Strouth v. State - First Degree Murder Conviction Affirmed

FILED

04/06/2026 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Clerk of the Appellate Courls Assigned on Briefs November 18, 2025 STATE OF TENNESSEE v. MICHAEL WAYNE STROUTH the Criminal County Appeal from Court for Sullivan No. S69472 William K. Rogers, Judge No. E2024-01790-CCA-R3-CD the Michael Wayne Strouth, of first degree A Sullivan County jury convicted comrnit first degree rnurder. The trial murder and to and a irnposed a life sentence for the first degree murder court year sentence for the conviction. On appeal, the Defendant asserts to sustain his convictions; (2) the trial court erred when that: (1) the evidence is instructions on enhanced and general inferences; and (3) it failed to give jury when it sentenced hirn. After review, we affirm the the trial court abused its convictions and the life sentence for first degree prerneditated murder; sentence for to commit first degree murder however, we vacate the We rernand this case to and the trial court's of partial the trial court for a new hearing. Criminal Court Affirmed Tenn. R. App. P. 3 Appeal as of' Right; Judgments of the in Part, Vacated in Part, and Remanded the opinion of the court, in which CAMILLE R. ROBERT W. WEDEMEYER, P.J., delivered MCMULLEN and MATTHEW J. WILSON, JJ., joined. Larry R. Dillow, Kingsport, for the appellant, Michael Wayne Strouth.

1. Davis, Assistant Attorney Jonathan Skrrnetti, Attorney General and Reporter; Ryan
   Attorney General; and Arnber D. Massengill and General; Barry P. Staubus, District appellee, State of Assistant District Attorneys General, for the Matthew W. Darby, OPINION

2. Facts
   The victim"). ("the of Heatherly death Michael shooting the from arises case This prior a 1 from a child, A.H.,shared victim the and Strouth, Ashley wife, A.H. to related dispute custody ongoing an had Strouth Mrs. and victim The marriage. and Defendant the 2017, 1, September On the troubled issues custody These outside. waited him and for Walmart) (a work of place victim's to the went Strouth Mrs. County Sullivan him. killed and shot the building, Defendant the exited victim the When to and murder degree first for Defendant the indicted jury grand murder. degree first commit Trial A. September of afternoon the On following evidence: the presented parties the trial, At shopping gathering lot parking the in was Walmart a employee, Poole, Jeremy 2017, 1, later man, a observed and lot parking the scanned He gunshot. a heard he when carts rushed Poole Mr. ground. the to fall then and hands his up victim, the throw as his on shirt, his on up flowing "blood saw and down, face was victim, who the to over kept and wound the to pressure applied Poole Mr. unresponsive. was victim The chest." response. a getting of hopes in victim the to speaking ("BPD") Department Police Bristol 2017, 1, September on p.m. 3:00 around At arrived He Walmart. at shooting the about call a to responded Cousins Matthew officer he As lot. parking the of middle the in gathered crowd large a found and minutes within next ground the face on lying down victim the saw Cousins Officer crowd, the a bang" like noise a "large reported hearing scene the at present People Malibu. Chevy to a hole bullet large a observed He ground. the on down face lying victim the finding then and a retrieved later Law Malibu. Chevy the of window side driver's the above hole. this from fragment jacket bullet caliber .270 gunshot apparent an had who victim, attention the his to turned then Cousins Officer not was victim The blade. shoulder the below just area, back right lower the to wound bag aid first a retrieved Cousins Officer breathe. to struggling be to appeared and speaking radio. police his on "rescue" requested and victim the aid to render to vehicle his from a was face victim's the that observed and back his onto victim the rolled Cousins Officer was he and fixed, were eyes victim's The oxygen. of lack a color," gray indicating "bluish chest. victim's the of center the at wound exit an located Cousins Officer non-responsive. State The incident. this during camera body a wore he that confirmed Cousins Officer a vehicle, victim's the of introduced and jury the for recording the played receipt. a Walmart and a bag, ground, the on a lying set Malibu, Lego Chevy privacy. of purposes for initials their by minors to refers court I AThis 2

victim the where physician room emergency treating the Woodard, Mark John Dr. in was CPR but arrival, upon deceased was victim the that explained transported, was He lethal. was wound, a gunshot injury, victim's the Woodard, Dr. to According progress. bullet The back. upper right the to wound "large" a as wound entrance the described also chest, victim's the on sternum the of left just exited and mid-line victim's the crossed wound the that concluded Woodard Dr. wounds, the inspecting After wound. "large" a but handgun a with inflicted not was it meaning wound," velocity high caliber large "a was 2reviewedOrvik, Andrea Dr. examiner, Medical faster. bullets larger propelled that gun a review her upon based report the of findings the with agreed and report autopsy victim's the Orvik Dr. lung, right and heart victim's the through path bullet the Noting le. fientire the of Orvik Dr. sustained. injuries the survive would one that unlikely be it would that testified chest. the to gunshot a was death of cause victim's the that stated these of time the at principal School Middle Valley Holston the Lockhart, Jess Lockhart Mr. 2017. 1, September on p.m., 3:30 at dismissed school that testified events, victim. the call to telephone the use to asked A.H., son, victim's the when office the in was had and school from up him pick to was victim the that Lockhart Mr. to explained A.H. calling in A.H. assisted Lockhart Mr. father, his reach not could A.H. When arrived. yet not was stepfather A.H.'s the where also was which work, of place Strouth's Mrs. was He Strouth. Mrs. with speak to asked and call the placed Lockhart Mr. employed. day. that work to reported not had Strouth Mrs. that told then and hold on placed briefly told was he hold, brief another After the with speak to asked then Lockhart Mr. either. work at not was Defendant the he As number. phone grandmother's maternal A.H.'s for looked then Lockhart Mr. Law 3 Eller.Danielle Captain detective BPD from call phone a received he so, did calls phone missed eight noticed and phone cell victim's the collected had because victim the contact to trying was A.H. that explained Lockhart Mr. school. the from detain to Lockhart Mr. asked Eller Captain school. from up him picked not had victim the drove Strouth Mrs. that learned and A.H. with spoke Eller Captain arrived. she until A.H. Hyundai"). ("blue Tucson Hyundai blue a Mrs. and victim the with interactions his upon based that, confirmed Lockhart Mr. observed never he that stated He great." "wasn't their believed he Strouth, two. the between "friction" or tension felt he but arguments, public or outbursts

trial. to prior died but autopsy victim's the performed Hunt Sherman Dr. 2 time the By Detective. a Criminal was Eller Captain events, these of time the At 3 by her to refer will We Division. Criminal the of Captain to promoted been had she trial, of trial. at title her 3

records official related the of keeper the as served she that testified Jennell Katherine Strouth Mrs. for record court the Court. She Chancery County Sullivan the to court trial the and identified, of she part record As the case. divorce victim's the and and by filed Strouth plan Mrs. parenting the modify to petition 2017 26, a May admitted, also record July The for 2017. 7, scheduled to modify petition the for hearing of notice a to hearing the rescheduling in July, filed hearing of notice a subsequent contained May from report mediator's final a Jennell Ms. Finally, 2017. 5, September 16, May scheduled the for appeared victim the that report indicated mediator's The 2017. the of notices two received not, having did Strouth despite Mrs. however, mediation; 2017 death. victim's the to due in 2017, dismissed October was case The date. hearing a close and shared she victim that the testified sister, victim's the Bradshaw, Becky uncle loving involved, an and dad" awesome "an as victim She the described relationship. Mrs. with co-parenting victim's the described Bradshaw Ms. sons. her to to their Due A.H. of custody about disagreements" "many with "[v]olatile" as Strouth to a A.H. at of occur exchange custody ordered had court the contentious relationship, neutral location. merchandising a Anderson's, victim for the that worked testified Bradshaw Ms. as at such items new Walmart, up set to assigned was he employee, an As company. Walmart. Bristol the at software also computer would and update magazines, or cologne Bristol the was location primary his but other stores, at worked Walmart sometimes He on based A.H.'s was schedule work victim's the that said Bradshaw Ms. Walmart. would he up school, pick to from A.H. was victim the days the On needs. and schedule school. A.H.'s to close it was because Walmart end to Bristol work at the his schedule always he that explaining as a habit, of victim creature the described Bradshaw Ms. that of in location space the described She Walmart. at space parking same the in parked Bradshaw Ms. video, Walmart the viewing Upon store. the to proximity had she space same the in parked had victim the the on shooting, of the that, day confirmed described jury. the for and shooting Walmart Bristol the to Jared responded Patrick Detective BPD parking the enter a showed Hyundai that lot blue parking of the video obtained parked, location, another to moved Hyundai blue the minutes, park. a few and lot After victim's the near area the within spaces three all location, final and a third to then and The Hyundai. blue the entered one or no time, exited this During Malibu. Chevy trunk to the walked to initially He walking car. his victim the showed video ground. the to fell he where door, side driver's the to around then Chevy and his of Malibu away. drove quickly and space parking the of out pulled Hyundai blue The 4

