State v. James Gordon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
NOVEMBE R SESSION, 1997 February 5, 1998

Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9611-CC-00495
)
Appellee, )
)
) WILLIAMSON COUNTY
VS. )
) HON . DON ALD P. HA RRIS
JAMES E. GORDON, ) JUDGE
)
Appe llant. ) (Aggravated Burglary and First
) Degree M urder)

ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF WILLIAMSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN H. HENDERSON JOHN KNOX WALKUP
Public Defender Attorney General and Reporter
407 C Main Street
P.O. Box 68 ELIZABETH B. MARNEY
Franklin, TN 37065-0068 Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243

JOSEPH BAUGH
District Attorney General
P.O. Box 937
Franklin, TN 37065-0937

OPINION FILED ________________________

AFFIRMED AS MODIFIED

DAVID H. WELLES, JUDGE
 OPINION

The Defendant, James Earl Gordon, appeals as of right pursu ant to R ule

3, Tennessee Rules of Appellate Procedure. He was convicted of first-degree

intentional murde r and se ntence d by the ju ry to life impris onme nt without the

possibility of parole. H e was a lso conv icted of aggravated burglary and

sentenced as a Range I, standard offender to six years imprisonment in the

Department of Corre ction, to be served conse cutively to h is senten ce of life

without parole . The D efend ant rais es se veral is sues in this appeal: (1) That the

evidence was insufficient to convict him of first-degree murder; (2) that the

evidence was insufficient to convict him of aggravated burglary; (3) that the jury

erred by sente ncing him to life withou t the po ssibility of parole for his murder

conviction; (4) that the trial court erred by ordering a six-year sentence for the

aggravated burglary conviction; and (5) that the trial court erred by ordering the

aggravated burglary sentence be served conse cutively to th e sente nce of life

without parole.

The Defendant was convicted of killing his father-in-law, Don Beasley. Don

Beasley, his wife Lou, and daugh ter Am y wer e living in St. Lou is, Miss ouri in

early 1992 w hen Am y beca me ac quainte d with the Defen dant. Do n Beas ley, a

former architect, and Lou Beasley were pursuing careers in the ministry. Amy

Beasley met th e Def enda nt her firs t night o f work as a str ipper in a bar in Ea st St.

Louis. He told her she “was the one” and that he was going to marry her. Amy

began a romantic relationship with the Defendant and became pregn ant by him

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in the summer of 1992. They ma rried on Octob er 9, 1992. Th eir daughter,

Savannah, was born in March, 1993. Don and Lou Beasley moved to Franklin,

Tennessee on December 1, 1994, and both of them were employed by a local

church.

Amy and the Defendant developed marital problems which included

altercations. Amy first visited her parents in Franklin, then moved to Tennessee

in February, 1995 and instituted divorce proceedings. Amy was employed by an

autom obile dealer in Franklin, from whom she bought a red Honda Accord. The

Defendant was angry and frequently called her parents’ house, where Amy was

living. He made frequent attempts to reconcile with Amy, who wavered

regarding her intent to divorce the Defen dant. Th e Defe ndant m oved to Nash ville

in March or April of 1995 , return ed to S t. Louis , then m oved back to the N ashv ille

area in August, 1995. He was living with several roommates in Madison,

Tennessee. The Defendant was emplo yed as a salesm an by the Castne r-Knott

depa rtmen t store in down town Nash ville and also w orked at a do wnto wn ho tel.

Amy and the Defen dant ha d som e conta ct with each other, and she staye d at his

residence at least once. She renewed her filing for a divorce in June or July.

The Defendant alternatively was angry w ith Amy , then m ade atte mpts to

recon cile and w as ap ologe tic. He w ould ta lk with Don and Lou Beasley and ask

them to “please straighten her out.” He asked them to help him get her back.

