                                                                                                   01/14/2020
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                              Assigned on Briefs June 19, 2019

          STATE OF TENNESSEE v. STEVEN DALE DAVIDSON, JR.

                   Appeal from the Criminal Court for White County
                    No. 2016-CR-7976    David A. Patterson, Judge


                               No. M2018-00182-CCA-R3-CD


The Defendant, Steven Dale Davidson, Jr., was convicted by a jury of voluntary
manslaughter and vehicular homicide. Thereafter, the trial court merged the counts and
imposed an effective ten-year sentence, to run consecutively to a previous sentence for
which probation had been revoked due to the convictions in this case. On appeal, the
Defendant contends that the trial court erred by excluding the complete police interview
of a defense witness and in its consideration during sentencing of enhancement and
mitigating factors. Upon review of the record and the applicable law, we affirm the
judgments of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Michael J. Rocco (on appeal), and David Barnes (at trial), Sparta, Tennessee, for the
appellant, Steven Dale Davidson, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Bruce MacLeod
and Philip Hatch, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                       OPINION
                                 FACTUAL BACKGROUND1

       This case arises from the April 15, 2016 death of the victim, Nick Culver. From
the proof adduced at trial, the events were as follows:
1
  The Defendant does not raise sufficiency of the evidence on appeal. We will, therefore, confine our
summation of the facts to those necessary to give context to the issues on appeal.
       At the time, the Defendant was in a romantic relationship with Christy Flewellen,2
who was separated from her then-husband Joshua Flewellen. Early on the morning of
April 15 around 4:00 a.m., the Defendant went with Mrs. Flewellen and Jayce Passons to
Mr. Flewellen’s house in order to retrieve Mrs. Flewellen’s green GMC truck. Mr.
Passons wore a black ski mask. The testimony indicated that Mr. and Mrs. Flewellen had
a volatile relationship, with multiple individuals stating that they were concerned for the
safety of both Mrs. Flewellen and Mr. Flewellen.

      When they arrived at Mr. Flewellen’s house, Lacey Davidson, who was the
Defendant’s sister, Mr. Flewellen, and the victim were present at the house. Mrs.
Flewellen started the truck, and Mr. Flewellen, alerted to her actions, jumped off of the
house’s roof and climbed into the passenger seat through the truck’s window. Mrs.
Flewellen drove to the parking lot of Bear Cove Baptist Church. The Defendant, Mr.
Passons, Ms. Davidson, and the victim followed in their respective vehicles. The
Defendant drove a yellow Dodge Dakota pickup truck, and the victim drove a white
Toyota sedan.

        At the church, Mr. Flewellen and Mrs. Flewellen argued, and the confrontation
became physical. Mrs. Flewellen testified that Mr. Flewellen “pull[ed] his knives and
stuff out,” but she was the only one to testify as to the presence of a knife during the
confrontation. At this point, the Defendant intervened, and the two men fought until the
Defendant pinned Mr. Flewellen to the ground and held him by his throat. The victim
separated the Defendant and Mr. Flewellen by pushing the Defendant with his foot, and
all the witnesses at trial agreed that the Defendant did not fight with the victim. Although
Mrs. Flewellen did not see the Defendant get hit, she stated that the Defendant was
injured on “his mouth and stuff, [he was] was bleeding on top of his head and stuff.”
There was some testimony indicating that Ms. Davidson, who admitted she had smoked
marijuana and consumed a small amount of alcohol, wielded a “maul” and hit the hood of
the Defendant’s truck, although she denied having done so. There was a documented
hole in the Dodge’s hood of the approximate diameter of the maul, and the maul was
found on the road near the crime scene.

