        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs March 2, 2010

                    STATE OF TENNESSEE v. MARK HINES

                   Appeal from the Criminal Court for Shelby County
                      No. 08-01693     W. Otis Higgs, Jr., Judge


               No. W2009-00450-CCA-R3-CD - Filed October 27, 2010


The Defendant, Mark Hines, was found guilty by a Shelby County Criminal Court jury of
criminal attempt to commit second degree murder. See T.C.A. §§ 39-13-210(a)(1), 39-12-
101(a)(2), -(3) (2006). He was sentenced as a Range I, standard offender to ten years’
confinement in the Department of Correction. On appeal, he contends that (1) the evidence
is insufficient to support his conviction, (2) the trial court erred by permitting the State to
introduce prejudicial demonstrative evidence to the jury, (3) the trial court erred by admitting
testimonial hearsay into evidence, (4) the trial court erred by giving incorrect and incomplete
jury instructions, and (5) he was improperly sentenced. We affirm the conviction, but we
reverse the sentence and remand the case for resentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
                   Part and Reversed in Part; Case Remanded.

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Robert Wilson Jones, District Public Defender; and Phyllis L. Aluko (on appeal) and
Timothy J. Albers (at trial), Assistant Public Defenders, for the appellant, Mark Hines.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; William L. Gibbons, District Attorney General; and Hamilton Douglas
Carriker and Kate Edmands, Assistant District Attorneys General, for the appellee, State of
Tennessee.
                                         OPINION

       This case relates to an altercation in which the Defendant shot Cornell Richardson five
times. The victim testified that he and the Defendant were close friends. He said they often
spent time together at their respective homes. He said he frequently loaned his car to the
Defendant. He said the Defendant damaged his car but agreed to pay for repairs at E & P
Body Shop. The victim said he received a telephone call from the body shop one week after
the accident, informing him that his car was repaired. He stated that his car remained at the
body shop because the Defendant was unable to pay for the repairs at the time but that he
believed the Defendant would eventually pay for the repairs. He said he continued to spend
time with the Defendant after the accident because he “had no reason not to be on good terms
with him because . . . he said he was going to pay for it.”

        Mr. Richardson testified that he called the Defendant a few weeks after the car
accident and arranged to stop by the Defendant’s house in order to avoid shopping with his
girlfriend and his mother. He said that he walked to the Defendant’s house just as the sun
was going down and that the Defendant invited him inside. He said the Defendant accused
him of not believing that the Defendant would pay for the car repairs. He stated the
argument escalated when the Defendant began yelling and pushed him. He said that he
pushed the Defendant back and that the Defendant called his brother, Bronco, and told
Bronco that he and Mr. Richardson were fighting. Mr. Richardson said he left the
Defendant’s house to avoid a fight. He stated he was unarmed and did not own a gun. He
said that he met Bronco and two other men in the driveway and that Bronco urged them to
stop fighting because they were best friends. Mr. Richardson said his friend “J ”, Bronco,
Wesley Faulkner, an unidentified man, and the Defendant were present at this time. He
stated that the Defendant tried to punch him but missed and that he then hit the Defendant.
He said that the Defendant fell into him, causing the two men to fall, and that he hit the
Defendant in the chest. He said Bronco broke up the fight and the Defendant went into his
house. He stated that he attempted to walk away but that he heard the Defendant leave his
house and say, “I’m fixing to kill this b****.” He said the Defendant shot him five times
with a revolver, including shots to his arm, shoulder, and once in his back as he ran away.

        Mr. Richardson testified that he ran next door and called his girlfriend, his son, and
9-1-1. He said a police officer and an ambulance arrived minutes later. He said he stayed
in the hospital for more than a week with a collapsed lung, a broken rib, and bullets
remaining in his body. He stated that a police officer, Detective Robert Wilkie, visited him
at the hospital and asked him to look at photographs and identify anyone he recognized. He
said he recognized the Defendant in one of the photographs, circled the Defendant, and
wrote, “this is who shot me.”



                                             -2-
        On cross-examination, Mr. Richardson testified that his car had been damaged and
repaired shortly before the Defendant damaged it. He said that the Defendant drove the car
the first time it was damaged and that they both received a settlement for the wreck. He said
the Defendant agreed to pay for the repairs to his car after the second wreck. He said not
having a car was not a problem because his girlfriend drove him.

