FILED
November 16, 1998
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
Cecil W. Crowson
AT NASHVILLE Appellate Court Clerk
JANUARY SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9701-CC-00035
)
Appe llant, )
) MAURY COUNTY
V. )
)
) HON . JAME S L. W EATH ERF ORD ,
PHILLIP DREW CANTWELL, ) JUDGE
)
Appellee. ) (ENVIRONMENTAL VANDALISM)
OPINION CONCURRING IN PART AND DISSENTING IN PART
W hile I concur in most of the opinion of the Court, I must dissent from those
portions of the principal opinion which indicate that an acquittal of previous criminal
charges preclu des the Sta te from u sing the a ctivity alleged in the char ges to
enhance a senten ce. I can find no con stitutional or statutory prohibition on the
State ’s relitigation of activity alleged in criminal indictments resulting in acquittal
when the relitigation occurs at a subsequent proceeding where the standard of proof
is lower tha n a crim inal trial. Indee d, I find am ple case law to the effect that such a
relitigation is quite perm issible. See, United S tates v. W atts, 519 U.S. 148, 117 S.Ct.
633, 136 L.E d.2d 55 4 (1997 ); Dowling v. United States, 493 U.S. 342, 349, 11 0 S.Ct.
668, 672, 10 7 L.Ed.2d 7 08 (1990).
In the case sub judice the majority holds that the following enhancement
factors at Tennessee Code Annotated Section 40-35-114 do not apply because of
acquittal in other charges arising out of this case of environmental vandalism:
(1) the defendant has a p revious h istory of crim inal . . .
behavior in addition to those necessary to establish the
appropriate range;
(2) the defendant was a leader in the commission of an
offense involving two (2) or more criminal actors.
With respect to enhancement factor (1) the m ajority fin ds tha t the ap pellan t’s
acquittal of additional counts charged in the indictme nt preclud es relitigation at a
sentencing hearing of those alleged criminal acts. Regarding enhancement factor
(2) the majo rity conc ludes that the acqu ittal of the appe llant’s emp loyees mak es this
a crime involving only one actor and that therefore application of this factor is
improper. However, the United States Supreme Court has held:
“‘[A]n acquittal is n ot a finding of any fact. An acquittal can
only be an ackno wledgm ent that the governm ent failed to
prove an essential element of the offense beyond a
reaso nable doub t. W ithout s pecific jury findin gs, no one
can logically or realistically draw any factual finding
inferences. . .’” (citation omitted)
Wa tts, 117 S.C t. at 637. Thus, at a sentencing hearing, criminal behavior which has
nevertheless resulted in an acquittal may be submitted on the issue of sentencing
since the sta ndard of proo f is lower, i.e., a preponderance of the evidence standard.
Id.; See, State v. Carter, 908 S.W.2d 410 (Tenn . Crim. A pp. 199 5); State v. Richard
J. Crossman, Wilson Co. No. 01C01-9311-CR-00394 (opinion filed Oct. 6, 1994 at
Nashville) app. denied (Tenn. January 3,1995) (holding that preponderance of
evidenc e stand ard app lies at sente ncing he arings.)
Although the cases cited he reinabove largely deal with federal constitutional
and statutory law regarding the use at sentencing of charges which have resulted
in an acquittal, I find nothing in the Tennessee Constitution or our statutes which
would w arrant a d ifferent resu lt.
Finally, although the trial court d id apply enhancement factor (3), i.e., that the
offense involved more than one victim, the majority finds it inappropriate to count as
“victims” those individu als named as victims in the counts of the indictment for which
the defendant was acquitted. Based on the reasoning outlined above, I would affirm
the use of this enhancement factor, however because the trial court never
considered enhance ment factors (1 ) and (2), I would reverse and remand this case
for a new sentencing hearing wherein these factors and facto r (3) are cons idered in
conjunction w ith one anothe r.
For thes e reaso ns I conc ur in part an d dissen t in part.
__________________________
JERRY L. SMITH, JUDGE