        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  May 7, 2013 Session

            STATE OF TENNESSEE v. DON MAURICE TAYLOR

               Direct Appeal from the Circuit Court for Gibson County
                       No. 18226    Clayburn L. Peeples, Judge


                No. W2012-02027-CCA-R3-CD - Filed August 12, 2013


The appellant, Don Maurice Taylor, pled guilty in the Gibson County Circuit Court to one
count of second degree murder and two counts of aggravated assault. After a sentencing
hearing, the trial court sentenced him to concurrent sentences of twenty-five years for the
murder conviction, a Class A felony, and six years for each aggravated robbery conviction,
a Class C felony. On appeal, the Petitioner contends that his effective twenty-five-year
sentence is excessive because the trial court misapplied enhancement factors and failed to
apply certain mitigating factors. Based upon the oral arguments, the record, and the parties’
briefs, we affirm the judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
A LAN E. G LENN, JJ., joined.

C. Mark Donahoe, Jackson, Tennessee, for the appellant, Don Maurice Taylor.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; and Garry G. Brown, District Attorney General, for the appellee, State of
Tennessee.

                                        OPINION

                                 I. Factual Background

       The record reflects that in September 2009, the appellant was charged with first
degree premeditated murder and two counts of aggravated assault by causing serious bodily
injury. In September 2012, the appellant pled guilty to second degree murder as a lesser-
included offense of first degree murder and both counts of aggravated assault. Pursuant to
the plea agreement, the trial court was to determine the length of the appellant’s sentences.

       At the appellant’s sentencing hearing, Lori Word testified that the victim, Darnell
Gentry, was a close friend of her mother, Gwendolyn Buchanan. Word had known the victim
since she was young. Word also knew the appellant, who was a few years younger than
Word, because they went to school together. On the day of the crimes, a Sunday, Word,
Gentry, and several other people were at Buchanan’s home to eat an evening meal. Word
fixed her plate in the kitchen and went outside to sit on the front porch with everyone else.
She said six people, including herself and the victim, were on the porch.

       Word testified that while everyone was “talking and cutting up,” the appellant
approached the porch and told two people sitting on the porch steps to “excuse [him]” and
that “he would like to get by.” Word stated, “By that time . . . couldn’t nobody move because
we was right there, you know. We couldn’t go no where.” The appellant came onto the
porch and said twice, “‘I’m sorry, but y’all don’t have anything to do with this.’” Word said
that everyone was in shock and that no one had time to do anything because the appellant
“come that quick.” The appellant made eye contact with the victim and pulled out a gun.
Word begged the appellant not to shoot the victim, and the victim told the appellant, “‘Please
don’t kill me.’” The appellant fired his gun nine times, shooting the unarmed victim multiple
times, and walked away. The victim fell back and began gasping for breath. During the
shooting, nine “fragments” went into Word’s legs. Additional fragments went into the arm
of another woman who also had been sitting on the porch.

        On cross-examination, Word testified that the appellant was calm. She acknowledged
that he did not run onto the porch, that he did not point the gun at anyone other than the
victim, and that he did not run away after the shooting. Word said she had heard that the
victim had threatened the appellant on the Friday prior to the shooting. She acknowledged
that during the threat, the victim told the appellant that the victim “would do what he did to
[the appellant’s] daddy.” Word also acknowledged that the victim had killed the appellant’s
father twenty-five or thirty years ago.

        On redirect examination, Word testified that she had talked with the victim about his
threatening the appellant. The victim explained to Word that on the day of the threat, he was
in a store. The appellant came into the store, saw the victim standing in line, and “pointed
him out.” The victim told the appellant, “‘All right, you keep on picking with me I’m gonna
do you like I did your daddy.’” Word saw the victim after the incident, and the victim was
upset. She asked him what was wrong, and he told her, “‘That boy picked on me. . . . That’s
why I stopped coming down here.’” Word said that about two months before the shooting,
the victim had stopped visiting her mother’s house because he had seen the appellant walking


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“back and forth, up and down.” The victim told Word that he wanted to talk with the
appellant one day but that “‘with everybody else telling [the appellant] this and that [the
appellant] would never understand.” The victim was trying to avoid the appellant and told
Word, “I served my time for it. . . . I want to let it go and just leave it alone.”

       Charles Gentry, the victim’s brother, testified that he had been “trying to wrap [his]
head around all of this.” Addressing the appellant, Mr. Gentry said that he loved the victim
“with all [his] heart and soul” and that “nobody deserves to be shot that many times.” He
said that the victim’s death had hurt his family and that the appellant was “misdirected” and
“misinformed” about the victim.

