### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE D ec em be r 20, 200 6 S es sio n

ST A TE OF TE N N ES SE E v

. JO HN WI LL IA M M A TK IN , III

Appeal f rom the Circ uit Court for Sevier County No. 10557 Rex He nry Ogle, Judge

No. E2005-02946-CC A-R3- CD - F iled Novem ber 19, 2007

The de fenda

nt, J ohn W i l l i am M atkin, I I I , was c onvicted by a Sevier County Circuit Court jury

of voluntary manslaug hter, a

Class C felony
, and was sentenc ed as a Rang e I , standard of

fende r to serve six y ear s in the Depa

rtment of Corre ction. I n this appeal, he claims that the evidenc e is insufficient to sustain the conviction, that the trial cour t co m m i t t ed reversible e rror with respec t to the jury instructions, and that he wa s improperly sentenc ed. Upon r eview, w e hold that the defe ndant is not

e nti tle d to re lie f a

nd a ff ir m th e jud g me nt o f t

he tr ia l c ourt

.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , P.J
., delivere d the opi nion of t he cour t, in which D AVI D H. W EL L ES and J AM ES C UR WO OD W I TT , J R ., J J ., joined.

E dw a r d C

. M i l l e r , D i s t r i c tP u

b l i c D e f e n d e r , f o r t h e a p p e l l a n t , J o h n W i l l i a m M a t k i n , III

. Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter ; J ennifer L

. Bl edsoe, Assistant Attorney Gene ral ; J ames B . (Ji mmy) Dunn, District Attorne y Gene ral; and Steve n R. Hawkins, Assistant District Attorney

Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This case in v o l v es the def endant’ s killi ng his step-fathe r, Will iam Har old Z elm. The defe ndant had been living in the home the victim sha red with his wife, who i s t h e d ef en d ant’s
mot he r. Th e re wa s und isp ute d e vid e nc e that the vic timwa

nte d th e a du lt, un e mpl oy e d d e fe nd a nt, who was separ ated from his w ife, to move out of the home. The state prese nted the theory that the defe ndant committed an unprovoked and unjustified killing of the victim. The defe ndant admitted his responsibility for the victim’s death but claimed he ac ted in self-de fense afte r the victim attac ked him.-2-

Wil liam I vy

testified that he wa s employ ed as a 9-1-1 dispatcher in Marc h 2004. He testified that he re ceive d a 9-1- 1 call reg arding a drowning in Wear s Valley and that he dispatched va rious responde rs to the sce ne.

J ohn Ti mmerman, a

n emer g ency

medical tec hnician with the Sevier County Ambulance Service , testified that he a nd his partner

responde d to the victim’s residenc e on Marc h 5, 2004. He was met by

the def endant, who told him that t he victim had fa llen into a small fish pond. Timmerman said he went down a hill to t he pond and f

ound the victim’s body
, which wa s out of the
po nd

. Ti mme rm a n a nd his pa rt ne r a tte mpt e d to re viv e the vic tim
, bu t the y we re no t s uccess fu l. Timmerman sawa lac eration on the back of the victim’s head. H e said that rocks around the pond

wer e we t and appe are d to have be en wa sh ed. Timmerman sa id that he saw sc ratc hes on the defe ndant’s knee s and hea d and that the defendant said he had fa llen coming up a hill. Timmerman

s a i d t h e d e f e n d a n td i d

n o tc o mp l a i n o f

a n a n k l e i n

j u r y.
Sevier County

Deputy Sheriff Randy

Thomas testified that he was dispatche d to the scene

. He sa id that responder s from the fire depar tment a nd ambulance service wer e alr eady on the sce ne when he arr ived an d we re working on the victim nea r the pool. De puty

Thomas noticed the de fe nd a nt’ s in

jur ie s, wh ic h c on sis te d o f a sma ll c ut o n h is f

or e he ad and scr atche s in

six se pa rate locations of his body . The de fendant was we aringshorts but no shirt. Deputy Thomas said the defe ndant told him that he had last seen the victim about 9:15 a.m. He said the de fenda nt claimed to have steppe d onto the back deck a bout 10:00 a.m. to check on the victim and saw the vic tim face down in the fish pond.

Deputy Thomas r ec o u n ted that he ha d responde d to dispatches to the re sidence twice on F e br ua ry 9, 20 04 . The fi rs t time , the vic tim me t him and sa id the re wa s a subs tanc e he wa nte d to have c hecke d. The substanc e turne d out to be smoking tobacc o. Thomas said the victim was not upset or ag itated. He te stified, howeve r, that the victim asked him to look around the house to see i f he s aw an y

t h i n g i n p l ai n v i ew t h at wa s dru g re l at ed

. T h o m as d i d s o , b u th e d i d

n o ts ee an y

t h i n g. Dep u ty T h o ma s te s ti f

ie d th a t h e r e c e iv e d a s e c o n d d is p a tc h late r th a t d a y a n d th a t th is time the vic timtol d T ho ma s h e wa nte d to g e t hi s st e ps on

ou t of the ho us e . T ho ma s sa id t he vic tim“ wa s a littl e bit disgr

untled” but was not a

ng ry or cur sing. Thoma s said he discussed the m atter w ith the vic tim a nd the vic tim ’s wi fe wh o d isa g re e d w iththe vic timand sa id s he wo uld

lik e fo r h e r s on

to

rema in. Thomas testified that the victim wa s “eve n-temper ed,” a lthough he said the victim said, “I
g ue ss I ’ l l h a v e t o s e l l m y h o u s e j u s t t o g e t h i m o u t o f i t

. ” T h o m a s s a i d h e t o l d t h e v i c tim a ndhis wife that the matter wa s civil in nature and t h at an ev i cti on order might be r equire d. Thomas testifie d th e v ic ti m r e ma in e d

e v e n

- te mp e r e d

thr o u g h o u t t

h e e n c o u n te r

. O n c r o s s

- e xa mi n a tion, Deputy Thomas s aid he did not reme mber g oing dow nstairs in the home and ta lking to the de fenda nt

on F e br ua ry 9. He sa id he did no t r e me mbe r s e e ingthat th e de fe nd a nt h a d h is b a g s p a c ke d. He a lso de nie d a ny re c oll e c tio n of the vic tim g oin g on a tir a de fo r f

ive or te n mi nu te s and

say inghe wo uld burn the house dow n and that he would take care of t he si tuation himself. Deputy Thomas admitted he ha d r e qu e ste d a

n e xtra patr ol o n th e re sid e nc e a s a re su lt o f t

he F e br ua ry 9 c a lls

.-3-

I nvest i gator J eff

McCarte r of the Sevie r County Sheriff’ s Depa

rtment testified that he

re sp on de d to the sc e ne . H e did no t ha ve a n op po rt

un ity to v ie w t

he vic tim ’s bo dy

be fo re the vic tim

was re moved. Howe ver, he examined the pool are a, and he noticed a r eddish stain on the roc ks border ing the pond. He pe rfor med a p re l i m i n ar y

test on the stain which wa s positive for blood. Mc Cart e r r e c a lle d that whe n he f ir st a rr ive d, the de fe nd a nt w a s w e a ri ngsh or ts a nd no sh ir t. McCarte r said that inside t he house, he found leave s and debris in the bathtub and de bris in the sink in the baseme nt are a whe re the defe ndant lived. He said he found the shorts which he ha d seen the defe ndant wea

ring that morning in the washing machine. Mc Carter said he ph o togr aphed the defe ndant’s injuries, which inc luded scratches a nd abra s ions on his head, bac k, shoulder, knee
, outside his calf, a

nd ankle. Mc Carter

said the def

endant told him that he g ot s o m e o f t h e injuries around the pond and roc ks. McCarter also said the def

endant r eporte d that t re e limbs m ight have

scratched his back and face when he was going from the pond to the house to call 9-1-1. Mc Carter said, howeve r, that he sa

w no tree limbs t hat could have hit the defe ndant as he had desc ribed.

