State of Tennessee v. Tevin Mantez Harris ( 2019 )

09/20/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 15, 2019 Session
STATE OF TENNESSEE v. TEVIN MANTEZ HARRIS
Appeal from the Circuit Court for Robertson County
No. 2013-CR-776 Jill Bartee Ayers, Judge1
___________________________________
No. M2018-00638-CCA-R3-CD
___________________________________
A Robertson County Circuit Court Jury convicted the Appellant, Tevin Mantez Harris, of
second degree murder and possession of a firearm with the intent to go armed, and the
trial court sentenced him to concurrent sentences of twenty-two years to be served at one
hundred percent and eleven months, twenty-nine days, respectively. On appeal, the
Appellant contends that the trial court erred by allowing witnesses to testify about his
being Muslim and his “viewpoint” toward Christianity and that his twenty-two-year
sentence is excessive because the trial court misapplied an enhancement factor. Based
upon the oral arguments, the record, and the parties’ briefs, we affirm the judgments of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.
James Harwell Todd (on appeal), Nashville, Tennessee, and Chase T. Smith (at trial),
Clarksville, Tennessee, for the appellant, Tevin Mantez Harris.
Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Jason White,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
In November 2013, the Robertson County Grand Jury indicted the Appellant for
the first degree premeditated murder of Thomas Smith, possession of a firearm with the
1
Judge Ayers did not preside over the Appellant’s trial or sentencing hearing.
intent to go armed, and resisting arrest. Although the Appellant does not contest the
sufficiency of the evidence, we will summarize the proof presented at trial in order to
address the issues raised.
Twenty-two-year-old Veronica Miles testified that she grew up with the victim,
who was a few years older than she, and that they were “close.” Miles knew the
Appellant and knew the Appellant and the victim had an ongoing disagreement about
their religions. A couple of weeks before the victim’s death, Miles arranged for the
Appellant and the victim to meet because the victim “didn’t want to have any more beef”
with the Appellant. On the day of the meeting, the Appellant and Miles drove to pick up
the victim. The victim and his friend, Montavious Ellis, got into the car, and the
Appellant and the victim started talking. Miles stated that the Appellant “got loud” and
that the victim told the Appellant, “I won’t disrespect you [anymore].” The victim and
Ellis got out of the car, and the Appellant told Miles that he was going to kill the victim if
the victim said “[f***] Allah” again. Miles said that she did not see the victim or Ellis
with a gun that day but that the Appellant had a chrome gun on his lap. The Appellant
and the victim did not shake hands after the meeting.
Miles testified that on Sunday, October 13, 2013, she was at Vicci Dowlen’s house
on Leota Street. Other people, including the Appellant and the victim, also were there
because Dowlen cooked food on Sundays. The Appellant “started getting loud” and told
the victim that “you keep disrespecting me, I told you to stop disrespecting me, but you
are still doing it.” The victim tried to leave through the kitchen but the Appellant blocked
him, and they continued arguing back and forth. They went into the living room, and
Miles was standing by a wall in the room. The Appellant had a gun on his left hip, so the
victim lifted up his shirt to show he did not have a gun in his waistband. Miles said that
the Appellant and the victim pushed each other and that the Appellant started “jumping
up and down.” The Appellant then “hopped into a circle” and “was ranting . . . like he
done got possessed or something[.]” By the time the Appellant turned around, “he had
his gun out and he shot [the victim] in the stomach.”
Miles testified that the victim and the Appellant were two to three feet apart at the
time of the shooting and that the Appellant shot the victim with the same chrome gun she
had seen on the day of the meeting. The victim fell backward, and the Appellant said,
“Die, bitch, die.” Miles stated that the Appellant was smiling after the shooting, that he
ran out of the house, and that he left in a car.
