State of Tennessee v. Kenneth Lewis

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 5, 2012

STATE OF TENNESSEE v. KENNETH LEWIS

Appeal from the Criminal Court for Shelby County
No. 09-00033 J. Robert Carter, Jr., Judge

No. W2011-02219-CCA-R3-CD - Filed May 13, 2013

The Defendant-Appellant, Kenneth Lewis, was indicted by a Shelby County Grand Jury for
second degree murder, a Class A felony, and was convicted as charged. See T.C.A. § 39-13-
210 (2006). The trial court sentenced Lewis as a Range II, multiple offender to a sentence
of thirty-five years at one hundred percent release eligibility. On appeal, Lewis argues: (1)
the evidence is insufficient to sustain his conviction; (2) the trial court abused its discretion
in denying his request to question a witness about the witness’s failure to appear at two prior
court proceedings in his case; and (3) his sentence is excessive. Upon review, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J EFFREY S. B IVINS, JJ., joined.

Jeff Woods, Memphis, Tennessee, for the Defendant-Appellant, Kenneth Lewis.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Michael R. McCusker, Assistant
District Attorney General, for the Appellee, State of Tennessee.

OPINION

Trial. Helen Traylor, the sister of the victim, James Mosby, testified that the victim
had been diagnosed with schizophrenia and had lived with their mother, his caregiver, prior
to his death. Traylor was not aware of the victim using or selling drugs during his lifetime.
She said that prior to the attack, the victim weighed approximately 120 pounds and was five
feet, seven or eight inches tall.
 Traylor stated that she and her mother filed a missing persons report for the victim
after they had not seen or heard from him for several days. In addition, they posted flyers
with pictures of the victim around their neighborhood. After talking to some employees at
the M and M Express convenience store, Traylor and her mother began looking for the victim
at the local hospitals and eventually found him at the Regional Medical Center at Memphis.
Prior to their arrival at that hospital, the victim was known only as “John Doe.” Traylor said
that when she first saw her brother after the attack, she noticed that he had “stitches across
his head and . . . was swollen. He didn’t look like himself.” She said that her brother never
regained consciousness following his attack and that in March 2007, the hospital transferred
him to St. Peter’s Villa, a nursing home, where he stayed for several months until his death.
She stated that her brother’s condition never improved.

Abbas Alkubechy, a manager at the M and M Express convenience store, stated that
he was working at the store the night the victim was attacked. Alkubechy said he had known
Lewis for eleven years at the time of the attack and also knew the victim. He remembered
Lewis coming into the store with his car title and asking him for a twenty-dollar loan, which
he refused to give him. Alkubechy turned to look at the security television, which showed
live footage from the security cameras, and saw Lewis leaving the store as the victim walked
into the store’s parking lot and faced Lewis. Alkubechy explained that although he was able
to view the live security footage, this footage was not recorded. Alkubechy then saw “a
black guy with a white jumpsuit” take Lewis’s bicycle and ride away from the store. At that
point, he stopped looking at the security camera footage because he had to help a customer.
Once he finished assisting the customer, he looked back at the security footage and saw
Lewis hit the victim, which caused the victim to fall, and heard someone, probably Lewis,
yelling. Alkubechy immediately ran outside and when he saw Lewis stomping on the
victim’s head, he told Lewis to stop hurting the victim. At the time, he saw “thick blood”
seeping out of the victim’s head and noticed that the victim was breathing heavily. Lewis
left the victim and entered the store, where he stole a can of beer and told Alkubechy that he
could call the police. Alkubechy called 9-1-1 and gave the dispatcher a description of Lewis.
He said that the victim was unresponsive when the police arrived on the scene.

On cross-examination, Alkubechy said that Lewis came to the store two times that
night. He said the first time Lewis came into the store he bought a six-pack of Corona Light
and asked for the twenty-dollar loan in exchange for his car title. He said the the second
time Lewis came into the store was when Lewis attacked the victim.

