### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs S eptem

ber 10, 200 2
STATE OF TENNESSEE v. CLEMMI E RHYAN
Appeal from the Criminal Court for Shelby County No. 99-08934 John P. Colton, Jr., Judge

No. W2001-03019-CCA-R3-CD - Filed January 27, 2003

A Shelby County

Criminal Court jury convicted the de fendant, Clemmie Rhyan, of second degree murder, a C la ss A fel on y, and the trial court se nt en ce d h im as a R an ge I, v io le nt of fe nd er to tw en tytwo y ears in the Department of Correction (DOC). The defendant appeals, claiming (1) that the evidence is insufficient to support his conviction; (2) that the trial court erred by refusing to instruct the jury on

self-defense; and (3) that his sentence is excessive. We affirm the judgment of the tr ial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which D AVID G

. H AY ES and J OE G. R ILEY , JJ., joined.

A C Wharton, Jr., District Public Defender; W. Mark Ward, Assistant District Public Defender (on appeal); and Gwe

ndoly n Rooks, As si s tant Distr ict Public D efende

r (at tri al), for

the appe llant, Clemmie Rhyan.

Paul G. Summers , Attorne y General and Repor

ter; Eliz abeth B. Ma

rney , Assistan

t Attorne y General ; William L. Gibbons, District Attorney Genera l; and Char

les W. Bell, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

This case relates to the defendant’s shooting a nd killing the victim, Kenneth Suiter. Sergeant Larry Colburn of the Memphis Police Department testified that at 6:44 p.m. on December 3, 1998, he was dispatched to the Metro Market Grocery Store at 1378 North Hollywood Street. He saw the victim lying on his back

in a grassy

area that was just south of the store’s parking lot. The area was littered with empty bottles and was separ ated from the parking lot by a concrete retaining

wall that
was about thir

ty in ches tall. The vic tim ha d been shot once in the chest and was dead. Serg eant Colburn saw an empty pac k of cigarettes on the ground next to the victim’s left hand, empty wine and beer bottles next to the victim’s r ight ar m, and an e

mpty whisky bottle under the victim’s rig ht-2-

knee. Sergeant

Colburn also saw a kitchenknife, partially c overed by tr ash, on the ground near the victim. He photographed the scen e, took measurements, and collected the knife, bottles, and cigar ettepack. On cross-examination, he said that he did not know if fingerprints were r ecovered from the items he collected or if someone moved the body before he arrived.

Lawrence Yancy te stified that in December 1998, he worked nights at a Targe

tstore. He

said that on December

3, he go t out of be d about 4:3 0 p.m. and walked to

the Metro

Market in

order to get a beer before

he went to work. He said that before he went into the store, he sat on the re taining wall outside the store for a few minutes. He said that he saw the defendant

and the victim walking and talking

togethe r and tha t the men d

id not appe ar to be a

rguing . He said

th at he cou ld tell the defendant and the victim had been drinking because they were staggering . He said he went into the store, bought a beer, and

went outsi de and sa

t on the re taining wall. He said that the victim also was sitting on the wall and that the defendant was standing in front of the victim. He said that he was about an arm’s length from the defendant and the victim and that they were arguing. He

said that the argument escalated and that the victim cursed the defendant . He sa id the victim told the defenda nt, “[You] can go on and pull out that rusty a ss knife. I’ll take it fro m you.” He said the defendant replied, “[You] ain’t going to take shit from me.” He said that the defendant sho t the victim with a handgun and that the victim fell backward into the grassy area. He said that he was afraid and that h

e ran aw ay . He said

that as he was runn ing, he heard th e victim sa y, “[Please] don’t shoot me again.”

Mr. Yancy

testifie d that he r

an to his stepdaughter’s house and told her what had ha ppened. He said that a

fter he returne d home, he

chang ed clothe s, collected his thoughts, and went to the cr ime scene to see if the victim was dead. He said the police were at the Metro Market and ha d covered the victi m’s body with a body bag. He said he did not tell the police what he had see n and we n t home. He said t

hat th e next day , the polic e contacted him an d he went to the polic e station. He said he gave a statement and picked the de fendant’s picture out of a photograph a rray.
Mr. Yanc y t estified that he had not been drinking when he saw the defendant shoot the victim. He acknowl edged that the r etaining wall was a popular place for people to g ather and drink. He said that a

lthough t he victim w as cursi ng at the defenda nt, he did not see anything in the victim’s hands and th e victim ne ver got off the retaining wa ll or made any g estures toward the defendant before the defendant

shot the victim. He acknowledged having a prior conviction for misdemeanor theft.

