# FILED March 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON FEBRUARY SESS ION, 1998
STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9703- CC-00115 ) Appellee, ) ) GIBSON COUNTY V. ) ) ) HON. DICK JERMAN,JR. JUDGE LATAVI S DIRAY BA ILEY, ) ) Appe llant. ) (SECO ND DE GREE MUR DER)
FOR THE APPELLANT : FOR THE APPELLEE : JOHN E. HERBIS ON JOHN KNOX WALKUP 2016 E ighth Ave nue So uth Attorney General& Reporter Nashvill e, TN 37204 KENNETH W. RUCKER TOM CRIDER Assistant Attorney General Distri ct Public

Defender 2nd Floor, Cordel l Hull Bui lding 107 Sou th Court Squ are 425 Fifth Avenue North Trenton, TN 38382 Nashvill e, TN 37243 CLAYBURN PEEPLES District Attorn ey Ge neral TED NEUMANN Assistant Distri ct Attorney General LARRY HARDISTER Assistant Distri ct Attorney General GAR RY BR OWN Assistant Distri ct Attorney General 110 College Str

eet, Suite 200 Trenton, TN 38382 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendant, Latavis D irayBailey, appeals as of right fr om his convict ion and sentencing i n the CriminalCourt of Gibson County. Defendant was convicted of second d egree m urder and w as sentenc ed to serve twenty -five (25 ) years in the Ten nessee Depa rtment o f Correc tion as a R ange I O ffender. O n appe al, th e Defendant contends the t rial cour t’s i nstructi on to the jury on “flight” from the scene of the shooti ng was error and ar gues the sentence impos ed was excess ive. W e affirm the ju dgme nt of the trial co urt.

W hile the suffici ency of the evidence is not in quest ion, a bri ef revi ew of the facts is helpf ul for our

analys is. On J uly 22, 1 995, th e Def enda nt and the victim , Tim Jennings, attended abirthda y party fo r Pan icia W illiams. The p arty wa s held at the home of Kales ia Sowe ll. Whe n the pa rty got too l oud, Panicia asked her gue sts to leave, and it took her severalattempts to actuall y get allof the parties ou tside of the house and he aded to ward the street. Defen dant an d Panic ia got into a n argum ent, cursing a t each oth er, while wa lking dow n the drive way towa rds the stre et.

The facts are in dispute as to the fol lowing events leading up to the shooti ng. Witnesses to the eve nt te stified that P anicia an d Defe ndant b egan to fight, with Defendant knocking Panici a to the ground. When Panicia’s fri end s intervened, Panic ia stated th at she ret urned to the hous e. Defendant was kn ocked to the ground by a blow f rom a he avy flashlight and wa s then kicked repeatedly. De fendanttestifi ed that he was in fear for his life. The victim was st anding in th e driveway

behind h is car watching the f ight. According to several witnesses, Defendant rose from the groun d and walked over to the vi ctim, put a gun to the-3-

victim’s chest

and t hen sh ot hi m. The Defendant test ified t hat he rose f rom the ground in self-defe nse an d shot into the crowd to p rotect hi mself. Defendant then kicked the vict im, dropped the gun and stood above the bo dy. De fenda nt’s brother grabbed the Defendant and pi cked up the gun fr om the grou nd, and the two ran down the street . Defendant’ s brot her test ified t hat he later disposed of the gun himse lf.

J URY INSTRUCTION

Defendant argue s that th e trial co urt’s instruction to the jury on the evidence of guilt from Defendant’ s fli ght from the s cene constitutes plain an d prejudicial error. The trialcourt instru cted the ju ry that they c ould infer g uilt from the flight of a n accused person. The instruction was as fol lows:

The fli ght of a pe rson ac cused of a crime is a circum sta nc e which, when considered wi th all of the fac ts of the c ase, m ay ju stify inference of guil t. Fli ght is t he voluntar y withdr aw al o f oneself

for the purpose of evading ar rest or prosecuti on of the cri me charged. Whether the evidence presented proves beyond a reasonabl e doubt that the def

endant fled is a questi on for your determinati on. The law makes no precise di stinct ion as to t he manner or method of fl ight; it may be open, or it may be a concealment wi thin th e jurisdi ction. However, it takes both a l eaving the scene of the difficulty and a subs equent hidi ng out, evasi on, or conceal ment in the comm unity, or the leaving of thecommunity for pa rts unkno wn, to constitute flight. If flight is proved, the fact of fli ght alone does not al low you to find thatthe defendan t is guilty of the crimes alleged . However, since fl ight by a defendant may be caused by a consc iousn ess of guil t, you may consider

the fact of fli ght, if

flight is so proven , tog ethe r with al l of the otherevidence when you dec ide the gu ilt or in nocence of the defend ant. On the other hand, an entirely inn ocent person may take flight and such flight may b e explaine d by proo f offered, or b y the facts and circu mstan ces of the case. Whether there was fl ight by t he defendant, t he reasons for it, and the weight t

o be given it, are questions for you, t he jury, to determine.-4- As the State corr

ectly poi nts out i n its bri ef, Defendant failed to raise t his as an issue in his mo tion for a new trial . Therefore, this i ssue has been waived on t he basis of Rule 3(e) of the Tennessee Rules of Appellate P rocedure
. See State v. Clinton , 754 S.W .2d 100 , 103 (T enn. C rim. App .), perm . to appeal denied , id . (Tenn. 1988).

