IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 6, 2007

STATE OF TENNESSEE v. CHARLES VANTILBURG, III

 Appeal from the Criminal Court for Shelby County

No. 00-12715 Lee V. Coffee, Judge

No. W2006-02475-CCA-R3-CD - Filed February 12, 2008

The defendant, Charles Vantilburg III, was originally convicted of second degree murder in 2002

and sentenced to 20 years’ incarceration. On direct appeal, this court reversed the defendant’s

conviction and remanded the case for a new trial on the basis of the trial court’s giving an erroneous

definition of the term “knowingly.” See State v. Charles Vantilburg, No. W2002-01480-CCA-R3-

CD (Tenn. Crim. App., Jackson, Jan. 13, 2004). After a second trial, the defendant was again

convicted of second degree murder, and the trial court imposed a 22-year sentence. In this appeal,

the defendant asserts that (1) the evidence is insufficient to support his conviction, (2) the trial court

erred by admitting into evidence a “memorandum of understanding” signed by the parties, (3) the

trial court erred by permitting the state to play a videotape of the recovery of the victim’s body, (4)

the trial court erred by instructing the jury on flight, and (5) the sentence is excessive. The sentence

is modified to 20 years; otherwise, the judgment of the trial court is affirmed.

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

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the court, in which THOMAS T. WOODALL

and J.C. MCLIN, JJ., joined.

Leslie I. Ballin, Memphis, Tennessee, for the appellant, Charles Vantilburg III.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney

General; and Thomas Henderson and Karen Cook, Assistant District Attorneys General, for the

appellee, State of Tennessee.

OPINION

The defendant was convicted of second degree murder for the shooting homicide of

the victim, Toby Gibson, in June 2000. On June 22, 2000, the victim’s mother, Terri Tibbs, tried

to reach him by telephone but was unable to do so. She later spoke to his roommate, who told her

that the victim had not been home that day and had missed a softball game that evening. The next

day, Ms. Tibbs and the victim’s girlfriend, Brandy Shannon, went to the Bartlett Fire Department,

where both the victim and the defendant worked, and spoke to the defendant. The defendant

admitted to Ms. Tibbs that he was the last person known to have seen the victim.
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Bartlett Assistant Fire Chief Terry Wiggins was cutting grass at a baseball field

located across the road from the defendant’s house on June 22, 2000, when he heard a gunshot at

approximately 4:00 p.m. Mr. Wiggins stated that neither he nor his son, who was helping with the

grass, was able so see any source for the gunshot. Later that same day, the victim failed to show up

for a softball game, which was very unusual. When the victim also failed to arrive as scheduled for

work the following morning, Mr. Wiggins spoke with other firefighters on the shift, including the

defendant. The defendant volunteered that the victim had been at the defendant’s house during the

time that Mr. Wiggins and his son were cutting grass.

After learning that the defendant was the last person to see the victim alive, Bartlett

Police Department Detective Kevin Thompson interviewed the defendant, who told him that the

victim had come to his house to collect a debt. The defendant also claimed that the victim then went

to Wolf Chase Mall to “buy some steroids from someone.” The defendant told Detective Thompson

that the victim had asked him to follow him to the mall “to be his backup.” The defendant agreed

and asked his friend Raoul Laguna to take him to the mall. According to the defendant, he went to

the food court area, purchased a bottle of water, and when he did not see the victim, he telephoned

Laguna to pick him up. Bartlett Fire Department Lieutenant Tracy Barnett confirmed that the victim

told him that he was going to the defendant’s house to collect a debt.

Raoul Laguna, who worked for the defendant renovating houses, confirmed that the

defendant telephoned him and asked him to pick him up at Wolf Chase Mall on June 22, 2000.