       The group began to leave the parking lot. Mrs. Flewellen drove the GMC, the
victim drove the Toyota, and it was an issue at trial whether the Defendant or Mr.
Passons drove the Dodge. Mr. Flewellen again got into the passenger seat of the GMC,
and Ms. Davidson jumped into the GMC’s truck bed. Mrs. Flewellen drove away from
the church and after a short distance, the victim’s car sped ahead of the truck, pulled in
front of it, and stopped. The GMC braked, “tossing” Ms. Davidson about in the truck
bed, and Mrs. Flewellen drove around the victim’s car.

2
 Christy Flewellen and the Defendant were married after his trial. Because Mrs. Davidson’s surname
was Flewellen at the time of trial, we will refer to her as Mrs. Flewellen. We intend no disrespect.
                                                -2-
       From the accident reconstruction testimony, Ms. Davidson’s testimony, and the
physical evidence, it appeared that at this point, the victim exited his car and was
standing inside the hinge of the open driver’s side door when the Dodge accelerated and
swerved toward him. The Toyota was struck by the Dodge and pushed some distance
before the vehicles separated, and the Dodge went onto the grass on the opposite
shoulder. The driver of the Dodge course corrected and swerved to the right to come
back onto the road, and the Dodge hit the Toyota a second time before driving away. The
victim was struck by the Dodge during one or both collisions. No brake marks from a
truck were evident near the location of either impact.

        Ms. Davidson saw the crash occur as she looked backward from the GMC truck
bed. She yelled at Mrs. Flewellen to stop and jumped out of the truck bed before running
to the victim, who was “suffocating on his own blood.” She turned the victim to clear his
airway and eventually began CPR. The Dodge drove away from the scene without
stopping, passing Ms. Davidson as she ran down the road. Ms. Davidson saw that the
Defendant was driving. Mrs. Flewellen also saw the Dodge drive past her after she
stopped the truck, but the windows were too dark for her to see who was driving.

       The autopsy reflected that the victim’s extensive blunt force injuries were
consistent with having been struck and dragged by a motor vehicle for some distance.
The victim suffered from fatal contusions at the base of his skull and spinal injuries that
would have left him paralyzed. The medical examiner concluded that the cause of death
was multiple blunt force injuries and that the manner of death was homicide.

       Mrs. Flewellen testified that when she made her way back to Mr. Passons’s house,
she found the Defendant lying on a couch inside the house; he was bleeding and
unresponsive; and eventually he began to speak but it “was quiet and . . . a jumble.” The
Defendant had a seizure about one hour later. The passenger compartment of the
Defendant’s truck was spray-painted black after the accident and placed in some woods
down a hill behind Mr. Passons’s house. Mr. Passons evidently participated in the
painting as well as the Defendant. The Defendant stated in his police interview that he
painted the driver’s side door. The arresting officers documented black paint on the
Defendant’s hands.

        The audio recording of the Defendant’s police interview included in the record is
of poor sound quality. However, our review of the recording reflects that the Defendant
initially denied having driven the Dodge truck, but about halfway through the interview
admitted having driven the truck during the crash. He stated that after hitting the victim’s
car, he stopped, and Mr. Passons drove the rest of the way to Mr. Passons’s house.

       Multiple witnesses testified regarding their personal knowledge that the Defendant
had suffered a brain injury in an accident one year prior to the victim’s death and that as a
                                             -3-
result of the injury, he suffered from seizures and was not permitted to drive. The
Defendant also discussed his injury during his police interview. Ms. Davidson
specifically testified that the Defendant’s seizure medications made him tired and
forgetful. Trista Atnip, the Defendant’s cousin’s fiancée, testified that she had witnessed
the Defendant’s seizures and the after effects, which could last two to three days. The
Defendant would suffer from severe headaches and dizziness, want to be in a dark room,
and be “very forgetful.” Ms. Atnip added that the Defendant had generally forgotten
things since the accident.

