            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                Assigned on Briefs July 26, 2016

             STATE OF TENNESSEE v. ANITA MARIE STRICKLAND

                        Appeal from the Criminal Court for Monroe County
                           No. 14113     Sandra Donaghy, Judge


                  No. E2015-02195-CCA-R3-CD – Filed October 18, 2016

The Defendant, Anita Marie Strickland, pled guilty to second degree murder and was
sentenced to twenty-one years in the Tennessee Department of Correction (“TDOC”).
The sole issue presented for our review is whether the sentence imposed by the trial court
was excessive. Upon review, we affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

C. Richard Hughes, District Public Defender; and Donald Leon Shahan, Jr., Assistant
Public Defender, for the Defendant-Appellant, Anita Marie Strickland.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Derek K. Smith, District Attorney General Pro Tempore, for the Appellee, State of
Tennessee.

                                              OPINION

       The Defendant was originally indicted for the first degree premeditated murder of
her husband, Michael Strickland. On June 5, 2014, the Defendant pled guilty to second
degree murder, with sentencing left to the trial court‟s discretion.1 On October 30, 2015,
the Defendant was sentenced to twenty-one years‟ confinement in the TDOC. This
timely appeal followed.


        1
          The guilty plea hearing transcript is not included in the record on appeal. However, we conclude
that the record is adequate for our review, as most of the relevant testimony in this case was presented at
the sentencing hearing. See State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012) (“[W]hen a record does
not include a transcript of the hearing on a guilty plea, the Court of Criminal Appeals should determine on
a case-by-case basis whether the record is sufficient for a meaningful review[.]”).
       On October 11, 2013, Detective Brian Turpin of the Monroe County Sherriff‟s
Department arrived at 1810 Fairview Road after an officer reported a body lying in the
driveway covered in blood. Upon arriving at the scene, Detective Turpin found the
victim lying in front of the garage with a visible gunshot wound to the neck. Emergency
Medical Services (“EMS”) had already arrived and determined that the victim was
deceased. Detective Turpin found a “trail of what appeared to be blood spatter” spanning
from inside the garage to the location where the body was found. Detective Turpin
believed the victim had been working on a car in the garage, which was suspended in the
air by a lift, at the time he was shot. Only one bullet, lodged in the tire of the suspended
car, was found at the crime scene. Detective Turpin and the investigating officers
determined that the angle of the bullet indicated the gun was fired from inside the garage.
The only weapon near the victim was a pocket knife, which was found closed and
secured in the victim‟s front right pants pocket. Detective Turpin saw the Defendant and
described her as “distraught,” but noted that she did not make any statements regarding
what had happened.

       Agent Brad Nealon with the Tennessee Bureau of Investigation interviewed the
Defendant three separate times over the course of his investigation. The first interview
took place at the Monroe County Sherriff‟s Department on the day of the murder, where
the Defendant denied any involvement in her husband‟s death. The final two interviews
took place a few hours apart on December 10, 2013, at the Defendant‟s house. During
the second interview, the Defendant again denied any involvement in her husband‟s
death. Agent Nealon described the Defendant as “calm and quiet” during the interview.
A few hours later, Agent Nealon returned to the Defendant‟s residence for a third
interview because he had “obtain[ed] information from the Defendant‟s text messag[es]
that indicated some knowledge of a weapon” in the form of “messages back and forth
between her and her brother, Chris Smallin.” The information came directly from Mr.
Smallin, who told Agent Nealon about “his involvement as to providing and then
receiving a gun back from the Defendant [on] the date of the crime.” During the third
interview, the Defendant admitted that she shot her husband. Agent Nealon testified as
follows to the Defendant‟s statement:

       She said that on the day that Michael was shot, that he had went [sic] to the
       chiropractor that morning in Knoxville, came home[,] ate breakfast, went
       up to the garage to work on a vehicle. She went with him. Sat there with
       him for a while . . . I believe she said she sat in a chair.

       ...

       [She] [c]ame back to her home . . . and then Michael came down a little
       after that. He wanted her to come back up to the garage where [ ]he was at.
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       ...

      She told him she would be up there shortly. He went back to the garage.
      She worked on some laundry and then went back to the garage, but prior to
      going to the garage she went to her vehicle and retrieve[d] a handgun from
      the vehicle. She went to the garage, and she was sort of cloudy about what
      had occurred next. She used the term, I believe, it was sort of a blur to her,
      and that maybe she had lost some time during that episode.

