State of Tennessee v. Bobby L. Looper

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 9, 2012
STATE OF TENNESSEE v. BOBBY L. LOOPER
Appeal from the Circuit Court of Van Buren County
No. 2215-F Larry B. Stanley, Jr., Judge
No. M2011-01642-CCA-R3-CD - Filed August 15, 2012
A jury convicted Bobby L. Looper (“the Defendant”) of one count of second degree murder,
and the trial court subsequently sentenced him as a Range I offender to twenty years in the
Tennessee Department of Correction. In this appeal as of right, the Defendant challenges the
sufficiency of the evidence supporting his conviction and the length of his sentence. Upon
our thorough review of the record and relevant authorities, we affirm the Defendant’s
conviction and the length of his sentence. This matter is remanded to the trial court for the
entry of a corrected judgment order.
Tenn. R. App. P. 3 Appeal as of Right; Judgment
of the Circuit Court Affirmed; Remanded
J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R. and J OHN E VERETT W ILLIAMS, JJ., joined.
Dan T. Bryant, District Public Defender; L. Scott Grissom, Assistant Public Defender,
McMinnville, Tennessee (on appeal); Howard Upchurch, Pikeville, Tennessee, and Tommy
Austin, Dunlap, Tennessee (at trial), for the appellant, Bobby L. Looper.
Robert E. Cooper, Jr., Attorney General & Reporter; Rachel Harmon, Assistant Attorney
General; Lisa Zavogiannis, District Attorney General; and Randall Gilliam, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
The Defendant was charged with one count of second degree murder, resulting from
the shooting death of the victim, Michael L. Hensley, on December 3, 2009. At the
Defendant’s jury trial, conducted in early 2011, the following proof was adduced:
Belinda London testified that she worked at the Bledsoe County 911 Center and that
she received a call at 9:33 p.m. on December 3, 2009, from 4571 Longwood Mooneyham
Road. The caller identified himself as the Defendant. The call was recorded and played for
the jury. The recording also was admitted into evidence. The recording provides as follows:
911: Bledsoe County 911, can I help you?
CALLER: Yes ma’am, uh, I just tried to kill; I just did kill a man that tried
to kill me in my own home.
911: You just killed a man?
CALLER: Yes ma’am and he tried to kill me in my own home.
911: Where are you at?
CALLER: Uh, 4571 Mooneyham Longwood Road.
911: Mooneyham Longwood?
CALLER: Yes ma’am.
911: Road; 4571 Mooneyham Longwood Road.
CALLER: Yes ma’am.
911: And he tried to kill you?
CALLER: Yes ma’am and I just killed him.
911: What did you kill him with?
CALLER: Uh, a 410 shotgun.
911: Who was it?
CALLER: I don’t know him; I, I never seen him before in my life.
911: Did he try to break in or something on you?
CALLER: Yes ma’am -- he broke into my house.
911: Okay, what is your name?
CALLER: Bobby Lane Looper.
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911: Okay, uh, you are in Van Buren County, right?
CALLER: Yes ma’am.
911: Okay, I am going to transfer you to Van Buren, okay, and then
they can get somebody up there, okay?
CALLER: Yes ma’am.
911: Just stay on the line.
CALLER: Yes ma’am.
On cross-examination, London stated that she did not know the Defendant and
previously had not received a call from him. She acknowledged that the voice she heard was
“slurred” and that the caller was talking in a “slow fashion.”