Defendant submits that “consideri ng the chall enged instruct ion in the context of the entire cha rge and the proof a t trial,” the trial cou rt’s instru ction c onstitu tes pla in and prejudic ial err

or, and thus should not be wai ved. Defendant admitted f leeing t he scene of the shoot ing with hi s broth er. De fenda nt’s bro ther tes tified tha t directly after the shooti ng, he and Defendant fl ed together, taking t he gun with t hem from the scene. Defendant’s br other stated the he went dire ctly to his cousin’ s house, then to his aunt’ s house to borr ow a car in orde r to dispos e of the murder weapo n. Officer Wya tt testified that D efenda nt was not at the scene after the murder and that t hey did no t find the Defe ndan t that nig ht. Th e jury w as en titled to in fer that, in addition to fleei ng the scene wit h his broth er, the Defendant went wit h his broth er and concealed himsel f and the murder weapon that ni ght based upon his bro ther’s te stimony. After consi dering the ent ire recor d in the case sub jud ice , we ar e s atisfi ed that any er ror in t he trialcourt’s instruct ion on fl ight didno t invol ve a substanti al right whi ch affected the judgment nor resulted in preju dice to t he judici al process. Tenn. R. App. P. 36( b);Tenn. R. Cri m. P. 52(a). Even i f t here was insuffi cientevidence of Defendant’s f light an d subsequent hidi ng out, theerror was harmle ss in light of the evidenc e. This iss ue is witho ut merit.

L ENGTH OF SENTENC E-5- Defendant arguesthat the sente nce im pose d by the trial cou rt is excessive. He contends that

the tri al court erroneously appl ied enhancement factors and fai led to apply appropriate miti gating fac tors. Defendant urges th is court to m od ify t he sentence, beginning with a presumptive mini mum of fifte en (15) years and then enhan ce and mitigate a ppropria tely.

When an accused chall enges the lengt h, range or t he manner of service of a sente nce, th is court has a dut y to conduct a de novo review of the sentencewith a presumption that thedeterminati ons made by the tri al court ar e correct. Tenn. Code Ann. § 40-35 -401(d). This presumption is “condi tioned upon t he affirmative showing in the record that

the tri al court considered thesentencing principl es and all rel evant facts and circum stances.” State v. Ashby , 823 S.W .2d 166, 169 (T enn. 1991)

. There are, however, exceptions to the presum ption of co rrectnes s. First, the record must demo nstr ate that the trial cou rt cons idered the se ntenc ing prin ciples and a ll relevant fa cts and c ircums tances
. Id
. Secon d, the pre sump tion does not app ly to the legal concl usions reached by the tri al court i n sentencing. Third, t he pre sump tio n does not ap ply when the d eterminations made b y the trial court are predicatedupon u ncontro verted fac ts. State v. S mith , 898 S.W.2d 742, 745 (Tenn. Crim. A pp. 199 4), perm . to appeal denied , id . (Tenn. 199 5).

Our review of this se ntenc e is de novo , without a presumption of correctness, because the tr ial court f ailed to expli citly set forth its reasoning for the sentence imposed and failed to state t he relevant finding s of fact

justi fying t he enhancement factors and how it determined the weight to whi ch it applied each of the fac tors. The trialcourt deni ed the appli cation o f any miti gating fac tors wit hout provi ding any reason ing.-6- A review by this cour t requir es a considerat ion of : (a) the ev iden ce, i f any, received at the trial and t he sentencing hearing; (b)the presentence rep ort; ( c) the principl es of sentenci ng and arguments as to sentencing alternatives; (d) the nature and characteri stics of the crimi nal conduct i nvolved; (e) any statutor y mitigat ing or enhancement factors; (f) any statement that the defendan t made on his behalf ; and (g) the poten tial or lack of p otential for re habilitation o r treatme nt. Tenn. Code Ann. § 40-35-1 02, -103 , -210; see State v. S mith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

Second degree murder is a Class A felony . Tenn. Code Ann. § 39-13-21 0(b). As a Standard Offender , Defendant wassubject to a sentence of not less than f ifteen (15) normore than twenty-five(25) years . Tenn. Code Ann. § 40-35 -112( a)(1) . As of July 1, 1995, the presumptiv e sentence for a Class A felony i s the midpoint of the applicabl e sentencing range. State v. Chance , 952 S.W.2d 848, 851 (Ten n. C ri m. App. 1997). As Defendant committed the offense on July 22 , 1995 , the trial c ourt’s finding that a tw enty (20) year sentence was the presumptiv e sentence was appropriate. If ther

e are enhancement factors, but no mi tigati ng factors, then the sentence may be set above thepresumptive sen tence butstill within the range; and if there are enhance men t a nd mitigat ing factors, then t he court must start at t he presum ptive sente nce, th en en hanc e as a pprop riate an d redu ce as appro pria t e. Tenn . Code Ann. § 4 0-35-21 0(d) and (e).