Tenne ssee B urea

u of I nvestig ation Special A gent Charles H ardy testified that he wa s

e mpl oy e d a s a

F or e ns ic Sc ie nti st a

nd tha t he ana ly zed fi ng erna il clippin g s ta

ke n f ro m th e vic tim
, which he c ompare d with DNA samples from the defe ndant. He said that two distinct DNA patterns

wer e pre sent in the clippings. The victim wa s the major contributor of DNAfrom the c lippings, and the m inor c o n tr ib u to r

w a s th e d e f

e n d a n t. H a r dy

qu a li f ie d h is te s ti mo n y

o n c r o s s

- e xa mi n a ti o nby
saying he “could not exclude” the defe ndant as the minor c ontributor.

Do ct or Da

rinka Mileusnic-Polcha

n testified that she wa s a for ensic pathologist and perf ormed a n autopsy of the victim. She testified t hat t he cause of the vi ctim’s death wa s drowning

a nd a c on tr ibutin g fa c tor

wa s b lun t for c e tr a

uma . She ide nti fi e d thre e a re a s o f s ig nif ic a nt i nju ry to the victim’s body . She sai d t h e victim had a c luster of a brasions and br

uises to the left for ehea d, indicating blunt head tra

uma. She testified the victim ha d a deep lace ration to the left bac k of the head, a lso indicating blunt for ce tr auma. She sa id the victim ha d a cluster of abra sions a nd bruises in the ba c k le ft sh ou lde r a re a

. She ide nti fi e d th e inj ur y to t he ba c k o f t

he he a d a s o ne wh ic h w ou ld

c a us e pr of us e ble e din g , p os sib le los s o f c on sc iou sn e ss, a nd po ssi ble de a th i n th e c a se of a n e lde rl y individual. Doctor Mileusnic-Polchan ide ntified are as of lesse r i njuries, one of which c onsisted of br uis inga nd

a br a sio ns to t

he vic tim ’s ri g ht h a nd . Sh e sa id t hat it wa s n ot c on sis te nt w iththe vic tim
str iki ngso me on e wi th h is f ist bu t w a s mo re c on sis te nt w it h a defe ns ive i nju ry . T he do c tor

a lso identified an a

rea of a b ra s i o n and contusion to the victim’s rig ht shoulder. She said the shoulder injuries wer e consistent with the victim having strug g led while someone was h o l ding him down. She testified that the injury to the back of t he head could be consistent with the victim having f allen and hit his head on a hard surfa ce, but all of the injuries take n toge ther we re not c onsistent with that ty pe of inc ide nt.

Do c tor Mil e us nic -P olc ha

n te sti fi e d th a t lo ss o f c on sc iou sn e ss du e to d ro wn ingtake s a t le a st

one-a nd-a- half minutes, and then br ain death takes about three minutes. She said that the victim was in good he alth for his ag e.-4-

Doctor Mileusnic- Pol chan also testified about the de fenda nt’s injuries based upon he r observations of the injuries in photog raphs. She said the defe ndant’s fore head injury did not appear consistent with his having be en hit with a fist. She also said abra sions on the s ide of his nose a nd his back we re c onsistent with finge rnail scr atche s. She also sai d the abr asions and bruises to the de fe nd a nt’ s k

ne e s w e re c on sis te nt w ithc on ta c t w itha ha rd surf a c e , suc h as k

ne e lin g on

a c on c re te floor or r ocks. The witness testified s he saw no photogr aphic evidence of the de fenda nt having been be a te n w itha

fi st.

Th a is Z e lm, the vic tim ’s wi fe a nd the de fe nd a nt’ s mot he r, te sti fi e d fo r the de fe ns e . Sh e sa id that the de fe nd a nt ha d live d with the vic tim a nd he r in the ir Se vie r C ounty

ho me fo r s e ve ra l mo nth s. She sa id t he de fe nd a nt h a d wo rk e d wi th t he vic timto h e lp b uil d p a rt s o f t he ho me . M rs . Z e lm s a id the def endant g ave he r g roce ry

money when he wa s working , althoug h she said he ha d not been working at the time of the vic tim’s death. She said t hat t he atmospher e in the home wa s “okay” the fi rs t six months the defenda nt lived there but that it deter iorated dur ing the last six months of the victim’s life. She said the victim made statements that the def endant wa s “sorry” and that he wante d the de fe nd a nt o ut o f t

he ho us e

. She state d th a t w he n s he c a me ho me fr om w or k, the vic timwo uld be in bed, would be non-communicat i v e, o r “would be stompi ng acr oss the floor and slamming doors.” She said that the victim believed the de fenda nt was a f inancial dr ain on the household a nd that the victim made stateme nts about losing the house and havingthe ca ble and elec tricity

service terminated be cause of the de fenda nt’s living ther e.

M r s

. Z e lm d e s c r ib e d v a r io u s in c id e n ts w h ic h to o k p la c e in e a r ly 2 0 0 4

. Sh e s aid that one morning in J anuar

y as she wa s g etting r eady for wor k, the victim beg an, for

no appar ent re ason, using pr ofanity

and ca lling the de fenda

nt names. She said that she asked him to keep his voice down bu tt h a th e d i s r e g a r d e d

h e r

. S h e s a i d

t h e d e f e n d a n ta p p a r e n t l y h e a r d t h e v i c t i m b e c a

u s e h e c a me upstairs. She said the victim started towar d the def endant, a nd the victim gr abbed the defe ndant by his shirt and the victim pulled back his fist. She said she screame d for the victim to s top and for the defe ndant to g o downstairs. She said the de fenda nt turned aw ay

from the situation and we nt downstairs. Mrs. Z elm also testified th at i n J an uary or F ebrua

ry the victim took the defe ndant’s computer out of the baseme nt and put it in the gar ag e to preve nt the defendant from using it. She said that the vi ctim cut t he cable and te lephone lines a nd closed the he at vents ser ving the baseme nt during this ti me.

M r s

. Z e lm te s ti f

ie d th a t th e v ic ti m h a d a d a u g h te r w h o a tt e n d e d c o ll e g e in A la b a ma

. She said the victim wanted his da ug hter to move into the home a nd attend g raduate school. She testified that a ft e r t

he vic tim ’s da

ug hte r t old

the vic tim in De c e mbe r 20 03 that sh e wa s n ot g oin g to d o th is, the victim took down pictures of his daug hter.

