IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 27, 2010 Session

STATE OF TENNESSEE v. KENNETH MEYER

Appeal from the Circuit Court for Bledsoe County

No. 55-2007 Thomas W. Graham, Judge

No. E2009-02294-CCA-R3-CD - Filed November 16, 2010

The Defendant, Kenneth Meyer, was found guilty by a Bledsoe County Circuit Court jury of

voluntary manslaughter, a Class C felony. See T.C.A. § 39-13-211 (2010). He was

sentenced as a Range II, multiple offender to ten years’ confinement. On appeal, he contends

that (1) the evidence was insufficient to support his conviction, (2) the trial court erred by

admitting only part of a 9-1-1 tape into evidence, (3) the trial court erred by admitting

hearsay into evidence, (4) the state improperly withheld exculpatory evidence, (5) the trial

court erred by refusing to issue a self-defense instruction requested by the Defendant, (6) the

trial court erred by considering prior criminal convictions that were not proven by certified

copies of conviction and were not disclosed to the Defendant before the sentencing hearing,

and (7) the trial court imposed an excessive sentence. We affirm the judgment of the trial

court.

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

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

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

Edward L. Boring, Pikeville, Tennessee, for the appellant, Kenneth Meyer.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General and Reporter; James Michael Taylor, District Attorney General; and James William

Pope, III, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

This case relates to an altercation between the Defendant and Frank Vestal in which

the Defendant shot Mr. Vestal, who died from his wounds. At trial, the victim’s girlfriend,

Patricia Mudica, testified that she and Mr. Vestal shared a home on Raccoon Ridge Road.
She said that the victim drank five beers and took three pain pills on the day of the shooting.

That evening, she and the victim went to the home of Kim Bailey, which was located next

to the Defendant’s home on Raccoon Ridge Road. Ms. Mudica said she and the victim left

the Bailey home and drove to the Defendant’s home to allow the victim to apologize to the

Defendant for an incident that occurred two days earlier.

Ms. Mudica testified that they arrived at the Defendant’s home between 11:00 p.m.

and 11:30 p.m. She said that the Defendant lived in a motor home at the end of a gravel

driveway and that their truck’s headlights were the sole source of light in the area. She said

the victim revved his engine twice in an attempt to get the Defendant’s attention. She said

the Defendant ran out of his home, completely nude, carrying a gun. She said the victim

turned off the truck’s headlights to prevent her from seeing the Defendant “running around

naked.” She said that she could not see what occurred afterwards due to the darkness but that

the truck’s windows were rolled down, enabling her to hear what occurred.

Ms. Mudica testified that after leaving his home, the Defendant yelled, “Who the f---

is it?” She said the victim identified himself and was told, “Get the f--- off my property.”

She said the victim agreed to leave the property. The Defendant again told the victim to

leave, and the victim repeated that he would leave the property. Ms. Mudica then heard a

gunshot. She heard the victim say, “Oh f---,” and heard a second gunshot a few moments

later. She said she turned on the truck’s headlights but was unable to see the victim or the

Defendant, who had returned to his home. She turned off the headlights when the Defendant

then left his home because she was afraid the Defendant would shoot her. She said the

Defendant, now clothed, ran to the truck and began screaming and asking why she was there.

She asked the Defendant where the victim was and was told that the victim was lying in the

ditch, dead. Ms. Mudica said the Defendant threatened to shoot her if she did not leave the

property. She said the Defendant left, saying he was calling the police.

Ms. Mudica testified that she turned the truck lights on and ran to the victim. She

attempted but was unable to move him because he was covered in blood. She said she

returned to the truck, attempted to drive, and accidentally backed the truck into a tree. She

said that the truck became disabled and that she ran away.

Ms. Mudica testified that neither she nor the victim possessed marijuana or a weapon

when they went to the Defendant’s home. She said she did not hear the victim threaten the

Defendant before being shot.

On cross-examination, Ms. Mudica admitted that she and the victim drove by the

Defendant’s home multiple times that day but did not stop to apologize until 11:30 p.m. She

agreed that the Defendant did not invite the victim to his home. She agreed that she could

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not see the shooting or where it occurred and that she found the victim’s body within feet of

the truck.

Ms. Mudica testified thatshe and the victim began dating when she wasseventeen and

that the victim was married. She said that the victim did not have a regular job and that she

made it a point not to make “his business” her business. She agreed the victim drank five

beers and took three hydrocodone pills on the day of the shooting, despite not having a

prescription for the pills.

On redirect examination, Ms. Mudica testified that she found the victim’s body five

or six feet from the motor home but stated that this was just a guess. She said she did not see

a weapon near the victim’s body.

David Vestal, the victim’s uncle, testified that he was at the Bailey home on the night

of the shooting. He said the victim was in a good mood. He said the victim had recently

finished working on an upholstery job. He said the victim did not possess marijuana that

night. On cross-examination, Mr. Vestal testified that the victim drank five or six beers on

the day of the shooting. He admitted that the victim asked him if he had any marijuana

because the victim wanted to “smoke a joint.” He said no one at the Bailey home had any

marijuana. He said he did not see the victim smoke marijuana that night.

Greg Gibson testified that he was at the Bailey home on the night of the shooting. He

said the victim was in a good mood. He said the victim did not possess marijuana that night.

Teletha Reed, a 9-1-1 dispatcher, testified that she took a call from the Defendant on

the night of the shooting. She said her office records each 9-1-1 call, including the call from

the Defendant. She identified the recording of the Defendant’s 9-1-1 call. The first six

minutes of that call were played for the jury. The tape reflects that the Defendant told Ms.

