# FILED
October 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710- CC-00455 ) Appellee, ) ) ) BEDFORD COUNTY VS. ) ) HON. CHARLES LEE KATHERINE I RENE WARREN , ) JUDGE ) Appe llant. ) (Direct Appeal -

Sentencing)

FOR THE APPELLANT : FOR THE APPELLEE : JULIE A. MAR TIN JOHN KNOX WALKUP P. O. Box 426 Attorney Generaland Reporter Knoxvill e, TN 37901-0426 LISA A. NAY LOR Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 MIKE M CCOWN Distri ct Attor ney General MICHAEL D. RANDLES Assistant Distri ct Attor ney 218 North Main Str

eet Shelbyvil le, TN 37160
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

On Janu ary 31, 1997, a Bedford County jury convict ed Appe llant, Kathe rin e Irene Warren, of second degree murder in the kill ing of her hu sband. Following
a se nte ncing hearing , the trial court sentence d Appellant to 2 0 years incarcerat ion as a Ra nge I stan dard off ende r. Appell ant appeals f rom her conviction and sentence, rai sing two issues: 1) whether the ev idence presented at tri al was suff icient to support t he jury’ s verdict , and 2) wheth er the trial co urt correc tly sentenc ed App ellant.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

The evidence pre sented at trial revealed that on March 19, 1996, officers responded to a “s hots-fi red” callon Cypress Street . Three offi cers approached the hous e, e ncou nte ri ng Ap pel lan t as she came out the back door . The officers apprehended Appellant who t old them that

she had shot her husba nd with a rifl e. The officer

s found the vi ctim, Charl es Warren, lyi ng in t he floor of the den unconscious, but ali ve. Offi cers located a bu ll et h olein a re cli ner near thevi cti m, and eventuall y recovered a .22 slug from t he back of the c hair. A .22 ca liber rifle
was recovered f rom the washroom, whi ch had a spent casi ng and 10 liverounds in it. Test imony reveal ed that the victi m died as he was being carr ied to the ambu lance.-3- In a statement made short ly after herarrest, Ap pellant rela ted the ev ents of the evening as foll ows:

Charles was sitting in his recliner when I c ame home from A A. He had b een d rinking . He go t a pho ne ca ll then he proceeded to tellme about Valeri e Elaine Jordan thathe had be en go ing with her 2 1⁄2 years. I aske d him forthe money to move out on. He r efused. We argued abou t 1 1⁄2 hours then I went to bed afte r I took

20 0 mil li gra ms of doxe pin and 2 milli grams of Klonopin. I hea rd him talking on the phon e, and I got ba ck up . I heard him call her name and I snapped. I asked him where th e gun was. He pointed to the laundry room, and sa i d it was n’t loaded. I pulled back the gu n to hit him w ith it, and it went off. I then dial ed 911.
Evidence was presented t hat the ri fle recov ered at the s cene was the weapon fr om which the slug recovered in t he chair had come. Tests further indicated thatthe muzzle of t he firearm was between 2 feet and 3 1⁄2 feet fr om the victim when it w as fired. Blo od tests o f t he defend ant reveal ed the presence of doxep in and nordo xepin in her blood. Addi tional tests reveal ed that the victi m had a blood alcohollevel of .15.
Appe llant’s daughter, Tammy Womack, testif ied that h er mother and the victim had separated i n May of 1994 because the vi ctim had a girl-friend, but that the pair resumed l iving together in August , 1995. After Appellant again moved ba ck in with her h usban d, she re lated to he r daugh ter that she knew th at th e victim stil l had a gir lfri end. She furt her testif ied that d uring a vi sit to her moth er in jail, her mother statedthat “[s]he was sorry , she knew what she di d was wrong, and she was ready to take her punishment. ” Ms. Womack also stated t hat her mother had told her

that the v ictim was hav ing an affair wit h a woman named Tamiko Coope, a nd that he ha d purchas ed a car for her. Appellant told Ms.-4-

Wom ack that sh e hadattemp ted to k ill herself s everal t imes because she was distressed ab out her husb and’s infidelity.

Edna Mabee, Appellan t’ s sister , testified that on March 18, 1996, Appe llant, while discussing her marital problems, stated, “if I killmy husband, so be it.”