On cross-examination, Miles testified that the Appellant never threatened the
victim “to his face.” She acknowledged that the Appellant and the victim were “in each
other’s faces” and were pushing each other prior to the shooting but denied that the
victim “charge[d] at” the Appellant. She also acknowledged that a man named Jeremy
-2-
Hudson tried to stop the argument. The victim pushed Hudson out of the way and then
pushed the Appellant more than one time. The Appellant turned around, pulled out the
chrome gun, and shot the victim.
Montavious Ellis testified that he and the victim were cousins and grew up
together. At the time of the shooting, Ellis was twenty-four years old, and the Appellant
was twenty-seven. Ellis had known the Appellant for “quite a long time,” and they were
friends “over the years.” Ellis stated that he was present for the meeting between the
Appellant and the victim a couple weeks prior to the shooting and that the victim “was
trying to just get rid of the problem that was going on.” Ellis described the problem as
“[s]omething about a Muslim Allah.” The victim did not have a gun during the meeting,
but the Appellant had “[k]ind of like a .9” on his hip. Ellis said that the Appellant and the
victim “came to an agreement” and shook hands after the meeting and that he thought
their problem was over.
Ellis testified that on the day of the shooting, he and the victim went to Vicci
Dowlen’s house because Dowlen sold plates of food on Sundays. A lot of people,
including “little kids,” were at the house when they arrived, and a man was applying
tattoos for money. Ellis said that he and the victim were talking when the Appellant
came into the house and that the Appellant’s gun was on the Appellant’s hip. The
Appellant saw a man named Michael Nelson getting a tattoo of some crosses on his chest,
and the Appellant told Nelson, “God was a Muslim, God was brainwashed.” Nelson
seemed to know something was about to happen, so he picked up his child and walked
away from the Appellant.
Ellis testified that the Appellant went toward the victim. The victim saw the gun
on the Appellant’s hip, lifted his shirt, and told the Appellant, “I don’t have a gun. If
anything, let’s fight.” The Appellant walked up to the victim and pushed him, and the
victim pushed the Appellant back “to protect himself.” Ellis said the Appellant “[spun]
around there, his Muslim dance or whatever” and pulled out his gun. The victim
“raise[d] his hands up,” and the Appellant fired one or two shots at the victim. The
victim fell, and the Appellant said, “Look at you now, die, bitch.” The Appellant walked
slowly out of the house, lit a cigarette, got into a car, and pulled away.
On cross-examination, Ellis denied that Jeremy Hudson tried to intervene in the
argument before the shooting. He also denied that the victim pushed Hudson away and
that the victim “charged back” toward the Appellant. Ellis acknowledged that he was a
convicted felon and on probation at the time of the Appellant’s trial. He said he had not
entered into any agreement with the State in exchange for his testimony.
-3-
Jeremy Hudson testified that the victim was his best friend. Hudson “kind of grew
up with [the Appellant] too,” and they also were friends. On October 13, 2013, Hudson
was at Vicci Dowlen’s house. The victim and Montavious Ellis arrived after Hudson,
and the Appellant arrived after the victim and Ellis. Hudson said the Appellant “come in
and got to [whooping] and hollering about religion or whatever.” Hudson, who was
getting a tattoo in the dining room, heard the Appellant and the victim arguing in the
living room. Hudson said he heard “[s]omething about - anybody don’t like [Allah], I’m
going to smack them[.]” About two minutes later, Hudson heard a gunshot.
Hudson testified that after the shooting, he saw the Appellant holding a gun and
walking out of the house. The victim crawled into the dining room, and Hudson and
some other people put him into a car and drove him to a hospital. However, the victim
died in Hudson’s arms before they arrived. Hudson never saw the victim with a gun.
On cross-examination, Hudson acknowledged that he had known the victim to
carry a gun and to be a member of the Crips gang. He denied getting involved in the
argument on October 13, trying to “break up” the argument, or pushing the victim away
from the Appellant. He acknowledged telling the police that he heard two gunshots. On
redirect-examination, though, Hudson testified that he remembered hearing only one
gunshot.