Reed he was awakened by the victim, whom he asked to leave his property. The Defendant

said the victim threatened his life and advanced on him, forcing him to shoot the victim. The

Defendant stated that he was unsure if the victim had a weapon. The Defendant also stated

that he had been having problems with thieves breaking into his home. After the tape

finished, Ms. Reed read from a transcript of later portions of the 9-1-1 call, noting that the

Defendant stated, “Ma’am, I wish he wasn’t dead . . . I hate the idea of having to go to prison

over some f------ a------ like this . . . . Things are not fine. This is a nightmare.”

Tennessee Bureau of Investigation Agent Mark Wilson testified that he investigated

the victim’s death. He said the truck driven by the victim was found 106 feet from the

victim’s body. He said the police found a can of beer in the truck’s cup-holder but did not

find weapons or marijuana in the truck. He observed a shotgun, four shell casings, and a

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bloody beer can near the victim’s body. He said the police did not find weapons or marijuana

on the victim’s body.

Agent Wilson testified that the victim was covered in blood and had gunshot wounds

to his chest, arm, and face. He said the victim’s body was located at the bottom of a gradual

embankment. He observed pools of blood at both the top and bottom of the embankment,

with a trail of blood moving about halfway down the embankment.

On cross-examination, Agent Wilson testified that Detective Ricky Seals measured

and recorded the distance between the victim’s body and the door to the Defendant’s home.

The distance recorded was twenty-six, but Agent Wilson could not determine if that distance

was in feet because the unit of measurement was not listed. He said that Detective Seals also

measured and recorded the distance between the victim’s head and the pool of blood at the

top of the embankment. The distance recorded was thirteen and one-half but did not contain

a unit of measurement. He found no evidence indicating that the victim’s body was moved

after the shooting.

Tennessee Bureau of Investigation Agent Steve Scott testified that he was a firearms

examiner. He said he examined the Defendant’s shotgun and determined that the shotgun

shell casings found near the victim’s body were fired by the Defendant’s gun. He identified

shotgun pellets taken from the victim’s body as being consistent with the ammunition used

in the Defendant’s shotgun. He said that he could not determine if the pellets were fired from

the Defendant’s gun because the design of shotgun shells made such identifications very rare.

Adele Lewis, a forensic pathologist, testified that she performed an autopsy on the

victim. She said the victim was shot in the chest and arm, with pellets lodging in his chest,

back, arms, and chin. She removed pellets from the victim’s chin and rear-left shoulder. She

also removed shotgun wadding from the victim’s arm. She said, “[I]f you see wadding inside

a shotgun wound, the distance from the . . . weapon to the person who has been shot is less

than eight to ten feet.” She estimated that the victim was eight feet away from the shotgun

when he was shot in the arm and two to four feet away when he was shot in the chest. Ms.

Lewis testified that she performed blood tests on the victim. He tested positive for alcohol,

marijuana, and valium. She said the victim did not have hydrocodone in his system.

The Defendant testified that he worked at Ace Transmission Service in Knoxville.

He said that on the night of the shooting, he went to sleep at 8:00 p.m. because he had to

wake up at 4:00 a.m. the next morning for work. He said he awakened to headlights shining

on his motor home. He said he walked outside, taking his shotgun with him because “It’s a

rural area, you hear gunfire all the time . . . [I had it] to be able to protect myself . . . .” He

said he did not know who was outside because he had not invited anyone to his home.

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The Defendant testified that he heard the victim yell, “It’s Frank, I have some

marijuana I want to sell you.” He replied that he did not want to purchase any and instructed

the victim to leave. He said he attempted to load his shotgun when the victim left the truck,

which he estimated was about forty feet from his home. The Defendant again told the victim

to leave the property and loaded his shotgun. He said the victim continued to walk toward

him despite being told to leave. He said the victim threatened him by stating that “he was

going to get me when I come off my property, he was going to do me in . . . .” The

Defendant said he was scared for his and his son’s lives. Because it was dark, he was unable

to tell if the victim was armed. He said that the victim took two more steps towards him and

that he accidentally shot the victim. He said the victim charged at him and he again shot the

victim. The victim fell to the ground, landing near the Defendant’s feet. He said that the

shooting was a reaction, not a conscious decision, and that he did not intend to kill the victim.

He said he did not threaten Ms. Mudica before or after the shooting. The Defendant testified

that he dropped the shotgun and called 9-1-1. He said he spoke with the 9-1-1 operator for

about thirty minutes.

On cross-examination, the Defendant testified that he met the victim for the first time

about one month before the shooting. He said that two nights before the shooting, the victim

walked by his home between 11:30 p.m. and 12:00 a.m., causing the Defendant’s dog to

bark. The Defendant said he went outside, naked and armed with his shotgun, and saw the

victim and his dog loitering in the Defendant’s driveway. The victim told the Defendant he

was out for a walk. The Defendant said that he told the victim not to come around his home

in the middle of the night but that he did not threaten the victim. He said the victim replied

that if his daughter had seen the Defendant naked, he would have to “do something” to the

Defendant. The Defendant said that he did not consider the victim’s statement to be a threat

and that the victim continued on his walk.

The Defendant testified that the victim had not attempted to sell marijuana to him

before the night of the shooting. He said he did not see the victim in possession of

marijuana. He said that he rejected the victim’s offer and that the victim threatened to harm

the Defendant the next time the Defendant left his property. The Defendant agreed that the

victim did not state that he had a weapon or that he was going to cause immediate harm to

the Defendant. He said that the victim came toward him, despite seeing the shotgun in his

hands, and that he accidentally shot the victim. He said he was unsure if the first shot hit the

victim because it was dark. He said the victim charged him, forcing him to shoot the victim

a second time in self-defense. The Defendant testified that he did not move during the

encounter. He said he was five or six feet in front of his home when he shot the victim.