       On cross-examination, Mr. Gentry acknowledged that the victim served about ten
years in prison for killing the appellant’s father before the victim was paroled. Mr. Gentry
said he was unaware that the victim had returned to prison for “another problem” and was
paroled a second time.

        Tonya Gentry, the victim’s younger sister, testified that at the time of the victim’s
death, she was in a movie theater. When she left the theater, she checked her cellular
telephone and discovered that her family had been trying to call her. Ms. Gentry learned that
the victim had been shot and went to the hospital. The victim had been shot nine times, five
times in the head. Ms. Gentry said that she passed out at the hospital and that the victim’s
death was hard to accept. She said that her family and the appellant’s family had grown up
together and that “[t]his was all over a woman . . . , my brother’s wife.” Ms. Gentry
explained that the victim’s wife had used the appellant’s father to make the victim jealous
and that the victim had killed the appellant’s father. She said the victim “wasn’t in no trouble
‘til this happened with him and [the appellant’s father].” Ms. Gentry stated that the
appellant’s children were going to grow up without a father and that “it didn’t have to
happen.”

       On cross-examination, Ms. Gentry acknowledged that the victim shot the appellant’s
father with a shotgun when the appellant was about ten years old. She also acknowledged
that prior to killing the appellant’s father, the victim served time in confinement for
aggravated assault.

       Kim Benard, the appellant’s mother, testified for him that the appellant was born in
1979. One day when the appellant was ten years old, Benard came home, and her children
told her that the victim had shot their father in the head. She said the casket for the
appellant’s father was closed because the victim “blew [his] head off.” The appellant was
a good child but missed his father, and Benard “couldn’t take [his] daddy’s place.” After the
appellant started middle school, he got into a couple of fights. Bernard said that she talked


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with the appellant and that he changed. One day about six years before the sentencing
hearing, the appellant came home and told Benard that a man in the unemployment office had
told the appellant about the victim’s shooting the appellant’s father. The appellant told his
mother that he was hurt, and the appellant cried. Benard acknowledged that the appellant had
worked for most of his life and that he worked temporary jobs when he could not find steady
employment.

       Christine Anderson, the appellant’s sister, testified that the appellant was “a pretty
quiet person growing up” and that he always kept his feelings to himself. However, his
violence toward the victim was outside of his character, and the trial court did not need to be
concerned that the appellant would commit another crime after his release from prison. She
said she hoped that the appellant’s children would not have to grow up without him.

        Joseph Angelillo, a clinical psychologist, testified that twenty percent of his practice
involved forensic psychology and that eighty percent involved standard psychotherapy. Dr.
Angelillo conducted six interviews with the appellant totaling about eight hours and had a
one-hour telephone interview with two members of the appellant’s family. Dr. Angelillo also
gave the appellant an I.Q. test, a screening for possible brain damage, four psychological
tests, and two tests to detect malingering. When Dr. Angelillo met with the appellant, the
appellant was taking Haldol, a drug used to treat psychotic symptoms or as an adjunct in the
treatment of depression; the antidepressant Lexapro; and Cogentin, a drug used to treat the
side effects of Haldol. Dr. Angelillo concluded that the appellant understood right from
wrong, that he was angry, and that he had low self esteem. Dr. Angelillo said that the
appellant did not express remorse for killing the victim but that the appellant had a difficult
time remembering the crime, which was not unusual. The appellant tried to kill himself at
least one time while he was in confinement for this case and did not appear to be
malingering. Dr. Angelillo said that the appellant was “incredibly simplistic, black and white
in thinking” and that the appellant’s “perception of reality was quite skewed or askew at the
time.”

       Dr. Angelillo testified that the appellant’s I.Q. was seventy-four, “meaning if Don was
compared to others in approximately his age range he would be higher than four percent,
lower than 95.99 percent.” However, Dr. Angelillo thought the appellant’s medication
“probably dulled his performance” on the I.Q. test. Based upon the appellant’s being a high
school graduate and able to hold a job prior to the crimes, Dr. Angelillo thought the appellant
could learn and hold a job in the future. He stated, “It’s more the emotional issues that need
to be improved, worked upon.” He said he thought the appellant suffered from a mental
disorder that caused a person to experience great stress and believe that the person’s life was
in danger. Dr. Angelillo said that he thought the appellant had a realistic fear of the victim
and that “as long as he’s motivated to do so, I don’t see anything that stands in the way [of


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the appellant’s rehabilitation].”

