINFIELD
An Appeal from the Criminal Court for Hamilton County
No. 206983-206984 Douglas A. Meyer, Judge
No. E1996-00012-SC-R11-CD - Decided June 20, 2000
FOR PUBLICATION
This is an appeal from the Criminal Court for Hamilton County, which convicted the
defendant of two counts of assault. The defendant appealed and argued that the trial court erred in
imposing concurrent sentences of eleven months and twenty-nine days. The Court of Criminal
Appeals concluded that two of the four sentencing enhancement factors applied by the trial court
were improper but affirmed the sentencing after finding an enhancement factor that had not been
applied by the trial court, i.e., that the defendant possessed or employed a deadly weapon during the
offense. Tenn. Code Ann. § 40-35-114(9) (1997). The defendant appealed to this Court arguing that
the Court of Criminal Appeals erred in imposing an enhancement factor based on facts underlying
an offense, aggravated assault, of which the jury acquitted the defendant. We conclude that a court
may apply an enhancement factor based on facts underlying an offense for which a defendant has
been acquitted so long as the facts are established by a preponderance of the evidence. We also hold
that the Court of Criminal Appeals erred in applying the enhancement factor in this case in the
absence of specific factual findings made by the trial court. Finally, we nonetheless affirm the
sentences based on the two remaining enhancement factors.
Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed
ANDERSON, C.J., delivered the opinion of the court, in which DROWOTA , BIRCH, AND HOLDER , JJ.,
AND BYERS , SP . J., joined.
Ardena J. Garth, District Public Defender, and Donna Robinson Miller, Assistant District Public
Defender, Chattanooga, Tennessee, for the appellant, Johnny Edd Winfield.
John Knox Walkup, Attorney General & Reporter and Michael E. Moore, Solicitor General and R.
Stephen Jobe, Assistant Attorney General, Nashville, Tennessee (On Appeal), and William H. Cox,
III, District Attorney General and C. Leland Davis, Assistant District Attorney, Chattanooga,
Tennessee (At Trial), for the appellee, State of Tennessee.
OPINION
We granted this appeal to determine whether a sentencing court may apply an enhancement
factor based on facts underlying an offense for which the defendant has been acquitted.
The defendant, Johnny Edd Winfield, was indicted for the offenses of aggravated assault by
use of a deadly weapon and assault, and he was convicted of two counts of assault.1 In imposing
concurrent sentences of eleven months and twenty-nine days,2 the trial court found four enhancement
factors based on the defendant’s conduct: a history of criminal convictions and criminal behavior;
a history of unwillingness to comply with the conditions of release; the offense was committed while
the defendant was on bail; and the offense was committed under circumstances in which the potential
for bodily injury was great. Tenn. Code Ann. § 40-35-114(1), (8), (13)(A), & (16) (1997).
The Court of Criminal Appeals concluded that the record did not support the trial court’s
findings of two enhancement factors: that the offense was committed while the defendant was on
bail and that the potential for bodily injury was great. The court however upheld the sentences after
finding that Winfield “used” a deadly weapon during one of the offenses, an enhancement factor the
trial court had not applied. Tenn. Code Ann. § 40-35-114(9).3 The defendant argues that it was
erroneous to apply this factor because he was acquitted of the charge of aggravated assault with a
deadly weapon and convicted of the lesser offense of assault.
After reviewing the record and applicable law, we conclude that a sentencing court may apply
an enhancement factor based on facts underlying an offense for which the defendant has been
acquitted so long as the facts are established in the record by a preponderance of the evidence. We
further conclude that ordinarily an appellate court conducting a de novo review is not precluded from
applying an enhancement factor that was not applied by the trial court. In this case, however, there
was conflicting evidence regarding the use of a deadly weapon that required the trial court to make
specific findings and credibility determinations. Given the absence of such findings, we conclude
1
A person commits the offense of assault who “(1) [i]ntentionally, knowingly or
recklessly causes bodily injury to another; (2) [i]ntentionally or knowingly causes another to
reasonably fear imminent bodily injury; or (3) [i]ntentionally or knowingly causes physical contact
with another and a reasonable person would regard the contact as extremely offensive or
provocative.” Tenn. Code Ann. § 39-13-101(a) (1997). A person commits aggravated assault who
commits an assault that causes serious bodily injury to another or commits an assault while using
or displaying a deadly weapon. Tenn. Code Ann. § 39-13-102(a)(1) (1997). The jury also convicted
Winfield of possession of drug paraphernalia, but the trial court granted a judgment of acquittal on
this count.
2
Eleven months and twenty-nine days is the maximum term for a class A
misdemeanor. Tenn. Code Ann. § 40-35-111(e)(1) (1997).
3
Although the Court of Criminal Appeals stated that Winfield “used” a deadly weapon,
the statute requires that a defendant “possessed or employed a firearm, explosive device or other
deadly weapon during the commission of the offense.” Tenn. Code Ann. § 40-35-114(9) (1997).
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that the Court of Criminal Appeals erred in applying the deadly weapon enhancement factor. We
nonetheless affirm the judgment because the two remaining enhancement factors warrant the
sentences imposed.