Deputy Christopher Russell of the Van Buren County Sheriff’s Department testified
that he was on duty that night with Deputy Aaron Turpin. At about 9:30 p.m., he was
dispatched to the Defendant’s residence to investigate an alleged break-in and shooting. He
left from the jail where he had received the call, and Deputy Turpin followed him in a second
vehicle. Deputy Russell stated that it took ten to fifteen minutes to drive to the Defendant’s
residence. On the way, he requested an ambulance. When he arrived at the Defendant’s
house, he mounted the porch and approached the sliding glass doors. There were some lights
on inside, and he looked through the doors. On a counter near the door, he saw a small bore
gun. He knocked on the door, but no one answered. He knocked louder, and the Defendant
walked out of the hallway and answered the door. Deputy Russell identified himself and told
the Defendant that he had received a call about a shooting. The Defendant told him that there
was “nothing going on there.” When Deputy Russell looked down, however, he saw what
appeared to be blood on one of the Defendant’s shoes and on his pants. Deputy Russell
inquired about the blood, and the Defendant responded that there was no blood on his pants.
Deputy Russell again inquired if anyone had been shot, and the Defendant stated that no one
had been shot. Deputy Russell then asked if anyone else was there, and the Defendant stated
that there was not. Deputy Russell asked permission to look for himself, which the
Defendant granted.
Deputy Russell asked the Defendant to step outside and wait with Deputy Turpin
while Deputy Russell looked around. After Deputy Russell entered the house, he found the
victim in the interior hallway of the house. The victim was lying face down in what appeared
to be a large pool of blood. Deputy Russell checked for a pulse and breathing but discerned
neither. Deputy Russell returned to the Defendant and Deputy Turpin and took the
Defendant into custody. Deputy Russell then called for further assistance.
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After additional help arrived, Deputy Russell and Deputy Turpin circled the outside
of the house but found no evidence that anyone had broken in. They remained on the scene
to keep it secure. Deputy Russell also checked periodically on the Defendant.
On cross-examination, Deputy Russell acknowledged that he no longer worked for
the sheriff’s department. He also acknowledged having prepared a written report about the
incident on December 5, 2009. The report indicated that it took him seventeen minutes to
arrive at the Defendant’s residence after he got the call from dispatch. Once there, he noticed
two parked vehicles: a red Mustang and, behind it, a “cream-colored Chevrolet four-wheel
drive [pickup].”
Deputy Russell explained that he went in the house the first time to investigate
whether anyone else was present; went in the house a second time with ambulance personnel;
and went in the house a third time with Chief Deputy Evans after he arrived. No one else
entered the residence until after Jason Craighead and Tennessee Bureau of Investigation
(“TBI”) Agent Kendall Barham arrived. Deputy Russell did not touch the gun that was lying
on the counter but stated that it looked like it had been sawed off. Deputy Russell described
the lighting in the house as “dim” and stated that the ceiling light in the hallway was off. The
hallway was lit by a night-light. Additionally, the lights in the adjacent bathroom and
bedroom were also on.
Deputy Russell testified that, in speaking with the Defendant, he had not smelled
alcohol on him. Nor did he notice the Defendant’s speech to be slurred. After placing the
Defendant in handcuffs, Deputy Russell placed the Defendant in the back of a patrol car.
Deputy Russell recalled seeing an abrasion on the Defendant’s face.
On redirect examination, Deputy Russell stated that he remembered seeing the
Defendant wearing his glasses at some point that night.
Twana Bricker testified that she is employed by the Van Buren County EMS as
paramedic, director, and coroner. She responded to the Defendant’s residence and
determined that the victim had no pulse. She declared the victim deceased at 10:17 p.m. She
also took some photographs of the body in her capacity as coroner. She noticed bloody
footprints near the body. She was careful not to disturb the scene during her time in the
house.
Robert Dodson testified that the victim, Michael Hensley, was his wife’s brother and
that the Defendant was his wife’s cousin. He stated that the victim and the Defendant were
cousins and that they were “very close.” Dodson lived across the street from the Defendant
and saw the victim visiting the Defendant frequently. Dodson had gone hunting with the
victim on numerous occasions and knew him to have a Beretta 9 mm. pistol. To his
knowledge, the victim did not own a .357 magnum. On the day the victim died, he and
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Dodson had communicated by text several times. The last message he got from the victim
was at 8:06 p.m. He responded with a text message at 8:07 but did not get a response.