        Casey Fraze testified for the defense that he worked with Mrs. Flewellen and that
on April 15, 2016, he was at his then-girlfriend’s house between 3:00 and 4:00 a.m. when
he heard a “commotion” and went outside to smoke a cigarette. He walked down the
street and up a hill, and he saw a yellow truck in the parking lot of Bear Cove Baptist
Church that he was able to identify as a Dodge Dakota. He saw two men, a taller blonde
man and a “dark-haired guy” who was six to ten inches shorter than the blonde man. 3 He
could not identify either man. He estimated that he was between one hundred fifty and
two hundred yards away from the men. The blonde man entered the driver’s side of the
truck and the darker-haired man entered the passenger’s side, and they drove away from
the church. Mr. Fraze agreed that he did not hear a crash or screaming and that he did not
see any other cars. Mr. Fraze agreed that he, the Defendant, and Mrs. Flewellen were
“going to eat and have steaks” if the Defendant were found not guilty. The defense
introduced a booking photograph of Jayce Passons for identification purposes, which
reflected he had blonde hair and was six foot two inches tall.

        Mrs. Flewellen testified for the defense, stating that she did not know if the
Defendant was driving the Dodge and that she told the police as much. The State
impeached Mrs. Flewellen with a video-recorded portion of her police interview, which
reflected that the Defendant was driving when they all left the church parking lot. A
portion of Mrs. Flewellen’s recorded police interview, which was not introduced as an
exhibit or included in the record on appeal, was played for the jury.

       Mrs. Flewellen testified that in the interview, she had also said she was not one
hundred percent certain the Defendant was driving and that she assumed the Defendant
had been driving because he owned the truck. Mrs. Flewellen maintained that she was
not sure whether the Defendant was driving and that she did not see who entered the
driver’s side of the truck. Mrs. Flewellen acknowledged her previous statement in her
police interview that the Defendant stopped after hitting the victim and changed seats
with Mr. Passons, who drove them away from the scene.



3
    The record reflects that the Defendant had dark hair.
                                                      -4-
       On redirect examination, defense counsel sought to introduce the entirety of Mrs.
Flewellen’s police interview under Tennessee Rule of Evidence 106, known as the rule of
completeness, to demonstrate that she had repeatedly stated that the Defendant was not
driving when the victim was hit before eventually changing her statement toward the end
of the interview. The trial court found that the interview was inadmissible hearsay.
However, the court allowed counsel to question Mrs. Flewellen further about the
interview, and she maintained that she did not see who was driving when the Dodge left
the church parking lot.

       Upon this evidence, the Defendant was convicted of voluntary manslaughter and
vehicular homicide. At the sentencing hearing, Tennessee Department of Correction
Officer Ralph Brian Lewis testified that he composed the Defendant’s presentence report
and that the Defendant had three previous convictions: theft of property (shoplifting) in
2013; aggravated burglary in 2014; and felony theft of property in 2014. The judgments
in DeKalb County Criminal Court case numbers 2014-CR-944 and 2014-CR-95 reflected
that on June 24, 2014, the Defendant pled guilty to theft of property over $1,000, a Class
D felony, and aggravated burglary, a Class C felony, respectively.5 In each case, the
Defendant received a four-year sentence suspended to four years of supervised probation,
to run concurrently with the other case. The Defendant’s probation had been revoked on
June 20, 2017, as a result of the offenses in the present case. Officer Lewis noted that
April 15, 2016, was during the Defendant’s probationary period.

       Pastor Emory Thompson testified for the defense that he had known the Defendant
since the Defendant was age ten and that he had previously worked with the Defendant in
construction and on a farm. The Defendant attended Mr. Thompson’s church, and Mr.
Thompson stated that he had offered the Defendant a job with Mr. Thompson’s
construction company if the Defendant were released from prison.

       Larry Culver, the victim’s father, testified and made a victim impact statement.
He stated that as a result of the victim’s death, the victim’s mother had been “stressed . . .
awful” before she also passed away, that Mr. Culver’s granddaughter had to go to a
psychiatrist, and that Mr. Culver had “a lot of nightmares[.]” Mr. Culver noted that the
victim’s death was “something that never should have happened[.]”

