         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        DECEMBER 1998 SESSION
                                                      FILED
                                                        March 26, 1999

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,    )
                       ) C.C.A. No. 02C01-9803-CC-00084
    Appellee,          )
                       ) Henry County
V.                     )
                       ) Honorable Julian P. Guinn, Judge
                       )
THOMAS EDWARD BRADLEY, ) (Voluntary Manslaughter)
                       )
    Appellant.         )




FOR THE APPELLANT:              FOR THE APPELLEE:

J. MARK JOHNSON                 JOHN KNOX WALKUP
BILL R. BARRON                  Attorney General & Reporter
124 East Court Square
Trenton, TN 38382               J. ROSS DYER
                                Assistant Attorney General
                                425 Fifth Avenue North
                                Nashville, TN 37243

                                ROBERT “GUS” RADFORD
                                District Attorney General

                                STEVE GARRETT
                                Assistant District Attorney General
                                P.O. Box 686
                                Huntingdon, TN 38372




OPINION FILED: ___________________


AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                   O P I N IO N

       Thomas Edward Bradley was convicted of voluntary manslaughter and

sentenced to six years in the Tennessee Department of Correction. He appeals

this sentence as of right, arguing that the trial court erred in applying certain

enhancement factors. We AFFIRM the judgment of the trial court.



                                       FACTS

       The appellant has failed to include the trial transcript in the record on

appeal. Thus, the circumstances of the appellant’s crime are somewhat sketchy.

Briefly stated, on February 21, 1997, the appellant struck Maelene Cardwell on

her face with his hand, causing blunt trauma to, and bleeding of, her brain. The

victim was discovered the following day in a comatose state. She never

regained consciousness and, on September 23, 1997, she died as a result of her

injuries.



       The appellant was indicted on November 3, 1997, for second degree

murder. Following a jury trial in the Circuit Court of Henry County, he was

convicted of the lesser included offense of voluntary manslaughter, a class C

felony. At his sentencing hearing, the trial court found applicable three

enhancement factors:

       A victim of the offense was particularly vulnerable because of age
       or physical or mental disability . . . ; Tenn. Code Ann. § 40-35-
       114(4).

       The defendant treated or allowed a victim to be treated with
       exceptional cruelty during the commission of the offense; Tenn.
       Code Ann. § 40-35-114(5).

       The defendant had no hesitation about committing a crime when
       the risk to human life was high; Tenn. Code Ann. § 40-35-114(10).

The trial court noted the appellant’s poor physical health as a possible mitigating

circumstance but assigned no weight to that factor. Based on these findings, the

trial court enhanced the appellant’s sentence to the range I maximum of six




                                          -2-
years. The appellant challenges the applicability of each of the enhancement

factors found by the trial court.




                             STANDARD OF REVIEW

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

sentence, it is the duty of this Court to conduct a de novo review on the record

“with a presumption that the determinations made by the court from which the

appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This

presumption “is conditioned upon the affirmative showing in the record that the

trial court considered the sentencing principles and all relevant facts and

circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



       In conducting our de novo review, this Court must consider (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) any statutory mitigating or enhancement factors; (6) any statement

made by the accused in his own behalf; and (7) the potential or lack of potential

for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210;

State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987). The appellant

carries the burden of showing that his sentence is improper. See Tenn. Code

Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan, 929 S.W.2d

391, 395 (Tenn. Crim. App. 1996).



                                    ANALYSIS

       The trial court based its finding that the victim was particularly vulnerable

primarily on the “disparate differences in sizes between the [appellant and victim]

and [the victim’s] physical condition. [The victim] was . . . intoxicated at the time

that [the appellant] killed her, and she weighed either a hundred pounds or



                                         -3-
somewhat less that a hundred pounds.” The appellant challenges this finding,

arguing that there was no evidence of the victim’s weight at the time of she was

assaulted, but only of her weight at the time of her autopsy, after she had been

comatose for over seven months. However, no evidence is before this Court on

this issue, as the appellant has failed to provide a transcript of the trial in the

record on appeal.



       "When a party seeks appellate review there is a duty to prepare a record

which conveys a fair, accurate and complete account of what transpired with

respect to the issues forming the basis of the appeal." State v. Ballard, 855

S.W.2d 557, 560 (Tenn. 1993); see Tenn. R. App. P. 24(b). In the absence of

an adequate record, we are precluded from considering the issue and must

presume that the determinations of the trial court are correct. See State v. Oody,

823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); State v. Roberts, 755 S.W.2d

833, 836 (Tenn. Crim. App.1988). This issue is, therefore, without merit.



       The appellant next challenges the trial court’s finding that the appellant

treated the victim with exceptional cruelty. Unlike his challenge to factor (4), the

appellant does not dispute the factual basis of this enhancement. Rather, he

admits that the manner in which he treated the victim would warrant a finding of

exceptional cruelty if this factor it were available for consideration. He argues,

however, that the exceptional cruelty enhancement is inapplicable to a conviction

for voluntary manslaughter as a matter of law.



       The appellant asserts that malice is an essential element of second-

degree murder. Therefore, he argues, the jury’s verdict convicting him of

voluntary manslaughter rather than second degree murder implies that the jury

found his offense to have been committed without malice. Malice, the appellant

further asserts, is equivalent to exceptional cruelty, so that one cannot commit an

offense without malice yet involving exceptional cruelty.



                                          -4-
       While this argument is flawed in several points, it is sufficient to note that

malice is not an element of second degree murder. See Tenn. Code Ann. § 39-

13-210 (“Second degree murder is: (1) A knowing killing of another.”). Absent

this essential premise, the appellant’s argument clearly fails. This issue is

without merit.

       Finally, the appellant challenges the applicability of enhancement factor

(10)--that he had no hesitation about committing a crime when the risk to human

life was high. The state correctly concedes that the trial court erred in applying

this factor, as it is inherent in the offense of voluntary manslaughter. “It is well

settled . . . that this enhancement factor is generally inapplicable in sentencing in

voluntary manslaughter cases where the only 'risk' imposed was to the victim of

the homicide." State v. Samuel D. Braden, No. 01C01-9610-CC-00457 (Tenn.

Crim. App. filed Feb. 18, 1998, at Nashville). Nothing in the commission of the

appellant’s offense suggests a risk to human life other than to the life of the

victim. Thus, the trial court erred in applying enhancement factor (10).



       Elimination of factor (10) does not, however, require reduction of the

appellant’s sentence. Enhancement factors (4) and (5) are each entitled to

significant weight, and we find them more than sufficient to justify imposition of

the maximum sentence in this case.



                                   CONCLUSION

       The judgment of the trial court is affirmed.




                                               ____________________________

                                               JOHN EVERETT W ILLIAMS, Judge




                                         -5-
CONCUR:




_____________________________

GARY R. WADE, Judge




_____________________________

THOMAS T. W OODALL, Judge




                                -6-