Mrs. Z elm testified that the household t en s i o n h ad become so g reat by Fe bruar y that she talked to an attorney about obt aining a divorce from the vi ctim. She said that the victim would not
ag ree to an uncontested divorce and that beca use she did not have the mone y to pay for a divorce
, she wa s unable to pursue one.-5-

Mrs. Z elm testified that on Fe bruar y 9, the victi m t o l d h er and the defenda nt that he had

c a lle d a jud g e a nd

that th e de fe nd a nt wa s g oin g to be “ loc ke d u p. ” She sa id t

he vic timre pe a te d h is wish for the de fenda

nt to move out of the house. She said that an officer came to the house late r and that she told him she did not want the defe ndant to move out of the house. She said that she told the office r the de fenda

nt was downstairs a

n d that the offic er w ent downstairs for approximately

five minutes. She said the office r explained to the victim and her that the matter wa s a marital issue. She testified she told the o ff

i cer and the victim that she wa nted the def

endant to re main in the house, which made the victim upset. The victim raised his voice and said he wanted the def endant out of the house. She said that the vic tim claimed he would bu rn t h e h o u s e d o wn if the off icer did not

remove the def

endant. Mrs. Ze lm testified t hat after the of fice r left, she beg g ed the de fenda nt not to leave. She sa i d t h e victim had threatened to burn the house on anothe r occ asion and ha d

me nti on e d he wo uld sta

rt the fi re a t the po we r bo x. She did no t thi nk the vic timc ou ld a c c omp lis h this if the defe ndant wer e in the base ment wher e the powe r box was located.

Mrs

. Zel m t es tified that afte r this incident, the def endant stay ed downstairs. She sa id she

wo uld take him a dinne r t ra y wh e n sh e c oo ke d. She sa id sh e a sk e d th e de fe nd a nt i n M a rc h to be g in reinc orporating himself into the family by coming upstairs to eat, have cof fee , and watch television. She testified she asked the defe ndant to of fer to the victim his assistance with household tasks. She

sa id t he de fe nd a nt h a d s low ly

be e n d oin g that.

Mrs. Z elm testified that on the morning of Marc h 5, 2004, the victim was outside per forming various tasks. She said she went outs ide t o take the victim a cup of c offe e and f ound him cleaning the fish pond. She said he w as fussing beca use he ha d muddied his clothes. She said that he wa s be c omi nga g itate d a

nd that sh e to ld hi m to g o in sid e to g e t c le a n c lot he s and that sh e kis se d h im
g oodby e and le ft for w ork. Mrs. Z elm said the def endant c alled her

at work later that morning and tol d h e r t hat th e vic timha d a

n a c c ide nt.

Mrs. Z elm testified that the victim took care o f the household bills. She said she was

unawa re of the extent of their financ ial difficulties until after his death.

Th e de fe nd a nt te sti fi e d th a t he and his wi fe se pa

ra te d in 20 03 . H e sa id t

hat sh e wa

nte d to move bac k to her hometown in Mississippi and that she took the fam i l y vehicle w hen she did so. At the tim e , th e y we re liv ing in Mon tg ome ry , Ala bama

. He sa id that th e vic tima nd his mot he r c a me to visit him a

nd invited him to move into their residenc e and that he did so beca use he w ould have food, shelter , and tra

nsportation to work. He said that when he moved into the home his mother and the vi ctim share d, the hous e was not finished and that he he lped the victim do “finish work” on the ho u s e

. H e s a id

h e a ls o w o r

k e d o u ts id e th e h o me , a lt

h o u g h h e h a d

n o t w o r k e d f o r s e v e r a l m o nths be fo re the vic tim ’s de a th. He sa id he ha d qu it his la st job wh e n his bo ss h a d s a id s ome thi nghe did not like, and he ha d not been e mploy ed since then bec ause he neede d time to “chill out.”

The de fenda

n t s ai d h e knew the victim and his mother wer e havingfinanc ial difficulties beca use cr editors ca lled the house da ily . He said he gave his mother money from his pay chec k when-6-

he wa s w or

kin g . H e sa id h e ha d a sk e d th e vic timto l e nd him $1 00 on on e oc c a sio n, ha d r e pa id i t,

a n d h a d n o ta s k e d

a n y o t h e r t i m e s t o b o r

r o w m o n e y.

The de fenda

nt testified about t h e January 2004 incident. He sa id that the victim had been do wn sta ir s th a t mo rn inga nd that w he n h e we nt b a c k u ps ta ir s, he sla

mme d th e do or

so ha rd that it broke the door facing

. The defenda nt hear d the vi ctim and his mother havingan alter cation about him , a nd he we nt u ps ta ir s and tol d the vic timto b ri ng any pr ob le ms t

he vic timha d w ithhim

to h im,
not to his mother. He said the vi ctim called him a pr ofane name a nd moved to hit him. He said that he re ache d out and g rabbe d the victim and that his mother told the victim to s top and told the defe ndant to g o downstairs.

The de fenda

nt also rec ounted the Fe bruar y 9 incident. He sa id that Office r Randy Thomas

came downstairs an d as ked him about his problems with the victim. The def endant testified he showed Of

fice r Thomas the broken door fac ing. He said that he showed Offic er Thoma s his livi ng quarte rs and that Of

fice r Thomas notice d a packe d duffe l ba g

. He sa id he told Office r Thomas he was lea ving a nd asked if Offic er Thomas knew of an inexpensive pla ce he could re nt. He said that Offic er Thoma s went bac k upstairs and that the vic tim raised his voice whe n talking w ith the office r. He testified he overhe ard the victim sa y that if Offic er Thomas could not do any thing with him, the vic timwo uld

burn the ho us e . T he de fe nd a nt a lso sa id he he a rd the vic tim sa y that he pa id t

he bil ls and that if the de fenda

nt and his mother did not like the way he ra n thi n gs , they

could leave . The de fe nd a nt state d tha t Off

ic e r Th oma s told the vic tim that it se e me d the vic tim wa s the on ly on e in the ho us e wi th a pr ob le m and that if he ha d to re tur n, so me on e wo uld

g o to ja il. Th e de fe nd a nt s a id that afte r Officer

Thomas left, his mother c ame downsta irs and tea rfully asked him not to leave her

a lon e wi th t

he vic tim

.

Th e de fe nd a nt t e sti fi e d th a t he sta y e d in his ro om a ft e r t

he F e br ua ry 9 in c ide nt u

nti l hi s mother aske d him to relieve the stre ss in the family by coming upstairs to watch te levision, eat, and drink coff ee w ith t h em

. He said she also re quested that he attempt to help the victim around the house.

The de fenda

nt testified that on the day of the victim’s de ath, he went outside and aske d the victim if he could help hi m. He said the vi ctim called him a profane name a nd said he c ould pack his bag s and leave the house. The def endant sa id he re sponded that the victim must have for g otten what Of fice r Thomas ha d said. The defe ndant said the victim attacked him. The defe ndant testified that the victim held him by his ha ir and that the defe ndant hit the victim with his elbow in an attempt to ga in his free dom. The def endant sa id he fe ll on a hill and that as he attempted to ge t up, he saw the victim c oming toward him using profa nity and saying he would kill the defe ndant. He sa id the vic timc on tin

ue d h is atta c k, pu lle d h im t o th e e dg e of the po nd , an d co nti nu e d with the ve rb a l th re a ts to kil l h im

. T h e d e f

e n d a n t t e s ti f

ie d th a t t h e v ic ti m att e mp te d

to k ic k h im a n d th a t t h e d e f e n dant
g rabbe d the victi m ’s feet or leg s. The def endant sa id they

went into the pond, with the def endant underne ath the victim. The de fenda nt said that he tried to come u p fo r ai r and that he f elt the victim’s hand pus hing him down. The defenda nt said that he was able to g et a br eath of air a nd that he pulled the victim close to him but did not know if he pul led t he victim underw ater

. The de fenda nt-7-

testified that the victim quit strugg ling just as the de fenda nt was running out of ai r. He s aid that wh e n th e vic timsto pp e d s tr ug g lin g , h e wa s a

ble to g e t up a nd

g o to the ho us e to a sse ss h is i nju ri e s. He sa id that afte r he did so, he went outside to chec k on the victim and found him in the pond. He said that he tried to he lp the victim but that the victim wa s alre ady dead, at which time he went inside and ca lled 9-1-1.