       The trial court found that the Defendant was a Range II, multiple offender and that
the sentencing range was six to ten years at thirty-five percent service. Relative to
enhancement factors, the court found that the Defendant had a previous history of
criminal convictions in addition to those necessary to establish the appropriate range. See
Tenn. Code Ann. § 40-35-114(1). The court found that the Defendant had two prior

4
    The date of offense for case number 2014-CR-95 was November 5, 2013.
5
    The date of offense for case number 2014-CR-94 was November 13, 2013.
                                                  -5-
felony convictions, one Class C felony and one Class D felony, that were committed on
separate dates. The court took into consideration the Defendant’s prior misdemeanor
shoplifting conviction in its assessment of the Defendant’s prior criminal behavior.

       The trial court found relative to the voluntary manslaughter conviction only that
the Defendant possessed or employed a deadly weapon, a motor vehicle, during the
commission of the offense. See Tenn. Code Ann. § 40-35-114(9). The court further
found that the Defendant had been released on probation at the time the felony was
committed. See Tenn. Code Ann. § 40-35-114(13)(C). The court noted that the
Defendant’s probation had been revoked as a result of this case, that the Defendant had
been on probation for one year and eight or nine months when he committed the instant
offenses, and that the court took this fact into consideration as it weighed the issue of
consecutive sentencing.

      The trial court considered the Defendant’s argument that he acted under strong
provocation and found that this mitigating factor did not apply. See Tenn. Code Ann. §
40-35-113(2). The court stated,

       Voluntary manslaughter is what he was convicted of. Vehicular homicide
       is what he was convicted of. He was charged with second degree murder.
       He was blessed by the fact that the jury did not come back with second
       degree murder. The [S]tate argued it well, it was well presented, and had
       they come back with second degree murder the court would have accepted
       it. Knowing killing of another person could be shown in this case also. I
       do not believe that strong provocation is appropriate in this case and do not
       consider it to be a mitigating factor.

The court also stated that mitigating factor (3), substantial grounds existed tending to
excuse or justify the Defendant’s conduct while failing to establish a defense, did not
apply. See Tenn. Code Ann. § 40-35-113(3). Relative to mitigating factor (8), the
Defendant was suffering from a mental or physical condition that significantly reduced
his culpability, the court noted that the Defendant had argued this factor was applicable
given his previous head injury. See Tenn. Code Ann. § 40-35-113(8). The court found,
though, that this factor did not apply because the court “did not hear any substantial proof
. . . that that was the case, no medical proof . . . . We heard that he had been in an
accident at another time, he had . . . certain injury[.]”

      Relative to mitigating factor (11), that the Defendant committed the offense under
such unusual circumstances that it was unlikely that a sustained intent to violate the law
motivated the criminal conduct, the trial court found that it was “totally not being
considered by the court.” See Tenn. Code Ann. § 40-35-113(11). The court found that
the Defendant “was motivated, that he did commit this offense, that he did it not
                                            -6-
intentionally in terms of a first degree murder, but he certainly did fall into . . . what the
elements of the offenses require.” Relative to mitigating factor (13), any other factor
consistent with the purposes of sentencing, the court found that the Defendant “was in
some way moved” by the victim’s death and that the Defendant “very likely was
remorseful.” See Tenn. Code Ann. § 40-35-113(13). The court noted, though, that the
Defendant could have been upset from “considering his own plight[.]” The court applied
mitigating factor (13) but did “not give it much weight.”

       The trial court gave “great weight” to “the enhancing factors” and ordered a
sentence of ten years for voluntary manslaughter and eight years for vehicular homicide,
to run concurrently. The court merged the offenses and ordered that the effective ten-
year sentence run consecutively to the four-year DeKalb County sentence. The court
found that although the Defendant was not a professional criminal, the Defendant had a
“somewhat” extensive history of criminal activity. The court noted the Defendant’s three
prior convictions and, including the present offenses, four felony convictions. The court
found that the Defendant had committed the offenses in this case while on probation.
The trial court found that the Defendant lacked the potential for rehabilitation and noted
the Defendant’s “moderate” “Strong R Assessment” and the court’s belief the Defendant
would reoffend.

