State v. Gerald Lovelace ( 1998 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
September 29, 1998
JUNE 1998 SESSION
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 01C01-9708-CC-00338
)
vs. ) Montgomery County
)
GERALD D. LOVELACE, ) Hon. Robert W. Wedemeyer, Judge
)
Appellant. ) (Attempted Second Degree Murder -
) 2 counts, Reckless Endangerment)
)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
One Public Square, Suite 321
Clarksville, TN 37040 GEORGIA BLYTHE FELNER
Counsel for the State
425 Fifth Ave. N., 2d Floor
Nashville, TN 37243-0493
JOHN WESLEY CARNEY, JR.
District Attorney General
WILLIAM CLOUD
Asst. District Attorney General
204 Franklin St., Suite 200
Clarksville, TN 37040
OPINION FILED:________________
AFFIRMED
CURWOOD WITT, JUDGE
OPINION
The defendant, Gerald D. Lovelace, appeals from his convictions of
two counts of attempted second degree murder and one count of reckless
endangerment. Lovelace received his convictions at the conclusion of a jury trial
in the Montgomery County Circuit Court. The trial court sentenced him to serve
concurrent sentences of eleven years, six months for each of his two attempted
second degree murder convictions and two years for his reckless endangerment
conviction. In this direct appeal, Lovelace challenges the length of his effective
sentence. After a review of the record and the briefs of the parties, we affirm the
judgment of the trial court.
It appears from the sparse record before us that Lovelace, who was
seventeen years old at the time of his crimes but was transferred from juvenile court
to criminal court, received his convictions based upon his conduct of firing a shotgun
into an occupied establishment known as “Showboat.” The crimes may have been
gang related.
Lovelace complains that the trial court erred in the application of
enhancement factors (3),1 (9)2 and (10).3 In determining whether the trial court has
properly sentenced an individual, this court engages in a de novo review of the
record with a presumption that the trial court's determinations were correct. Tenn.
Code Ann. § 40-35-401(d) (1997). This presumption is "conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
1
"The offense involved more than one (1) victim[.]” Tenn. Code Ann. § 40-
35-114(3) (1997).
2
"The 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).
3
"The defendant had no hesitation about committing a crime when the risk
to human life was high[.]” Tenn. Code Ann. § 40-35-114(10) (1997).
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principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). In conducting our de novo review, we must consider the
evidence at sentencing, the presentence report, the sentencing principles, the
arguments of counsel, the statements of the defendant, the nature and
characteristics of the offense, any mitigating and enhancement factors, and the
defendant’s amenability to rehabilitation. Tenn. Code Ann. §§ 40-35-210(b), 40-35-
103(5) (1997); Ashby, 823 S.W.2d at 168. The party appealing the sentencing
determination has the burden of showing that it is improper. Tenn. Code Ann. § 40-
35-401(d), Sentencing Comm’n Comments (1997); Ashby, 823 S.W.2d at 169.
In the case at bar, the record affirmatively reflects the trial judge’s
thoughtful consideration of the relevant criteria for sentencing. Accordingly, our de
novo review is accompanied by the presumption of correctness.
Beginning with enhancement factor (3), Lovelace has two complaints.
First, he posits that the trial court erroneously applied this enhancement factor
because it found the factor related to possession of a firearm, rather than the
presence of multiple victims. We disagree with his interpretation of the trial judge’s
findings at the sentencing hearing.
Second, Lovelace argues that factor (3) should not be applied
because there were separate convictions for two counts of attempted second
degree murder for his two victims. The state offers a concession of the point. We,
however, disagree with both the defendant and the state, who have overlooked a
third victim. The presentence report contains a victim impact statement from Bobby
Baggett, the owner of Showboat.4 In his statement, Mr. Baggett describes property
4
Such statements are properly included in presentence reports. See
Tenn. Code Ann. § 40-35-207(8) (1997).
3
damage caused by Lovelace’s unlawful conduct and includes receipts for $617.63
related to repairs to the damaged property. Based upon this evidence, we find no
error in the trial court’s application of enhancement factor (3).
Lovelace also challenges the trial court’s application of enhancement
factor (9) to his attempted second degree murder convictions. He claims the trial
court enhanced his sentence once because he possessed a firearm during the
offenses and a second time because he employed a firearm during the offenses.
We disagree with this characterization of the record. To the contrary, the record
demonstrates that the trial court applied enhancement factor (9) only once to each
of the attempted second degree murder convictions.
Finally, Lovelace challenges the application enhancement factor (9)
in conjunction with factor (10). In a novel argument, he claims that possession of
a shotgun is necessary for shooting the shotgun, and the act of shooting a shotgun
necessarily entails increased risk to the life of the intended target. Therefore, he
argues, the application of factors (3) and (9) yields sentences for attempted second
degree murder which have been “triple enhanced.” We are unpersuaded. Second
degree murder may be attempted in many ways, one of which is with a shotgun.
Thus, possession or use of a shotgun is not an element of that offense. Further, the
trial court found that the defendant created a risk to individuals other than the
victims named in the indictments who were in the vicinity when Lovelace fired a
shotgun into a business establishment. Lovelace did not hesitate to commit these
acts when the risk to human life, other than the lives of his intended targets, was
high. We see no inequity in the application of both factors (9) and (10) to the
defendant’s attempted second degree murder convictions.
Because we find no error in the trial court’s application of
4
enhancement factors, its judgment is affirmed.
_______________________________
CURWOOD WITT, JUDGE
CONCUR:
_____________________________
JOE G. RILEY, JUDGE
_____________________________
R. LEE MOORE, JR., SPECIAL JUDGE
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