BACKGROUND
The defendant, Johnny Edd Winfield, had an argument with his girlfriend, Sharon Kennemer,
that escalated into violence. Kennemer’s ten-year-old son, Jeremia Kennemer, was upstairs watching
television with his cousin, Scottie Kennemer, when he heard his mother yelling for someone to call
the police. Jeremia went downstairs and found Winfield standing over his mother and holding a
lamp over her head.
Jeremia testified that when he tried to call 911, Winfield cut the telephone cord with a pocket
knife, held him against a wall, and cut his lip with the knife. Sharon Kennemer threw an empty beer
bottle at Winfield, which hit the wall and shattered. The glass caused cuts to the arm of Scottie
Kennemer, who by that time had also come downstairs. Jeremia and Scottie fled to their
grandmother’s home, which was nearby. Their grandmother called 911.
Officer Iran Meadows, Chattanooga Police Department, testified that she responded to a
“stabbing” call and that she saw Jeremia and Scottie Kennemer at their grandmother’s home.
Scottie had cuts on his arm and hand. Jeremia had a two-inch cut over his mouth, which was
“gushing” blood. Meadows called paramedics due to the heavy bleeding from Jeremia’s injury.
Meadows proceeded to the home of Sharon Kennemer, where she found and arrested Winfield.
There was conflicting evidence at trial regarding the manner in which Jeremia was injured.
Jeremia testified that Winfield cut him with a knife and that he was taken to the hospital and received
stitches in his lip. Jeremia admitted, however, that he told the investigating officer that he had been
hit with the telephone. Moreover, although Jeremia testified that he told hospital staff that he had
been cut with a knife, the history summarized in the hospital medical records, which were admitted
into evidence without objection, indicated that Jeremia received a “lip laceration” from being “struck
in the mouth with a bottle.”4 Similarly, Officer Meadows testified that she learned at the hospital
that Jeremia had been cut with a telephone or a bottle. Finally, Sharon and Scottie Kennemer both
testified that they did not know how Jeremia was injured.
The jury acquitted Winfield of aggravated assault but convicted him of the lesser offense of
assault against Jeremia Kennemer. The jury also convicted Winfield of assault against Sharon
Kennemer. The trial court imposed the maximum sentence of eleven months and twenty-nine days
for each offense after finding four enhancement factors. The Court of Criminal Appeals held that
two of the enhancement factors were not supported by the record but affirmed the sentences after
finding the additional enhancement factor that Winfield committed the offense against Jeremia
4
Jeremia Kennemer’s aunt is listed as the person who filled out the hospital forms, but
it is not clear who gave the medical history or complaint.
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Kennemer with a deadly weapon. Tenn. Code Ann. § 40-35-114(9).
Winfield sought permission to appeal, arguing that the Court of Criminal Appeals
erroneously applied an enhancement factor based on facts underlying an offense for which he was
acquitted. We granted the appeal to review this question of first impression.
ANALYSIS
As this Court has not previously addressed the issue presented in this case, we will begin our
analysis by reviewing the United States Supreme Court’s decision in the similar case of Watts v.
United States, 519 U.S. 148, 117 S. Ct. 633, 136 L. Ed. 2d 557 (1997). The Watts Court,
interpreting the federal sentencing guidelines, held that a verdict of acquittal does not preclude the
district court from considering facts underlying a charge for which there has been an acquittal,
provided that the facts have been established by a preponderance of the evidence. 519 U.S. at 156,
117 S. Ct. at 637. The rationale was twofold: first, an acquittal requires a finding of reasonable
doubt by the jury but does not establish factual innocence; and second, facts relevant to sentencing
must be proven by a preponderance of the evidence and not beyond a reasonable doubt. Id.
We recently employed a similar analysis in State v. Carico, 968 S.W.2d 280 (Tenn. 1998).
The defendant was convicted of the aggravated rape of his step-daughter. The trial court, finding
that there had been evidence of sexual acts other than the single count for which the defendant was
convicted, enhanced the sentence based on the defendant’s history of criminal behavior. Tenn. Code
Ann. § 40-35-114(1). We held that the Sixth and Fourteenth Amendments to the United States
Constitution did not prohibit the sentencing court from considering prior criminal behavior for which
there has been no conviction. Carico, 968 S.W.2d at 287. Like the United States Supreme Court
in Watts, we stressed that facts relevant to sentencing must be established by a preponderance of the
evidence and not beyond a reasonable doubt. Id.
We believe that allowing a sentencing court to consider facts underlying a charge for which
there has been an acquittal is also consistent with the overall statutory scheme under the Criminal
Sentencing Reform Act of 1989. The Act requires the sentencing court to consider a broad range
of factors including “the evidence received both at the trial and at the sentencing hearing, the
presentence report, statutory principles of sentencing, the argument of counsel, the nature and
characteristics of the offense, mitigating and statutory enhancement factors, statements made by the
offender, and the potential for rehabilitation or treatment of the offender.” State v. Pearson, 858
S.W.2d 879, 885 (Tenn. 1993). With regard to enhancement factors, we have observed that the
statute requires only that they be “appropriate for the offense” and “not themselves essential elements
of the offense.” Tenn. Code Ann. § 40-35-114; see State v. Poole, 945 S.W.2d 93, 95 (Tenn. 1997).