Thirty-nine-year-old Vicci Dowlen testified that she grew up around the victim’s
mother and that she watched the victim grow up. Dowlen also knew the Appellant when
he was a child, but she was not around him as much as the victim. In 2013, Dowlen
cooked dinner and sold plates of food at her home every other Sunday. Everyone from
the neighborhood was welcome, and the victim and Montavious Ellis usually came to buy
plates.
Dowlen testified that on October 13, 2013, she cooked Sunday dinner. She also
had a man at her house applying tattoos, which was unusual. Thirteen or fourteen people,
including children, came to her home, and the victim and Ellis were there. Everyone was
getting along, and some people were drinking alcohol. Michael Nelson had just gotten a
tattoo of a cross on his chest, and Dowlen sat in the tattoo chair to get a tattoo on her
neck. Dowlen heard the Appellant come into the house and heard him tell Nelson,
“[F***] that cross.” Nelson told the Appellant that he “didn’t want to hear that.”
Dowlen said that the victim “stepped in” and that she heard the victim tell the Appellant
that “you are not going to disrespect my Auntie’s house.” The victim was referring to
Dowlen. Dowlen stated that the victim and the Appellant got into a “heated argument”
and that they were “just talking about the cross and the religion and Allah and all that.”
-4-
Dowlen testified that she told the “tattoo man” to stop applying her tattoo and that
she got out of the chair to see what was going on. The Appellant and the victim were
standing by the front door and were two or three feet apart. Dowlen said the Appellant
did “some kind of twirl in the air,” aimed a gun at the victim, and fired one gunshot into
the victim’s chest. The Appellant said “something [about] Allah” and walked out the
door. The victim was still alive and stated, “Cuz, don’t let me die.” Some people put
him into a car and drove him to a hospital.
On cross-examination, Dowlen acknowledged that she did not hear any problems
when the Appellant first arrived and that she did not hear anyone tell him to leave. The
Appellant began arguing with Nelson, and the victim intervened. Jeremy Hudson
grabbed the victim and tried to get him out the door, but the victim pushed Hudson.
Dowlen said she did not see the Appellant block the victim from leaving and
acknowledged that she saw the victim “get into [the Appellant’s] face.”
Dowlen repeatedly denied telling the police that the victim did not believe in God.
Therefore, the trial court allowed defense counsel to read her written statement to the
police to the jury. In the statement, which Dowlen gave on the day of the shooting,
Dowlen said she thought the Appellant and the victim were arguing about religion
because the Appellant was a Muslim and the victim did not believe in God. Dowlen also
told the police that she heard two gunshots. Dowlen acknowledged to the jury that she
had two prior felony convictions.
On redirect examination, Dowlen testified that her felony convictions were for
failure to appear and driving on a revoked license. Moreover, at the time of the
Appellant’s trial, she was on probation for driving under the influence. Regarding the
number of gunshots she heard, Dowlen explained that when the victim fell back from the
gunshot, a painting on the wall hit the stove, “so it sounded like a shot too.”
Kimora Gardner, the victim’s cousin, testified that she had known the Appellant
about one year at the time of the shooting. On October 13, 2013, she was at Dowlen’s
house, and they were getting ready to have a “tattoo party.” During the party, Gardner
left the home for about ten minutes. Gardner passed the Appellant on her way out and
asked him, “[W]hat’s up[?]” The Appellant did not respond. While Gardner was gone,
she received a telephone call from the Appellant. He asked her, “Was I wrong?”
Gardner did not know what he was talking about and asked, “Wrong for what?” The
Appellant told her, “I don’t want Cuz to die. I do care about that.” Gardner returned to
Dowlen’s house, found crime scene tape around it, and went to the hospital. She later
telephoned the Appellant and told him that he had killed the victim. The Appellant told
her that he was sorry and hung up.
-5-
Officer Joe MacLeod and Detective Rickie Morris of the Springfield Police
Department (SPD) testified that they responded to the shooting. Detective Morris went in
the front door of Dowlen’s home and found one shell casing near a couch and one bullet
near an “entertainment area.” Detective Charles Bogle of the SPD testified that the
Appellant was developed as a suspect in the shooting. On October 15, the police
received “a tip” about the Appellant’s location and went to a home on Grace Street.