On cross-examination, Dodson acknowledged that the victim was close to six feet, one
inch tall and weighed about 275 pounds. At the time of his death, the victim was separated
from his wife. Dodson recovered the victim’s pickup from the Defendant’s residence the
next morning. Inside was the victim’s deer rifle, a 30-06. The gun was not loaded.
On redirect examination, Dodson stated that the victim’s pickup also contained the
victim’s backpack full of hunting items, the victim’s hunting coat, and some grocery items.
Special Agent James Howard Patterson of the TBI testified that he worked in the
Technical Services Unit and conducted forensic examinations of “digital electronic evidence,
computers, [and] cellphones.” He examined two cellphones in conjunction with this case.
One, a Motorola cellphone, indicated that a text message had been sent to phone number 423-
619-5456, identified on the phone as “Cuttie,” which stated, “I’m a little drunk right now.
Tomorrow would be better. Don’t be mad at me. 1378.” However, there was not a date
associated with this outgoing text message. This same phone also contained a draft text
message stating “OK, Baby, right now I’m dealing with Cuz and that is all you need to know.
I’m fine and he will be.” The number to which this draft message was to be sent was 423-
619-5456, but the message was never sent. According to Special Agent Patterson, it was not
possible to determine when the text message was drafted. Also reflected on the phone was
a text message received from Cuttie on December 3, 2009 at 10:34 p.m. stating “Would you
like to watch a movie tonight or tomorrow?” Special Agent Patterson did not know whether
the phone was referring to Eastern or Central time.
Gail Hixson testified that she met the Defendant and the victim at about the same time
in 2007 at their mutual place of employment. She began dating the Defendant, and they
married in December 2008. During the marriage, she and the Defendant and the victim spent
time together. Hixson and the Defendant separated in August 2009. She told the Defendant
that she wanted a divorce and moved out. Shortly thereafter, her relationship with the victim
“intensified.” She did not tell the Defendant about this development, and she and the victim
took pains to keep it from him. One of the methods they employed to keep their relationship
from the Defendant was using text messaging instead of phone calls to communicate.
On December 3, 2009, she called the Defendant to ask him to cancel the cellphone
contract they shared so that she could get her own. He told her that he had company and
hung up. She and the victim were also text messaging back and forth on December 3, 2009.
The victim, however, “wasn’t responding like he usually” did. She explained that the victim
usually responded immediately, but that he did not that night.
One of the text messages she sent to the victim that night asked, “Would you like to
watch a movie together tonight or tomorrow?” His texted response was, “I’m a little drunk
right now. Tomorrow would be better. Don’t be mad at me.” She texted in reply, “I’m not
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mad at you. I do hope to see you tomorrow.” She sent several additional texts asking the
victim questions but received no replies. When asked if she received the text message that
was in the Motorola phone’s draft storage, she said, “No.” She added that the victim referred
to the Defendant as “Cuz.”
Hixson also explained that the victim had wanted to stop hiding their relationship so
that they could spend the holidays together. She, however, was afraid of what the Defendant
would do upon learning of their relationship. Hixson stated that she had lived in the
Defendant’s house with him and knew that he owned guns. She recalled the sawed-off .410
shotgun. She stated that the Defendant kept that gun loaded and that it hung from a hook
next to the sliding glass doors. The Defendant also kept another shotgun in the main
bedroom. He also had a handgun, which she described as “his favorite.” He kept the
handgun loaded and “close by.”
On cross-examination, Hixson acknowledged that, on December 3, 2009, she and the
Defendant were still married. She had filed for divorce in October 2009. The complaint
reflected that she was still living with the Defendant on September 25, 2009. She
acknowledged that she was having intimate relations with the victim on August 31, 2009, and
thereafter. She also acknowledged that the victim was a party in a divorce action filed in
November 2009.
