        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                        JANUARY SESSION, 1997


STATE OF TE NNE SSE E,       )
                                                          FILED
                                  C.C.A. NO. 02C01-9609-CC-00297
                             )                           April 10, 1997
     Appellee,               )
                             )    FAYETTE COUNTY          Cecil Crowson, Jr.
V.                           )                            Appellate C ourt Clerk

                             )    HON . JON K ERR Y BLA CKW OOD ,
TER RY LO GAN,               )    JUDGE
                             )
     Appe llant.             )    (SECOND DEGREE MURDER)


               ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF FAYETTE COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

TIMOTHY JOEL WILLIAMS             CHARLES W. BURSON
Attorney at Law                   Attorney General & Reporter
147 Jefferson Avenue, Suite 909
Memphis, TN 38103                 DEB ORAH A. TULL IS
                                  Assistant Attorney General
                                  450 Jam es Robe rtson Parkw ay
                                  Nashville, TN 37243-0493

                                  ELIZABETH RICE
                                  District Attorney General

                                  CHRISTOPHER MARSHBURN
                                  Assistant District Attorney General
                                  302 Market Street
                                  Somerville, TN 38068


OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION

              The Appellant, Terry Loga n, pled guilty as charg ed in th e Circ uit

Court of Fayette County to the offense of second degree murder of the victim,

Michael Hood . Follow ing a s enten cing hearing, the trial court sentenced the

Appellant to serve the presumptive sentence of twenty (20) years in the

Department of Corrections as a Range I Standard Offender. On appeal, the

Appellant subm its that th e sen tence is exce ssive. H e argu es thre e issue s in his

appe al: (1) That an enhancement factor applied by the trial c ourt do es no t apply

to his case; (2) that certa in mitigating factors we re not applied by the trial co urt;

and (3) that the presumption of corre ctnes s norm ally afforded to sentencing by

the trial court should not be applied in this case . Finding no error, we affirm the

judgm ent of the tria l court.



              In the early morning hours of October 21, 1995, the Appellant was

drinking beer in his house along w ith the vic tim, Su san B ond, a nd Ap pellan t’s

roommate, Johnny Logan. Logan and Appellant became involved in an argument

over the rent and utility bills. During this argument, the victim got into a fist-fight

with the Appe llant. Afte r the alte rcation ende d, the A ppella nt wen t into his

bedroom and retrieved a wooden baseball bat. Appellant returned to the dining

room, where the victim was located, and struck the victim in the head area with

the baseball bat several times, leaving the victim unconscious on the floor. As

the victim lay on the floor unconscious, Appellant stood over the victim and

delivered another blow to the victim’s head with the base ball ba t. The victim was

transported to a hospital and died the following day.



                                          -2-
              Appellant told a deputy sheriff who arrived at the scene that “[the

victim] hit me in my own house an d I beat his ass w ith a bat.” At the sentencing

hearing, the Appellant admitted that he told the deputy that if Appellant had been

in posse ssion of a firearm, h e would have sh ot the victim .



              As an enhancement factor, the trial court found that the Appellant

allowed the victim to be treated with exceptional cruelty during the commission

of the offense. Tenn. Code Ann. § 40-35-114(5). The trial court found two (2)

mitigating factors, that the Appellant acted under strong provocation and that he

had ad mitted his guilt.



                                            I.



              In his first issue, Appellant submits that the presumption of

correctness normally afforded to a sentence imposed by the trial court m ust fail

in this case “due to lac k of spec ificity in the reco rd.”



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

service of a sentence, this 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 rele vant facts a nd circum stance s." State v. Ashby,

823 S.W .2d 166, 169 (Tenn. 199 1).




                                           -3-
               In conducting a de novo review of a sentence, this court must

consider: (a) the evidence, if any, received at the trial and the sentencing hearing;

(b) the pres entenc e report; (c ) the princip les of sen tencing a nd argu ments 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 de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of

potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).