The Act does not preclude consideration of facts proven by a preponderance of the evidence, even
where the facts are the basis of a charge for which there has been an acquittal.
Accordingly, we hold that a sentencing court may apply an enhancement factor based on facts
underlying an offense for which the defendant has been acquitted, so long as the facts have been
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established in the record by a preponderance of the evidence.5 We now turn to the question of
whether the Court of Criminal Appeals properly applied the “deadly weapon” factor in this case.
When reviewing the length, range or manner of service of a sentence imposed by the trial
court, the appellate court must conduct “a de novo review on the record with a presumption that the
determinations made by the [trial] court [we]re correct.” Tenn. Code Ann. § 40-35-401(d) (1997).
To facilitate appellate review, the trial court “must place on the record its reasons for arriving
at the final sentencing decision, identify the mitigating and enhancement factors found, state the
specific facts supporting each enhancement factor found, and articulate how the mitigating and
enhancement factors have been evaluated and balanced in determining the sentence.” Poole, 945
S.W.2d at 96.
Where the trial court fails to comply with the statutory provisions of sentencing, appellate
review is de novo without a presumption of correctness. Id. Moreover, if, as in the present case, the
trial court does not apply an enhancement factor, the appellate court is not precluded from applying
the factor when undertaking its de novo review, if the factor is appropriate for the offense and
established in the record. Pearson, 858 S.W.2d at 885.
Here, the Court of Criminal Appeals found that the sentence for Winfield’s conviction for
the assault of Jeremia Kennemer could be enhanced based on the “deadly weapon” enhancement
factor in Tenn. Code Ann. § 40-35-114(9). In this case, however, there was conflicting evidence
with regard to this factor, which hinged largely upon the credibility of a witness.6 Although the
minor victim testified that Winfield cut him with a pocket knife, he had made an inconsistent
statement to the investigating officer about the cause of the injury. Similarly, the hospital medical
records recite that the source of the lip laceration was a beer bottle. We also observe that there was
no evidence that a knife was recovered from Winfield or from the scene or even that the telephone
cord had been cut. The conflict in the evidence is further underscored by the fact that the jury
acquitted Winfield of aggravated assault.
Accordingly, in our view the jury’s acquittal on the charge of aggravated assault did not
preclude the application of this enhancement factor. It did, however, under the circumstances of this
case, require factual findings to be made by the trial court to resolve the conflicts in the evidence and
5
The single published case relied upon by the defendant, State v. Embry, 915 S.W.2d
451 (Tenn. Crim. App. 1995), is therefore overruled to the extent that it is inconsistent with this
opinion.
6
The Court of Criminal Appeals, in discussing the sufficiency of the evidence, noted
that the evidence conflicted with regard to the cause of Jeremia’s injury. The court did not allude
to this conflicting evidence, however, when it applied the deadly weapon enhancement factor.
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to make credibility determinations.7 The trial court heard the testimony and viewed the witnesses
and is in a superior position to an appellate court to make such findings in a case where there is
conflicting evidence regarding the existence of an enhancement factor. Cf., Pearson, 858 S.W.2d at
885 (Court of Criminal Appeals properly enhanced sentence based on defendant’s criminal record
set forth in the presentence report); State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993) (this Court
applied enhancement factors for defendant’s criminal record and abuse of position of trust, but
declined to apply two other enhancement factors where the record did not contain sufficient facts).
Under the circumstances of this case, in which there was conflicting evidence and an
acquittal on the greater charge of aggravated assault, we conclude that the Court of Criminal Appeals
erred in applying the deadly weapon enhancement factor absent specific factual findings made by
the trial court. This does not, however, require that the sentence be reduced. The two remaining
enhancement factors applied by the trial court – that Winfield had a history of criminal convictions
and behavior and that he had a history of unwillingness to comply with conditions of release – are
fully supported by the record. Tenn. Code Ann. § 40-35-114(1) & (8). The presentence report, for
example, indicates that Winfield has at least fifteen convictions for misdemeanors, not including the
present charges. These enhancement factors substantially outweighed the mitigating factor found
by the trial judge that Winfield was receiving treatment for his alcohol abuse. Accordingly, we
affirm the Court of Criminal Appeals’ judgment.
CONCLUSION
We conclude that a sentencing court may apply an enhancement factor based on facts
underlying an offense for which the defendant has been acquitted. We also conclude that the Court
of Criminal Appeals erred in applying the deadly weapon enhancement factor under the
circumstances of this case absent specific findings of fact by the trial court. We, however, have
further determined that the sentence should not be reduced because the two remaining enhancement
factors applied by the trial court are sufficient to support the sentence. The judgment of the Court
of Criminal Appeals is affirmed. It appearing from the record that the defendant is indigent, costs
are assessed to the State of Tennessee.
7
Indeed, even in cases where there has not been an acquittal, we have stressed that the
better practice is for the trial court to make the necessary findings regarding enhancement and
mitigating factors. Pearson, 858 S.W.2d at 885.
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