        Mr. Richardson testified that on the night of the shooting, he went to the Defendant’s
house after calling him on the telephone. He said he walked up to the open front door and
could see the Defendant and his son through the closed screen door. He said he was unarmed
and did not own a gun. He stated he thought the initial argument would “blow over just like
any other argument.” He said the Defendant pushed him and he pushed back. He said he
walked outside after the Defendant called Bronco. Mr. Richardson stated that he did not
leave at that time because Bronco and two other men arrived and because “it wasn’t supposed
to get this far . . . .” He said that the Defendant swung at him and missed and that he then
hit the Defendant. He would not agree that he pulled a gun on the Defendant at this point or
that he hit the Defendant with a gun. He said the Defendant shot him as he ran away. He
stated that when the police arrived, he told them the Defendant shot him.

       Mr. Richardson testified that on December 7, 2007, a few weeks after the shooting,
he was arrested because his ex-wife accused him of pointing a gun at her. He stated that he
was stopped by authorities and a gun was found in the car, but that the gun was not his.

      On redirect examination, Mr. Richardson testified that he was not convicted for the
December 7, 2007, incident. He said that his wife asked him to pick up their children that
evening but when he arrived with his girlfriend, Monica Jones, his ex-wife “blew up” and
had him arrested. He stated the case was dismissed because his ex-wife recanted her
accusation.

        Wesley Terrell Faulkner testified that he knew both the Defendant and the victim. He
stated that he knew Julius “Bronco” Smith and that he and Bronco were close friends. He
said that on the night of the shooting, he and Bronco were playing video games at home when
the Defendant called. He said all the men at Bronco’s house went to the Defendant’s house,
which was only a few minutes away. He said the Defendant and victim were wrestling
outside when they arrived. He stated he did not see the victim with a weapon. He said the
Defendant went into his house and returned, stating, “I’m fixing to kill this mother f*****.”
He said he heard five shots fired as he ran away.

       On cross-examination, Mr. Faulkner testified that he did not know what was said
during the phone call between Bronco and the Defendant. He stated that when they arrived
at the Defendant’s house he stood back and did not involve himself in the altercation. He

                                             -3-
said that he could not see a gun in the Defendant’s hand but that he knew the Defendant had
a gun when he came from his house. Mr. Faulkner stated he heard the gunshots and saw the
Defendant shooting as he ran away. He said he ran away and did not return to the scene. He
said he did not contact the police to tell them he was a witness until months after the
shooting.

       On redirect examination, Mr. Faulkner testified that he did not speak with police on
the night of the shooting because he was terrified. He said he eventually contacted the police
because it was “the right thing to do. . . .” He said he was closer with the Defendant’s family
than with the victim.

        Monica Jones, the victim’s girlfriend, testified that the Defendant and the victim were
close friends who spent time together daily. She said she was with the victim when he
learned that his car was damaged. She said the Defendant and the victim had no hard
feelings over the damage because the Defendant said he would pay to fix the car. She stated
the Defendant and victim continued to be friends and spend time together after the car
accident. She said she never heard the victim complain about the Defendant’s failure to pay
for the repairs.

       Ms. Jones testified that on November 15, 2007, she and the victim’s mother went
shopping and that the victim went to spend time with the Defendant. She said the next time
she saw the victim, he was in the hospital “in very serious condition.”

       On cross-examination, Ms. Jones testified that she was not present during the
shooting. She said she did not see the victim until after the shooting when he was in the
hospital.

       Memphis Police Officer Donovan Lee Tabler testified that on November 15, 2007,
he responded to a shots-fired call at the Defendant’s home. He said that he arrived when it
was dark, sometime between 7:00 p.m. and 8:30 p.m. He stated that the victim was sitting
on the neighbor’s porch and said the Defendant shot him. Officer Tabler said he saw blood
coming from the victim’s chest and around the area where the victim sat.

        Officer Tabler testified that he spoke with a friend of the Defendant at the scene. He
asked the friend to call the Defendant. He said he spoke with the Defendant, who was
cooperative over the phone. He said he identified the Defendant as the speaker on the other
end by asking him his name and date of birth and obtaining this information. He stated that
after “I got information on him on the telephone, date of birth, I asked him what happened.”
He was told by the Defendant that he and his friend “got into it” and that the situation “got
out of hand.”