Howard Catron testified that he stopped at the M and M Express convenience store
close to midnight on March 6, 2007, and saw several people standing outside. As Catron was
about to buy some gasoline, he saw a man, later identified as Lewis, ride into the store’s
parking lot on a bicycle and park it near two men, an “older guy,” later identified as the

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victim, and a “younger guy.” When Lewis went inside the store, the younger guy stole the
bicycle and rode away. At that point, the victim approached Catron and asked for some
change. Catron said that when Lewis exited the store, he noticed that his bicycle had been
stolen, and he became angry. Lewis asked the victim if he had stolen it, and when the victim
told him that he had not taken it, Lewis hit the victim until he fell to the ground. He said
Lewis began to “stomp [the victim] with his feet.” Catron said Lewis continued to stomp the
victim with both feet until the victim lay “motionless on the ground.” At that point, Lewis
asked Catron if he had “something to do with his bike getting stolen[,]” and Catron denied
that he was involved. As Catron was leaving the store, Lewis began to hit the victim again”
and heard Lewis tell the victim that he knew the victim had stolen his bicycle. He then heard
Lewis tell the victim: “[Y]ou still alive? I’m going to kill you now. I’m going to kill you
now.” Before Catron left the store, he saw Lewis stomping the victim again. Catron left the
store and went to work, where he was told to leave because he had gotten to work too late.
When he returned from work, he saw police cars and an ambulance in front of the
convenience store. He stopped at the store and identified Lewis as the victim’s attacker for
the police.

On cross-examination, Catron admitted that he never mentioned in his statement to
police that Lewis stomped on the victim with both feet. He also admitted that he never called
the police about the attack.

Brian Moore, an officer with the Memphis Police Department, testified that he
responded to the scene in the early morning hours of March 7, 2007, after dispatch notified
him that an assault had taken place. When he arrived at the scene, Officer Moore saw the
victim lying on the ground and bleeding from his head. He stated that the victim was
unresponsive. Officer Moore said he developed Lewis as a suspect because the store’s
employee was able to give him a description of the victim’s attacker.

Cedric Claxton, another officer with the Memphis Police Department, testified that
he located Lewis, who matched the description of the attacker, approximately one block away
from the store. Officer Claxton stated that he placed Lewis in custody and took him to the
store, where Alkubechy identified him as the victim’s attacker. At his lieutenant’s request,
he checked Lewis’s shoes, which had blood on the bottom of them. Officer Claxton said
Lewis was transported to the felony response unit at 201 Poplar, where he became agitated,
uncooperative, and loud. He stated that Lewis had no injuries at the time of his arrest.

David Galloway, a crime scene officer with the Memphis Police Department, testified
that he made photographs of Lewis’s clothing and shoes. Officer Galloway said he collected
Lewis’s shoes, so that the blood on them could be tested for DNA.

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 Degrah Bell, an officer with the felony response unit of the Memphis Police
Department, testified that she was at the scene when Lewis was taken into custody. Officer
Bell stated that when Lewis was brought to the felony response unit, he became “very
agitated, very excited, really belligerent.” She stated that because Lewis appeared to be
under the influence of an intoxicant, he was taken to the Regional Medical Center at
Memphis.

Olevia Becton, a registered nurse at St. Peter’s Villa nursing home, testified that she
took care of the victim at the nursing home. She stated that the victim was “in a vegetative
state” from the time that he arrived at St. Peter’s Villa until he passed away on November 17,
2008.

Affidavits regarding the victim’s medical records were obtained from the custodian
of records for the Regional Medical Center at Memphis and St. Peter’s Villa nursing home.
These medical records were entered into evidence by agreement of the parties.

Dr. Karen Chancellor, the Shelby County Chief Medical Examiner, testified that she
performed the victim’s autopsy on November 18, 2008. She stated that the victim’s cause
of death was complications of blunt force injury to the head and that the victim’s manner of
death was homicide. During the autopsy, Dr. Chancellor noticed that the victim’s body was
in a contracted state, which indicated that the victim had not moved or been moved recently
and was unable to care for himself. She also noticed that the victim was wearing a diaper,
had a tracheotomy tube to assist with his breathing, and had a feeding tube because he was
unable to feed himself. In addition, Dr. Chancellor observed a scar, two and a half inches
in length, on the victim’s forehead and stated that this injury had been noted by the hospital
at the time he was admitted. Dr. Chancellor opined that the victim had sustained “damage
to all parts of the brain” and that the condition of the victim’s brain was consistent with
traumatic brain injury.