The Beasleys refrained from involvement and told the Defendant that the

relation ship problems were to be solved between him and Amy. However, the

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Defendant blamed the Beasleys, and Don Beasley in particular, for med dling in

his relationship with Amy and turning her against him. Lou Beasley denied that

the Defendant’s being black and Amy’s being white was a problem.

The Defenda nt began to ca ll Amy mo re frequently during the tim e sho rtly

before the murder, which occurred on September 28, 1995. He called her at

work and at home, sometimes eight times a day, in an attempt to win her back.

He frequently blamed her father and stated that he should “stay out of it.” The

Defendant referred to Don Beasley in approximately half of the conversations

between him and Am y. Amy continue d to allow visitation between the Defendant

and the ir daugh ter, Sava nnah. T hey us ually me t at a park o r a restau rant.

Amy moved from her parents home to an apartment in Antioch,

Tennessee, approximately a week before Don Beasley’s murder. The Defendant

came to the Beasleys’ home in Franklin the day before she moved and helped

Amy strip furniture. He also helped her move to the apartment the next day. On

Tuesday, September 26, the Defendant showed up at Amy’s apartment at

appro xima tely 6:00 or 7:00 p.m. He was visibly angry and wanted to move in.

Amy refused his de mand. T his was the las t time she saw the Defend ant before

her father’s death.

The Defendant also discussed his marital problems with his coworkers at

Castne r-Knott. Sam McCullough worked with the Defendant and stated that the

Defendant complained that his in-laws were meddling and caused his marital

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problems. He appeared agitated and angry. The Defendant stated that he

wanted to kill Don Beasley. McCullough saw the Defendant at Castner-Knott on

Thursday, September 28, 1995, the day of the murder. The Defendant cashed

a check there and looked stressed. He also saw the Defendan t walking in

downtown Nashville the day after the murder. Paul Francis also talked with the

Defendant at work. Francis stated that the Defendant wanted to move into the

apartment with Am y and tha t she wo uld not allo w it. He was very unhappy and

agitated.

Between 3:00 and 4:00 p.m. on the afternoon of the murder, the Defendant

received a check from the Hermitage Hotel and cashed it at Castner-Knott. He

bought a six-pack of beer and drank some of it. The Defendant caught a taxi at

the Nash ville bus station and directed the driver to take him to Franklin. He was

dropped off at the m ain Fran klin exit off Inters tate 65. Th e Defe ndant w alked to

the Atla s car re ntal ag ency and re ceive d ass istanc e in calling a taxi. He held a

slip of paper. He did not appear to be intoxicated. Taxi driver William No rthern

picked up the Defendant at 5:30 p.m. The Defendant pointed towards the

location. On the paper he was holding was written “2 13 Pipp in Hollow Court.”

Northern and the Defendant drove around looking for the address. They stopped

at a pay phone, Northern suggested calling the police to find the address and

gave the Defendant the phone number. The Defendant dialed, then handed the

phone to Nor thern, w ho he ard a “w rong n umb er” me ssag e. After calling

information and lo oking at the ta xi drive r’s ma p, they conc luded th at the street

was “Tippett.” They drove to that location. The Defendant instructed the driver

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to turn around in the cul-de-sac at which the Beasley’s house was located and

stop near some trees so he could stash his beer in the woods. The Defendant

did not appear intoxicated and Northern did not see him drink, but he did seem

somewhat disoriented.

A neighbor, Mike Marlin, saw the Defen dant arrive in the taxi, aligh t, and

head towards the Bea sley resid ence. H e appe ared to be holding a grocery sack

as if it held a heavy object. The Defendant walked quickly with his head down.

Neither Don nor L ou Beas ley we re at ho me. D on ha d atten ded a sem inar in

Nash ville in the mo rning an d took A my to th e hosp ital in the aftern oon. He left

Amy there, and he and S avan nah, w ho wa s app roxim ately tw o-and -a-ha lf years

old, returned to Franklin in Amy’s car. Lou Beasley saw him arrive at the church

at approximately 7:10 or 7:15 p.m. and noted that he stayed approximately

twenty m inutes.

