IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville December 15, 2009

STATE OF TENNESSEE v. TIMOTHY MARK AGEE, II

Appeal from the Criminal Court for Davidson County

No. 2008-A-750 Monte Watkins, Judge

No. M2009-01046-CCA-R3-CD - Filed April 22, 2010

The Defendant, Timothy Mark Agee, II, appeals his conviction upon a guilty plea in the

Davidson County Criminal Court for second degree murder, a Class A felony. The trial court

sentenced the Defendant to serve twenty-three years. The Defendant appeals, contending that

the sentence imposed is too lengthy. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M.TIPTON, P.J., delivered the opinion of the Court, in which JAMESCURWOODWITT,

JR., and NORMA MCGEE OGLE, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant(s), Timothy Mark Agee, II.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Victor S. Johnson, III, District Attorney General; and Deborah M. Housel, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant’s conviction relates to the death of Dustin Mitchell. At the guilty plea

hearing, the State recited the following facts:

[I]f this case had gone to trial . . . the State’s [witinesses] . . .

would testify that on May the 6th, 2007, at about four-thirty,

officers responded to a shooting call at 97 Antioch Pike here in

Davidson County. When they arrived on the scene they saw that

there were two cars that were involved in a head-on collision.

The victim’s car, a 1991 Chevy Cavalier, driven by Dustin
Mitchell was – actually had the jaw of life as fire department

and other personnel were trying to get the victim out of the car.

The victim suffered extensive damage from the [head-on]

collision. He was taken to Vanderbilt Hospital. On May the

11th, 2007, . . . the victim was pronounced dead at Vanderbilt

Hospital because of the head-on collision and the blunt force

trauma that he received.

On his vehicle . . . there were four to five strike marks

that officers saw on the scene, in addition to five casings that

were found on the scene. Detective Scott Sulfridge took the

case. And once Detective Sulfridge began investigating he

spoke – he and other Metropolitan Police Department officers

– spoke to about fifteen different people who said that it

originated at a market here in Davidson County.

What actually happened was that Mr. Melton, Jason

Melton, was in the car with [the defendant]. Mr. Dustin

Mitchell, who was the victim in the case, actually went to a

market to get a loaf of bread for his mother. . . . When he went

to the market he hit the defendant’s car, and got out, looked at

the damage, looked at [the defendant], and became frightened

and got back in his car. At that time, [the defendant], who

became enraged, began following the victim.

The victim went down Antioch Pike, made a U-turn and

came back in the other direction. The defendant was chasing

him in his car. The defendant got a gun out of the glove box and

began firing. And, according to one witness, emptied his

magazine into the car that was being driven by the victim. The

victim, in an attempt to avoid being hit by a bullet[,] ducked

down in the seat. And when he ducked down in the seat he

swerved onto an oncoming automobile, which was a 2000 Isuzu

Rodeo.

When [the defendant] was questioned by Detective

Sulfridge he denied any knowledge of the collision whatsoever.

He denied that anyone had hit his car. But this was further

verified that Officer Greg Curtis, who was able to show that

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actually the victim’s car had hit the defendant’s car in the

market.

At the sentencing hearing, the court received the Defendant’s presentence report. It

reflected that the Defendant was twenty-two years old at the time of the crime and twentyfour at the time of sentencing. He had convictions for reckless driving, four misdemeanor

drug offenses, and attempt to purchase alcohol under age twenty-one. The Defendant

admitted prior illicit drug use, although he claimed he had not used drugs daily since age

twenty-two and had quit using them weekly at age twenty-four. He was a high school

graduate and had a technical certification. Defense counsel stated at the hearing that the

Defendant disputed the reckless driving conviction because a relative had used the

Defendant’s identification. The presentence report reflects that the Defendant had dismissed

charges of reckless driving and aggravated burglary, and the district attorney stated at the

sentencing hearing that these charges were dismissed as part of the plea agreement in this

case. The district attorney stated that the dismissed reckless driving charge was related to

a hit-and-run the Defendant admitted occurred later on the evening of the crime in this case.