carts, shopping collecting been had who a Walmart employee, showed recording video The noted Patrick Detective footage, video the viewing Upon victim. the to run parking the exit to took the Hyundai route blue circuitous the peculiar both found he that parking lot. Walmart the exited car the which the with and lot speed Patrick Detective apprehended, were Strouth Mrs. and the after Defendant Later, Hyundai, blue their Inside the to shooting. related evidence for vehicle their searched three and a metal basin, wash backpack, a camouflage receipts, collected Detective Patrick a binoculars, Bushnell a shirt, found purple also He pillowcases. pillows butterfly in Walmart receipts the for of One walkie-talkies. Cobra small hat, two and camouflage a fluid, lighter for p.m. sunglasses, 7:43 at 2017, 30, August on made purchase a reflected extra-large and bin, wash metal a a cap, scarf, men's infinity an bandana, in Bristol, withdrawal a showed receipt bank Union Eastman Credit An gloves. vinyl in found receipt la's CabeJune A 2017, p.m. 24, 5:43 at 2017, 30, August on a Sled Lead rifle long .22 of types two a for showed purchase vehicle the of day the on a gas showed purchase receipt final A and rest, .270 shooting victim the killed that bullet the that learned later Detective Patrick p.m. 4:47 at shooting the .270 uses that weapon of type the the to that jury explained He .270 was rifle. long a is video obtained Patrick Detective the of course the During August from The recording video Virginia. Bristol, in located a station gas from Sheet's entering Strouth Mrs. Defendant and the showed shooting, the before days 30, two 2017, blue a Hyundai. driving was Defendant The gas market. Sheet's station the exiting and vehicle. the He of rear the on sticker butterfly white large pointed a out Patrick Detective the in on Hyundai blue the displayed plate license the ran he that confirmed Next, Strouth. Mrs. and Defendant the to was registered number tag the and footage, the on Hyundai blue processed the he when taken Detective Patrick back; the on displayed sticker butterfly a longer no was 2017. 1, There September of night been had removed. sticker the where residue some was remaining there however, shooting lot parking Walmart Bristol the to Bush Justin responded Captain BPD car the in still keys the car with victim's Malibu Chevy victim's the observed and scene the above side, driver's the on the post to front defect a bullet noticed also He door. Bush Captain this upon evidence, Based door. rear and front and the between window, rod to trajectory a used Eller Captain behind. was from shot Defendant the that surmised shooting The fired. was gun the which from direction and specific a angle determine help forty-to forty-two the at a behind victim from came bullet the that indicated reconstruction angle. degree five 5

area in the looked Bush Captain Walmart, the from video viewing After blue a noticed he footage, the On originated. gunfire the believed he where or entering anyone without spots parking different to times multiple moved that SUV victim's the near area the in were parked SUV the places the of All vehicle. the exiting officers where was parked ultimately SUV blue the where location the and Malibu Chevy the down, fell victim the after that, showed video The from. came gunfire the believed the from shots still introduced State The lot. parking the left SUV blue 3:02 and p.m. 2:43 between lot parking in the SUV a blue of video Walmart

1. 1, September on p.m. a minute than Less p.m. 2:44 at parked SUV blue the showed video The moved SUV blue the p.m., 2:46 At spot. parking second a to moved SUV blue the later, the p.m., 3:00 At car. victim's the of view within still was which spot, parking final the to hand. right his in bag plastic a holding car, his toward walked and Walmart exited victim shows footage video The vehicle. of his side driver's the toward walked He SUV blue the and frame, the outside ground the to dropping victim the to exit nearest the take not did SUV blue The p.m. 3:01 at space parking of its out backing Volunteer to connected that exit the to route circuitous more a took instead but leave Parkway. phone, by Defendant the or Strouth Mrs. either reach not could officers Because her notify and Strouth Mrs. find to try to address known the to went officers was Strouth Mrs. nor Defendant the Neither school. from up picked been not had A.H. that but phone, by Strouth Mrs. contact to try to continued Law the at determine to towers cell used then Law unanswered. went calls phone their in area an was phones cell the of location The phones. cell Strouths' the of location the police the p.m., 7:39 At address. residential Strouths' to the proximity close hour an half Approximately Hyundai. blue the for Out) Look the On (Be a BOLO issued Virginia. in Abingdon, vehicle the located Police State Virginia later, Virginia, in Abingdon, stop traffic the of scene the at arrived Bush Captain When the that noticed Bush Captain cruiser. Police State a Virginia in seated was Defendant the the that observed He eye. right his above laceration circular partial a small, had Defendant to wanted Bush Captain why ask not did Defendant The calm. was demeanor front in parked Hyundai blue Strouths' the observed also Bush Detective him. with speak vehicle same the to be Bush Detective to appeared It cruiser. Police State Virginia of the video. had Walmart he the in seen He vehicle. patrol a separate in seated was Strouth Mrs. that testified Bush Captain Law emotion." no "calm, as demeanor Strouth's Mrs. described 6

Bush Captain where Department, Police Bristol the to Strouth Mrs. and Defendant the the with spoke Sargent Eric Detective while Strouth spokc Mrs. with that obtained Bush Captain the of course the During the of day the 2017, 1, September on purchase a made had Defendant the that indicated Bush Captain Highway. Lee on store General Dollar the at a.m., 10:33 at shooting, Captain period. time relevant the for General Dollar the from video obtained receipt a also . He video the in Defendant the and Strouth Mrs. Bush the In drinks. two and towels, paper alcohol, rubbing included which purchases, their for the and hat, camouflage a and T-shirt purple a wore Strouth Mrs. , video and Defendant the that noted Bush Captain sweatpants. and shirt green a wore Defendant store General Dollar the at worn had they clothing same the wearing not were Strouth Mrs. stop. traffic Virginia the of time the by and Defendant the for warrant a search executed police 2017, 25, On September sled Lead Caldwell a found officers property, the on barn" "yard a In home. Strouth's Mrs. an scope, the for rails mounting package, scope Simmons empty an box, plus to is needed screwdriver a that explained He screwdriver. a and inside, scope a with box rifle .22 a found officers the residence, the Inside rifle. a from a scope detach and attach shooting the in used weapon the that confirmed Bush Captain gun. the on scope a with recovered. never was obtained Bush Captain Hyundai, blue the on focused the of part As Parkway. Volunteer on Pawn and Gun Sam's from video 2017 1, September northbound traveling Hyundai the matching Hyundai blue a showed video The that stated Bush Captain p.m. 2:42 at Walmart, Bristol the toward Parkway, Volunteer on in was that vehicle same the be to appeared recording this in Hyundai blue the footage Walmart The lot. parking Walmart the from footage the Gun Sam's The p.m. 2:43 at lot parking Walmart the entering Hyundai blue the showed on southbound traveling Hyundai blue a showed also footage video shop Pawn and report the to responded had who Cousins, Officer p.m. 3:00 around at Parkway Volunteer Hyundai blue a recorded that vehicle his in dashcam a had p.m., at 3:01 shooting the of toward northbound drove he as p.m. 3:03 at Walmart the from away southbound traveling on south traveling Hyundai blue a showed footage Other Walmart. the footage combined The p.m. 3:09 at Walmart Bristol the from away Parkway, Volunteer Century Walmart to Parkway Volunteer on north traveling Hyundai blue the showed toward Walmart Bristol the from away southbound shooting, the after then, and Boulevard City. Johnson : police the to statement Strouth's Mrs. read Bush Captain cross-examination, On 7