Qadriyyah Debnam, a former forensic scientist with the Tennessee Bureau of
Investigation, testified that she tested the DNA obtained from the bottom of Lewis’s shoes
while working as a special agent in the serology unit. Debnam stated that this blood matched
the victim’s DNA. She also stated that the blood from the crime scene matched the victim’s
DNA.

Lewis, the Defendant-Appellant, testified in his own behalf. He admitted that he had
two felony convictions for robbery and aggravated burglary and had three misdemeanor
convictions for theft. Lewis stated that he had learned of his uncle’s death the day of the
victim’s attack. He said he went to his mother’s house around 11:30 a.m. to spend time with
his family and drank around “five 40 ounces” of beer. Sometime after 10:00 p.m., Lewis

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decided to leave his mother’s house. Because he had locked his keys inside his car, Lewis
took his stepfather’s bicycle to the M and M Express convenience store. Lewis stated that
he did not want to borrow his stepfather’s truck because they did not get along.

Lewis said that before he left his mother’s house, he smoked two “primos,” which he
described as “crack cocaine crushed down and mixed with weed[.]” He rode the bicycle to
the convenience store to buy a cigar, so that he could use the cigar paper to make another
“primo.” When he got to the store, he bought a cigar and a six-pack of Corona Light. He
immediately exited the store, made the “primo,” and lit it because he was in a hurry to get
high. At that point, the victim and another man, nicknamed “Slick,” approached him for the
purpose of buying drugs. Lewis gave the two men some crack cocaine for free, and the
victim “pulled out [a] crack pipe,” which he and “Slick” used to smoke the crack cocaine.
Lewis said he stood in the parking lot with the two men for approximately ten minutes.

Lewis then left the store and rode the bicycle back to his mother’s house. A short
time later, he decided he wanted to smoke another “primo,” so he returned to the store some
time around midnight to buy another cigar. When he arrived at the store the second time, the
victim and “Slick” were still standing outside the store. The victim asked to buy more drugs,
and Lewis lied and told him that he did not have any more drugs. Lewis left his bicycle
beside the two men and entered the store, where he bought another cigar. He said he was in
the store for four to five minutes because he was talking to Alkubechy. When he exited the
store, he saw that his stepfather’s bicycle had been stolen and he got “mad and upset.” Lewis
said that the victim approached him and informed him that he would have to pay ten dollars
to get the bicycle back. Lewis refused and slapped the victim “with an open hand.” Then
the victim hit him in the face, and he hit the victim a second time with his left closed fist,
which caused the victim to fall on the ground and to hit his head on the concrete curb. Lewis
admitted that he kicked the victim after he fell to the ground. He said he never believed that
he could kill someone by kicking them and that he was “sorry.” Lewis said that after he
kicked the victim, the victim began “snoring” as if he were asleep. He thought that the
victim was “just knocked out” and would eventually awaken. Lewis admitted telling the
victim that he “better be lucky [he was] still breathing because [he] ought to kill [him].”

On cross-examination, Lewis acknowledged that he kicked the victim because he
“was full of a lot of emotions at the time” and was upset that the victim and “Slick” would
“take [his] kindness for weakness [after he had] just [given] them [crack cocaine] and [had]
told them they could keep the change.” He admitted that he was addicted to crack cocaine
and had smoked two “primos” before going to the store the first time. He also admitted that
he had previously stolen items to support his crack cocaine habit. Lewis said that during the
fight with the victim, his primary objective was to get the bicycle back. He said, “I would
never try to kill nobody. Death was not on my mind at all, period.” When the State noted

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the disparity in Catron’s version and Lewis’s version of the attack and asked Lewis if he
agreed that Catron had no reason to lie about what happened the night of the attack, Lewis
replied, “But [Catron] left the lot.” Then Lewis stated, “[H]ow do I know that [Catron]
didn’t buy my bike” from the victim and “Slick.” Then Lewis mentioned Catron’s failure
to appear at his last trial, which caused the State to object, and the trial court instructed Lewis
to answer the questions posed by the State. Lewis said that Catron was laughing during his
fight with the victim, which is why he asked Catron if he had something to do with the
missing bicycle.