On cross-examination, Mr. Yancy testified that when he first arrived at the Metro Market and sat on the wall, someone named Big Daddy also was at the wall. He said that when the defendant shotthe victim, he and Big Daddy ran aw ay. He acknowledged that in his statement to police, he sai d that the defendant “just clicked due to being cur sed.” He denied telling the police that th e defendant said to the victim, “You ain’t got nothing, y ou ain’t going to take shit from me, trick. You ain’t got nothing but a rusty

ass kn ife. I’l l take the knife from y ou and kick your a ss with it.” Instead, he said the victim made those stateme nts to the defendant.-3-

Dr. Cynthia Gardne

r, the Assistant Medical Examiner for Shelby County , testified that the victim died fro m a gunshot wound to the ches t. The bullet penetrated thevictim’s heart, and he may have lived for a few minutes after the shooting. She ac knowledged that during that time, he may have tried to get up. She said the victim had an abrasion on his forehead that may have been

caused by the victim

falling. She said the abrasion also could have been c aused by the victim being struck in the head

with a blunt object. At the time of his death, the victim had a blood alcohol content (BAC) of .18 pe

rcent. Sh e said the gun use d to kill the

victi m was fired fro m more than two feet
aw ay. On cross -examinat ion, she sa

id that in or

der for the six foot, two hundredseven pound victim to have ha

d a BAC of

.18 perc ent, he ha

d to have c onsumed e

ight to te n drinks.

Tarlisha Carey, L awrence Yancy’ s stepdaughter, testified for the defense that she lived one block from the Metro Market a

nd that on D ecembe

r 3, 1998, Mr. Yanc y c ame to he r house a nd told her th at so me on e h ad be en sh ot . S he sa id th at ea rl ie r t ha t d ay, she and Mr. Yancy had been smoking crack and drinking beer in her home. On cross-examination, she acknowledged telling a pr osecutor that s he had been t aking d rugs on December 3 and did not remember what had ha pp en ed th at da y. She also acknowledged that she did not tell the prosecutor about Mr. Yancy drinking and smoking crack with her on December 3. She said, though, that the prosec utor never asked her about it. She said that at 11:30 p.m. on December 3, the police came to her house but that she was not home. She acknowl edged

talking to the defendant’s attorney about the case and having a prior c onviction for misdemeanor theft. A jury convicted the defendant of second deg ree murder.
I. SUFFICIENCY OF THE EVIDENCE

The defendant claims that the evidence is insufficient to support his conviction. He contends that, at m ost, he is guilty of voluntary manslaughter because the evidenc e shows that he and t h e victim were in a heated argument, that the victim was cursing him and had threa tened to take something

from him, a

nd that he “just clic ked.” Th e state argue s that the e

vidence is sufficie

nt to support the defendant’s second degree murder conviction. We agree with the state.

Our standard of review when the defenda nt questions the sufficiency of t he evid ence on appeal is “wheth

er, aft er viewin g the evidenc e in the light most favorable to the prosecution, any rational trier of

fact could have f

ound the e ssential e

lements of

the crime

bey ond a rea sonable doubt.” Jackson v. V

irginia , 443 U .S. 30 7, 319 , 99 S. Ct. 27 81, 27 89 (1 979) . Wedo not reweigh the evidenc e but pre sume that t he jury has reso lved all c onflicts in the testimony and drawn all
reasona ble inf e rences from the evidence in favor of the state. See State v. She ffield , 676 S.W.2d 542, 547 (Ten

n. 1984); Stat e v. Ca bbage , 571 S.W.2d 832 , 83 5 (Tenn. 1978). Questions about witness credibility were

resolved by the jury

. See Statev. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

A conviction for second degree murder r equires proof that the defendant unlawfully and knowing ly

killed another. See Tenn. Code Ann. §§ 39 -13-201, -210(a) (1). A pe rson act s knowing ly withrespect to a result of the person’s conduct when the pers on is aware that the c onduct is reasonably

certain to cause the result. Tenn. Code Ann. § 39-11-302(b)