The trialcourt appl ied the fo llowingenhancement factors: the Defendant has a previou s hi story of cri minal convictions or criminal behavior i n addition to those necessa ry to establ ish the appr opriate r ange; the Def endant possessed o r employed a fire arm, explosive device, or other deadly weapon during t he commission of t he-7-

offense; the Defe ndant h ad no h esitation a bout co mm itting a crime when th e risk to human life was hi gh; and the fel ony was committed whi le the Defendant was on parole from a prior

felony conv iction
. Tenn. Co de Ann. § 4 0-35-114(1 ), (9), ( 10) and (13). Defend ant doe s not con test the us e of enh ancem ent fa ct ors (1) and (13 ). During his testimony at the sentenci ng hearing, Defendant admitted to his bei ng on parole at the ti me of the offense and admit ted to pri or felony

convicti ons. Defendant argues that applicati on of enhancement factor (10) is e rror b ecaus e the risk to human life isan i nher ent fac tor in thecri me of murder. The factor pertai ning to risk to life may be applied i n situat ion s w here persons oth er than the v ictim are in the area and are sub ject to injury. State v . Si ms , 909 S.W.2d 46, 50 (Tenn. Cri m. App. 1995). Because testi mony in the recor d indicates that Defendant used a weapon in a crowded area where many ot hers in thearea in addition to the victim m ight have been injured , the us e of this enhan cement factor is just ified. Defendant al so suggests tha t the use of enh ancem ent factor (9), that he used a dead ly weap on in the commission of the offense , shoul d be give n lit tle wei ght becaus e few mur ders are committed without the use of a deadly weapon. Because Defen dant fails to cite any authority for th is argum ent, this issu e is waived. Ten n. Ct. Crim. Ap p. R. 10(b); State v. Kil lebrew , 76 0 S. W.2d 2 28, 231 (Ten n. C ri m. App.), perm . to appeal denied , id
. (Tenn. 1988). The trialcourt’s applicat ion of enhancement factor ( 9) was just ified.

The Defendant cites several mi tigati ng factors as applicabl e to his sentencing. First, Defendant argues t hat he acted under strong prov

ocation due to the circumstancessurrounding the shoo ting. Ten n. Cod e Ann. § 40-35-113(2). For the same reason ing, Defe ndant a sser ts that sub stantial gro unds e xist which te nd to excus e o r justif

y his criminal conduct, even though they failto establish a defense and it is unlike ly that the m otivation for h is condu ct was a s ustained intent to violate-8-

the law. Tenn. Code Ann. § 40-35-113(3)and (11). While Defendant testified that he had fallen to the gro und in the figh t, stood up an d fired th e gun into the crowd in self defense, ot her testimon y conflicts w ith that evi dence. Severalother wit nesses testif ied that Defendant walked directly towardsthe victim , who w as no t involve d in the fight at

any time, and shot him point blank in t he chest. Medi cal test imony indicated that the “ muzzle of the weapon was up a gai nst theski n su rf ace at t he t ime the weapon was fired.” There was more than sufficient evidenc e for the trial court to have determ ined that the abo ve mitigating factors d id not apply.

Defendant also sug gests tha t becau se of h is yo uth, he la cked substanti al judgment in comm itting the offe nse. Te nn. C ode A nn. § 4 0-35- 113(6 ). W hile Defendant was nineteen ( 19) years of age at the t ime of thi s offense, t here is no further evidence i n the record to indicate that his age alone constitutes a l ack of judgm ent. There is noth ing in the record to indic ate the Defe ndan t’s age in context of his matu rity, experien ce, me ntal capa city or development, norany other per tinent circumst ance tendin g to de mon strate h is inab ility to app reciate the na ture of h is condu ct. See State v. Carter , 908 S.W.2d 410 (Tenn. Cri m. App. 1995) (ci tations omitted). Finally , Def endant argues t hat he expressed remorse for t he shooting during both the tria l and the s entenc ing hea ring. W h ile remorse is a pr oper mitigati ng factor

under Tennessee Code Annotated sec tion 40-35- 113(13), t he trial court heard the evide nce at the senten cing hea ring and determ ined no t to apply th is mitigati ng factor . Upon our de novo review, we agree with t he findi ngs of the t rial court.

As the pre sum ptiv e sentence for Defendant was twent y (20) year

s and four (4) enhancement factor s apply, we f ind the Defendant’s sentence of twenty-five(25)-9-

years to be app ropriate and not excessi ve in li ght of the f acts and circumstances of the offens e. W e affirm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ JOSEPH B. JONES, Presiding Judge

___________________________________ JOHN H. PEAY, Judge