Meanwhile, the Defendant broke into the Beasley home through the side

door to the garage. He stated that he broke the window with a brick and

unlocked the door, yet the evidence suggests that the window was pried open

with an ob ject. Th e Def enda nt sat in the house for awhile and d rank som e beer.

A cigarette butt of the brand the Defendant smokes was also found in an upstairs

bedroom. He heard Don Beasley return with Savannah. The Defendant moved

from a chair dow nstairs an d wen t upstairs. Savannah was “fussing, crying and

hollering” and Beasley was “picking” at her, or teasing her. The Defendant came

down from the upstairs into the kitchen and confronted Don Beasley, who told the

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Defendant to take the child. Savannah took her blanket and went upstairs. The

Defendant stated that he “snapped” and stabbed Beasley with scissors he got

from a kitchen drawer.

The Defen dant dra gged B easley’s body from the kitche n dow n a sm all

flight of steps in to the garage and covered him with a sheet he found there. He

left in Amy’s red Honda. At first, he took the wrong exit onto Interstate 65 and

was heading south. He turned around and drove back to Nashville. He tossed

out the sc issors while driving on the highw ay nea r some construc tion equip ment.

Lou Beasley returned to the house at approximately 9:45 p.m. She opened

the garage to park he r car and noticed a n object b locking th e parking space .

She recog nized her hu sban d’s ten nis sho es, an d lifted th e she et and saw h is

body. She ran to use the phone, but there was no service. She then ran to a

neigh bor’s house, called 911, and had the neighbor look for Savannah, who was

found asleep in an upstairs room. Lou Beasley later discovered that the

telepho ne wires in the kitche n and th e upsta irs bedro om ha d been cut.

Emergency personnel, officers, and detectives with the Franklin Police

Department arrived at the scen e of the murd er. The victim, Don Beasley, was

lying, face up, in the garage. The victim’s chest was c overe d in blo od. His right

arm was bent behind his back in a awkward position. After detectives spoke with

Lou Beasley, the Defendant became the primary suspect for the killing.

Numerous blood samples were taken from the garage floor, the stair railing, the

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door to the garage, and the kitchen. A pair of cotton work gloves, with what

appeared to be a blo od stain, w as collec ted. It appeared that the side door to the

garage had been pried open. The window in the door had two layers of glass.

The outside glass was broken, but the inside was not. The metal frame of the

inner win dow w as pried o pen.

Later that night, at approximately 2:00 a.m., th e Def enda nt’s roo mm ate in

Madison saw him come in the apartment in to get his coat. After he left, the

Defendant appeared to stagger as he walked through the complex parking lot.

In the Defendant’s statement, he claimed that he was drinking heavily and went

to the Classic Cat, an exotic dancer club. He also claimed that he w alked to

Madison to get his coat, returned to Nash ville, and sle pt at the co nstruction site

for a new stadium.

The Defendant was arrested in downtown Nashville the day after the

killing. He attempted to run away when he saw a police officer approaching him,

but stopp ed wh en he saw a seco nd offic er. Wh ile the D efend ant w as be ing he ld

in Nashville, he was interrogated by detectives from Davidson County and

Williamson County. The Defendant waived his Miranda rights and answered the ir

questions, implicating himself as Don Beasley’s killer. The Defendant led the

detectives to the location where he left the red Honda. The Defendant had stated

that he threw the keys on a building. They were not recovered. The Detectives

confiscate d the Defendant’s shirt, pants, socks and shoes for testing at the

forens ic laboratory. They also found an envelope and a napkin in the

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Defe ndan t’s back po cket, wh ich were collected as evide nce. The scissors used

in the murder were not found.

Dr. Charles Harlan was the medical examiner who cond ucted the fore nsic

examination of the victim. He determined the cause of death to be “multiple stab

wounds to the chest.” Dr Harlan counted a total of twenty-four stab wounds.

