# FILED April 10, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JANUARY SESSION, 1997
STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9609- CC-00297 ) Appellee, ) ) FAYETTE COUNTY V. ) ) HON . JON K ERR Y BLA CKW OOD , TER RY LO GAN, ) JUDGE ) Appe llant. ) (SECOND DEGREE MURDER)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF FAYE TTE COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : TI MOTHY

JOE L WI LLI AMS CHARLE S W. BURSO N Attorn ey at Law Attorney General& Reporter 147 Jefferson Avenue, Suite909 Memphis, TN 38103 DEB ORAH A. TULL IS Assistant Attorney General 450 Jam es Robe rtson Parkw ay Nashvill e, TN 37243-0493 ELIZA BETH RICE Distri ct Attor ney General CHRISTOPHER MA RSHBURN Assistant Distri ct Attor ney General 302 Market Street Somervill e, TN 38068 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Appellant , Terry Loga n, pled guilty as charg ed in th e Circ uit Court of Fayette County to t he offense of second degr ee murder of thevi cti m, Michael Hood . Follow ing a s enten cin g hearing, t he trialcourt sent enced the Ap p ellant

to serve t he presumptive s entence of t wenty (20) years in the Depa rtment of Correcti ons as a Range I Standard Offender. On appeal , the Appellant

subm its that th e sen tence is exce ssive. H e argu es thre e issue s in his appe al: (1) That an enhancement f actor appli ed by the trial c ourt do es no t apply to his case; (2) that certa in mitigating factors we re not appli ed by the trial co urt; and (3) that

the presumpti on of corre ctnes s norm ally afforded to sentencing by the trial court should not be applied in this case . Finding no error, we affirm the judgm ent of the tria l court.

In the earl y morning hours of October 21, 1995, the Appellant was drinking beer in his house a long w ith the vic tim, Su san B ond, a nd Ap pellan t’s roommate, Johnny Logan. Logan and Appel lant became involved in an argument overthe rent and u tili ty bil ls. Duri ng this arg ument, the vi ctim got i nto a fist-fi ght with the Appe llant. Afte r the alte rcation ende d, the A ppella nt wen t into his bedroom and retri eved a wooden baseball bat . Appellant returned to the dini ng room, where the v ictim was l ocated, and struck t he victi m in the head areawith the base ball bat severaltimes , le avin g the v ict im uncon sciou s on th e fl oor. As the victim lay o n the floo r unconscious, Appellant stood over t he victi m and deliver ed another blow t

o the vict im’s head wit h the base ball ba t. The victim was transported to a hospital and died the following day.-3- Appellant

told a deput

y sherif f who a rri ved at the scene that “[ the vi cti m] hit me i n my own house an d I beat his ass w ith a bat.” At the sentenc ing hearing, the Appellant admitted t hat he tol d the deputy that if Appell ant had been in posse ssion of a firearm, h e would have sh ot the victim
.

As an enhancement factor , thetri al cou rt found th at th e Ap pellan t allowed the vict im to be treated with except ional cru elty dur ing the commissi on of t he offense. Tenn. Code Ann. § 40-35-114(5). The tri al court f ound two ( 2 ) mitigati ng factors, that theAppellant acted under st rong provocat ion and that he had ad mitted his guilt.

I.

In his fi rst iss ue, Appellant submits that

the presumpti on of correctness normally afforded to a sentence imposed by the t rial court m ust fail in this case “due to lac k of spec ificity in the reco rd.”

When an accused chall enges the lengt h, range, or the manner of service of a sentence, this cour t has a dut y to conduct a de novo review of the sentence with a presu mption that the determinat ions made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This pr esumption is "condi tioned upon the affi rm ative showi ng in the record that t he trialcourt consi dered the sentencing principles and all rele vant facts a nd circum stance s." State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).-4- In co nduct ing a de novo review of a sentence, t his court must consider: (a) the ev idence, if any, received at the tri al and the sentencing heari ng; (b) the pres entenc e report; (c ) the princip les of sen tencing a nd argu ments as to sentencing alternat ives; ( d) the natur e and characteristi cs of the criminal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement that the de fenda nt ma de on his ow n beh alf; and (g) the p otentia l o r lack o f potentialfor rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, - 103, and -21 0; see State v. S mith , 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).