I, Ashley Grace Strouth, live [on] VI Ranch Road in Bristol, I am married to Michael Strouth and have been for 4 years. I have a 13 year old son named [A.H.]. I had [A.H.] with [the victim]. [The victim] and I were married less than a year and were divorced in 2005. [The victim] lives at [ ] an apartment located in Bristol, [The victim] was mentally and physically abusive to me during the time we were together. [The victim] smoked meth. I smoked meth one time with [the victim] after I had [A.H.]. I was addicted to pain medication and only take suboxone. I am prescribed 1 1/2 to 2 pills per day. Today I have only took [sic] 1/2 of a pill around 2:OOp.m. [The victim] has also cheated on me. When I filed for divorce I lived with my mom and dad. [The victim] was acting crazy during this time. [The victim] has told me he is bi-polar, but I don't know that for sure. [The victim] has accused me of sexually, physically, and emotionally abusing [A.H.] when we were separated. I only had supervised visitation and every other weekend visiting with [A.H.]. During this time, [the victim] dropped the charges and filed for divorce with a parenting plan before I could so he got [A.H.] more. [A.H.] was around 7 months old when [the victim] and I split. [The victim] didn't work and would stay in shelters with [A.H.] to keep from paying child support. After [the victim] and I divorced. [The victim] moved to Gray, I would drive [A.H.] to the McDonalds in Gray for the custody exchange. The police were called several times to standby during the custody exchange. Our custody arrangement is during the months ofJune, July, and August, we alternate every other week. During the rest of the months, [the victim] gets [A.H.] the 1st, 3rd, and 4th weekend of the month. I get [A.H.] on the 2nd weekend. [The victim] wouldn't let me have [A.H.] on an in-service day on August 17th, 2017. On this day, I went to [the victim]'s apartment on Belmont Drive at 6:00p.m. I waited 30 minutes and around 6:30p.m., [the victim] called the police. On August 31, 2017, [A.H.] was with [the victim] because it was his summer week. I believe I was supposed to get [A.H.] so I text [the victim] to arrange the pick-up. [The victim] told me it was his week and since the first of the month fell on his week and it was the first weekend he would be getting [A.H.] at 6:00 p.m. anyways. [A.H.] is in the 8th grade at Holston Valley Middle School and was in school on September 1, 2017. I put the custody paperwork in my 2005 Hyundai Tucson that is blue in color. The Hyundai is registered to [the and I [sic]. [The and [A.H.] like to play video games, play basketball, and [A.H.] has a mini bike. [The likes to take [A.H.] to shoot guns. I don't typically like to 8

go, but will go when I'm off. [A.H.] and [the generally have to beg for me to go with them. I have a .22 rifle that is camo. [The and I also have a .22 pistol, another .22 rifle, a 20 gauge shotgun, a muzzleloader, and bb guns. The last time I shot a gun was a month or two ago. We typically go shooting out at Jacob's Creek. It is $2 to shoot and we just put it in an envelope there. I don't know when the last time [the went shooting. [The did shoot a skunk two nights ago at our house on VI Ranch Road. On August 30, 2017 [the and I went to Wal-Mart in Bristol, Virginia. I purchased around $100 worth of stuff including some pedialite, pedialite popsicles, and ammo. I don't know what kind of ammo we bought because [the picked it out. [The and I work at Universal Fibers in Bristol, TN. I work 7:00 a.m. to 7:00 p.m. My work week is 48 hours one week and 36 hours the next week, but I have been typically working 60 hours one week and 48 hours the next. I am a machinist and [the is a material handler. As part of our job, [the and I have to wear steele [sic] toe boots, safety glasses, I have to have my hair up, and we must wear ear plugs. Universal Fibers has 3 different kinds of ear plugs. I wear the orange tip ones on a blue chord. We get a new pair of ear plugs every time we go into work. I will either throw my ear plugs in the trash can at work or throw them in the Hyundai after my shift. I was supposed to work on September 1, 2017, but didn't go into work. I decided to stay home and look for other contempt of court paperwork to fi le a contempt on [the victim]. Filing a contempt of court though doesn't do much good because nothing has happened when I have filed them in the past. They end up getting dismissed. On the morning of September 1, 2017, [the and I went to Pal's on Volunteer Parkway around 7:00a.m.-7:30a.m. When we left the house, we spoke to my niece who works at BoJangles on Volunteer Parkway. [The and I then drove back to our house on VI Ranch Road. I called about a late notice we had received about a storage building we had purchased. I believe the company is something like JTTH. I received an e- mail saying the payments were late. I then tried to find the contempt papers, but didn't have any luck. Around 1:00-2:00 p.m., [the said we needed to leave the house because I was stressed. [The and I left in our 2005 blue Hyundai Tucson. [The and I took a left out of our driveway and went out towards Exit 17 off of 1-81. We drove to Damascus. I was driving and must not have been paying attention because we ended up in Chilhowie, Virginia. We got $31 in gas using my Eastman Credit Union debit card from an Exxon gas station in Chilhowie. We stopped 9

went have might We pee. could [the so station gas another at North with cars several Isaw because also point some at Carolina North into a mountain to went also We drive-ways. in parked plates license Carolina off a pull on off pulled We around. drive to head or White head Quiet called path a down walked [The pee. to had [the because [the found and woods the into went I me. for screamed and woods the into head. Defendant]'s [the on blood was There head. his holding it. [The catch to trying slipped he and off came hat his said [The I a backpack have I what. or rock a on it he hit if sure wasn't rubbing bandages, it including in supplies aide first has that car my in carry on pressure held [the we a towel I got and bandage. liquid and alcohol, orange with pink was towel The bleeding. was he where head Defendant]'s bandage liquid put and wound Defendant]'s [the up I cleaned it. on yellow or can a trash in towel bloody the threw and home way the on were We it. on exactly. located is wash car this where sure not I'm somewhere. wash a car of police. the by stopped were and home headed then We Department Police Tennessee Bristol the [sic] to to come come to agreed We [the me told Bush Detective Bush. Detective with spoke I Virginia. from Volunteer of off lot parking Wal-Mart the in killed and shot was victim] mine like Hyundai blue a was there told was I in Bristol, parkway parking the in never I were and [The footage. video in the seen Hyundai The 1, 2017. September on Tennessee in Bristol, of Wal-Mart lot plugs ear were there told I was Defendant]'s. [the or mine is not video the in These parked. was Hyundai blue the where area the of ground the on found and [The it. on DNA our have not will and ours aren't plugs ear it. cause not did and death victim]'s [the with do to anything have didn't I yesterday text through was victim] [the with contact any I had time last The and works victim] [the where know don't I p.m. 4:30 to p.m. 4:00 around any see not I did places. different at something or cards stocks he know just friends. any have not do and 1, 2017 September on family my of accurate. and true it was that acknowledging statement the dated and signed Strouth Mrs. Mrs. interviewed he when that recalled Bush Detective demeanor, Strouth's Mrs. About she did nor detained being was she why about concern any expressed never she Strouth, stated He interview. an for police the to was she that surprised act time. any at cry or A.H., son, her for concern express not did Strouth Mrs. that