      She said that she remembered running down the drive from the garage, and
      she thought she was -- she fired while she was running. She didn‟t recall
      how many times she fired, and advised that she was not initially aware that
      she had hit Michael, but probably in her heart she knew she had. From
      there, she goes to her home, she believes she changed her clothes.

       ...

      Continuing, after she comes to her home she believes she changed her
      clothes; she takes her daughter, Tiffany, to work in Tellico.

       ...

      She took her daughter to work in Tellico; met her brother at the library, and
      gave him the handgun, and returned back home.

      Eventually, she walked up to the garage. She said she actually thought --
      she was afraid that he might be mad at her for shooting. She walked up
      towards the garage and finds his body. And she makes the 911 call
      afterwards.

       Agent Nealon testified that the Defendant never claimed to be a victim of
domestic violence at any point during the investigation. The State also offered testimony
and victim impact statements from the victim‟s family and introduced the presentence
investigation report into evidence, without objection, as well as several photographs from
the crime scene. The presentence investigation report indicated that the Defendant had
no history of criminal conduct or drug use and a steady employment history.

       Following the conclusion of the State‟s witnesses, the Defendant testified and
admitted to killing her husband. The Defendant testified that she and her nineteen-year-
old daughter, who had Down syndrome, were both subjected to verbal and physical abuse
by the victim for years. She testified that the victim told her on multiple occasions that
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he would “burn the house down with [her daughter] in it.” She testified that the marriage
had been falling apart, that both the Defendant and the victim had extramarital affairs,
and that they had also discussed the possibility of divorce in 2012. The Defendant never
reported any abuse to the authorities. The Defendant also confirmed Agent Nealon‟s
testimony that after the Defendant‟s husband was killed, she called her brother, met him
at the library, and gave him the murder weapon. She stated that “I mean, I knew I had
shot at him. I didn‟t know if [the bullet hit him].” The Defendant testified further that,
the morning of the murder, her husband had been physically abusive to her and that in the
afternoon “[h]e had threatened me.” The Defendant was unclear as to the specific
circumstances of the shooting, but denied shooting her husband from inside the garage
and instead testified that her husband was chasing her down the driveway when she shot
him.

       Dr. Kimberly Brown, an expert in the field of forensic psychology, evaluated the
Defendant and found that she suffered from major depressive disorder and post-traumatic
stress disorder. Dr. Brown testified that the Defendant had a significant history of
depression and that the Defendant‟s post-traumatic stress disorder diagnosis was based on
the abuse she had experienced from her husband. Defense counsel offered character
testimony from four additional witnesses, including the Defendant‟s mother. The
witnesses testified that the Defendant was a good mother to her special-needs daughter
and that the Defendant had been a model prisoner during her time in confinement.

       The trial court applied enhancement factor (5) that the Defendant treated, or
allowed the victim to be treated, with exceptional cruelty during the commission of the
offense; (9) that the Defendant possessed or employed a firearm during the commission
of the offense; and (14) that the Defendant abused a position of private trust. See T.C.A.
§ 40-35-114(5), (9), (14). The trial court also applied mitigating factor (8), that the
Defendant was suffering from mental conditions that significantly reduced her culpability
for the offense. See id. § 40-35-113(8). Based on these factors, and considering the
evidence presented at the sentencing hearing, the trial court imposed a sentence of
twenty-one years.

                                      ANALYSIS

       The Defendant contends that her sentence is excessive under the sentencing
considerations set out in Tennessee Code Annotated sections 40-35-103 and 40-35-210.
Specifically, she argues that the trial court erred in applying and weighing certain
enhancement factors. The State responds that the trial court properly imposed a twenty-
one-year sentence. We agree with the State.



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        We review the length and manner of service of a sentence imposed by the trial
court under an abuse of discretion standard with a presumption of reasonableness. State
v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). Moreover, “a trial court‟s misapplication of
an enhancement or mitigating factor does not invalidate the sentence imposed unless the
trial court wholly departed from the 1989 Act, as amended in 2005.” Id. “So long as
there are other reasons consistent with the purposes and principles of sentencing, as
provided by statute, a sentence imposed by the trial court within the appropriate range
should be upheld.” Id. “If, however, the trial court applies inappropriate mitigating
and/or enhancement factors or otherwise fails to follow the Sentencing Act, the
presumption of correctness fails.” State v. Carter, 254 S.W.3d 335, 344-345 (Tenn.
2008).

