         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     March 20, 2001 Session

            STATE OF TENNESSEE v. TORREY LYONEL FRAZIER

                   Direct Appeal from the Criminal Court for Roane County
                            No. 11903     E. Eugene Eblen, Judge



                                   No. E2000-01364-CCA-R3-CD
                                        December 19, 2001

        A Roane County grand jury indicted the defendant on one count of first degree premeditated
murder. Following a jury trial, he stood convicted of second degree murder. For this offense he
received a twenty-two year sentence as a violent offender. After unsuccessfully pursuing a motion
for a new trial, the defendant brings the present appeal to this Court raising four issues. More
specifically, he avers that (1) the evidence is insufficient to support his conviction; (2) the trial court
erred in admitting into evidence a tech-nine weapon not associated with the offense; (3) the trial
court erred in permitting the State to question a defense witness concerning a pending statutory rape
charge; and (4) the trial court erred by sentencing the defendant to twenty-two years. Upon review
of these issues, we find that all lack merit or constitute harmless error. We, thus, affirm the
conviction and sentence.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN,
JJ., joined.

Charles B. Hill, II, and Spence Bruner, Kingston, Tennessee, for appellant, Torrey L. Frazier.

Paul G. Summers, Attorney General & Reporter; Glen C. Watson, Assistant Attorney General; J.
Scott McCluen, District Attorney General; and Frank A. Harvey, Assistant District Attorney, for
appellee, State of Tennessee.
                                                       OPINION

                                               Factual Background1

       The undisputed proof reflects that the defendant shot the victim, Anthony Eugene Thomas,
multiple times and, thereby, ended the victim’s life. This incident occurred at around 1:00 a.m. on
December 28, 1997, at an establishment referred to as “Skinny Miller’s.” While the defendant does
not deny shooting the victim, he claimed and maintains that he acted in self-defense.


                                                      Sufficiency

        As aforementioned, the defendant asserts that the evidence presented at trial is insufficient
to support his conviction for second degree murder. Rather, he avers that the proof supported his
contention that the circumstances justified his use of deadly force.
        When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State's witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence in evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence." Matthews, 805 S.W.2d at 779.
        To establish second degree murder here, the State must have proven beyond a reasonable
doubt that the defendant knowingly killed the victim. See Tenn. Code Ann. § 39-13-210(a)(1).
Furthermore, according to our code "[a] person acts knowingly with respect to a result of the person's
conduct when the person is aware that the conduct is reasonably certain to cause the result." Tenn.
Code Ann. § 39-11-302(b).
        The defendant admits that he drew a weapon from his right rear pocket and shot the victim
multiple times within very close range. The autopsy report revealed that one of the bullets entered
the victim’s chest penetrating his stomach, right lung, and aorta. According to Dr. Charles Harlan,
the forensic examiner, this shot was the primary cause of the victim’s death. From this and other

       1
           Add itional relevant factual details will be pro vided within the a nalysis of ind ividual issues.

                                                            -2-
proof, the jury could have concluded beyond a reasonable doubt that the defendant acted with an
awareness that his conduct was reasonably certain to result in the victim’s death.
        Nevertheless, the defendant averred at trial and re-asserts through this appeal that he acted
in self-defense. Tennessee defines self-defense as follows:

         A person is justified in threatening or using force against another person when and
         to the degree the person reasonably believes the force is immediately necessary to
         protect against the other's use or attempted use of unlawful force. The person must
         have a reasonable belief that there is an imminent danger of death or serious bodily
         injury. The danger creating the belief of imminent death or serious bodily injury
         must be real, or honestly believed to be real at the time, and must be founded upon
         reasonable grounds.

