        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               December 10, 2013 Session

                   STATE OF TENNESSEE v. DANNY OWENS

                  Appeal from the Circuit Court for Lawrence County
                    No. 29219    Robert Lee Holloway, Jr., Judge


                 No. M2012-02717-CCA-R3-CD - Filed March 24, 2014


The Defendant-Appellant, Danny Owens, was indicted by a Lawrence County Grand Jury
for the first degree premeditated murder of his wife. At trial, Owens was convicted of
second degree murder. The trial court sentenced Owens as a Range I, standard offender to
a sentence of twenty years at one hundred percent release eligibility. On appeal, Owens
argues: (1) the trial court erred in admitting evidence that he had threatened to kill the victim
shortly before her death; (2) the trial court erred in admitting statements from the victim; (3)
the trial court erred in allowing the State to exceed the scope of redirect examination in its
questioning of a witness; (4) the trial court erred in admitting witnesses’ observations of the
victim’s bruises; (5) the evidence is insufficient to sustain his conviction; (6) he is entitled
to relief based on cumulative error; and (7) the trial court abused its discretion in sentencing
him. Upon review, we affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and
A LAN E. G LENN, JJ., joined.

Robert D. Massey and Rebecca S. Parsons, Pulaski, Tennessee, for the Defendant-Appellant,
Danny Owens.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Mike Bottoms, District Attorney General; and J. Douglas Dicus and Christi L.
Thompson, Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                          OPINION
                                             Trial

                                        State’s Proof

        Parker Hardy, an detective with the Lawrence County Sheriff’s Department, testified
that he responded to a call on February 8, 2009, regarding a “possible d[ec]eased person” at
Owens’s residence. Detective Hardy was unsure whether the call had initially come in as a
suicide. However, he said he never found a suicide note at the scene.

       When Detective Hardy arrived at the scene, the paramedics and several other officers
were present. He immediately observed Owens, who was sitting at a table in the kitchen with
a washrag in his hand, and noted that Owens “didn’t seem upset, very upset.” Detective
Hardy entered the living room where the victim was located, which was secured, and saw
Vicki Owens, the deceased victim and Owens’s wife, sitting in a rocking chair. He noted
that the victim had multiple wounds from a single bullet and saw a Smith & Wesson .357
magnum revolver near her body. Based on the victim’s wounds, it appeared as if the bullet
had entered at the victim’s cheek and exited at her left bottom jaw before entering her
shoulder and exiting her arm. He stated that he retrieved the bullet fragments and bullet
jacket from the living room floor.

        Detective Hardy also collected the Smith & Wesson .357 magnum revolver. Prior to
collecting it, he picked up the revolver, with Officer Daniels by his side observing, and
cracked the cylinder open so that he could see the location of the ammunition in the cylinder.
Detective Hardy took a photograph of the gun as he opened the cylinder, which contained
four unspent rounds and one spent round. He immediately noticed that the top chamber,
which was underneath the hammer, had an unfired round. He also noticed that there was a
spent, fired round in the chamber to the left of the unfired bullet. Detective Hardy stated that
when the cylinder of the gun in this case is closed, it will not rotate unless the trigger or the
hammer is pulled. He also stated that the cylinder in this handgun rotated counter-clockwise.
Detective Hardy stated that if a person pulled the trigger on this handgun one time, the spent
round would be underneath the hammer. However, when he opened the cylinder of the
handgun at the scene, the spent round was in the chamber just to the left of the chamber
under the hammer. Detective Hardy explained that in order for a live round to be underneath
the hammer of the revolver, as it was in this case, either the trigger would have to be pulled
again, which would cause a second spent cartridge to be in the gun, or the hammer would
have to be manually pulled again, or the cylinder would have to be taken out, rotated, and put
back into the gun.

      Detective Hardy stated that he later interviewed Owens at the sheriff’s department,
where Owens gave him a written statement of the events leading up to the victim’s death.

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He noted that Owens was not very emotional during the interview. Before giving his written
statement, Owens signed a waiver of his Miranda rights. In the statement, Owens said that
he woke up at 8:20 a.m., brushed his teeth, and had some coffee before getting dressed and
going outside. He stated that his wife came outside and asked him what he was going to do
that day. Owens said they were not arguing and “everything was fine.” His wife went back
inside the home and was not upset. Owens stated that he had gone into the garage to work
on a scooter and lawnmower when he “heard a loud boom.” He looked around the yard for
the source of the noise and did not see anything. He then went inside the home, walked
down the hall, and asked, “What was that?” When he did not hear a response, Owens walked
into the living room and saw his wife’s deceased body in the rocking chair. He immediately
called 9-1-1, and a dispatcher told him to check his wife’s pulse. He grabbed her hand,
although he did not remember which hand he grabbed. He said that he did not believe he got
any blood on his hands when he touched her hand and asserted that he did not touch his
wife’s body other than to touch her hand. He stated the gun was lying on the floor on his
wife’s right side, and he did not touch or move the gun. Owens stated that he normally kept
this handgun loaded in his nightstand. He said he stood in the doorway to the kitchen while
he waited for the paramedics and officers to arrive.

       Detective Hardy said that Owens never mentioned anything to him about leaving his
house the day of the victim’s death. Owens told him prior to giving his statement that his
wife was in a lot of pain and that his wife had confronted him about having a “possible
relationship with another woman.” However, Owens never asked to place these things in his
statement, even though he was given a chance to review his statement and add, delete, or
correct anything in his statement.

        On cross-examination, Detective Hardy stated that he did not collect any evidence at
the scene that would have supported a suicide. He said he asked for Owens to submit to a
gunshot residue test to rule out the possibility of a homicide. He acknowledged that another
officer took swabs of Owens hands with “cotton tipped swabs and nitric acid” because he did
not have any gunshot residue kits in his patrol car. He also acknowledged that the gunshot
residue test on the victim’s hands was done by the medical examiner’s office. Detective
Hardy said he first became suspicious that the victim’s death might be a homicide rather than
a suicide when he opened the cylinder of the revolver and saw that “the spent shell casing
was not underneath the hammer, where it should have been.” However, he agreed that the
victim did not have any defensive wounds. Detective Hardy admitted that he had never been
trained to make markings on the ridges on either side of the chamber of a revolver to identify
the chamber that was underneath the hammer. He said he obtained and examined the
victim’s medical records, although he did not specifically look for any medication that the
victim may have been taking at the time of her death. Although he knew the victim had been
to several doctors, he did not know the details of the treatment she was receiving or the

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medication she had been prescribed. He stated that he did not do any research to determine
whether the victim’s medical records supported a suicide theory.

        Patrick Daniels, an officer with the Lawrenceburg Police Department, testified that
he was the first officer to arrive at the scene and that the paramedics arrived immediately
after him. He stated that Owens looked “shook up a little bit” and was “real agitated, or
nervous[.]” Owens told Officer Daniels that his wife had committed suicide and he pointed
him in the direction of the his wife’s body in the living room. He stated that he and the
paramedics entered the living room, and he saw that the victim had suffered what appeared
to be a gunshot wound to the head. When one of the paramedics determined that the victim
had no pulse, he asked the paramedics to leave the room. Officer Daniels said that he stayed
in the doorway between the kitchen and the living room until Detective Hardy arrived. He
stated that the scene was secure and that no one tampered with the victim’s body or the
evidence while he was present.

        During the hour that Officer Daniels was at the scene, he observed Owens sitting at
the kitchen table and wiping his face with a dish rag. He said Owens “kept getting up and
down, wetting the washrag, washing his hands, washing his face.” He saw Owens wash his
hands three or four times before submitting to a gunshot residue test.

       When Detective Hardy arrived at the scene, Officer Daniels informed him that no one
had been in the room with the victim except for him and the paramedics. They began
examining the room together. Officer Daniels stated that he was standing next to Detective
Hardy when Hardy retrieved the gun and cracked open the cylinder. Officer Daniels
observed that there was a spent round in the chamber to the left of the chamber underneath
the hammer, and “there wasn’t a spent round under the hammer[,]” which was “exactly
where [he] would expect to find one.” Officer Daniels said that he had no doubt that the
spent round was one cylinder to the left of the hammer. On cross-examination, he stated that
he was never taught to mark the ridges on each side of the chamber to identify the chamber
underneath the hammer.

       Ronald Butrum, a paramedic with the Lawrence County E.M.S., testified that he
arrived at the scene with two other paramedics. Butrum said that he was required to
determine whether the victim was alive. He saw another paramedic check the victim’s pulse,
which did not disturb the position of the body. He asserted that neither he nor the other
paramedics moved or touched anything in the room. Butrum said the officers asked him and
his team to leave the room while they began their investigation. At that point, he went to the
kitchen, where Owens was sitting at the kitchen table. Butrum said that Owens was
“somewhat distraught” and was mumbling to himself. He and the other paramedics checked
Owens blood sugar, which was “pretty high,” and they made him sit down and relax. He

                                             -4-
stated that Owens did not stay seated and went in and out of the bathroom to wash his hands
and face. Butrum said that he saw Owens get up “four or five times” to wash his hands in
the bathroom before he submitted to the gunshot residue test. He heard Owens make
statements questioning why the victim had committed suicide but also heard Owens say that
the victim believed he was having an affair. He never heard Owens say that the victim killed
herself because she was in a lot of pain.

       Loretta Hartsfield testified that she lived across the street from Owens and the victim
and knew them both. She was aware that Owens had health problems. Although Hartsfield
had heard the victim complain about her knee problems, she saw the victim walking around
the block with her neighbor nearly every day. Hartsfield said that the day of the victim’s
death, she saw Owens walk to the end of his driveway and stand there for a little while before
going back inside. She later realized that something had happened when she saw an
ambulance parked in Owens’s driveway and went over to speak with Owens, who was
“sweating, and crying, wiping his face a lot.” She asked him if he needed some orange juice
to drink, and Owens told her that the ambulance was there because his wife had shot herself.
When Hartsfield asked him why the victim would have committed suicide, Owens replied,
“Because she thought I had a girlfriend.” She also remembered that Owens was worried
about who was going to help him with his insulin shots now that his wife was gone.