Sentencing Hearing. At the August 11, 2011 sentencing hearing, the State entered
a copy of the presentence investigation report and a letter from Helen Traylor, the victim’s
sister, into evidence. Both of these documents were admitted without objection from the
defense.

Lewis’s prior convictions were established through the testimony of Vicki Davis, the
keeper of records in the Criminal Court Clerk’s Office, the presentence investigation report,
and certified copies of the convictions from General Sessions Court, all of which showed that
Lewis’s extensive criminal history included the following convictions:

Date of Conviction Conviction Offense Sentence

2/8/2006 Disorderly Conduct 30 days

2/8/2006 Vandalism 60 days

10/6/2005 Robbery 3 years suspended to
probation

3/16/2005 Criminal Trespass 4 days

3/2/2005 Theft of Property under 2 days
$500

7/10/2003 Probation Violation 60 days

6/3/2002 Aggravated Burglary 3 years suspended to
probation

5/14/2002 Driving Under the 11 months, 29 days,
Influence of an Intoxicant suspended to probation for
10 months, 29 days

5/14/2002 Assault 30 days

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 5/14/2002 Vandalism 30 days

5/8/2000 Driving with License 5 days
Suspended/Cancelled/Revo
ked

5/8/2000 Disorderly Conduct 3 days

5/7/2002 Theft of Property less than 27 days
$500

4/10/2000 Assault 6 months, which was
suspended and probation
for 11 months, 29 days

4/5/2000 Vandalism 5 months

4/5/2000 Vandalism 5 months

4/5/2000 Violation of Probation 60 days

7/15/1999 Driving with a Revoked 11 months, 29 days
License suspended to probation

7/15/1999 Driving While License 11 months, 29 days
Suspended suspended to probation

4/1/1999 Assault 180 days suspended

7/14/1997 Aggravated Criminal 30 days
Trespass

7/14/1997 Resisting Official $50 fine
Detention

2/21/1997 Probation Violation Not Stated in Record

2/21/1997 Disorderly Conduct 4 days

2/21/1997 Assault 10 days

12/16/1996 Criminal Trespass 20 days

In the presentence investigation report, Lewis disclosed that he began drinking alcohol
at age twelve and began smoking marijuana at age thirteen. He also disclosed that he

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typically smoked three marijuana “blunts” a day. Lewis stated that he began using powder
cocaine at age nineteen, and regularly consumed two grams of cocaine a day, before
switching to crack cocaine at age twenty-six.

After hearing arguments from counsel, the trial court determined that Lewis was a
Range II, multiple offender because he had been convicted of two Class C felonies,
aggravated burglary and robbery, which were within two classes of his conviction for second
degree murder. Id. § 40-35-106(a)(1) (2006). The trial court also stated that Lewis faced a
range of twenty-five to forty years at one hundred percent release eligibility. Id. §§ 40-35-
112(b)(1), -501(i)(1), -501(i)(2)(B) (2006).

Although defense counsel argued for the application of several mitigating factors, the
trial court only applied mitigation factor (13) because “there was an element of remorse in
Mr. Lewis’s testimony and [his] remorse was in a great amount for his own situation for his
own self, but I do feel like there was genuine remorse for the fact that the victim . . . was in
fact dead so I give him some credit for that.” Id. §40-35-113(13) (2006). Regarding the
enhancement factors, the trial court found that Lewis had “a previous history of criminal
convictions or criminal behavior, in addition to those necessary to establish the appropriate
range[.]” Id. § 40-35-114(1) (2006). He placed particular emphasis on the fact that Lewis
had been convicted of “multiple assault convictions.” The court stated, “I have an individual
with a lengthy history of violent behavior with multiple convictions for assault and that
assaultive behavior is something that I have to consider and that is an enhancement of the
sentence within the appropriate range.” The court gave only “some weight” to the
enhancement factor that the victim “was particularly vulnerable because of age or physical
or mental disability[.] Id. § 40-35-114(4) (2006). The court acknowledged that the victim
had “challenges as a result of [his health issues], but I do not find that he was helpless.”

