          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           FEBRUARY SESS ION, 1998            FILED
                                                           March 26, 1998
STATE OF TE NNE SSE E,              )   C.C.A. NO. 02C01-9703-CC-00115
                                    )                    Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
            Appellee,               )
                                    )   GIBSON COUNTY
V.                                  )
                                    )
                                    )   HON. DICK JERMAN, JR. JUDGE
LATAVIS DIRAY BAILEY,               )
                                    )
            Appe llant.             )   (SECO ND DE GREE MUR DER)


FOR THE APPELLANT:                      FOR THE APPELLEE:

JOHN E. HERBISON                        JOHN KNOX WALKUP
2016 E ighth Ave nue So uth             Attorney General & Reporter
Nashville, TN 37204
                                        KENNETH W. RUCKER
TOM CRIDER                              Assistant Attorney General
District Public Defender                2nd Floor, Cordell Hull Building
107 Sou th Court Squ are                425 Fifth Avenue North
Trenton, TN 38382                       Nashville, TN 37243

                                        CLAYBURN PEEPLES
                                        District Attorn ey Ge neral

                                        TED NEUMANN
                                        Assistant District Attorney General

                                        LARRY HARDISTER
                                        Assistant District Attorney General

                                        GARRY BROWN
                                        Assistant District Attorney General
                                        110 College Street, Suite 200
                                        Trenton, TN 38382


OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
       The Defendant, Latavis Diray Bailey, appeals as of right from his conviction

and sentencing in the Criminal Court of Gibson County. Defendant was convicted

of second d egree m urder and w as sentenc ed to serve twenty -five (25 ) years in the

Tennessee Depa rtment o f Correc tion as a R ange I O ffender.             O n appe al, the

Defendant contends the trial court’s instruction to the jury on “flight” from the scene

of the shooting was error and argues the sentence impos ed was excess ive. W e

affirm the ju dgme nt of the trial co urt.



       W hile the sufficiency of the evidence is not in question, a brief review of the

facts is helpful for our analys is. On J uly 22, 1 995, th e Def enda nt and the victim , Tim

Jennings, attended a birthda y party fo r Pan icia W illiams. The p arty wa s held at the

home of Kales ia Sowe ll. Whe n the pa rty got too loud, Panicia asked her gue sts to

leave, and it took her several attempts to actually get all of the parties outside of the

house and he aded to ward the street. Defen dant an d Panic ia got into a n argum ent,

cursing a t each oth er, while wa lking dow n the drive way towa rds the stre et.



       The facts are in dispute as to the following events leading up to the shooting.

Witnesses to the event testified that P anicia an d Defe ndant b egan to fight, with

Defendant knocking Panicia to the ground. When Panicia’s friends intervened,

Panic ia stated that she returned to the house. Defendant was knocked to the

ground by a blow from a he avy flashlight and wa s then kicked repeatedly.

Defendant testified that he was in fear for his life. The victim was standing in the

driveway behind his car watching the fight.            According to several witnesses,

Defendant rose from the ground and walked over to the victim, put a gun to the

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victim’s chest and then shot him. The Defendant testified that he rose from the

ground in self-defe nse an d shot into the crowd to protect himself. Defendant then

kicked the victim, dropped the gun and stood above the bo dy. De fenda nt’s brother

grabbed the Defendant and picked up the gun from the ground, and the two ran

down the street. Defendant’s brother testified that he later disposed of the gun

himse lf.



                                    J URY INSTRUCTION



       Defendant argue s that th e trial co urt’s instruction to the jury on the evidence

of guilt from Defendant’s flight from the scene constitutes plain an d prejudicial error.

The trial court instru cted the ju ry that they c ould infer g uilt from the flight of an

accused person. The instruction was as follows:

              The flight of a pe rson ac cused of a crime is a circum stance
       which, when considered with all of the facts of the case, m ay justify
       inference of guilt. Flight is the voluntary withdrawal of oneself for the
       purpose of evading arrest or prosecution of the crime charged.
       Whether the evidence presented proves beyond a reasonable doubt
       that the defendant fled is a question for your determination.

              The law makes no precise distinction as to the manner or method
       of flight; it may be open, or it may be a concealment within the
       jurisdiction. However, it takes both a leaving the scene of the difficulty
       and a subsequent hiding out, evasion, or concealment in the
       comm unity, or the leaving of the community for parts unkno wn, to
       constitute flight.