       Tina Boyd, another neighbor, testified that on the morning of February 8, 2009, she
saw Owens drive his green Dodge truck “down [the street]” and then “back up” about fifteen
or twenty minutes later. She said she was sure that Owens was driving a green Dodge truck
and that he did not have anyone with him. Around five to ten minutes after Owens had
returned to his house, Boyd heard a 9-1-1 call on her police scanner for a suicide at Owens’s
home.

       Dr. Feng Li, the Senior Associate Medical Examiner for Nashville and Davidson
County, was declared an expert in the field of forensic pathology. Dr. Li testified that he
performed the victim’s autopsy. He stated that the victim’s cause of death was a single
gunshot wound to the head. He said that the bullet entered the right side of the victim’s
cheek, exited on the left side of her neck, re-entered on the victim’s left shoulder, and exited
on her left upper arm. Dr. Li stated that although the bullet did not penetrate the victim’s
brain, its force was absorbed and caused a contusion of the brain tissue. The victim’s
wounds also caused substantial blood loss.

        Dr. Li said he listed the victim’s manner of death as “undetermined” because he could
not tell whether the victim’s death was as result of homicide or suicide. He noted that the
victim’s gunshot wound was a close range, “near contact” wound that was angled, rather than
perpendicular to the surface. Dr. Li said that gunshot wounds in suicides are typically on the

                                              -5-
forehead, the temple, or sometimes inside the mouth and that wounds on other parts of the
head were “very rarely” seen in suicides. He opined that the gunshot wound in this case was
unusual because of the location of the wound and the direction of the bullet path.

       Dr. Li said he ordered a “targeted” toxicology screen, rather than a more
“comprehensive” screen, because he had a clear cause of death that was not from a suspected
drug overdose. The targeted toxicology screen did not detect the presence of any of the
specific drugs on the panel.

       Dr. Li stated that he was unable to examine the weapon involved in the victim’s death
before performing the autopsy. When he picked up the gun in court, he noted that it was a
“heavy weapon” and opined that it would be “difficult to hold this weapon . . . with the type
of direction and the range as, you know, self-inflicted.”

        On cross-examination, Dr. Li admitted that he could not conclude whether the
victim’s death was a homicide or a suicide. He also admitted that the absence of a suicide
note did not mean that the death was not a suicide and that the fact that the head wound was
in an unusual place did not mean that it was not self-inflicted. He acknowledged that he did
not observe any defensive wounds on the victim during the autopsy. He further
acknowledged that Trazodone, Neurontin, and Gavepentin/Graylise would not have been
detected by the targeted drug screen that he ordered. He said that Trazodone was prescribed
for the treatment of depression and that Graylise and Neurontin were prescribed for neuralgia
or pain related to nerves. He acknowledged that several of the drugs that the victim had been
prescribed had warnings about possible increases in suicidal thoughts or behavior.

       On redirect examination, Dr. Li said that it was not unusual for the victim of a
homicide not to have defensive wounds. He stated that because some homicides happen
quickly, there may not be defensive wounds on the victim.

       Dana Loudermilk, the victim’s thirty-six-year-old daughter, testified that she and her
mother had a “[v]ery close” relationship and talked several times a day. She said her brother
was getting married on May 9, 2009, and “and so we were planning his wedding.” She also
said her mother had requested vacation time so that she could attend the wedding in Destin,
Florida. Loudermilk said her mother was “really looking forward” to the wedding and was
“[e]xcited” that her son had “finally decided to just settle down.”

      Loudermilk stated that the day before her mother’s death, she had seen her mother and
Owens at Wal-Mart. She said her mother was in a “very good” mood, was buying
Valentine’s gifts, and was teasing her grandchildren. At the time, Loudermilk noticed that



                                             -6-
Owens was “very standoffish” and acted as if “something was bothering him.” She noticed
that Owens did not pick up her son, despite the fact that he usually did so.

        Loudermilk stated that the Thursday before her mother’s death, her mother informed
her that she believed Owens was having an affair with a woman who worked at the Buffalo
Road Market. She said her mother had complained about Owens’s infidelity during the
marriage on other occasions, although she had never appeared suicidal when Owens was
unfaithful. Instead, Loudermilk described her mother as “a very happy, happy lady. You
know, loved life, loved all of us, loved [her husband].” She said she was aware of her
mother’s health problems, which included diabetes, arthritis, knee problems, and stress
fractures on her feet, for which she was seeking treatment from an orthopedist. However,
she stated that her health problems never kept her from working, cooking, or getting around.
She stated that her mother did not like guns, that she had never seen her mother shoot a gun,
and that she had never heard her mother talk about shooting a gun. Loudermilk
acknowledged that she, her brother, and her sister had filed a civil wrongful death suit against
Owens and had obtained a default judgment against him.

        On cross-examination, Loudermilk acknowledged that she and her siblings had sued
Owens for 9.7 million dollars in the wrongful death lawsuit. She also acknowledged that the
order from the wrongful death lawsuit stated that if Owens was found guilty of murder or a
lesser included offense, the plaintiffs could proceed to collect their $4.5 million. She also
acknowledged that the order said that if Owens were found not guilty at trial, then the default
judgment could be set aside and additional litigation could occur.

       On redirect examination, Loudermilk stated that no one in her family, other than
Owens, had received any money from the victim’s bank accounts, 401(k) accounts, or any
proceeds from any life insurance policies following the victim’s death. In addition, she said
that Owens refused to allow her to retrieve some of her mother’s personal belongings and
had sold some of her mother’s jewelry and belongings at a flea market.

       Margaret Holder, the victim’s mother, testified that she talked to the victim on the
phone two days before the victim’s death. During their conversation, she overheard the
victim talking to Owens in the background. Holder stated that the victim said, “Oh, I see
what you done. You’ve been buying yourself a toy.” Owens replied, “Yes, I sure have.”
Then he said, “I bought myself a [.]357.” And then Owens said, “I’m going to kill your God
damn ass.” When Holder heard this, the victim told her that she had to go and hung up the
phone.

         On cross-examination, Holder acknowledged that she waited until August 31, 2011,
to tell law enforcement about Owens’s threat. She said she thought she had informed Dana

                                              -7-
Loudermilk and her other grandchildren about Owens’s threat prior to disclosing it to law
enforcement. Holder stated that she gave her statement about Owens’s threat to the victim
to Tennessee Bureau of Investigation (TBI) Agent Wesson when he came to see her.

        Ramona Lafferty testified that she began dating Owens after Owens claimed he had
divorced his wife, the victim. She later discovered that Owens was still married to the
victim, and they were merely separated at the time. She said Owens eventually divorced the
victim, and she and Owens continued dating. Lafferty stated that she ended the relationship
with Owens when he returned to the victim and remarried her. A few months prior to the
victim’s death, Owens called her and asked if she would go out with him while the victim
was out of town for a long weekend. When she refused, Owens asked, “If I wasn’t married
to her, would you still be with me?” Lafferty replied, “Maybe.” She said she next heard
from Owens two weeks after the victim’s death when he left a message on her answering
machine, stating: “Now that she’s dead, will you talk to me?” She said she immediately
notified the sheriff’s department about Owens’s message. However, Owen’s message was
erased as a result of a storm before law enforcement could obtain a copy of it.

        John Melton, a special agent with the TBI, testified that he and another agent met with
Owens at his home on July 8, 2010. During this meeting, Owens agreed to be interviewed
at their field office because he “didn’t have anything to hide.” Prior to the interview, Agent
Melton informed Owens that he was not under arrest and was free to leave at any time. He
then advised him of his Miranda rights and got him to sign a waiver of his rights. When he
asked Owens about the victim’s medical conditions, Owens said that his wife had substantial
pain in her arms and legs and had been prescribed several medications. However, he was
unable to provide the names of these medications. Owens never mentioned that his wife was
suffering from depression or any mental illness.

        Agent Melton stated that Owens told them what happened prior to the victim’s death,
but he never mentioned anything about leaving his home that morning. Owens said that after
he discovered his wife’s body, he called 9-1-1. The 9-1-1 operator told him to check his
wife’s pulse, but he did not check her pulse because he did not know how. He did touch one
of his wife’s hands, which was still warm, but he believed that she was dead. Owens stated
that he did not get any blood on his hands when he touched his wife’s hand and that he did
not need to wash his hands to remove any of his wife’s blood. He stated that he “remained
fairly calm” after discovering his wife’s body because of his heart condition. Owens told
Agent Melton that his wife had threatened to shoot herself in the past because of his affairs
and that she had told her daughter, Dana Loudermilk, that she was going to shoot herself.
He stated that he believed the victim committed suicide because she had been accusing him
on nearly a daily basis of having an affair with a woman who worked at a local market.



                                              -8-
        Agent Melton told Owens that he did not believe that the victim had committed
suicide because the fired cartridge was not underneath the hammer of the gun. Owens argued
that the cylinder of the gun should have rotated to a live round after the trigger was pulled.
He denied cleaning the handgun or manipulating the handgun’s cylinder and denied even
touching the handgun the day of the victim’s death.

       Agent Melton then asked Owens about Mona Lafferty, and Owens admitted that he
had been in a sexual relationship with Lafferty during his marriage. When Agent Melton
asked if Owens had talked to Lafferty about going out with him while his wife was out of
town, he acknowledged that “he might have had that conversation.” Owens told Agent
Melton that he had sexual relations with Lafferty and other women, stating, “I just hit them
and go on. Then go back in a few weeks.” When Agent Melton asked Owens if he had left
a message on Lafferty’s machine asking her to go out with him now that his wife was dead,
Owens acknowledged that he “might have said that.” Owens denied any involvement in his
wife’s death. He then asked to end the interview. Agent Melton stated that he was unable
to obtain a written statement from Owens because he discontinued the interview.