Detective Bogle looked through a window and saw the Appellant sitting on a couch. The
Appellant stood up and “took off running.” Police officers entered the home, secured the
residence, and “deployed teargas.” Detective Madison Burnett of the SPD testified that
the Appellant came out of the basement and that the police arrested him. Detective
Burnett searched the house and found a Ruger semi-automatic pistol under the couch.
Steve Scott, a special agent forensic scientist with the Tennessee Bureau of
Investigation, testified as an expert in firearms identification that he examined a nine-
millimeter shell casing, a fired nine-millimeter bullet, and a Ruger nine-millimeter semi-
automatic pistol that were recovered as evidence in this case. Based on Agent Scott’s
microscopic examination of the evidence, he concluded that the shell casing had been
fired from the pistol. The bullet may have been fired from the pistol, but Agent Scott
could not say so conclusively. Agent Scott also examined the t-shirt the victim had been
wearing at the time of the shooting. One entry hole was in the shirt’s mid-chest area, and
one exit hole was in the shirt’s lower back. Based on gunshot residue around the entry
hole, Agent Scott concluded that the muzzle of the gun was six to twenty-four inches
from the shirt when the gun was fired.
Dr. Adele Lewis from the Chief Medical Examiner’s Office in Nashville testified
as an expert in forensic pathology that she performed the victim’s autopsy on October 14,
2013. The victim had a gunshot entrance wound a few inches above his belly button and
a gunshot exit wound in his left lower back. The bullet damaged the victim’s mesentery,
a large artery and vein in his pelvis, and a bone in his spine and caused “a great deal” of
internal bleeding. Dr. Lewis acknowledged that the victim could have died within a few
minutes of the shooting. The victim’s blood was positive for small amounts of marijuana
and alcohol. Dr. Lewis concluded that his cause of death was a gunshot wound to the
torso.
At the conclusion of Dr. Lewis’s testimony, the State rested its case. The
Appellant made a motion for a judgment of acquittal as to all three counts, and the trial
court granted his motion as to count three, resisting arrest. The Appellant did not present
any evidence, and the jury convicted him of second degree murder, a Class A felony, as a
lesser-included offense of first degree premeditated murder and as charged of possession
of a firearm with the intent to go armed, a Class A misdemeanor. After a sentencing
-6-
hearing, the trial court sentenced him to concurrent sentences of twenty-two years and
eleven months, twenty-nine days, respectively.
II. Analysis
A. Witness Testimony
The Appellant claims that the trial court erred by allowing Vicci Dowlen,
Montavious Ellis, Veronica Miles, and Jeremy Hudson to testify about his being Muslim
and his viewpoint toward Christianity because the probative value of the evidence was
substantially outweighed by its prejudicial effect. The Appellant concedes that his and
the victim’s ongoing feud about religion was relevant to his motive to shoot the victim
but contends that any testimony about his specific religious beliefs and negative views on
Christianity was not needed in order for the State to prove its case. The State argues that
the trial court did not abuse its discretion by ruling the evidence was admissible. We
agree with the State.
Before trial, the Appellant filed a motion to preclude the State from eliciting any
testimony about his religious beliefs because the testimony was irrelevant. At a hearing
on the motion, Veronica Miles testified about the meeting in the car a couple of weeks
before the shooting. She stated that during the meeting, the Appellant and the victim had
a “discussion/argument” in which the Appellant told the victim “not to disrespect Allah.”
The victim agreed with the Appellant and told the Appellant that “we [are] going to make
it better.” The Appellant had a gun in his hand during the meeting. However, the victim,
who was sitting behind the Appellant, never saw the gun, and the Appellant never
threatened him with it. Miles said that after the meeting, the Appellant told her that he
was going to kill the victim “if [the victim] says [f***] Allah again.”