Tenn. Code Ann. § 39-11-611(a); see also State v. Wilson, 556 S.W.2d 232, 234 (Tenn. 1977). Once
properly raised, the State bears the burden of negating a claim that the accused acted in self-defense.
Tenn. Code Ann. § 39-11-201(a)(3); see also, e.g., State v. Sims, 45 S.W.3d 1, 10 (Tenn. 2001). Yet
as with other factual determinations, the decision concerning whether the defendant acted in
self-defense is one to be made by the jury. See State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim.
App. 1997); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993).
         In the instant case the defendant presented alleged proof that he and Quincy Willis, an
associate of the victim, had been in an altercation in front of the defendant’s grandmother’s house
about one week before the offense involved here. According to the defendant he did not originally
have a gun on him when Willis approached him, but he noticed that Willis had one. The defendant,
therefore, acknowledged that when Willis left to go next door, the defendant went into the
aforementioned home, armed himself, and then returned to his car. At some point thereafter Willis
fired at him, and he, in turn, fired at Willis. The defendant further asserted that he had heard of the
victim’s threatening to “shoot . . . up” the defendant’s grandmother’s house.
         According to the defendant’s account concerning the night of the victim’s death, Terrell
Gordon told the defendant that the victim and Willis were armed and that the defendant should watch
the defendant’s back.2 The defendant further claimed that the victim had then asked to talk with him.
According to the defendant’s statement the following exchange took place:

         He [the defendant] said, “You know I’m West Side[.]” I said[, “]I didn’t know you
         was [sic] nothing[.”] Then he said[, “]I am[.”] I said[, “Your [sic] letting that stupid
         ass shit come between family[.”]3 He said[, “] Hell yes[.”]




         2
          The defendant did not mention this exchange in his statement to the police. Ad ditionally, in the defendant’s
statement the defendant claimed to have had Gordon’s gun for two months, while at trial the defendant stated that
Gordon had g iven him the gun during this conversation at Sk inny M iller’s.

         3
             The defendant and victim w ere related by marriage.

                                                          -3-
The defendant added that the victim had, thereafter, pushed him; the defendant had pushed back; the
victim had seemed to reach for a gun; and fearing the victim, the defendant had pulled a gun himself
and shot the victim.
         On cross-examination, the defendant explained that “East Side” and “West Side” could refer
to the gangs, the Bloods and the Crips respectively. He further explained that the Bloods’ color was
red, while the Crips’ color was blue. The proof reveals that on the night of the victim’s death, the
victim was wearing a blue shirt. On one day of the trial, the defendant wore a red shirt and red
shoes. When he was arrested, he had been wearing a bright red coat.4 In addition, on the night of the
offense, the victim had told Alice Hanks, “They don’t like my color.” This witness added that after
the victim had been lying on the floor, the defendant had said something like, “[T]hese MF ain’t [sic]
going to come in my territory.”5
         Numerous witnesses indicated that earlier in the night the defendant and the victim had
initially appeared to get along with one another. However, later on, the defendant and the victim
began to argue. According to Wendy Ingram, the defendant then pushed the victim, pulled a
weapon, and shot the victim. She added that the victim’s hands had been up as if they were going
to fight, and she did not recall the victim’s making any movement toward his clothing prior to the
shots being fired.
         With regard to the whether the victim had been armed, no witness – including the defendant
– claimed to have seen the victim draw a weapon prior to being shot. Nevertheless, the defendant
did assert that he had seen a black handle in the victim’s pants on the night in question. Furthermore,
Nacie Frazier stated that she had seen something black with a square shape in the front of the
victim’s pants when earlier he had raised his shirt to her in a manner reflecting that he was armed.6
Gordon also testified that he had observed Willis giving the victim a weapon outside of Skinny
Miller’s. Gordon believed this weapon to be a tech-nine. However, the State later admitted a tech-
nine into evidence to show this type of weapon’s size, thereby allowing the jury to decide whether
the victim had tucked a weapon this large into his pants. In addition, the above-referenced Ingram,
a licensed practical nurse who had performed CPR on the victim shortly after the shooting, stated
that she had noticed no weapon when loosening the victim’s clothes in an attempt to save his life.
Moreover, we observe that no weapon was found on the victim or at the scene.7
         Though we recognize that the defendant did present proof supporting his theory of self-
defense,8 we are to review the evidence in the light most favorable to the State. To that end we not


         4
             The defend ant denied invo lvem ent w ith either the “E ast Side” or the “W est Side.”
         5
          Wendy Ingram stated that the defendant had held his weapon in the air and made a remark after the shooting
though she did not testify concerning what had been said.
         6
             In Frazier’s statement to the police, she said that the only weapon she had seen that night was the defendant’s.
         7
           The defense asserted at trial that the weapo n could h ave been taken by so me one in the confusion imm ediately
after the shooting.
         8
          As additional proof, Frazier and two other defense witnesses indicated that, prior to the sh ootin g, the victim
had issued indiv idual warning s for ce rtain peop le to leav e Skinny Miller’s.