        Mary Cotton, the victim’s supervisor at Jones’s Apparel in Lawrenceburg, testified
that she had worked with the victim for twelve years and knew that Owens and the victim
“had a troubled relationship” which often caused the victim to be upset at work. She stated
that she had observed bruises on the victim’s wrists and arms on several different occasions.
However, she said that she never gave the victim any advice regarding these bruises because
she was her direct supervisor. Cotton stated that prior to her death, the victim was “very
excited about her son’s wedding,” had been shopping for a dress to wear, and frequently
discussed her son’s wedding with her co-workers. Cotton stated that the victim had no
physical problems that prevented her from performing her job as a garment inspector and that
she had noticed no changes in the victim’s performance or behavior prior to her death. On
cross-examination, she acknowledged that she did not know what caused the victim’s
bruises.

       Suzanne Lafferty, a special agent forensic scientist to the latent print unit of the TBI,
was declared an expert in the field of latent print identification and analysis. She stated that
she did not find any identifiable latent prints on the revolver involved in the victim’s death.

        Laura Hodge, a special agent forensic scientist with the TBI, was declared an expert
in the field of gunshot residue. She testified that she received a gunshot residue kit taken
from the victim and a gunshot residue kit taken from Owens. Agent Hodge testified that she
did not test the gunshot residue kit taken from Owens because the kit “appeared to be a
homemade kit” that did not meet the TBI protocols. She stated that she tested the gunshot
residue kit that was taken from the victim at the medical examiner’s office and that the

                                              -9-
results were “inconclusive,” which meant that she was unable to eliminate the possibility that
the victim had fired, handled, or been near the handgun when it was fired. Agent Hodge
acknowledged that a person could “wash away the gunshot residue” by washing one’s hands.

       Rhonda Journey, a former neighbor from Giles County, testified that one night in the
summer of 2003 Owens placed the victim’s personal items in boxes by the side of the road.
The victim called the police to see if they could help her. Ultimately, Journey stored the
victim’s items in her shed. That same night, around midnight, Journey heard the victim
screaming for help and banging on her bedroom window. She then heard the victim say,
“No, Danny, no.” Journey said she could hear the victim and Owens having a physical
confrontation on her back deck, and she called 9-1-1. However, by the time the police
arrived, the victim and Owens had returned to their home.

       Donald Ward, a deputy with the Giles County Sheriff’s Department, testified that on
June 22, 2003, he was dispatched to the Owens residence in Giles County because the victim
had called to inform them that Owens was putting her personal belongings outside and she
needed assistance. Deputy Ward stated that he talked to both parties and observed Owens
consume several beers in his presence. He also noticed that Owens became emotional and
began having a severe nosebleed, which required him and the other officer to call an
ambulance. He said the victim comforted him during the nosebleed. After approximately
an hour, Deputy Ward and the other deputy left the residence. Around two hours later,
Deputy Ward received a second call from a neighbor, Rhonda Journey, who reported a
domestic disturbance between the victim and Owens. When he returned to the house, Deputy
Ward noticed that the victim’s eyes were “bloodshot, watery[,]” that she had an injury inside
her mouth on her lower lip, a scratch under her jaw on the left side of her face, and a swollen
right wrist. He did not recall what Owens’s demeanor was at the time he returned to the
residence, but he remembered that Owens was present. Deputy Ward said that he read the
Victim’s Rights form to the victim and left a copy with her.

       Shirley Brown, who also worked with the victim, testified that she talked to the victim
the Thursday or Friday before her death. During this conversation, the victim told her that
she was excited about her son’s upcoming wedding and had been helping make the
arrangements. Brown recalled that the victim was wearing a boot on her foot for a stress
fracture at the time but wanted to talk about her son’s wedding rather than her foot and did
not appear to be depressed. Brown said she was aware that the victim had a “very rocky,
unstable relationship” with Owens. In particular, she remembered one Monday that the
victim was not very talkative at work. When she went to talk to the victim to see what was
wrong, she observed fingerprint marks on the victim’s neck. Brown talked to the victim
about these marks and told the victim that she could get help and could go to the women’s



                                             -10-
shelter because “she did not have to take this.” The same day, the victim also showed Brown
a bruise on her right leg.

        Melba McKey, another co-worker, stated that the Friday before the victim’s death, the
victim told her that she believed Owens was cheating on her with a woman from the Buffalo
Market and asked her about what she should do. When McKey advised her to confront
Owens about the affair and leave him, the victim initially said that “she couldn’t leave him.”
However, the victim eventually told her that she was going to confront Owens about the
affair. McKey said that over the twelve years she had known the victim, she had seen
physical manifestations of her troubled relationship with Owens, which included bruises on
the victim’s neck and arm. McKey said that when she asked about the bruises on the victim’s
neck, which looked like fingerprints, the victim said Owens had choked her. McKey also
observed a bruise on the victim’s arm. When she saw these bruises, McKey told the victim
that she needed to leave Owens if he was abusing her, and the victim replied, “You don’t
understand. I can’t leave.” She said the victim often came into work upset on Mondays, and
McKey would tell her to leave him and get help. She acknowledged that the victim had
talked to her about Owens’s infidelity on more than one occasion.

         McKey said the victim was excited about her son’s wedding, was planning a shower
for him and his fiancee, and was looking for a dress to wear to the wedding. She stated that
the victim was wearing a boot on her foot shortly before her death but that it did not stop her
from working. McKey said that although the victim had talked to her about Owens’s
infidelity the Friday before she died, she did not seem unusually depressed and did not appear
suicidal. She said the victim never had talked about suicide and “was always talking about
. . . her kids, and grandkids, and stuff that was going on with them.”

        Karen Powell, another co-worker, testified that the victim was excited about her son’s
upcoming wedding and was looking for a dress to wear. She also stated that the victim was
throwing her son a wedding shower and had made arrangements to attend the wedding in
Florida. She said that the victim’s only medical condition that she was aware of was a stress
fracture to her foot, which prevented her from working a few days. Powell said she had
observed bruises on the victim a few times and had seen “hand marks around [the victim’s]
neck one time.” She also saw a big bruise on the victim’s leg and bruises on her arms on
different occasions. When she saw these bruises, she told the victim she needed to leave, and
the victim told her that she could not leave. Powell said that the week prior to the victim’s
death, the victim told her that she thought Owens was cheating on her and was thinking about
confronting him about the affair the weekend she died. Powell said that on Friday, the victim
stated, “I’m going to confront him. I’m just going to do it.” She said the victim never
mentioned harming herself or committing suicide. Powell admitted that the victim had
suspected Owens of cheating on her several times over the years.

                                             -11-
        Carol Wright, the human resources director at Jones’s Apparel, testified that the
victim had a life insurance policy and a 401(k) plan that named Owens as the beneficiary.
Approximately one week after the victim’s death, Owens asked her if the victim had a life
insurance policy, the amount of the policy, and the beneficiary of the policy. Owens
presented Wright with a copy of the victim’s death certificate, which indicated that it was
pending investigation. A few months later, Owens brought another death certificate stating
that the victim’s cause of death was “unknown.” Wright stated that Owens later received
$62,000 from the victim’s life insurance policy. She said he also received the funds that
were in the victim’s 401(k) plan, although she did not know the amount of these funds
because the 401(k) accounts were managed by another company.

        Steve Scott, a special agent in the Firearms Identification Unit of the TBI, was
declared an expert in the field of firearms examination and identification. He testified that
he examined the Smith & Wesson .357 magnum revolver involved in the victim’s death.
Agent Scott noted that this particular revolver had a large frame, which made it heavier, so
that it would absorb some of the recoil from the .357 magnum cartridges. He stated that the
cylinder in this revolver would rotate only if the hammer was manually cocked in a single-
action firing, or if the trigger was pulled in a double-action firing, or if the gun was
manipulated or the cylinder was opened and manually moved. He stated that regardless of
whether the revolver was fired in single-action or double-action, the spent cartridge would
end up underneath the hammer unless the gun was manipulated. He agreed that it took
human manipulation for the spent cartridge to end up one spot to the left of the hammer. He
stated that only one of the cartridges in the gun had been fired.

        On cross-examination, Agent Scott stated that it was TBI procedure to take a
permanent pen and mark the flutes on the cylinder of a revolver before opening the cylinder
to identify the particular chamber that was underneath the hammer. He said the revolver in
this case did not contain such markings.

       Several stipulations were entered into evidence, which included: (1) the victim’s
medical records from the Mid-Tennessee Bone and Joint Clinic, which showed that she had
been treated for knee, ankle, foot, elbow, neck, shoulder, and back pain and had undergone
several surgical procedures; (2) the victim’s Kroger pharmacy records, which showed that
she had received 66 prescriptions from four different doctors, including prescriptions for
Trazodone, Hydrocodone, Gabapentin, and other medications; and (3) the victim’s Wal-Mart
Pharmacy records, which showed several prescriptions for Trazodone.




                                            -12-
                                      Defense’s Proof

        Charles Hardy, a special agent with the TBI who worked at the Nashville Crime
Laboratory, was declared an expert in the field of serology and DNA analysis. Agent Hardy
testified he tested soap from the bathroom sink, a rag from the washing machine lid, Owens’s
clothing, a hand towel from the storage building, a washcloth from the northwest bathroom,
a swab from the bathroom sink, a washcloth and red rag from Owens, and a revolver from
the living room for DNA. He found that the washcloth from the bathroom and the swab from
the kitchen sink contained Owens’s blood. He stated that the revolver contained such
limited DNA that he was unable to obtain a DNA profile that belonged to a particular
individual.

        Linda Littlejohn, a special agent forensic scientist with the TBI, was declared an
expert in the field of microanalysis of fibers. She stated that she looked at the fibers that
were collected from the victim’s body and was asked to compare these fibers to the fibers
from the towels collected from the garage and the victim’s clothing. She stated that because
all the fibers collected contained white cotton fibers, she was unable to determine the source
of the fibers collected from the victim’s body.