The de fenda

nt admitted he i n i t i all y

had bee n untruthful in his 9-1-1 ca ll and with the authorities. He c laimed he did not want to implicate h i m s elf a nd he did not want to ca use the victim’ s fa mily

additional stress while they wer e bury

ing the ir family

member. The defe ndant testified that he wa s afr aid to come f orwa rd with the t ruth sooner because he felt like he wa s being

se t up fo r t

he c ri me . H e sa id the a

uth or iti e s h a d b e e n b a c k in sid e the ho me wi tho ut p e rm iss ion wh ile h e an d his mother wer e at the hospital on the date of the vic tim’s death. He a lso said that the vic tim ’s de ntures had

be e n mo ve d f

ro m th e po nd

are a to t he dr ive wa

y and that a ft e r h e and

his mother re turned home f

rom the victim’s funer al, his mother found the vic tim’s ey eg lasses in a location near t he house wher e they would have be en see n sooner ha d they been the re pr eviously . He said he e ventually

confe ssed to the crime a fter a detec tive threatened to ar rest his mother, to take the

case to the g rand jury , and to cha rg e him with first deg ree murder.

Th e de fe nd a n tt e s t i f

i e d h e a c t e d i n s e l f

- d e f e n s e

. H e d e n i e d

a n y i n t e n tt o h a r

m t h e v i c t im when he went outside.

Th e de fe ns e re c a lle d M rs . Z e lm, wh o tes tif ie d th a t so me on e ha d b e e n in sid e the ho me wh ile she wa s g one to the funer al. She also identified from photogr aphs the locations wher e the victim’s
g lasses and de ntures we re f ound. She said she cou l d see howthe g lasses mig ht have be en

ov e rl oo ke d b y

the a uth or iti e s, bu t no t th e de ntu re s.

Gl e n Alma

ny te sti fi e d tha t he wa s an inv e sti g a tor wi th the pu bli c de fe nd e r’ s off

ic e . H e sa id that he attempted to c ontact Of fice r Thomas ten to twe lve times to ask him some followup questions afte r an initial interview but that he was never able to make contac t de spite leaving numerous pag er and voice mail messag es for him. Mr. Almany said that he ha d interviewe d Dr. Mileusnic-Polcha n be fo re tr ia l and

tha t sh e tol d h im the br

uis ing on the vic tim ’s le ft

ha nd wa s c on sis te nt w iththe vic tim throwing punches. H e said the doctor told him the victim had bee n in “re marka ble condition for a . . . 72-y ear -old man.” H e testified the doc tor also believe d that the victim was not only capa ble of defe nding himself but of

being an ag g ressor.

Offic er Randy

Thomas was rec alled as a de fense witness, and he introduc ed complaint ca rds that wer e g ener ated a s a re sult of the victim’s calls to 9-1-1 on F ebrua ry 9. Offic er Thoma s said he
p l ac ed an o rd er fo r ex t ra p at ro l o f t h e ar ea af t er t h es e c al l s b ec au s e h e t h o u gh ti twa s p o s s i b l e t h i n gs could g et out of hand. When a sked on cross-e x amination about the victim’s r eputatio n for
pe a c e fu lne ss i n th e c omm un ity , O ff ic e r T ho ma s te sti fi e d h e ha d n e ve r h a d a ny pr ob le ms w ithhim

.

On re buttal, the state ca lled the vi ct i m ’s d au g hter, Elizabeth Ann Z elm. She testified the vic timwa s n ot u

ps e t w ithhe r o ve r h e r d e c isi on to t a ke a job e lse wh e re rathe r t

ha n to mov e to-8-

Tenne ssee. She sa id the victim was happy at Christmas and was ha ppy she had found a job. The witness testified t he victim kept a br iefc ase of important paper s and family jewelr y behind the seat of his truck, whic h she had not see n since his death despite h av ing se arc hed for it. She said the vic timtol d he r that he wante d to sel l his hou se a nd g e t some thi ng sma lle r. She a lso sa id t he vic tim had st ated that if his wife wanted to take car e of the defe ndant, she should move out of the house and do so. Ms. Ze lm denied noticing any chang e in the victim’s temper ament bef ore his death.

Earl Mc Carter

testified on re buttal for the state that he had known the vic tim before his de ath. McCarte r said the victim was a go o d
, gen t l e person who did not bother others. He testified that during t h e last few months of the vic tim’s life, he had not notice d any chang e in the victim’s dispositi on.

J oel King , who had known the victim since the ea rly 1970s when they

beg an wor

king tog e the r i n F lor ida , te sti fi e d th a t th e vic tim“ wa s a re al peo pl e pe rs on .” He sa id t hat th e vic tim

a vo ide d c on fl ic t. Mr

. Ki ng state d that he vis ite d the vic tim tw o or thr e e tim e s a y e a r a ft e r t he vic tim moved to Sevier Count y

. Mr. King said that he ha d observe d the victim and the def endant tog ether

a nd that “ the y

tr e a te d e a c h o the r n ic e ly .” Th e wi tne ss sa id he ne ve r not ic e d a c ha ng e in t he vic tim befor e his death. Mr. King acknow ledg ed on cr oss-examination that as an electrica l eng ineer , the victim would have had the ability to cause an ele ctrica l house fire

. The jur y found the de fenda

nt guilty of voluntary

manslaug hter. The trial court imposed a Rang e I , six -y ear

sentenc e to be se rved c onsecutively to a prior two-y ear sentenc e the de fenda

nt had

rec eived f or anothe r off

ense.

I

The de fenda

nt first contends that the verdict i s not supported by the evidence. Our standard of re view whe n the def

endant que stions the sufficienc y of t he evidence on a

ppeal is “w hether , afte r vie wi ngthe e vid e nc e in t he lig ht m os t fa

vo ra ble to the pr os e c uti on , a ny ra tio na l tr ie r of

fa c t c ou ld have f ound the essential e lements of the c rime beyond a re asonable doubt.” J ackson v. Virg inia, 443 U. S. 3 07 , 3 19 , 9 9 S. Ct. 27 81 , 2 78 9 ( 19 79 ). We do not re we ig h th e e vid e nc e ; r a the r, we pr e su me that the jury

has re solved all conflicts in the testimony and dra wn all re asonable infere nces f rom the evidenc e in favor of the state. See State v. Sheffield, 676 S.W .2d 542, 547 (Tenn. 1984) ; State v. Ca bb a g e , 5 71 S.W. 2d 83 2, 83 5 (T e nn . 1 97 8) . Q ue sti on s r e g a rd ingwi tne ss c re dib ili ty , c on fl ic ts i n testimony , and the we ight a nd value to be given to evidenc e are re solved by the jury . See State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997) . “A c rime may be esta blished by

direc t eviden ce, circ umstantial evidence , or a c ombination of the two.” State v. Hall, 976 S.W .2d 121, 140 (Tenn. 1998).