                                                             -4-
only note the aforementioned evidence in conflict with the defendant’s claim but also facts that the
jury may have considered in weighing the credibility of some of the witnesses called. For example,
no proof was offered suggesting that either Ingram or Hanks, both called by the State, had close or
familial ties to the defendant or the victim. However, among the defendant’s witnesses were Gordon
Gillespie, his uncle; Frazier,9 his cousin; and Lisa Patterson, the mother of one of his children.
Furthermore, Frazier admitted that she had been very intoxicated at the time she had given her
statement on the night of the offense. Gillespie acknowledged that he had taken the defendant from
the scene of the crime and had been with the defendant at the time of the defendant’s arrest the day
after the offense. On the latter occasion Gillespie was also armed. In addition, the defendant called
Gordon, who was not only his cousin but whose testimony was also riddled with additional matters
potentially calling into question Gordon’s veracity.
        Faced with the record presented, we, therefore, find that the jury’s verdict is supported by the
evidence. As such, this issue lacks merit.


                   Admission of a Weapon Not Specifically Part of the Offense
                and of Officer Charles Moore’s Testimony Related to This Weapon

        Through his second issue the defendant avers that the trial court erred in allowing the
admission of a tech-nine offered by the State and in permitting the investigating officer to provide
testimony related to the weapon. To support this contention, the defendant states that this evidence
should have been excluded under Tennessee Rules of Evidence 402, 403, 701, and/or 702. Rules 402
and 403 deal with relevance considerations, while 701 and 702 pertain to lay opinion and expert
testimony respectively.
        Turning first to the question of relevance, we acknowledge that evidence must be relevant
and probative to an issue at trial in order to be admissible. State v. McCary, 922 S.W.2d 511, 515
(Tenn. 1996); see also Tenn. R. Evid. 402. 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 at trial if the probative value of that evidence “is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." Tenn. R. Evid. 403.
The determination of relevancy is left to the discretion of the trial court, and this Court will not
overturn a trial court's determination in this regard in the absence of an abuse of discretion. State v.
Williamson, 919 S.W.2d 69, 78-79 (Tenn. Crim. App. 1995); State v. Forbes, 918 S.W.2d 431, 449
(Tenn. Crim. App. 1995).
        In the instant case Gordon, the defendant’s first witness, alleged that Willis had handed the
victim a weapon outside of Skinny Miller’s. Gordon added that the weapon had looked “like a tech-
nine or something.” Defense counsel then began asking questions about the size of a tech-nine and
whether the victim’s coat had been large enough to conceal a weapon of this type. Furthermore,
defense counsel returned to this topic on re-direct eliciting more specific testimony concerning the
victim’s hiding of the weapon. According to Gordon he saw the victim place the weapon in the back

       9
           Ad mittedly, Frazier was also o ccasio nally dating the victim at the tim e of the offe nse.

                                                            -5-
of the victim’s pants under the aforementioned jacket. This witness added that a tech-nine was not
too big to carry in that manner. In view of this line of questioning, the defendant opened the door
and made the tech-nine relevant; thus, this contention lacks merit.10
        However, as above-noted, the defendant also alleges that the trial court did not comply with
Tennessee Rules of Evidence 701 and 702 by admitting additional proof related to the tech-nine.
Rule 701 essentially addresses the admissibility of opinion testimony offered by non-experts. The
rule provides, in relevant part:

           (a) . . . If a witness is not testifying as an expert, the witness's testimony in the form
           of opinions or inferences is limited to those opinions or inferences which are
           (1) rationally based on the perception of the witness and
           (2) helpful to a clear understanding of the witness's testimony or the determination
           of a fact in issue.