.-4-

View ed in the light most favorable to the state, the evidence shows that the de fendant unlawfully and knowingly killed the victim. Mr. Yancy testified tha t the victim was sitting on the retaining wall and cursing the defendant. The victim made a comment about the defendant’s having
a rusty knife and state d that he was goingto take it away f rom him. However, Mr. Yancy , who was sitting an arm’s-l ength f rom the victim, did not see the victim make any g estures toward the defendant and did not

see the victim ge

t off the r etaining wall. We be

lieve tha t a rationa l jury could have found tha

t the def endant w as ang

ry withthe victim as a result of their arguing a nd that he shot the victim knowing that his conduct was reasonably certain to cause the victim’s death. We note that the trial court instructed the j ury as to voluntary manslaughter, but the jury believed that the defendant knowing ly k

illed the v ictim without adequate provocation. “Whether the acts constitute
a ‘knowing killing’ (second deg ree murder) or a killing due to ‘adequate p r ovocation’ (voluntary manslaughter) is a question for the jury.” Statev. Johnson , 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995). We conclude that the evidence is sufficient to support the conviction.
II. SELF- DEFENSE IN STRUCTION
Next, the defendant

claims that the trial court erred by refusing to instruct the juryon selfdefense. He claim s that a se lf-defe nse instr u ction was warranted because the jury could have inferred from the evidence that the victim possessed a knife and that the defendant was attempting to prevent the victim from robbing him. The state arg ues that the trial court was not required to give
a self-defense instruction because the evide nce shows that the defendant possessed the knife and that he could not h ave reas onabl y believe d that he was i n imm inent dange r of death or serious b odily injur y. We conclude that the trial court did not err by refusing to instruct the jury on self-defense.

In Tennessee, the law of self-defense is fundamental to a c ase when the evidence fairly ra ises it as an issue. See Mye

rs v. State , 18 5 Tenn. 264, 268, 206 S.W.2d 30, 32 (1947). To determine whether self-defense is fairly

raised by the pr

oof and must be instructed to the jury , “‘a co urt must, in effect, consider

the evide nce in the light most

favora ble to the defe

ndant, inc luding dr

awing a ll
rea sonable

inferences flowing from that evidenc e.’” State v. B ult , 989 S.W.2d 730, 73 3 (Tenn

. Crim. App. 1998), app. d en ied (Tenn . 1999 ) (quo ting State v. Shropshire , 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993)). A person is justified in using force aga inst another p erson when he or she reasona

bly believe s (1) tha

t death or serious bodily injury

is imminent and (2) that the force used is immediately nece ssary to protect against the other person’s use or attempted use of unlawful force. Tenn. Code Ann. § 39-11-611(a).

In this case, self-defense was not fairly ra ised by the evidenc e. Although a knife was recovered from the c

rime sce ne, the e vidence didnot reve al to whom it belong ed or if it was related to the shooting. In any

event, Mr. Yancy

testified that before the shooting, he did not see anything in the victim’s hands an d heard t he victim s ay

to the defendant, “[You] can go on and pull out that rusty ass knife.” Thus, if a knife was involv ed in

this case , the evid

ence ind icates th at the defendant , notthe victim, possessed it. Even assuming arguendo that the victim had a knife , Mr. Yancy testified that he did not see the victim make any gestures toward the defendant a nd that the defendant shotthe victim while the victim remained seated on the retaining wall. Ne i ther the s tate nor the-5-

defend an tpres ente d any

evidence reg ardi ng th

e vic tim’s attemptin g to r ob the defe ndan t. We conclude that the defendant was not entitled to a self-def ense instruction.
III. EXCESSIVE SENTENCE

Fi na ll y, the defe

ndant cla ims that his twenty -two-y

ear sen tence is excessive because the trial court misapplied enhancement factors and fail ed to cons ider app licable m itigatin g fact

ors. The state claims that the trial court properly sentenced

the defendant. We conclude th e d ef en da nt ’s tw en tytwo-year sentence is proper.