               If flight is proved, the fact of flight alone does not allow you to find
       that the defendan t is guilty of the crimes alleged . However, since flight
       by a defendant may be caused by a consciousness of guilt, you may
       consider the fact of flight, if flight is so proven, together with all of the
       other evidence when you decide the guilt or innocence of the
       defend ant. On the other hand, an entirely innocent person may take
       flight and such flight may b e explaine d by proo f offered, or b y the facts
       and circu mstan ces of the case.

             Whether there was flight by the defendant, the reasons for it, and
       the weight to be given it, are questions for you, the jury, to determine.

                                             -3-
         As the State correctly points out in its brief, Defendant failed to raise this as

an issue in his mo tion for a new trial. Therefore, this issue has been waived on the

basis of Rule 3(e) of the Tennessee Rules of Appellate Procedure . See State v.

Clinton, 754 S.W .2d 100 , 103 (T enn. C rim. App .), perm. to appeal denied, id. (Tenn.

1988).



         Defendant submits that “considering the challenged instruction in the context

of the entire charge and the proof a t trial,” the trial cou rt’s instru ction c onstitu tes pla in

and prejudicial error, and thus should not be waived. Defendant admitted fleeing the

scene of the shooting with his broth er. De fenda nt’s bro ther tes tified tha t directly

after the shooting, he and Defendant fled together, taking the gun with them from the

scene. Defendant’s brother stated the he went dire ctly to his cousin’s house, then

to his aunt’s house to borrow a car in order to dispose of the murder weapon.

Officer Wya tt testified that D efenda nt was not at the scene after the murder and that

they did no t find the Defe ndan t that nig ht. Th e jury w as en titled to in fer that, in

addition to fleeing the scene with his brother, the Defendant went with his brother

and concealed himself and the murder weapon that night based upon his bro ther’s

testimony.     After considering the entire record in the case sub judice, we are

satisfied that any error in the trial court’s instruction on flight did not involve a

substantial right which affected the judgment nor resulted in prejudice to the judicial

process.     Tenn. R. App. P. 36(b);Tenn. R. Crim. P. 52(a). Even if there was

insufficient evidence of Defendant’s flight and subsequent hiding out, the error was

harmle ss in light of the evidenc e. This iss ue is witho ut merit.



                                    L ENGTH OF SENTENCE



                                                -4-
      Defendant argues that the sente nce im pose d by the trial cou rt is excessive.

He contends that the trial court erroneously applied enhancement factors and failed

to apply appropriate mitigating factors. Defendant urges this court to modify the

sentence, beginning with a presumptive minimum of fifteen (15) years and then

enhan ce and mitigate a ppropria tely.



      When an accused challenges the length, range or the manner of service of a

sente nce, th is court has a duty to conduct a de novo review of the sentence with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35 -401(d). This presumption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 1991).

There are, however, exceptions to the presum ption of co rrectnes s. First, the record

must demo nstrate that the trial cou rt cons idered the se ntenc ing prin ciples and a ll

relevant fa cts and c ircums tances . Id. Secon d, the pre sump tion does not app ly to

the legal conclusions reached by the trial court in sentencing.              Third, the

presumption does not ap ply when the d eterminations made b y the trial court are

predicated upon u ncontro verted fac ts. State v. S mith, 898 S.W.2d 742, 745 (Tenn.

Crim. A pp. 199 4), perm. to appeal denied, id. (Tenn. 199 5).



      Our review of this se ntenc e is de novo, without a presumption of correctness,

because the trial court failed to explicitly set forth its reasoning for the sentence

imposed and failed to state the relevant findings of fact justifying the enhancement

factors and how it determined the weight to which it applied each of the factors. The

trial court denied the application of any mitigating factors without providing any

reason ing.

                                           -5-
         A review by this court requires a consideration of : (a) the evidence, if any,

received at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature

and characteristics of the criminal conduct involved; (e) any statutory mitigating or

enhancement factors; (f) any statement that the defendant made on his behalf; and

(g) the poten tial or lack of p otential for re habilitation o r treatme nt. Tenn. Code Ann.

§ 40-35-1 02, -103 , -210; see State v. S mith, 735 S.W.2d 859, 863 (Tenn. Crim. App.

1987).



         Second degree murder is a Class A felony. Tenn. Code Ann. § 39-13-21 0(b).

As a Standard Offender, Defendant was subject to a sentence of not less than fifteen

(15) nor more than twenty-five (25) years. Tenn. Code Ann. § 40-35-112(a)(1). As

of July 1, 1995, the presumptive sentence for a Class A felony is the midpoint of the

applicable sentencing range. State v. Chance, 952 S.W.2d 848, 851 (Tenn. Crim.