Several days later, the defendant again telephoned Mr. Laguna and asked him to give him a ride

from Mr. Laguna’s mother’s house. When Mr. Laguna arrived at his mother’s house, he noticed the

work van that the defendant used in his renovating work parked in the driveway. Later, Mr. Laguna

noticed a foul odor emanating from the van and flies swarming around the back of it. When the

defendant came to retrieve the van, Mr. Laguna attempted to follow him but eventually lost sight

of him.

During a search of the defendant’s residence and property, Shelby County Sheriff’s

Department Reserve Deputy Barney Gardner discovered a shell casing and an area of discoloration

on the floor of a “tractor garage.” Other officers located the defendant’s work van in the parking

lot of Advance Auto Parts, “cut off the padlocks on the back[,] and opened the doors.” According

to Memphis Police Officer Shan Tracy, the inside of the van “smelled like something was dead” and

was covered in swarming flies. Officer Tracy also observed “some paint tarps on the floor [of the

van], and . . . a liquid substance that was drying. We felt it was probably blood.” Bartlett Police

Lieutenant Doug Bailey confirmed that “[u]pon stepping onto the parking lot you could smell a very

foul stench around the van.” Lieutenant Bailey stated that there were “dark reddish stains” on a

white tarp and “on the floor of the interior of the van.” 

On June 25, 2000, the defendant turned himself in to the Bartlett Police Department.

Two days later, the defendant, in the presence of his attorney, agreed to give a statement to police.

Lieutenant Bailey read into evidence a “memorandum of understanding” signed by the parties

wherein the defendant agreed to reveal the location of the victim’s body in exchange for the State’s

promise not to prosecute him for any crime more serious than second degree murder. In his
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statement to police, the defendant claimed that the victim became enraged when the defendant was

unable to pay him the entire amount of money he owed. According to the defendant, he gave the

victim $100 and offered to go to the bank for more money, but the victim was not satisfied with his

efforts. The defendant claimed that the victim pushed him “pretty hard,” causing him to “step back

a couple of steps.” At that point he reached for his gun and said, “Now, Toby, just, you know, stop.

That’s enough. I’ll get your money.” The defendant stated that he “wasn’t going to shoot him” but

the victim pushed him and then turned around and that “the gun went off.” He recalled that the

victim “fell up against the side of the wall and it’s like he fell straight down.” Of his next actions,

the defendant said:

I mean it was just crazy. . . . I mean, hell he’s my friend. You know?

. . . . I go out of the barn and I look towards my house and I see my

son looking through the window at the patio door and the two dogs

and I still ain’t found my daughter. Anyway, so I, I don’t know what

to do. . . . I know now I should of called and reported it, but I just saw

everything I had just going away, but I went in my little storage

building and got a tarp out that was in there. It was a blue tarp and

uh, there’s a big fuzzy rug thing that we used to keep on our bed that

my daughter camped out in the backyard . . . and she had used it as

a . . . mattress underneath her sleeping bag. Anyway, that was out

there on the back patio and it was all nasty. . . . I got that and I got the

tarp and I went back over and still I didn’t call. . . . I wrapped him up

and I . . . tried to get some of the blood that was on the ground. . . . I

told [my daughter and my son] to stay in the house. . . . I made a

couple of phone calls then. . . . There was a glove [on the kitchen

counter] and I got the glove and I got a uh, dish towel that was on the

counter. I’m sweating pretty good. I’m getting nauseated. I can’t

think. . . . I couldn’t think of what to do then and so anyway, I got in

his vehicle and I drove out through Ellendale . . . . I called a guy that

works for me, Ra[o]ul, and . . . . I told him . . . I needed him to come

pick me up. . . . So he said, “OK, Chief.” . . . . I drive over to

Wolfchase. . . . I parked the truck and I got out and I wiped the sweat

. . . and tears, I don’t know which, off the . . . st[ee]ring wheel and the

seat. . . . I went to the Food Court . . . . I bought a bottle of water and

uh, downed it. . . . Ra[o]ul pulled up in his green van and I got in and

uh, he said, “What’s going on?” I said, “Nothing, You don’t want to

know.”. . . We get back to the house and I still got a problem. My

good friend’s dead. I killed him. I didn’t mean to. . . . [B]ut he’s

dead and he’s in the backyard and I got rid of the truck, but I still got

his body.