If our revi ew r eflects that the trial court followed the statutory sentencing procedure, i mposed a lawful sentence after hav ing giv en due considerati on and proper weight to the fac tors and pri ncipals set out under the sentencing law, and th at the trial court's finding s of fact are adequately

supported by therecord , t hen we ma y not modify the sen tence even if we would have preferreda differ

ent result. State v. Fletcher , 80 5 S. W.2d 7 85, 789 (Ten n. C ri m. App. 1991 ).

The Appellant complains t hat the trialcourt fai led to fol low proper sentencing procedures b y faili ng to make specifi c findi ngs of fact in the record. The comments of the trial court at t he conclusion of the sentencing h earing are as follows: THE COURT: Mr. Logan, w ill you stand, please, sir.

Upon entering a plea of gui lty to Murderin the Second Degree, the Court fi nds tha t you allowe d the victim to be treated with except ional cru elty, but you acted under strong provoc a tion as a mit igating offender, and sentences you to the presu mptive sentence of 20 years in the De partm ent of C orrect io ns, as a Standard-5- Offender, to serve 30 per cent before y

ou’ll be eli gible for release classification
. You’ll be give n cred it for 186 days while i n jail awaiting trial. Thank you.
The sentencing or

der en tere d by the trial cou rt insofa r as it addresses enhancing and mitigating factor s states as foll ows: “And it appearing to the C ourt that ther e is an enhancementfactor thatthe defendant

al lowe d a v ict im to be treat ed wi th ext reme cruelty, and the Court f inds the mitigati ng factors that the def endant acted u nder stro ng provo cation an d he ha s adm itted his gu ilt.”
Tennessee Code Annotated Secti on 40-35-209(c) providesin part, “[T]he record of t he sentencing hearing is par t of therecord of the case and shall include specifi c findi ngs of fact upon which appli cation of the sentenc in g principals was b ased.” (Em phasis add ed).

As correctl y noted by

the App ellant, State v. S mith , 910 S.W.2d 457 (Ten n. C ri m. App.) cert
. denied , id . (Tenn. 1995) stands for the proposi tion that the finding s by the trial court in a sentenci ng hearing must be r ecorded in order to allow ad equate review on appea l. Smith , 910 S.W.2d at 460.

The presumption of

cor rec tness does not apply in thi s case. Howeve r, even though the trial cou rt should have stated the speci fic fi ndings of fact from the recor

d to support app l icatio n of the enhancement f actors and mitig at ing factors found by the court , we do not find that the failure t o do so requires a new s entencing hear ing in t his case or modif icatio n of the sentence.-6- This issu e is withou t merit.

II.
In his second is sue, the Appell ant argues that the enhancement factor relied u pon b y the tria l court is an es sentia l e lemen t of second degree murder and therefore, is not applicabl e in thi s case.

Second degree m urder is the k nowing kil ling of another. Tenn. Code Ann. § 39-13-2 10( a)(1). Appellant main tains on appealthat the “ malice” th at caused Appellant’s crim e to be seco nd degree murder rath er t han vo luntary manslaughter

cons titutes c ruelty, a nd the refore this enhancement factor cannot be use d. How ever, ma lice is no lon ger an e lemen t of secon d degre e murd er.

The record re flects thatthe Appellant struck t he victi m several ti mes about his head with a wo oden b aseba ll bat until the victim fell to th e floo r unco nscio us. At that poi nt, the Appel lant then walked over to the vict im and deliver ed anoth er blow to the vic tim’s head with the base ball ba t. The re is adequ ate evide nce in the record to support use of the enhancement factor t hat the Appellant t reated the v ictim wi th ex ceptio nal cruel ty duri ng the commission of the offens e. In a ddition, a s correctly pointed out by the State in its brief, the Appellant

emp loyed a dead ly weap on, the base ball bat, duri ng commission of t he offense. Therefore, Tenn esse e Code Annotated Secti on 40-35-114(9) is an applic able enha ncem ent fac tor. Th is cour t is allow ed, in conducting its de novo review to consider

any enhancement or mit igating factors s upported by t he-7-

record, even if it was not relied u pon by th e trial court. State v . Ad ams , 864 S.W .2d 31, 34 (Tenn . 1993); Smith , 910 S.W .2d at 460
.

Appe llant’s seco nd issue is without m erit.

