         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 18, 2002

               STATE OF TENNESSEE v. JOHN A. CARTER, SR.

                    Appeal from the Criminal Court for Davidson County
                      No. 2000-C-1570    J. Randall Wyatt, Jr., Judge



                  No. M2001-02490-CCA-R3-CD - Filed February 20, 2003


John A. Carter, Sr., was tried and acquitted of second-degree murder in the Davidson County
Criminal Court for the stabbing death of Simon Doig; he was convicted of the lesser-included
offense of reckless homicide. At the subsequent sentencing hearing, the trial court imposed a mid-
range, three-year sentence. Carter claims in this appeal that the court should have given him a
minimum, two-year sentence. Because we find no error in the trial court’s sentencing
pronouncement, we affirm.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODA LL
and ROBERT W. WEDEMEYER , JJ., joined.

C. Dawn Deaner (on appeal), Nashville, Tennessee; and Laura Dykes and Diane House (at hearing),
Nashville, Tennessee, for the Appellant, John A. Carter, Sr.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Derrick Scretchen, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                 The victim, Simon Doig, was killed during an altercation at the defendant’s
apartment. The victim was a guest of the defendant’s roommate and had become involved in a
disagreement with the defendant. Apparently, the victim had broken into the defendant’s locked
bedroom to retrieve some drugs belonging to the victim that the defendant had misappropriated.
Believing that his roommate was the one who had broken into his bedroom, the defendant confronted
his roommate about the unauthorized entry into his bedroom. He then became involved in a verbal
altercation with the victim, during which the defendant demanded that the victim leave the residence.
The defendant then physically assaulted the much-smaller victim. According to the state’s evidence
at trial, the defendant got the better of the victim, who was unable to mount an effective defense.
                The defendant claimed that the victim got up from the physical altercation, said that
he was going to kill the defendant, vowed that he would be back, and walked toward the door. The
defendant apparently believed that the victim might have a weapon in the house or in his vehicle,
although the defendant had not seen the victim with one. The defendant went to the kitchen and
retrieved a steak knife. The defendant claimed that he returned to the living room, showed the victim
the knife, and told him to leave. The victim moved suddenly and, in some manner, was accidentally
stabbed.1 The defendant then followed the victim outside to ensure that he left.

                The state’s evidence, however, was that the defendant retrieved the steak knife from
the kitchen before the victim had any opportunity to get up from the living room floor and attempt
to go outside. The defendant’s roommate testified that after the victim was stabbed and was outside
the house halfway to his car, he said something about getting a gun and returning.

               The defendant called 911 and reported the stabbing, and he gave an inculpatory
statement to law enforcement officers.

                The jury acquitted the defendant of the charged offense of second-degree murder as
well as the lesser-included offense of voluntary manslaughter, but it found him guilty of the next-
lesser-included offense of reckless homicide.

                Thereafter, the court conducted a sentencing hearing, at which neither side offered
any witnesses. The state relied on the presentence report, which was the only new evidence received.
Following the arguments of counsel, the court sentenced the defendant to a three-year term, seven
months of which was to be served in a local confinement facility, followed by the balance of the
sentence to be served on probation. The court indicated its amenability to considering an earlier
release for the defendant if he completed the Lifelines program offered in the confinement facility
in less than seven months.

               The defendant has appealed the sentence, claiming that he should have been the
beneficiary of a minimum, two-year sentence, rather than the mid-range, three-year sentence
imposed. When there is a challenge to the length, range or manner of service of a sentence, it is the
duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997). This
presumption is “conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is upon the
appellant.” Id. In the event the record fails to demonstrate the required consideration by the trial
court, review of the sentence is purely de novo. Id. If appellate review reflects the trial court


         1
            The defendant testified about the victim’s movements, and he demonstrated them for the jury. However, the
app ellate record before us is not entirely clear, in large part because the demonstration was not memorialized for the
app ellate record. For purposes of our review, the import of the testimony is that the d efendant claim ed he did not intend
to harm the victim and w as caught off guard b y the victim’s sudden, unexpected m ovement.

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properly considered all relevant factors and its findings of fact are adequately supported by the
record, this court must affirm the sentence, “even if we would have preferred a different result.”
State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                In making its sentencing determination, the trial court, after hearing the evidence and
arguments, determines the range of sentence and then determines the specific sentence and the
propriety of sentencing alternatives by considering (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 enhancement and mitigating factors; (6) any
statements the defendant wishes to make in the defendant’s behalf about sentencing; and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-210(a), (b) (Supp. 2002); State
v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

                In his attack on the trial court’s sentencing determination, the defendant claims that
the trial court should have applied an additional mitigating factor and should have weighed the
mitigating factors more heavily than the sole enhancement factor in order to reach a minimum
sentence.