Miles testified that on October 13, 2013, the Appellant and the victim were at
Dowlen’s house and began yelling about “[t]heir religion.” The Appellant told the
victim, “I done told you, I done told you, stop disrespecting Allah.” The victim told the
Appellant that he “didn’t care about Allah, [f***] Allah.” The Appellant and the victim
started pushing each other, and the Appellant started jumping up and down. The
Appellant turned around in a circle and shot the victim.
On cross-examination, Miles acknowledged that the victim did not believe in God.
She also acknowledged that he “got in [the victim’s] face and said F Allah again” prior to
the shooting.
Montavious Ellis testified that a few weeks before the shooting, he and the victim
were walking on Blair Street when the Appellant and Veronica Miles pulled up in a white
-7-
car. The victim “wanted to quash” his dispute with the Appellant, so the victim and Ellis
got into the car. The Appellant and the victim talked for ten or fifteen minutes, and the
Appellant did not say anything “bad” to the victim. Ellis said that the Appellant and the
victim shook hands and that Ellis thought “that was the end of it.”
Ellis testified that on October 13, 2013, the Appellant came into Dowlen’s house
and saw Michael Nelson with two crosses tattooed on his chest. Ellis said the Appellant
told Nelson that “God was a Muslim and he needed to take it off of him. God was
brainwashed and all type of stuff like that.” The Appellant then started an argument with
the victim. The Appellant “got in [the victim’s] face,” and the victim pushed the
Appellant away. Ellis stated that the victim pushed the Appellant again and that the
Appellant “jumped in the air and did some kind of spin move or whatever you call it, I
don’t know, Allah this and shot [the victim] twice[.]” On cross-examination, Ellis
testified that the victim was “a firm believer in God” and went to church whenever he got
a chance.
Jeremy Hudson testified that on October 13, 2013, he heard the Appellant and the
victim arguing in Dowlen’s living room and that he thought the argument was about
“religion, something about Allah and Jesus Christ or whatever. . . . [The victim] was on
Jesus side, and [the Appellant] was on Allah side.” Hudson heard a gunshot, the victim
crawled into the dining room, and the victim said, “Cuz, help me.” On cross-
examination, Hudson denied that the victim did not believe in God. He acknowledged
that the victim did not attend church but said that “you don’t have to go to church to
believe in God.”
Vicci Dowlen testified that on the night of the shooting, Michael Nelson got a
tattoo, and the Appellant “made his way” to Nelson. Nelson and the Appellant began
“talking about the cross that [Nelson] had just got,” and the Appellant told Nelson, “F
that cross.” Dowlen said that the victim “started taking up for Nelson” and that the
Appellant and the victim got into an argument in the living room about “[t]he cross, their
religions, Christ.” The argument escalated, and Dowlen started walking toward the living
room to see what was going on. She said the Appellant jumped into the air, said
“something Allah,” and shot the victim one time. After the shooting, the Appellant again
said “something Allah” and got into a car.
On cross-examination, Dowlen testified that she did not see the Appellant and the
victim push each other. However, she acknowledged that they were “in each other’s
face.”
At the conclusion of the hearing, defense counsel argued that the probative value
of the “Muslim [v]ersus Christianity thing” was substantially outweighed by its
-8-
prejudicial effect and that the State could still show the Appellant’s motive for the killing
by having the witnesses testify that the Appellant and the victim “were in an argument
over religious beliefs.” The State acknowledged that the Appellant’s and the victim’s
argument was “over basically religion.” However, the State asserted that preventing the
witnesses from testifying about the Appellant’s and the victim’s specific statements to
each other did not give the jury a “fair picture” of what happened. The State noted that
the Appellant told Veronica Miles a couple of weeks before the shooting that he was
going to shoot the victim if the victim disrespected Allah again, which showed the
Appellant’s intent to shoot the victim on October 13. The trial court agreed with the
State that the evidence was relevant. The trial court also found that the probative value of
the testimony was highly relevant to the Appellant’s intent to kill the victim and was not
substantially outweighed by the danger of unfair prejudice. At trial, Dowlen, Ellis, Miles,
and Hudson testified about the specific statements the Appellant and the victim made to
each other regarding their religious views.