Hixson further testified that the Defendant and the victim were cousins and good,
close friends. They drank together “[s]ometimes.” She denied that the victim told her that
he was going over to the Defendant’s house on the night of December 3, 2009. She admitted
that 423-619-5456 was her cellphone number. She also acknowledged telling investigators
that the Defendant’s eyesight required correction with either glasses or contact lenses.
On redirect examination, Hixson admitted that the Defendant had asked her out on a
date once in November 2009.
Jason Craighead testified that he was an investigator with the prosecutor’s office and
that he was trained in processing crime scenes. Deputy Russell contacted him after
discovering the victim’s body, and Craighead contacted the TBI to get an agent en route.
Craighead then reported to his office and gathered what he needed to process the crime
scene. The first thing he did after arriving at the scene was to collect evidence from the
Defendant. He processed the Defendant for gunshot residue and took photographs of the
Defendant. These photographs depict some marks on the Defendant’s head, areas of redness
on his neck, left shoulder, right knee, and lower right back, and a cut on his left hand.
Craighead also collected the Defendant’s clothing, which he turned over to the TBI. He
videotaped the crime scene, and the video-recording was played for the jury. At the scene,
he saw a prescription bottle in the Defendant’s name labeled Alprazolam .5 milligrams. He
found the bottle at the edge of an end table and several pills on the floor nearby. A receipt
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for the prescription indicated that it had been filled on December 2, 2009, and that the
prescription was for 60 pills.
Craighead also identified a diagram that had been composed of the Defendant’s
house as consistent with the layout, although the diagram was not drawn to scale. This
diagram was admitted into evidence and indicated that, at the end of the hallway, a door
opens into a bedroom. Immediately before this doorway, two doors open off of the hallway,
one into a bathroom on the left and the other, which is opposite the bathroom door, into a
bedroom.
On cross-examination, Craighead explained that he began shooting the video
sometime after midnight. He also stated that the Defendant was not wearing glasses when
he began taking photographs of him. He agreed that the Defendant’s driver’s license
indicated that there was a restriction for glasses. He acknowledged that he found a .357
magnum on the couch with a pillow over it. He stated that this gun was not loaded. On the
other couch he found a “powder and ball type pistol that has to be manually loaded.” This
second handgun was in a holster. He also saw a vodka bottle in the trash.
Agent Kendall Barham of the TBI testified that he was trained in crime scene
investigation and that he assisted in the investigation of this case. He identified the
Defendant as the person who was removed from the patrol car after Agent Barham arrived
on the scene. He stated that his investigation revealed that the red Mustang vehicle at the
scene belonged to the Defendant and that the tan truck belonged to the victim. His review
of the crime scene that evening revealed no sign of a break-in.
He observed the victim lying in the hallway and took multiple photographs. The
victim’s head was toward the entry of the hallway from the living area, and his legs were in
the space between the doors to the bathroom and the bedroom directly across from the
bathroom. His feet were pointed toward the bedroom into which the hallway opened at its
far end. Just inside the doorway of this end bedroom, Agent Barham found (and
photographed) two shotgun shells, one live and one spent. These shells were lying near the
victim’s feet. Agent Barham also observed and photographed spots in the bathroom that
appeared to be blood spatter. He further observed and photographed what appeared to be a
footprint in the victim’s blood that was very close to the victim’s head.
Additionally, he found two glasses in the kitchen sink. He gathered up two empty
vodka bottles and three orange juice containers. He also collected several guns from the
Defendant’s house, including the .410 shotgun, as well as the live shotgun shell and the spent
shotgun shell located near the victim’s feet. He also found a pair of glasses on the bedroom
floor that one of the deputies later retrieved and took to the Defendant. He bagged the
victim’s hands prior to the transport of the body for autopsy. The victim’s clothing was
transported with the body to the medical examiner’s office, and Agent Barham later collected
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six unfired .357 rounds from the medical examiner’s office that had been recovered from the
victim’s effects.