The Defendant testified that his home had been broken into. He said thieves stole a

nine-millimeter pistol from his home.

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Upon the foregoing proof, the jury found the Defendant guilty of voluntary

manslaughter. A sentencing hearing followed.

At the sentencing hearing, Detective Seals testified that he investigated the shooting.

He said he found between three and five marijuana plants growing outside of the Defendant’s

home. He also found marijuana seeds inside the home. He said the plants and seeds were

confiscated and destroyed.

Detective Seals testified that the Defendant’s home was burglarized at least twice

before the shooting and that he investigated those burglaries. During those investigations,

the Defendant expressed concern regarding people entering his property without permission.

Detective Seals said that after the shooting, the Defendant’s home and car were set on fire.

Angie Dotson testified that she worked for the Board of Probation and Parole and that

she prepared the Defendant’s presentence report. She said that during her interview with the

Defendant, he used vulgar language and was “extremely hostile, angry, not very forthcoming

. . . .” She said the Defendant would not answer questions related to his finances and told her

that he would not pay restitution if ordered.

Ms. Dotson testified that the Defendant had a history of criminal activity and

probation violations in Manatee County, Florida. She said that in 1980, the Defendant was

convicted for trespass of a conveyance and resisting an officer with violence and received

one year of probation. While on probation, the Defendant was convicted for possession of

marijuana, possession of narcotic equipment, criminal mischief, and operating a motor

vehicle without a valid registration. She said the Defendant’s probation was revoked. She

said that the Defendant was again placed on probation in October 1985 but that his probation

was revoked again in March 1986. She said she obtained this information by speaking with

the circuit court clerk in Manatee County, Florida. The clerk sent her a certified copy of a

progress report listing the Defendant’s offenses in Florida. However, she was unable to

obtain certified copies of the probation violation orders due to the expense involved in

obtaining them. She said the state Board of Probation and Parole did not provide her with

the funds to obtain certified copies of out-of-state convictions or out-of-state probation

violation orders.

The prosecutorshowed Ms. Dotson a certified copy of a progressreport obtained from

the circuit court clerk in Manatee County, Florida, and Ms. Dotson testified that the report

reflected that the Defendant pled guilty to misdemeanor battery in 1987. The prosecutor

explained that the State obtained this report independently when it was included with two

certified convictions sent from the circuit court clerk in Manatee County, Florida.

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Ms. Dotson testified that in 1990, the Defendant was convicted of marijuana

possession. She said she obtained this information from the National Crime Information

Center in Phoenix, Arizona but was unable to obtain a certified copy of the conviction due

to the expense involved in obtaining it. She said that she asked the Defendant about this

conviction during the presentence interview and that he responded, “Yeah, I had some

trouble with marijuana, but that was about 15 years ago.”

On cross-examination, Ms. Dotson testified that the majority of the Defendant’s

criminal behavior occurred when he was between the ages of eighteen and twenty-one and

that his two felony convictions occurred when he was twenty-one. She said the Defendant

had a few misdemeanor convictions over the last twenty-five years, including assault and

violating the driver’s license law.

Christy Vestal, the victim’s widow, testified that she and the victim had five children.

She said she relied on her husband’s support to raise their children. She said the victim

worked at Freeman’s Upholstery, paid her bills, and provided for their children. She

admitted that the victim lived with Ms. Mudica at the time of the shooting but denied that

they were legally separated.

The trial court sentenced the Defendant as a Range II, multiple offender to ten years’

confinement. This appeal followed.

I

The Defendant contends that the evidence was insufficient to support his conviction

because the evidence did not sufficiently rebut his claim of self-defense. The State contends

that the evidence was sufficient to support the Defendant’s conviction for voluntary

manslaughter. We agree with the State.

Our standard of review when the sufficiency of the evidence is questioned on appeal

is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This means that we may not reweigh

the evidence but must presume that the trier of fact has resolved all conflicts in the testimony

and drawn all reasonable inferences from the evidence in favor of the State. See State v.

Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). Any questions about the credibility of the witnesses were resolved by the jury. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

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As pertinent to this appeal, “Voluntary manslaughter is the intentional or knowing

killing of another in a state of passion produced by adequate provocation sufficient to lead

a reasonable person to act in an irrational manner.” T.C.A. § 39-13-211(a). A person acts

“knowingly” with respect to the result of his conduct when he is aware that his conduct is

reasonably certain to cause the result. Id. § 39-11-106(a)(20) (2010). Whether a killing

results from “adequate provocation” is a question of fact for the jury. State v. Johnson, 909

S.W.2d 461, 464 (Tenn. Crim. App. 1995). Whether a defendant acted in self-defense is also

a question of fact for the jury. State v. Clifton, 880 S.W.2d 737, 743 (Tenn. Crim. App.

1994). When determining whether a defendant acted in self-defense, a jury must consider

“whether the defendant’s belief in imminent danger was reasonable, whether the force used

was reasonable, and whether the defendant was without fault.” State v. Renner, 912 S.W.2d

701, 704 (Tenn. 1995).