At the conclusion of the hearing, the trial court sentenced Lewis as a Range II,
multiple offender to thirty-five years at one hundred percent release eligibility. Lewis filed
a timely motion for new trial, which was denied by the trial court. He then filed a timely
notice of appeal.

ANALYSIS

I. Sufficiency of the Evidence. Lewis argues that the evidence is insufficient to
support his conviction for second degree murder. Specifically, he asserts that the evidence
is sufficient to support a conviction for manslaughter, rather than second degree murder,
because the proof showed that he became enraged and attacked the victim when he
discovered that his stepfather’s bicycle had been stolen. He also asserts that the State
improperly relies on the brutality of the offense to establish his guilt under the second degree

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murder statute because the nature of the conduct and the manner of the victim’s death are
inconsequential under this statute. See State v. Parker, 350 S.W.3d 883, 904 (Tenn. 2011).
The State responds that the evidence is sufficient to sustain the second degree murder
conviction because the proof established that Lewis attacked and killed the victim for
stealing his stepfather’s bicycle. We agree that the evidence is sufficient to sustain Lewis’s
conviction.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case
where there is direct evidence, circumstantial evidence, or a combination of the two. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551
S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

The trier of fact must evaluate the credibility of the witnesses, determine the weight
given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the
evidence, this court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A
guilty verdict also “removes the presumption of innocence and replaces it with a presumption
of guilt, and the defendant has the burden of illustrating why the evidence is insufficient to
support the jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

Lewis was convicted of second degree murder, which is defined as “[a] knowing
killing of another[.]” T.C.A. § 39-13-210(a)(1). In order to establish this offense, the State
must prove beyond a reasonable doubt that “(1) the defendant killed the victim, and (2) the
defendant committed the killing with a ‘knowing’ state of mind.” Parker, 350 S.W.3d at 904.

Regarding the first element, whether Lewis killed the victim, Dr. Chancellor testified
that the victim died of complications from blunt force injury to the head. She stated that the
victim had sustained “damage to all parts of the brain” and that the condition of the victim’s

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brain was consistent with traumatic brain injury. Alkubechy and Catron testified that they
saw Lewis stomping on the victim. Catron stated that the victim eventually lay motionless
on the parking lot as a result of Lewis’s conduct. Officer Moore testified that the victim
remained unresponsive at the scene, Traylor testified that the victim never regained
consciousness, and Becton testified that the victim was “in a vegetative state” from the time
that he arrived at St. Peter’s Villa until he passed away on November 17, 2008. At the time
of his arrest, Lewis had blood, matching that of the victim, on the soles of his shoes. This
evidence, taken in the light most favorable to the State, is sufficient to establish that Lewis
caused the lethal injuries to the victim. Accordingly, we conclude that the evidence is
sufficient to prove the first element of second degree murder.

We now must determine whether the evidence is sufficient to prove the second
element, whether Lewis committed the killing with a “knowing” state of mind. Tennessee
Code Annotated section 39-11-302(b) (2006) defines the term “knowing”:

“Knowing” refers to a person who acts knowingly with respect to the conduct
or to circumstances surrounding the conduct when the person is aware of the
nature of the conduct or that the circumstances exist. A person acts knowingly
with respect to a result of the person’s conduct when the person is aware that
the conduct is reasonably certain to cause the result.

The Tennessee Supreme Court has provided guidance in determining whether a defendant
“knowingly” kills a victim:

Because this Court has determined that “[s]econd degree murder is a result of
conduct offense,” State v. Brown, 311 S.W.3d 422, 431-32 (Tenn. 2010),
“[t]he ‘nature of the conduct’ that causes death or the manner in which one is
killed is inconsequential under the second degree murder statute. The statute
focuses purely on the result and punishes an actor who knowingly causes
another’s death.” State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000). Thus,
the proof to support the mens rea element of second degree murder needs to
demonstrate beyond a reasonable doubt only that the accused “knew that his
or her actions were reasonably certain to cause the victim’s death.” Brown,
311 S.W.3d at 432.

Parker, 350 S.W.3d at 904.