On cross-examination, Agent Barham stated that he arrived at the scene just after
midnight and did not leave until 11:49 a.m. He recalled seeing the prescription bottle with
pills in it. He also recalled some pills on the floor near the bottle. Neither the bottle nor the
pills were collected as evidence.
Agent Barham acknowledged that he spoke with the Defendant about fifty minutes
after he arrived at the scene. He smelled alcohol on the Defendant and noticed that the
Defendant’s speech was slurred. Agent Barham advised the Defendant of his rights, and the
Defendant executed a written waiver. The Defendant then answered Agent Barham’s
questions. At this time, the Defendant was not wearing glasses. Agent Barham noticed some
abrasions on the Defendant’s face. Agent Barham described these abrasions as consistent
with someone being in an altercation or falling down.
Special Agent Laura Hodge of the TBI testified as an expert in gunshot residue
analysis. She received gunshot residue kits taken from the Defendant and the victim. The
kits from both persons were inconclusive.
Special Agent James Russell Davis, II, of the TBI also testified as an expert in
gunshot residue analysis. He examined clothing and a pair of shoes collected from the
Defendant. His examination of the Defendant’s shirt revealed that it “was near a gun when
it fired, came in contact with a recently fired gun, and/or recently fired ammunition
components.” In sum, the shirt contained gunshot residue. Special Agent Davis also found
“particles that were consistent with gunshot primer residue” on the Defendant’s pants and
both of his shoes.
Special Agent Michael Turbeville of the TBI testified as an expert “in the area of
blood and serology.” He examined clothing recovered from the Defendant and blood taken
from the victim to determine if the Defendant’s clothing contained the victim’s blood.
Utilizing DNA analysis, Special Agent Turbeville determined that blood stains on the
Defendant’s shoes matched the blood standard of the victim. He also found blood on the
soles of the Defendant’s shoes but did not conduct DNA testing on those bloodstains.
Special Agent Turbeville did not find blood on the Defendant’s shirt. He, however, did find
blood on the Defendant’s pants, and that blood matched the victim’s blood.
Special Agent Robert Daniel Royce of the TBI testified as an expert in firearms
identification. He examined the .410 shotgun recovered from the Defendant’s home. It was
a single-shot gun that had to be opened at a hinge in order to load it by inserting a shotgun
shell. He explained that, once it was loaded, it could be fired by thumbing the hammer back
(thereby cocking it) and then pulling the trigger. Special Agent Royce testified that cocking
the gun required “a significant amount of pressure.” Additionally, he determined that it took
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“eight and a half pounds of force placed on the trigger in order to discharge” the gun.
Special Agent Royce stated that he “certainly wouldn’t call it a light trigger pull.” The gun
ejected any loaded shell when the action was opened. Special Agent Royce described it as
“a very simple ejection mechanism” where “[w]hen you open up the action it automatically
ejects in whatever direction it’s facing.” In his testing, the gun ejected the shells “anywhere
from 2 to 5 feet.”
Special Agent Royce also examined the fired shotgun shell retrieved from the scene
and determined that it had been fired from the .410 shotgun retrieved from the scene. The
lead pellets recovered from the victim’s body were consistent with the pellets that would be
found in the shell fired from the gun.
Dr. John Brentley Davis, assistant medical examiner for the State of Tennessee,
performed an autopsy on the victim. The victim measured six feet, one inch tall and weighed
278 pounds. During the autopsy, Dr. Davis discovered that the victim’s bladder was empty.
The cause of death was a shotgun wound to the chest. The victim had a .103 blood alcohol
content. Dr. Davis also discovered that the victim had acute hepatitis, i.e., inflammation of
the liver. Testing for drugs of abuse was negative. According to Dr. Davis, the barrel of the
shotgun was within two feet of the victim when it was fired. The predominant travel path
of the pellets recovered from the victim’s body was front to back, with “not a lot of
deviations to left or right or up or down.” Dr. Davis testified that the shotgun wound
destroyed the bottom half of the victim’s heart. Accordingly, the victim had ten to twenty
seconds of consciousness after being shot.
