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State v. Dean9/28/2001
enn. Crim. App.), perm. to appeal denied (Tenn. 2000):
he trial court may consider this factor when the defendant endangers the lives of people other than the victim. See State v. Ruane, 912 S.W.2d 766, 784 (Tenn. Crim. App. 1995); State v. Johnson, 909 S.W.2d 461, 464 n. 1 (Tenn. Crim. App. 1995); see also State v. Butler, 900 S.W.2d 305, 314 (Tenn. Crim. App. 1994) (holding that factor (10) should not be applied when the victim is the only one at risk). In this case, the defendant fired three shots into a car containing two people. The passenger, Chasity McGuire, testified that she ducked when she saw the explosion from the gun. The defendant put Ms. McGuire's life at risk, and thus, factor (10) applies.
Since only the victim was put at risk during the rape, enhancement factor (10) was not applicable.
Thus, in sentencing the defendant, the trial court applied enhancement factors (1), (4), (5), (6), (8), and (10), with the latter two being applied erroneously. In ascertaining the effect, if any, of the erroneous application of the two factors on the defendant's sentence, we note that of these factors, the trial court stated that it was giving great emphasis only to factor (1), the application of which the defendant does not dispute. We have concluded that the applicable enhancement factors are (1), (4), (5), and (6). Based upon the applicability of these enhancement factors and the fact that there were no mitigating factors, we cannot conclude that the trial court erred in imposing the maximum sentence of forty years. See Lavender v. State, 967 S.W.2d 803, 809 (Tenn. 1998) (holding that elimination of enhancement factor does not automatically require reduction of sentence); State v. Freeman, 943 S.W.2d 25, 32 (Tenn. Crim. App. 1996) (concluding that trial court's improper application of enhancement factors did not require sentence reduction, when other enhancement factors, but no mitigating factors, remained).
CONCLUSION
Based upon the foregoing reasoning and authorities, we affirm the judgment of the trial court.
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