       Tony Beard, a corporal with the Lawrence County Sheriff’s Department, testified that
he secured the crime scene until Detective Parker arrived. Corporal Beard stated that he kept
a log of everyone who entered and exited the crime scene.

       Robert Denton, a criminal investigator with the Lawrence County Sheriff’s
Department, testified that he assisted in collecting evidence and investigating the victim’s
death. He remembered that Owens sat at the kitchen table and appeared distraught at the
scene. He did not observe Owens washing his hands or wiping his face.

        Jeffrey Smith, one of the paramedics who arrived at the scene, testified that he noted
the medications that had been prescribed to the victim, which included Trazodone,
Gabapentin, Estradiol, Benicar, and Prevacid. He stated that Owens gave him information
about the victim’s medical history and showed him the victim’s medicine bottles. Smith
stated that Owens talked to him about the victim’s leg and foot pain but did not tell him that
the victim was suffering from mental illness or depression.

        William and Deborah Wilkerson, nearby neighbors, testified that Owens was standing
on his deck between 10:45 and 11:00 a.m. on February 8, 2009, and waved at them as they
left for church. Deborah Wilkerson stated that she attended the victim’s funeral and that
Owens was “real[ly] sad” and was crying.



                                             -13-
       Brian Robinson, the funeral director at Neal’s Funeral Home, testified that Owens
paid for the victim’s funeral. He said that although there was a dispute over where the victim
would be buried, Owens relented and allowed the victim to be buried at the location that her
children had chosen. Robinson stated that during the meeting, Owens was “distraught[,]”
“visibly upset[,]” and his eyes were red because he had been crying.

        David Brundage, a retired employee with the Illinois State Police and the Marion
County Forensic Services Agency, was declared an expert in the field of firearm
identification. Brundage opined that if the gun had been fired by the victim, it would have
been with her right hand because the entry wound was on the right side of her face. After
looking at one of the crime scene photographs, he noted that there was a red substance,
perhaps blood, on the fingers of the victim’s right hand. He said he was unable to review
the test results of the red substance on the victim’s right hand because no test had been
requested. Brundage stated that he was trained to mark the flutes of the cylinder of a
revolver with a permanent marker before examining it in order to clearly identify the
cartridge that was underneath the hammer. He stated that releasing the cylinder catch would
cause the cylinder to move. After examining the autopsy report and photographs, Brundage
opined that the Smith & Wesson revolver was fired one to three inches from the victim’s
head and had been fired at an angle.

        On cross-examination, Brundage acknowledged that once the gun in this case was
fired, the spent round would remain underneath the hammer unless human manipulation
caused the cylinder to move. He also acknowledged that because the cylinder on this gun
was stiff, it was unlikely that operating the release on the cylinder would cause the cylinder
to fly open and rotate, especially if an officer was holding the revolver down when the
cylinder was released. Brundage agreed that another way to identify the cartridge that was
under the hammer was to carefully release the cylinder and visually see where the spent
round was located.

        Daniel Smith, whose mother lived near Owens, testified that he had a beer with
Owens a couple of months after the victim’s death. Shortly thereafter, law enforcement came
to his house on a Saturday night and asked him to drive to the police station. When he told
them that he could not drive because he was intoxicated, the officers drove him to the station,
where they “tried to put words in his mouth” about Owens’s involvement in the victim’s
death. He stated that officers Beard and Bartrum questioned him for approximately four or
five hours before releasing him.

       Greg Owens, the Defendant-Appellant’s son, testified that his father was emotional
and crying immediately after the victim’s death. He also stated that his father was crying and
screaming his wife’s name at her funeral. Greg Owens said his father drove a green,

                                             -14-
Chevrolet truck, not a green Dodge truck, and identified a photograph of his father’s truck
at trial. He stated that his father had previously owned a green Dodge truck but had sold it
in 2006.

       The tape of Owens’s 9-1-1 call was played for the jury.

       Sentencing Hearing. At the June 4, 2012 sentencing hearing, the State admitted a
copy of the presentence investigation report and photographs of the victim during her
lifetime. The defense entered nine letters from Owens’s family and girlfriend into evidence,
as well as records from Owens’s treating physicians and surgeons that detailed his health
problems, which included coronary artery disease, diabetes, hypertension, circulatory
problems, and heart problems that required two heart by-pass surgeries.

       Dana Loudermilk, the victim’s daughter, testified that part of her died the day her
mother passed away. She said that because of her mother’s death, she had to miss work,
attend grief counseling, and seek counseling from her minister. She stated that to date, she
and her siblings had not received any monetary benefits from her mother’s estate. In
addition, she said that Owens had sold or given away most of her mother’s belongings and
jewelry. Loudermilk stated that Owens had taken all the funds from her mother’s bank
accounts, life insurance policy, and 401(k) plan. She asserted that her mother never told her
that she wanted to kill herself.

      Kevin Matlock, the victim’s son, testified that his mother had three children and four
grandchildren and that they were a very tight-knit family. He stated that his mother’s death
had negatively impacted the entire family.

                                        ANALYSIS

        Initially, we note that Owens has failed to include the transcript from the motion for
new trial hearing in the record on appeal. The appellant has the burden of ensuring that the
appellate record contains a fair, accurate, and complete account of what has occurred
regarding the issues that are the bases of the appeal. See Tenn. R. App. P. 24(b); State v.
Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). The appellant risks waiving the issues on appeal
if an incomplete record is submitted to this court. Here, the State has not asserted that Owens
waived his issues on appeal by failing to include this transcript, and the appellate record
contains the transcripts from the pretrial motions and trial, Owens’s motion and amended
motion for new trial, and the trial court’s order denying the motion for new trial. Therefore,
waiver notwithstanding, we will address Owens’s issues on their merits.




                                             -15-
        I. Admission of Owens’s Threat Against the Victim. Owens argues that the trial
court did not substantially comply with Rule 404(b) before declining to suppress evidence
of a alleged threat, overheard by Margaret Holder, that he made to the victim. He also argues
that the trial court erred in allowing the State to ask Holder about this threat a second time
during her testimony.

        A. Failure to Substantially Comply with Rule 404(b). First, Owens asserts that the
trial court did not substantially comply with Rule 404(b) in refusing to suppress Holder’s
testimony. He claims that although the trial court conducted a pretrial hearing, it failed to
determine that a material issue existed, other than conduct conforming with a character trait;
failed to find by clear and convincing evidence that he made this threat; and erroneously used
the standard in Tennessee Rule of Evidence 403 rather than the standard in Rule 404(b)(4)
in declining to suppress this evidence. Consequently, he asserts that this court should give
no deference to the trial court’s ruling and should consider the evidence offered at the pretrial
hearing, or the lack thereof, in determining whether this evidence should have been admitted.

        In addition, Owens argues that Holder’s testimony shows only that he had the
propensity to verbalize threats but does not show that he murdered the victim and does not
“rise to the level of becoming a material issue at trial.” He claims that the trial court could
not have found by clear and convincing evidence that this threat occurred because Holder
never testified at the pretrial hearing. He also contends that the probative value of this
evidence is outweighed by its prejudicial effect because “the jury could not have helped but
consider [his] propensity for threats and alleged desire to kill when rendering [its] verdict.”
Finally, he questions why Holder did not give her statement to investigators regarding
Owens’s alleged threat until August 31, 2011, given that the victim’s death occurred more
than two years earlier on February 8, 2009.

        Here, the State properly filed a notice of intent to use Holder’s testimony regarding
Owens’s threat against the victim, and the defense filed a motion to suppress this evidence.
In his suppression motion, Owens argued that Holder’s testimony regarding his alleged threat
to the victim was inadmissible testimony and was “useful only for the expressly forbidden
purpose of proving [his] propensity to act in conformity with a character trait, and [was]
therefore inadmissible.”

       At a pretrial hearing, the State informed the court that it did not want to force Holder
to come to court more than one time because she was elderly and used a walker. The defense
acknowledged that the court could rule on the admissibility of Holder’s testimony based on
her written statement to the TBI investigator.




                                              -16-
        At the pretrial hearing, the defense acknowledged that Holder’s testimony would be
that during a conversation with the victim, she overheard Owens tell the victim that he was
going to kill her with a .357 revolver. The trial court ruled that Owens’s threat to the victim
was admissible. It noted that Holder could testify about the Owens threat because she could
identify her son-in-law’s voice over the phone. When defense counsel asked if Holder’s
testimony would be admissible under hearsay and Rule 404, the court replied that it would
be admissible under both. Regarding the hearsay challenge, it held that Owens’s threat was
an admission by a party opponent. In addition, regarding the Rule 404 challenge, it held that
“the prejudicial effect [of Holder’s testimony did] not substantially outweigh whatever the
probative value of [the] statement is, okay. So I’m going to let that come in.” During this
hearing, the defense never objected to Holder’s failure to testify, never argued that the court
failed to determine whether the proof of this bad act was clear and convincing, and never
asserted that the court used the improper standard in weighing the probative value of the
evidence against the unfair prejudice. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall
be construed as requiring relief be granted to a party responsible for an error or who failed
to take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.”). The court later entered an order denying Owens’s motion to suppress Holder’s
testimony pursuant to Rule 404(b) because “the statement’s probative value [was] not
substantially outweighed by its prejudicial effect.”

       We note that evidence of a defendant’s character offered for the purpose of proving
that he or she acted in conformity with that character is inadmissible. See Tenn. R. Evid.
404(a). However, evidence of other crimes, wrongs, or bad acts may be admissible for other
purposes if this evidence satisfies the conditions in Rule 404(b).