Th e de fe nd a nt a sse rt s th a t hi s tes ti mony wa s th e on ly

e vid e nc e a va ila

ble to s up po rt

a conviction. He a

rg ues that his testimony does not support a conclusion that he commit ted voluntary

mans la ug hte r b e c a

us e “ his int e nti on s w e re to s a ve him se lf be c a us e he wa s in

fe a r f or his lif e .” Hi s-9-

a rgume nt f

a ils to t a ke int o a c c ount t hat th e jur

y ha d th e pr e ro g a tiv e a s th e tr ie r o f f a c t to dis c re dit his te sti mony

in f a vo r o f o the r, c ir c ums tanti a l pr oo f o f h is guil t.

The de fenda

nt was convic ted o f

v o lunta ry manslaug hter, whic h is “an intentional or knowing killing of a

nother in a state of passion produc ed by adequate provoc ation to lead a r easona ble per son to act in an irrational manner.” T.C.A. § 39-13-211( a). Ba sed upon the evidence pr esente d, the jury

was within its province in r ejec ting the defe ndant’s claim of self-de fense and instead a ccr editing the evidenc e that demonstrated that the victim and the de fenda nt eng ag ed in a phy sical alter cation which provoked the defe ndant to act irrationally in dr owning the victim. There was phy sical evidenc e that the vic timwa s h e ld d ow n o n h is b a c k a nd str ug g le d to get up , causinginj ur ie s to his sh ou lde rs , which wa s inconsistent with the defenda nt’s testimony

that he was underne ath t he victim in the pond

a nd pu lle d the vic tim fo rw a rd

. Th e vic tim ha d inj ur ie s on his fo re he a d wh ic h we re c on sis te nt w ith having been pushe d down ag ainst a har d surfa ce, suc h as t he hard bottom of a pond. The victim had

a de e p la c e ratio n on the ba c k of his he a d, wh ic h is c on sis te nt wi th the vic tim havin g fa lle n a nd hit his head on a

hard r ock or c oncre te surfa ce. T he def endant atte mpted to conce al his level of culpability

by being dishonest with the authorities. He to l d t h em he found the victim ly ing f ace down in the pond. The de fenda nt did not tell t he author ities about his injured ankle, de spite the fac t that the ankle injury

was his explanation la

ter for how the victim was able to overtake him after the victim alleg edly

attacke d him and the def endant br oke fr ee. T he defe ndant told the a uthorities he had scr atche s on his b ac k from tre e bra nches, y et other te stimony and photog raphic evidenc e wa s inconsistent with the injuries occur ring in this m anner

in the location the def

endant c laimed. Other evidenc e esta

blished that DNA which was not i nconsistent with the defe ndant’s wa s found under the victim’s fing erna ils. There w as evide nce the defe ndant attempted to wa sh awa y b lood from the rocks surr ounding the pond. Even if the jury acc redited the defe ndant’s testimony that he pulled the vic timint o th e wate r i n se lf -d e fe ns e , the de fe nd a nt le ft the vic tim to die in t he po nd on c e the vic tim los t con sc iou sn e ss. Th e re wa s e vid e nc e the inj ur ie s to the de fe nd a nt’ s k ne e s w e re c on sis te nt w ith kneeling on a har d surfa ce suc h as a c oncre te floor or rocks. The re w as evide nce that the injuries
to t he vic tim ’s ha

nd s w e re mor e c on sis te nt wit h de fe ns ive a c tio ns tha

n w ithhavin g hit

the de fe nd a nt. F ro m this ev ide nc e , the jur y c ou ld ratio na lly c on c lud e that the de fe nd a nt i nte nti on a lly or kn ow ing ly killed the vi ct i m afte r the victim ade quately provoked the defe ndant to a state of passion, during

w h i c h t h e d e f

e n d a n ta c t e d

i r r a t i o n a l l y.

II

Next, we consider the defe ndan t’s related claims that the trial c ourt err ed whe n it did not reduc e supplementa l jury instructions to writing and that the defe ndant was pr ejudiced by the assistant district attorney

g ener al’s stateme nt that the supplemental instructions “we re not the la w.” The state a

rg ues that the defe ndant waived any complaint by failing to obje ct to the oral char g e or to call to the cour

t’s attention at trial its omissi on in submit ting written instructions to the jury , and in any event, a ny err or wa s harmless. The state has not a ddresse d the eff ect of the a ssistant dist rict

a tto rn e y ’s c omm e nt a

bo ut t he su pp le me nta l in str

uc tio ns

.-10-

Th e tr ia l c ourt

is r e qu ir e d to su

bmi t th e jur

y ins tr uc tio ns to t

he jur y in w ri tin g . Te nn . R. Crim. P. 30(c). This rule applies to any supplemental i nstructions g iven, provided the supplemental instructions are f

or purpose s other than mer ely clar ifying the prior instructions. State v. Ty wan Fa ulk, No. M1999-01124-CCA-R3-CD, M o ntgome ry County (Tenn. Crim. App. Aug . 31, 2000), app. dismissed (Tenn. D ec. 4, 2000) ; cf. State v. Crocker
, 697 S.W .2d 362, 365 (Tenn. Crim. App. 1 9 8 5 ) ( t ri al co u rt ’s fa i l u re t o gi v e s u p p l em en t al i n s t ru ct i o n s t o j u ry i n wr i t i n g wa s erro r, al t h o u gh the def endant wa ived any

complaint by failing to object and instea d consenting to court’s a ction at
tr ia l) . In a

ny e ve nt, a de fe nd a nt i s e nti tle d to a pp e llate re lie f b a se d u

po n f a ilure to sub mit

a

su pp le me nta l in str

uc tio n in wr iti ngon ly

if the fa ilure mor e pr ob a

bly tha n not af fe c te d th e jud g me nt. Tenn. R. App. P. 36(b); State v. Gor man, 628 S.W.2d 739, 740 (Tenn. 1982). I n assessing harm, the court must revie w the er

ror in the context of the c harg e in its entirety to determine w hether

the er ror was pre judicial. See, e.g ., Gorman v. Ea rhar t, 876 S.W .2d 832, 836 (Tenn. 1994)

.

I n the pre sent ca se, the jury returne d to the courtroom a fter r etiring for de liberations to make two inquiries. They

asked f irst what would happe n if they wer e unable to ag ree on a ver dict, and the trial court advised them that it was not able to answe r that question. Their se cond question, as state d by one of the jurors, wa s

The

– o k ay , the question Ihad, and I think that we all don’t
ag ree on, is some people believe

. . . Idon’t know wha t the law is, but y ou don’t eve n look at voluntary manslaug hter until . . . L ike, if y ou ag ree to both points on second deg ree murder, a nd the only differ ence b et wee n second de g ree murder a nd voluntary manslaug hter is there wa s passion, there w as – there was provoc[a]tion, t here was . . .

. . . Provocation.

. . . Okay . Would y ou not look at both of t h em and say
, “I thi nk the re was provocation out there?”

(F irst three e llipses in original) ( italics in origina l).

