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

uly 10, 2001

STATE OF TENNESSEE v. WYGENZO COBURN

Direct Appeal from the Criminal Court for Shelby County

No. 99-07634 W. Fred Axley, Judge

No. W2000-01550-CCA-R3-CD - Filed August 29, 2001

The defendant was convicted of voluntary manslaughter, a Class C felony, and sentenced as a Range I, standard offend

er to four yea rs, si x mon ths i n the c ounty w orkho use. In this appeal as of right, he raises the following issues: (1) whether the evidence was sufficient to support his conviction; (2) whether the trial court er

red in failing to

include “moral c

ertainty” language in

its reasonable doubt instruction to the jury; and (3) whether the trial court erred

in its application of enhancement factor (10). Based upon a careful review, we affirm the judgment of the tria l court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN , J., delive red the opi nion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined.

Marvin E. Ballin, Memphis, Tennessee, for the appellant, Wygenzo Coburn.

Paul G. Summers, Attorney Gene ral and Re

porter; Kim R. Help

er, Assistant Attor

ney Gener

al; William L. Gibbons, Dis trict Attorney

General; and Cha

rles W. Bell, Assist

ant D istrict Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS The defendant, Wygenzo Coburn, was charged with one count of second degree murder for the shooting death

of John Wesley James, Jr. The proof at trial showed that the defendant shot the victim in the head in

the early morning hours of October 7, 1998, causing the victim to suffer severe brain injury leading to a comatose state. The victim died in the hospital approximately two months later as a result of this gunshot wound.

Jerome Jones, an eye

witness to the shooting, testified that the victim was his cousin, and that they had lived together in the two-bedroom Memphis apartment in which the victim was shot. At about 1:15 a.m. on O ctober 7, 1998, he and the victim were each in their own rooms when the1 At other po ints during his testimon y, Jones re ferred to th is t ool as a “hatchet.” Photographs in the record

reveal a short-ha

ndled inst

rument contai

ning a wedge-shaped hammer-type head at one end, wi th a hatche

t, ins tead of a claw, at the other end

.
-2- defendant’s mother, Joyce Turner, a neighbor, came to the apartment searching for cigarette papers and a condom. Jones let her in. He said that she was quite loud, and that it was obvious that she had been drinking. When the victim requested that she be quiet because his two children were try ing to sleep, Turner asked him if he had a condom. According to Jones, the victim

told Turner that he

did nothave any, and then added, “You out here selling your ass, you buy your own

damn condoms.” Turner responded by telling the victim to “kiss her ass.” Jones said that Turner kept repeating, over and over, “Kiss my

ass, kiss my ass.”

An argument ens

ued, which led to th

e victim retrieving his roofing hammer 1 from the kitchen, chasing Turner out of the apartment, and locking the apartment door. From outside the locked d oor, Turner continued “hollerin g” through the door for the victim to “kiss her ass.” T

he victim struck the locked door once with his hammer, and then went back int

o his bedroom and closed the door.

After going back into

his own bedroom,

Jones could hear Turner knocking on the door of her sister’s nearby apartment, “try ing to get in.” About three or four minut e s later, he heard her knocking on the back door of his apartment. He opened the door, and she came back inside. As she didso, Jones noticed the defendant standing outside on the sidewalk with a nine-millimeter pistol in his hand. Jones said th at he told the defendant that

he was not going to let anyone hit his mother withthe hammer. At that time, the defendant ap peared to be “cool.” Jones said that “everybody knew everybody,” a

nd that he, the victim, and Turner were “all friends.”

In the m eantime, however, Jones could hear Turner back inside the apartment telling the victim to “kiss her

ass, kiss her ass, kiss her ass again.” Turner then came running back out of the apartment,followed by

the victim, who once again had his roofing h

ammer. Jones said

that as the victim chased Turner out of the apartment, he slipped and fell in the mud in front of the defe

ndant. The defendant pointed his gun at the victim and told him not to hit his mother with the hammer. The victim answered that he was not going to hit the defendant’s mot her, an d walked back inside the apartment,carrying the hammer down at his side. Turner, Jones said, was “just sta

nding there, jus

t talking crazy,” continuing to tell the victim to “kiss her ass,” and saying, “That mother fucker g oing to hit me with that hammer.”