                                              -4-
        On cross-examination, Officer Tabler testified that he was the first officer on the
scene. He said he made sure that the victim was all right and then secured the crime scene
around the porch where he found the victim. He said the only person in that area was the
victim.

       Memphis Police Officer James K. Smith testified that he was a crime scene
investigator responsible for collection, preservation, and documentation of evidence. He said
that on November 15, 2007, he was dispatched to the Defendant’s home. He said that it was
dark when he arrived, between 9:00 and 10:00 p.m., and that neither the victim nor the
Defendant was present. He said he did not find any shell casings or a gun. He said the lack
of casings indicated that the weapon used was a revolver or that the casings were retrieved.

       Memphis Police Officer Robert Wilkie testified that he was an investigator with the
felony assault unit. He stated that he created a photographic lineup containing a picture of
the Defendant and other individuals and that he brought this lineup to the hospital to show
the victim. He stated that before showing the lineup to the victim, the victim told him the
Defendant shot him. He said the victim identified the Defendant in the lineup. He said the
victim was hesitant to prosecute his friend.

        Officer Wilkie testified that the victim reported going to the Defendant’s home on the
night of the shooting. He said the victim stated that he refused the Defendant’s request to
borrow five dollars because the Defendant had not paid for the car repairs. Officer Wilkie
stated the victim told him that a fight ensued, that the Defendant called his brother, and that
the fight moved outdoors. He said the victim told him the Defendant went inside; returned
with a gun; stated, “I’m going to shoot this bitch”; and shot the victim.

      Officer Wilkie testified that the victim reported that “Bronco” and “Wesley”
witnessed the shooting. However, the victim was unable to provide their last names or
addresses. Officer Wilkie said he was unable to contact the witnesses without more
information.

       The Defendant testified that he and the victim were friends and often spent time
together at each other’s homes. He stated that he damaged the victim’s car and that he
agreed to pay E & P Body Shop to repair the car. He said he did not pay the body shop for
the repairs because the car was not ready and because the victim wanted his car repaired
properly. He said that the victim grew impatient about the status of his car but that he and
the victim never argued about the repairs.

        The Defendant testified that on the night of the shooting, he and his son were asleep
in the living room. He said he put his son to bed at 8:00 p.m each night because it enabled

                                              -5-
his son to perform better in school. He said the victim entered his home through an unlocked
and open side door and did not call before he arrived. He said the door was open because
he called his brother earlier and expected his brother to arrive soon. He stated the victim
began kicking him in the face as he slept. He said that he ran out of the house and that the
victim chased him into the front yard and continued to beat him. He said he was not able to
defend himself.

       The Defendant testified that he did not have a revolver at his house and that he did not
enter his house after the victim began beating him outside. He said that the victim took out
a revolver when Bronco attempted to break up the fight and that the victim beat him with the
gun and dropped it during the fight. He said that he was on the ground when he grabbed the
victim’s gun and shot the victim in self-defense. He said he feared for his life because the
victim “just snapped” and was “in a rage.”

       The Defendant testified that he ran away after he shot the victim. He stated that an
officer called him on the telephone and asked him what happened. He said he replied that
he and the victim fought and “things got out of hand. . . .” He said he turned himself in to
the police four or five days after the shooting.

       The Defendant testified that the victim often carried guns. He stated the victim used
guns to threaten people.

        On cross-examination, the Defendant testified that he fell asleep while waiting for his
brother. He said that his son fell asleep around 8:00 p.m and that he fell asleep around 9:00
p.m. When reminded that officers previously testified that they investigated the scene around
9:00 p.m., he maintained that he did not fall asleep around dusk. After being told that 9-1-1
calls from the victim were logged at 6:35 p.m., the Defendant said he might have fallen
asleep earlier.

        The Defendant testified that he did not know the victim was coming to his home and
that he did not let the victim into his home on the night of the shooting. He said he slept for
twenty or thirty minutes before he was attacked. He stated he awoke when the victim kicked
him in the head. The Defendant testified that the fight continued outside and that the victim
hit him in the head with a gun. He said that the victim dropped the gun and that he grabbed
it. He stated he did not say anything before shooting the victim. He agreed that he shot the
victim once in the back. He said that he was terrified of the victim and agreed that he
remained terrified as the victim ran away.