        On cross-examination, Dr. Angelillo acknowledged that although the appellant fought
in high school, he thought the appellant was a passive person. He also acknowledged that
the appellant had prior convictions for reckless endangerment and harassment. He said that
he did not know the facts that resulted in the reckless endangerment conviction but that the
harassment conviction “had to do with . . . a girlfriend.” He acknowledged that according
to Lori Word, the appellant’s “continually picking” on the victim led to the confrontation at
the store two days before the shooting. However, he said, “That’s not the way I understood
it.” Dr. Angelillo acknowledged that the appellant claimed he was under the influence of
marijuana and cocaine when he killed the victim and said that drug use could cause a person
to express anger more overtly. He said that the syndrome from which the appellant suffered
was major depression with psychotic features.

      On redirect examination, Dr. Angelillo testified that the appellant believed the victim
was going to kill him. On recross examination, Dr. Angelillo testified that that was an
unreasonable perception for a normal person.

        The State introduced the appellant’s presentence report into evidence. According to
the report, the then thirty-three-year-old appellant failed to return a questionnaire for the
report. Therefore, the report did not provide any information about the appellant’s education,
family, employment history, military history, or financial history. Regarding the appellant’s
health, the report states that while the appellant was being held in jail and awaiting court
appearances for this case, he “stockpiled” his medication, attempted an overdose, made
threats against his life, refused to cooperate with mental health counselors, and disrupted the
jail facility. Later, the appellant tried to hang himself and refused to speak with mental
health personnel. The report shows that the appellant has prior misdemeanor convictions for
driving on a suspended license, reckless endangerment, and harassment.

        In announcing the appellant’s sentence, the trial court noted that this case was “clearly
tragic on several levels to a great, great number of people” and that the appellant “may well
have been convicted of murder in the first degree had this gone to trial.” The trial court also
noted that the State and the appellant had argued the applicability of numerous enhancement
and mitigating factors. The court first addressed the enhancement factors. The court applied
enhancement factors (1), that the appellant “has a previous history of criminal convictions
or criminal behavior in addition to those necessary to establish the appropriate range,” but
gave it very little weight; (3), that the offense involved more than one victim; and (10), that
the appellant had no hesitation about committing a crime when the risk to human life was
high. See Tenn. Code Ann. § 40-35-114(1), (3), (10). In addition, the trial court stated,



                                               -5-
              I do think the fact that he shot the victim in the head seven times
              in front of witnesses, some of them his family, should be
              considered as an enhancing factor. I’m not sure whether it’s a
              statutory aggravating factor or not, but it’s certainly a cruel thing
              to have done and should be considered by the Court in
              determining what the sentence is.

        Regarding mitigating factors, the trial court found that the appellant, “although guilty
of a crime, committed the offense under such unusual circumstances that it is unlikely that
a sustained intent to violate the law motivated the criminal conduct.” Tenn. Code Ann. § 40-
35-113(11). As for rehabilitation, the trial court stated, “I don’t have any doubt that whatever
rehabilitation will take place in his life will happen just as likely with a short sentence as a
long sentence.” The trial court concluded that the enhancement factors “outweigh the
mitigating factors to the point that maximum sentences are, in fact, appropriate in this case.”
Thus, the trial court sentenced the appellant to twenty-five years for the second degree
murder conviction, a Class A felony, and six years for each aggravated assault conviction,
a Class C felony. See Tenn. Code Ann. § 40-35-112(a)(1), (3). The trial court ordered that
the sentences run concurrently.

                                         II. Analysis

        The appellant contends that the trial court misapplied the two enhancement factors and
that the trial court should have applied certain mitigating factors. The State argues that the
appellant’s sentence is not excessive. We agree with the State.

        In conducting its sentencing 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 State
v. Bise, 380 S.W.3d 682, 697-98 (Tenn. 2012). The burden is on the appellant to
demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401, Sentencing
Comm'n Cmts.

      Previously, appellate review of the length, range, or manner of service of a sentence
was de novo with a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d).
However, in State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012), our supreme court announced


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that “sentences imposed by the trial court within the appropriate statutory range are to be
reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’” In
determining a defendant’s sentence, the trial 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
              40-35-114.

Tenn. Code Ann. § 40-35-210(c).

       Although the trial court should also consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; Bise,
380 S.W.3d at 698 n.32. We note 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. “[A]ppellate courts are therefore left with a narrower set of
circumstances in which they might find that a trial court has abused its discretion in setting
the length of a defendant’s sentence.” Id. at 345-46. “[They 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


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Sentencing Act.” Id. at 346.

        Turning to the instant case, we initially note that the appellant failed to include the
guilty plea hearing, in which the State would have presented the factual basis for the pleas,
in the appellate record. Our supreme court has held that when a record does not include a
transcript of the guilty plea hearing, this court should determine “on a case-by-case basis
whether the record is sufficient for a meaningful review under the standard adopted in Bise.”
State v. Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). Therefore, we must determine whether
the record provides sufficient information to allow meaningful appellate review.