Special Agent Eric Sargent, a BPD detective in 2017, reported to the traffic stop with Captain Bush. Special Agent Sargent the who was in the back of a Virginia State Police cruiser, and observed a circular laceration above his right eye. As a firearms instructor, Special Agent Sargent testified that he was familiar with the term "scope bite." He had observed such injuries on other people and had sustained one himself. He explained that this injury occurs when firing a high-caliber rifle with a scope mounted to the receiver end of the rifle. If the rifle is not secured against the chest to protect the shooter from recoil, the scope may hit the shooter's eye area due to the recoil when firing the rifle. Special Agent Sargent of the Defendant with the laceration above his eye, with a "scope bite." Special Agent Sargent testified that when he arrived at the traffic stop in Virginia, the demeanor was "calm." The Defendant never asked why he had been detained or if A.H. was safe. Special Agent Sargent recalled that the Defendant was "overly cooperative," never questioning why he was being to the Criminal Division office. When they arrived at the office, Special Agent Sargent escorted the Defendant to an interview room. The Defendant was still "[v]ery calm" and agreed to talk with him. Special Agent Sargent administered the Miranda rights to the and the Defendant willingly gave a statement. Special Agent Sargent read the statement aloud as follows: [Mrs. Strouth] and have been married since January the 7th 2013. We got married at the Bristol Tennessee Courthouse. [Mrs. Strouth] and her husband [the victim] have been divorced since 2005 and they have a thirteen year old child A[.H.]. think of A[.H.] as my child even though he is not biologically mine. [Mrs. Strouth] and [the victim] have been having custody issues for a while. [Mrs. Strouth] has custody of A[.H.] during the weekdays of school from September till May. [Mrs. Strouth] would get A[.H.] on Sunday's at 6 p.m. and keep him until Friday at 3 p.m. Then [the victim] would get A[.H.] on the fi rst[,] third and fourth weekend of the month. During the summer break [Mrs. Strouth] and [the victim] would get one week on and one week off with A[.H.]. On the weekend of the race - of the race in August[,] [the victim] had refused to let [Mrs. Strouth] pick up A[.H.]. [Mrs. Strouth] was going to file contempt of custody with the courts. [Mrs. Strouth] had been so stressed out over the constant custody issues with [the victim]. On Thursday, August 31st, [Mrs. Strouth] called into work and told them she was not going to be in to work the following morning because she was going

At the time of trial, the witness had taken a new job with the Office of Inspector General for the 4 IState of IWe will refer to him by his title at that time rather than his title with the BPD at the time of the offense. 11

I and work both Strouth] [Mrs. victim]. [the against charges contempt le fito out ll fito form no was there that me told Strouth] [Mrs. Fibers. Universal at court. the to letter a write to have would She for contempt. Tennessee in for 2017 lst the September for to contempt going the file was Strouth] [Mrs. the September morning This Friday 31st. the August on A[.H.] getting not Volunteer to the us on Pal's dr[o]ve Strouth] [Mrs. a.m. 9 about t 2017 1shad a We eat. rented and home take to breakfast bought we Parkway where payments two was I and Tennessee Paris own in to rent place a from building the about them with talk and morning this call to I wanted . . behind . so no but place own to rent the I called to got house we the When payments. the for house the over all looked I then and Strouth] answered. [Mrs. one for it in wording could the use Strouth] [Mrs. that so charge contempt former the locate not could we looking everywhere After charge. contempt new the the of out her get to decided I so down so been had Strouth] [Mrs. paper. Top White to Virginia Damascus, Chilhowie Virginia, to drove We house. Chilhowie in Interstate off just a . at . . station gas stopped We Mountain. her Strouth] used [Mrs. gas. with Hyundai our up filled Strouth] [Mrs. and I don't pumps. the at gas in $20.00 for paid and card Union credit Eastman doesn't phone cell My gas. for stopped it we time when what was remember [Mrs. wi-fi. on it use only I can it left house. I so at the minutes any have so her fed she Pomeranian when house the at phone cell her left had Strouth] to drove We time. of knowledge no had and anyone to talked not had we two about for there were we that guessing only I'm Mountain and Top White head my hit and fell I mountain somewhere, the on were we While hours. couldn't I eyebrow. my to near cut a forehead caused which log a or rock a on through back I drove mountain the left we After I fell. where to you take even the car use to the wash beside right station gas the at I stopped Damascus[.] Food of lot parking the into pulled and station gas the left bathroom. We cut my aid to band liquid applied some Strouth] [Mrs. and Damascus in City Barter the passed Abingdon to in drove left We Damascus, forehead. my on Route where 19 toward drove We there. people of a lot were There Theater. was and wash car the I to in located. pulled are Aide Rite and Walgreens then We money. any have didn't we realized I but car the wash to going We Road. Old took Jonesborough and dealership Ford the toward drove which Road Knob Mock took I bed. to I go to home, wanted heading were Virginia by over . . . I pulled when was work to get to travel we road the is together been I had and Strouth] officers. [Mrs. other several and police State at located Walmart to gone had I nor Strouth] [Mrs. Neither the day. whole on Tennessee Bristol in Parkway Volunteer off Century Boulevard 220 or called I have nor [Ms. Strouth] Neither 2017. lst the September Friday 12

people talked to anyone since we left the house earlier in the day. A lot of have vehicles that look like mine but I was never at Walmart. and Mrs. Strouth's police statements, they were released, Following the Defendant provided. and officers continued the attempting to corroborate the details The Defendant told Special Agent Sargent that he and Mrs. Strouth bought breakfast at reviewed video Pal's on the morning of September 1. Law blue Hyundai or the Defendant and Mrs. Strouth on footage from Pal's and did not see the not reveal any charges from Pal's. Law the premises. Additionally, the bank statement did in corroborated that the Defendant was at the Chilhowie Exxon officers obtained a receipt from Exxon for a purchase made on Virginia. Special Agent Sargent they September I, 2017, at 4:47 p.m. The Defendant told officers that after getting gas, in Damascus. Special Agent Sargent was unable to corroborate this went to Food City with the video footage from Food City. Sargent a map generated to show the possible routes and Special Agent confirmed the driving time from the Bristol Walmart to Chilhowie, Virginia, where he had shooting. One of the Defendant and Mrs. Strouth bought gas at 4:47 p.m. on the day of the and took approximately one hour, at the posted routes went by the residence Walmart to Chilhowie. The next route went from the speed limit, to drive from the forty minutes. The residence to Chilhowie and took approximately thirty to intersection to Interstate 81 northbound, final route, from the Bristol Walmart to the 394 All of these maps were developed based upon took approximately fifty minutes to an hour. Bristol Motor footage showing the vehicle traveling south from the the Speedway. night he was interviewed. Special Agent Sargent photographed the Defendant on the Sargent a "reddish" area on the On one of the photographs, Special Agent knuckle on his middle and index fingers. Another photograph displayed a marking to the index finger and the middle finger inside the small "reddish" there were no other injuries knuckle area of his left hand. Other than the injury to the eye, to the body. Sargent learned that a .270 caliber At some point in the Special Agent The had revealed that, on June 30, bullet was lodged in the victim's vehicle. the Double Tap in the Defendant had purchased .270 caliber from 2017, Blountville, using their Eastman Credit Union account. Sargent McCready went to the On October 12, 2017, Special Agent Sargent and Defendant agreed house to ask for another statement from the The Agent Sargent to meet with the officers at the Criminal office. Special 13