Jason Housel testified for the State that he was with the Defendant at the time of the

offense. He said they went to a supermarket, where the victim sideswiped the Defendant’s

car. He said that they got out of the car and that the victim started to get out of his car and

looked at them with a “scared look on his face.” He said the victim got back into his car and

drove away. He said they chased the victim along Nolensville Road and Antioch Pike, at one

point running a red light trying to get the victim’s license plate number. He said that the

victim eventually made a U-turn and that they followed him. He said the Defendant asked

him to retrieve a gun from the glove compartment. He said he handed the gun to the

Defendant, who shot at the victim’s car five or six times. He said the victim ducked down,

and the victim’s car veered into oncoming traffic and had a head-on collision.

Vindeda Mitchell testified that she was the victim’s mother. She said the nineteenyear-old victim was a hard worker who contributed to the household, even walking to work

in frigid, snowy weather. She said he spent more time with his family than he did with

friends his own age. She said the victim dreamed of having a child of his own someday.

Ms. Mitchell testified that on May 6, 2007, the victim had taken off work to spend the

day with his family at his grandmother’s house. She said they needed bread, and the victim

volunteered to go to the store. She said the next time she saw the victim was at Vanderbilt

Hospital. She said the victim was comatose for five days and eventually died. She said that

it was horrifying to see the victim’s injuries. She said that the burial expenses were a

hardship for her family and that she still had not been able to afford a headstone for the

victim’s grave.

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Detective Scott Sulfridge of the Metropolitan Police Department testified that he

investigated the crash scene. He said the Defendant was developed as a suspect based on a

description of his car and later identification of the car as being the Defendant’s. He said he

spoke with the Defendant, who admitted that he had a wreck on May 6. The Defendant said,

however, that he hit a van and that it had taken place later than the time of the crime.

Detective Sulfridge said that the crime was also investigated. He said the Defendant denied

any involvement in the crime involving the victim or that he had been in the area at the time

of the crime. He said the Defendant stated that he had never seen the victim in his life.

Detective Sulfridge testified that a traffic officer later inspected the Defendant’s and

the victim’s cars and determined that the cars made contact. He said he interviewed Jason

Melton, who told him about the Defendant’s involvement.

The State read two letters from the victim’s cousin and aunt. The letters recounted

the victim’s role in his family and the family’s loss.

The Defendant offered an allocution. He admitted his involvement in the crime,

stating that the victim did not see his car and backed into it, that he chased the victim, and

that he fired five to seven shots at the victim’s car. He said he was not trying to shoot the

victim, just his car. He said he had a son and now realized the victim’s mother’s loss. He

apologized to the victim’s family. He said he did not admit his involvement when he was

questioned a couple of nights after the crime because he was afraid.

The trial court ruled that the Defendant’s allocution had been testimonial and allowed

the State to cross-examine him. He denied he was trying to kill the victim and maintained

that he was only trying to get the victim to stop. He admitted that he shot his brother-in-law

about a month and a half after he shot the victim, but he said he was very depressed, and it

was accidental. He acknowledged that he had a criminal charge for aggravated burglary

arising after this crime.

The trial court applied four enhancement factors to the Defendant’ssentence. It found

that the Defendant had a previous history of criminal convictions or criminal behavior, that

the personal injuries inflicted on the victim were particularly great, that the Defendant

possessed or employed a firearm during the commission of the offense, and that the

Defendant had no hesitation about committing a crime when the risk to human life was high.

See T.C.A. § 40-35-114(1), (6), (9), (10) (Supp. 2007) (amended 2008). The court set the

sentence length at twenty-three years.

On appeal, the Defendant contends that the sentence imposed is excessive. He claims

that the trial court erred in its application of the enhancement factors for prior criminal

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history and particularly great personal injuries and asks this court to give him a sentence at

or near the bottom of the range of fifteen to twenty-five years. The State concedes that the

court erred in applying the factor for particularly great personal injuries but argues that the

remaining factors support the twenty-three-year sentence.