       Upon imposing a sentence, a trial court must consider the following: (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 (7)
any statement the defendant wishes to make in the defendant‟s own behalf about
sentencing. T.C.A. § 40-35-210(b)(1)-(7). The defendant has the burden of showing the
impropriety of the sentence on appeal. Id. § 40-35-401(d), Sentencing Comm‟n Cmts. In
determining the proper sentence, the trial court must consider the defendant‟s potential
for rehabilitation or treatment. Id. § 40-35-102(3)(C) and 40-35-103(5). In addition, the
court must impose a sentence “no greater than that deserved for the offense committed”
and “the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Id. § 40-35-103(2), (4).

       In this case, there is no dispute that the Defendant was subject to a sentencing
range of fifteen to twenty-five years as a Range I offender, which was required to be
served at 100%. See T.C.A. § 40-35-112(a)(1), -501(i)(2)(B). In determining the
appropriate length of the sentence, the trial court applied three enhancing factors and one
mitigating factor. On appeal, the Defendant does not challenge the trial court‟s
application of enhancement factor (9), but asserts that factors (5) and (14) were
improperly applied. See T.C.A. § 40-35-114(5), (9), (14). The Defendant also claims on
appeal that mitigating factor (2), that she acted under strong provocation, should have
been applied. See T.C.A. § 40-35-113(2). Upon our review, we agree with the
Defendant and conclude that the record does not support the application of enhancement
factors (5) and (14).



                                            -5-
       As an initial matter, the Defendant contends, and the State agrees, that the trial
court erred in its application of enhancement factor (14), that the Defendant abused a
position of private trust, because, due to the terrible condition of the marriage between
the Defendant and the victim, “no such private trust existed at the time of the offense.”
We conclude that the trial court erroneously applied enhancement factor (14), as it was
not supported by the record. See State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999)
(cautioning overbroad application of this enhancement factor based on mere existence of
relationship between adults and noting that courts must look to the nature of the
relationship, and whether the relationship promoted confidence, reliability, or faith).

       The Defendant next contends that the trial court erred in its application of
enhancement factor (5), that the Defendant treated the victim with exceptional cruelty
during the commission of the offense because “[w]hile the Defendant acknowledges the
suffering of the [victim] in so much as he died as a result of the injury, there is no
evidence to suggest the presence of prolonged pain and suffering in addition to the actual
gunshot injury.” The State argues that the trial court properly found the Defendant‟s
actions to be torturous and cruel because after the Defendant shot the victim “she did not
check to see if the victim [was] still alive, nor did she seek medical help for him,” and she
“washed her clothing, took her daughter to work, disposed of the murder weapon . . . and
only then did she return home and call 911.”

       The Tennessee Supreme Court has held that evidence supporting the application of
the “exceptional cruelty” enhancement factor requires a finding of cruelty “over and
above” what is required for the offense itself. State v. Arnett, 49 S.W.3d 250, 258 (Tenn.
2001). In other words, “„[e]xceptional cruelty,‟ when used as an enhancement factor,
denotes the infliction of pain or suffering for its own sake or from gratification derived
therefrom, and not merely pain or suffering inflicted as the means of accomplishing the
crime charged.” State v. Reid, 91 S.W.3d 247, 311 (Tenn. 2002). This factor is most
often found in cases of abuse or torture, but it has been found applicable in cases where
traumatic and severe injuries were sustained by the victim. State v. Gray, 960 S.W.2d
598, 611 (Tenn. Crim. App. 1997). When applying this factor, a trial court should
articulate the actions of the defendant, apart from the elements of the offense, which
constitute exceptional cruelty. State v. Goodwin, 909 S.W.2d 35, 45-46 (Tenn. Crim.
App. 1995).

        The trial court found that the Defendant “treated [the victim] with exceptional
cruelty by leaving him there in a wounded position while she took other aspects.” At the
sentencing hearing; however, no medical evidence, autopsy report, or other expert proof
was offered regarding the victim‟s precise cause or time of death. Detective Turpin
testified that when he arrived at the crime scene, the victim had a visible gunshot wound
to the neck with a visible exit wound, and that EMS had already arrived and declared that
                                             -6-
the victim was deceased. The trial court concluded that “because I also haven‟t heard
about the cause of death, I suspect that [the victim‟s] death was the result of this gunshot
wound to the neck.”