facts had developed related to the to review the timeline they explained that he had wanted evidence, the reviewed the timeline and investigation. As they gathered during the review the documentation approximately thirty minutes to was quiet. It took Defendant blue Hyundai. One of were of the The last with the 2017, showing the the Sheet's on August 30, was taken at the the other photograph was taken of decal on the back. The Hyundai with the butterfly blue butterfly decal September 1, 2017, with the in the police garage on vehicle speak," thus ending "shut down" and "refused to this point, the Defendant removed. At the interview. Unions, testified that all of the Eastman Credit Hite, custodian of records for Eric Hite December 30, 2016. Mr. opened an account on Defendant and Mr. Strouth the point of sale withdrawal accessed on June 30, 2017, for a confirmed that the account was day of the On September 1, 2017, the Tap in Blountville, from OMO Double withdrawal of $18.07 from through the account. A several purchases were made shooting, Sheets in Bristol, withdrawal of $20.00 from Drive-In in Bristol, a Sonic Bristol, Virginia for $7.30. from Dollar General in Virginia, and a withdrawal that his store sold Bass Pro Shops, confirmed Hall, a general manager for Jeff 2017 purchase from a electronic journal of a June 24, Mr. Hall an Lead Winchester 20 gauge, and a for a .22 long rifle, .270 Cabela's store for you can "sight it to stabilize a firearm so explained that a lead sled is used Sled. Mr. Hall shooting. Mr. Hall lends "accuracy" to He said that such a device in and shoot after." Winchester as the type sold box of Hornady .270 a photograph of an journal to the receipt found the sale in the electronic He was also able to match at Cabela's. brand Winchester the for the purchase of .270 in the vehicle Hornady Interlock. testified that during the former brother-in-law, Patrick Hyde, the about the homicide spoke with the Defendant of the shooting, he "wished he could take it back." He told Mr. Hyde that he investigation. The Defendant sentence, he "would take it." offered him a fifteen-year Mr. Hyde that if the State also told wouldn't leave Strouth's role, saying, "she Mr. Hyde about Mrs. The Defendant talked with Mrs. statement related to Hyde confirmed that the him alone about it." Mr. confirmed that he murder the victim." Mr. Hyde have to Strouth "having [the November 20, 2017, about police on anonymous phone call to the made an conversations with the these habitation sentence for burglary other than a was in prison serving a Eddie Fink, Sr., Defendant stated that he cell with the The a period of time, shared a and, for 14

had fired a shot through a car and that it had left a hole in the car door. He also admitted to having shot a person, and, as a result, his life was over. Rex Carter, a security operations specialist and human resources generalist at Universal Fibers, testified that the Defendant and Mrs. Strouth were employed at Universal Fibers at the time of the shooting. On September 5, 2017, Mr. Carter was present during a meeting with the Mrs. Strouth, and the Human Resources Director. The purpose of the meeting was to discuss their work schedule during the of the shooting. During the meeting, both the Defendant and Mrs. Strouth were "very nervous." Mr. Carter recalled Defendant that the touching kept his face and "hiding face behind his his hands" and that Mrs. Strouth was wringing her hands. Mr. Carter observed a cut above the right eyebrow. Based upon his experience with guns, Mr. Carter said that the injury appeared to be a "scope bite." When asked about the injury, the Defendant stated that the wind had blown his hat off and that, when he went to retrieve it, he slipped on either a rock or a log. Samuel Wheeler worked with the Defendant at Universal Fibers. Mr. Wheeler recalled that there would regularly be "down time" at work. During these times, the employees would talk. The Defendant was part of these conversations and expressed that he and Mrs. Strouth were having "issues with their son's biological father," the victim. According to Mr. Wheeler, the Defendant spoke about A.H. as if A.H. were the own son. Approximately a month before the shooting, the Defendant told Mr. Wheeler that he had bought a .270 rifle from his cousin in North Carolina. About a week before the shooting, the Defendant told Mr. Wheeler that he had to sell the .270 rifle "back to his cousin." The day after the shooting, the Defendant and Mrs. Strouth came into work. Mr. Wheeler noticed the Defendant had an injury to his forehead that appeared as if the Defendant "had been scoped." He explained that this occurred when a shooter had their face too close to a scope. He had sustained this type of injury and recognized it on the face. Mr. Wheeler stated that he was told the injuries came from a hiking accident, yet the Defendant had no other marks or injuries other than around his eye. Jeremy Stitt, a Universal Fibers employee, characterized his with the Defendant as friends and confirmed that they spoke during breaks at work. Mr. Stitt described the Defendant as "very protective over" A.H. and Mrs. Strouth. The Defendant spoke with Mr. Stitt about the custody issues between Mrs. Strouth and the victim. The Defendant disclosed that he was not allowed to be present during the custody hearing and he was upset because he believed Mrs. Strouth was not being treated fairly. The Defendant believed that the victim had an unfair advantage in court. The Defendant did not like the victim and was afraid that Mrs. Strouth would lose custody of A.H. At some point, the 15

kill to wanted he that Stitt Mr. told A.H., of custody of losing due fear his to victim. the the during in lot or car parking the in waited Defendant the that testified Stitt Mr. to beat hearings, the after desire, his expressed had Defendant the and custody the hearings, to him allow not would however, Strouth, Mrs. courthouse. the he exited as victim the up the and Strouth Mrs. that said Stitt Mr. want not "drama." did any she because so do Mrs. to respect was with jealous very Defendant the that and close very were Defendant without dad [A.H.]'s be to Stitt "wanted Mr. he told that Defendant The attention. Strouth's .270 a he buy that to him planned told Defendant the that recalled Stitt Mr. victim]." [the a .270 acquiring Defendant the this about upon Based cousin. his from rifle Mr. took never Defendant the but the with hunting go to Mr. rifle, offered Stitt to the back sold rifle he that .270 Stitt Mr. told Defendant the up Later, Stitt offer. the on also Defendant The it." with do to what going afraid was he "was he because cousin his of none because thought odd Stitt Mr. this sled. gun a purchased had he that Stitt Mr. told a gun sled. necessitated owned Defendant the guns the the and Parkway," the "on Pal's at parked was Stitt Mr. 2017, On 13, September white the that noticed window. Stitt car his Mr. on knocked and him Defendant the asked He gone. blue was of the Hyundai back the on been had that sticker butterfly up," "bubbled had sticker the that him told Defendant the and about sticker, the Defendant he and forehead, injury an to the noticed also Stitt Mr. it. removed he so suspicious was Stitt Mr. a rock. hit him and told fell he that Defendant The it. about asked injury. the inconsistent with was explanation the believing explanation, this of the in witness expert an as testified LLC, the Telefore, of Valinchus, owner Darryl provided company his that explained Valinchus Mr. analysis. communications of field visualization geospatial and records of analysis communications communications expert related case this to with provided was Valinchus Mr. telephones. of cellular extracted for search a the ran Valinchus Mr. provided. data the analyzed and as such case guns, this with associated words certain for phone cell the from the matched that phone cell the on events 272 was result The scopes. and sled, lead rifles, 15, June on began "rifle" as such terms The for for. searches searched he words

1. was 1, date last September The 2017. Two these phone. of the from images cached four reviewed also Mr. Valinchus 17, the June On 2017, maps. android Google from references visual had images cached of the vicinity in the located the was phone collected, cell were images the date geographical to related cache one in and images hundred eighty two were There for Road, were Ranch VI fifty-nine at residence the for were areas. Sixty-five the Drive, Belmont for three and is located, Walmart Bristol the where Century Boulevard 16

victim's Based on the extracted information, it appeared that the Defendant was reviewing satellite imagery (aerial views) of each of these locations. After hearing this evidence, the jury convicted the Defendant of first degree premediated murderand to commit first degree murder, a Class A felony. The trial court imposed a life sentence for the first degree murder and to commit fi rst scheduled a hearing to determine the sentence for the degree murder conviction.

witnesses, and the Defendant At the hearing, the State presented three offered a statement in allocution. Becky Bradshaw, the victim's sister, testified that the victim was a loving and devoted father. She spoke of his good character and love for his family. She spoke of A.H.'s loss of a father, a mentor, and stability due to the murder. Tanna Wheelock, the victim's mother, testified about the impact of the victim's death on her and on her grandson, A.H. She asked that the trial court impose the maximum sentence. The final witness for the State, Amanda Neurether, the victim's sister, testified about the victim's positive influence on her life. She described the emptiness she felt in the wake of death. his The Defendant offered a statement in allocution. In doing so, he denied any responsibility or role in the victim's death. He stated that he did not know who killed the victim, but if he did, he "would let you know." trial court stated that it had considered the evidence presented at trial and the The hearing, the presentence report, the of sentencing, the nature and characteristics of the criminal conduct, and evidence concerning the and factors. The trial court then reviewed and factors. It found five factors and one factor and sentenced the to commit fi rst degree murder Defendant to years for the the conviction. The trial court then considered and found Defendant was a dangerous offender as a basis to impose sentencing, for an effective sentence of life plus years. It is from this judgment that the Defendant appeals.