      The trial court denied the Defendant’s motion for new trial by written order filed
on February 13, 2018. The Defendant timely appealed.

                                        ANALYSIS

                       I.      Mrs. Flewellen’s Interview Recording

       The Defendant contends that the trial court erred by excluding the entirety of Mrs.
Flewellen’s police interview as inadmissible hearsay. The Defendant argues that the
recording was admissible pursuant to Tennessee Rule of Evidence 106, known as the rule
of completeness.




                                             -7-
       We agree with the State that the Defendant has failed to provide this court with an
adequate record for review because the video recording was not included in the appellate
record or, indeed, entered as an exhibit or marked for identification at trial.6 See State v.
Goad, 707 S.W.2d 846, 852-53 (Tenn. 1986). We cannot adequately review the trial
court’s determination without viewing the entire recording. Moreover, because the
recording was not marked for identification or made part of the trial record, we are unable
to request the trial court clerk to supplement the appellate record.

       It is well-settled that when a party seeks appellate review, it has 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. See State v. Ballard, 855 S.W.2d
557, 561 (Tenn. 1993) (holding failure to include transcript precludes appellate review);
State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Oody, 823 S.W.2d 554, 559
(Tenn. Crim. App. 1991) (holding trial court’s ruling was presumed correct in the
absence of an adequate record on appeal). Where the record is incomplete, an appellate
court is precluded from considering the issue. See State v. Roberts, 755 S.W.2d 833, 836
(Tenn. Crim. App. 1988). This issue, therefore, has been waived.

      Moreover, plain error relief is not warranted. The doctrine of plain error applies
when all five of the following factors have been established:

        (a) the record must clearly establish what occurred in the trial court;
        (b) a clear and unequivocal rule of law must have been breached;
        (c) a substantial right of the accused must have been adversely affected;
        (d) the accused must not have waived the issue for tactical reasons; and
        (e) consideration of the error must be “necessary to do substantial justice.”

       State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118
S.W.3d 355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be]
especially egregious in nature, striking at the very heart of the fairness of the judicial
proceeding, to rise to the level of plain error.” Id. at 231.

        In this case, the record does not clearly establish what occurred in the trial court
because the recording is not part of the trial record or the record on appeal. We note, that
Mrs. Flewellen was permitted to testify on redirect examination and clarify for the jury
that although she assumed the Defendant was driving because the Dodge truck belonged
to him, she did not see the driver and did not know with certainty who was driving. In
light of the other evidence at trial—including Ms. Davidson’s identification, the physical
evidence at the scene, and the Defendant’s participation in painting the truck—further

6
  We note that although the State played a portion of the video recording for the jury at trial, the excerpts
similarly were not marked for identification, made an exhibit, or included in the appellate record.
                                                     -8-
consideration of the alleged error is not necessary to do substantial justice.         The
Defendant is not entitled to relief on this basis.

                                   II.      Sentencing

        The Defendant contends that the trial court erred in its application of enhancement
and mitigating factors when determining the length of the Defendant’s sentence. The
Defendant argues that enhancement factor (9), the Defendant possessed or employed a
deadly weapon, does not apply to voluntary manslaughter convictions; that the court
erroneously applied enhancement factor (10), the Defendant had no hesitation about
committing a crime when the risk to human life was high; that the court erred by
declining to apply mitigating factor (2), the Defendant acted under strong provocation
and improperly considered the Defendant’s acquittal of second-degree murder in its
determination; that the court made inadequate findings in regard to mitigating factor (3),
substantial grounds existed tending to excuse or justify the Defendant’s criminal conduct;
and that the court did not properly consider mitigating factor (11), the Defendant
committed the offense under such unusual circumstances that it was unlikely a sustained
intent to violate the law motivated the criminal conduct. See Tenn. Code Ann. §§ 40-35-
114(9), (10); -113(2), (3), (11). The Defendant requests de novo review of his sentence
by this court. The State responds that the court did not err in its consideration of the
enhancement and mitigating factors.