At the sentencing hearing, the then forty -eight-y ear-old defendant testified that he could read a little and had worked part-time before he wa s arrested. He acknowledg ed that he had lived with his mother most of his life and had p rior con victions. He said that at the time of the offense, he weighed one hundr

ed sixty pounds an d that the

victim weighed over two hundred pounds. He

said that the victim was a bully and that two to three hours before he shot the vi ctim, he a

nd the vic tim had gotten into a fig

ht. He said that just before the shooting, the victim “came at me ag ain” and that he shot the vi ctim in sel f-defe nse. He s aid that o ther peo ple witnesse d his first

fight wi th the vic tim butthat none of

them would testify. He said that at the time of the shooting, he did not

see Lawrenc e Yancy at the Metro Market and that Mr. Yancy lied at trial. He said that he was sorry f or what had happened and that he was taking medication in jail. He said that he, the victim, and the victim’s brother had goneto school together and that he had dreams every

night. On cross-examination, the defendant acknowledged that he had a ser ious drinking problem. He also acknowledged that he had a prior conviction for robbery but said he was framed for that crime.

Bert ha Johnson, the defendant’s sister, acknowledged that the defe ndant lived with h i s mother and that “the family kind of pickedup and helped him a long the way .” She sa

id that since the shooting , her brother had chang ed. Sh e said

the defendant was sad, remorseful, and ha d been
on a suicide watch in jail. She said he was on medication for depre ssion and was sorry f or what had happened. According to the presentence report, the defenda nt graduated from high school and received
a certificate in furniture refinishing. The report shows that hehas two adult children and has worked
as a mechanic and a tree cutter since 1983. He stated that his physical a nd mental health were poor and that he took

medication for

depression, anxiety, and pain. I n the report, the defendant said that he started d

rinking as a tee nager and continued to dr

ink until he

was inca rcera ted in 1998. He said that he had not used drugs and that he had not participated in any alcohol or drug treat

men t progra ms. The rep ort reve als th at the defendant was convicted of armed r obbery in 1981 and c ar theft in 1975. He also has prior convicti ons for disorderly c onduct, possession of a weapon, and driving under the influence (DUI ).

The defe ndant ar gued that the trial court should apply the following mitigating factors, as listed in Te

nn. Code A

nn. § 40-3 5-113:1 The legislature ’s 200 2 am end men t to Tenn. Code Ann. § 40-35- 114 added as the new en hance ment factor (1)

that t he “offense was an ac t of terro rism” b ut chan ged the existing enhan cem ent facto rs only in inc reasing their designating number by one. Thus, f ormer enhancem ent facto r (1) is now enh ancemen t f actor (2), fac tor ( 10) is now factor (11), and factor ( 16) is now factor (17).
-6-

(2) The d efenda nt acted under str ong pro vocation ; (3) Substantial grounds exist tending to e xcuse or justify the defe ndan t’s criminal conduct, though failing to establish a defense ; [and] . . .
(11) The defendant, although guilty of the crime, commi tted the offense under such unusual circumstances that it is unlikely that a sustaine d intent to v

iolate the law motivated the criminal conduct[.]

The state argued that no mitigating fa ctors applied and that the trial court should apply enhancement factor (1), tha t the def endant ha s a

previous history of cr

iminal convictions or

behavior in addition to those necessary

to establish the range; factor (10), that h e had n o hesi tati on abo ut com mitt ing a crime when the risk to human life was high; and factor (16) , that he committed the crime under circumstances in which the potential for bodily injury to the victim was great. SeeTenn. Code Ann. § 40-35-114(1), (10), (16) (Supp. 2001) (amended 2002)

. 1

The tria l court ru led as fo llows:

In this particul ar case we have a death being involved where the [victim] died in this case. And taking into consid eration the victim impact statemen t, which the cour

t has cons idered a

nd read b y th

is victim’s family, the prese

ntence report, the prior record of defenda nt, statemen ts of counsel, the mitigating factors filed by defendant and the enhanc ing factors file d by the state , the court finds that the defendant should be s entenced and must b e se ntenc ed acco rding to the law mid-ra nge an d finds en hancing factor s to allow t

he court to sen tence this defe

ndant to 22

ye ars, ra nge I , Tennes see Dep artme n t of Corre ctions. Appellat e review of sentenci ng is de novo on the record with a presumption that the trial
cour t’s determinations are correct. Tenn. Code Ann. § 40- 35-401(d). As the Sen tencin g Commission Comments to this section note, the bu rden is no w on the defendant to show that the sentence is imprope

r. This means that if the trial court followed the statutory sentencing procedure, made findings of fact that are adequa tely supported in the rec ord, a nd ga ve due consideration and proper weight to the factors and principles that are relevant

to sentencing under the 1989 Sentencing Act, we may not disturb the sentenc e even if a different result were preferred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).-7-