1. Analysis On appeal, the Defendant contends that: (1) the evidence is to sustain his convictions; (2) the trial court improperly declined to give the enhanced 17

sentence was excessive. jury instructions; (3) and the trial court's and general asks us to affirm the trial court in all respects. The State Sufficiency of the Evidence A. support his convictions Defendant contends that the evidence is to The to commit first degree for first degree murder and State failed to prove identity and to murder. Specifically, he argues that the evidence is more than to sustain the commit murder. The State responds that the convictions. We agree with the State. Court's standard challenges the sufficiency of the evidence, this When an accused to the State, considering the evidence in the light most favorable of review is whether, after essential elements of the crime beyond a rational trier of fact could have found the "any 443 U.S. 307, 319 (1979); see Tenn. R. App. P. doubt." Jackson v. Virginia, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 13(e); State v. Goodwin, 143 S.W.3d 771, guilt based upon direct (Tenn. 2002)). This standard applies to findings of 247, 276 direct and circumstantial circumstantial evidence, or a combination of both evidence, 392-93 (Tenn. Crim. App. 1999) (citing evidence. State v. Pendergrass, 13 S.W.3d 389, direct Crim. App. 1990)). In the absence of v. Dykes, 803 S.W.2d 250, 253 (Tenn. State circumstantial evidence. criminal offense may be exclusively by evidence, a 1973). "The jury decides the weight to be Duchac v. State, 505 S.W.2d 237, 241 (Tenn. to be drawn from such evidence, given to circumstantial evidence, and ' [t]he inconsistent with are with guilt and and the extent to which the for the jury.'" State v. Rice, 184 S.W.3d 646, 662 (Tenn. innocence, are questions primarily (Tenn. 1958)). "The standard of Marable v. State, 313 S.W.2d 451, 457 2006) (quoting is based upon sufficiency of the evidence] 'is the same whether the review [for Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) direct or circumstantial evidence.'" State v. S.W.3d 265, 275 (Tenn. 2009)). (quoting State v. Hanson, 279 should not re-weigh or In the sufficiency of the evidence, this Court Crim. App. 1990). Matthews, 805 S.W.2d 776, 779 (Tenn. reevaluate the evidence. State v. drawn by the trier of fact from the may this Court substitute its for those Nor (citing Liakas v. State, 286 evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) concerning the credibility of witnesses, the S.W.2d 856, 859 (Tenn. 1956)). "Questions by the the evidence, as well as all factual issues raised weight and value to be given (Tenn. of fact." State v. Bland, 958 S.W.2d 651, 659 evidence are resolved by the trier judge, accredits the testimony guilty verdict by the jury, approved by the trial 1997). "A favor of the theory of the State." witnesses for the State and resolves all conflicts in of the Court stated 474, 476 (Tenn. 1973). The Tennessee Supreme State v. Grace, 493 S.W.2d for this rule: the rationale 18

the and judge trial The foundation. sound a on rests rule well-settled This their observe and testimony their hear face, to face witnesses the see jury primary the are jury and judge trial the Thus stand. the on demeanor given be to credibility and weight the determine to of justice instrumentality human there is alone forum trial the In witnesses. of testimony the to a with reproduced be cannot evidence the of totality the and atmosphere in record Court. this written 523, State, S.W.2d 370 v. Carroll (citing 1966) (Tenn. 771 768, S.W.2d v. 405 Bolin State, legitimate "'strongest the Tennessee of State the afford must Court This 1963)). (Tenn. 527 legitimate and "'all as well as record, the in contained evidence' the of view (quoting 775 at S.W.3d 143 Goodwin, evidence. the from drawn be may that inferences' a against guilt of verdict a Because 2000)). (Tenn. 279 274, S.W.3d 24 Smith, v. State the guilt, of presumption a raises and innocence of presumption the removes defendant legally was evidence the that showing of burden the bears defendant criminal convicted (Tenn. 557-58 516, S.W.3d 35 Carruthers, v. State verdict. guilty a sustain to omitted). (citations 2000) Murder Premeditated Degree 1. First beyond find, to had jury the murder, degree first of Defendant the convict to order In killing intentional and "premeditated a committed Defendant the that doubt, a after done act "an to refers Premeditation (2018). 39-13-202(a)(1) § T.C.A. another." of the Whether (2018). 39-13-202(d) § T.C.A. judgment." and reflection of exercise the the at look may jury the and decide, to jury the for is killing the defendant Tennessee The 660. at S.W.2d 958 Bland, issue. that decide to killing the of that itself," act the to prior formed been have must kill to intent "the while that, states Code for time" of period definite any for accused the of mind the in "pre-exist not need purpose (2018). 39-13-202(d) § T.C.A. killing. the have to a defendant existence the demonstrate that actions as accepted been have factors following The cruelty particular the victim, unarmed an upon weapon deadly of a use the ofpremeditation: of procurement of evidence to kill, intent an of defendant the by declarations killing, the of calmness and crime, the of concealment for killing the before preparations weapon, a consider may a jury addition, In 660. at S.W.2d 958 Bland, killing. the after the by activities planning "the and murder the of evidence of secretion or destruction the and victim, the with prior appellant's the killing, the to prior appellant Halake, v. State 2000); (Tenn. 302 297, S.W.3d 24 Nichols, v. State killing." the of nature 4-5 1, S.W.2d 881 Gentry, v. State (citing 2001) App. Crim. (Tenn. 668 661, S.W.3d 102 factor a is killing the for motive a of lelstablishment Also, 1993)). App. Crim. (Tenn. 19

S.W.3d 42, (Tenn. infer premeditation." State v. Leach, from which the jury may 2004). that the light most favorable to the State, showed The evidence, viewed in the over A.H. The Defendant at the victim due to custody issues Defendant was angry member and had stated of the victim to co-workers and a family expressed his resentment The Defendant wanted to be A.H.'s both cause harm to and kill the victim. his desire to taken and he believed Mrs. Strouth was being father, without the victim's presence, was not allowed to attend. of in the custody court proceedings that he advantage shooting, the Defendant purchased .270 the weeks leading up to the In victim's vehicle after the found embedded in the which was with hunting rifle from co-workers that he had purchased a the shooting. The Defendant told document that the Defendant also .270 Store receipts his cousin that fired The Defendant items that lend accuracy to shooting. purchased a lead sled and a scope, geographical locations related to the shooting and the his cell phone to research items used day of the shooting, the residential address and work address. On the of the victim's toward the Bristol Walmart captured on video traveling car was shortly after away from the Bristol Walmart before the shooting and then traveling right footage showed a car similar to the shooting. Walmart video the shooting and then leave area near the victim's car just before the blue Hyundai park in the after the shooting. were apprehended shooting, the Defendant and Mrs. Strouth Several hours after the bite." He injury around his eye with "scope in Virginia. The Defendant had an well-being of A.H. He appeared to apprehension nor inquire into the did not question the with the clothing Hyundai, officers found clothing be "calm." Inside the blue The earlier on the day of the shooting. and Mrs. Strouth had been wearing the Defendant the police were the police that included some details that Defendant provided a statement to with a footage showed the blue Hyundai corroborate. Video unable to before the shooting. decal on the back on August 30, 2017, days distinctive white butterfly butterfly sticker, and blue Hyundai no longer had the white On the day of the shooting, the shooting, the Defendant disclosed admitted to removing it. Following the the Defendant he told his cellmate that he wished he could "take it back," and to his brother-in-law that someone and destroyed his life by doing so. he had shot gathering items Defendant acted with by This evidence shows that the traveling to the victim's place shooting, plotting locations for the shooting, to assist in the A.H. from school. Immediately waiting for the victim to leave work to pick up of work, and murder weapon Defendant and Mrs. Strouth disposed of the following the shooting, the Defendant appeared calm eventual detainment in Virginia, the and fled the State. Upon his 20