App. 1997). As Defendant committed the offense on July 22 , 1995 , the trial c ourt’s

finding that a twenty (20) year sentence was the presumptive sentence was

appropriate. If there are enhancement factors, but no mitigating factors, then the

sentence may be set above the presumptive sentence but still within the range; and

if there are enhancement and mitigating factors, then the court must start at the

presum ptive sente nce, th en en hanc e as a pprop riate an d redu ce as appro priate.

Tenn . Code Ann. § 4 0-35-21 0(d) and (e).



         The trial court applied the following enhancement factors: the Defendant has

a previous history of criminal convictions or criminal behavior in addition to those

necessa ry to establish the appropriate range; the Defendant possessed or employed

a firearm, explosive device, or other deadly weapon during the commission of the

                                            -6-
offense; the Defe ndant h ad no h esitation a bout co mm itting a crime when th e risk to

human life was high; and the felony was committed while the Defendant was on

parole from a prior felony conviction. Tenn. Co de Ann. § 4 0-35-114(1 ), (9), (10) and

(13). Defend ant doe s not con test the us e of enh ancem ent factors (1) and (13 ).

During his testimony at the sentencing hearing, Defendant admitted to his being on

parole at the time of the offense and admitted to prior felony convictions. Defendant

argues that application of enhancement factor (10) is error becaus e the risk to

human life is an inherent factor in the crime of murder. The factor pertaining to risk

to life may be applied in situations where persons other than the victim are in the

area and are sub ject to injury. State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim. App.

1995). Because testimony in the record indicates that Defendant used a weapon in

a crowded area where many others in the area in addition to the victim m ight have

been injured , the us e of this enhancement factor is justified.           Defendant also

suggests tha t the use of enh ancem ent factor (9), that he used a dead ly weap on in

the commission of the offense, should be given little weight because few murders

are committed without the use of a deadly weapon. Because Defen dant fails to cite

any authority for th is argum ent, this issu e is waived. Ten n. Ct. Crim. Ap p. R. 10(b);

State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App.), perm. to appeal denied,

id. (Tenn. 1988). The trial court’s application of enhancement factor (9) was justified.



       The Defendant cites several mitigating factors as applicable to his sentencing.

First, Defendant argues that he acted under strong provocation due to the

circumstances surrounding the shoo ting. Ten n. Cod e Ann. § 40-35-113(2). For the

same reason ing, Defe ndant a sserts that sub stantial gro unds e xist which te nd to

excuse or justify his criminal conduct, even though they fail to establish a defense

and it is unlike ly that the m otivation for h is condu ct was a s ustained intent to violate

                                             -7-
the law. Tenn. Code Ann. § 40-35-113(3) and (11). While Defendant testified that

he had fallen to the gro und in the figh t, stood up an d fired th e gun into the crowd in

self defense, other testimon y conflicts w ith that evidence. Several other witnesses

testified that Defendant walked directly towards the victim , who w as no t involve d in

the fight at any time, and shot him point blank in the chest. Medical testimony

indicated that the “muzzle of the weapon was up against the skin surface at the time

the weapon was fired.” There was more than sufficient evidenc e for the trial court

to have determ ined that the abo ve mitigating factors d id not apply.



         Defendant also sug gests tha t becau se of his youth, he lacked substantial

judgment in comm itting the offe nse. Tenn. C ode A nn. § 4 0-35- 113(6 ). W hile

Defendant was nineteen (19) years of age at the time of this offense, there is no

further evidence in the record to indicate that his age alone constitutes a lack of

judgm ent. There is noth ing in the record to indic ate the Defe ndan t’s age in context

of his matu rity, experien ce, me ntal capa city or development, nor any other pertinent

circumstance tendin g to de mon strate h is inab ility to app reciate the na ture of h is

condu ct. See State v. Carter, 908 S.W.2d 410 (Tenn. Crim. App. 1995) (citations

omitted). Finally, Defendant argues that he expressed remorse for the shooting

during both the tria l and the s entenc ing hea ring.      W hile remorse is a proper

mitigating factor under Tennessee Code Annotated section 40-35-113(13), the trial

court heard the evide nce at the senten cing hea ring and determ ined no t to apply th is

mitigating factor. Upon our de novo review, we agree with the findings of the trial

court.



         As the pre sum ptive sentence for Defendant was twenty (20) years and four

(4) enhancement factors apply, we find the Defendant’s sentence of twenty-five (25)

                                           -8-
years to be app ropriate and not excessive in light of the facts and circumstances of

the offens e. W e affirm the judgm ent of the tria l court.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOSEPH B. JONES, Presiding Judge


___________________________________
JOHN H. PEAY, Judge




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