III.
Appe llant’s third i ssue is, “ Whet he r any mitiga ting factors apply to yourAppella nt.” The tria l court did find tw o ( 2) mitigat ing factors, that the Appellant

acted under st rong p rovoc ation a nd tha t the Ap pellan t adm itted his guilt. In his appeal , the Appe llant ur ges that the trial court sh ould have considered the foll owing ad dit ional mit igating factors: (1) That the Appellant assisted the authori ties i n locati ng or recoveri ng any propert y or person i nvolved in the crim e; (2) th at the A ppella nt com mit ted th e offense under such unusual circumstancesthat it is un likely a s ustain ed inte nt to viola te the la w mo tivated his c onduc t; and (3) that the Appellant , because of hi s youth, l acked substanti al judgment in comm itt i ng the o ffense. T enn. C ode An n. § 40-3 5-113(1 0),(11),& (16).
Appellant relies upon State v. Shelton , 85 4 S. W.2d 1 16 (Tenn . Cr im. App. 1992), perm . to appeal denied , id . (Tenn. 199 3), in support of his argument thatthe mitiga ting factor th at Appe llant lacked a sustain ed intent to violate the law shou ld be applicabl e. We have reviewed State v. Shelton and c onclu de tha t it is disting uisha ble from Appellant’s case. I n Shelton , also a second degree murder case, the defe ndant killed his wife by u se of a firearm. T his Court held that the mitigati ng facto r contai ned in Tennessee Code Annotated Sect ion 40-35-113( 11) was applicable because the tri al court did not f ind that the domest i c diffi cultie s-8-

between the parties related to a sustained inten t to vi olat e the law which motivate d the killing. Shelton , 854 S.W.2d at 123.

In Appellant’ s case, he was i nvolved i n an altercat ion wit h th e vi cti m, left the alter

cation and went

into hi s bedroom and retri eved a wooden bas eba ll bat. He returned and hit thevictim several times about the head area, and struck the victi m at least onemo re time on thehead after he had fall en to the fl oor unconscious. When the first l aw enforcement off icer arr ived, the Appellant came out of the house and yel led at t he of fi cer “( thevi cti m] hit me in my own house and I beat his ass with a bat.” Appellant

also admitted at the sentencing heari ng that he told the offi cer that hewould have shot the victim if he had had a gun . There is no error in the trial court not ap plying this mitigating factor.

Appellant

urges that the tria l cour t should have applied t he mitigat ing factor that he assi sted authori ties i n locati ng a pe rson inv olved in a c rime. Appellant

called 911 f

ollowing the incident. Wh ile we a gree th at this m itigating factor is ap plicable, w e afford it very little weight.

Finally, the Appellant

argues that the mi tigati ng factor t hat he lacked substanti al judgment in committing the offensebecause of his youth shou ld have been applied by the tri al court. The rec o rd refl ects that the Appellant

was one month shy of his

twenty-f irst bi rthday when hecomm itted the offense. Th ere is simply nothi ng in thi s record to i ndicate t hat this mitigati ng factor i s applicabl e.
Although we find that the trial court should have appl ied the mitigating f

actor contain ed in Tenness ee Code Annotated § 40-35- 113(10), we-9-

find that thi s mitigat ing factor should be afforded lit tle weight

and do es not jus tify a mod ification of Ap pellant’s se ntence
.

This issu e is withou t merit.

In conc lusion , we ha ve foun d that th e trial co urt pro perly applied one enhancement factor, and that an additio nal enhancement factor, use of a dea dly weapon in commissi on of th e offens e, is a pplicable i n thiscase. Fur thermore, we find that the trial court properly ap plied two (2) mitigating fa ctors , and fa il ed to apply one (1) m itigating facto r, though it is entitled to litt le weight. Appellant was convicted of a Class A fel ony, and the pr esum ptive sentence, i f there ar e no enhancement or mitigat ing factors is 20 years. If there are enhan cemen t factors and mitigating factors, the court m ust sta r t at the pr esumptive sent ence in the range, enhance the sentence as appropriate for enhancement factors, and reduce the sente nce as approp riate for m itigating facto rs.

After a thorou gh revi ew of therecord, we have determined that the twenty-year senten ce imp osed b y the trial cou rt is approp riate. The judgment of the tri al court i s therefor e affirmed.

____________________________________-10- THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ PAUL G. SUMMERS , Judge

___________________________________ DAVID G. HAYES, Judge