FILED

October 28, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710-CC-00455

)

Appellee, )

)

) BEDFORD COUNTY

VS. )

) HON. CHARLES LEE

KATHERINE IRENE WARREN, ) JUDGE

)

Appellant. ) (Direct Appeal - Sentencing)

FOR THE APPELLANT: FOR THE APPELLEE:

JULIE A. MARTIN JOHN KNOX WALKUP

P. O. Box 426 Attorney General and Reporter

Knoxville, TN 37901-0426

LISA A. NAYLOR

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

MIKE MCCOWN

District Attorney General

MICHAEL D. RANDLES

Assistant District Attorney

218 North Main Street

Shelbyville, TN 37160

OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
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OPINION

On January 31, 1997, a Bedford County jury convicted Appellant, Katherine

Irene Warren, of second degree murder in the killing of her husband. Following

a sentencing hearing, the trial court sentenced Appellant to 20 years

incarceration as a Range I standard offender. Appellant appeals from her

conviction and sentence, raising two issues:

1) whether the evidence presented at trial was sufficient to support the

jury’s verdict, and

2) whether the trial court correctly sentenced Appellant.

After a review of the record, we affirm the judgment of the trial court.

FACTS

The evidence presented at trial revealed that on March 19, 1996, officers

responded to a “shots-fired” call on Cypress Street. Three officers approached

the house, encountering Appellant as she came out the back door. The officers

apprehended Appellant who told them that she had shot her husband with a rifle.

The officers found the victim, Charles Warren, lying in the floor of the den

unconscious, but alive. Officers located a bullet hole in a recliner near the victim,

and eventually recovered a .22 slug from the back of the chair. A .22 caliber rifle

was recovered from the washroom, which had a spent casing and 10 live rounds

in it. Testimony revealed that the victim died as he was being carried to the

ambulance. 
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In a statement made shortly after her arrest, Appellant related the events

of the evening as follows:

Charles was sitting in his recliner when I came

home from AA. He had been drinking. He got a phone call

then he proceeded to tell me about Valerie Elaine Jordan

that he had been going with her 2 1⁄2 years. I asked him

for the money to move out on. He refused. We argued

about 1 1⁄2 hours then I went to bed after I took 200

milligrams of doxepin and 2 milligrams of Klonopin. I heard

him talking on the phone, and I got back up. I heard him

call her name and I snapped. I asked him where the gun

was. He pointed to the laundry room, and said it wasn’t

loaded. I pulled back the gun to hit him with it, and it went

off. I then dialed 911.

Evidence was presented that the rifle recovered at the scene was the

weapon from which the slug recovered in the chair had come. Tests further

indicated that the muzzle of the firearm was between 2 feet and 3 1⁄2 feet from the

victim when it was fired. Blood tests of the defendant revealed the presence of

doxepin and nordoxepin in her blood. Additional tests revealed that the victim had

a blood alcohol level of .15.

Appellant’s daughter, Tammy Womack, testified that her mother and the

victim had separated in May of 1994 because the victim had a girl-friend, but that

the pair resumed living together in August, 1995. After Appellant again moved

back in with her husband, she related to her daughter that she knew that the

victim still had a girlfriend. She further testified that during a visit to her mother in

jail, her mother stated that “[s]he was sorry, she knew what she did was wrong,

and she was ready to take her punishment.” Ms. Womack also stated that her

mother had told her that the victim was having an affair with a woman named

Tamiko Coope, and that he had purchased a car for her. Appellant told Ms.
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Womack that she had attempted to kill herself several times because she was

distressed about her husband’s infidelity.

Edna Mabee, Appellant’s sister, testified that on March 18, 1996,

Appellant, while discussing her marital problems, stated, “if I kill my husband, so

be it.”

The medical examiner testified that Charles Warren died as a result of

bleeding from a bullet passing through his heart and right lung.

Appellant testified at trial, stating that she was married to the victim for

almost ten years. She said that on May 10, 1994 she began to suspect that her

husband was having an extra-marital affair upon discovering pornographic

movies and a dildo in his possession. She moved out of their house, having

demanded and received $5,000 from the victim. After she moved out, the victim

confessed that he had been having an affair with a nineteen year-old woman,

Tamika Coope. The victim told Appellant that he had paid for Ms. Coope to have

two abortions, but that he had wished for Ms. Coope to have the children and for

Appellant to help him raise them. The victim also related that he had purchased

a car for Ms. Coope. Appellant later learned of an affair with a woman named

Sue Wood. Appellant confronted Ms. Wood, who did not know that Charles

Warren was married. After Appellant confronted Ms. Wood, the victim admitted

to having an affair with Ms. Wood.

Appellant testified that she moved back in with her husband in October

1995, that they were trying to work through their marital difficulties. She stated
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that her husband asked her for one year in which to get his life together.