Th e c ourt a tte mpt e d to a ns we r t

he jur y ’s inq uir y in p e rt ine nt p a rt

a s f oll ow s:
As it relates to [deciding betwee n second de g ree murder a nd voluntary manslaug hter], in y our analy sis, in y our discussions of any

o ff en s e o r l es s er

gra d es , ce rt ai n l y y o u al l s h o u l d l o o k at ev ery t h i n g. At e ve ry thi ng . A nd , y ou

kn ow, if – if so me of

y ou wa nt t o d isc us s the – the iss ue of pr ov oc a tio n, a s to wh e the r or no t that is ad equat e provocation, certa inly

it would be discussed.-11-

The c ourt also instructed the jury that the verdic t must be unanimous and should be the produc t of a deliber ative process. A j uror then ref ined t he question, “I

g uess our que stion is: Do y ou consider the dif fe re nt t y pe s o f c ha

rg e s a t on e tim e , o r s ho uld y ou on ly c on sid e r se c on d d e g re e mur de r f ir st,

a n d t h e n v o l u n t a r

y m a n s l a u g h t e r , o r c a n y o uc o n s i d e r

b o t h a tt h e s a m e t i m e ?”

Following this redef

inition of the question, the trial court eng aged in a leng thy statement addre ssing many topics, including c redibility of the witnesse s, weig hing of evidenc e, and the burden of proof . Relevant to the jury ’s sec ond question, the court instructe d the jury in pertinent par

t

Al l r ig ht, la die s and g e ntl e me n, fi rs t of a ll, a s I sa id, in – in o rd e r t o f i n d s o m e o n e g u i l t y

o f an y o f f e n s e , a l l o f

y o uh a v e t o a g r e e t o i t

. In
y our deliberations y ou may consider and should consider e very thing that has bee n char ged t o y ou on – on all things, e vidence and

e ve ry thi ngels e, and

a lso the sp e c if

ic of fe ns e s. Yo u k

no w, if – if
someone say s – that they

don’t ag ree with this fact or that fa ct, I think
y ou all can look to ea ch o t h er an d t alk about if it fits into any

c a te g or y , y ou kn ow . I f you

a re – if y ou are – if

y ou a re un a ble to

rea ch a verdic t on – on one included or lesser inc luded offe nse, then if y outh in k

it w o u ld b e h e lp f u l f o r y o uc e rta in ly

to lo o k a t o th er offe nses, that’s what y ou should do.

L a te r i n th e c oll oq

uy , th e c ourt

sa id

Ce rt a i n l y l o o k a t t h e s e c o n d d e g r e e m u r d e r f i r s t

. I f y o u ’ r e a

b l e to

rea ch a ve rdict on that, re port that v erdic t. I f not, then consider

vo lun tary mans la

ug hte r. I f you

c a n a g re e on

a ve rd ic t th e re , . . . te ll us. I f y ou’re unable to r eac h a verdic t on that, g o to the next one, and so forth, y ou know.

T h e c o u rt d i d

n o t s u b m i t t h es e o r a n y

o t h er o f i t s s u p p l em en t al i n s t ru ct i o n s t o t h e j u ry i n wr i t i n g. The de fense neither r equeste d that t h e co urt do so nor objec ted to the supplemental c harg e g iven

o r a l l y.

After

the jury retir ed
, the trial cour

t admonished the assistant district attorney g ener al for

s tati n g a u d ib ly
, “ T h a t’ s n o t th e la w , ” w h il e th e c o u rt w a s g iv in g th e s u p p le me n ta l char g e. The assistant district attorney g ener al did not deny having made this statement, nor did he deny that the jury could have hear d it. The defe nse did not reg ister an objection, reque st a curative i n s truction,

or mov e fo r a mistri a l bas e d upo n the pr os e c uto r’ s way wa rd re mark

. Th e de fe ns e did , h ow e ve r, ra ise the iss ue in t

he mot ion

fo r n e w tri a l.

To the extent that the trial court may have e rre d b y n o t s u b m i tting its supplemental instructions to the jury

in writing, w e hold that t he defense waived any objection by

not raising the issue at trial. Crocke r, 697 S.W .2d at 365; se e State v. Fa ulkner, 154 S.W.3d 48, 58 (Tenn. 2005)-12-

(holding that defe ndan t waives r ight to objec t to incomplete, as opposed to er roneous, jury instructions if not raised at tria l); State v. L y nn, 924 S.W .2d 892, 898-99 (Te nn. 1996) (same); cf

. Sta te v. Pa g e , 18 4 S.W. 3d 22 3 (T e nn

. 20 06 ) (h old ing that the re is n o c on sti tut ion a l sh or tc omi ngin statutory waiver rule re quiring reque st for instruction on lesser inc luded offe nses be made in writing at trial). Also, the de fenda nt r ec ei v ed t h e benef

it of the supplemental instructions. I t is appare nt from the jury ’s questions t h at i t was unsure how to proce ed in choosing betwee n second de g ree murder a nd voluntary

manslaug hter. Af

ter re ceiving the cour

t’s supplemental i nstructions, the jury convicted the defe ndant of the l es s er of these two off

enses, voluntar

y manslaug hter. Thus, the defe ndant was not pre

judiced by

the supplemental ora l char g e.
The que stion which remains is whether the defe ndant was pr ejudiced by the assistant district attorney g ener al’s st atement that a portion of the trial c ourt’s supplemental instructions wa s “not the law. ” Th e de fe nd a nt f

ir st r a ise d th is i ssu e in his mot ion fo r n e w tri a l, i n w hic h h e a sse rt e d g e ne ra lly that he “w as pre

judiced and de nied his rig ht to a fair trial.” He did not identify any specific prejudice in either the motion for new trial or the he aringon the motion. Si milarly , he has not identified on
appea l the specific prejud i ce which he a lleg es occ urre d as a r esult of the prose cutor’s w ay war d

c omm e nt. We c on c lud e the de fe nd a nt i s n ot e nti tle d to re lie f o n th e se iss ue s.

III

The de fenda

nt a rg ues that the six -y ear

sentenc e he r ece ived was e x cessive. T he sente ncing
rang e for the def endant, a Rang e I offe nder, w as three to six y ear s. S ee T

. C

. A. § 39-13-211(c) (def ining voluntar

y manslaug hter a s a Class C felony o ff en s e) ; T.C.A. § 40-35-112(a )(3) (setting
rang e o f p u n is h me n t f

o r Cl a s s C f

e lo n y o f f e n s e s f o r Ra n g e I o f f e n d e r s a t thr e e to s ix y e ars) . The defe ndant does not c ontest the fac tual corr ectne ss of the two enhanc ement fa ctors found by the trial court, that the de fenda

nt had a hist ory of prior criminal convictions and that the defendant c ommitt ed the offe nses while on bail for an off ense of which he w as ultimately

convicted. See T.C.A. § 40-35- 114(1), ( 13)(A) . He c laims that it is not clea r from the record whether the trial court f ound in favor of his proff

ere d mitigation base d upon having acte d under strongprovocation, the exi st ence of substantial gr ounds to excuse or j ustify his conduct, and the commission of the offe nse under such

unus ua l c ir c ums ta

nc e s th a t it

wa s unli ke ly

the de fe nd a nt w a s mo tiv a te d b y a su sta ine d inte nt t o violate the law. See T.C.A. § 40-35-113( 2), (3), ( 11). He also claims, contra ry to his arg ument at the sentenc ing he aringfor a mid-range s en t ence, that his enhanc ed sente nce violate s Blake ly v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