Tenn. R. Evid. 701(a). Furthermore, the admission of expert testimony is governed by the
aforementioned Rule 702, which states that “[i]f scientific, technical, or other specialized knowledge
will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education may testify in
the form of an opinion or otherwise.” Tenn. R. Evid. 702. Caselaw has also clarified that evidence
is “‘scientific, technical, or other specialized knowledge’ if it concerns a matter that ‘the average
juror would not know, as a matter of course . . . .’” State v. Murphy, 953 S.W.2d 200, 203 (Tenn.
1997) (quoting State v. Bolin, 922 S.W.2d 870, 874 (Tenn. 1996)).
        Returning to the relevant facts of the instant case, the contested testimony came as rebuttal
proof from Investigator Moore. This witness was shown the weapon and asked if he could recognize
the type. Moore responded that it was a tech-nine and subsequently affirmed that he was “generally
familiar with this” weapon.11 The following exchange then transpired:

           Q [Prosecutor]                 The pistol you just had in your hand there, the clip, let me ask
                                          you about the clip. Can you get different length clips for this
                                          weapon?
           A [Moore]                      Yes.


           10
              During cross-examination of the defendant, the prosecution produced a tech-nine. Since the defendant
claimed to have seen the handle of a weapon in the victim’s pants, the State asked the defendant to place the tech-nine
into his pants and to draw the weapon. Through this exchange the defense raised no objection. Nevertheless, when the
State asked that the weapon be passed to the jury, the defense objected because the defendant himself had not
specifically claimed that a tech-nine was involved. Later the d efense objected once more, this time contesting the size
of a clip mentioned by the State. Though the trial court overruled both objections, it did so in the latter instance “w ith
the instruc tion to the jury that this is not alleged to be the gun that was there. We’re merely talking about a type of
weapo n.”


           11
                At this juncture defense counsel objected, b ut on a basis not pu rsued in this appeal; thus, w e need not add ress
it here.

                                                                 -6-
         Q [Prosecution]            And is the clip that’s in there now a particularity [sic] large
                                    clip or a small clip?
         A [Moore]                  This is a small clip. This is probably the smallest one I’ve
                                    seen for this type of weapon.
         [Defense counsel]          Your honor, I object at this time. There is no testimony that
                                    this person is an expert on the tech[-]nine, that he is a
                                    manufacturer. And I object to this line of testimony.
         [Trial court]              Overruled.
         [Prosecution]              Nothing further.

        At the outset we observe that the State neither claimed nor did the trial court find that Moore
was testifying as an expert witness. Furthermore, the defendant did not object when the witness
began discussing different size clips but only did so after Moore stated that the clip before him was
the smallest that he had seen for a tech-nine. To offer this type of proof, a witness need not be
characterized as an expert. As such, its admission did not run afoul of Rule 702.
        In addition, we note that defense counsel did not object to Moore’s testimony as being
improper lay opinion testimony. It is well-settled that an appellant cannot change grounds for
objections from the trial court to the appellate court. Such action constitutes waiver of the issue.
State v. Brewer, 932 S.W.2d 1, 9 (Tenn. Crim. App. 1996); Matthews, 805 S.W.2d at 781; State v.
Aucoin, 756 S.W.2d 705, 715 (Tenn. Crim. App. 1988). Moreover, we do not see that Moore’s
statements constituted lay opinion testimony;12 thus, Rule 701 does not bar the admission of this
evidence either. We, therefore, conclude that this issue merits no relief.


                          Use of Pending Charge for Impeachment Purposes

       The defendant next contends that the trial court erred in permitting the prosecution to cross-
examine Gordon concerning a pending charge of statutory rape. In support of this position, the
defendant cites Tennessee Rule of Evidence 608.