Appellant said that the night of the shooting, she returned home from an AA

meeting to find her husband drinking. This upset her and the two began to have

words. At som e point in the argument, the victim showed Appellant pictures of

himself at a New Year’s Eve party with Ms. Valerie Jordan. The victim told

Appellant that he and Ms. Jordan had been having an affair for 2 1⁄2 years. The

victim also disclosed that he had not had sex with Appellant in several months,

because he had AIDS and was protecting her. Appellant went to bed after taking

her medication.

Two hours later, Appellant awoke to overhear her husband say the name

“Valerie” while on the phone. She also overheard him making plans for Ms.

Jordan to bring her child and come to his house on Sunday to meet his parents.

Appellant stepped into the room and said, “No you are not,” or something to that

effect. Appellant then asked her husband where the gun was. He pointed toward

the laundry room. Appellant testified at trial that the victim told her the gun was

unloaded and that she intended only to use the weapon to get the victim’s

attention. Appellant got the gun and pointed it at her husband. Mr. Warren got

off the phone and began to stand up from where he was sitting in the recliner.

Appellant testified that she attempted to poke the victim with the gun and the gun

went off. The victim turned, took a couple of steps, and fell. Appellant called 911.

Further testimony was presented at trial to indicate that Appellant suffers

from clinical depression and auditory hallucinations. Both Ms. Coope and Ms.

Jordan testified, verifying the sexual nature of their relationships with the

deceased.
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I. SUFFICIENCY OF THE EVIDENCE

Appellant challenges the sufficiency of the evidence presented at trial to

support the jury verdict of murder in the second degree. Specifically Appellant

alleges that the State failed to present evidence sufficient to establish that

Appellant knowingly committed this crime. When an appellant challenges the

sufficiency of the evidence, this Court is obliged to review that challenge

according to certain well-settled principles. A verdict of guilty by the jury,

approved by the trial judge, accredits the testimony of the State’s witnesses and

resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875

S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).

Although an accused is originally cloaked with a presumption of innocence, a jury

verdict removes this presumption and replaces it with one of guilt. State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of

proof rests with Appellant to demonstrate the insufficiency of the convicting

evidence. Id. On appeal, “the [S]tate is entitled to the strongest legitimate view

of the evidence as well as all reasonable and legitimate inferences that may be

drawn therefrom.” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978)). Where the sufficiency of the evidence is contested on appeal, the

relevant question for the reviewing court is whether any rational trier of fact could

have found the accused guilty of every element of the offense beyond a

reasonable doubt. Harris, 839 S.W.2d 54, 75; Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting our evaluation

of the convicting evidence, this Court is precluded from reweighing or

reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.
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App. 1996); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

Moreover, this Court may not substitute its own inferences “for those drawn by

the trier of fact from circumstantial evidence.”Id. at 779. Finally, the Tennessee

Rules of Appellate Procedure, Rule 13(e) provides, “findings of guilt in criminal

actions whether by the trial court or jury shall be set aside if the evidence is

insufficient to support the findings by the trier of fact beyond a reasonable doubt.”

See also State v. Mathews, 805 S.W.2d at 780.

In the matter sub judice, Appellant contests the evidence presented to

prove the knowing element of second degree murder. Tennessee Code

Annotated 39-11-106 defines “knowing” as:

“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.

Proof of a mens rea element is almost always circumstantial. The only

means the jury has to determine a perpetrator’s state of mind is to examine the

offender’s actions for clues of what was in the m ind as the acts were performed.

The State presented proof that Appellant had, on several occasions, made

statements about wishing her husband dead. The State further presented proof

that after an argument, upon hearing her husband invite his lover to the marital

home, Appellant took a gun and shot her husband at point blank range. Without

more, such proof certainly indicates that Appellant knew the consequences of her

actions. The State also presented proof that two weeks after the shooting
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Appellant told her daughter that “[s]he was sorry, she knew what she did was

wrong, and she was ready to take her punishment.” Appellant argues that since

proof was presented to the jury that the victim told Appellant the gun was empty

that her actions were not knowing and the shooting was accidental. The weight

and credibility of the witnesses’ testimony are matters entrusted to the jury as the

exclusive triers of fact. State v. Sheffield, 676 S.W .2d 542 (Tenn. 1984); Byrge

v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978). By its verdict, the jury refused

to credit Appellant’s self-serving testimony that she thought the gun was not

loaded. This issue is without merit.

II. SENTENCING

Appellant also claims that the trial court erred in sentencing her to 20 years

incarceration, failing to consider several applicable mitigation factors. When a

defendant complains of his or her sentence, we must conduct a de novo review

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). The burden

of showing that the sentence is improper is upon the appealing party. Tenn.