       Rule 404(b) states:

       Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts
       is not admissible to prove the character of a person in order to show action in
       conformity with the character trait. It may, however, be admissible for other
       purposes. The conditions which must be satisfied before allowing such
       evidence are:

       (1) The court upon request must hold a hearing outside the jury’s presence;
       (2) The court must determine that a material issue exists other than conduct
       conforming with a character trait and must upon request state on the record the
       material issue, the ruling, and the reasons for admitting the evidence;
       (3) The court must find proof of the other crime, wrong, or act to be clear and
       convincing; and



                                             -17-
       (4) The court must exclude the evidence if its probative value is outweighed
       by the danger of unfair prejudice.

Tenn. R. Evid. 404(b). The term “other purposes” in the aforementioned rule has been
defined to include motive, intent, guilty knowledge, identity of the defendant, absence of
mistake or accident, a common scheme or plan, completion of the story, opportunity, and
preparation. State v. Berry, 141 S.W.3d 549, 582 (Tenn. 2004) (citing State v. Robert Wayne
Herron, No. M2002-00951-CCA-R3-CD, 2003 WL 151201, at *2 (Tenn. Crim. App. Jan.
22, 2003)).

       If a trial court substantially complies with the procedural requirements of Rule 404(b),
we will review the trial court’s determination for an abuse of discretion. State v. Thacker,
164 S.W.3d 208, 240 (Tenn. 2005) (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn.
1997); State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1990)). However, if a trial
court fails to substantially comply with the requirements of the rule, then the trial court’s
decision should be afforded no deference by the reviewing court. DuBose, 953 S.W.2d at
652.

        In this case, the trial court properly conducted a hearing outside the presence of the
jury. We note that at the pretrial hearing Owens failed to request that the trial court state the
material issue other than conduct conforming to a character trait, its ruling, and the reason
for admitting the evidence. See Tenn. R. Evid. 404(b)(2). That being said, we acknowledge
that the trial court did not explicitly determine that a material issue existed other than conduct
conforming with a character trait, did not find proof of the other crime, wrong, or act to be
clear and convincing, and did not use the correct standard in determining whether to exclude
the evidence. See Tenn. R. Evid. 404(1), (3), (4). Because the trial court failed to
substantially comply with the requirements of the rule, its decision is entitled to no deference,
and we most conduct a de novo review. DuBose, 953 S.W.2d at 652. In conducting this
review, we must consider the evidence presented at the pretrial hearing in determining the
admissibility of the evidence under Rule 404(b). Id. at 653.

       After conducting our de novo review, we conclude that the trial court properly
determined that Holder’s testimony was admissible under Rule 404(b). Evidence that
Owens, two days before the victim’s death, threatened to shoot the victim with his .357, the
same weapon that caused the victim’s death, goes to the material issue of Owens’s motive
and intent to kill the victim. Owens’s intent is of particular significance in this case because
the jury had to determine whether the victim’s death was the result of homicide or suicide.
See State v. Smith, 868 S.W.2d 561, 574 (Tenn. 1993) (holding that evidence of the
defendant’s threats to kill the victims “was admitted not to prove the Defendant acted in
accord with this character but as part of the proof establishing his motive for the killings”);

                                              -18-
State v. Glebock, 616 S.W.2d 897, 906 (Tenn. Crim. App. 1981) (stating that evidence that
the defendant broke into the victim’s apartment and sent the victim a threatening postcard
were relevant and admissible because they “indicate[d] hostility toward the victim and a
settled purpose to harm or injure her”). Although Holder did not testify at the pretrial
hearing, she had at the time of the hearing given a written statement to a TBI investigator,
and she later testified in accordance with that written statement at trial, so we find proof of
this evidence to be clear and convincing. Moreover, the defense conceded that Holder’s
appearance at the pretrial hearing was not necessary. Finally, we find that the extremely
probative value of this evidence was not outweighed by the danger of unfair prejudice. State
v. James Michael Naive, No. M2012-00893-CCA-R3-CD, 2013 WL 4505395, at *18 (Tenn.
Crim. App. Aug. 21, 2013) (concluding that the probative value of the defendant’s
threatening voicemail for the victim a few days prior to her murder was not outweighed by
the danger of unfair prejudice pursuant to Rule 404(b)); State v. Shelly Minor, No. W2010-
01677-CCA-R3-CD, 2012 WL 3055776, at *9 (Tenn. Crim. App. July 26, 2012), perm. app.
denied (Tenn. Jan. 22, 2013) (holding that the probative value of prior incidents of the
defendant’s violent, abusive behavior toward the victim was not outweighed by the danger
of unfair prejudice pursuant to Rule 404(b)). Therefore, we conclude that the trial court did
not err in admitting Holder’s testimony about Owens’s threat against the victim.

       B. Repetition of Holder’s Testimony. Owens also argues that the trial court erred
in allowing Holder to repeat her testimony about Owens’s threat to the victim, over the
defense’s objection. He asserts that the repetition of this evidence allowed the State to
emphasize its extremely prejudicial nature, which suggested a decision on an improper basis.
See State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978) (noting that unfair prejudice in Rule
403 has been defined as “[a]n undue tendency to suggest decision on an improper basis,
commonly, though not necessarily, an emotional one”).

        Here, Owens objected on the basis that the question had been “asked an answered.”
He claims that the trial court committed reversible error in ruling, “I’m going to . . . let [the
prosecutor] ask one more time, like I did with you.” We note that “[t]he propriety, scope,
manner and control of examination of witnesses is within the trial court’s discretion and will
not be interfered with in the absence of an abuse of discretion.” State v. Harris, 839 S.W.2d
54, 72 (Tenn. 1992) (citing Edwards v. State, 424 S.W.2d 783, 786 (Tenn. 1968); State v.
Elliott, 703 S.W.2d 171, 176 (Tenn. Crim. App. 1985)). The court indicated that it was
giving the State the same leeway in questioning that it had given the defense several times
during trial. The record shows that the State repeated its question to Holder a single time.
Moreover, as noted by the State, the defense asked Dr. Li about his inability to determine the
manner of the victim’s death multiple times at trial. When the State objected on the basis that
this question had been “[a]sked and answered, Your Honor, about 10 times,” the court
replied, “Well, it’s cross. I’ll let him go one more time.” Our review of the trial transcript

                                              -19-
shows that the court allowed both the State and the defense to repeat questions to witnesses
regarding key pieces of evidence. Accordingly, we conclude that the trial court did not abuse
its discretion in allowing Holder to repeat her testimony.

        II. Admission of the Victim’s Statements. Owens argues that several statements
made by the victim were improperly admitted. Specifically, he claims that the trial court
erred in allowing Dana Loudermilk, Mary Ellen Cotton, Melba McKey, Shirley Brown, and
Karen Powell to testify about the victim’s statements regarding her excitement about her
son’s upcoming wedding. He also claims that McKey should not have been allowed to
testify about the victim’s statements regarding Owens’s infidelity and her intent to confront
him about his new girlfriend. Owens asserts that the victim’s statements are hearsay and do
not fall within a recognized hearsay exception. Moreover, he claims that the victim’s
statements “rebut[ted] the position that the decedent committed suicide” and “bolster[ed] the
state’s theory that [he] was a womanizing abusive husband.”

         Hearsay is “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Rule 802 states that “hearsay is not admissible except as provided by these rules or
otherwise by law.” Tenn. R. Evid. 802. “‘The determination of whether a statement is
hearsay and whether it is admissible through an exception to the hearsay rule is left to the
sound discretion of the trial court.’” State v. Thomas, 158 S.W.3d 361, 400 (Tenn. 2005)
(quoting State v. Stout, 46 S.W.3d 689, 697 (Tenn. 2001)). This court will not interfere with
the exercise of that discretion unless a clear abuse appears on the face of the record. State
v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007)).

      The exception to the hearsay rule for statements regarding the declarant’s state of
mind or physical condition states that the following is not excluded by the hearsay rule:

       A statement of the declarant’s then existing state of mind, emotion, sensation,
       or physical condition (such as intent, plan, motive, design, mental feeling,
       pain, and bodily health), but not including a statement of memory or belief to
       prove the fact remembered or believed unless it relates to the execution,
       revocation, identification, or terms of declarant’s will.

Tenn. R. Evid. 803(3). The Advisory Commission Comment for this hearsay exception
states: “This is the state of mind hearsay exception, long recognized by Tennessee courts.
Combining the hearsay exception with relevancy principles, declarations of mental state will
be admissible to prove mental state at issue or subsequent conduct consistent with that mental
state.” Tenn. R. Evid. 803(3), Advisory Comm’n Comment.

                                              -20-
        A. Excitement about Son’s Wedding. Owens argues that the trial court should not
have admitted testimony from Loudermilk, Cotton, McKey, Brown, and Powell about the
victim’s statements that she was excited about her son’s upcoming wedding. He contends
that this testimony prejudiced him because it refuted his claim that the victim committed
suicide.

        At the pretrial hearing regarding these statements, Cotton testified that the victim “was
really excited about her son’s wedding” that summer and “had been looking for a dress.”
Brown testified that two or three days prior to the victim’s death, the victim told her that her
son was getting married. McKey testified that the victim had also told her that her son was
getting married and that she was helping her son’s fiancee plan the wedding shower in May.
During the hearing, the trial court held that the fact that the victim “was making plans, she
was doing this, she was calling setting up a place to have the wedding and that type of thing,
I’m going to allow it to come in through these witnesses.” However, the court held that it
was not going to allow the witnesses to testify that the victim was not the type of person to
commit suicide, stating, “If there are specific things where they get past lay testimony and
get into expertise, psychological state of mind, that type of thing, you can raise the objection
and we’ll address it as it comes up.” After the hearing, the court entered an order denying
Owens’s motion to suppress testimony from witnesses that the victim was planning the
wedding of her son, “so long as the witnesses do not express what amounts to expert
opinions.” The testimony of Cotton, Brown, and McKey at trial was similar to their
testimony at the pretrial hearing.