After presenting Dr. Davis, the State rested its case. The defense put on no proof.
The trial court instructed the jury on the defenses of ignorance or mistake of fact;
intoxication; duress; necessity; self-defense; and protection of property. After deliberating,
the jury returned a verdict of guilty as to the indicted offense of second degree murder.
At the sentencing hearing, Vicky Rowland of the Board of Probation and Parole
testified that the Defendant had two prior convictions for DUI and also had been charged
with driving on a revoked license. These offenses occurred in the late 1990s. The Defendant
was on probation at the time he committed the second DUI offense. Rowland prepared a
presentence report which was admitted into evidence at the hearing, but which is not included
in the record on appeal.
McKayla Hensley, the victim’s daughter, testified that the Defendant “ruined [her]
life” by killing her father. She also stated that she thought the Defendant deserved “the
maximum time.”
Tammy Potter and Christy Dodson, the victim’s sisters, and several other of the
victim’s family members also testified to the effect of the victim’s death on his family.
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Several of these witnesses requested that the Defendant receive the maximum sentence
available.
Jamie Walling testified that he was a deputy sheriff at the jail where the Defendant
was housed. He stated that the Defendant had caused no problems at the jail. He also stated
that, prior to trial, he overheard a phone conversation between the Defendant and his mother
during which the Defendant stated that he did not remember what happened during the
offense.
After hearing argument from counsel as to both mitigating and enhancement factors,
the trial court sentenced the Defendant as a Range I offender to the midrange sentence of
twenty years in the Tennessee Department of Correction. In doing so, the trial court relied
on two enhancement factors: the Defendant’s previous criminal history and the Defendant’s
use of a firearm during the offense. The trial court subsequently denied the Defendant’s
motion for new trial.
In this appeal as of right, the Defendant challenges the sufficiency of the evidence
underlying his conviction and also challenges the length of his sentence.
Analysis
Sufficiency of the Evidence
Our standard of review regarding sufficiency of the evidence 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). See also Tenn. R. App. P. 13(e). After a jury finds
a defendant guilty, the presumption of innocence is removed and replaced with a presumption
of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant
has the burden on appeal of demonstrating why the evidence was insufficient to support the
jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does
not weigh the evidence anew; rather, “a jury verdict, approved by the trial judge, accredits
the testimony of the witnesses for the State and resolves all conflicts” in the testimony and
all reasonably drawn inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75
(Tenn. 1992). Thus, “the State is entitled to the strongest legitimate view of the evidence
and all reasonable or legitimate inferences which may be drawn therefrom.” Id. (citation
omitted). This standard of review applies to guilty verdicts based upon direct or
circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State
v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our Supreme Court adopted
the United States Supreme Court standard that “direct and circumstantial evidence should be
treated the same when weighing the sufficiency of such evidence.” Id. at 381. Accordingly,
the evidence need not exclude every other reasonable hypothesis except that of the
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defendant’s guilt, provided the defendant’s guilt is established beyond a reasonable doubt.
Id.
Second Degree Murder
Our criminal code defines second degree murder as a “knowing killing of another.”
Tenn. Code Ann. § 39-13-210(a)(1) (2006). Our supreme court has determined that second
degree murder is a “result of conduct” offense. See State v. Brown, 311 S.W.3d 422, 431-32
(Tenn. 2010). Accordingly, the “knowing” element is satisfied when the proof demonstrates
that the defendant was aware this his or her conduct vis-a-vis the victim was reasonably
certain to cause the victim’s death. See Tenn. Code Ann. § 39-11-302(b) (2006); Brown, 311
S.W.3d at 431-32. “To sustain a finding that a defendant acted knowingly, the State is not
required to prove that the defendant wished to cause his victim’s death but only that the
defendant knew that his or her actions were reasonably certain to cause the victim’s death.”