The defendant stated that he then put his children into his vehicle and drove them to

Sonic to get something to eat. From there, the defendant made two stops looking for peroxide to

clean up the blood in the shed. When he returned to his house, he sent the children inside with the
Because Mr. Alberson was medically unavailable to testify at the defendant’s second trial, the transcript of 1

the testimony he provided at the first trial was read into evidence.

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food, and after making an excuse about servicing one of his rental houses, the defendant got in his

yellow van and drove toward the shed. He stated that he believed it was “too late” to report the

crime, and instead chose to place the victim’s body in the van. He then drove the van to the house

shared by Mr. Laguna’s sister and mother and locked it inside a fence behind the house. He returned

home and went to work the following morning.

Two days later, Mr. Laguna called and asked the defendant to come and get the van

because “[t]here’s [sic] flies and the van stinks.” The defendant went to pick up the van and made

the decision “to dump” the victim. He then drove to a rural area and “dropped” the victim’s body

on the side of the road. After leaving the van in a parking lot and borrowing $20 from Mr. Laguna,

the defendant drove around “all that night and the next morning and half the day” before deciding

to turn himself in. At the conclusion of the interview, the defendant added, “I know y’all are

charging me with murder, but it wasn’t murder. I can’t even say I think, . . . hell, it wasn’t even selfdefense. It was an accident . . . .”

Tennessee Bureau of Investigation Firearms Examiner Steve Scott tested the Glock

9 mm belonging to the defendant and found the handgun to be “in proper working order.” Agent

Scott testified that the weapon had three properly functioning safeties and seven pounds of trigger

pull. Agent Scott explained that a “hair trigger” refers to a weapon with one pound or less of trigger

pull. Agent Scott confirmed that the shell casing found in the defendant’s shed had been fired from

the Glock 9 mm.

Shelby County Medical Examiner Doctor O’Brian Cleary Smith was present during

the recovery of the victim’s body, which was “wrapped in [a] sheepskin blanket in blue tarp [and]

tied with multiple wraps,” resting at the bottom of a steep culvert in rural Desoto County,

Mississippi. The victim suffered a single gunshot wound to the back of the neck, just to the right

of the midline. “The bullet went through the skin and the subcutaneous tissues underneath. It

fractured the right lateral or right side of the first cervical vertebra with intrusion of the bone

fragments into the spinal canal and laceration of the spinal cord.” According to Doctor Smith, the

gunshot would have been “sufficient to cause instantaneous incapacitation which means the person

would be unconscious, paralyzed, and it would just then be a matter of minutes before the brain died

and then the organs like the heart and such would follow.” During cross-examination, Doctor Smith

acknowledged that the defendant’s description of the shooting as accidental “would be consistent

with the anatomic findings that were present at autopsy” but clarified that an intentional gunshot

would also be consistent with his findings. Doctor Smith also observed that even immediate medical

intervention would not have saved the victim’s life.

Randall Eugene Alberson, Sr., a driver with the Bartlett Fire Department, testified

that after learning that the defendant had been arrested for the victim’s murder, he went to the jail

to visit the defendant and “to hear . . . what really happened.” Mr. Alberson recalled that the 1

defendant “cried for most of the time he was talking” and gave a description of the events
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surrounding the victim’s death that was nearly identical to that he had provided to police. According

to Mr. Alberson, the defendant told him “point blank,” “Yes, I meant to shoot [the victim], but I

didn’t mean to kill him. I loved him like a brother.”

At the conclusion of the trial, the jury convicted the defendant of second degree

murder. Later, the trial court imposed a 22-year sentence. In this appeal, the defendant challenges

the sufficiency of the evidence, the admission of certain evidence, the propriety of the jury

instruction on flight, and the length of the sentence.