The jury’s verdict reflectsthat it rejected the Defendant’s claim of self-defense. Taken

in the light most favorable to the State, Ms. Mudica testified that she and the victim arrived

at the Defendant’s home around 11:30 p.m. and woke the Defendant. The Defendant left his

home, nude and armed with a shotgun, and told the victim to leave. The victim said he

would leave but was shot by the Defendant. Ms. Mudica testified that the victim did not have

a weapon and did not threaten the Defendant before being shot. The Defendant testified that

he did not see a weapon on the victim. The Defendant agreed that the victim did not state

that he had a weapon or that he was going to cause imminent harm to the Defendant. The

Defendant admitted to shooting the victim twice with a shotgun.

We conclude that a rational trier of fact could have found the elements of voluntary

manslaughter beyond a reasonable doubt. We hold that the evidence is sufficient to support

the Defendant’s conviction.

II

The Defendant contends that the trial court erred by admitting part, but not all, of a

9-1-1 call into evidence. The Defendant argues that the excluded portion demonstrated the

Defendant’s remorse and contained the sound of three distant gun shots, which showed the

environment of the surrounding area on the night of the shooting. The State contends that

the Defendant has waived this argument by failing to include the excluded portions of the call

in the record. The State contends, in the alternative, that the excluded portion of the call was

irrelevant and potentially misleading. We agree that the Defendant has waived this issue.

The trial court allowed the first six minutes of the 9-1-1 call to be played. Although

the court would not allow the remaining thirty minutes to be played because it found that the

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majority of this portion was not relevant to the shooting, it allowed the Defendant to select

sections of the 9-1-1 call transcript that he wanted read to the jury. The court permitted each

section chosen by the Defendant to be read to the jury.

The Defendant did not include the complete 9-1-1 tape in the appellate record. On

appeal, he had “a duty to prepare a record which conveys a fair, accurate and complete

account of what transpired with respect to the issues forming the basis of the appeal.” State

v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Bunch, 646 S.W.2d 158, 160

(Tenn. 1983)). “Where the record is incomplete and does not contain . . . portions of the

record upon which the party relies, an appellate court is precluded from considering the

issue.” Id. at 560-61 (citing State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App.

1988)). We must presume that the trial court’s determination not to play the entire tape was

correct. See State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) (“In the absence

of an adequate record on appeal, this court must presume that the trial court’s rulings were

supported by sufficient evidence.”); Roberts, 755 S.W.2d at 836. The Defendant is not

entitled to relief on this issue.

III

The Defendant contends that the trial court erred by admitting hearsay evidence when

it allowed him and Ms. Mudica to testify about an altercation between the victim and the

Defendant two nights before the shooting. The State contends that the Defendant has waived

this argument by asserting this theory of exclusion for the first time in his motion for a new

trial and on appeal. We agree with the State.

At trial, the Defendant objected to admitting testimony regarding the altercation

between himself and the victim on the ground that it was inadmissable character evidence.

However, the Defendant contended in his motion for a new trial and on appeal that such

testimony should be excluded because it was inadmissable hearsay. Additionally, we note

that although the Defendant asserted this new ground for exclusion in his motion for a new

trial, he did not address this ground during the motion hearing and instead argued that this

testimony was impermissible character evidence.

This court has stated that “‘a party is bound by the ground asserted when making an

objection. The party cannot assert a new or different theory to support the objection in the

motion for a new trial or in the appellate court.’” State v. Gilley, 297 S.W.3d 739, 765-66

(Tenn. Crim. App. 2008) (quoting State v. Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim.

App. 1994)); see also State v. Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. App. 1990) (“It

has long been established in this jurisdiction that an accused may not litigate an issue on one

ground, abandon that ground post-trial, and assert a new basis or ground for his contention

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in this Court.”). As a result, the Defendant has waived this issue. See Gilley, 292 S.W.3d

at 765-66; State v. David Dwayne Smith, No. E2007-00084-CCA-R3-CD, Cumberland

County, slip op. at 23-24 (Tenn. Crim. App. Dec. 18, 2007) (stating that a defendant waived

an issue regarding the admission of testimony when he asserted a hearsay theory of exclusion

for the first time in his motion for new trial and on appeal), app. denied (Tenn. Aug. 17,

2009). The Defendant is not entitled to relief on this issue.

IV

The Defendant contends that the State improperly withheld exculpatory evidence by

failing to provide him with the measurements of the crime scene made by Detective Seals.

The Defendant arguesthat these measurements would have helped establish his claim of selfdefense and his claim that he was in the curtilage of his motor home when he shot the victim.

The State contends that there was no error because the measurements were not favorable or

material to the Defendant’s case. We agree with the State.

In Brady v. Maryland, the United States Supreme Court held that the prosecution has

a constitutional duty to furnish an accused with exculpatory evidence pertaining to either the

accused’s guilt or innocence or the punishment that may be imposed. 373 U.S. 83, 87

(1963). Failure to reveal exculpatory evidence violates due process when the evidence is

material either to guilt or punishment, irrespective of the prosecution’s good faith. Id.

The “prosecution is not required to disclose information that the accused already

possesses or is able to obtain.” State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. App.

1992). Although the State is not obligated to disclose the entirety of the investigatory police

work in a case, the State is required to disclose all favorable evidence obtained by any person

acting on the government’s behalf. See Moore v. Illinois, 408 U.S. 786, 795 (1972)).

Evidence that is “favorable to the accused” includes evidence that is deemed to be

exculpatory in nature and evidence that could be used to impeach the State’s witnesses. State

v. Walker, 910 S.W.2d 381, 389 (Tenn. 1995); State v. Copeland, 983 S.W.2d 703, 706

(Tenn. Crim. App. 1998); see also United States v. Bagley, 473 U.S. 667, 676 (1985).