       The Defendant testified that he ran away and that he left the gun at the scene. He said
he hid because he was scared. He said he received a phone call from a police officer while

                                              -6-
he hid. He agreed that he told the officer things “got out of hand and we had been in a fight.”
He could not remember if he told the officer that the victim pulled the gun on him.

       The Defendant testified that he and the victim never argued about the car and that it
made no sense for the victim to attack him that night because the victim was not upset about
the car. He said that during the fight, he was kicked and beaten in the head with a gun. He
said he did not seek medical treatment for his injuries.

      The Defendant testified that he did not own a gun because he had “a terrible record.”
He admitted that he was previously convicted of theft of property over $500 and that felons
were not allowed to own guns.

      The jury found the Defendant guilty of criminal attempt to commit second degree
murder. The trial court sentenced the Defendant to ten years in the Department of
Correction.

                                               I

        The Defendant contends that the evidence is 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 criminal attempt
to commit second degree murder. 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).

       As pertinent to this appeal,

              (a) Second degree murder is:
                     (1) A knowing killing of another.

T.C.A. § 39-13-210(a)(1) (2006). With regard to criminal attempt:



                                              -7-
              (a) A person commits criminal attempt who, acting with the kind
              of culpability otherwise required for the offense:

              ...

              (2) Acts with intent to cause a result that is an element of the
              offense, and believes the conduct will cause the result without
              further conduct on the person’s part; or

              (3) Acts with intent to complete a course of action or cause a
              result that would constitute the offense, under the circumstances
              surrounding the conduct as the person believes them to be, and
              the conduct constitutes a substantial step toward the commission
              of the offense.

Id. § 39-12-101(a)(2)-(3) (2006). 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).

       Taken in the light most favorable to the State, the victim testified that the Defendant
invited him into his home and that a fight began. The fight moved outside, and the
Defendant returned inside. The Defendant emerged with a revolver, stated he would kill the
victim, and shot the unarmed victim five times. Mr. Faulkner testified that he saw the
Defendant and victim wrestling. The Defendant went into his house, returned, and stated that
he would kill the victim. Mr. Faulkner heard five gunshots and saw the Defendant shoot the
victim as Mr. Faulkner ran away. He did not see the victim with a weapon. Officer Tabler
spoke with the Defendant on the telephone shortly after the shooting. The Defendant told
Officer Tabler that he and the victim fought and that things “got out of hand” but did not tell
him that the victim pulled a gun on the Defendant.

      We conclude that a rational trier of fact could have found the elements of criminal
attempt to commit second degree murder 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 when it allowed the victim to lift his
shirt and show the jury his bullet wound scars. He contends the prejudicial value of this
evidence substantially outweighed its probative value because the victim already pointed to



                                              -8-
the areas where he was shot. The State contends that admission of this evidence was proper.
We agree with the State.

        At trial, the victim pointed over his clothing to the areas where the Defendant shot
him. The State sought to have the victim lift his shirt and identify the locations of his
wounds. The Defendant objected to the victim showing his scars, arguing that the victim
“already pointed out where they are.” The trial court overruled the objection. The victim
lifted his shirt and pointed to his scars, indicating the order in which he was shot.

        Evidence is relevant if it has “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. However, 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.” Tenn. R. Evid. 403. Prejudicial evidence
is not excluded as a matter of law. State v. Carruthers, 35 S.W.3d 516, 577 (Tenn. 2000)
(citing State v. Gentry, 881 S.W.2d 1, 6 (Tenn. Crim. App. 1993)). The term “undue
prejudice” has been defined as “‘[a]n undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.’” State v. Banks, 564 S.W.2d
947, 951 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Comm’n Notes). The trial
court’s decision to admit or exclude evidence will be overturned on appeal only when there
is an abuse of discretion. See State v. Samuel, 243 S.W.3d 592, 599 (Tenn. Crim. App.
2007).

        Here, the scars corroborated the victim’s testimony that he was shot five times and
that one of the bullets hit him in the back. Thus, this evidence was relevant to illustrate the
victim’s testimony. Additionally, the record does not indicate that the scars were particularly
offensive or likely to suggest a decision on an improper or emotional basis. We conclude
that the probative value of showing the bullet wounds was not substantially outweighed by
the danger of its prejudicial effect. The trial court did not abuse its discretion in allowing this
demonstrative evidence.