I. Sufficiency of the Evidence

The defendant asserts that the evidence is insufficient to support his conviction.

When an accused challenges the sufficiency of the evidence, an appellate court’s standard of review

is whether, after considering the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn.

R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v.

Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). The rule applies to findings of guilt based

upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial

evidence. Winters, 137 S.W.3d at 654.

In determining the sufficiency of the evidence, this court should neither re-weigh the

evidence nor substitute its inferences for those drawn by the trier of fact. Id. at 655. Questions

concerning the credibility of the witnesses, the weight and value of the evidence, as well as all

factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978). Significantly, this court must afford the State of Tennessee the strongest

legitimate view of the evidence contained in the record as well as all reasonable and legitimate

inferences which may be drawn from the evidence. Id.

Second degree murder is the “knowing killing of another.” T.C.A. § 39-13-210(a)(1)

(1997). “A person acts knowingly with respect to a result of the person’s conduct when the person

is aware that the conduct is reasonably certain to cause the result.” T.C.A. § 39-11-302(b) (1997).

In this case, the evidence established that the victim was killed by a single gunshot

wound to the back of the neck that caused instantaneous incapacitation, followed shortly by brain

death and systemwide organ failure. Although the defendant claimed that the shooting was an

accident, he did not call to report it to the authorities. Instead, he wrapped the victim’s body and

hid it in a van. Over the ensuing days, the defendant took great pains to hide the victim’s body and

deflect suspicion from himself. He admitted lying to police and to the victim’s family about his

meeting with the victim. Moreover, the defendant admitted to Mr. Alberson that, although he had

not meant to kill the victim, he had intended to shoot him during their altercation. The jury, as was

its prerogative, rejected the defendant’s theory of the shooting and found that he knowingly killed

the victim. The evidence adduced at trial fully supports that verdict.

II. Admission of Evidence
The trial judge from the defendant’s first trial had retired at the time of the second trial. 2

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The questions presented by this defendant concerning the admissibility of evidence

rest within the sound discretion of the trial court and this court will not interfere with the exercise

of this discretion in the absence of a clear abuse appearing on the face of the record. See State v.

DuBose, 953 S.W.2d 649, 652 (Tenn. 1997); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993);

State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992). An abuse of discretion occurs when the trial court

applies an incorrect legal standard or reaches a conclusion that is “illogical or unreasonable and

causes an injustice to the party complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)

(citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006));see also State v. Shirley, 6 S.W.3d 243,

247 (Tenn. 1999).

A. “Memorandum of Understanding”

The defendant contends that the “memorandum of understanding” should not have

been admitted into evidence because it was irrelevant and because “it occurred during a Charge

Agreement.”

Relevant evidence is evidence “having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Tenn. R. Evid. 401. “All relevant evidence is admissible except

as provided by the Constitution of the United States, the Constitution of Tennessee, these rules, or

other rules or laws of general application in the courts of Tennessee. Evidence which is not relevant

is not admissible.” Id. at 402. However, “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Id. at 403.

Here, the trial court indicated that it would defer to the ruling of the trial court in the

defendant’s first trial because the defendant had not offered any new reason that the evidence should

be excluded. That court ruled that the memorandum of understanding was relevant and admissible. 2

On direct appeal from the first trial, this court ruled that “[t]he statement was relevant to show that

the defendant did not divulge the location of the body and weapon out of remorse. It was relevant

to let the jury know that his motives were not purely altruistic.” The State asserts that we are bound

by the “law of the case” doctrine to adhere to this previous ruling. We agree.

Our supreme court addressed the “law of the case” doctrine in great detail in

Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303 (Tenn.

1998):

The phrase “law of the case” refers to a legal doctrine

which generally prohibits reconsideration of issues that have already

been decided in a prior appeal of the same case. In other words,
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under the law of the case doctrine, an appellate court’s decision on an

issue of law is binding in later trials and appeals of the same case if

the facts on the second trial or appeal are substantially the same as

the facts in the first trial or appeal. The doctrine applies to issues that

were actually before the appellate court in the first appeal and to

issues that were necessarily decided by implication. The doctrine

does not apply to dicta.