               If our review reflects that the trial court followed the statutory

sentencing procedure, imposed a lawful sentence after having given due

consideration and proper weight to the factors and principals set out under the

sentencing law, and that the trial court's findings of fact are adequately supported

by the record, then we may not modify the sen tence even if we would have

preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991 ).



               The Appellant complains that the trial court failed to follow proper

sentencing procedures by failing to make specific findings of fact in the record.

The comments of the trial court at the conclusion of the sentencing h earing are

as follows:

      THE COURT:           Mr. Logan, w ill you stand, please, sir.

                           Upon entering a plea of guilty to Murder in the Second
                           Degree, the Court finds tha t you allowe d the victim to
                           be treated with exceptional cruelty, but you acted under
                           strong provocation as a mitigating offender, and
                           sentences you to the presumptive sentence of 20 years
                           in the De partm ent of C orrect ions, as a Standard



                                          -4-
                          Offender, to serve 30 percent before you’ll be eligible
                          for release classification .

                          You’ll be give n cred it for 186 days while in jail awaiting
                          trial.

                          Thank you.


             The sentencing order entered by the trial cou rt insofa r as it

addresses enhancing and mitigating factors states as follows:


      “And it appearing to the C ourt that there is an enhancement factor
      that the defendant allowed a victim to be treated with extreme
      cruelty, and the Court finds the mitigating factors that the defendant
      acted u nder stro ng provo cation an d he ha s adm itted his gu ilt.”


             Tennessee Code Annotated Section 40-35-209(c) provides in part,

“[T]he record of the sentencing hearing is part of the record of the case and shall

include specific findings of fact upon which application of the sentencing

principals was b ased.” (Em phasis add ed).



             As correctly noted by the App ellant, State v. S mith, 910 S.W.2d 457

(Tenn. Crim. App.) cert. denied, id. (Tenn. 1995) stands for the proposition that

the findings by the trial court in a sentencing hearing must be recorded in order

to allow ad equate review on appea l. Smith , 910 S.W.2d at 460.



             The presumption of correctness does not apply in this case.

Howeve r, even though the trial cou rt should have stated the specific findings of

fact from the record to support application of the enhancement factors and

mitigating factors found by the court, we do not find that the failure to do so

requires a new sentencing hearing in this case or modification of the sentence.




                                        -5-
             This issu e is withou t merit.




                                          II.


             In his second issue, the Appellant argues that the enhancement

factor relied u pon b y the tria l court is an es sentia l elemen t of second degree

murder and therefore, is not applicable in this case.



             Second degree m urder is the knowing killing of another. Tenn. Code

Ann. § 39-13-2 10(a)(1). Appellant maintains on appeal that the “malice” that

caused Appellant’s crim e to be seco nd degree murder rath er than voluntary

manslaughter cons titutes c ruelty, a nd the refore this enhancement factor cannot

be use d. How ever, ma lice is no lon ger an e lemen t of secon d degre e murd er.


             The record re flects that the Appellant struck the victim several times

about his head with a wo oden b aseba ll bat until the victim fell to the floor

unco nscio us. At that point, the Appellant then walked over to the victim and

delivered anoth er blow to the vic tim’s head with the base ball ba t. The re is

adequ ate evide nce in the record to support use of the enhancement factor that

the Appellant treated the victim with exceptio nal cruelty during the commission

of the offense. In addition, a s correctly pointed out by the State in its brief, the

Appellant emp loyed a dead ly weap on, the base ball bat, during commission of the

offense. Therefore, Tennessee Code Annotated Section 40-35-114(9) is an

applic able enha ncem ent fac tor. Th is cour t is allow ed, in conducting its de novo

review to consider any enhancement or mitigating factors supported by the




                                         -6-
record, even if it was not relied u pon by th e trial court. State v. Adams, 864

S.W .2d 31, 34 (Tenn . 1993); Smith , 910 S.W .2d at 460 .



              Appe llant’s seco nd issue is without m erit.



                                            III.