The Tennessee Supreme Court has held that in order to establish a Brady violation,

four elements must be shown by the defendant:

(1) that the defendant requested the information (unless the

evidence is obviously exculpatory, in which case the State is

bound to release the information whether requested or not);

(2) that the State suppressed the information;

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(3) that the information was favorable to the accused; and

(4) that the information was material.

State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995); see also Walker, 910 S.W.2d at 389. The

Defendant must prove a Brady violation by a preponderance of the evidence. Edgin, 902

S.W.2d at 389.

When considering whether there is a Brady violation, evidence is considered material

only “‘if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.’” Id. at 390 (quoting Kyles,

514 U.S. at 433). The question is not whether the Defendant would more likely than not

have received a different verdict with the evidence, but whether in its absence he received

a fair trial, understood as a trial resulting in a verdict worthy of confidence. Kyles, 514 U.S.

at 434.

The record shows that during discovery, the Defendant requested all “documents . .

. in the possession . . . of the State, and which are material to the Defendant in preparation

of his defense.” The record also shows that the State failed to provide this information to the

Defendant before trial. On cross-examination, Agent Wilson testified that Detective Seals

measured and recorded the distances between the victim’s body and the door to the

Defendant’s home and between the victim’s head and the pool of blood at the top of the

embankment. The distances recorded were twenty-six and thirteen and one-half,

respectively, but the unit of measurement was not listed. The Defendant was not provided

with a copy of Detective Seal’s measurements until Agent Wilson testified on crossexamination that such measurements were made.

With regard to the measurement between the victim’s body and the pool of blood on

top of the embankment, we hold that the Defendant has failed to show that this measurement

was material to prove that the Defendant acted in self-defense. Agent Wilson testified that

there were pools of blood at both the top and bottom of the embankment, with a trail of blood

moving about halfway down the embankment. Ms. Lewis testified that her autopsy revealed

that the victim was eight feet away from the shotgun when he was shot in the arm and two

to four feet away when he was shot in the chest. Their testimony established that the victim

was moving toward the Defendant when he was shot, a fact not in contention at trial. The

measurement between the victim’s body and the pool of blood on top of the embankment

would do nothing to bolster this uncontroverted conclusion. The record does not reflect that

there is a reasonable probability that, had this measurement been disclosed to the Defendant

before trial, the result of the proceeding would have been different.

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With regard to the measurement between the victim’s body and the door to the

Defendant’s home, we hold that the Defendant has failed to show that this measurement was

material to prove that the shooting occurred within the curtilage of his home. Ms. Mudica

testified that she found the victim’s body five or six feet from the Defendant’s home. The

Defendant testified that the shooting occurred within six feet of his home. Numerous

photographsintroduced at trialshowed the location of the victim’s body near the Defendant’s

home. In deciding on which portions of the self-defense instructions to charge the jury, the

trial court accepted that the shooting occurred within the curtilage of the Defendant’s home.

In rejecting the self-defense instruction dealing with the use of deadly force within a home,

the trial court said, “This doesn’t qualify as [a] residence . . . [c]urtilage is not the residence

. . . it can’t apply if something happened in a yard.” Because the trial court accepted, and

other evidence established, that the shooting occurred within the curtilage, the record does

not reflect that there is a reasonable probability that, had this measurement been disclosed

to the Defendant before trial, the result of the proceeding would have been different. The

Defendant is not entitled to relief on this issue.

V

The Defendant contends the trial court erred when it declined to charge a portion of

the self-defense instruction that states that a person using deadly force within his home is

presumed to have had a reasonable fear of imminent death or serious bodily injury when the

deadly force is used against a non-family member who enters or has entered the home

unlawfully and forcibly. See T.C.A. § 39-11-611(c) (Supp. 2007) (amended 2008); T.P.I.-

Crim. 40.06(b) (11th ed. 2007). The State contends that there was no error because the

shooting did not occur within a residence, dwelling, or vehicle. We agree that the trial court

properly declined to charge this requested instruction.

In criminal cases, the trial court has the duty to charge the jury on all of the law that

applies to the facts of the case. See State v. Harris, 839 S.W.2d 54, 73 (Tenn. 1992) (citing

State v. Thompson, 519 S.W. 2d 789, 792 (Tenn. 1975)). The defendant also “has a right to

have every issue of fact raised by the evidence and material to his defense submitted to the

jury upon proper instructions by the judge.” Thompson, 519 S.W.2d at 792; see T.C.A. §

39-11-203(c) (2010) (entitling a defendant to have the issue of the existence of a defense

submitted to the jury when it is fairly raised by the proof). An erroneous jury instruction may

deprive the defendant of the constitutional right to a jury trial. See State v. Garrison, 40

S.W.3d 426, 433-34 (Tenn. 2000).

An instruction on a defense must be given if fairly raised by the proof regardless of

whether the defense relies on the theory or requests that an instruction be given as to that

theory. See State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001); see also State v. Allen, 69 S.W.3d

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181, 187-88 (Tenn. 2002); Alfonzo Williams v. State, No. W2008-00106-CCA-R3-PC,

Shelby County, slip op. at 6 (Tenn. Crim. App. July 29, 2009) (applying the supreme court’s

holding in Allen to conclude that an instruction on a defense must be given if fairly raised

by the proof), app. denied (Tenn. Mar. 1, 2010). “In determining whether a defense is raised

by the evidence, the court must examine the evidence in the light most favorable to the

defendant to determine whether there is evidence that reasonable minds could accept as to

that defense.” Sims, 45 S.W.3d at 9 (citing Johnson v. State, 531 S.W.2d 558, 559 (Tenn.

1975); State v. Bult, 989 S.W.2d 730, 733 (Tenn. Crim. App. 1998)); see also State v.

Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993). If evidence has been presented

which reasonable minds could accept as a defense, “the accused is entitled to the appropriate

instructions.” Johnson, 531 S.W.2d at 559.

In denying the Defendant’s request to instruct the jury on the presumption of

reasonableness accompanying the use of deadly force within a home, the trial court stated

Curtilage is not the residence . . . the way I read [the selfdefense statute], [it] is all dealing with structures, not dealing

with just the open yard area . . . we’re talking about entering into

either a dwelling or a residence and that . . . does not extend to

just some open area out and around, even though it may be titled

in the name of the owner. . . .

Viewing the evidence in the light most favorable to the Defendant, the victim drove to the

Defendant’s home at midnight and attempted to sell the Defendant marijuana. The

Defendant met the victim outside on the land adjoining his home and told the victim to leave.

The victim threatened the Defendant and moved toward the Defendant, resulting in the

Defendant shooting the victim.

We hold that the evidence did not support the jury instruction regarding the

presumption of reasonableness accompanying the use of deadly force within a home. The

self-defense statute states that the presumption applies to deadly force used within a

“residence, dwelling, or vehicle.” T.C.A. § 39-11-611(c); see T.P.I.- Crim. 40.06(b). The

statute defines “residence” as “a dwelling in which a person resides . . . or any dwelling,

building, or other appurtenance within the curtilage of the residence.” See T.C.A. § 39-11-

611(c). The curtilage itself is not defined as a part of the residence for purposes of the selfdefense instruction.

We note that this court has held that the curtilage surrounding a home can constitute

a part of the home for self-defense purposes. See State v. Bottenfield, 692 S.W.2d 447, 452

(Tenn. Crim. App. 1985); State v.Charles T. Edwards, No. 01-C-019007CR00171, Davidson

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County,slip op. at 6-7 (Tenn. Crim. App. Aug. 30, 1991), app. denied (Tenn. Sept. 24, 1991).

Although these cases involved the use of deadly force within the curtilage, each of the

victims had already entered or were in the process of entering the defendant’s home

unlawfully. See id. In this case, the record reflects that the victim did not enter or attempt

to enter the Defendant’s home. The entire altercation occurred outdoors on the land

adjoining the Defendant’s home. As a result, the trial court properly declined to instruct the

jury on the presumption of reasonableness accompanying the use of deadly force within a

home. The Defendant is not entitled to relief on this issue.

VI

The Defendant contends that the trial court erred by considering probation violations

and prior criminal convictions that were not proven by certified copies of conviction and

were not disclosed to the Defendant before the sentencing hearing. At issue are a 1987

conviction for misdemeanor battery, a 1990 conviction for marijuana possession, and two

probation violations. The State contendsthat the trial court properly considered this evidence

when determining the application of enhancement factors. We hold that although one

probation violation was not properly considered, each enhancement factor was proven by a

preponderance of the evidence.

As a preliminary matter, we note that the convictions and probation violations at issue

were not used to establish the Defendant as a Range II, multiple offender but were introduced

by the state to establish enhancement factors (1) and (8). See T.C.A. §§ 40-35-114(1) (the

defendant has a previous history of criminal convictions or criminal behavior, in addition to

those necessary to establish the appropriate range); 40-35-114(8) (the defendant failed to

comply with the conditions of a sentence involving release into the community). The

Defendant does not argue that these enhancement factors were improperly applied or that he

did not commit the offenses underlying his convictions and probation violations. He argues

that the convictions and probation violations at issue should not have been considered during

sentencing because they were not proven by certified copies of conviction and were not

disclosed to the Defendant before the sentencing hearing.

At a sentencing hearing, the trial court must afford the parties the opportunity to be

heard and present evidence relevant to the sentencing of the Defendant. T.C.A. §

40-35-209(b). The state has the burden of proving all enhancement factors by a

preponderance of the evidence. State v. Gutierrez, 5 S.W.3d 641, 644 (Tenn. 1999).

Reliable hearsay may be admitted at sentencing if the opposing party is accorded a fair

opportunity to rebut such evidence. T.C.A. § 40-35-209(b). This court has consistently held

the presentence report to be reliable hearsay. See State v. Baker, 956 S.W.2d 8, 17 (Tenn.

Crim. App. 1997) (holding that the information contained in a presentence report “is reliable

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because it is based upon the presentence officer’s research of the records, contact with

relevant agencies, and the gathering of information which is required to be included in a

presentence report”). Likewise, the person who prepared the presentence report may be a

witness at the sentencing hearing. T.C.A. § 40-35-209(b). Certified copies of convictions

or documents are also considered reliable hearsay. Id. This court has also held that certified

copies of convictions are not necessary to prove prior criminal history and that courts can rely

upon the presentence report and the testimony of the person who prepared the report. See

State v. Richardson, 875 S.W.2d 671, 677 (Tenn. Crim. App. 1993).

“Upon a defendant’s request, the state shall furnish the defendant with a copy of the

defendant’s prior criminal record, if any, that is within the state’s possession, custody, or

control if the district attorney general knows--or through due diligence could know--that the

record exists.” Tenn. R. Crim. P. 16(a)(1)(E). If a party fails to comply with discovery

requests, the trial court may order an inspection of the item in question, exclusion of the item,

or any other remedy as deemed appropriate under the circumstances. Tenn. R. Crim. P.

16(d)(2). Although a court may order the exclusion of an item,

evidence should not be excluded except when it is shown that a

party is actually prejudiced by the failure to comply with the

discovery order and that the prejudice cannot be otherwise

eradicated. [Rule 16] should not be employed to frustrate justice

by lightly depriving the State or the defendant of competent

evidence.