The law of the case doctrine is not a constitutional

mandate nor a limitation on the power of a court. Rather, it is a

longstanding discretionary rule of judicial practice which is based on

the common sense recognition that issues previously litigated and

decided by a court of competent jurisdiction ordinarily need not be

revisited. This rule promotes the finality and efficiency of the

judicial process, avoids indefinite relitigation of the same issue,

fosters consistent results in the same litigation, and assures the

obedience of lower courts to the decisions of appellate courts.

Therefore, when an initial appeal results in a remand

to the trial court, the decision of the appellate court establishes the

law of the case which generally must be followed upon remand by

the trial court, and by an appellate court if a second appeal is taken

from the judgment of the trial court entered after remand. There are

limited circumstances which may justify reconsideration of an issue

which was issue decided in a prior appeal: (1) the evidence offered

at a trial or hearing after remand was substantially different from the

evidence in the initial proceeding; (2) the prior ruling was clearly

erroneous and would result in a manifest injustice if allowed to stand;

or (3) the prior decision is contrary to a change in the controlling law

which has occurred between the first and second appeal.

Id. at 306. In this case, none of the three exceptions to the doctrine are applicable. The evidence

offered at the defendant’s second trial was nearly identical to that offered at the first, the prior ruling

was not “clearly erroneous,” and there has been no change in the controlling law. In consequence,

the law of the case doctrine requires that we adhere to our previous ruling that the memorandum of

understanding was relevant and admissible.

As to the defendant’s contention that the memorandum of understanding was

inadmissible because it was part of a “charge agreement,” we agree with the State that the

memorandum was not governed by the provisions for the admissibility of statements made during

plea negotiations. At the time he entered into the memorandum of understanding, the defendant had

not yet been charged with any crime. Accordingly, the protections offered by Tennessee Rule of

Evidence 410 and Tennessee Rule of Criminal Procedure 11(6)(e), providing that statements made

during plea negotiations are not admissible, are not available to the defendant. See State v. Butler,
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42 S.W.3d 113, 121 (Tenn. 2000) (holding that statements made by a defendant before he is charged

are not governed by the rules regarding plea negotiations). Moreover, there was no evidence that

the defendant “exhibited an actual subjective expectation to negotiate a plea at the time of the

discussion and whether the expectation was reasonable.” See id. at 122 (citing United States v.

Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978)). Thus, the defendant is not entitled to relief on this

issue.

B. Videotape of Recovery of Victim’s Body

The defendant also contends that the trial court erred by permitting a videotape

recording of the recovery of the victim’s body to be shown to the jury because the evidence was

more prejudicial than probative. The State asserts that the “recovery video” was “highly probative”

because it “showed the lengths to which [the defendant] resorted to conceal” the victim’s body.

“The admissibility of authentic, relevant videotapes of the crime scene or victim is

within the sound discretion of the trial judge, and his ruling on the admissibility of such evidence

will not be overturned without a clear showing of abuse of discretion.” Van Tran, 864 S.W.2d at

477 (citing State v. Teague, 645 S.W.2d 392, 397 (Tenn. 1983)). Where the probative value of

photographic evidence outweighs the danger for unfair prejudice, the evidence is admissible if

relevant. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978); State v. Braden, 867 S.W.2d 750, 758

(Tenn. Crim. App. 1993).

Here, the videotape was relevant to show the manner in which the defendant had

disposed of the victim’s body and documents the defendant’s efforts at concealing the crime.

Moreover, the videotape, although certainly unpleasant, is neither gruesome nor inflammatory. We

cannot say that its probative value is outweighed by the danger of unfair prejudice. The defendant

is not entitled to relief on this issue.