              Appe llant’s third issue is, “Whether any mitiga ting factors apply to

your Appella nt.” The tria l court did find two (2) mitigating factors, that the

Appellant acted under strong provoc ation a nd tha t the Ap pellan t adm itted his

guilt.   In his appeal, the Appellant urges that the trial court sh ould have

considered the following additional mitigating factors: (1) That the Appellant

assisted the authorities in locating or recovering any property or person involved

in the crim e; (2) th at the A ppella nt com mitted the offense under such unusual

circumstances that it is un likely a s ustain ed inte nt to viola te the la w mo tivated his

conduc t; and (3) that the Appellant, because of his youth, lacked substantial

judgment in comm itting the o ffense. T enn. C ode An n. § 40-3 5-113(1 0),(11),&

(16).



              Appellant relies upon State v. Shelton, 854 S.W.2d 116 (Tenn. Crim.

App. 1992), perm. to appeal denied, id. (Tenn. 199 3), in support of his argument

that the mitiga ting factor th at Appe llant lacked a sustain ed intent to violate the law

shou ld be applicable. We have reviewed State v. Shelton and c onclu de tha t it is

disting uisha ble from Appellant’s case. In Shelton, also a second degree murder

case, the defe ndant killed his wife by u se of a firearm. T his Court held that the

mitigating factor contained in Tennessee Code Annotated Section 40-35-113(11)

was applicable because the trial court did not find that the domestic difficulties


                                            -7-
between the parties related to a sustained inten t to violate the law which

motivate d the killing. Shelton, 854 S.W.2d at 123.



              In Appellant’s case, he was involved in an altercation with the victim,

left the altercation and went into his bedroom and retrieved a wooden baseball

bat. He returned and hit the victim several times about the head area, and struck

the victim at least one more time on the head after he had fallen to the floor

unconscious. When the first law enforcement officer arrived, the Appellant came

out of the house and yelled at the officer “(the victim] hit me in my own house and

I beat his ass with a bat.” Appellant also admitted at the sentencing hearing that

he told the officer that he would have shot the victim if he had had a gun . There

is no error in the trial court not ap plying this mitigating factor.



              Appellant urges that the trial court should have applied the mitigating

factor that he assisted authorities in locating a person involved in a crime.

Appellant called 911 following the incident. Wh ile we a gree th at this m itigating

factor is ap plicable, w e afford it very little weight.



              Finally, the Appellant argues that the mitigating factor that he lacked

substantial judgment in committing the offense because of his youth shou ld have

been applied by the trial court. The record reflects that the Appellant was one

month shy of his twenty-first birthday when he comm itted the offense. Th ere is

simply nothing in this record to indicate that this mitigating factor is applicable.



              Although we find that the trial court should have applied the

mitigating factor contained in Tennessee Code Annotated § 40-35-113(10), we

                                            -8-
find that this mitigating factor should be afforded little weight and do es not jus tify

a mod ification of Ap pellant’s se ntence .



              This issu e is withou t merit.



              In conc lusion , we ha ve foun d that th e trial co urt pro perly applied one

enhancement factor, and that an additional enhancement factor, use of a dea dly

weapon in commission of the offense, is applicable in this case. Furthermore, we

find that the trial court properly ap plied two (2) mitigating fa ctors, and fa iled to

apply one (1) m itigating facto r, though it is entitled to little weight. Appellant was

convicted of a Class A felony, and the presumptive sentence, if there are no

enhancement or mitigating factors is 20 years. If there are enhan cemen t factors

and mitigating factors, the court m ust start at the presumptive sentence in the

range, enhance the sentence as appropriate for enhancement factors, and

reduce the sente nce as approp riate for m itigating facto rs.



              After a thorough review of the record, we have determined that the

twenty-year senten ce imp osed b y the trial cou rt is approp riate. The judgment of

the trial court is therefore affirmed.




                                    ____________________________________

                                           -9-
                         THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
PAUL G. SUMMERS , Judge


___________________________________
DAVID G. HAYES, Judge




                             -10-