We also conclude that there is sufficient evidence to prove that Lewis “knowingly”
killed the victim. Alkubechy and Catron testified that Lewis repeatedly stomped on the
victim. Catron testified that after stomping the victim’s head, Lewis told the victim: “[Y]ou

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still alive? I’m going to kill you now. I’m going to kill you now.” Catron also stated that
the victim lay “motionless” on the parking lot following the attack. Lewis admitted that
when the victim approached him and told him he would have to pay ten dollars to get the
bicycle back, he slapped the victim “with an open hand.” He said that when the victim hit
him in the face, he hit the victim a second time with his left closed fist, causing the victim
to fall on the ground and to hit his head on the concrete curb. Lewis also admitted that he
kicked the victim after the victim fell to the ground. Given this evidence, it was reasonable
for the jury to infer that Lewis knew his conduct toward the victim was “reasonably certain”
to cause the victim’s death.

Although several different versions of the victim’s attack were presented at trial, it
was the jury’s duty to evaluate the credibility of witnesses, to determine the weight given to
testimony, and to resolve all conflicts in the evidence. See Odom, 928 S.W.2d at 23. For this
reason, we will not “reweigh or reevaluate the evidence.” Henley, 960 S.W.2d at 578-79.
Because there is sufficient evidence in the record establishing that Lewis killed the victim
and that he committed the killing with a “knowing” state of mind, the proof is sufficient to
sustain Lewis’s conviction for second degree murder.

II. Denial of Request to Question Witness. Lewis argues that the trial court’s
denial of his request to question Howard Catron about his failure to appear at two prior court
proceedings in his case violated the Confrontation Clause and constituted reversible error
because he “was denied the opportunity to explore possible motive or bias on the part of the
witness.” The State responds that the trial court did not abuse its discretion in denying this
request because Lewis failed to show how Catron was biased toward the prosecution. The
State asserts that Lewis alleged no actual bias or motive on the part of Catron and that “[a]t
most, Catron’s failure to appear at a prior hearing demonstrates a reluctance to be a State’s
witness, not a motivation to be one.” Finally, the State contends that no violation of the
Confrontation Clause occurred because Lewis had an opportunity to cross-examine Catron
about his credibility as an eyewitness to the victim’s attack. We conclude that Lewis has
waived this issue for failing to make an offer of proof.

The defendant has a fundamental right to examine a witness for bias. State v. Rice,
184 S.W.3d 646, 670 (Tenn. 2006); State v. Sayles, 49 S.W.3d 275, 279 (Tenn. 2001). This
right “includes the right to examine a witness regarding any promises of leniency, promises
to help the witness, or any other favorable treatment offered to the witness.” Rice, 184
S.W.3d at 670; Sayles, 49 S.W.3d at 279 (citing State v. Smith, 893 S.W.2d 908, 924 (Tenn.
1994); State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993)). Any undue
restrictions of this right may violate the Confrontation Clause of the Sixth Amendment of the
United States Constitution and Article I, Section 9 of the Tennessee Constitution. Rice, 184

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S.W.3d at 670 (citing Smith, 893 S.W.2d at 924; State v. Black, 815 S.W.2d 166, 177 (Tenn.
1991)).

The Tennessee Supreme Court outlined the elements a defendant must show in order
to prove a violation of the Confrontation Clause:

“[A] criminal defendant states a violation of the [federal] Confrontation Clause
by showing that he was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of
the witness, thereby exposing to the jury the facts from which jurors could
appropriately draw inferences relating to the reliability of the witnesses.”
Delaware v. Van Arsdall, 475 U.S. at 680, 106 S.Ct. at 1436; see also Olden
v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988). The
defendant must show that a reasonable jury might have received a significantly
different impression of the witness’s credibility had counsel been permitted to
pursue his proposed line of cross-examination. Delaware v. Van Arsdall, 475
U.S. at 680, 106 S.Ct. at 1436.

Black, 815 S.W.2d at 177. “The exposure of a witness’s motivation in testifying is a proper
and important function of cross-examination.” Sayles, 49 S.W.3d at 279 (citing Van Arsdall,
475 U.S. at 678-79). However, “[t]he propriety, scope, manner and control of examination
of witnesses is within the trial court’s discretion and will not be interfered with in the absence
of an abuse of discretion.” State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992) (citing Edwards
v. State, 424 S.W.2d 783, 786 (Tenn. 1968); State v. Elliott, 703 S.W.2d 171, 176 (Tenn.
Crim. App. 1985)).