III. Jury Instruction on Flight

The defendant contends that the trial court erred by instructing the jury on flight and

the inference of guilt that may be justified from such flight. He contends that the instruction lowered

the State’s standard of proof because it allowed the jury to infer guilt from flight. The State argues

that the instruction was proper.

The trial court has a duty “to give a complete charge of the law applicable to the facts

of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see Tenn. R. Crim. P. 30. To

properly charge the jury on flight as an inference of guilt, there must be sufficient evidence to

support such instruction. State v. Berry, 141 S.W.3d 549, 588 (Tenn. 2004). Sufficient evidence

supporting such instruction requires “‘both a leaving the scene of the difficulty and a subsequent

hiding out, evasion, or concealment in the community.’” State v. Payton, 782 S.W.2d 490, 498

(Tenn. Crim. App. 1989) (quoting Rogers v. State, 455 S.W.2d 182, 187 (Tenn. Crim. App. 1970)

(citing 22A C.J.S. Criminal Law § 625))). Our supreme court has held that “[a] flight instruction
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is not prohibited when there are multiple motives for flight” and that “[a] defendant’s specific intent

for fleeing a scene is a jury question.” Berry, 141 S.W.3d at 589.

The evidence in this case supports the giving of the flight instruction. The defendant

dumped the victim’s body into a culvert and then drove around for a day and a half by his own

admission. We fail to see, and the defendant has not explained, how the flight instruction lowered

the standard of proof. The single citation to State v. Shepherd, 862 S.W.2d 557, 567 (Tenn. Crim.

App. 1992), provides little guidance as that case does not address the propriety of the flight

instruction. The defendant is not entitled to relief on this issue.

IV. Sentencing

As his final complaint, the defendant challenges the length of his sentence. When

a defendant challenges the length of a sentence, this court generally conducts a de novo review of

the record with a presumption that the determinations made by the trial court are correct. T.C.A.

§ 40-35-401(d) (2003). This presumption, however, 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). The burden of showing that the

sentence is improper is upon the appellant. Id. If the review reflects the trial court properly

considered all relevant factors and its findings of fact are adequately supported by the record, this

court must affirm the sentence, “even if we would have preferred a different result.” State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In the event the record fails to

demonstrate the required consideration by the trial court, appellate review of the sentence is purely

de novo. Ashby, 823 S.W.2d at 169.

In making its sentencing determination in the present case, the trial court, at the

conclusion of the sentencing hearing, was obliged to determine the propriety of sentencing

alternatives by considering (1) the evidence, if any, received at the trial and sentencing hearings, (2)

the presentence report, (3) the principles of sentencing and arguments as to sentencing alternatives,

(4) the nature and characteristics of the criminal conduct involved, (5) evidence and information

offered by the parties on the enhancement and mitigating factors, (6) any statements the defendant

made in his behalf about sentencing, and (7) the potential for rehabilitation or treatment. T.C.A. §§

40-35-210(a), (b); -103(5); State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

In arriving at the defendant’s sentence of 22 years, the trial court observed that the

State had indicated that no enhancement factors were applicable and did not, therefore, apply any

of the statutory enhancement factors found in Tennessee Code Annotated section 40-35-114. The

trial court did, however, find in mitigation that the murder was committed “under such unusual

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

conduct,” see T.C.A. § 40-35-113(11), and that the defendant had no prior criminal history, see id.

§ 40-35-113(13). Nevertheless, relying exclusively on the “nature and characteristics of the criminal

conduct involved,” the trial court increased the sentence from the presumptive midpoint of 20 years

to 22 years.
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The trial court’s decision to enhance the sentence by two years without applying any

statutory enhancement factors was error. Although the trial court correctly observed that it was

required to consider the nature and circumstances of the offense when setting the sentence, the

version of the Sentencing Act governing the imposition of the sentence in this case provided that the

sentence may only be increased upon a finding of one or more of the enhancement factors found in

Tennessee Code Annotated section 40-35-114. See T.C.A. § 40-35-210 (1997). Specifically, the

Act provided that “[s]hould there be mitigating but no enhancement factors for a Class A felony,

then the court shall set the sentence at or below the midpoint of the range.” Id. § 40-35-210(d).