There were four stab wounds to the back. He noted that ten of the wounds were

of significance. Those wounds perforated both lungs an d severed the pulmon ary

artery. The resulting blood loss into the chest cavity caused the death of the

victim. Dr. Harlan also noted abrasions on the upper body and face, indicating

that the body was rubbed over a firm rough surface. There w ere m ultiple

lacerations to the hands and on his arm that appeared to be defensive wounds.

The victim’s humerus in his right arm had a compound fracture that was incurred

before death. Dr. Harlan estimated that death occurre d appro ximate ly ten to

fifteen minutes after the significant wounds were inflicted.

The various blood samples taken from the Beasley residence were tested

to determine whether they consisted of human blood. In addition, blood samples

were taken from Don Beasley and the Defendant. Testing revealed that the

samples from the garage floor, the stair handrail and the door frame were human

blood. Human blood was detected on the cotton work gloves, the napkin from

the Defendant’s pocket, and the Defendant’s pants and shirt. Certain blood

samples were transferred to the TBI’s DNA testing laboratory for further analysis.

DNA analysis indicated that the victim’s blood matched the samples from the

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napkin, the swa bs taken from the garage , and the D efendant’s pants in a four-

probe match. The probability of a match at that level was one in twenty-four point

seven million. A three-probe match was ind icated on the Defe ndant’s s hirt, with

a one in two million proba bility of m atchin g the v ictim’s blood . The D efend ant’s

blood matched none of the samples.

I.

As his first issue, the Defendant contends that the evidence was

insufficient to support a verdict of guilt for first-degree intentional murder. When

an accused challenges the sufficiency of the convicting evidence, the standard

is whether, after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime b eyond a reaso nable d oubt. Jackson v. V irginia, 443 U.S. 307, 319

(1979). Questions concerning the credibility of the witnesses, the weight and

value to be give n the evid ence, a s well as a ll factual is sues raised by the

evidence, are reso lved by th e trier of fact, no t this court. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or

reevalu ate the evide nce. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474,

476 (Tenn. 1 973). O n appe al, the State is entitled to the s tronges t legitimate

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view of the evidence and all infere nces the refrom. Cabbage, 571 S.W.2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Te nn. 198 2); Grace, 493

S.W.2d at 476.

The killing of Do nald Be asley too k place o n Septe mber 2 8, 1995. The

applic able first degree murder statute was amended, effective July 1, 1995, and

states the following:

(a) First degree murder is:
(1) A prem editated and inte ntional killing of another;
...
(d) As used in subdivision (a)(1) "premeditation" is an act done after the
exercise of reflection and judgment. "Premeditation" means that the
intent to kill must have been formed prior to the act itself. It is not
necessa ry that the purpose to kill pre-exist in the mind of the accused
for any definite period of time. The mental state of the accused at the
time the accused allegedly decided to kill must be carefully considered
in order to determine whether the accused was sufficiently free from
excitement and passion as to be capable of premeditation.

An inte ntiona l act is statuto rily defin ed: "Inte ntiona l" refers to a p erson w ho acts

intentio nally with respect to the nature of the conduct or to a res ult of the conduct

when it is the perso n's conscious objective or desire to engage in the conduct or

cause the resu lt. Tenn. C ode An n. § 39-1 1-302(a ).

In the case sub judice, the Defendant broke into the Beasley home and

concealed himse lf in the upstairs of the home for over an hour before Don

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Beasley returned. A cigarette butt of the type of cigarette the Defendant smokes

was found in an upstairs bedroom, and the Defendant admitted in his confession

that he waited in the home for over an hour. The cords to two telephones in the

house were cut clean ly and in hidd en loc ations wher e it was not im med iately

appare nt that they had be en cut.