                                               III

        The Defendant contends that the trial court violated his Sixth Amendment right of
confrontation by allowing Officer Tabler to testify that an unidentified person called the
Defendant and gave the telephone to Officer Tabler. The Defendant also contends that the
trial court erred by admitting inadmissible hearsay when it allowed Officer Tabler to testify
that the Defendant told him on the telephone that “him and his friend got into it” and that the
situation “got out of hand.” The State contends the Defendant waived the Confrontation
Clause issue by failing to raise it in his motion for a new trial and that the court properly

                                                -9-
allowed the testimony as an admission of a party opponent. We agree with the State that the
trial court properly admitted the evidence.

        As a preliminary matter, we note that the Defendant waived all issues concerning a
violation of the Confrontation Clause by failing to state these grounds in his motion for a new
trial. See T.R.A.P. 3(e). The Defendant asks us to consider this issue in the interest of
justice as plain error. See T.R.A.P. 36(b).

       Our supreme court has adopted the factors developed by this court to be considered

              when deciding whether an error constitutes “plain error” in the
              absence of an objection at trial: “(a) the record must clearly
              establish what occurred in the trial court; (b) a clear and
              unequivocal rule of law must have been breached; (c) a
              substantial right of the accused must have been adversely
              affected; (d) the accused did not waive the issue for tactical
              reasons; and (e) consideration of the error is necessary to do
              substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). The record must establish all five factors before
plain error will be recognized and “complete consideration of all the factors is not necessary
when it is clear from the record that at least one of the factors cannot be established.” Smith,
24 S.W.3d at 283. In order for this court to reverse the judgment of a trial court, the error
must be “of such a great magnitude that it probably changed the outcome of the
[proceedings],” and “recognition should be limited to errors that had an unfair prejudicial
impact which undermined the fundamental fairness of the trial.” Adkisson, 899 S.W.2d at
642.

        With respect to the trial court’s allowing Officer Tabler to testify that an unknown
person called the Defendant and gave him the phone, the Defendant has failed to show that
consideration of this error, if any, is necessary to do substantial justice. The record reflects
that the admission of this testimony did not change the outcome of the proceedings. Officer
Tabler’s testimony regarding the actions of the unidentified person was not essential for the
jury to establish that he spoke with the Defendant on the telephone. Officer Tabler
established the Defendant’s identity by asking for his name and birthday and obtaining this
information from the Defendant. Likewise, the Defendant has failed to show that admitting
this testimony adversely affected a substantial right of his. The Defendant testified that he
spoke with Officer Tabler on the telephone shortly after the shooting, thus removing any



                                              -10-
adverse affect that the officer’s testimony may have had. We hold that the trial court did not
commit plain error on this issue.
       We now turn to the Defendant’s contention that the trial court erred by admitting
inadmissible hearsay. Hearsay is an out-of-court statement offered in court “to prove the
truth of the matter asserted.” However, Tennessee Rule of Evidence 803(1.2), provides

              Hearsay Exceptions.-The following are not excluded by the
              hearsay rule:

              ....

              (1.2) Admission by Party-Opponent.-A statement offered against
              a party that is (A) the party’s own statement in either an
              individual or a representative capacity . . . .

The Defendant’s statements, both written and oral, are admissible under this exception,
subject to Tennessee Rules of Evidence 401 and 403. See State v. Binion, 947 S.W.2d 867,
874 (Tenn. Crim. App. 1996); see also Neil P. Cohen et al., Tennessee Law of Evidence, §
8.06[3][c], at 8-41 (4th ed. 2000).

        Here, the trial court allowed Officer Tabler to testify that he spoke with the Defendant
on the telephone and was told by the Defendant that “him and his friend got into it” and the
situation “got out of hand.” This was the Defendant’s own statement offered against him and
was properly admitted into evidence as an admission of a party opponent. See Tenn. R. Evid.
803(1.2).

                                              IV

       The Defendant contends that the trial court erred by giving incorrect and incomplete
jury instructions because the trial judge (1) failed to follow pattern jury instructions on
second degree murder and then instructed the jury to consider second degree murder and
voluntary manslaughter sequentially, (2) omitted a portion of the self-defense instruction, and
(3) did not give the jury a supplemental instruction defining “passion” and “provocation.”
The State contends that the jury instructions were proper.