Brown, 311 S.W.3d at 432. Moreover,
Whether a defendant acted “knowingly” in killing another is a question of fact
to be addressed by the jury. And while a defendant’s mental state is rarely
subject to proof by direct evidence, it is within the authority of the jury to infer
the defendant’s intent, and, therefore, whether the defendant acted
“knowingly,” from surrounding facts and circumstances.
Id. (citations and internal quotation marks omitted).
The Defendant argues that the proof at trial was not sufficient to support the jury’s
determination that he shot and killed the victim “knowingly.” We disagree. Assessing the
proof in the light most favorable to the State, which we are required to do, the jury had before
it sufficient evidence from which to conclude that the victim and the Defendant discussed
the victim’s affair with the Defendant’s estranged wife; that the victim and the Defendant
had this discussion over alcoholic beverages; that an altercation ensued; that the victim
walked down the Defendant’s hall to the bathroom in order to urinate; that the Defendant
retrieved his .410 shotgun, which he kept loaded; that the Defendant positioned himself near
the bathroom door; that the Defendant opened the gun, thereby ejecting a live shell, and
reloaded it with another live shell; and that, when the victim exited the Defendant’s bathroom
after emptying his bladder, the Defendant aimed his shotgun at the victim from only a few
feet away, cocked the gun, and pulled the trigger, shooting the victim once in the chest and
killing him. This conduct satisfies the definition of “knowingly.”
In addressing a similar challenge to a second degree murder conviction, this Court
framed the question as “whether the defendant was aware that his conduct was reasonably
certain to cause the result.” State v. Randy Clayton Norman, No. M2009-01246-CCA-R3-
CD, 2010 WL 3448108, at *15 (Tenn. Crim. App. Sept. 2, 2010), perm. app. denied (Tenn.
Dec. 8, 2010); see also State v. Page, 81 S.W.3d 781, 788 (Tenn. Crim. App. 2002) (“[f]or
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second degree murder, a defendant must be aware that his or her conduct is reasonably
certain to cause death.”). In Norman, the defendant had struck the victim once in the head
with an axe. As in the instant case, the proof demonstrated that the victim and the defendant
had been drinking. There was also proof that the defendant and the victim had taken
prescription pain medication. The defendant claimed that he struck the victim because he
was afraid the victim was going to kill the defendant’s girlfriend. Nevertheless, the jury
convicted the defendant of second degree murder. This Court affirmed on the basis that,
[i]n the light most favorable to the State, having heard that the defendant
consciously chose to use a ‘weapon’ to respond to what he perceived to be a
deadly threat, the jury could reasonably conclude that the defendant was aware
that striking the victim in the head with an axe was reasonably certain to cause
the victim’s death.
Randy Clayton Norman, 2010 WL 3448108, at *15.
Likewise, the proof in this case portends the same result. The proof demonstrated that
the Defendant armed himself with the .410 shotgun and then shot the victim in the chest from
close range. The jury was entitled to conclude that the Defendant was aware that firing a
deadly weapon at the victim from close range was reasonably certain to cause the victim’s
death. Accordingly, the proof is sufficient to support the Defendant’s conviction of second
degree murder. The Defendant is not entitled to relief on this basis.
Sentencing
We turn now to the Defendant’s contention that his sentence is excessive. In making
its sentencing determination, a trial court must consider:
(1) The evidence, if any, received at the trial and the 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 conduct involved;
(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and
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(7) Any statement the defendant wishes to make in the defendant’s own behalf
about sentencing.
Tenn. Code Ann. § 40-35-210(b) (2010). The trial judge also should consider “[t]he
potential or lack of potential for the rehabilitation or treatment of the defendant . . . in
determining the sentence alternative or length of a term to be imposed.” Id. § 40-35-103(5)
(2010).