The Defendant asserted in his statement that he went to the Beasley home

just to talk, yet circumstances surrounding the offense suggest otherwise. The

Defendant openly expressed hostility towards Don Beasley. Amy Beasley

testified that the Defe ndan t stated her fath er sho uld “sta y out” o f their

relationship. Shortly before the murder, the Defendant called sometimes eight

times daily, and he referred to Don Beasley in half of those conversations. The

Defe ndan t’s coworke r, Sam McCullough, talked with the Defendant, who made

it clear that he disliked his father-in-law. The Defendant told McCullough that his

in-laws were meddling in his marriage and tha t he wou ld like to kill Don Beasley.

The Defendant claimed that he went to talk to the Beasleys. Yet, rather

than telephoning them, the Defe ndant to ok a taxi fro m Na shville to Franklin to go

to their house. He caught another taxi in Franklin and told the driver that his car

broke down on the inte rstate. The y spen t time sea rching for th e Beasley

residence, taking several wrong turns. When they reached the correct street, the

Defendant directed the driver to let him out of the taxi not in front of the house,

but down the stre et. He told the driver th at he h ad to h ide his bag w ith bee r in

some wood s. However, the neighbor Mike Marlin, who was standing in his front

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yard, saw the Defendant walking toward the Beasleys with a paper bag under his

arm.

When Don Beasley returned home, the Defendant confronted him, which

culminated in Beasley’s death. The Defendant inflicted twenty-four stab wounds

on the victim, plus numerous defensive wounds. The victim’s arm was broken

as well. The Defendant dragged the victim into the garage and attempte d to

conceal him with a shee t. The De fendan t fled the scene in Amy Beasley’s car

and drove b ack to Nashville. When police spotted him, the Defendant tried to run

from the officers, but was apprehended.

After careful consideration of the evidence in the record, we cannot

conclude that it was insufficient to support the jury’s finding that the Defendant

both premeditated and intended to kill Don Beasley. The Defendant stabbed the

victim repeatedly in the chest area. This is certainly sufficient to demonstrate that

he intended to kill the victim. There is also sufficient evidence to show that the

intent to kill was form ed prior to th e act itself. Th e Defe ndant claimed that he

“snapped” when he heard Don Beasley “picking” at his daughter. Yet, other

evidence suggests that the Defendant planned the killing. The Defendant had

expressed his dislike for and desire to kill the victim. Instead of waiting outside

the Beasley residence, the Defendant broke into the home and secreted hims elf

upstairs. The telep hone line s were cut. The D efenda nt arme d hims elf with

scissors which were clearly capable of being used as a deadly weapon. We no te

that the predecessor statute for first degree murder required that the perpetrator

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deliberate with a cool, dispassionate intent to kill. See Tenn. C ode An n. § 39-13-

202(1991); State v. Brown, 836 S.W .2d 530 (Tenn. 1 992); State v. West, 844

S.W.2d 144 (T enn.1 992). S ubse quen tly, this p rovision was amended and

deleted the deliberation requirement. The current section reflects that “[i]t is not

necessa ry that the purpo se to k ill pre-exist in the mind of the accused for any

definite period of time. The mental state of the accused at the time the accused

allegedly decided to kill must be carefully considered in order to determine

whether the accused was sufficiently free from excitement and passion as to be

capable of pre meditation.” Ten n. Code A nn. § 39-13-2 02(d) (1997 ).

The Defe ndan t denie d that h e had any in tent to k ill the victim until after he

confronted Don Beasley. He asserts that he just snapped and that he got the

scissors out of a drawer after Beasley had seen him and that “I guess I just

stabbed him.” Ho weve r, conside ring the ev idence in the light m ost favora ble to

the State, the jury could have reasonably concluded that the Defendant

intentiona lly and w ith prem editation k illed the victim .

II.

Next, the Defendant contends that the evidence was insufficient to

convict him of ag gravate d burgla ry. In particular, he argues that the State did not

establish the requisite intent to commit an assault when the Defendant entered

the Bea sley resid ence.