The medi cal exa mi ner te stifi ed that Charl es Warren died as a resul t of bleeding f rom a bullet passing thr

ough his heart

and right l ung.
Appellant

testifi ed at trial, stating that sh e wasma rried to the vict im for almost ten years. She said that on May 10, 1994 she began to suspect that her husband was having an ext ra-marital affai r upon discovering porno graphi c movies and a dildo i n h is possess ion. She moved out of their hous e, having demanded and received $5, 000 from the vi ctim. After she moved out, thevictim confess ed that hehad been havi ng an affair wi th a ni neteen ye ar-ol d wo man , Tamika Coope. The victi m told Appell ant that he had paid for Ms. Coop e to have two abortions, but that he had wi shed for Ms. Coope to have the children and for Appellant

to help hi m raise them. The victi m also related that he had purchased
a c ar for Ms. Coope. Appellant later l earned of an aff air wit h a woman na me d Sue Wo od. App ellant c onfron ted Ms. Wood, who did not know that Charl es Warren was married. Af ter Appell ant confronted Ms. Wood, the vict im admitted to having an af

fair wi th Ms. Wood.
Appellant

testified that she mo ve d b ack in wit h her husband in Octo ber 1995, that they were tr ying to work t hrough the ir marital diff iculti es. She stated-5-

thather husband asked her f or one year i n which to get his life to gether. Appellant

said that the night

of the shooting, sh e retu rned ho me from an AA meeting to find her husband drin king. This up set her and the two bega n to have words. At som e poin t i n the argument, t he victi m showed Appellant pi ctures of hims elf at a New Y ear’s E ve par ty with M s. Vale rie Jord an. T he victim told Appellant

that he and Ms. Jordan had been having an af fair for 2 1⁄2 years. The victim also disclosed t hat he had not had sex with Appell ant in several months, because he had AIDS and was protect ing her. Appel lant went t o bed after taking her medicati on.

Two hours late r, Appell ant awoke to overhear her hus band say

thename “Valeri e” while on the phone. She also ov erheard him making plans for Ms. Jordan to bring her ch ild and come to his house on Sunday to meet his parents. Appellant

steppe d into the r

oom and s aid, “No you are not, ” or something to that effect. Appellant then asked he r husband where the gun was. He pointed toward the laundry r

oom. Appellant testifi ed at tri al that t he victi m told her thegun was unloaded and that she inte nded only t o u se the weap on to g et the vic tim’s attenti on. Appe ll an t got the gu n and pointed i t at her husb and. Mr. Warren got off the phone and began to stand up from where he was sitting in the rec liner. Appellant

testified that s he attem pted to poke the vi ctim with the gun and the gun went off. The vi ctim turned, took a coup le of steps, and fell . Appellant called 911.

Further testimony wa s presented at trial to indicate that Appe llant suffers f rom clini cal depression and auditory hal lucinations. Both Ms. Coope and Ms. Jordan testif ied, ver ifyi ng the sexual nature of t heir rel ationshi ps wit h the deceased.-6- I. S UFFICI ENCY OF THE EVI DENCE

A ppella nt challeng es the su fficiency of the evidenc e prese nted at trial to support the jury

verdict of murder in t he second degree. Specifically Appel lant allegesthat the S tate fa iled to present evidence suff icient to establ ish that Appel lant kno wingly committ ed this cr ime. When an appellant chal lenges the sufficiency

of the evide nce, this C ourt is oblige d to revi ew that chal lenge according to certain well-settled principles . A verdict of guilty b y the jur y, approved by the trial judg e, accred its the testi mony of the State’s wi tnesses and resolvesall confli cts in the testi mony in favor of the State. State v. Cazes , 875 S.W.2d 253, 25 9 (Ten n. 1994 ); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is or iginal ly cloaked with a pres umption ofinnocence , a jury verdictremoves this presumption and replaces it with one of guilt. State v. Tug gle , 639 S.W .2d 913, 914 (Tenn. 198 2). Hence, on appeal, the bu rd en o f proofre sts with Appell ant to demonstrate the ins uffici ency of the convicti ng evidence. Id. On ap peal, “the [S ]ta te is enti tled to t he strongest legiti mate view of the evid ence as we ll as all rea sona ble and legit imate inferences that may be drawn therefrom .” Id
. ( cit ing State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978) ). Where the suffici ency of the ev idence is contested on appea l, th e relevant question for the r

eviewing cour

t is wheth er any rat ional trie r of fact c ould have found the accused guilty of every element of the offens e beyond a
reaso nable doubt. Harris , 839 S.W.2d 54, 75; Jack son v. V irginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 27 89, 61 L.Ed .2d 560 (197 9). In conducti ng our evaluat ion of the convic

ting evi dence, thi s Court is pr eclud ed from reweighi ng or reconsideri ng the evidence. State v. Morgan , 92 9 S. W.2d 3 80, 383 (Ten n. C ri m.-7-