        As a preliminary matter, we note that the Defendant waived all issues concerning the
jury instructions by failing to state these grounds in his motion for a new trial. See T.R.A.P.
3(e). The Defendant asks us to consider these issues in the interest of justice as plain error.
See T.R.A.P. 36(b).



                                              -11-
                                                A

        The Defendant contends the trial court erred when it defined the distinction between
second degree murder and voluntary manslaughter after it instructed the jury on voluntary
manslaughter and reckless endangerment, instead of following the pattern jury instructions
and defining the distinction immediately after the second degree murder instruction. See
T.P.I.- Crim. 7.05 (11th ed. 2007). The Defendant contends that this confused the jury and
that the trial court’s instruction for the jury to consider the charges sequentially precluded the
jury from returning a conviction for attempted voluntary manslaughter. The State contends
that the jury instructions were proper and do not amount to plain error. We agree with the
State.

       In pertinent part, the trial court charged the jury:

               When you first retire to consider the verdict, you will first
               inquire, is the Defendant guilty of attempted murder second
               degree as charged in this indictment.

               ...

               If you find the Defendant not guilty of this offense or if you
               have a reasonable doubt of his guilt of this offense, you will
               acquit him thereof and then proceed to inquire whether or not he
               is guilty of attempted voluntary manslaughter. . . .

       Relevant to this case, second degree murder is the unlawful and intentional or
knowing killing of another. See T.C.A. §§ 39-13-201, -210. Voluntary manslaughter is the
unlawful and intentional or knowing killing of another while “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. Thus, the elements for second degree murder must be proved for
voluntary manslaughter as well. The Defendant argues that requiring the jury to acquit on
the greater offense before considering the lesser offense is troublesome when the offenses
charged include second degree murder and voluntary manslaughter.

       Sequential offense instructions have been approved in Tennessee. Our supreme court
has held that

               where a criminal defendant is entitled to jury instructions on
               lesser-included offenses, the trial court shall instruct the jury to
               consider the offenses in order from greatest to least within each

                                               -12-
               count of the indictment and that it shall not proceed to consider
               any lesser-included offense until it has first made a unanimous
               determination that the defendant is not guilty of the
               immediately-preceding greater offense.

State v. Davis, 266 S.W.3d 896, 910 (Tenn. 2008) (stating that significant policy
considerations favor the use of sequential, acquittal-first jury instructions).

       The record reflects that before the jury’s deliberations, it was fully and accurately
instructed concerning the difference between second degree murder and voluntary
manslaughter, although the trial court gave the instructions in a different order than the
pattern jury instructions. This court has upheld sequential jury instructions when the
distinction between second degree murder and voluntary manslaughter was placed after the
voluntary manslaughter charge. See State v. Billie Joe Welch, No. E2005-02293-CCA-R3-
CD, Roane County, slip op. at 14 (Tenn. Crim. App. Sept. 26, 2006), app. denied (Tenn. Feb.
26, 2007). Although the better practice would be to adhere to the approach in the pattern jury
instructions, no clear and unequivocal rule of law was breached, and the Defendant has not
shown that a substantial right was adversely affected. We hold that the Defendant has not
shown plain error.

                                               B

       The Defendant contends the trial court erred when it omitted the portion of the self-
defense instructions that states that a person using deadly force within his home is presumed
to have 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 occurred
outside and the victim did not enter the Defendant’s home forcibly. We hold that the
Defendant has not shown plain error.

        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) (2006) (entitling a defendant to have 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 and is subject to a harmless error analysis.
See State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000).

                                               -13-
        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
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
that reasonable minds could accept as a defense, “the accused is entitled to the appropriate
instructions.” Johnson, 531 S.W.2d at 559.

        A jury instruction must be reviewed in its entirety and read as a whole rather than in
isolation. State v. Leach, 148 S.W.3d 42, 58 (Tenn. 2004). “An instruction should be
considered prejudicially erroneous only if the jury charge, when read as a whole, fails to
fairly submit the legal issues or misleads the jury as to the applicable law.” State v. Faulkner,
154 S.W.3d 48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)).

       The trial court gave self-defense instructions to the jury, including:

              if [the Defendant] acts in self-defense from honest, even though
              mistaken, convictions as to the extent of danger he will not be
              held criminally liable for his action. In determining whether the
              Defendant’s use of force in defending himself was reasonable,
              you may consider not only his use of force but also all the facts
              and circumstances surrounding and leading up to it . . . If from
              all the facts and circumstances you find the Defendant acted in
              self-defense, or you have a reasonable doubt as to whether the
              Defendant acted in self-defense, you must find him not guilty.