       Before a trial court imposes a sentence upon a defendant, it must consider: (a) the
evidence adduced 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) evidence and information offered
by the parties on the enhancement and mitigating factors set forth in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by
the Administrative Office of the Courts (“AOC”) as to Tennessee sentencing practices for
similar offenses; (g) any statement the defendant wishes to make in the defendant's own
behalf about sentencing; and (h) the result of the validated risk and needs assessment
conducted by the department and contained in the presentence report. Tenn. Code Ann. §
40-35-210(b). When an accused challenges the length of a sentence, this court reviews
the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The burden of showing that a sentence is improper is upon the appealing
party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also State v.
Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).

      This court will uphold the trial court’s sentencing decision “so long as it is within
the appropriate range and the record demonstrates that the sentence is otherwise in

                                            -9-
compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-
10. Moreover, under such circumstances, appellate courts may not disturb the sentence
even if we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346
(Tenn. 2008). Those purposes and principles include “the imposition of a sentence justly
deserved in relation to the seriousness of the offense,” Tennessee Code Annotated section
40-35-102(1); a punishment sufficient “to prevent crime and promote respect for the
law,” Tennessee Code Annotated section 40-35-102(3); and consideration of a
defendant’s “potential or lack of potential for . . . rehabilitation,” Tennessee Code
Annotated section 40-35-103(5). See Carter, 254 S.W.3d at 344. Ultimately, in
sentencing a defendant, a trial court should impose a sentence that is “no greater than that
deserved for the offense committed” and is “the least severe measure necessary to
achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-
103(2) & (4).

       The weight to be afforded an enhancement or mitigating factor is left to the trial
court’s discretion so long as its use complies with the purposes and principles of the 1989
Sentencing Act and the court’s findings are adequately supported by the record. Tenn.
Code Ann. § 40-35-210(d)-(f); Carter, 254 S.W.3d at 342-43. The trial court is “to be
guided by—but not bound by—any applicable enhancement or mitigating factors when
adjusting the length of a sentence.” Bise, 380 S.W.3d at 706. Further, “a trial court’s
misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
Id. Even if the trial court “recognizes and enunciates several applicable mitigating
factors, it does not abuse its discretion if it does not reduce the sentence from the
maximum on the basis of those factors.” Carter, 254 S.W.3d at 345. A sentence imposed
by the trial court that is within the appropriate range should be upheld “[s]o long as there
are other reasons consistent with the purposes and principles of sentencing, as provided
by statute.” Bise, 380 S.W.3d at 706.

       The trial court sentenced the Defendant for each conviction within the appropriate
statutory range and articulated in the record its reasons for imposing the sentences. We
note that the sentencing hearing transcript does not reflect that the court applied
enhancement factor (10), and the Defendant’s argument in this regard has no basis in the
record. Moreover, the Defendant has cited to no authority, and we can find none, to
support his assertion that enhancement factor (9), the Defendant employed a motor
vehicle as a deadly weapon, is not applicable to voluntary manslaughter convictions.7

7
  The Defendant’s reliance on State v. Donald Paul Presley, No. E2000-00592-CCA-R3-CD, 2001 WL
912710, at *7 (Tenn. Crim. App. Aug. 14, 2001), for the proposition that the “mere fact . . . that a deadly
weapon was employed . . . is not sufficient, without more, to justify a sentence of total confinement” is
misplaced. The sole issue in Presley was the denial of alternative sentencing, not the length of an in-
range sentence, and it is inapplicable to the Defendant’s issue on appeal.
                                                   -10-
The Defendant’s assertions relative to enhancement factors (9) and (10) are without
merit, and he is not entitled to relief on this basis.