the at police questioning for request officers' the or detainment the and question not did existence of the demonstrate to evidence was there that conclude station. We premeditation. the at his to presence testified eyewitness no that complains also The Defendant a criminal As earlier, 2017. stated 1, September of afternoon the on Walmart Bristol 505 S.W.2d Duchac, evidence. circumstantial by exclusively be may offense the and evidence circumstantial to weight given the be to decides who jury the is It 241. at a not was there although above, discussed As from evidence. drawn such be to ample provided State the victim, shooting the Defendant the to eyewitness direct at presence and preparation, motive, of evidence the direct and circumstantial the with agreed jury its the by and, verdict, shooting the of the time at Walmart Bristol the the killed victim. and shot Defendant the that case the of theory State's the that doubt, a beyond State the proved, that conclude we place victim's to the drove and armed he himself when with acted Defendant then and shot school, from A.H. up pick to leaving be would victim the work of time a at Defendant not is The vehicle. his enter to attempting was he as back victim the the in this to as issue. relief to entitled Murder First Degree Commit to Conspiracy 2. the having each people, more or if two committed is of offense The and conspiracy, the the is of object which offense the for required state mental culpable agree offense, an of the commission facilitating or promoting of purpose the for acting each § T.C.A. such offense. constitutes which conduct in engage of will more or them one that such of pursuance in act overt "an that required also is It (2018). 39-12-103(a) person the whom with another by or person the by have done to been proved and alleged is (2018). 39-12-103(d) § T.C.A. conspired." to agreement the is accord-the of crime the of feature The essential (Tenn. 915 978 904, Pike, v. S.W.2d State See act. unlawful or criminal a accomplish formal A 1989). App. Crim. (Tenn. 58 54, S.W.2d 778 v. State Hodgkinson, 1998); be by will, proven often and may, it expressed; be it must nor required, not is agreement S.W.2d 874 Shropshire, v. State 915; at S.W.2d See 978 Pike, evidence. circumstantial Crim. (Tenn. 553 862 546, Gaylor, S.W.2d v. State 1993); App. Crim. 634, (Tenn. 641 by manifested not is although sufficient, understanding implied mutual ("[A] 1992) App. be may confederation unlawful "The agreement"). written a or formal any words, of execution the in parties the of conduct the and evidence by circumstantial every in participation not of and concert design implies Conspiracy enterprise. criminal the 1978). App. (Tenn. 871 Crim. 869, S.W.2d 570 State, v. Randolph execution." of detail 21

The State presented evidence that the Defendant and Mrs. Strouth were upset and angered by custody issues with the victim. In support of overt acts taken in furtherance of the to kill the victim, the State presented evidence to show the Defendant and Mrs. Strouth purchased or obtained a rifle, and a lead sled, for the purpose of killing the victim. The Defendant conducted internet research to aid in planning the shooting, and the Defendant removed an identifying butterfly sticker from the Strouth's blue Hyundai shortly before the murder to avoid detection. The Defendant and Mrs. Strouth left their cell phones at their residence, presumably to avoid detection, and drove to the Bristol Walmart at a time the victim would be leaving the Walmart to pick up A.H from school. Following the shooting, Mrs. Strouth drove the Defendant out of state, and the couple concealed or destroyed the rifle to avoid detection. Based upon this evidence, a rational jury could fi nd that the Defendant and Mrs. Strouth entered a mutual agreement to end their custody issues with the victim by killing him and then took multiple actions toward the accomplishment of that goal. we conclude that the State presented proof, beyond a doubt, that the Defendant acted with Mrs. Strouth to kill the victim, ending Mrs. Strouth's custody struggles with the victim. The Defendant is not entitled to relief as to this issue.

1. Jury Instructions The Defendant argues that the trial court erred in instructing the jury. He acknowledges that he did not request any special instructions nor did he object to the court's jury instructions; however, he maintains on appeal that the trial court should have given the general and enhanced instructions. The defense in this case neither requested a jury instruction regarding the or enhanced nor objected to the trial court's failure to charge the jury on these instructions. "Where a trial court gives an allegedly incomplete jury charge to which the defense does not object, we consider the issue waived and will review the omitted instruction for plain error only." State v. Hatcher, 310 S.W.3d 788, 815 n. 15 (Tenn. 2010) (citing State v. Bledsoe, 226 S.W.3d 349, 353 (Tenn. 2007)). For an appellate court to grant relief on the basis of plain error, (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 did not waive the issue for tactical reasons; and (e) of the error is "necessary to do substantial justice." State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (quoting and adopting the test by State v. Adkisson, 22

must defendant A 1994)). App. Crim. (Tenn. 641-42 626, S.W.2d we and relief, error plain grant will Court this before factors five all establish not is factors five the of any that concluding upon review our cease may

1. at Id. established. on relief error plain to entitled is not Defendant the that concluded have we review, After not is error of the because case in this charge jury incomplete an of basis the justice. substantial do to necessary

with findings specific make to failed court trial the that contends Defendant The Defendant The factors. the and factors the to respect sentence. the affirm to us asks State The excessive. is sentence the that asserts is sentence his that establishing of burden the bears defendant a appeal, On S.W.2d 823 v. Ashby, State Cmts; Comm'n 40-35-401, § T.C.A. improper. of abuse the under is sentences of review Appellate 1991). (Tenn. 169 166, (2012); 708 682, S.W.3d 380 Bise, v. State of reasonableness. presumption a with standard of abuse of A finding 2012). (Tenn. 278-79 273, S.W.3d 388 Caudle, v. State also see viewed when improper was reasoning and logic court's trial the that "'reflects particular in a involved legal relevant and factual the of light in 6 Moore, v. State (quoting 2001) (Tenn. 555 553, S.W.3d 45 Shaffer, v. State case.'" 1999)). (Tenn. 242 235, S.W.3d evidence substantial any of void be must record the discretion, of abuse an find To 286 285, S.W.2d 568 Grear, v. State Id.; decision. court's trial the support would that context the In 1980). App. Crim. (Tenn. 398 395, S.W.2d 614 Delp, v. State 1978); (Tenn. range appropriate the within sentence the places court trial as the long as sentencing, of must Court this Act, the of and purposes the applies properly and "[a] stated, Court Bise the As 704-07. at Bise, reasonable. be to sentence the presume record the and range appropriate the within it is as long so upheld be should sentence and purposes the with compliance in otherwise is sentence the that demonstrates

1. at Id. statute." by listed Factors Enhancement 1. when factors misapplied court trial the that asserts Defendant The first a commit to the for years of sentence maximum the imposing felony. A a Class conviction, murder degree 23