        At a later pretrial hearing, Powell did not testify but the State informed the court that
Powell’s testimony would be consistent with the testimony of Cotton, Brown, and McKey.
At trial, Powell testified that the victim was excited about her son’s upcoming wedding and
was looking for a dress to wear. She also stated that the victim was throwing her son a
shower and that she was going to Florida for the wedding. In a later order, the trial court
held that Powell could testify about “what she observed regarding the [victim’s]
demeanor[.]” Loudermilk testified at trial that the victim was excited about her son’s
wedding and that the victim was helping make the wedding arrangements. In its order, the
court held that “statements relating to the deceased’s son’s upcoming nuptials will be
admitted.”

       We conclude that this evidence was admissible because it was non-hearsay. The
victim’s statements regarding her excitement about her son’s wedding were not offered to
prove that she was, in fact, excited about the wedding but were instead offered to prove the
victim’s state of mind during the period prior to her death. As we previously noted, the
victim’s mental state was particularly significant in this case because the jury had to
determine whether her death was the result of homicide or suicide. The victim’s statements

                                              -21-
that she was excited about attending her son’s May wedding refuted the defense’s theory that
she committed suicide because she was in a great deal of pain or because she was taking
medication that increased her risk for suicidal thoughts and behaviors. Admission of this
evidence allowed the jury to consider whether the victim’s happiness and excitement
regarding her son’s wedding made it unlikely that she would have committed suicide three
months before her son’s wedding. These statements were not offered for the truth of the
matter asserted and were instead offered to show that her mental state prior to her death made
it unlikely that she took her own life. Accordingly, this evidence was properly admitted as
non-hearsay.

       B. Owens’s Infidelity and the Victim’s Intent to Confront Him. Owens also
argues that the trial court erred in allowing Melba McKey to testify about the victim’s
statements regarding Owens’s infidelity and her intention to confront him about his cheating
because these statements were hearsay and were not within an exception to hearsay. He
again claims that these statements were prejudicial because they rebutted his claim that the
victim committed suicide. He also argues that the jury decided his case based on their
disapproval of his infidelity and used evidence that the victim was going to confront him
about his infidelity as a motive for him to murder her.

         At the pretrial hearing, McKey testified that on the Friday before the victim’s death,
the victim had told her that she believed that Owens was cheating on her. She told the victim
to confront Owens about the affair and leave him. At the pretrial hearing, the court held,
“I’m going to let the fact that [the victim] thought [Owens] was having an affair come in
under the state of mind exception. Not all – and I don’t think it’s offered to prove . . . the
truth of the matter asserted that he was [having an affair]. It was offered to prove that she
thought he was.” After the hearing, the court entered an order denying Owens’s motion to
suppress because the victim’s statements to McKey were not offered for the truth of the
matter asserted and were admissible. McKey testified similarly at trial, with the exception
that McKey stated that the Friday prior to the victim’s death, the victim said that she was
going to confront Owens about the affair. The defense never objected to McKey’s testimony
at trial. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring
relief be granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”).

       We recognize that whether this evidence is admissible as non-hearsay or as a state of
mind exception to the hearsay rule is a close question. However, we conclude that this
evidence was admissible under the state of mind exception to the hearsay rule because it
established the victim’s intent and plan to confront Owens about his infidelity at the time of
her death. See State v. Trusty, 326 S.W.3d 582, 603(Tenn. Crim. App. 2010) (victim’s
statements about her fear of the defendant, which were made close to the time of her death,

                                             -22-
were admissible under the state of mind exception to the hearsay rule and were relevant to
show her state of mind at the time she made the statement and her behavior at the time of her
death); State v. Hutchinson, 898 S.W.2d 161, 172 (Tenn. 1994) (victim’s statement that he
was going fishing “with the boys” was admissible to show his state of mind, i.e., that he
intended to go fishing, and connected one of the defendants to the fishing trip where the
victim was drowned). As we previously mentioned, the victim’s state of mind was at issue
in this case because Owens claimed that the victim’s death was the result of suicide rather
than homicide. The victim’s intent to confront Owens was relevant because it provided a
motive for Owens to kill her. Accordingly, Owens is not entitled to relief on this issue.

        III. The Scope of Loudermilk’s Re-Direct Examination. Owens contends that
after the defense elicited favorable testimony from Dana Loudermilk on cross-examination,
the trial court, over the defense’s objection, allowed the State to question Loudermilk about
whether Owens financially benefitted from the victim’s death. Owens asserts that these
questions exceeded the scope of redirect examination or were irrelevant.

       “It is well-settled that the propriety, scope, manner and control of the examination of
witnesses is a matter within the discretion of the trial judge, subject to appellate review for
abuse of discretion.” State v. Caughron, 855 S.W.2d 526, 540 (Tenn. 1993) (citing Elliott,
703 S.W.2d at 176); see Harris, 839 S.W.2d at 72. Moreover, “[t]he admissibility of
testimony and other evidence, as well as the scope of redirect examination, is within the
discretion of the trial court, whose ruling will not be reversed absent an abuse of that
discretion.” State v. Chearis, 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999) (citing State v.
Barnard, 899 S.W.2d 617, 624 (Tenn. Crim. App. 1994)). Although the scope of redirect
examination is not addressed by the Tennessee Rules of Evidence, “Tennessee law is
well-settled that redirect examination can broach topics raised on cross-examination even
though those matters were not inquired into on direct examination.” State v. Baker, 966
S.W.2d 429, 433 (Tenn. Crim. App. 1997). We also recognize that the trial court “has
discretion to permit the witness on redirect to testify about new facts that were not mentioned
on direct or cross-examination.” Neil P. Cohen et al., Tennessee Law of Evidence §
6.11[6][b] (4th ed. 2000).

        Here, on direct examination, Dana Loudermilk testified that she, her brother, and her
sister had filed a civil wrongful death lawsuit against Owens and that they had obtained a
default judgment against him. Defense counsel cross-examined Loudermilk about the
lawsuit’s details, wherein she acknowledged that the parties had sued for 9.7 million dollars
and that an order had been entered taking the judgment under advisement. She also
acknowledged that the order stated that if Owens were found not guilty at trial, then the
default judgment could be set aside and additional litigation could occur. On redirect
examination, the State asked Loudermilk about Owens’s receipt of the victim’s bank account

                                             -23-
proceeds, 401(k) proceeds, and life insurance policies. The defense objected on the basis that
this evidence was outside the scope of cross examination, and the trial court ruled the State’s
questions on redirect examination were proper because the defense had “opened the door”
to this evidence when it asked Loudermilk about the details of the wrongful death lawsuit.
Loudermilk subsequently testified on redirect examination that no family member, other than
Owens, received any funds from the victim’s bank accounts, 401(k) accounts, or any
proceeds from the victim’s life insurance policy after her mother’s death. She also stated that
Owens did not allow her to have any of the victim’s personal belongings and sold some of
the victim’s jewelry and other belongings at a flea market.

       Owens asserts that his cross-examination of Loudermilk did not “open the door” to
the State’s questions on redirect examination because his questioning on cross-examination
“merely expounded upon the wrongful death judgment” elicited during Loudermilk’s direct
examination. He asserts that the defense questioned Loudermilk about the default wrongful
death judgment not to determine whether Loudermilk had received any financial benefit from
her mother’s death but to show that the default judgment would be set aside if he were found
not guilty in the criminal case. In addition, he asserts that he was prejudiced by the trial
court’s allowing the State’s questions on redirect examination because it allowed the State
to bolster its theory that Owens murdered the victim to receive a financial windfall. He also
argues that Loudermik’s testimony that Owens prevented her from receiving any of her
mother’s personal belongings was irrelevant because it did not have the tendency to prove
whether he committed the offense against the victim and was prejudicial because it had no
purpose other than to invoke sympathy for Loudermilk and anger toward him.

       We conclude that the trial court properly allowed the State to elicit testimony from
Loudermilk that Owens was the only person to receive money from the victim’s death and
that Owens did not allow her to have any of her mother’s personal belongings. As we
previously recognized, a trial court has the discretion to allow a witness on redirect to testify
about new facts that were not discussed during direct or cross-examination. See Neil P.
Cohen et al., Tennessee Law of Evidence § 6.11[6][b] (4th ed. 2000). On cross-examination,
Owens specifically asked Loudermilk how much she and the other plaintiffs had sued for in
their wrongful death suit. Because Owens raised the issue of the amount prayed for in the
wrongful death complaint, the trial court did not err in allowing the State to question
Loudermilk about whether the victim’s family had received any funds or belongings
following her death. Moreover, the evidence elicited on redirect examination was relevant
and admissible because it provided an additional motive for Owens to kill the victim, i.e., to
obtain the victim’s money and belongings. Accordingly, we conclude that the trial court did
not abuse its discretion by allowing the State to pursue this line of questioning.




                                              -24-
       IV. Witnesses’ Observations Regarding the Victim’s Injuries. Citing State v.
Gilley, 297 S.W.3d 739 (Tenn. Crim. App. 2008), Owens argues that the trial court erred in
allowing Mary Cotton, Shirley Brown, Melba McKey, and Karen Powell to testify that they
observed bruises to the victim, prior to her death.

        Here, Owens filed pretrial motions arguing that testimony regarding the victim’s
bruises prior to her death was inadmissible pursuant to Rules 401, 403, and 404(b). At the
pretrial hearing, the trial court heard testimony from Cotton, Brown, and McKey. Cotton
testified that she observed bruises on the victim’s arms and wrists on several different
occasions. Brown testified that in 2005, she observed fingerprint bruises on the victim’s
neck and a large bruise on the victim’s leg. McKey testified that she had observed bruises
on the victim’s neck and arms in 2005. Following this testimony, the court stated that it
would take all Rule 404(b) issues under advisement.