We start with the Blakely issue. I n that reg ard, we note that one of the enha nceme nt fac tors on whic h th e tr ia l c o u rt r e li e d w a s th e d e f e n d a n t’ s p r io r c r im in a l r e c o r d o f c o n v ic ti o n s

. The defe ndant did not contest at the he aringthat evidenc e existed to support this fac tor. A t rial cour t’s consideration of this factor is unaf fec ted by Blakely

. See Blakely
, 542 U.S. at 301 (any fac t other than a pr ior conviction which e nhance s a def endant’ s sentence must be found by a jury bey ond a

rea sonable doubt); Appr endi v. New J erse y , 530 U.S. at 489 (2000) (same). We note, as we ll, that the oth e r f

a c tor re lie d u po n b y the tr ia l c ourt , th a t th e de fe nd a nt w a s o n b on d f or a no the r o ff

e ns e when he committed the prese nt offense , is simil ar to enhanc ement for prior convic tions insofar as-13-

it is easily

objectively

deter mined. Howeve r, t h e Supreme Court did not ex cept this categ ory of
sentenc e enha

nceme nt in Apprendi o r Bl ak el y , and we will endeavor to analy ze the defe ndant’s Blakely claim with respe ct to this enhance ment fac tor.

We b e g in b y c on sid e ri ng wh e the r the de fe nd a nt wa ive d the B lake ly iss ue by fa ili ngto r a ise this challeng e in the tr i al co u rt . The de fenda nt arg ues that he w as sentenc ed in contra vention of Blakely at his November 1, 2005 sentenc ing hear ing beca use the trial court, rathe r than a jury , found the statutory

enhanc ement fa ctors. The fede ral courts have applied Appr endi and B lakely to all case s pending on direc t reviewor not y et final. S ee U nited States v. Booke r, 543 U.S. 220, 268 (2005). The proble m for the de fenda nt in this case is that both Appre ndi and B lakely wer e dec ided bef

ore de fe nd a nt’ s se nte nc inghe a ri ngtoo k p la c e

. Thus , we ho ld that the de fe nd a nt fa ile d to pre se rv e his Bl ak el y ch al l en ge w h en h e d i d n o t ra i s e i t i n t h e t ri al co u rt

. At t h e t i m e o f h i s s en t en ci n g h ea ri n g, he had the benef

it of the Supreme Court’s ru l i n g i n Appre ndi and its refining of that rule’ s p a r a m e t e r s i n B l ak e l y.

We acknowle dg e that seve ral months befor e the de fenda nt’s sentenc ing, the Tenne ssee Supreme Court had r

ule d
, a lb e it

inc orre ctly , that Tenne ssee’ s sentencinglaw as it existed before J une 7, 2005, di d n o t run afoul of the Six th Amendment conc erns a ddresse d in Blake ly . See State v. Gomez, 163 S.W .3d 632 (Tenn. 2005) (“G omez I ”), va cate d and re manded by Gomez v. Tennesse e, ___U.S. ___, 127 S. Ct. 1209 (2007). The version of the sentenc ing la w addr essed in Gomez was the one unde r which the defe ndant was sentenc ed. After the defe ndant’s sentenc ing and af ter he filed his appellate br ief in this court, t he United States Supreme Court issued Cunningham v. California
, ___ U.S. ___, 127 S. C t. 856 (2007). The Supreme Court then g rante d ce rt i o ra ri in Gomez v. Te nn e sse e , v a c a te d th e jud g me nt, a nd re mand e d th e case to the Te nn e sse e Sup re me Court wi th ins tr uc tio ns to r e c on sid e r it in lig ht of Cunnin g ham. Re c e ntl y , the Te nn e sse e Sup re me Cou rt he ld that in light of the dic tates of Cunning ham, Tenne ssee’ s pre- 2005 sentenc ing statute violated the Six th Amendment. State v. Gomez, ___ S.W .2d ___ (Tenn. 2007) (“G omez I I ”).

Although the defe ndant in the pre sent ca se mig ht arg uably have been misled at the time of his se nte nc ingby

the ma jor ity op ini on of our sup re me c ourt in Go me z I , th e Un ite d St a te s Su pr e me Court, rather

than the Te nnessee Su p re m e Court, is the final arbiter of questions conc erningthe fede ral C o n s t i tution, and the defe ndant’s B lakely claim should have be en ra ised at his sentenc ing hear ing, G o m ez I n o t wi thstanding. A s such, our re view is limit ed to whethe r the trial c ourt committed plain error

in sentencing the defe ndant. Gomez I I
, ___ S.W .3d at ___. Rule 52(b) of the Te nn e sse e Rul e s o f C ri min a l Pr oc e dure pr ov ide s:

(b) Plain Err or. – When ne cessa ry to do substantial justi ce, a n appellate court may

consider a

n err or that has a ffe cted the substantial rig hts of an ac cused at any time, even though the e rror was not ra ised in the motion for a new

trial or assig ned as e rror

on appea l.

See also T.R.A.P. 36(b). O ur supre me cour t has adopted the fac tors develope d by this court to be considere d-14- when de ciding whether

an er ror c ons titutes “plain err or” in the

a bs e nc e of a n o bje c tio n at tr ia l: “ (a ) t he re c or d mu st cl e a rl y

e sta bli sh what occ urre d in the trial court; (b) a cle ar a nd unequivoca l ru l e of law must have be en bre ache d; (c) a substantial rig ht of the ac cused must have been adver sely aff ecte d; ( d) the acc used did not waive the iss ue fo r t a c tical r e a so ns ; and (e ) c on sid e ratio n o f t

he e rr or is

nece ssary to do substantial just ice.”

State v. Smit h, 24 S.W .3d 274, 282 (Tenn. 2000) (quotin g State v. Adkisson, 899 S.W .2d 626, 641-42 (Tenn. Crim. App. 1994)). I n order for this court to re verse the judg ment of a tria l court, the

err or must be “of

such a g reat mag nitude that it probably chang ed the outcome of the [procee dings],” and “r ecog nition shoul d be limit ed to e rror s that had an unfair prejudicia l impact which under mined the fundamental fa irness of the tr ial.” Adkisson, 899 S.W.2d at 642.