Generally, “questions concerning the admissibility of evidence rest within the
sound discretion of the trial court, and this [c]ourt will not interfere in the absence of
abuse appearing on the face of the record.” State v. Pylant, 263 S.W.3d 854, 870 (Tenn.
2008). The trial court’s discretion in determining the admissibility of evidence is
generally circumscribed by the Tennessee Rules of Evidence. Tennessee Rule of
Evidence 402 provides that “[a]ll relevant evidence is admissible except as [otherwise]
provided. . . . Evidence which is not relevant is not admissible.” “‘Relevant evidence’
means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401; see also State v. Kennedy, 7
S.W.3d 58, 68 (Tenn. Crim. App. 1999). However, even relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403.
Turning to the instant case, the witnesses’ testimony established that the dispute
between the Appellant and the victim was much more than a simple disagreement over
their religious beliefs. Instead, their testimony showed that the two men were in an
ongoing feud in which the Appellant thought the victim was disrespecting his being
Muslim and Allah. Moreover, their feud had escalated to the point where the Appellant
told Veronica Miles a couple of weeks before the victim’s death that he was going to kill
the victim if the victim said “f*** Allah” again. The victim did just that on October 13,
2013. Therefore, the evidence was highly relevant to the Appellant’s motive and intent to
kill the victim.
-9-
Moreover, we agree with the trial court that the probative value of the evidence
was not substantially outweighed by its prejudicial effect. In fact, the evidence may have
been helpful to the Appellant. Through the witnesses, the State established that the
Appellant was very passionate about his Muslim beliefs and that the victim was well-
aware of the Appellant’s passion. The testimony also established that the victim knew
the Appellant was upset with him for disrespecting the Appellant’s religion and that the
victim wanted to meet with the Appellant to resolve their disagreement. During the
meeting, the victim told the Appellant that he was going to stop disrespecting Allah and
make his relationship with the Appellant “better.” Despite the victim’s assurances, the
victim again said “f*** Allah” to the Appellant just before the shooting. Ellis testified
that the Appellant told her a couple of weeks before the shooting that he was going to kill
the victim if the victim said “f*** Allah” again. While the Appellant’s declaration of an
intent to kill the victim, his use of a deadly weapon on the unarmed victim, and his
calmness immediately after the crime were factors that demonstrated premeditation, the
jury chose to convict him of second degree murder as a lesser-included offense of first
degree premeditation murder. See State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000).
Therefore, we conclude that the trial court properly determined that the probative value of
the evidence was not substantially outweighed by its prejudicial effect.
We note that in support of his argument that the testimony was highly prejudicial,
the Appellant refers to jury voir dire during which the following colloquy occurred
between defense counsel and one of the prospective jurors, who was a church pastor:
[DEFENSE COUNSEL]: [Prospective juror], are you
familiar with practicing Muslims?
JUROR: Yes.
[DEFENSE COUNSEL]: Okay, do you ever preach
against Muslims?
JUROR: Have, yes.
[DEFENSE COUNSEL]: So you have preached
against them. So, if it comes out in the proof that [the
Appellant] is a Muslim, then you would hold that against him,
right? Because I mean, you have preached against him?
JUROR: Not against him as an individual. I
disagree with the theology behind it, but I do not judge them
individually.
- 10 -
[DEFENSE COUNSEL]: But would that keep you
from being fair and impartial?
JUROR: No.
The prospective juror stated that he had preached against Muslims, but the
prospective juror was not a member of the jury. Furthermore, although the other
prospective jurors in the courtroom heard the exchange, the prosecutor and defense
counsel questioned all of them about whether they could be fair and impartial to the
Appellant’s religion. None of the prospective jurors indicated that they had any bias
toward Muslims. Accordingly, we conclude that the Appellant is not entitled to relief.