       We also note that in addition to omitting the guilty plea hearing transcript, the
appellate record does not include two exhibits that the appellant introduced into evidence at
the sentencing hearing: the victim’s Tennessee Department of Correction records and Dr.
Angelillo’s curriculum vitae. However, the trial court did not address either of the exhibits
in announcing the appellant’s sentence. Therefore, we conclude that the documents in the
technical record, which includes the presentence report containing Dr. Angelillo’s
psychological evaluation of the appellant, and the testimony at the sentencing hearing
provide sufficient information for appellate review. As a result, we may presume that the
missing plea hearing transcript would support the ruling of the trial court. See id. at 279.

        Turning to the appellant’s argument that his sentences are excessive, the appellant
contends that the trial court misapplied enhancement factor (3), that the offense involved
more than one victim, because no evidence was presented that there were more victims than
those that resulted in his pleas. The trial court applied factor (3) on the basis that “[t]here
were more victims than he was actually charged with harming if you consider the situation.”
However, our supreme court has defined “victim,” as used in Tennessee Code Annotated
section 40-35-114(3), “as being limited in scope to a person or entity that is injured, killed,
had property stolen, or had property destroyed by the perpetrator of the crime.” State v. Reid,
91 S.W.3d 247, 310 (Tenn. 2002). Moreover, the court has stated that enhancement factor
(3) does not apply when there are separate convictions for each victim. Id. at 311. In this
case, the appellant was convicted of the murder of Darnell Gentry and the aggravated assaults
of Lori Word and another woman. Although other individuals were present on the porch at
the time of the shooting, there were no additional “victims.” Therefore, we agree with the
appellant that the trial court misapplied enhancement factor (3).

        The appellant also contends that the trial court misapplied enhancement factor (10),
that the appellant had no hesitation about committing a crime when the risk to human life
was high. In applying that factor, the trial court stated that “the loss of life was certain.”
Factor (10) is inherent in every homicide or attempted homicide in relation to the named
victim; however, “the trial court may consider this factor when the defendant endangers the


                                              -8-
lives of people other than the victim.” State v. Kelley, 34 S.W.3d 471, 480 (Tenn. Crim.
App. 2000). Furthermore, “evidence of high risk to human life obviously is not required to
establish aggravated assault causing serious bodily injury.” State v. Jones, 883 S.W.2d 597,
602 (Tenn. 1994). The evidence shows that the appellant walked onto the porch, where he
was in close proximity to the aggravated assault victims and others, and that he fired his
weapon nine times. Therefore, we conclude that the trial court properly applied enhancement
factor (10).

        Next, the appellant contends that the trial court erred by enhancing his sentences based
upon its finding that “he shot the victim in the head seven times in front of witnesses, some
of them his family.” In making that pronouncement, the trial court stated, “I’m not sure
whether it’s a statutory aggravating factor or not, but it’s certainly a cruel thing to have
done.” Tennessee Code Annotated section 40-35-114 does not include such an enhancement
factor or a catchall enhancement factor. Therefore, the trial court should not have addressed
this consideration as an enhancement factor. Nevertheless, the trial court properly took into
account the evidence of the crimes in its consideration of the principles of sentencing.

        Finally, the appellant contends that the trial court erred by refusing to apply the
following mitigating factors to his sentences: (2), that he acted under strong provocation; (3),
that “[s]ubstantial grounds exist tending to excuse or justify the defendant’s criminal conduct,
though failing to establish a defense”; and (8), that he “was suffering from a mental or
physical condition that significantly reduced [his] culpability for the offense.” Tenn. Code
Ann. § 40-35-113(2), (3), (8). However, the evidence established that the appellant walked
onto the porch; apologized for his actions; calmly shot the unarmed victim, who had been
eating an evening meal with friends, repeatedly in the head; and walked away from the scene.
We fail to see how those facts support the application of any of the proposed mitigating
factors.

        In sum, we conclude that the trial court properly sentenced the appellant to twenty-five
years for the murder conviction and six years for the aggravated assault convictions.
Although the trial court misapplied enhancement factors, the trial court properly applied
enhancement factors (1) and (10) and considered the additional principles of sentencing. We
note that the trial court’s comments during the hearing demonstrate that it was greatly
troubled by the facts of this case, stating at one point that “I don’t know whether this was an
act of revenge or not, but it certainly was a classic example of the most egregious form of
taking justice into a person’s own hands and we can’t have a civilization if we allow that to
happen.” Therefore, we affirm the appellant’s sentences.




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                                   III. Conclusion

      Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgments of the trial court.


                                                _________________________________
                                                NORMA McGEE OGLE, JUDGE




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