Tennessee Rule of Evidence 103 specifically discusses a trial court’s error regarding
the admission or exclusion of evidence. Rule 103(a)(2) states, in pertinent part:

Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, and

....

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance
of the evidence and the specific evidentiary basis supporting admission were
made known to the court by offer or were apparent from the context.

Tenn. R. Evid. 103(a)(2). This rule requires a party seeking admission of the evidence to
make an offer of proof unless the substance of the evidence and the evidentiary basis

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supporting the evidence’s admission is apparent under the circumstances. Id. The Tennessee
Supreme Court has routinely held that the failure to make an offer of proof following a trial
court’s exclusion of evidence results in waiver of the issue on appeal. State v. Sims, 45
S.W.3d 1, 15 (Tenn. 2001) (concluding that the failure to make an offer of proof regarding
excluded evidence results in a waiver of the issue); State v. Goad, 707 S.W.2d 846, 852-53
(Tenn. 1986) (holding that “[i]n order for an appellate court to review a record of excluded
evidence, it is fundamental that such evidence be placed in the record” and that when the
excluded evidence “consists of oral testimony, it is essential that a proper offer of proof be
made in order that the appellate court can determine whether or not exclusion was
reversible”).

Here, at the end of the State’s direct examination of Catron, defense counsel requested
a bench conference, wherein counsel and the court had the following exchange:

[Defense Counsel]: Your Honor, I would like to get [Catron] to
(indiscernible) the witness–

[The State]: I object to that, Your Honor. That’s not relevant.

The Court: What would the relevance of that be? He’s now been
served. He’s here. He’s testified. I mean, how is that
relevant?

[Defendant Counsel]: I mean, I think it goes to (indiscernible)–

The Court: Well[,] I don’t know that that’s true. I know that we
don’t have service on him and I issued a material witness
warrant and it was served on him. But, I mean, I don’t
know where he’s been.

[The State]: Neither does the State.

The Court: I mean, if you know that to be the case, then I guess
arguably it could be, but all I know is he is like many
other witnesses, he didn’t get served until this time, you
know.

[The State]: It’s a fishing expedition to impeach the witness.

[Defense Counsel]: Okay.

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 The record shows that Lewis failed to make an offer of proof regarding Catron’s
potential bias toward the prosecution. See Tenn. R. Evid 103(a)(3); Sims, 45 S.W.3d at 15;
Goad, 707 S.W.2d at 853. Because the substance of the evidence regarding Catron’s alleged
bias is not apparent from the record, we conclude that Lewis has waived this issue. See id.

III. Sentencing. Lewis argues that the trial court improperly considered Helen
Traylor’s victim impact statement as an enhancement factor and failed to consider any
mitigating factors, including the factor that he acted under strong provocation, prior to
imposing his sentence. See T.C.A. § 40-13-113(2) (2006). The State responds that Lewis
has waived the issue regarding the victim impact statement because he failed to
contemporaneously object to the admission of the statement. See Tenn. R. App. P. 36(a).
The State also argues that Lewis is not entitled to relief from his sentence because the trial
court imposed a sentence within the appropriate range of punishment for the offense and
placed the reasons, which were consistent with the purposes and principles of the sentencing
act, on the record. We agree with the State.

Pursuant to the 2005 amendments to the sentencing act, a trial court must consider the
following when determining a defendant’s specific sentence and the appropriate combination
of sentencing alternatives:

(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and
(7) Any statement the defendant wishes to make in the defendant's own behalf
about sentencing.

T.C.A. § 40-35-210(b) (2006). The defendant has the burden of showing the impropriety of
the sentence on appeal. Id. § 40-35-401(d) (2006), Sentencing Comm’n Comments.

Because of the broad discretion given to trial courts by the 2005 amendments to the
sentencing act, “sentences should be upheld so long as the statutory purposes and principles,
along with any applicable enhancement and mitigating factors, have been properly
addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Moreover, “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.