When the record affirmatively shows that the trial court considered the statutory
sentencing principles and all relevant facts and circumstances, our review is de novo with a
presumption that the trial court’s determinations are correct. See Tenn. Code Ann. § 40-35-
401(d) (2010); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Also, when the trial court
considered all of the criteria set out in Tennessee Code Annotated section 40-35-210(b),
imposed a sentence within the applicable range, set forth its reasons for imposing the
particular sentence, and the record establishes that the trial court’s findings of fact are
adequately supported, we may not disturb the sentence even if we would have preferred a
different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). When the record
does not demonstrate that the trial court gave due consideration to the requisite criteria, our
review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169. The appealing party,
here the Defendant, bears the burden of establishing that the sentence is improper. Tenn.
Code Ann. § 40-35-401, Sent’g Comm’n Cmts; see also Ashby, 823 S.W.2d at 169.
The Defendant was convicted of second degree murder, a Class A felony. See Tenn.
Code Ann. § 39-13-210(c). The Range I sentence for a Class A felony is fifteen to twenty-
five years. See id. § 40-35-112(a)(1) (2006). The trial court sentenced the Defendant to the
mid-range sentence of twenty years on the basis of two enhancement factors: the
Defendant’s prior criminal history, see id. § 40-35-114(1) (Supp. 2009), and the Defendant’s
use of a firearm to commit the murder, see id. at (9). The Defendant argues that the trial
court assigned too much weight to the first of these factors because the Defendant’s prior
criminal history consists of misdemeanors that occurred more than ten years previously. As
to the second factor, he argues that “realistically most killings in Tennessee are done with a
firearm and to allow this factor to increase the sentence by five (5) years serves no legitimate
purpose.” The Defendant has cited to no authority for either of these propositions.
Therefore, the Defendant’s claims are waived. See Tenn. Ct. Crim. App. R. 10(b).
Moreover, our supreme court has made clear that this Court may not reduce a
defendant’s sentence simply on the basis of the trial court’s weighing of the various
applicable mitigating and enhancement factors. See Carter, 254 S.W.3d at 345-46; see also
State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at *48 (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 in this case demonstrates that the trial court considered the appropriate
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information in imposing the Defendant’s sentence. We note that the trial court specifically
rejected the State’s request that the Defendant’s sentence be enhanced on the basis that the
Defendant’s conduct demonstrated that he had “no hesitation about committing a crime when
the risk to human life was high.” See Tenn. Code Ann. § 40-35-114(10). The trial court
properly recognized that this enhancement factor is an essential element of the offense of
second degree murder and therefore inapplicable as an enhancement factor. See id. § 40-35-
114; State v. James Henry Davis, No. M1999-02467-CCA-R3-CD, 2000 WL 1130139, at *3
(Tenn. Crim. App. Aug. 2, 2000). The trial court also rejected the pleas from the victim’s
family that the Defendant be sentenced to the maximum term possible.
In sum, the trial court imposed a sentence that is consistent with the purposes and
considerations of sentencing. Accordingly, we may not disturb it. The Defendant has failed
to demonstrate that he is entitled to relief on this basis.1
We note, however, that the judgment order erroneously reflected that the Defendant
is a “Standard 30%” offender. Pursuant to the Sentencing Act, the Defendant is a “Violent
100%” offender and is not eligible for parole after serving only thirty percent of his sentence.
See Tenn. Code Ann. § 40-35-501(i)(1), (i)(2)(B) (Supp. 2009). Therefore, we remand this
matter to the trial court for the entry of a corrected judgment order.
Conclusion
For the foregoing reasons, we affirm the Defendant’s conviction and his sentence of
twenty years.
_________________________________
JEFFREY S. BIVINS, JUDGE
1
As noted previously, the Defendant failed to include the presentence report in the record on appeal.
As the Defendant is challenging only the trial court’s weighing of the enhancement factors, and not the
sufficiency of the evidence underlying them, this omission has not impeded our review.
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