B. Excessive Sentence
The Appellant claims that his twenty-two-year sentence is excessive because the
trial court misapplied an enhancement factor. The State argues that the trial court
properly applied the factor and that, in any event, misapplication of the factor does not
warrant relief. We agree with the State.
At the sentencing hearing, the State introduced the Appellant’s presentence report
into evidence and had two witnesses testify: the mother of the victim’s girlfriend and the
victim’s mother. Both of the witnesses testified that the victim was a loving and attentive
father to his two children, who were one and three years old at the time of his death. The
Appellant gave a statement in which he apologized to the victim’s family.
At the conclusion of the hearing, the trial court noted that second degree murder
was a Class A felony and that the Appellant was facing a sentence of fifteen to twenty-
five years as a Range I, standard offender. The court found that the following
enhancement factors applied to the Appellant’s conviction of second degree murder: (9),
that the defendant possessed or employed a firearm during the commission of the offense;
(10), that “[t]he defendant had no hesitation about committing a crime when the risk to
human life was high”; and 13(F), that at the time the felony was committed, the
defendant was on some form of judicially ordered release. See Tenn. Code Ann. § 40-35-
114(9), (10), (13)(F). The trial court found that no mitigating factors applied. The trial
court ordered that the Appellant serve concurrent sentences of twenty-two years for
second degree murder2 and eleven months, twenty-nine days for possession of a firearm
with the intent to go armed.
2
Pursuant to statute, the Appellant was required to serve one hundred percent of the sentence for
second degree murder in confinement. See Tenn. Code Ann. § 40-35-501(i)(1), (2)(B).
- 11 -
“[S]entences imposed by the trial court within the appropriate statutory range are
to be reviewed under an abuse of discretion standard with a ‘presumption of
reasonableness.’” State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). In sentencing a
defendant, the trial court shall consider the following factors: (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 enhancement and mitigating factors; (6) any statistical information
provided by the administrative office of the courts as to sentencing practices for similar
offenses in Tennessee; (7) any statement by the appellant in his own behalf; and (8) the
potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;
see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on an
appellant to demonstrate the impropriety of the sentence. See Tenn. Code Ann. § 40-35-
401, Sentencing Comm’n Cmts.
On appeal, the Appellant contests the trial court’s application of enhancement
factor (10), that “[t]he defendant had no hesitation about committing a crime when the
risk to human life was high.” He contends that while the State’s proof showed that
multiple people were in Vicci Dowlen’s house at the time of the shooting, the proof did
not show that any person other than the victim was in danger. In support of his argument,
he notes that he shot the victim only one time and at close range. He further contends
that because only two enhancement factors were applicable, the trial court’s increasing
his punishment from the minimum fifteen years to twenty-two years was excessive.
Enhancement factor (10) is inherent in every homicide in relation to the named
victim; however, “the trial court may consider this factor when the defendant endangers
the lives of people other than the victim.” State v. Kelley, 34 S.W.3d 471, 480 (Tenn.
Crim. App. 2000). The trial court found that enhancement factor (10) applied in this case
because the shooting occurred “in a room full of people.”
Dowlen and Miles testified that the shooting occurred in the living room, and
Miles said she was standing by a wall in the room. Therefore, while the room may not
have been “full of people,” at least one person was in the room with the Appellant and the
victim at the time of the shooting. Moreover, the bullet traveled completely through the
victim. Accordingly, we cannot say that the trial court misapplied enhancement factor
(10).
In any event, as our supreme court has explained, a trial court’s “misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed. . . . So
long as there are other reasons consistent with the purposes and principles of sentencing,
- 12 -
as provided by statute, a sentence imposed by the trial court within the appropriate range
should be upheld.” Bise, 380 S.W.3d at 706. The Appellant does not contest the
application of two enhancement factors. Therefore, we conclude that the trial court did
not abuse its discretion in determining the length of the Appellant’s sentence.
III. Conclusion
Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgments of the trial court.
_________________________________
NORMA MCGEE OGLE, JUDGE
- 13 -