Code Ann. § 40-35-401(d) Sentencing Commission Comments. This

presumption, however, is conditioned upon an affirmative showing in the record

that the trial court considered the sentencing principles and all the relevant facts

and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

The Sentencing Reform Act of 1989 established specific procedures which

must be followed in sentencing. These procedures, codified at Tennessee Code

Annotated § 40-35-210, mandated the court’s consideration of the following:
1

In State v. Chance, this Court, in reviewing Tennessee Code Annotated § 40-35-210© held:

[A]pplying Appellant’s plain language reading of the statute, a class

A felon who commits an offense where the trial court finds only

enhancement factors or both enhancement and m itigatin g fac tors a pplica ble

may very well receive a shorter sentence than a felon committing a class A

offense involving no en hance men t or mitigatin g factors . See Tenn. Code

Ann. 40-35-201(c ),(d), and (e ). This wo uld produ ce an a bsurd re sult. W e

presume that the legislature did not intend suc h an a bsurdity in enac ting th is

statute. See McC lellan v. Bd. O f Rege nts of Sta te, 921 S.W.2d 684, 489

(Tenn. 1996); Epstein v. State, 211 Tenn. 633, 366 S .W.2d 91 4, 918(1963).

Acc ordin gly, “su ch a r esult will be a voide d if the term s of th e statute a dm it

of it by a reasonable construction.” Eps tein, 366 S.W.2d at 918.

W ith consideration of the public’s growing concern over violent

crime s, defen dants c omm itting class A felonies s hould no t be entitled to a

presump tive sentence at the minim um o f the sen tencing ra nge. See Tenn.

Code Ann. 40-35-210(c)(retaining the presumptive sentence for class

B,C,D, and E, felonies at the minimum but increasing the presum ptive

sentence for cla ss A felon ies to the m idpoin t of the rang e.) M oreo ver, it is

difficult to conceive that the legislature would have intended a longer

sentence for a class A felony with an enhancement factor than for a class

A felony with an enhancement factor. Thus, we conclude that the

presump tive sentence for all class A fe lonies is the midpoint of the

applicab le range. 

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(1) The evidence, if any, received at the trial and the

sentencing hearing; (2) [t]he presentence report; (3) [t]he

principles of sentencing and arguments as to sentencing

alternatives; (4) [t]he nature and characteristics of the

criminal conduct involved; (5) [e]vidence and information

offered by the parties on the enhancement and mitigating

factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny

statement the defendant wishes to make in his own behalf

about sentencing.

Tenn. Code Ann. § 40-35-210.

This section further provides that the midpoint within the range is the

presumptive sentence for a Class A felony. The court must begin with the

midpoint in the range and enhance that sentence to appropriately reflect any

statutory enhancement factors that the court finds to be present. After enhancing

the sentence, the court must reduce the sentence appropriate to the weight of

any mitigating factors that the court finds. See State v. Chance, 952 S.W.2d 848

(Tenn. Crim. App. 1997).1

 The weight to be given each factor is left to the
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discretion of the trial judge. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim.

App. 1992).

The Sentencing Reform Act also provides that the trial court shall place on

the record either orally or in writing what enhancement or mitigating factors it

found, if any. These findings are crucial for review of the trial court’s decision

upon appeal.

In the matter sub judice, the trial court faithfully followed the guidelines

proscribed by the Sentencing Reform Act, therefore we must treat his

determination with a presum ption of correctness. Both sides concur that the

enhancement factor regarding use of a firearm in the perpetration of the offense

clearly applies in this case. Appellant claims that the trial court erred in refusing

to apply the following mitigating factors: Tennessee Code Annotated §§ 40-35-

113(8) that Appellant suffered from a mental condition that significantly reduced

her culpability for the offense, (11) that Appellant, although guilty, committed the

offense under such unusual circumstances that it is unlikely a sustained intent to

violate the law motivated her conduct, and (13) Appellant’s lack of prior criminal

history and her history of mental instability. After a review of the record, we find

no proof to overcome the presumption of the trial court’s correctness.

While there was testimony that Appellant suffered some mental and

emotional problems, there was no proof introduced showing that these problems

somehow compelled Appellant’s actions, or reduced her ability to appreciate what

she was doing in shooting her husband. Thus mitigating factor (8) was properly

rejected by the trial judge. Further, Appellant had discussed killing her husband
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in the past and had expressed her desire that he die. Under the circumstances

the trial court properly rejected the idea contained in mitigating factor (11) that

Appellant’s actions were not the product of a sustained intent to violate the law.

Finally, although the absence of a prior criminal record is not an

enumerated mitigating factor, it may be considered as one. State v. Hicks, 868

S.W.2d 729 (Tenn. Crim. App. 1993). However, the weight to be assigned to this

factor remains in the discretion of the trial judge. Id. In the present case the trial

court concluded that Appellant’s “rather unstable social history” precluded

application of the lack of a criminal record in mitigation of Appellant’s sentence.

Although we are unaware of any case or statute that precludes use of this factor

in the face of an unstable social history, given the Appellant’s record of

alcoholism, nine marriages, and psychiatric treatments, as well as the

seriousness of the crime, the trial judge could properly assign little weight to the

lack of a criminal record.

Accordingly, the judgment of the trial court is affirmed.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:
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___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

DAVID G. HAYES, JUDGE