Because the trial court erred by increasing the sentence in the absence of enhancement factors, our

review of the sentence is purely de novo with no presumption of correctness.

Before considering de novo the propriety of the 22-year sentence, we will consider

the defendant’s claim that the trial court’s use of the pre-2005 version of the Sentencing Act violated

the ex post facto provisions of the State and Federal Constitutions. As the State correctly points out,

because the defendant was not sentenced pursuant to provisions enacted after he committed the

murder, there are no ex post facto concerns. The defendant was properly sentenced under the

version of the Sentencing Act in effect at the time of his crime. Had the defendant desired

sentencing under the 2005 amendment to the Sentencing Act, he could have executed a waiver of

his ex post facto protections. See T.C.A. § 40-35-114 (Supp. 2005), compiler’s notes; see also State

v. Robert Lamont Moss, Jr., No. M2006-00890-CCA-R3-CD, slip op. at 5 n.1 (Tenn. Crim. App.,

Nashville, Dec. 4, 2007). No waiver appears in the record; thus, the sentence in this case was

governed by the pre-2005 amendments.

Turning to the propriety of the length of the sentence, we remain mindful that the

sentence imposed upon our de novo review must be compliant with the strictures imposed by

Blakely v. Washington, 542 U.S. 296 (2004), Cunningham v. California, 549 U.S. ___, 127 S. Ct.

856 (2007), and State v. Gomez, ___ S.W.3d ___, No. M2002-01209-SC-R11-CD (Tenn., Oct. 9,

2007). The State contends that factors permitting enhancement on the basis of the defendant’s use

of a firearm to commit the offense, see T.C.A. § 40-35-114(9) (1997), and on the basis that the

victim’s body was treated with exceptional cruelty, see id. at (5), were admitted by the defendant

and supported by the evidence.

Although a sentencing court may apply a statutory enhancement factor when the

factual basis for doing so is admitted by the defendant, see Blakely, 542 U.S. at 303, the record in

this case does not establish that the defendant made a judicial admission of the factual basis for

either enhancement factor. The defendant did admit in his statement to police that he shot the victim

with a 9 mm handgun. In our view, however, this extrajudicial statement does not satisfy the

requirements of Blakely. Similarly, although the defendant acknowledged to police that he had

wrapped the victim’s body in blankets and tarp and stashed it in his work van before driving to a

remote location and dumping it in a culvert, these statements were made outside the confines of any

judicial proceeding and thus do not qualify as admissions for purposes of the Sixth Amendment.

Because the defendant had no prior convictions and because no other enhancement

factors are applicable under a Blakely-Cunningham analysis, the defendant’s sentence cannot be
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enhanced past the presumptive sentence, which is the midpoint within the range. As indicated, the

trial court applied two mitigating factors but did not give either great weight. We agree with the trial

court that neither the defendant’s lack of a criminal history nor the fact that the crime indicated no

sustained intent to violate the law is sufficient to warrant a sentence below the midpoint sentence

of 20 years. In consequence, we modify the sentence to 20 years.

CONCLUSION

The evidence is sufficient to support the defendant’s conviction for second degree

murder. Because the trial court did not err in the admission of either the memorandum of

understanding or the videotape of the recovery of the victim’s body, the defendant is not entitled to

relief on these evidentiary issues. The instruction on flight and the inference of guilt it provides was

fully supported by the evidence and did not lessen the State’s burden of proof. Finally, upon de

novo review of the sentence, we find that the sentence must be modified to 20 years based upon the

holdings in Blakely and its progeny. Otherwise, the judgment of the trial court is affirmed.

___________________________________ 

JAMES CURWOOD WITT, JR. JUDGE