Howe ver, “the presumpt ion of cor

rectne ss which a

ccompan ies the tr ial cour t’s actio n is conditioned upon the affirmative showing in the record that the tria l court considered

the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the pur pose of meaningful appellate review , the trial court must place on the record its reasons for ar riving at the final sentencing decision, i dentif y the mitigating

and enhancement factors found, sta

te the specific fa

cts s upporting each enhancement fac t or found, and articulate how the mitigating and e nhancement fac tors have be en evalu ated and balanced in deter

mining the sentence

. T.C.A. § 40-35-210(f) (1990).

State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994)

. The sentenc e to be imposed by the trial court is pre sumptively the midpoint in the range f or a Class A fe

lony unless there are enhancement factors pre sent. Tenn. Code Ann. § 40-35-210(c). Pr oc ed ur al ly, the trial court is to increase the sentence within the range based upon the existence of enhancement

factors and, then, reduce the sentenc e as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d)-(e). The weig ht to be afforded an existing factor is left to the trial court’s discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act and its finding s are ad

equatel y s upported by the record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Cm

ts.; State v. Mo ss , 727 S.W.2d 229, 237 (Tenn. 1986); see Ashby , 823 S.W.2d at 169. In this case, the trial c ourt failed to state at the sentencing hearing which enhancement and mitigating factors it found applicable. At the motion for new trial hearing, the trial court stated that it had applied enhancement factor (1) because the def endant had been

convicted of armed robbery and had been

“in trouble over a period of time.” As to factors (10) and (16), the trial court did not state at either hearing any

specific facts that supported their application. In addition, the trial court didnot indica

te the wei ght given to the three factors. We be lieve this does not satisfy the require ments of § 40-35-210(f). Therefore, w e review the defendant’s sentence de novo without a presumpt ion of cor rectne ss.
In conducting our de novo review, we must consider (1) the evidence, if any , received at the trial and sentencing hearing, ( 2) the presentence report, (3) the pr inciples of sentenci ng an d arguments as to sentencing alternatives, (4) the nature and characteristics of the cr iminal conduct, (5) any mitigating

or statutory enhanc ement factors, (6) any statement that

the defendant made on his own behalf, and (7) the potential for rehabilitation or trea tment. Tenn. Code Ann. §§ 40-35-102, -103, -21 0; see Ashby , 823 S.W.2d a t 168; Moss , 727 S.W.2d at 236-37.

The defendant claims that the trial court erroneously a

pplied enhancement factors (10), that he had no he sitation a

bout commit

ting a c rime whe n the risk to human life was high, and (16), that the circumstances of the offense pre sente d gr eat pote ntial for bodily injury to the vic tim, to his sentence because those factors are inher ent in second degree murder. In addition, he contends that the provocation in this case was sufficient to warrant apply

ing mitigating factors (2), (3), and (11).-8-

The state ag

rees tha t the tria l court mis appli ed enhan cement f actors ( 10) and ( 16). How ever, it contends that the d

efenda nt’s twen ty- two-y ear sen tence is just if

ied beca use in add

ition to enhancement

factor (1), that thedefendant has a previous history of

criminal convictions, factor (9), that the defendant employ ed a firearm during the commission of the offe nse, also applies.

As a Range

I off ender c onvicted

of a ClassA felony, the de fendant’s presumptive sentence is twenty-y

ears. See Tenn. Code Ann. §§ 40-35-11 2(a)(1 ), -210( c). The defenda nt does not

contest the trial court’s application of enhancement factor (1). Moreover, we agree with the state that factor (9) is applica

ble beca use ther e is no que stion that t

he defe ndant com

mitted the crime witha firea

rm. In light of these two enhancement factors, we bel iev e th at a twe nt y-tw o-ye ar s ent enc e is pro per . In addition, we belie

ve that if the defendant is entitled to any mitigation based upon his being provoked
or the circumstances of the crime, it would not reduce the de fendant’s sentence in thi s cas e. We affirm the defendant’s twenty -two-yea r sentence.
Based upon the foregoing and

the record

as a whol e, we af

firm the j udgmen

t of the tr ial cour t.

___________________________________ JOSEPH M. TIPTON, JUDGE