At the hearing, the trial court found that the Defendant was a Range I standard offender based upon his criminal history. The trial court then considered factors to determine the sentence for the Class A felony with the range of fifteen to years. The trial court found five factors applied and ordered a sentence of years. In the proper sentence, the trial court must consider: (1) the evidence, if any, received at the trial and the hearing; (2) the presentence report; (3) the of and arguments as to alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and offered by the parties on the and factors set out in Tennessee Code Annotated sections 40-35-113 and -114; (6) any statistical provided by the administrative office of the courts as to practices for similar offenses in Tennessee; and (7) any statement the defendant made in the defendant's own behalf about See T.C.A. § 40-35-210 (2014); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). In 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 and factors set out in §§ 40-35-113 and 40-35-114. T.C.A. § 40-35-210(c) (2018). Although the trial court should also consider and factors, the statutory factors are advisory only. See T.C.A. § 40-35-114 (2018); see also Bise, 380 S.W.3d at 699 n.33, 704; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). We note that "a trial court's weighing of various and 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 range so long as the length of the sentence is 'consistent with the purposes and of [the Act]." Id. at 343. A trial court's "misapplication of an or factor does not invalidate the sentence imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005." Bise, 380 S.W.3d at 706. "[Appellate Courts are] bound by a trial court's decision as to the length of the sentence imposed so long as it is imposed in a 24

of the set out in sections and the purposes and manner with 254 S.W.3d at 346. Act." Carter, defendant was a leader in factors: (2) "the the trial court applied Here, (5) "the more criminal actors;" offense involving two (2) or the commission of an during the exceptional cruelty victim to be treated, with defendant treated, or allowed a the amount of injuries inflicted upon, or offense;" (6) "the personal commission of the particularly great"; (9) "the from, the victim was property sustained by or taken damage to deadly weapon explosive device or other or employed a firearm, defendant possessed had no about offense"; and (10) "the defendant commission of the during the T.C.A. § 40-35-114 (2), (5), human life was high" a crime when the risk to criminal history lack of a determined that the (10). The trial court also (6), (9), substantially enhancing factors factor," but that "the "somewhat of a was potential factors." outweigh[ed] any following findings with respect trial court made the the hearing, the At factors: and to factors would factors, I think the . . . relevant As far as offense involving the commission of an that he was the leader in be two -- or allowed a victim to be criminal actors. Five -- he treated two or more offense. Six, during the commission of the exceptional cruelty treated with particularly great, of damage were injuries inflicted or amount the personal factor, he course, nine would be an obviously. Um, of of the offense. Ten rearm during the commission possessed or employed a fi when the about committing a crime he had no is applicable, that be the [ factors was high. Um, those would ] risk to human life has filed a factors, Mr. Dillow finding here today. The that I'm history, and I would find lack of prior criminal response and he's added the enhancing factors factor. I find that the that's somewhat of a that factors. outweigh any potential substantially with respect to on the record its reasoning the trial court failed to place In this case, to, in addition statute requires trial courts factors. The application of the the for the sentence, place on the record "the reasons factors considered, to to naming which case, the 40-35-210(e). In this sentencing." T.C.A. § order to ensure fair and in the sentence to applied to enhance the five factors trial court factors. Thus, to the application of these but offered no findings as maximum in the range each findings with respect to trial court to place its we remand for the record. factor on the 25

1. Consecutive imposing erred by that the trial court Defendant contends The the prescribed court failed to conduct asserts that the trial Again, the Defendant sentences. trial State argues that the sentences. In response, the before imposing analysis of the service reasons for ordering clearly stated its court in doing so. not abuse its sentences and that it did Supreme Court the Tennessee 851 (Tenn. 2013), Pollard, 432 S.W.3d In State v. regarding by trial courts apply to decisions holding in Bise to also expanded its exercise of its to the trial court's must give "deference 859. This Court Id. at provided reasons on the sentences if it has impose authority to discretionary Code Annotated listed in Tennessee of the seven grounds establishing at least one record 40-35-[listed in section one of [the] grounds Id. at 861. "Any 40-35-115(b)." section Id. at 862 (citing sentences." of basis for the 115(b)] is a (Tenn. 2013)). 413 S.W.3d 735 State v. Dickson, defendant is it finds the run consecutively" if order sentences to A trial court "may human life, and no no regard for indicates little or offender whose behavior dangerous "a high[.]" T.C.A. § human life is which the risk to a crime in about 1995). Before a trial 933, 936 (Tenn. Wilkerson, 905 S.W.2d 40-35-115(b)(4); see State v. dangerous a defendant is a on the basis that sentences may impose court protect the is necessary to extended sentence court must find "that an offender, the trial sentences defendant and that the conduct by the further criminal public against 905 S.W.2d at committed." Wilkerson, of the offenses relate to the severity ... reasonably about specific findings trial court must make stated that the supreme court has 939. Our defendant. State v. Lane, factors apply to the the Wilkerson "particular facts" which show (Tenn. 1999). S.W.3d 456, 461 3 dangerous that the defendant is a sentences on the basis imposing In follows: articulated its reasons as the trial court offender, behavior indicates offender who's [sic] he's a dangerous I find that there's no about human life and little or no regard for I find that the three human life is high. And which the risk to a crime in a - the aggravated, this was are obviously apply, the criteria Um, I find . . . the victim. did murder found that that [the jury confinement for an ], I also find that are aggravated [ that the the defendant[']s protect society from of time is necessary to extended period ], in to criminal activity [ productive life and resort unwillingness to lead a factor, that the the [ ], sitting and I - I [ ] feel that this - in this instance 26

the which to offense the to relate originally sentences the of length aggregate the with him from away father [A.H.]'s took He convicted. stands defendant is that that find I would and - those and actions matter. this in needed but discretionary sentences his serve to Defendant the require to whether In about no had defendant the determined first court trial the consecutively, 40-35-§ T.C.A. See high. was life human to risk the crime a which in offender. a dangerous was defendant the determined court trial the result, a As 115(b)(4). trial the Although factors. Wilkerson the consider to proceeded then court trial The public the protect to necessary was sentence extended an that record the on stated court the of length the that and Defendant the by conduct criminal further from to found it facts specific the state to failed it offenses, his to related reasonably sentence WL 2005 M2004-01118-CCA-R3-CD, No. Calloway, v. State See conclusion. its satisfy with agree ("We J.) (Woodall, 2005) 2, June App. Crim. (Tenn. *13 at 1307800, findings factual specific the make to failed court trial the that contention offender dangerous a is Defendant that finding to prerequisite a as Wilkerson by required Wilkerson the of recitation mere The appropriate. is whom for Scott v. State findings."); specific making of requirement the for substitute a not is factors App. Crim. (Tenn. *9 at 1972892, WL 2002 E2001-01528-CCA-R3-CD, No. Craig, M. to necessary is confinement that statement mere ("A filed app. perm. no 2002), 27, Aug. convicted the to related reasonably is sentence the of severity the that and society protect [under sentences justify to is more, without offenses, "specific make must court trial the (holding 938 at S.W.3d 905 Wilkerson, Wilkerson]."); before society protect to necessity the and offenses the of severity the regarding findings the Because § 40-35-115(b)(4)"). Ann. Code Tenn. under ordering not does factor this (4), factor regarding findings required the make to failed court trial to fail courts trial ("[W]hen 869 at S.W.3d 432 Pollard, support offender, dangerous a as a defendant classifying before findings additional two the include of the support to record the on reasons provide adequately to failed have they exercise court's trial the to defer cannot Court this sentences."). See reasonable. was sentences of the that presume nor of (Tenn. *8 at 7040983, WL 2020 W2019-01362-CCA-R3-CD, No. Carpenter, v. State WL 2019 W2019-00216-CCA-R3-CD, No. Robinson, v. State 2020); 30, Nov. App. Crim. 2019). 16, Dec. App. Crim. (Tenn. *7 at 6876778, Court this situation, this facing when that, explained court supreme our Pollard, In adequate an is there whether determine to review novo de a conduct "(1) options: two has the consider to court trial the for remand (2) or sentences; imposing for basis 432 Pollard, sentences." impose to whether in factors requisite 27

S.W.3d at (citing Bise, S.W.3d at & n.41). Because the required under Wilkerson involves a fact-intensive inquiry, the better course is to remand the case to the trial court to determine the propriety of Id. we vacate the of partial and remand to the trial court for a new hearing.

1. Conclusion Based on the foregoing authorities and reasoning, we affirm the convictions. We, however, vacate the sentence for to commit first degree murder and the of and remand to the trial court for further proceedings with this opinion.

ROBERT W. SI WEDEA4EYER ROBERT W. WEDEMEYER, PRESIDING JUDGE