App. 1996); State v . Mathews , 805 S.W.2d 776, 779 (Tenn . Cri m. App. 19 90). Moreover, this Court

may not substi tute it s own inferences “for t hose drawn by the tri er offact from circu mstan tial evidenc e.” Id. at 779. Fina lly, the Tennessee Rules of Appellate Procedure, R ule 13(e) pr ovides, “

findings of guil t in cri minal
a ctionswheth er by th e trial co urt or jur y shall b e set a side if th e evid ence i s insuffi cientto support the fi ndings by the tri er of factbeyond a reaso nable d oubt.” See also State v . Mathews , 805 S.W.2d at 780.

In the matter sub judice , Appellant contests t he eviden ce pr esente d to prove the kno w ing element of second degree murder. Tennessee Code Annotated 39-11-106 defines “knowing” as:
“Knowing” refers t o a pers on who acts kno wingly with respect to the conduct or to ci rcumstan ce s surrounding the conduct when the pe rson is aware of the nat ure of the conduct or that t he circum stance s exist. A pe rson ac ts know ingly with respect to a r esult of the person’ s conduct when the pe rson is aware that the cond uct is re ason ably certain to c ause th e result.
Proof of a mens rea elem ent is a lmos t always circum stantia l. The only means the jury has

to determine a perpetrator’s state of mind is to examine the offend er’s actions for clues of w hat was in the m ind as the acts w ere performed. The State presen ted proof that Ap pellant had, on s eve ral occa sions, made statem ents about wishi ng her husband dead. The State furt her presented proof that after an argument, upon hearing her husba nd invite his lover to the marit

al home, Appellant t

ook a gun and shot her husband at point

blank range. Without more, such proof cer

tainly indicates that Appell ant knew the consequences ofher actions. The State also pr es ented proof that

two weeks after the shooti ng-8-

App ellant

told her dau ghter that “[s]he was s orry, sh e knew what she did wa s wrong, and she was ready to take her puni shment.” Appell ant argues that since proofwas p resen ted to th e jury tha t the victim told Appellant the gun was em pty thather action s were not knowingand the shooti ng was accidental . The weight and credibility of the wit nesses’ test imony are matter s entrustedto the j ury as the exclusive triers of fact. State v. She ffield , 676 S.W .2d 542 (Tenn . 1984); Byrge
v. State , 575 S.W.2d 292 (Tenn. Cri m. App. 1978). By its ver dict, t he jury r

efused to credit Appellant ’s self-servi ng testi mony that she tho ught the gun was not loaded . This issu e is withou t merit.

II.SENTENCING
Appellant

also claims tha t the trial court erred in se ntencing her to 20 years incarc eration, faili ng to consider several appl icable mit igation factors. When a defendantcomplains of hi s or her sente nce, we must conduct a de novo review with a presum ption of correctne ss. Tenn. C ode Ann . § 40-35-401 (d). The burden of showing that

the s ente nce is improper is upon the appeal ing party . Tenn. Code Ann. § 40-35-40 1( d) Se ntenc ing Co mm ission Com men ts. Th is presumption, however, i s conditi oned upon an affirmative showing in the record thatthe tri al court considered thesentencing pr incipl es and all the releva nt facts and circu mstan ces. State v. Ashby , 823 S.W .2d 166, 169 (Tenn. 199 1).

The Sentencing Reform Act of 1989 established specifi c procedures which must be follo wed in sentencing. These procedures, co dified at Tennessee Code Annotated § 40-35- 210, mandated the cour t’s consi deration of

the foll owing:1 In State v. Chance , thi s Court, i n reviewi ng Tennessee Code Annotated § 40- 35-210© held: [A]pply ing Appellant’s plai n language readi ng of the statute, a cl ass A felon who commits an offense where the trial cour t find s o nly enhancement factors o r both en ha nc eme nt an d m itigatin g fac tors a pplica ble may very wel l recei ve a shorter sentence than a felon committi ng a class A offens e invo lving no en hance men t or mitigatin g factors