         Subpart (b) of this rule provides, in pertinent part:

         Specific instances of conduct of a witness for the purpose of attacking or supporting
         the witness's credibility, other than convictions of crime as provided in Rule 609,
         may not be proved by extrinsic evidence. They may, however, if probative of
         truthfulness or untruthfulness and under the following conditions, be inquired into
         on cross-examination of the witness concerning the witness's character for
         truthfulness or untruthfulness or concerning the character for truthfulness or



         12
            Though the defendant cited Rules 701 and 702, he provided no case law related to this portion of the claim.
Furthermore , the State did not respond to this portion of the issue. Nevertheless, from our review we find the cases
dealing w ith lay o pinio n distin guish able from the situa tion p resen ted here.

                                                         -7-
         untruthfulness of another witness as to which the character witness being
         cross-examined has testified.

Tenn. R. Evid. 608(b). In addition, prior to admitting such proof, other procedural steps must be
taken and determinations made. For example, “[t]he court upon request must hold a hearing outside
the jury's presence and must determine that the alleged conduct has probative value and that a
reasonable factual basis exists for the inquiry.” Tenn. R. Evid. 608(b)(1).
        In this case, Gordon attempted to explain that he could not assuredly state when the
aforementioned prior altercation had occurred because he had “problems of [his] own.” Thereafter,
the prosecution inquired whether any of these problems involved “the law.” After the defendant
replied, “Yeah, quite a few of them,” the defense interposed a general objection. The prosecution
responded that it could ask about bad acts if it had a “reasonable basis on which to do so,” and the
trial court overruled the objection. The prosecution then asked if the witness’ difficulties
“[i]nclud[ed] a possible problem with a statutory rape?” After noting that there had been no
conviction, the defense requested a jury-out hearing. Yet again, the trial court allowed the
prosecution to proceed with this line of questioning. No jury-out hearing was conducted.
        Through its brief the State concedes that the trial court’s actions constituted error. In view
of these facts and the above guidelines, we agree.13 The trial court did not conduct the required jury-
out hearing. Furthermore, the conduct inquired about here is not probative of truthfulness or the lack
thereof. See, e.g., State v. Leon Hurd, No. E1999-01341-CCA-R3-CD, 2001 WL 348871, at *14
(Tenn. Crim. App. at Knoxville, April 10, 2001).
        Nevertheless, we also concur with the State’s assessment that this erroneous admission was
harmless in this case because Gordon provided the jurors with additional reasons to question his
testimony. For example, the witness admitted that he did not have a permit to carry the gun he had
provided to the defendant nor had he ever had a permit to carry a concealed weapon. In response to
the prosecutor’s asking what kind of weapons the witness had in his car that night, Gordon
responded, “What kind you [sic] want? I have a lot of them.” Gordon exuded this combative attitude
at various times throughout his testimony. Additionally, this witness affirmed that he had no use
“whatsoever” for anyone in law enforcement and acknowledged that he had told the police that he
did not know anything about the prior altercation between the defendant and Willis though he had
such knowledge and testified at trial concerning this event. With respect to the latter, he claimed
that he “wasn’t under oath, so it doesn’t matter. [He] could say whatever.” We also observe that
Gordon’s testimony conflicted at times with even the defendant’s pre-trial statement that had been
submitted as evidence. In view of these concerns and the remainder of the proof against the
defendant, we do not find that the error involved here merits a reversal.




         13
             Though defense counsel should have stated the basis of his objection, the State’s response made clear by
inference that it believed the evidence admissible under Rule 608. Furthermore, the defense thereafter requested a jury-
out h earing.