        Relative to mitigating factor (2), the Defendant’s conviction for voluntary
manslaughter required a finding that he acted under adequate provocation. See Tenn.
Code Ann. § 39-13-211(a). However, the standard for application of mitigating factor (2)
is that the Defendant acted under “strong provocation.” See Tenn. Code Ann. § 40-35-
113(2); State v. Michael R. Blakely, Jr., No. M2001-01114-CCA-R3-CD, 2003 WL
213780, at *14 (Tenn. Crim. App. Jan. 31, 2003). Moreover, we agree with the State that
the Defendant’s theory at trial was not one of provocation, but rather that the Defendant
was not driving and had no reason to harm the victim.

       Specifically, the Defendant objects to the court’s expressing an opinion that the
jury “blessed” the Defendant with a voluntary manslaughter conviction and that the
State’s evidence could have established a “[k]nowing killing.”8 We interpret the court’s
statement to mean that although it acknowledged the jury’s finding of adequate
provocation relative to voluntary manslaughter, the evidence was such that the jury could
have reasonably found there to be inadequate provocation and, as an extension, that
strong provocation did not exist for purposes of mitigating factor (2).

        Relative to mitigating factor (3), the trial court did not articulate findings on the
record to explain why it found this factor to be inapplicable. Relative to mitigating factor
(11), the Defendant committed the offense under such unusual circumstances that it was
unlikely that a sustained intent to violate the law motivated the criminal conduct, the trial
court found that it was “totally not being considered by the court. The court [found] that
he was motivated, that he did commit this offense, that he did it not intentionally in terms
of a first degree murder, but he certainly did fall into . . . what the elements of the
offenses require.”

       We note that the Defendant’s having committed the offenses for which he was
convicted is not an appropriate factual basis for declining to apply mitigating factor (11).
Similarly, the trial court should have made more findings of fact relative to mitigating
factor (3). However, any errors were harmless in light of the existing enhancement
factors, particularly that the Defendant was on probation at the time the offense was
committed and that the Defendant had a history of criminal behavior in addition to the
felonies used to establish his sentencing range. Moreover, the court gave the enhancing
factors “great weight.”

       We again repeat that a trial court’s erroneous consideration of some enhancement
or mitigating factors, which are merely advisory, does not give this court grounds for

8
    The Defendant has not cited to any authority in this regard.
                                                      -11-
reversal when the trial court otherwise conforms with the mandates of the Sentencing
Act. See Bise, 380 S.W.3d at 709-10; Carter, 254 S.W.3d at 346. The record
demonstrates that the trial court otherwise sentenced the Defendant in accordance with
our Sentencing Act. Accordingly, we cannot say that the Defendant has established that
the trial court abused its discretion in setting the length of his sentences at an effective ten
years. See, e.g., State v. Andrew Young Kim, No. W2017-00186-CCA-R3-CD, 2018
WL 1679346, at *11 (Tenn. Crim. App. Apr.6, 2018); State v. Joshua Iceman, No.
M2016-00975-CCA-R3-CD, 2017 WL 4805118, at *32 (Tenn. Crim. App. Oct. 24,
2017), perm. app. denied (Tenn. Feb. 14, 2018); State v. Richard Dickerson, No. W2012-
02283-CCA-R3-CD, 2014 WL 1102003, at *12 (Tenn. Crim. App. Mar. 19, 2014) (all
three cases concluding that the trial court improperly considered two of three
enhancement factors it applied but, nonetheless, otherwise conformed with the mandates
of the Sentencing Act, so the defendant was not entitled to relief). The trial court did not
abuse its discretion in sentencing the Defendant to the maximum term available, and the
Defendant is not entitled to relief on this basis.

                                       CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




                                             -12-