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 According to Tennessee Code Annotated section 39-14-403, a person

comm its aggravated burglary when he or she commits burglary of a habitation as

defined in Tennessee Code Annotates sections 39-1 4-401 a nd 39-1 4-402. A

"habitation" is defined as "any structure, including buildings, mobile homes,

trailers and te nts, wh ich is designed or adapted for the overnight accommodation

of person s." Tenn. C ode An n. § 39-1 4-401(1 )(A). "A pe rson co mm its burglary

who, without the effective consent of the property owner enters a building, other

than a habitation (or any portion thereof) not open to the public, with intent to

com mit a felony, theft or assa ult . . . ." Tenn. Code Ann. § 39-14-402(a)(1)

(empha sis added).

The Defendant charges that he went to the Beasley residence only to talk.

Yet, a jury m ay infe r a defe ndan t’s spec ific intent from the surrounding facts and

circumstances. State v. Robe rts, 943 S.W.2d 403, 410 (Tenn. Crim. A pp. 199 6).;

State v. Chrisman, 885 S.W.2d 834, 837 (Tenn . Crim. A pp. 198 2). A

defen dant’s “declared purpose is but one factor in ascertaining w hether his entry

was with felonious intent.” State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App.

1993). Indeed, one’s actions are circumstantial evidence of his or her intent. Id.;

State v. Barker, 642 S.W .2d 735, 737 (Tenn. Crim . App. 1982 ).

Here, although the Defendant stated that his purpose was just to talk, he

chose to break the garage window surreptitiously and enter the home. The

Defendant cut the tele phone wires, w hich would prevent someone from calling

for help. One intending merely to talk would have little need to restrict the ability

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of his compa nions to use the telephone. Fu rthermore, w hen the D efendant he ard

Don and Savannah come home, he hid upstairs and listened. The Defendant

then came downstairs, confronted Don Beasley, and, by the Defendant’s own

admission, proceeded to stab him. The medical examiner noted four stab

wounds in the victim’s back. Beyond this, Beasley’s arm was broken with a

compound fracture and was bent behind his back. On this record, we believe

that the jury had more than ample evidence with which to infer that the Defendant

intended to commit an assault upon the victim when he entered the home.

Therefo re, we co nclude that this issu e is withou t merit.

III.

In his third issue, the Defendant argues that the jury erred by imposing a

sentence of life withou t parole. Th e State d id not see k the dea th pena lty in this

case, leaving as available sentences either life without the possibility of parole or

life imprisonment with the possibility of parole after twenty-fiv e years . See Tenn.

Code Ann. §§ 39-13-302; 39-1 3-207 . In sen tencin g whe n the d eath p enalty is

not sought, if the jury unanimously determines that the State has proven one or

more aggravating circumstance s, they m ust impo se a sen tence o f life or life

without parole. Tenn. Code Ann. § 39-13-207. After a separate sentencing

hearing, the jury set the sentence at life without parole.

The State proposed two statutory aggravating circumstances: That “(5)

[t]he “murder w as especia lly heinous, atrocious , or cruel in that it involved torture

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or serious physical abuse beyond that necessary to produce death; and that “(7)

[t]he murd er wa s kno wing ly com mitted, solicited, directed, or aided by the

defend ant, while the defendant had a substantial role in committing or attempting

to commit, or was fleeing after having a substantial role in committing or

attempting to commit, any first degree murder, arson, rape, robbery, burglary,

theft, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of

a destructive dev ice or bomb .” Tenn. Code Ann. § 3 9-13-20 4(i)(5),(7). In

mitigation, defense counsel presented evidence suggesting that the Defendant

suffered from a mental illness and that he was intoxicated at the time the crime

was com mitted . It is unclear from the record or the briefs in what categories of

the statutory mitigating circumstances the evidence was accepted. At best, the

defense offered evidence to support mitigating factor (2), that the “murder was

comm itted while th e defe ndan t was u nder th e influe nce o f extrem e me ntal or

emotional disturbance” and/or (9), the catchall mitigating circumstance. Tenn.

Code A nn. §§ 39-13 -204(j)(2),(9).