State v. Garland, 617 S.W.2d 176, 185-86 (Tenn. Crim. App. 1981) (holding that although

evidence was not disclosed prior to trial, it was properly submitted because there was no

prejudice from nondisclosure).

Regarding the Defendant’s probation violation in 1981, he had notice of it because

the presentence report stated that he had a history of probation violations in Florida and listed

the offenses leading to his probation in 1980 and its subsequent violation in 1981. Ms.

Dotson testified that in 1981, the Defendant violated the terms of his probation by being

convicted of possession of marijuana, possession of narcotic equipment, criminal mischief,

and operating a motor vehicle without a valid registration. Ms. Dotson explained that she

obtained this information by speaking with the circuit court clerk in Manatee County,

Florida, and obtaining from the clerk a certified copy of a progress report listing the

Defendant’s offenses in Florida. The Defendant was accorded a fair opportunity to rebut the

evidence of this violation and failed to do so. The Defendant did not contend that the

presentence report or the testimony of Ms. Dotson was incorrect. As a result, the presentence

report and testimony of Ms. Dotson were properly admitted by the trial court as reliable

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hearsay. See T.C.A. § 40-35-209(b). A certified copy of this probation violation was not

required in order to establish it by a preponderance of the evidence, and the court properly

relied on the presentence report and the testimony of Ms. Dotson. See Richardson, 875

S.W.2d at 677. The Defendant is not entitled to relief on this issue.

Regarding the Defendant’s probation violation in 1986, we agree with the Defendant

that this violation was not properly considered during sentencing because it was not

established by a preponderance of the evidence. Although the presentence report stated that

the Defendant had a history of probation violations in Florida, it did not list the offense or

conduct leading to his probation in 1985 or its subsequent violation in 1986. Likewise,

although Ms. Dotson testified that the Defendant violated the terms of his probation in 1986,

she did not state the offense leading to probation or the cause of the violation. While this

probation violation was not properly considered, the probation violation occurring in 1981

was sufficient to establish enhancement factor (8) because it proved by a preponderance of

the evidence that the Defendant failed to comply with the conditions of a sentence involving

release into the community. See T.C.A. § 40-35-114(8); Gutierrez, 5 S.W.3d at 644.

Regarding the Defendant’s prior convictions, Ms. Dotson testified that in 1990, the

Defendant was convicted for marijuana possession. She said that she obtained this

information from the National Crime Information Center in Phoenix, Arizona but that she

was unable to obtain a certified copy of the conviction due to the expense involved in

obtaining it. She said that she asked the Defendant about this conviction during the

presentence interview and that he responded, “Yeah, I had some trouble with marijuana, but

that was about 15 years ago.” Additionally, the State introduced a certified copy of a

progress report obtained from the circuit court clerk in Manatee County, Florida, reflecting

that the Defendant pled guilty to misdemeanor battery in 1987.

The State concedes that these two convictions were not mentioned in the presentence

report and were not provided to the Defendant before the sentencing hearing. The record

does not reflect, though, any prejudicial effect from this failure. The Defendant did not deny

that he had these convictions. The presentence report reflected that the Defendant was

convicted of nine misdemeanors, in addition to the two felonies used to establish his Range

II status and the two misdemeanors at issue. These nine misdemeanors, including

convictions for assault, resisting an officer with violence, and marijuana possession, were

sufficient to establish the Defendant’s history of criminal behavior by a preponderance of the

evidence. As a result, the State’s failure to comply with the Defendant’s discovery request

did not prejudice the Defendant and did not warrant the exclusion of this evidence. See

Garland, 617 S.W.2d at 185-86.

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Furthermore, the presentence report, the testimony of the person who prepared that

report, and a certified court document reflecting that the Defendant pled guilty to

misdemeanor battery in 1987 were properly considered asreliable hearsay of the Defendant’s

prior criminal behavior. See T.C.A. § 40-35-209(b); Baker, 956 S.W.2d at 17. The Defendant

was accorded a fair opportunity to rebut the evidence of these convictions and failed to do

so. Certified copies of the Defendant’s convictions were not necessary to prove his prior

criminal history. The court could properly rely upon the presentence report and the testimony

of Ms. Dotson in determining the Defendant’s prior criminal history. See Richardson, 875

S.W.2d at 677 (Tenn. Crim. App. 1993). The Defendant is not entitled to relief on this issue.

VII

The Defendant contends that the trial court imposed an excessive sentence by giving

undue weight to the Defendant’s prior convictions and failing to consider mitigating factors.

The State contends that the trial court properly sentenced the Defendant. We agree with the

State.

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

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

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

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

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

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

principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb

the sentence even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789

(Tenn. Crim. App. 1991).

We note, though, “‘the presumption of correctness which accompaniesthe trial court’s

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

considered the sentencing principles and all relevant facts and circumstances.’” State v.

Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v. Ashby, 823 S.W.2d 166, 169

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

must place on the record its reasons for arriving at the final sentencing decision, identify the

mitigating and enhancement factors found, state the specific facts supporting each

enhancement factor found, and articulate how the mitigating and enhancement factors have

been evaluated and balanced in determining the sentence. State v. Jones, 883 S.W.2d 597,

599 (Tenn. 1994); see T.C.A. § 40-35-210(e).

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

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

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

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

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

offenses in Tennessee, (7) any statement that the defendant made on his own behalf, and (8)

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

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

In imposing a sentence within the appropriate range of punishment for the defendant:

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

following advisory sentencing guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be imposed, because the

general assembly set the minimum length of sentence for each

felony class to reflect the relative seriousness of each criminal

offense in the felony classifications; and

(2) The sentence length within the range should be

adjusted, as appropriate, by the presence or absence of

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

40-35-114.

