FILED

April 10, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9609-CC-00297

)

Appellee, )

) FAYETTE COUNTY

V. )

) HON. JON KERRY BLACKWOOD, 

TERRY LOGAN, ) JUDGE

)

Appellant. ) (SECOND DEGREE MURDER)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF FAYETTE COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

TIMOTHY JOEL WILLIAMS CHARLES W. BURSON

Attorney at Law Attorney General & Reporter

147 Jefferson Avenue, Suite 909

Memphis, TN 38103 DEBORAH A. TULLIS

Assistant Attorney General

450 James Robertson Parkway 

Nashville, TN 37243-0493

ELIZABETH RICE

District Attorney General

CHRISTOPHER MARSHBURN

Assistant District Attorney General

302 Market Street

Somerville, TN 38068

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
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OPINION

The Appellant, Terry Logan, pled guilty as charged in the Circuit

Court of Fayette County to the offense of second degree murder of the victim,

Michael Hood. Following a sentencing hearing, the trial court sentenced the

Appellant to serve the presumptive sentence of twenty (20) years in the

Department of Corrections as a Range I Standard Offender. On appeal, the

Appellant submits that the sentence is excessive. He argues three issues in his

appeal: (1) That an enhancement factor applied by the trial court does not apply

to his case; (2) that certain mitigating factors were not applied by the trial court;

and (3) that the presumption of correctness norm ally afforded to sentencing by

the trial court should not be applied in this case. Finding no error, we affirm the

judgment of the trial court.

In the early morning hours of October 21, 1995, the Appellant was

drinking beer in his house along with the victim, Susan Bond, and Appellant’s

roommate, Johnny Logan. Logan and Appellant became involved in an argument

over the rent and utility bills. During this argument, the victim got into a fist-fight

with the Appellant. After the altercation ended, the Appellant went into his

bedroom and retrieved a wooden baseball bat. Appellant returned to the dining

room, where the victim was located, and struck the victim in the head area with

the baseball bat several times, leaving the victim unconscious on the floor. As

the victim lay on the floor unconscious, Appellant stood over the victim and

delivered another blow to the victim’s head with the baseball bat. The victim was

transported to a hospital and died the following day.
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Appellant told a deputy sheriff who arrived at the scene that “[the

victim] hit me in my own house and I beat his ass with a bat.” At the sentencing

hearing, the Appellant admitted that he told the deputy that if Appellant had been

in possession of a firearm, he would have shot the victim. 

As an enhancement factor, the trial court found that the Appellant

allowed the victim to be treated with exceptional cruelty during the commission

of the offense. Tenn. Code Ann. § 40-35-114(5). The trial court found two (2)

mitigating factors, that the Appellant acted under strong provocation and that he

had admitted his guilt. 

I.

In his first issue, Appellant submits that the presumption of

correctness normally afforded to a sentence imposed by the trial court must fail

in this case “due to lack of specificity in the record.”

When an accused challenges the length, range, or the manner of

service of a sentence, this court has a duty to conduct a de novo review of the

sentence with a presumption that the determinations made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned

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

sentencing principles and all relevant facts and circum stances." State v. Ashby,

823 S.W .2d 166, 169 (Tenn. 1991).
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In conducting a de novo review of a sentence, this court must

consider: (a) the evidence, if any, received at the trial and the sentencing hearing;

(b) the presentence report; (c) the principles of sentencing and arguments as to

sentencing alternatives; (d) the nature and characteristics of the criminal conduct

involved; (e) any statutory mitigating or enhancement factors; (f) any statement

that the defendant made on his own behalf; and (g) the potential or lack of

potential for rehabilitation or treatm ent. Tenn. Code Ann. §§ 40-35-102, -103,

and -210; see State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

If our review reflects that the trial court followed the statutory

sentencing procedure, imposed a lawful sentence after having given due

consideration and proper weight to the factors and principals set out under the

sentencing law, and that the trial court's findings of fact are adequately supported

by the record, then we may not modify the sentence even if we would have

preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991).

The Appellant complains that the trial court failed to follow proper

sentencing procedures by failing to make specific findings of fact in the record.

The comments of the trial court at the conclusion of the sentencing hearing are

as follows:

THE COURT: Mr. Logan, will you stand, please, sir.

Upon entering a plea of guilty to Murder in the Second

Degree, the Court finds that you allowed the victim to

be treated with exceptional cruelty, but you acted under

strong provocation as a mitigating offender, and

sentences you to the presumptive sentence of 20 years

in the Department of Corrections, as a Standard
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Offender, to serve 30 percent before you’ll be eligible

for release classification. 

You’ll be given credit for 186 days while in jail awaiting

trial.

Thank you.

The sentencing order entered by the trial court insofar as it

addresses enhancing and mitigating factors states as follows:

“And it appearing to the Court that there is an enhancement factor

that the defendant allowed a victim to be treated with extreme

cruelty, and the Court finds the mitigating factors that the defendant

acted under strong provocation and he has admitted his guilt.”

Tennessee Code Annotated Section 40-35-209(c) provides in part,

“[T]he record of the sentencing hearing is part of the record of the case and shall

include specific findings of fact upon which application of the sentencing

principals was based.” (Emphasis added).

As correctly noted by the Appellant, State v. Smith, 910 S.W.2d 457

(Tenn. Crim. App.) cert. denied, id. (Tenn. 1995) stands for the proposition that

the findings by the trial court in a sentencing hearing must be recorded in order

to allow adequate review on appeal. Smith, 910 S.W.2d at 460.

