State v. James Dumas ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 1997 SESSION
FILED
September 19, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) No. 02-C-01-9610-CR-00368
APPELLEE, )
) Shelby County
v. )
) Leonard T. Lafferty, Judge
JAMES DUMAS, )
) (Sentencing)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Edwin C. Lenow John Knox Walkup
Attorney at Law Attorney General & Reporter
100 North Main Building 500 Charlotte Avenue
Suite 2325 Nashville, TN 37243-0497
Memphis, TN 38103
Deborah A. Tullis
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Kenneth R. Roach
Assistant District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
OPINION FILED: ________________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, James Dumas (defendant), was convicted of first degree murder by
a jury of his peers. This Court was of the opinion the conviction for first degree murder
should be reduced to second degree murder, a Class A felony, and this case was
remanded to the trial court for a sentencing hearing. State v. James Dumas, Shelby
County No. 02-C-01-9502-CR-00031 (Tenn. Crim. App., Jackson, October 4, 1995). On
remand the trial court found that the defendant was a standard offender and imposed a
Range I sentencing consisting of confinement for twenty-five (25) years in the Department
of Correction. In this Court, the defendant contends the sentence imposed by the trial
court is excessive because the trial court erroneously applied certain enhancement factors
to increase the length of the sentence within the appropriate range. After a thorough
review of the record, the briefs submitted by the parties, and the law governing the issue
presented for review, it is the opinion of this Court that the judgment of the trial court
should be affirmed.
The defendant was described as a trafficker in illicit narcotics. In this Court’s initial
opinion, a panel of this Court stated the victim “was shot and killed by the [defendant] in
what may be called ‘a drug deal gone bad.’” The defendant shot the victim while the victim
sat in his motor vehicle.
The trial court found three enhancement factors. The factors included (a) the
defendant had a history of criminal behavior, Tenn. Code Ann. § 40-35-114(1), (b) he
employed a firearm during the commission of the murder, Tenn. Code Ann. § 40-35-
114(9), and (c) the defendant had no hesitation about committing a crime when the risk to
human life was high. Tenn. Code Ann. § 40-35-114(10). The court found the record did
not support any mitigating factors.
The defendant argues the trial court erred in finding that he had engaged in criminal
behavior based upon the presentence report. He asserts the presentence report reflects
he was arrested on several occasions, but the report does not establish the disposition of
any of the arrests. The record reflects the juvenile court records pertaining to the
defendant’s criminal conduct were marked as an exhibit during the sentencing hearing.
These records reveal the defendant was convicted of shoplifting, theft under $500, and
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assaulting a police officer.
The juvenile record of an accused can be considered by a trial court when
determining whether the state has established Tenn. Code Ann. § 40-35-114(1). See
State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993); State v. Crowe, 914 S.W.2d 933, 939
(Tenn. Crim. App. 1995), per. app. denied (Tenn. 1996); State v. Stockton, 733 S.W.2d
111, 112-13 (Tenn. Crim. App. 1986), per. app. denied (Tenn. 1987). Thus, the trial court
properly considered the juvenile record of the defendant when finding the defendant had
a history of criminal behavior.
The evidence introduced during the trial established that the defendant engaged in
the sale of illicit narcotics in the neighborhood where the murder occurred. While the
defendant has not been convicted of a drug offense, this evidence constituted criminal
behavior within the meaning of Tenn. Code Ann. § 40-35-114(1). See State v. Keel, 882
S.W.2d 410, 419 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). Although the trial
court did not consider this evidence to support its finding of criminal behavior, this Court
may consider it in determining whether the trial court properly concluded enhancement
factor one had been established. Adams, 864 S.W.2d at 34; State v. Pearson, 858 S.W.2d
879, 885 (Tenn. 1993). This Court concludes the trial court properly applied this
enhancement factor to enhance the defendant’s sentence within the proper range.
It has long been established that the employment of a firearm to commit the offense
of murder in the second degree may be used to enhance a defendant’s sentence within
the appropriate range. Tenn. Code Ann. § 40-35-114(9). See State v. Butler, 900 S.W.2d
305, 312-13 (Tenn. Crim. App. 1994); State v. Raines, 882 S.W.2d 376, 385 (Tenn. Crim.
App.), per. app. denied (Tenn. 1994); State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim.
App. 1992), per. app. denied (Tenn. 1993). The use of a firearm does not constitute an
element of the offense of second degree murder. Thus, the trial court properly considered
this enhancement factor to enhance the defendant’s sentence within the appropriate range.
The trial court properly used Tenn. Code Ann. § 40-35-114(10) to enhance the
defendant’s sentence within the appropriate range. This crime occurred in a residential
neighborhood. The trial evidence established there were at least two people who were
outside when the shooting occurred. This evidence established this factor. See State v.
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Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995); State v. Sims, 909 S.W.2d 46, 50
(Tenn. Crim. App.), per. app. denied (Tenn. 1995); State v. Makoka, 885 S.W.2d 366, 373
(Tenn. Crim. App.), per. app. denied (Tenn. 1994).
The weight to be given enhancement factors rests within the sound discretion of the
trial court. Shelton, 854 S.W.2d at 123. This Court is of the opinion the trial court did not
abuse its discretion when determining the length of the sentence in this case.
In conclusion, the defendant failed to overcome the presumption of correctness
afforded the trial court’s findings of fact regarding sentencing issues. Tenn. Code Ann. §
40-35-401(d). There are no errors of law contained in the record.
________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
___________________________________
DAVID H. WELLES, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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