        The Tennessee Supreme Court has upheld the application of enhancement factor
(5) in a case involving a delay in medical treatment when the victim was injured and left
alone “„unconscious and bleeding under such circumstances that it was unlikely that her
condition would soon be discovered.‟” State v. Poole, 945 S.W.2d 93, 99 (Tenn. 1997)
(quoting State v. Poole, No. 02C01-9506-CC-00178, 1996 WL 39364, at *4 (Tenn. Crim.
App. Jan. 31, 1996), aff‟d. (Tenn. May 12, 1997)); see also State v. Scott, No. W2009-
00707-CCA-R3-CD, 2011 WL 2420384, at *33 (Tenn. Crim. App. Oct. 18, 2011), perm.
app. denied (Tenn. Oct. 18, 2011) (upholding application of enhancement factor (5) when
“the defendant left the victim languishing for hours without seeking medical help.”
However, unlike the present case, there was proof adduced at trial or sentencing to
determine whether the victim died instantly or whether the victim was in fact left
suffering in a “wounded position” as the trial court concluded. Because the record is
insufficient to support enhancement factor (5), the trial court erred by relying on it in
sentencing.

       Finally, the Defendant contends that the trial court wrongly denied application of
mitigating factor (2), that the Defendant acted under strong provocation, because the
court‟s rationale “was not based upon the facts in the record.” The trial court found that
the Defendant was provoked by operation of her abusive relationship with the victim, but
that she was not acting under “strong provocation” the day of the murder because “the
evidence is clear from [the Defendant‟s] own mouth, that on the day of the offense, there
was [sic] no threats, no fights, no pushing, no choking.” However, our review of the
record reflects that the Defendant testified, albeit on cross-examination, that on the day of
the offense the victim had both physically abused and threatened her.

       Nevertheless, the trial court determined that the Defendant was not a credible
witness, and we give great weight to the trial court‟s determinations concerning the
credibility of witnesses. State v. Raines, 882 S.W.2d 376, 383 (Tenn. Crim. App. 1994)
(holding that the trial court, as trier of fact at sentencing hearings, has opportunity to
observe witnesses and that this court will not disturb those findings unless evidence
contained in record clearly preponderates against them); see also State v. Lewter, 313
S.W.3d 745, 747-48 (Tenn. 2010) (“All questions as to the credibility of trial witnesses,
the weight and value of the evidence, and issues of fact raised by the evidence are
resolved by the trier of fact, not this Court, and we may not re-weigh or re-evaluate the
evidence.”). The trial court found that the Defendant gave evasive answers, that she
appeared disingenuous at times, and that her testimony was not believable. The record

                                             -7-
supports the trial court‟s determination, and the Defendant is not entitled to relief on this
issue.

       Despite the trial court‟s error in applying enhancement factors (5) and (14), the
Defendant‟s sentence was otherwise supported by the proper application of enhancement
factor (9), that the Defendant possessed or employed a firearm during the commission of
the offense. See T.C.A. § 40-35-114(9); State v. Hampton, 24 S.W.3d 823, 832 (Tenn.
Crim. App. 2000) (concluding that the use of a firearm is not an element of second degree
murder and may be properly considered for enhancement purposes). Likewise, we
conclude that mitigating factor (8), that the Defendant suffered from a mental or physical
condition that significantly reduced the culpability for the offense, was appropriately
supported by the record and the testimony of Dr. Brown.

       As stated previously, a trial court‟s misapplication of certain enhancement factors
does not invalidate a within-range sentence unless the court wholly departed from the
Sentencing Act. State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Here, the trial court
emphasized sentencing considerations beyond the enhancement factors, which are
consistent with the purposes and principles of the Sentencing Act. The trial court
thoroughly discussed the evidence received at the sentencing hearing, including its notes
from each witness‟s testimony, and concluded that the evidence presented supported the
State‟s theory. See T.C.A. § 40-35-210(b)(1). The trial court considered the violent and
dangerous nature of second degree murder, noting that it is a “non-probatable” offense,
and that the Defendant was initially charged with first degree murder. See id. § 40-35-
210(b)(4). The trial court also carefully considered statistical information regarding
sentencing practices for similar offenses in Tennessee. See id. § 40-35-210(b)(6).
Accordingly, we conclude that the record sufficiently supports the trial court‟s mid-range
sentence of twenty-one years.

                                      CONCLUSION

         Based on the foregoing authority and analysis, we affirm the judgment of the trial
court.


                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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