                                                                                        02/12/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs September 20, 2017

         STATE OF TENNESSEE v. MATTHEW BRUCE HOWARD


              Appeal from the Criminal Court for Cumberland County
                        No. 15-153 Gary McKenzie, Judge
                      ___________________________________

                           No. E2017-00723-CCA-R3-CD
                       ___________________________________


The Appellant, Matthew Bruce Howard, pled guilty to second degree murder, and the
trial court sentenced him to twenty-five years in the Tennessee Department of Correction.
On appeal, the Appellant challenges the length of the sentence imposed by the trial court,
arguing that the trial court erred by enhancing his sentence because he abused a position
of private trust. Upon review, we agree that the trial court erred by finding that the
Appellant abused a position of private trust, but we nevertheless affirm the judgment of
the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Kevin R. Bryant, Crossville, Tennessee, for the Appellant, Matthew Bruce Howard.

Herbert H. Slatery III, Attorney General and Reporter; Linda D. Kirklen, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Philip Hatch,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

      The Appellant was charged with the first degree murder of his girlfriend, Tara
Burnett, but eventually he pled guilty to second degree murder. Pursuant to statute, the
Appellant was required to serve one hundred percent of the sentence for the second
degree murder conviction in confinement. See Tenn. Code Ann. § 40-35-501(i)(1),
(2)(B). The plea agreement provided that the Appellant would be sentenced as a Range I,
standard offender and that the trial court would determine the length of the sentence.

       To provide a factual basis for the plea, the State called Tennessee Bureau of
Investigation (TBI) Agent Dan Friel. Agent Friel testified the State’s proof would be that
around 3:00 a.m. on February 16, 2015, the Appellant called Cumberland County 911 to
report a shooting at a residence on Kings Down Road. Cumberland County Sheriff’s
Captain Jerry Jackson asked Agent Friel to come to the scene. After the police obtained a
search warrant for the residence, they found the victim’s body in the master bedroom.
The police also found a .22 caliber rifle and a shell casing in the residence. Testing
revealed that the shell casing had been fired from the rifle. The caliber of the round was
“consistent with the gunshot wound sustained by” the victim. The victim’s body was
taken to the medical examiner’s office where her manner of death was determined to be a
gunshot wound to the left temple.

      At some point, Agent Friel and Investigator David Moore spoke with the
Appellant. Agent Friel said that the Appellant

             told us that he had woke up early that morning, and when he
             woke up, he saw a white individual standing by his bed, and a
             black individual standing by the bathroom area. He said he
             reached over to get his .22 caliber rifle. At that time, he saw
             [the victim] sitting up in the bed holding two, what he
             believed were Glock handguns, and at that time, he shot her.
             He shot her in the temple area of the left side of her head.

       Agent Friel said the police determined that all of the doors of the Appellant’s
residence were locked from the inside, and they found no indications of forced entry.
Additionally, the police did not find any Glock handguns. The trial court accepted the
Appellant’s guilty plea and scheduled a sentencing hearing.

       At the sentencing hearing, Chad McCaleb with the Tennessee Department of
Correction testified that he prepared the Appellant’s presentence report. The Appellant
had no prior convictions, and he had a general equivalency diploma (GED). The
Appellant was last employed in April 2014, approximately ten months prior to the
victim’s death.

       Agent Friel testified that the victim was shot in the head with a .22 caliber rifle
and that the rifle was found in the bedroom in which her body was found. Agent Friel
said that his investigation revealed that the victim was sleeping at the time she was shot,
which contradicted the Appellant’s version of events. From his investigation, Agent Friel
learned that the victim and the Appellant were living together, and they were in a
                                           -2-
“romantic relationship” that was “at times, . . . very heated, argumentative.” Agent Friel
acknowledged that he spoke with the victim’s mother, Cindy Rifner, and that, based on
his conversations with her, “trust was a portion of the relationship” the victim had with
the Appellant.

        On cross-examination, Agent Friel agreed that “as it relates to this issue of trust,
[his] investigation didn’t turn up anything that was any different than anyone else who
lives together, shares a place together; it was a normal boyfriend/girlfriend relationship in
that regard[.]”

        Cindy Rifner, the victim’s mother, testified that the victim and the Appellant were
in a relationship for approximately eight years and that at the time of the victim’s death,
they were living together. Rifner said that she “saw signs of emotional abuse” and that
the family tried “to include [the Appellant] in family gatherings, for [the victim’s] sake.”
However, “[t]hat didn’t work out.” Rifner also saw “marks” on the victim’s face.
Regardless, she did not anticipate that the Appellant would kill the victim. Rifner said
the victim “blamed herself that, you know, she should have taken better care of him, or
she shouldn’t have worked as long, or there were things that she needed to do for him that
he wanted done. She wasn’t afraid of him. She trusted him.”

        Rifner next read her victim impact statement to the court. She stated that the
victim was a “beautiful soul” who smiled often and “tr[ied] to make others happy.”
Rifner said the victim’s family knew the Appellant had emotionally and physically
abused the victim, but they did not know “how bad the abuse was.” The family was
unsure of how to “handle [the] abuse situation[] without losing” the victim. Rifner said
that the victim took care of the Appellant, allowed him to live in her home, fed him,
bought his medicine, and paid his bills and child support payments. Rifner said that the
victim did not complain about how the Appellant treated her, but she began to plan for a
better life, and the Appellant “couldn’t let her go.”

       Rachel Love, the victim’s co-worker and friend, stated that the victim was a
“feisty little light” and a “beautiful, strong, hard-working, wonderful person.” Love saw
a “major change” the first time the victim came to work with “a huge bruise on her face.”
The victim initially lied about the cause of the bruise but eventually stated that the
Appellant had hit her. Afterward, the victim came to work on several occasions with
bruises on her face or her body. Love said that each time, the victim “los[t] a little piece
of herself and bec[a]me embarrassed.” Love said that the victim declined invitations to
visit Love’s home because she did not want to displease the Appellant.

       Sandra Burnett, who was married to the victim’s father, testified that the
Appellant’s claim that the victim had “Glocks” was “the most outrageous thing I’ve . . .
ever heard.” Ms. Burnett said that the victim’s character was “impeccable” and that she
                                            -3-
was close to her family. Ms. Burnett said that the victim thought she could “fix” the
Appellant but that “he wasn’t fixable.” The Appellant took financial advantage of the
victim, her father, and Ms. Burnett. The Appellant did not work, and the victim took care
of him and paid his child support payments.

       Joey Burnett, the victim’s brother, was the last person to read a victim impact
statement to the court. He said that the victim was “a bright light” and “was very fierce
in the love she had for everyone,” including the Appellant. He noted that “[o]ver four
hundred people came to pay respects [to the victim] . . . during the destruction that the ice
storm caused.” Mr. Burnett said that he had seen bruises on the victim and that she had
asked him not to do anything to the Appellant. He acquiesced to her wishes, but it was
difficult for him not to intercede. Mr. Burnett said that the victim “protected” the
Appellant and that she was “the only reason why nothing ever happened” to him.

        The Appellant made an allocution to the court during which he stated that the
“allegations of domestic violence are completely false against [him].” He said that he did
not think he should have been interviewed on the night of the shooting, explaining that he
had “hardly any memory from that night” and had “no memory from an interview where
[he] said that she pointed a gun at [him] or anybody else.” The Appellant acknowledged
that the victim did not like guns. He said that he told the victim “every day how sorry [he
was] for what happened.”

        As enhancement factors, the trial court found that the Appellant employed a
firearm during the commission of the offense and that he violated a position of private
trust; the court gave those factors great weight. The court also found that the Appellant
had shown no remorse for his conduct. The trial court noted as a potential mitigating
factor that the Appellant had no prior criminal convictions; however, it gave that factor
little weight. The court sentenced the Appellant to twenty-five years. On appeal, the
Appellant challenges the length of sentence imposed by the trial court, arguing that the
trial court should not have found that he violated a position of private trust.

                                       II. Analysis

       This court reviews the length, range, and manner of service of a sentence imposed
by the trial court under an abuse of discretion standard with a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v.
Pollard, 432 S.W.3d 851, 859 (Tenn. 2013) (applying the standard to consecutive
sentencing); State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the
standard to alternative sentencing). In conducting its review, this court considers the
following factors: (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
                                            -4-
involved; (5) evidence and information offered by the parties on enhancement and
mitigating factors; (6) any statistical information provided by the administrative office of
the courts as to sentencing practices for similar offenses in Tennessee; (7) any statement
by the appellant in his own behalf; and (8) the potential for rehabilitation or treatment.
See Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Bise, 380 S.W.3d at 697-98.
The burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn.
Code Ann. § 40-35-401, Sentencing Comm’n Cmts.

      In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:

                     (1) The minimum sentence within the range of
              punishment is the sentence that should be imposed, because
              the general assembly set the minimum length of sentence for
              each felony class to reflect the relative seriousness of each
              criminal offense in the felony classifications; and

                     (2) The sentence length within the range should be
              adjusted, as appropriate, by the presence or absence of
              mitigating and enhancement factors set out in §§ 40-35-113
              and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).

        Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court’s weighing of various mitigating and
enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is ‘consistent with the purposes and principles
of [the Sentencing Act].’” Id. at 343 (quoting Tenn. Code Ann. § 40-35-210(d)).
Appellate courts are “bound by a trial court’s decision as to the length of the sentence
imposed so long as it is imposed in a manner consistent with the purposes and principles
set out in sections -102 and -103 of the Sentencing Act.” Id. at 346.

       As we stated earlier, the trial court enhanced the Appellant’s sentence by applying
enhancement factor (9), that the Appellant possessed or employed a firearm, explosive
device or other deadly weapon during the commission of the offense, and enhancement
factor (14), that the Appellant abused a position of private trust. Tenn. Code Ann. § 40-
35-114(9) and (14). On appeal, the Appellant argues that the trial court incorrectly
applied enhancement factor (14). The State responds that the trial court correctly applied
                                           -5-
enhancement factor (14) and that, regardless of any error, the length of the sentence
imposed was appropriate based upon the application of enhancement factor (9). We
agree with the State that the length of the sentence is appropriate.

        In State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999), our supreme court
recognized that in cases where an “adult perpetrator and minor victim are members of the
same household, the adult occupies a position of ‘presumptive private trust’ with respect
to the minor.” However, the court determined that a presumption of a private trust does
not exist in cases where the perpetrator and the victim are both competent adults who
share a household or are in a relationship because, unlike minor victims, adult victims
generally have reasonable judgment and can function independently. Id. Accordingly,
trial courts must examine “‘the nature of the relationship’” to determine “whether that
relationship ‘promoted confidence, reliability, or faith’” because such a relationship
“usually includes a degree of vulnerability.” Id. at 646 (quoting State v. Kissinger, 922
S.W.2d 482, 488 (Tenn. 1996)). Our supreme court explained that “[i]t is the
exploitation of this vulnerability to achieve criminal purposes which is deemed more
blameworthy and thus . . . the enhancement factor . . . is construed to apply only where
there is evidence that the nature of the relationship between the perpetrator and the adult
victim caused the victim to be particularly vulnerable.” Id. The State must also show
“that the perpetrator abused that relationship in committing the crime.” Id. Finally, our
supreme court cautioned that “[a]s with all determinations regarding the application of an
enhancement factor, the utilization of this analysis ‘is a task that must be undertaken on a
case-by-case basis.’” Id. (quoting State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997)).

        Applying the foregoing analysis, our supreme court noted that Gutierrez and his
girlfriend, the victim, were in a relationship and living together; he became angry when
she discussed ending the relationship, and he beat her before shooting and killing her. Id.
at 643. The court noted that the record contained few details concerning the nature of
their relationship. Id. at 646. Therefore, because the record did not demonstrate “the
existence of a relationship which promoted a reliance, confidence, and faith that created a
vulnerability on the part of the adult victim,” the court found that the trial court erred by
enhancing the defendant’s sentence for his voluntary manslaughter conviction based upon
an abuse of a position of private trust. Id.

       Citing Gutierrez, the Appellant argues that the trial court erred by applying
enhancement factor (14) to the instant case. We agree. We acknowledge that the trial
court attempted to distinguish the instant case from Gutierrez by stating that the
Appellant’s relationship with the victim had “issues” but that they nevertheless had “a
trusting domestic relationship.” However, this court repeatedly has reasserted the
supreme court’s reasoning in Gutierrez that


                                            -6-
             to use the mere sharing of a household or the existence of a
             relationship to determine whether a position of private trust
             exists between competent adults can result in an overly-broad
             application of the enhancement factor. The mere existence of
             such a relationship does not render that perpetrator more
             culpable than one who has a different relationship or no
             relationship with the victim.

Id. at 645-46 (footnote omitted); see State v. Terrence Lamont McDonald, No. E2013-
02524-CCA-R3-CD, 2015 WL 154251, at *19 (Tenn. Crim. App. at Knoxville, Jan. 13,
2015) (maintaining that the mere existence of a marital relationship was insufficient to
warrant the application of the enhancement factor); State v. Jeffrey Scott, No. W2009-
00707-CCA-R3-CD, 2011 WL 2420384, at *33 (Tenn. Crim. App. at Jackson, June 14,
2011) (stating that relying on the marital vow to protect a spouse in order to justify the
application of the enhancement factor would result in the overly broad application of the
enhancement factor in every case where one spouse commits a crime against the other
spouse); State v. Terry Edward Jones, No. E2004-01300-CCA-R3-CD, 2005 WL
1219979, at *5 (Tenn. Crim. App. at Knoxville, May 24, 2005) (asserting that the
application of the enhancement factor is not dependent upon the mere existence of a
relationship but upon the exploitation of a vulnerability caused by the relationship).
Accordingly, we conclude that the trial court erroneously applied this enhancement
factor.

       Regardless, the Appellant does not dispute the trial court’s application of
enhancement factor (9), to which the court gave great weight. We conclude that the
length of the Appellant’s sentence was justified by the application of this enhancement
factor alone. State v. James Moore, No. W2015-01483-CCA-R3-CD, 2016 WL
7654955, at *5 (Tenn. Crim. App. at Jackson, Aug. 23, 2016) (stating that “the
application of a single enhancement factor is sufficient to justify the imposition of the
maximum sentence in the range, even when mitigating factors are also applied”), perm. to
appeal denied, (Tenn., Dec. 15, 2016).

                                    III. Conclusion

      The trial court’s judgment is affirmed.




                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE

                                          -7-