T.C.A. § 40-35-210. From this, “the trial court is free to select any sentence within the

applicable range so long as the length of the sentence is ‘consistent with the purposes and

principles of [the Sentencing Act].’” Carter, 254 S.W.3d at 343 (quoting T.C.A. §

40-35-210(d)).

The weighing of enhancement and mitigating factors is within the sole discretion of

the trial court. See Carter, 254 S.W.3d at 345. Thus,

even if a trial court recognizes and enunciates several applicable

enhancement factors, it does not abuse its discretion if it does

not increase the sentence beyond the minimum on the basis of

those factors. Similarly, if the trial court recognizes and

enunciates several applicable mitigating factors, it does not

abuse its discretion if it does not reduce the sentence from the

maximum on the basis of those factors.

Id.

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The trial court found that the following enhancement factors applied pursuant to

Tennessee Code Annotated section 40-35-114:

(1) the Defendant has a previous history of criminal convictions

or criminal behavior, in addition to those necessary to establish

the appropriate range;

(8) the Defendant failed to comply with the conditions of a

sentence involving release into the community;

(9) the Defendant possessed or employed a firearm during the

commission of the offense;

(10) the Defendant had no hesitation about committing a crime

when the risk to human life was high.

See T.C.A. § 40-35-114 (Supp. 2007) (amended 2008). The court assigned great weight to

factors (1) and (9) and gave little weight to factor (10).

The trial court found mitigating factor (2), the defendant acted under strong

provocation, applicable but assigned it little weight. See T.C.A. § 40-35-113(2). The court

stated, “The only factor in his favor is he was at his place, it was an odd hour, and it was

possibly obnoxious conduct by the victim, but all that together pales in light of actually

shooting a man twice . . . so I’m leaving the sentence at 10 years.”

The Defendant first contends that the trial court afforded undue weight to the

Defendant’s prior convictions and enhancement factor (1). The weighing of enhancement

and mitigating factors is within the sole discretion of the trial court. See Carter, 254 S.W.3d

at 345; State v. Devin Banks, No. W2005-02213-CCA-R3-DD, Shelby County, slip op. at

56 (Tenn. Crim. App. July 6, 2007) (recognizing that “[t]he 2005 amendment [to the

Sentencing Act] deleted appellate review of the weighing of the enhancement and mitigating

factors, as it rendered the enhancement and mitigating factors merely advisory, not binding,

on the trial courts”). The record reflects that the Defendant was convicted of at least nine

misdemeanors in addition to the two felonies used to establish his Range II status. The

Defendant admitted owning firearms, despite being a felon. Additionally, Detective Seals

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testified that he found between three and five marijuana plants growing outside of the

Defendant’s home and marijuana seeds inside the home. This evidence was sufficient to

establish the Defendant’s history of criminal convictions and criminal behavior by a

preponderance of the evidence. Because the trial court properly applied enhancement factor

(1), we defer to the trial court’s weighing of this factor. See Carter, 254 S.W.3d at 345;

Devin Banks, slip op. at 56. The Defendant is not entitled to relief on this issue.

The Defendant also contends that, despite the trial court’s application of enhancement

factors (1), (8), (9) and (10), and mitigating factor (2), the court failed to consider additional

mitigating factors. He argues that three mitigating factors were applicable: (3) substantial

grounds existed tending to excuse or justify the Defendant’s criminal conduct, though failing

to establish a defense; (11) the Defendant, although guilty of the crime, committed the

offense under such unusual circumstances that it is unlikely that a sustained intent to violate

the law motivated the criminal conduct; and (13) he has been sufficiently punished by losing

his job and home. See T.C.A. §§ 40-35-113(3), (11), (13).

Contrary to the Defendant’s argument, the trial court did consider the above mitigating

factors. The trial court rejected mitigating factor (3), stating, “There [are] some grounds

[supporting the claim] that he might not have done this if the other man hadn’t been

somewhat provocative, but I don’t think they [are] substantial . . . [if you] come out and ask

somebody to leave and . . . shoot them twice . . . that’s beyond the pale of excusing conduct.”

While the record reflects that the victim’s actions were bothersome and irritating, it does not

reflect that the victim’s actions threatened immediate harm to the Defendant or otherwise

justified the Defendant shooting the victim twice at close range with a shotgun. As a result,

we conclude that the trial court properly refused to apply this mitigating factor.

The trial court rejected mitigating factor (11), stating that this factor was not met

“simply because there [had] already been one confrontation. Apparently, if you just got in

the area around this Defendant . . . he was . . . likely to come out and confront you . . . with

a weapon, so I don’t see how that’s a mitigator in this case.” The record does not reflect that

thisshooting was committed under unusual circumstances. An almost identical confrontation

occurred two nights before the shooting, when the Defendant, naked and armed with a

shotgun, confronted the victim for being near his home late at night. As a result, we

conclude that the trial court properly refused to apply this mitigating factor.

The trial court rejected mitigating factor (13), stating that it did not find any other

mitigating factors consistent with the purposes of the Sentencing Act to be applicable.

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Although the Defendant contends that he has been sufficiently punished by losing his job and

home, the record does not reflect the circumstances surrounding the loss of the Defendant’s

job or the burning of his home. As a result, we defer to the presumptively correct finding of

the trial court that this factor was inapplicable. See T.C.A. § 40-35-401(d).

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

court is affirmed.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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