The presumption of correctness does not apply in this case.

However, even though the trial court should have stated the specific findings of

fact from the record to support application of the enhancement factors and

mitigating factors found by the court, we do not find that the failure to do so

requires a new sentencing hearing in this case or modification of the sentence.
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This issue is without merit.

II.

In his second issue, the Appellant argues that the enhancement

factor relied upon by the trial court is an essential element of second degree

murder and therefore, is not applicable in this case.

Second degree murder is the knowing killing of another. Tenn. Code

Ann. § 39-13-210(a)(1). Appellant maintains on appeal that the “malice” that

caused Appellant’s crime to be second degree murder rather than voluntary

manslaughter constitutes cruelty, and therefore this enhancement factor cannot

be used. However, malice is no longer an element of second degree murder. 

The record reflects that the Appellant struck the victim several times

about his head with a wooden baseball bat until the victim fell to the floor

unconscious. At that point, the Appellant then walked over to the victim and

delivered another blow to the victim’s head with the baseball bat. There is

adequate evidence in the record to support use of the enhancement factor that

the Appellant treated the victim with exceptional cruelty during the commission

of the offense. In addition, as correctly pointed out by the State in its brief, the

Appellant employed a deadly weapon, the baseball bat, during commission of the

offense. Therefore, Tennessee Code Annotated Section 40-35-114(9) is an

applicable enhancement factor. This court is allowed, in conducting its de novo

review to consider any enhancement or mitigating factors supported by the
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record, even if it was not relied upon by the trial court. State v. Adams, 864

S.W.2d 31, 34 (Tenn. 1993); Smith, 910 S.W .2d at 460. 

Appellant’s second issue is without merit.

III.

Appellant’s third issue is, “Whether any mitigating factors apply to

your Appellant.” The trial court did find two (2) mitigating factors, that the

Appellant acted under strong provocation and that the Appellant admitted his

guilt. In his appeal, the Appellant urges that the trial court should have

considered the following additional mitigating factors: (1) That the Appellant

assisted the authorities in locating or recovering any property or person involved

in the crime; (2) that the Appellant committed the offense under such unusual

circumstances that it is unlikely a sustained intent to violate the law motivated his

conduct; and (3) that the Appellant, because of his youth, lacked substantial

judgment in comm itting the offense. Tenn. Code Ann. § 40-35-113(10),(11),&

(16). 

Appellant relies upon State v. Shelton, 854 S.W.2d 116 (Tenn. Crim.

App. 1992), perm. to appeal denied, id. (Tenn. 1993), in support of his argument

that the mitigating factor that Appellant lacked a sustained intent to violate the law

should be applicable. We have reviewed State v. Shelton and conclude that it is

distinguishable from Appellant’s case. In Shelton, also a second degree murder

case, the defendant killed his wife by use of a firearm. This Court held that the

mitigating factor contained in Tennessee Code Annotated Section 40-35-113(11)

was applicable because the trial court did not find that the domestic difficulties
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between the parties related to a sustained intent to violate the law which

motivated the killing. Shelton, 854 S.W.2d at 123.

In Appellant’s case, he was involved in an altercation with the victim,

left the altercation and went into his bedroom and retrieved a wooden baseball

bat. He returned and hit the victim several times about the head area, and struck

the victim at least one more time on the head after he had fallen to the floor

unconscious. When the first law enforcement officer arrived, the Appellant came

out of the house and yelled at the officer “(the victim] hit me in my own house and

I beat his ass with a bat.” Appellant also admitted at the sentencing hearing that

he told the officer that he would have shot the victim if he had had a gun. There

is no error in the trial court not applying this mitigating factor.

Appellant urges that the trial court should have applied the mitigating

factor that he assisted authorities in locating a person involved in a crime.

Appellant called 911 following the incident. While we agree that this mitigating

factor is applicable, we afford it very little weight. 

Finally, the Appellant argues that the mitigating factor that he lacked

substantial judgment in committing the offense because of his youth should have

been applied by the trial court. The record reflects that the Appellant was one

month shy of his twenty-first birthday when he committed the offense. There is

simply nothing in this record to indicate that this mitigating factor is applicable.

Although we find that the trial court should have applied the

mitigating factor contained in Tennessee Code Annotated § 40-35-113(10), we
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find that this mitigating factor should be afforded little weight and does not justify

a modification of Appellant’s sentence. 

This issue is without merit.

In conclusion, we have found that the trial court properly applied one

enhancement factor, and that an additional enhancement factor, use of a deadly

weapon in commission of the offense, is applicable in this case. Furthermore, we

find that the trial court properly applied two (2) mitigating factors, and failed to

apply one (1) mitigating factor, though it is entitled to little weight. Appellant was

convicted of a Class A felony, and the presumptive sentence, if there are no

enhancement or mitigating factors is 20 years. If there are enhancement factors

and mitigating factors, the court must start at the presumptive sentence in the

range, enhance the sentence as appropriate for enhancement factors, and

reduce the sentence as appropriate for mitigating factors. 

After a thorough review of the record, we have determined that the

twenty-year sentence imposed by the trial court is appropriate. The judgment of

the trial court is therefore affirmed.

____________________________________
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THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

PAUL G. SUMMERS, Judge

___________________________________

DAVID G. HAYES, Judge