       At a later pretrial hearing, the defense acknowledged that the State had filed a notice
of prior bad acts that would be testified to by Karen Powell. The defense further
acknowledged that “based on the content of their notice, whether or not they’ve had
sufficient time to talk to that witness, to really understand what she’s going to testify to, so
[that motion] we might want to look at on another date.” The State offered that although it
did not yet have a written statement, Powell’s testimony would be consistent with the
testimony of Cotton, Brown, and McKey. At the hearing, the court held that Cotton, Brown,
McKey, and Powell could “testify as to what they saw, just not what [the victim] said.”
Following this hearing, the court entered an order denying Owens’s motion to suppress
Cotton’s testimony regarding the victim’s bruises:

       [T]he court finds that there is a material issue other than conduct conforming
       with a character trait, that is the relationship of . . . Mr. and Mrs. Owens, Mr.
       Owens’ intent, and Mr. Owens’ motive. The Court also finds the testimony of
       Ms. Cotton of the other wrong or acts on the part of Mr. Owens, as evidenced
       by the bruises to be clear and convincing. Finally, the Court also finds the
       probative value of the testimony is not outweighed by the danger of unfair
       prejudice.

The court entered similar rulings regarding the testimony of Brown and McKey. In a later
order, the court held that Powell could testify “as to what she observed regarding the
demeanor and physical appearance of the decedent” but that “[s]tatements from the decedent
to Ms. Powell regarding the origin of her injuries shall be prohibited on hearsay grounds.”
In addition, the court precluded Powell and any other witnesses from testifying about the
victim’s fear of Owens given that such testimony was “irrelevant and therefore
inadmissible.”

                                              -25-
         At trial, Cotton testified that she knew that Owens and the victim “had a troubled
relationship” that often caused the victim to be upset at work. She said she had observed
bruises on the victim’s wrists and arms on several different occasions. However, Cotton
acknowledged on cross-examination that she did not know how the victim had gotten these
bruises. Brown testified that she knew the victim had a “very rocky, unstable relationship”
with Owens. In particular, she remembered one Monday that the victim was not very
talkative at work. When she went to talk to the victim to see what was wrong, she observed
fingerprint marks on the victim’s neck. Brown talked to the victim about these marks and
told the victim that she could get help and could go to the women’s shelter because “she did
not have to take this.” The same day, the victim also showed Brown a bruise on her right leg.
McKey said that over the twelve years she had known the victim, she had seen physical
manifestations of her troubled relationship with Owens in the form of bruises on the victim’s
neck and arm. When she asked about the bruises on the victim’s neck, which looked like
fingerprints, the victim said Owens had choked her. She also observed a bruise on the
victim’s arm. When she saw these bruises, McKey said she told the victim that she needed
to leave Owens if he was abusing her, and the victim replied, “You don’t understand. I can’t
leave.” She said the victim often came into work upset on Mondays, and McKey would tell
her to leave him and get help. Finally, Powell testified that she had observed bruises on the
victim a few times and had seen “hand marks around [the victim’s] neck one time.” She also
saw a big bruise on the victim’s leg and bruises on her arms on different occasions. When
she saw these bruises, she told the victim she needed to leave, and the victim told her that she
could not leave. We note that Cotton, Brown, McKey, and Powell provided slightly different
testimony at trial than at the pretrial hearing and that some of these witnesses indicated that
Owens had caused the victim’s bruises. However, Owens never objected to this testimony
at trial and arguably waived this issue for review. We note that relief on appeal is typically
not available when a party is “responsible for an error” or has “failed to take whatever action
was reasonably available to prevent or nullify the harmful effect of any error.” Tenn. R. App.
P. 36(a).

       Waiver notwithstanding, we note that the trial court substantially complied with the
requirements of Rule 404(b). The trial court properly conducted a hearing outside the
presence of the jury. See Tenn. R. Evid. 404(b)(1). The trial court then determined that a
material issue existed other than conduct conforming with a character trait, found proof of
the other crime, wrong, or act to be clear and convincing, and properly weighed the probative
value of the evidence against any unfair prejudicial effect. See Tenn. R. Evid. 404(b)(2), (3),
(4). Because the trial court substantially complied with the requirements of Rule 404(b), we
will review the trial court’s determination for an abuse of discretion. Thacker, 164 S.W.3d
at 240 (citing DuBose, 953 S.W.2d at 652; Baker, 785 S.W.2d at 134). After reviewing the
record, we conclude that the trial court did not abuse its discretion in admitting this evidence.
We agree with the court that the probative value of this evidence outweighed the danger of

                                              -26-
unfair prejudice because Owens claimed the victim’s death was a suicide and the bruises on
different occasions indicated a “settled purpose” to harm the victim. Smith, 868 S.W.2d at
574 (“[V]iolent acts indicating the relationship between the victim of a violent crime and the
defendant prior to the commission of the offense are relevant to show defendant’s hostility
toward the victim, malice, intent, and a settled purpose to harm the victim”); State v.
Turnbill, 640 S.W.2d 40, 46-47 (Tenn. Crim. App. 1982) (concluding that evidence that the
defendant had committed a crime against the victim was admissible because the details of
the prior crime were relevant to the issue of the defendant’s intent); Glebock, 616 S.W.2d at
905-06 (holding that evidence that the defendant broke into the victim’s apartment and sent
her a threatening postcard was admissible because it “indicate[d] hostility toward the victim
and a settled purpose to harm or injure her”). After hearing the proposed testimony at the
pretrial hearing, the trial court limited the testimony regarding the bruises to what these
witnesses observed and precluded testimony about what the victim had told them about the
bruises. In addition, the court held that these witnesses could not testify about the origin of
the bruises or the victim’s fear of Owens.

       In Gilley, 297 S.W.3d at 758, this court held that a witness’s testimony that she
observed bruises that looked like fingerprints on the victim’s upper arm, where the witness
did not see the events causing the bruises, should not have been admitted under Rule 404(b)
because it was “not relevant and potentially misleading.” However, the court determined that
admission of this witness’s testimony was harmless error because several other eyewitnesses
had testified that they observed the defendant abuse the victim. Id.

        Owens, citing Gilley, argues that admission of the testimony from Cotton, Brown,
McKey, and Powell is not harmless error because the State did not present testimony from
a witness who personally observed Owens’s abuse of the victim. He claims that each of
these witnesses supported the State’s theory that Owens was “a womanizing wife beater” and
the jury would not have found him guilty if these witnesses had not testified. Contrary to
Owens’s claim, we note that Rhonda Journey testified that she personally observed a struggle
between Owens and the victim on her back deck. Journey said she heard the victim scream
for help and bang on her bedroom window. She then heard the victim say, “No, Danny, no.”
Journey stated that she called 9-1-1 after hearing the struggle. Moreover, Deputy Ward
testified that when he went to the Owens residence in response to Journey’s 9-1-1 call, he
saw that the victim had sustained several injuries to her mouth, lip, face, and wrist.
Moreover, Holder testified that she overheard Owens threaten to shoot the victim with his
.357 revolver two days before the victim’s death. See Tenn. R. App. P. 36(b). In contrast to
the witness’s testimony in Gilley, the testimony in this case closely connected Owens to the
victim’s bruises and established Owens’s ongoing intent to harm the victim. Given the
testimony from Holder and Journey, as well as the other evidence of his guilt, we cannot see



                                             -27-
how Owens was unfairly prejudiced by the witnesses’ testimony regarding the victim’s
bruises.

        V. Sufficiency of the Evidence. Owens argues that the evidence is insufficient to
support his conviction for second degree murder because the proof does not establish that he
knowingly killed his wife. In support of this argument, he asserts that: (1) the medical
examiner was unable to determine whether the victim’s manner of death was homicide or
suicide; (2) the results of the victim’s gunshot residue test were inconclusive; (3) no
identifiable fingerprints were found on the gun; (4) no DNA evidence connected him to his
wife’s death; (5) the results of the fiber analysis test did not connect him to his wife’s death;
(6) the victim had been taking medications with warnings about a possible increased risk for
suicidal thoughts and behaviors; (7) the jury heard inadmissible evidence from several
witnesses, as previously discussed; and (8) Detective Hardy’s method of inspecting the gun
was “suspect and inconsistent with the method described by expert witnesses Scott and
Brundage[.]”

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing 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, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case
where there is direct evidence, circumstantial evidence, or a combination of the two. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551
S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The
trier of fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the evidence, this
court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-
79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the jury, approved by
the trial court, accredits the testimony of the witnesses for the State and resolves all conflicts
in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A guilty verdict also
“removes the presumption of innocence and replaces it with a presumption of guilt, and the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).



                                               -28-
        “In the absence of direct evidence, a criminal offense may be established exclusively
by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-
58 (Tenn. 1958)). However, “[t]he jury decides the weight to be given to circumstantial
evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable,
313 S.W.2d at 457). This court may not substitute its inferences for those drawn by the trier
of fact in cases involving circumstantial evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn.
2011) (citing State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)). We note that the standard
of review “‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (quoting State v. Sutton,
166 S.W.3d 686, 689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000).
The court in Dorantes specifically adopted the standard for circumstantial evidence
established by the United States Supreme Court in Holland:

              “Circumstantial evidence . . . is intrinsically no different from
       testimonial evidence. Admittedly, circumstantial evidence may in some cases
       point to a wholly incorrect result. Yet this is equally true of testimonial
       evidence. In both instances, a jury is asked to weigh the chances that the
       evidence correctly points to guilt against the possibility of inaccuracy or
       ambiguous inference. In both, the jury must use its experience with people and
       events in weighing the probabilities. If the jury is convinced beyond a
       reasonable doubt, we can require no more.”

Dorantes, 331 S.W.3d at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

        Owens was convicted of second degree murder, which is defined as “[a] knowing
killing of another[.]” T.C.A. § 39-13-210(a)(1). “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.” Id. § 39-11-302(b). Whether a defendant acts knowingly in
killing another is a question of fact for the jury. State v. Brown, 311 S.W.3d 422, 432 (Tenn.
2010); State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App. 2000). The jury may infer
intent from the character of the assault, the nature of the act, and from all of the
circumstances of the case in evidence. Inlow, 52 S.W.3d at 105.