I n the pre sent ca se, the tra

nscript re flec ts that the trial court considere d whether enhanc ement

a nd mit ig a tin g fa c tor s a

pp lie d a nd we ig he d th e m in

a rr ivi ng at a sent e nc ingde te rm inatio n. I t is likewise appa

rent that a clea

r and unequivoca l r

ule of law was brea ched. See Gomez I I , ___ S.W .3d at ___ (holding that application of e nhance ment fac tors other than fac t of prior c riminal convictions was bre ach of

clea r an d u n eq u i v o ca l rule of la w). I t is also clear

that a substantial rig ht of the defe ndant was a ffe cted whe n he wa s denied his Six th A mendment rig ht to jury trial. See id. at ___. T h e r e c o r d d o e s n o t r e f

le c t w a iv e r f

o r ta c ti c a l r e a s o n s

. Se e id

. a t

_ _ _ ( a ll o w in g plain err or consideration where rec ord did not ref lect that defe ndant waive d Blakely issue for tac tical re asons). Howeve r, consider ation of the issue is not nece ssary t o do substantial justi ce. T he trial c ourt weig hed both enha

nceme nt fac tors heavily
, stating that the defendant’s prior criminal convic tions and his commission of the offense while on bond for another charg e of which he wa s later c onvicted “g reatly outweig h[ed] any

mitigating fac tors.” See id. at ___ (“That the t ri al co u rt gave ‘ g reat

we ig ht’ to t

he De fe nd a nts ’ p ri or

c ri minal hi st orie s d oe s n ot n e c e ssa ri ly re nd e r i rr e le va

nt i ts application of e nhance ment fac tors (2) a nd (9) [applied in contravention of B lakely ].”). The re cord ref lects that the de fenda

nt has a lengthy

prior cr iminal hist ory . I t likewise ref lects that his counsel acknow ledg ed at t

h e s e n tencing hear ing the acc urac y of the prose cutor’s state ment that the def endant committed the prese nt offense while on bond for a felony of which he was late r convic ted. Given that the def

endant has numerous prior convictions and has conce ded the ac cura cy of the fa cts used
to e nh a nc e his se nte nc e , c on sid e ratio n o f t he iss ue is n ot n e c e ssa

ry to do sub sta

nti a l justi c e . T hu s, the def endant ha s not established that he is entitled to plain err or re view.

Ha vin g de te rm ine d th a t th e de fe nd a nt is not en tit le d to pla in e rr or re lie f o n h is B lake ly

c la im,

we c onsider the de fenda

nt’s argument that the record doe s not refle ct whethe r the trial c ourt applied his proffe red mitig ating fac tors. Appellate r eview of sentenc ing is de novo on the re cord w ith aW e n ot e t h at on J u n e 7, 2005, t h e G en er al As s embl y a men ded T en n es s ee C o d e Ann ot at ed s ec t i on s 40- 35- 1

1 0 2 (6), - 1 1 4
, - 2 1 0
, - 4 0 1

. See 2 0 0 5 T enn. P ub

. A ct s ch. 35 3
, §§ 1, 5, 6, 8. H o wever, t he a m e n d e d c o d e sect i o ns are ina p p lica b le to th e d e fen d a n t’s a p p e a l. T h e d e fen d a n t w a s se n te n c e d a fter the c h a n g e in the se n te n c ing law s to o k e ff e c t, but t he r ecor d do es not ref l ect t hat t he def

endan t s i gn ed a wa i ver of hi s ex post f

act o prot ect i ons t o be s ent enc ed un der
t he am en d ed p ro visi o ns. S ee T .C .A

. § 4 0

- 3 5

- 2 1 0
, C o m p i l er’s N o t es.

-15- presumption that the trial cour t’s deter minations are c orre ct

. T

. C

. A. § 40-35-401(d). As the 1 Sentencing Commi ssion Comments to t his section note, the burde n is now on the defe ndant to show that the sentenc e is improper. T h i s m ea n s that if the trial cour t followed the statutory

sentenc ing
proce dure, ma de finding s of fa ct t h at are adequately supported in the re cord, a nd g ave due consideration and proper weig ht to the factors and principles that are rele vant to sentenc ing unde r the 1989 SentencingAct, we may not disturb the sentence even if a diffe rent re sult were pr efe rre d. State v. Fletc her, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Ho wev er, “the p re su mpt ion of c or re c tne ss w hic h a c c omp a nie s th e tr ia l c ourt ’s a c tio n is conditioned upon the af

firmative showing in the re cord tha t the trial court c onsidered the sentenc ing principles and a ll r eleva

nt f acts and circ umstances.” State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991). I n this respec t, for the pur pose of mea

ningf ul appellate r eview,

the trial cour

t must pl ace on the re cord its re asons for a rriving at the final sentenc ing de cision, identify the mitigating an d enhanc ement fac tors found, state the spe cific f acts supporting ea ch enha nceme nt factor found, a

nd articulate how the mitigating a nd enhanc ement fac tors have be en eva luated and ba lan c e d in d e te r mining the sentenc e. T.C.A. § 40-35-210( f) ( 1990).

State v. J ones, 883 S.W.2d 597, 599 (Tenn. 1994).

Also, in conducting a de novo revie w, we must c onsider (1) the evidenc e, if a ny , rec eived at the trial and se ntencing hear ing, ( 2) the pre sentenc e re port, (3) the principles of se nten ci n g and

a rgume nts a s to se nte nc ing a lte rn a tiv e s, (4 ) t he natur e and

c ha ra c te ri sti c s o f t

he c ri min a l c on du c t, (5) a ny mitigating or st atutory enhanc ement factors, (6) any statement t hat t he defenda nt made on his own behalf, a

nd (7) the pote ntial for re habilitation 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 (Tenn. 1986)

.

Th e se nte nc e to b e im pose d b y the tr ia l c ourt

fo r a Cla ss B , C, D, or

E f e lony is
pr e su mpt ive ly

the min imum in

the ra ng e if ne ith e r e nh a nc e me nt n or mit ig a tin g fa c tor s are pr e se nt. T

. C

. A. § 4 0 -3 5 -2 1 0 (c ). P ro ce d u ra l l y , t h e t ri al co u rt i s t o i n cr ea s e t h e s en t en ce wi t h i n t h e r an ge based upon the exis tence of enhanc ement fac tors and then reduc e the sentenc e as a ppropriate for a

ny mitigating fac tors. T.C.A. § 40-35-210( d), (e)

. The weig ht to be aff orded a n exis ting f

actor is left to the trial court’ s discretion so long as it complies with t h e p u rp o s es and pr inciples of the 1989 Sente n c in g A c t a

n d it s f in d in g s a r e a d e qu a te ly

s u p p o rte d b y th e r e c o r d

. T

. C. A

. § 4 0

- 3 5

- 210, Sentencing Commi ssion Cm ts.; Moss, 727 S .W.2d at 237; see Ashby , 823 S.W .2d at 169.-16-

Th e re c or d r e fl e c ts that th e tr ia l c ourt c on sid e re d the re le va nt fa c ts a nd c ir c ums tanc e s. With
respe ct to the def

endant’ s cl ai m re l at ive to mitigating fac tors, the re cord r efle cts that the cour t addre ssed and r ejec ted ea ch of the defe ndant’s prof fer ed mitigating f

actor s. M o re o v er , the cour t stated that even if it gave the de fenda nt the benef

it of his proffe red mitig ating fac tors, any mitigating
pr oo f was so far ou tw e ig he d b y the e nh a nc e me nt f

a c tor s th a t a

ma ximumse nte nc e wa s st ill
appropr iate. On a

ppeal, the de fenda

nt has not shown the impr o p ri et y o f a si x -y ear sentenc e. As noted by the trial cour

t, the defe ndant had a “substantial rec ord” which consists of re peate d driving

a nd a lc oh ol c on vic tio ns . H e c omm itt e d th e of fe ns e wh ile he wa s o n b a il f or on e of the se of fe ns e s. We hold that the trial court did not err in determining that even if it wer e to g ive t he def endant the benef it of his proffe red mitig ating fac tors, the enha nceme nt fac tors still outweig hed those mitigating fac tors sufficie ntly

to support a six -y ear

sentenc e.

I n consideration of the fore g oing a nd the record as a whole, the judgme nt of the trial cour t is affirme d.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE