        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 12, 2014

            STATE OF TENNESSEE v. BRIAN ONEAL ELLIOTT

            Direct Appeal from the Criminal Court for Davidson County
                   No. 2011-A-269    Cheryl A. Blackburn, Judge


               No. M2014-00083-CCA-R3-CD - Filed October 15, 2014




The appellant, Brian Oneal Elliott, challenges the length of the twenty-five-year maximum
sentence the trial court imposed for his conviction of second degree murder. Upon review,
we affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Ryan C. Caldwell (on appeal) and Dale Quillen (at trial), Nashville, Tennessee, for the
appellant, Brian ONeal Elliott.

Robert E. Cooper, Jr., Attorney General & Reporter; Caitlin Smith, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

      The appellant was charged with the first degree murder of Miguel Tobias.
Subsequently, he agreed to plead guilty to second degree murder. The plea agreement
provided that the trial court would determine the length of the appellant’s sentence.

      At the guilty plea hearing, the State recited the following factual basis for the plea:

             [O]n April 16th, 2010, the victim Miguel Tobias (phonetic) was
           on the porch of 3710 Ezell Road in Davidson County with
           another individual. It was mid afternoon, and a car approached
           the house and stopped. Mr. Tobias went to see what the
           individuals wanted. When he got close to the car, the front
           passenger rolled down the window and shot multiple times
           killing Mr. Tobias. The victim’s wife was in the house and
           heard the shots as did the couple’s three young children. The
           police responded and began their investigation. They learned
           the make, model, and partial plate number of the car. They later
           determined that it belonged to Trevarius (phonetic) Maples. As
           the investigation continued, the detective assigned to the murder
           learned that there had been a report of a rape at that location.
           Sex abuse detectives confirmed that the rape had been reported
           at that same location on or about April 12th, three days before
           the homicide. The victim of that rape was fourteen-year old
           [P.E.].1 After learning this information, the homicide detectives
           spoke with [P.E.] and her mother. [P.E.] told the detectives that
           on April 12th, 2010, she and a friend skipped school and went
           to 3710 Ezell Road where a cousin of [P.E.’s] friend resided.
           While they were there [P.E.] was raped by a man. She reported
           the rape to the police immediately, and the police determined
           that the man who raped [P.E.] was Romel Roberto Guafarro
           (phonetic).

                  On April 16th, 2010, [P.E.’s] uncle, [the appellant],
           picked her up from middle school. Trevarius Maples was
           driving the vehicle. When [P.E.] got in the car, [the appellant]
           instructed her to show them where the rape occurred. They
           drove down Ezell Road, and [P.E.] pointed out the house at
           3710 Ezell. They drove past the house, and [the appellant] then
           instructed Maples to stop the car. [The appellant] got out of the
           car and retrieved a gun. Maples then drove back to 3710 Ezell.
           When the car pulled up to the house, there were two men on the
           porch, one of which was the victim, Miguel Tobias. As Mr.
           Tobias was walking up to the car, [P.E.] cried out that he was
           not the man who had raped her. [The appellant] nonetheless
           rolled down the window and shot Tobias causing his death.



1
    It is the policy of this court to refer to minor victims of sexual crimes by their initials.

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                      I would note that if the case had gone to trial today the
              State would have severed the two defendants. Maples would
              have testified as [P.E.] would have testified, that [P.E.] clearly
              told [the appellant] the man was not her rapist before he was
              murdered. The proof would also show that the victim looked
              nothing like the rapist. The victim was an average height and
              weight whereas the rapist weighed over 250 pounds.

       Damaris Santiago, the victim’s wife, testified at the sentencing hearing that she and
the victim had three children, whose ages were twelve, ten, and seven years. At the time of
the shooting, she and the children were inside the house at 3710 Ezell Road. Mrs. Santiago
heard two gunshots but did not think anything was wrong until one of the victim’s friends
came inside and told her to come outside. She walked outside and saw the victim lying on
the ground.

        Mrs. Santiago said that the victim was friendly, funny, and sweet and that he loved
his children. After the victim’s death, the children required therapy. Their ten-year-old son
continued to have trouble in school and feared that he also might lose his mother.

       Ernesto Castro, the victim’s brother, testified that he lived in California. On Friday
afternoon after the shooting, Mrs. Santiago called and informed him of the victim’s death.
Mr. Castro had eight brothers and sisters but was closest to the victim. He described the
victim as honest and hard-working.

       Stacy Walling, P.E.’s mother, testified that the appellant was P.E.’s paternal uncle.
Walling acknowledged that she was testifying only because the State subpoenaed her. At the
time of the shooting, P.E. was fifteen years old, and she had a close relationship with the
appellant. P.E. promptly disclosed the rape to her mother, who in turn reported it to the
police. P.E. did not like to talk about the shooting; however, she eventually told Walling that
she was present when it occurred. Walling said that P.E. was depressed because of the rape,
that P.E. blamed herself for the appellant’s being in jail, and that P.E. was in counseling.