. See Tenn. Code Ann. 40-3 5-201(c ),(d), and (e ). This wo uld produ ce an a bsurd re sult. W e pres ume that th e legisl ature did not inten d suc h an a bsu rdity in enac ting th is statute. See McC lella n 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 esu lt will be a voide d if the term s of th e sta tute a dm it of it by a reasonable construction.” Eps tein , 366 S.W.2d at 918. W ith consideration of the publ ic’s gro wing 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 t he minim um o f the sen tencing ra nge. See Tenn. Code Ann. 40-35-210(c)(retai ning the pr esumptive sentence f or class B,C, D, and E, felo nies at t he mini mum but increasing the presum ptive sente nc e for cla ss A felon ies to the m idpoin t of the rang e.) M oreo ver, it is diffic ult to c onceive that the legi slature would have inte nded a longer sentence for a class A felony with an enhancement fact or than for

a class A felo ny with an enhancement fact or. Thus, we concl ude that t he presump tive sentence for al l clas s A fe lo nies is the midpoint of the applicab le range. -9- (1) The e vidence , if any, re ceived at t he trialand the sentencing hearing ; (2) [t]he pres entenc e report; (3) [t]he principl es of senten cing and argum ents as to sentenci ng alternatives; (4) [t]he nat ure and characte risti cs of the criminal condu ct involved; (5 ) [e ]vi dence and infor mation offered by the parti es on the enhancementand mitigat ing factors in §§ 40-35-1 1 3 and 40-35-114; and (6) [a] ny statementthe defendant wis hes to ma ke in h is own beha lf about sentenci ng. Tenn. Code Ann. § 40-35-210.

This section f urther pr ovides that

the midpoint

within t he range is t he presum ptive sentence for a Class A felony . The court must beg in with the midpointin the rangeand enhance that sentence to appropri ately r eflect a ny statutory enhance ment factors th at the court finds to be presen t. After enhanci ng the sentence, the court must reduce the sentenceapprop riate 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 w eight to be given ea ch factor is left to th e-10-

discreti on of the trial judg e. State v. Shelton , 85 4 S. W.2d 1 16, 123 (Ten n. C ri m. App. 1992 ).

The Sentencing Refor m Act also provi des that t he trialcourt shal l place on the record eit her orall y or in wr iting what enhancement or miti gating fac tor s it found , if any. T hese finding s are c rucial fo r review of the tria l court’s decis io n upon appe al.

In th e matter s ub judice , the trial court faithf ully followed the guideli nes proscribed by the S enten cing R eform Act, the refore we m ust trea t his determinati on with a p resum ptio n of correctness. Both sides concur that the enhancement factor regarding useof a fi rearm in the perpetrati on of the offense clearly applie s in this case. Appell ant clai ms that the t rial cour t erred i n refusing to apply the fol lowing mitigati ng factors: Tennessee Code Annotated §§ 40-35- 113(8) that Appell ant suffer ed from a mental condit ion that s ignifi cantly r educed her culpability for theoffense, (11) that Appellant, although gui lty, committed the offense undersuch un usual circ umsta nces tha t it is unlikely a su stained in tent to violate the law moti vated her conduct , and (13) Appellant’s l ack of prior criminal history and her history of mental insta bili ty. Af ter a r eview of the record, wefind no proof to overcome the presumption of the trial court’ s correctness.

W hil e there was testimony that Appellant s uffered some mental an d emotional problems, t here was no proof i ntroduced showi ng that these pro ble ms somehow c ompelled Appell ant’s act ions, or r educed her abil ity to apprec iate wha t she was doing in shooti ng her husband. Thus mit igatingfactor (8 ) was p roper ly rejected by the trial judge. Further, Appellant had discussed ki lling her husband-11-

in the past and had expressed her d esire that he die. Under

the circ umstances the trialcourt properly rej ected the i dea contai ned in miti gating fac tor (11) that Appe llant’s actionswere not the pr oduct ofa sustai ned int ent to v iolate the l aw.
Finally, although t he abs ence o f a prior criminal record is not an enumerated mitigating factor, it ma y be con sidered as one . State v. Hicks , 868 S.W.2d 729 (Tenn. Crim. App . 1993). How ever, the we ight to b e ass igned to this factor remain s in the disc retion of the trial judge. Id
. In the present case the tri al court conc luded that Ap pellan t’s “rathe r unsta ble so cial his t ory” precl uded applicat ion of the lack of a crimin al reco rd in m itigation of App ellant’s sentence. Although we are unaware of any case or stat ute that pr ecludes use of

this factor in the face of

an unstable soci al history, gi ven the Appellant’ s record of alcohol ism , nine marriages, and psychiatr ic treatments, as wellas th e seriousness of the cri me, the trialjudge could pr operly assi gn litt le weight to the lack of a criminal record.
Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:-12-

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAY ES, J UDGE