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“So long as there are other reasons consistent with the purposes and principles of sentencing,
as provided by statute, a sentence imposed by the trial court within the appropriate range
should be upheld.” Id. Therefore, this court reviews a trial court’s sentencing determinations
under “an abuse of discretion standard of review, granting a presumption of reasonableness
to within-range sentencing decisions that reflect a proper application of the purposes and
principles of our Sentencing Act.” Id. at 707. Because the record shows that the trial court
carefully considered the evidence, the enhancement and mitigating factors, and the purposes
and principles of sentencing prior to imposing a sentence of confinement, Lewis has failed
to establish that the trial court abused its discretion in sentencing him to thirty-five years in
confinement.

First, Lewis argues that the trial court improperly considered the victim impact
statement as an enhancement factor. Here, Lewis failed to contemporaneously object to the
victim impact statement submitted by the victim’s sister, Helen Traylor. We note that this
court is not required to grant relief when a party is “responsible for an error” or has “failed
to take whatever action was reasonably available to prevent or nullify the harmful effect of
any error.” See Tenn. R. App. P. 36(a). Moreover, a party typically waives review of the
trial court’s admission of evidence if that party fails to make a contemporaneous objection.
See State v. Reid, 213 S.W.3d 792, 847 (Tenn. 2006) (citations omitted); State v. Thornton,
10 S.W.3d 229, 234 (Tenn. Crim. App. 1999) (citing Tenn. R. App. P. 36(a)). Waiver
notwithstanding, we note that pursuant to Tennessee Code Annotated section 40-38-207 of
the Victim Impact Statement Act, any victim impact statement shall be considered as
evidence in determining whether mitigating and enhancement factors apply. In addition,
“[w]henever victim impact information contains relevant and reliable evidence relating to
enhancing or mitigating factors and/or any other sentencing consideration, the trial court
should consider it and determine what weight, if any, should be given to that evidence.”
State v. Ring, 56 S.W.3d 577, 583 (Tenn. Crim. App. 2001). Therefore, if the trial court used
the victim impact statement to determine whether the enhancement factors applied in this
case or for any other sentencing consideration, such use was proper. Accordingly, Lewis is
not entitled to relief on this issue.

Second, Lewis argues that the trial court erred in failing to consider any mitigating
factors prior to imposing his sentence. The transcript from the sentencing hearing shows that
defense counsel argued for the trial court’s application of the following mitigating factors:
that Lewis “acted under strong provocation[,]” that “[s]ubstantial grounds exist[ed] tending
to excuse or justify [his] criminal conduct, though failing to establish a defense[,]” and that
he showed remorse. See T.C.A. §§ 40-35-113(2), (3), (13) (2006). Although the record
shows that the trial court considered the requested mitigating factors, the court chose to apply
only the mitigating factor regarding remorse. Therefore, despite Lewis’s arguments to the
contrary, the record shows that he benefitted from the application of the mitigating factor

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regarding his remorse. Moreover, upon review, we conclude that the record does not support
the application of any mitigating factors other than the factor regarding Lewis’s remorse.

The trial court’s oral sentencing findings show that it thoroughly considered the
purposes and principles of the sentencing act before imposing Lewis’s sentence. The court
properly determined that Lewis was a Range II, multiple offender based on his extensive
criminal history. After applying the mitigating factor regarding Lewis’s remorse, the court
applied the enhancement factor regarding Lewis’s criminal history and gave some weight to
the enhancement factor regarding the victim’s vulnerability. It then sentenced Lewis to
thirty-five years, five years less than the maximum sentence in the range for the offense of
second degree murder. We conclude that the trial court did not abuse its discretion in
imposing a sentence of thirty-five years in Lewis’s case.

Because the trial court sentenced Lewis within the appropriate range, considered the
purposes and principles of the sentencing act, and considered the appropriate enhancement
and mitigating factors, we uphold Lewis’s sentence of thirty-five years. See Bise, 380
S.W.3d at 706-07. The trial court’s judgment is affirmed.

CONCLUSION

Upon review, the judgment of the trial court is affirmed.

______________________________
CAMILLE R. McMULLEN, JUDGE

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