        The court also instructed the jury that “If [the victim] had become disarmed or
helpless, or all danger to the Defendant had disappeared, then the Defendant’s right to self-
defense would not justify his further use of force.” However, the trial court did not instruct
the jury on the presumption of reasonableness accompanying the use of deadly force within
a home.




                                              -14-
         The Defendant has failed to show that consideration of this error, if any, is necessary
to do substantial justice. The court’s omission was harmless beyond a reasonable doubt in
the context of the entire instruction and did not affect the outcome of the trial. The evidence
presented by the State included the victim’s testimony about the shooting. The victim’s
account of the events was supported by other witnesses. The Defendant’s testimony was not
corroborated by witnesses or other evidence. Moreover, the Defendant testified that he
grabbed the victim’s gun after it was dropped and admitted that he shot the victim multiple
times, including once in the back as the victim ran away. The Defendant’s testimony
reflected that the victim was disarmed and that the danger to the Defendant had disappeared
at the time he shot the victim in the back. This testimony would permit the jury to determine
that the Defendant’s right to self-defense, if any, did not justify his further use of force when
he shot the Defendant in the back. Therefore, the jury instructions and the record as a whole
do not reflect that this omission likely misled the jury as to the applicable law or that it
changed the outcome of the proceedings. We hold that the Defendant has not shown plain
error.

                                                C

       The Defendant contends the trial court erred by not giving the jury a supplemental
instruction defining “passion” and “provocation.” The State contends that the jury
instructions were proper and do not amount to plain error. We hold that the Defendant has
not shown plain error.

        When giving jury instructions, the trial court has a duty to define statutory terms
containing a technical meaning. State v. Raines, 882 S.W.2d 376, 382-83 (Tenn. Crim. App.
1994). When words and terms are in common use and can be understood by people of
ordinary intelligence, it is not necessary for the court to define or explain the terms unless the
court has obscured their meaning. Id. at 383. This court has held that the word “passion”
is in common use and can be understood by persons of normal intelligence. State v. Mann,
959 S.W.2d 503, 522 (Tenn. Crim. App. 1997).

      The trial court’s instruction regarding the difference between second degree murder
and voluntary manslaughter stated:

               If you find beyond a reasonable doubt that the defendant
               intended to cause the result, the death of a person, and that he
               did so as a result of a state of passion produced by adequate
               provocation sufficient to lead a reasonable person to act in an
               irrational manner, then the killing of another. . . would be
               voluntary manslaughter.

                                              -15-
The trial court was not required to give supplemental instructions regarding the word
passion.See id. Additionally, the trial court’s instruction adequately covered the definition
of provocation, stating that it must be “sufficient to lead a reasonable person to act in an
irrational manner.” As a result, no clear and unequivocal rule of law was breached because
the trial court did not have a duty to give the supplemental instruction and no substantial right
of the Defendant was adversely affected. The Defendant has not shown that he is entitled
to plain error relief.

                                               V

       The Defendant contends that the trial court erred by refusing to allow him to present
evidence at the sentencing hearing and by failing to place its consideration of enhancement
or mitigating factors on the record when determining an appropriate sentence. The State
concedes this was error, and we agree.

       At the sentencing hearing, a 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).

        At the beginning of the sentencing hearing, the Defendant attempted to present the
testimony of four family members and his employer in support of his request for probation
and as proof of mitigating factors. The trial court responded that it would not allow the
witnesses to testify and suggested that defense counsel tell the court what the substance of
the witnesses’ testimony would be. The trial court allowed the State to argue for the
application of enhancement factors. The trial court then imposed a ten-year sentence without
stating on the record which enhancement or mitigating factors it found applicable or how
those factors were evaluated in determining the sentence. We hold that the trial court failed
to follow the statutory sentencing procedure and did not give due consideration to the factors
and principles that are relevant to sentencing under the 1989 Sentencing Act.

        In consideration of the foregoing and the record as a whole, we affirm the conviction
for attempted second degree murder, but we reverse the sentence and remand the case for
resentencing.


                                                   ___________________________________
                                                   JOSEPH M. TIPTON, PRESIDING JUDGE




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