Appellate review of sentencing is de novo on the record with a presumption that the

trial court’s determinations are correct. T.C.A. §§ 40-35-401(d), -402(d) (2006). As the

Sentencing Commission Comments to these sections note, the burden is now on the

appealing party to show that the sentencing is improper. This means that if the trial court

followed the statutory sentencing procedure, made findings of fact that are adequately

supported in the record, and gave due consideration and proper weight to the factors and

principles that are relevant to sentencing, we may not disturb the sentence even if a different

result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which accompanies the trial court’s action

is conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,

the trial court must place on the record its reasons for arriving at

the final sentencing decision, identify the mitigating and

enhancement factors found, state the specific facts supporting

each enhancement factor found, and articulate how the

mitigating and enhancement factors have been evaluated and

balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); see T.C.A. § 40-35-210(e).

Also, in conducting a de novo review, we must consider (1) the evidence, if any,

received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of

sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of

the criminal conduct, (5) any mitigating or statutory enhancement factors, (6) statistical

information provided by the administrative office of the courts as to sentencing practices for

similar offenses in Tennessee, (7) any statement that the defendant made on his own behalf,

and (8) the potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103, -210; see

Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

In imposing a specific sentence within the appropriate range of punishment for the

defendant:

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[T]he court shall consider, but is not bound by, the following

advisory sentencing guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be imposed, because the

general assembly set the minimum length of sentence for each

felony class to reflect the relative seriousness of each criminal

offense in the felony classifications; and

(2) The sentence length within the range should be

adjusted, as appropriate, by the presence or absence of

mitigating and enhancement factors set out in §§ 40-35-113 and

40-35-114.

T.C.A. § 40-35-210.

We agree with the parties that the trial court should not have applied factor (6) based

upon its finding that the victim’s injuries were particularly great. The trial court’s stated

reason for doing so was that the victim died from his injuries. Death is an element of second

degree murder. See id. § 39-13-210. An enhancement factor may be considered “[i]f

appropriate for the offense and if not already an essential element of the offense.” Id. § 40-

35-114.

We disagree, however, with the Defendant’s argument that the trial court erred in

applying factor (1) for prior criminal convictions or behavior. The Defendant argues that his

reckless driving conviction resulted from his cousin’s assuming the Defendant’sidentity, and

that his only other convictions are for simple possession and an underage attempt to purchase

alcohol. He contends that his other charges have been dismissed and that they occurred in

a brief period of time before he became focused after the birth of his child.

The presentence report reflects that the Defendant had four prior misdemeanor drug

convictions, not one. Although the report lists nine offenses on the same date, it notes that

five of these were dismissed and lists convictions of the remaining four. The four

convictions listed each have different docket numbers. Aside from the disputed reckless

driving conviction, which we have not considered, the Defendant had charges for reckless

driving and leaving the scene of an accident that were dismissed as part of the plea

agreement. The reckless driving charge was related to his wreck with a van later on the

evening of the crime. The Defendant admitted prior illicit drug use The evidence in the

record supports the application of this factor.

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The Defendant argues that his sentence should be “[t]he least severe measure

necessary to achieve the purposes for which the sentence is imposed.” See id. § 40-35-

103(4). He contends that he has taken full responsibility and apologized for his actions,

which he says took place in the heat of the moment.

Upon de novo review, we hold that despite the trial court’s misapplication of

enhancement factor (6), the court did not err in setting the Defendant’s sentence at twentythree years. The remaining factors were entitled to substantial weight and support the

sentence length. The Defendant had a history of criminal conduct. He committed an

egregious crime involving a car chase through metropolitan Davidson County and firing

shots at another car. His conduct was egregious and inexcusable, and a sentence of twentythree years was appropriate.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

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JOSEPH M. TIPTON, PRESIDING JUDGE

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