The Defendant’s primary argument is that the State failed to prove the

aggravating circumstances beyond a reasonable doubt as is required by

Tennessee Code Annotated section 39-13-207(c). We disagree. Regarding the

heinous, atrocious and cruel circumstance, there was clearly sufficient evidence

to support the finding of this aggravato r. The D efend ant sta bbed the vict im

twenty-four times . Dr. Ch arles H arlan te stified th at the v ictim w ould h ave fe lt

severe pain and that it took upwards of ten to fifteen minutes to die. See State

v. Smith , 868 S.W.2d 561, 580 (Tenn. 1993). There is evidence of numerous

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defensive woun ds, sugg esting tha t the victim was aw are of an d attem pting to

protect himse lf against the onslaug ht. See State v. Sutton, 761 S.W.2d 763,

767 (Tenn. 1 988); State v. Melson, 638 S.W.2d 342, 3 67 (Ten n. 1982 ). In

addition, the vic tim’s h ume rus w as bro ken in a com poun d fractu re prior to his

death. This also demon strates that the De fendant inflicted torture upon the vict im

in a cruel an d vicious fashion. See State v. Odom, 928 S.W.2d 18, 26 (Tenn.

1996).

Furthermore, we find that the evidence also supports the imposition of

aggravating circumstance (7). The murder was knowingly committed while the

Defendant had a substantial role in committing an aggravated burglary. We have

already concluded that the evidence was sufficient to support the jury’s verdict

of guilt for aggravated burglary. The Defendant was the only participant in the

burglary or the murd er. Therefore, w e can only co nclude that the jury did not err

in applying this statutory aggravating circumstance.

Finally, it was incum bent upon the jury to “weigh a nd conside r the statutory

aggravating circumstance or circumstances proven by the state beyond a

reaso nable doubt and any mitigating circumstance or circumstances.” Tenn.

Code Ann. § 39-13-207(d). The determination of whether the sentence is life or

life without parole is made with the jury’s “considered discretion.” Tenn. Code

Ann. § 39-13-207(c). Apparently, the jury considered the evidence and

determined that the aggravating circumstances outweighed the mitigating

circumstances in setting the sentence at life without parole. We cannot reweigh

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or reeva luate th e evid ence cons idered by the jury. Th erefor e, we can o nly

conclude that the jury properly impos ed the se ntence of life withou t the poss ibility

of parole.

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 IV.

As his fou rth issu e, the D efend ant ch arges that the trial cou rt erred in

imposing the ma ximum six-year s entenc e for his co nviction for aggravated

burglary. When an accused challenges the length, range, or the manner of

service of a sentence, this court has a duty to conduct a de novo review o f the

sentence with a presum ption that the determ inations mad e by the trial court are

correct. Tenn. C ode An n. § 40-3 5-401(d ). This pres umptio n is "cond itioned upon

the affirmative show ing in the record that the trial court considered the sentencing

principles and all relevant facts and circums tances ." State v. Ashby, 823 S.W.2d

166, 169 (T enn. 1991 ).

In conducting a de novo review of a sentence , this court must consider: (a)

the evidence, if any, received at the trial and the sentencing hearing; (b) the

presentence report; (c) the princip les of sen tencing a nd argu ments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehab ilitation or treatm ent. Tenn. Co de Ann . §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our review reflects that the trial court followed the statutory sentencing

procedure, imposed a lawful sentence after having given due consideration and

proper weight to the factors and principles set out under the sentencing law, and

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that the trial c ourt'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 ).

The Defendant was convicted of aggravated burglary, a Class C felony.

Tenn. Code Ann. § 39-14-4 03(b). A fine was set by the jury at $10,000.00. The

Defendant was sentenced as a standard, Range I offender and the trial judge

suspended the fine. The possible Range I terms of imprisonment for a Class C

felony are three to six years with a release eligibility date at thirty percent. Tenn.

Code Ann. § 4 0-35-10 1.