       Walling said that P.E. had been subpoenaed to testify at the appellant’s trial. P.E. did
not want to testify and indicated that “she would rather go to jail than [the appellant].” P.E.
had cried after “certain people” pressured her not to testify against the appellant; however,
Walling did not know who tried to intimidate P.E.

       On cross-examination, Walling said that P.E. told her about the rape the day it
happened. Afterward, Walling took P.E. to the hospital. Walling said that she thought the
appellant knew about the rape, noting, “I’m sure everybody found out. It just spreads fast.”

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       On redirect examination, Walling acknowledged that P.E. had said that she told the
appellant just before he shot the victim that the victim was not the man who raped her. On
recross-examination, Walling stated that she did not know whether the appellant heard P.E.’s
statement.

       The thirty-four-year-old appellant testified that he wanted to apologize to the victim’s
family for his mistake. He said that he thought he was killing the man who had raped P.E.
He did not recall P.E. saying the victim was not the rapist but did not deny that she could
have made that statement; instead, he recalled her saying “that’s them.”

        On cross-examination, the appellant said that Maples was driving the car. The
appellant knew a gun was in the trunk of the car but could not recall who put it there. The
appellant retrieved the gun before confronting the victim. He explained, “I was going into
a situation where I didn’t know if I was going to have to defend myself against whoever did
this or not.” The appellant denied that he intended to shoot and kill the person who raped his
niece. He acknowledged that he did not say a word to the victim before shooting him,
maintaining that he “lost control.”

        Ricky Waller, a community minister, testified that he had spoken with the appellant
since the appellant’s incarceration. Waller believed the appellant was remorseful and wanted
to change his life.

       Prior to imposing the sentence, the court explicitly considered the purposes and
principles of the sentencing act and the facts and circumstances of the offense. The court
noted that as a Range I, standard offender, the appellant was subject to a sentence of fifteen
to twenty-five years for his Class A felony conviction. See Tenn. Code Ann. §§
39-13-210(a); 40-35-112(a)(1). The court observed that the appellant had a prior history of
criminal convictions, noting that he had one prior felony conviction of aggravated assault and
eight prior misdemeanor convictions. Tenn. Code Ann. § 40-35-114(1). The court further
found that the appellant was a leader in the commission of the offense. Tenn. Code Ann. §
40-35-114(2). The court also found that the appellant had failed to comply with the
conditions of a sentence involving release into the community, as evidenced by at least two
prior probation violations. Tenn. Code Ann. § 40-35-114(8). Finally, the court found that
the appellant employed a firearm during the commission of the offense. Tenn. Code Ann.
§ 40-35-114(9). The court afforded the greatest weight to enhancement factors (1) and (9).

       Regarding mitigation, the court noted the appellant’s claim that he was provoked.
Tenn. Code Ann. § 40-35-113(2). The court stated, however, that “[t]he problem is that there
was no provocation on the part of this victim or anyone else there at the time.” Accordingly,
the court found that no mitigating factors were applicable and imposed a sentence of twenty-

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five years.

       Thereafter, the appellant, acting pro se, filed a petition for post-conviction relief. The
court appointed counsel and held an evidentiary hearing. With the agreement of the State,
the post-conviction court granted the appellant a delayed appeal on the sentencing issue.

         On appeal, the appellant challenges the length of the sentence imposed by the trial
court.

                                         II. Analysis

        Appellate review of the length, range, or manner of service of a sentence imposed by
the trial court are to be reviewed 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 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

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              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. 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.

        The appellant contends that the trial court erred by imposing the maximum sentence
for his second degree murder conviction. The appellant does not dispute the application of
enhancement factors (2) and (8). Additionally, he acknowledges that the trial court correctly
applied enhancement factors (1) and (9), but he asserts that the trial court ascribed too much
weight to those factors. This court has repeatedly cautioned that “[m]ere disagreement with
how the trial court weighed enhancing and mitigating factors is not an adequate basis for
reversing a sentence.” State v. Banks, 271 S.W.3d 90, 146 (Tenn. 2008) (citing Carter, 254
S.W.3d at 345-46).

       Further, the appellant maintains that the trial court erred by failing to apply mitigating
factor (2). We disagree. The proof reveals that the appellant and Maples picked up P.E.,
drove to the house where the rape occurred and stopped. The victim and another individual
were on the porch where the victim lived. When the victim approached the car P.E. told the
appellant that the victim, who looked nothing like the rapist, was not the man who raped her.
Nevertheless, the appellant shot him while the victim’s wife and three children were inside
the house. As the trial court aptly stated:

              [T]here was no provocation on the part of this victim or anyone
              else there at the time. . . . [The appellant] went out there to kill
              somebody. He was determined to do it. And whether or not he
              killed the right person or not is really irrelevant to the statute of
              murder. I mean, it was his intent to kill. And that’s unfortunate
              . . . . [W]e don’t take our – the law in our own hands. We don’t
              go around shooting people because we think they’ve done
              something, especially in the presence of the person that’s

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              victimized.

        We conclude that the trial court did not err in applying any of the enhancement factors
or in refusing to apply any mitigating factors.

                                      III. Conclusion

       We conclude that the trial court did not err in sentencing the appellant. Accordingly,
we affirm the judgment of the trial court.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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