       We conclude that the evidence, though circumstantial, is sufficient to sustain Owens’s
conviction for second degree murder. Holder testified that the Friday before the victim’s
death, she overheard Owens threaten to kill the victim with his new .357 revolver. Journey,
a former neighbor, testified that she called the police after witnessing a physical altercation

                                             -29-
between Owens and the victim. Deputy Ward, who responded to Journey’s call about the
domestic disturbance between Owens and the victim, testified that he saw that the victim had
sustained injuries to her mouth, lip, face, and wrist when he arrived at their residence.
Cotton, Brown, McKey, and Powell, the victim’s co-workers, testified that the victim had a
violent, unstable relationship with Owens and that they had observed bruises on the victim
in the past. Brown, McKey and Powell testified that they had advised the victim to leave
Owens several times.

       The defense theory at trial was that the victim had committed suicide. Although
Owens argues on appeal that some of the evidence at trial supported his defense of suicide,
we conclude that there was more than sufficient evidence to support the State’s theory that
Owens knowingly shot and killed the victim. We note that it is the jury’s duty to resolve
conflicts in the evidence. See Odom, 928 S.W.2d at 23. Despite the fact that there was
conflicting evidence regarding whether the victim committed suicide, the jury rejected the
defense’s theory of suicide in favor of the State’s theory that Owens had knowingly killed
his wife. We will not second-guess the jury’s decision because there is sufficient evidence
to sustain the verdict.

        Much of the evidence presented at trial indicated that the victim’s death was the result
of a homicide rather than a suicide. Brown, McKey, Powell, and Loudermilk testified that
the victim was very excited about her son’s wedding, was planning on attending the
ceremony in Florida, and had been shopping for a dress to wear. Brown testified that the
victim did not appear depressed shortly before her death. McKey stated that the victim had
told her that Owens had been unfaithful on more than once occasion and that she had decided
to confront Owens about his most recent infidelity the Friday before her death. Powell
stated that the victim was unhappy about the fact that Owens currently had a girlfriend but
that Owens had been unfaithful several times in the past and the victim had never talked
about committing suicide. She also stated that the victim intended to confront Owens about
his infidelity the weekend of her death. Loudermilk stated that her mother had never
mentioned suicide to her. She asserted that although her mother had been treated by an
orthopedist for arthritis and joint problems, the pain associated with these conditions was not
enough to keep her mother from doing her daily activities and working at her job.

        Moreover, although the results from Owens’s gunshot residue test were not processed
because the kit used did not meet TBI protocols, Officer Daniels and paramedic Ronald
Butrum testified that they witnessed Owens repeatedly washing his hands, and Agent Hodge
testified that a person could remove gunshot residue by washing his hands. Carol Wright,
the human resources director at the victim’s company, testified that approximately one week
after the victim’s death, Owens asked her if the victim had a life insurance policy and
inquired about the amount of the policy and the beneficiary of the policy. She stated that he

                                              -30-
received $62,000 from the victim’s life insurance policy and all of the funds in the victim’s
401(k). Loudermilk testified that Owens was the only person to receive any money from the
victim’s bank accounts, life insurance, and 401(k) accounts after the victim’s death.

        The medical evidence also indicated that suicide was unlikely. Although Dr. Li
testified that he could not conclusively determine the victim’s manner of death, he stated that
gunshot wounds in suicides are typically on the forehead, the temple, or sometimes inside the
mouth and that wounds on other parts of the head were “very rarely” seen in suicides. He
also stated that the victim’s wounds in this case were unusual because of the location of the
wounds and the direction of the bullet path. Finally, Dr. Li opined that the weapon found at
the scene, which was heavy, would have been difficult for the victim to hold to produce the
type of injury she suffered.

       Furthermore, the revolver provided strong evidence that the victim’s death was a
homicide. Agent Scott, Detective Hardy, and Officer Daniels all testified that the spent
cartridge would have been underneath the hammer of the revolver if the victim had fired a
single, self-inflicted gunshot. Although Owens presented the theory that the improper
handling of the revolver at the crime scene affected the position of the fired cartridge, it was
the jury’s duty to evaluate the credibility of witnesses, to determine the weight given to
testimony, and to resolve all conflicts in the evidence. See Odom, 928 S.W.2d at 23. For this
reason, we will not “reweigh or reevaluate the evidence.” Henley, 960 S.W.2d at 578-79.
Based on this evidence, a reasonable jury could have concluded that Owens knowingly killed
the victim with his .357 revolver. Therefore, we conclude that the proof is sufficient to
sustain Owens’s conviction for second degree murder.

        VI. Cumulative Error. Owens argues that the cumulative effect of the trial court’s
errors resulted in an unfair trial. Specifically, he claims that Holder’s testimony regarding
his alleged threat to the victim, the repetition of Holder’s testimony, the admission of the
victim’s hearsay statements, the testimony of witnesses who observed bruising on the victim,
and the State’s questioning of Loudermilk on redirect examination prejudiced him and
prevented him from receiving a fair trial. Because we have already determined that Owens
is not entitled to relief on any of his issues on appeal, we need not consider the cumulative
effect of the alleged errors. State v. Hester, 324 S.W.3d 1, 77 (Tenn. 2010) (“To warrant
assessment under the cumulative error doctrine, there must have been more than one actual
error committed in the trial proceedings.”).

       VII. Sentencing. Owens argues that the trial court imposed an excessive sentence.
He asserts that the trial court failed to give sufficient weight to the mitigating factor
regarding his severe health problems because it declined to read all of his medical proof. He
also claims that his sentence is excessive because his twenty-year sentence could result in

                                              -31-
him dying in prison, given his age. Moreover, Owens argues that in sentencing him to a
twenty-year sentence on the basis of the enhancement factor that he possessed a firearm
during the commission of the crime, the trial court failed to impose the least severe sentence
necessary to achieve the purpose for the sentence. See T.C.A. § 40-35-103(4). Furthermore,
he claims that the trial court failed to consider his potential for rehabilitation and failed to
recognize that a lesser sentence would have sufficiently deterred him and other wrongdoers.
See id. § 40-35-103(5).

       Pursuant to the 2005 amendments to the sentencing act, a trial court must consider the
following when determining a defendant’s sentence:

       (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). The defendant has the burden of showing the impropriety of the
sentence on appeal. Id. § 40-35-401(d), Sentencing Comm’n Comments.

        Because of the broad discretion given to trial courts by the 2005 amendments to the
sentencing act, “sentences should be upheld so long as the statutory purposes and principles,
along with any applicable enhancement and mitigating factors, have been properly
addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Therefore, this court reviews
a trial court’s sentencing determinations under “an abuse of discretion standard of review,
granting a presumption of reasonableness to within-range sentencing decisions that reflect
a proper application of the purposes and principles of our Sentencing Act.” Id. at 707.

       The transcript from the sentencing hearing shows that prior to imposing the sentence,
the court noted that “the main element of deciding . . . the punishment and the purposes is
to provide an effective, general deterrent to those likely to violate the criminal laws of the
State.” See T.C.A. § 40-35-102(3)(A). The court also noted that “[e]very defendant shall
be punished by the imposition of a sentence justly deserved in relation to the seriousness of
the offense[.]” See id. § 40-35-102(1).



                                              -32-
      The record shows that the trial court reviewed several mitigation letters that discussed
Owens’s medical problems. When Owens offered a computer disk containing 477 pages of
medical records detailing his medical history over the last several decades, the court stated:

               I’m not going to read the medical proof. I mean, I think it is pretty
       clear, he has had heart surgeries. He’s diabetic and that type of thing. And I
       heard that at trial, and I heard it today, and I see it in these letters too. So, I’m
       not going to go through all the medical [records].

              Although, I will take notice that based on what you said he has some
       significant medical conditions.
       The court stated that because he had been convicted of second degree murder, Owens
faced a sentence of fifteen to twenty-five years with a release eligibility of one hundred
percent. Id. §§ 40-35-112(a)(1), -501(i)(1), -501(i)(2)(B).

        Although the trial court applied the mitigating factor regarding Owens’s poor health,
it stated that it was not going to “give great weight to that, especially when the only thing that
this Court will decide is the length of the sentence.” Id. §40-35-113(13). The court applied
the enhancement factor (1) that Owens had “a previous history of criminal convictions or
criminal behavior, in addition to those necessary to establish the appropriate range” because
of a prior DUI conviction. Id. § 40-35-114(1). However, the court noted that this
enhancement factor was “a very minor factor to the Court.” The court also applied
enhancement factor (9), that “[t]he defendant possessed or employed a firearm, explosive
device or other deadly weapon during the commission of the offense,” because it found that
the possession of the handgun was “an important factor in this case.” The court held that
enhancement factor (1) and mitigating factor (13) “offset each other” because they were
“both minor,” which left the court to consider the impact of enhancement factor (9) on the
sentence. At the conclusion of the hearing, the trial court sentenced Owens as a Range I,
standard offender to twenty years at one hundred percent release eligibility.

        We conclude that the trial court did not impose an excessive sentence in this case.
The trial court properly relied on the proof at trial and on defense counsel’s statements and
the letters from Owens’s family and girlfriend, which provided an overview of his medical
problems. The record establishes that the court was adequately informed of the nature and
severity of Owens’s health problems prior to imposing a sentence in this case. Moreover, the
court found that this mitigating factor was not entitled to much weight. The record also
shows that the court was aware of Owens’s age at the time of sentencing.

       At the conclusion of the hearing, the court sentenced Owens to twenty years, five
years less than the maximum sentence in the range for a conviction for second degree

                                               -33-
murder. Because the trial court imposed a sentence within the appropriate range, considered
the purposes and principles of the sentencing act, and considered the appropriate
enhancement and mitigating factors, we uphold Owens’s sentence of twenty years. See Bise,
380 S.W.3d at 706-07. The trial court’s judgment is affirmed.

                                     CONCLUSION

       Upon review, the judgment of the trial court is affirmed.


                                                  ______________________________
                                                  CAMILLE R. McMULLEN, JUDGE




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