                The trial court applied one enhancement factor for the defendant’s employment of a
deadly weapon during the commission of the offense. See Tenn. Code Ann. § 40-35-114(10) (Supp.
2002). The court found three mitigating factors appropriate. These are relative to (1) the defendant’s
assistance to the authorities following the crime, (2) the unusual circumstances under which the
offense was committed, indicating that the defendant likely lacked a sustained intent to violate the
law, and (3) the defendant’s favorable background, including his work and educational histories and
his lack of prior criminal convictions.2 See id. § 40-35-113(10), (11), (13) (1997).

               The defendant claims that the court should have applied further mitigation to his
sentence because “[s]ubstantial grounds exist tending to excuse or justify the defendant’s criminal
conduct, though failing to establish a defense.” Id. § 40-35-113(3) (1997). The court made findings
that the defendant’s conduct was not justified, that the defendant used excessive and deadly force
on a much smaller and already subdued victim, and that the extent of the defendant’s anger far
exceeded that which was reasonable given the facts of the situation. These factual findings are
adequately supported by the record, and we cannot find fault with the trial court’s rationale in failing
to apply mitigating factor (3).



         2
            The defendant contends that the trial court also found that the sentence should be mitigated based upon the
defendant having acted under strong provocation. See Tenn. Cod e Ann. § 40-35-113 (2) (1997). Ho wever, the record
reflects that the court found that this factor did not apply. The defendant acknowledges that the court’s application of
this factor may be the subject of some dispute. The court announced at first that this factor “probably applies” but having
then stated, “I mean, excuse me, I think number two doesn’t apply.” Also, the court later stated that there were four
mitigating factors, when it had made positive findings as to only three. Upon review of the record, we are satisfied that
the court did not intend to apply mitigating factor (2).

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                We are aware of the decision of another panel of this court in State v. Ballard Eugene
Anderson, No. 03C01-9902-CR-00084 (Tenn. Crim. App., Knoxville, Jan. 26, 2000), upon which
the defendant before us places heavy reliance. In that reckless homicide case, which is similar in
some respects to the case at bar, a panel of this court found that mitigation factor (3) did apply. Id.,
slip op. at 11. That case, however, is factually distinguishable. The facts in Anderson included the
following. “[T]he victim was repeatedly asked to leave the appellant’s home and refused to do so.
The victim, who was the aggressor, was belligerent; highly intoxicated; drugged; and after the
altercation had ceased on at least four occasions, continuously provoked the attack.” Id. In general,
the victim in Anderson was more culpable in antagonizing the defendant and escalating the situation
which culminated in his death than was the victim in this case. Unlike Anderson, the case before us
does not compel a finding that “[s]ubstantial grounds exist tending to excuse or justify the
defendant’s criminal conduct, though failing to establish a defense.” Tenn. Code Ann. § 40-35-
113(3) (1997).

               The defendant also contends that the court weighed the single enhancement factor too
heavily in comparison with the weight it placed on the mitigating factors. However, the weight
afforded the enhancement and mitigating factors is beyond the scope of our review where, as here,
the trial court has considered the relevant principles of sentencing and pertinent facts and
circumstances, Ashby, 823 S.W.2d at 169, and its factual findings are adequately supported by the
appellate record, Fletcher, 805 S.W.2d at 789.

                Again, we distinguish this case from Ballard Eugene Anderson, upon which the
defendant relies. In Anderson, this court reversed the trial court’s imposition of a maximum, four-
year incarcerative sentence for reckless homicide and imposed a minimum, two-year probated
sentence. Ballard Eugene Anderson, slip op. at 7-15. However, the appellate panel in that case
found the strength of the mitigating evidence presented more compelling than is the less significant
mitigating evidence in the instant case. The appropriate sentence is to be determined by the facts
and circumstances of the particular case at bar, see State v. Harkins, 811 S.W.2d 79, 84 (Tenn.
1991), and the facts of Anderson, though similar in some respects, are not identical to the case at bar.
Because, as stated above, the lower court’s findings are adequately supported by the record, it is
beyond the scope of our review to substitute the different result preferred by the defendant. Thus,
we affirm the trial court’s length-of-sentence determination.

                 Finally, we are compelled to notice an ambiguity in the judgment form. As entered
by the trial court, the judgment form describes the sentence length as “3 years 7 months” but then
states in the special conditions, “3 years suspend all but 7 months to serve, after 7 mos dfd @ 100%
He will be on 3 yrs prb.” The state does not contend on appeal that the length of sentence is greater
than three years. Because we believe the court’s intent to impose a three-year sentence was clear and
because the state does not contend otherwise, we remand for correction of the judgment form to
more clearly reflect a total sentence length of three years.

              The judgment is, therefore, affirmed, and the case is remanded for correction of
ambiguity on the judgment form.


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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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