At the conclusion of the sentencing hearing the trial court, in setting the

Defe ndan t’s sentence at the m axim um w ithin the range, found four enhancement

factors and no m itigating factors. The D efendant arg ues that the trial court

shou ld have found, as mitigating factors, that the Defe ndan t has a favora ble work

history an d that he h ad grad uated fro m high schoo l and obta ined po stgradu ate

training in industrial/graphic arts. Ne ither of these factors are statutory mitigating

factors, yet would fall most appropriately under the catchall provision (13). Tenn.

Code Ann. § 40-35-113(13). We agree that these factors could be considered

in mitigation, but we do no believe that these mitigating factors are entitled to

great weight. On this record, we cannot conclude that the trial judge erred or

abused his disc retion in impo sing th e ma ximu m se ntenc e of six y ears fo r this

offense.

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 V.

As his final issue, the Defendan t contend s that the trial court erred by

ordering him to serve his senten ce for the a ggrava ted burg lary cons ecutively to

the senten ce of life with out paro le. The trial court found that the Defendant was

a dangerous offender, which require s that a n offen der’s “beha vior ind icates little

or no regard for human life, and no hesitation about committing a crime in which

the risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4). Beyond this,

it mus t be sh own that “an exten ded s enten ce is ne cess ary to p rotect th e pub lic

against further criminal conduct by the defendant a nd that the consecutive

sentences must reasonably relate to the severity of the offen ses com mitted.”

State v. Wilkerson, 905 S.W .2d 933 , 939 (Te nn. 199 5); see State v. Taylor, 739

S.W.2d 227, 230 (Te nn. 198 7); Gray v . State, 538 S.W .2d 391, 393 (Tenn. 197 6).

The trial court found that the Defendant was a dangerous offender and we

agree. Tenn. C ode An n. § 40-35-115(4). He had no hesitation about committing

a crime in which the risk to hu man life w as high. The circumstances surrounding

the offenses we re aggrava ted in every resp ect. Furtherm ore, the trial court

found, considering the principles enumerated in Wilkerson, that the sentences

reaso nably related to the severity of the offenses and that an extended period of

incarceration was n eces sary to protec t the pu blic. In su pport o f this

determination, the trial cour t stated tha t although the Defe ndant h ad already been

sentenced to life without the possibility of parole, the potential outcome on appeal

or future c hang es in the laws regarding parole may affect the ultimate disposition

of the Defendant’s sentence. We do not, however, believe that a present

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sentencing determination should be predicated upon speculations about future

changes in the sentencing laws.

The Defendant has already been sentenced to life without the pos sibility

of parole, which is the most severe sentence available short of capital

punish ment. We recognize that the attack inflicted upon the victim, Don Beasley,

was extremely vicious and grisly. Certainly, no possible punishment can be too

severe to relate reasonably to the harm suffered by the victim’s family. Yet, the

Defendant has a lready been sente nced to spe nd the rema inder o f his life in

prison and adding six additional years for the aggravated burglary seems

meaningless under our law. A sentence for life without parole means that he

“shall never be eligible for release on parole.” Tenn. Code Ann. § 39-13-

204(e)(2) (emp hasis added). We must evaluate sentencing decisions based on

the laws enacted by the legislature which exist today an d, as it stand s, a

consecutive sente nce w ould n ot serv e the p urpos e of pro tecting the pu blic

against further criminal con duct for a defendant who has already been sentenced

to life without the possibility of parole. Therefore, although our actio n may be

meaningless, we modify the sentence for aggravated burglary to be served

concurrently with the existing sentence for the first degree murder conviction.

The six-year sentence for aggravated burglary shall be served concu rrently

with the sentence of life without the possibility of parole. In all other respects, the

judgment of the trial court is affirmed.

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____________________________________
DAVID H. WELLES, JUDGE

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CONCUR:

___________________________________
JOHN H. PEAY, JUDGE

___________________________________
JOSEPH M. TIPTON, JUDGE

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