                                                          -8-
                                                      Sentencing

        Finally, the defendant avers that the trial court erred in sentencing him to serve twenty-two
years. In asserting that the sentence received was too harsh, the defendant contends that “his age ...
and the circumstances of the shooting” should lead to a shorter period of confinement.
        “When reviewing sentencing issues ..., the appellate court shall conduct a de novo review on
the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct." Tenn. Code Ann. §
40-35-401(d). "However, the presumption of correctness which accompanies the trial court's action
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). In conducting our review, we must consider the defendant's potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant's statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper." Id.
        Turning more specifically to the facts of this case, the defendant was convicted of second
degree murder. Since this is an A felony, the starting point for sentencing determinations is the
middle of the range. See Tenn. Code Ann. § 40-35-210(c). Undisputably, this defendant was a Range
I offender; thus, twenty years was the mid-point against which the trial court was to balance any
mitigating and enhancement factors.
        In balancing these concerns, a trial court should start at the presumptive sentence, enhance
the sentence within the range for existing enhancement factors, and then reduce the sentence within
the range for existing mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight
for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.
App. 1995). The weight given to each factor is left to the discretion of the trial court as long as it
comports with the sentencing principles and purposes of our code and as long as its findings are
supported by the record. Id.
        From reviewing the record, we observe that the lower court stated that it did “not find the
mitigating factors to outweigh anything in this particular case.”14 In contrast, the defendant first
argues that his age should have contributed to his receiving a shorter sentence. This relates to
Tennessee Code Annotated section 40-35-113(6), which states that “[t]he defendant, because of
youth or old age, lacked substantial judgment in committing the offense.” Id.
        However, a defendant's chronological age is not determinative with regard to this mitigating
factor. To determine whether this factor should be utilized, courts are to "consider the concept of
youth in context, i.e., the defendant's age, education, maturity, experience, mental capacity or
development, and any other pertinent circumstance tending to demonstrate the defendant's ability



         14
            While the trial court could have more clearly set out any mitigating factors it found applicable, this statement
reflects that the trial court did, in fact, consider mitigating factors but concluded that they should be afford ed little
weight here.

                                                            -9-
or inability to appreciate the nature of his conduct." State v. Robert D. Merritt, Jr., No.
01C01-9709-CR-00396, 1999 WL 298311, at *2 (Tenn. Crim. App. at Nashville, May 13, 1999).
         The record before us notes no problem with this defendant’s mental development or capacity
and affirmatively indicates that he attended school into the eleventh grade. The defendant had also
fathered three children, was well-acquainted with the criminal justice system, etc. While he was
twenty-years-of-age at the time of the offense, our supreme court has previously held that the
application of this factor to a particular twenty-year-old defendant would not be warranted. Id. Faced
with these considerations, we agree that this factor should not result in a shorter sentence for the
defendant than that received.
         As noted above, the defendant also argues that the circumstances of the offense should have
decreased the penalty he received. See Tenn. Code Ann. § 40-35-113(11). However, he cites this
Court to no analogous situation in which this factor was applied, and we do not find this allegation
persuasive.
         With regard to enhancement factors, the trial court found two applicable. The lower court
first pointed to the fact that the defendant was out on bond at the time of the offense. This
determination clearly refers to the enhancement factor found in Tennessee Code Annotated section
40-35-114(13)(A) and is uncontested in the defendant’s brief. However, this factor only applies when
the defendant is on bond from a prior felony charge and is ultimately convicted of the prior felony.
See id. From our reading of the record, the defendant had made bond on a misdemeanor; thus, this
would not apply. Nevertheless, the trial court also found it appropriate to apply Tennessee Code
Annotated section 40-35-114(1) as an enhancing factor since the court pointed to the defendant’s
prior cocaine and numerous misdemeanor convictions. Beyond this, the trial court could have
applied the enhancement factor dealing with the defendant’s “possess[ing] or employ[ing] a firearm
... during the commission of the offense.” See Tenn. Code Ann. 40-35-114(9).15
         In view of these considerations and the fact that the trial court only enhanced the defendant’s
sentence by two years, we find that the defendant has failed to prove that the sentence imposed is
improper. This issue, therefore, also lacks merit.


                                                     Conclusion

      For the foregoing reasons we find that none of the issues raised merit relief. Accordingly, the
judgment of the trial court is AFFIRMED.


                                                                  ___________________________________
                                                                  JERRY L. SMITH, JUDGE


         15
             The defendant does not contest that he used a firearm in comm itting the offense, and utilization of a firearm
is not an eleme nt of th e offe nse o f second d egree m urder. See Tenn. Code Ann. § 39-13-210. Thus, this enhancement
factor may appropriately be applied here.




                                                          -10-