Jones testified that the defendant followed the victi

m to the apartment door, standing on the porch and pointing his gun where the victim was standing inside the kitchen, as he once again t old him not to hit his mother with the hammer. The victim told the defendant to t

ell his mother to quit coming into his apartment telling him to “kiss her ass.” According to Jones’s testimony, at a bout that point, Turner said

, “If y ou don’t shoot him, I

will, I will, I

will, I will.” T

he victim then said t

o the defendant, “Okay, man, I’m thr ough wit h it. I’ll stay–I’m stay

ing here.” Next, the defendant backed up about two steps, and the gun went off. The bullet went through the wall beside the open doorway, striking the victim in the head as he stood inside the kitchen.2 The parties stipul ated that the vict im was drug- and al

coh ol-free when he was admitt ed to the hos

pital f or treatment

of his gunshot

wound.

-3- Jones said that the victim had notmade any threatening gestures towards e ither the defendant

or his mother

after falling in the mud, that he had never attempted to hit Turner with the hammer, and that his last

words before the defendant fired the gun were that he was “through with it.” Jones said that he had not been aware, at first, that the victim had been shot, and that he did not believe that the defendant had realized it either. He later admitted, however, that he could not have known what

was in the defendant’s mind when he fired the shot. He said that the defendant had told him several days after the shooting that he had not meant for the gun to fire. Jones testified that the defendant and his mother had both

been drinking e

arlier in the afternoon and evening before the shooting, but that neither he nor the victim had had anything to drink. 2

Officer Jeffrey W. Jordan of the Memphis Police Department was the first police offi

cer to respond to the scene of the shooting. He testified that when he arrived at the scene he saw the victim, with an apparent

bullet wound to the s

ide of his head, lying in a pool of blood just inside the doorway of the apartment. Two small children, whose ages he estimated at between two and three, were standing beside the victim.

Dr. O’Brian Cleary Smith, the Shelby County Medica l Examiner, w ho performed the autopsy

on the victim’s body, stated that the victim died as a result of a gunshot w ound to his head which resulted in severe brain injury, causing a comatose state. The severe brain inj ury and com atose state led to the eventual development of bronchial pneumonia that ultimately caused his death.

The twenty-five-yea

r-old defendant testified that he was at his aunt’s apartment, next door to the victim’s apartment, at about 1:00 a.m. on October 7, 1998, when his mother came in drunk. After an argument about her being out so late, he told her to go home to his little sister, and she left. He next saw her when she “came f rom n ext door banging on [his] aunt’s door real hard like somebody

was there.” When he opened the door, she told him that someone was trying to hit her i n the head wit

h a hammer. He immediately grabbed his gun and ac companied her out of the apartment. As he was tryin g to find out who wa

s after her, Jones

came out of his apa

rtment. His mother, he said, was “in on e ear yap ping,” while Jones

was in the other e

ar saying that it was “bull shit,” so that he was unab

le to understand what either one was saying. About two minutes later, the door to Jones’s apartment came “flying op

en,” and the vict

im“came storming out the door with the hatchet,” going “straight toward” the defendant’s mother.

The defendant said that the victim slipped and fell into h im, swinging at his arm with the hatchet as he fell. As th

e defendant helped him up, the victim drew back again with his hatchet aimed at the defendant’s mother. The defendant brought his gun out and stepped back, telling the victim that if he hit his mother with

the hatchet, he w

ould shoot him. The vi

ctim said to his

mother, “Bit ch, I’m going to kill you, whore, I’m going to fuck you up,” and backed into the dark ho use , where the defendant could not see him. At about that time, the defendant said, his mother tapped him on the shoulder, causing him to jump and the gun to go off. The defendant testified that he was-4-

notat first aware that the victim had been shot. He said that after the gun went off he turned and started to walk back toward his aunt’s house. As h e was wal kin g awa y, he heard the victim coming toward the door. The victim dropped his hatchet, grabbed his head, and fell.

The defendant testified

that he had been afraid for his mother’s life.

He said that he ha

d only intended to scare the victim into leaving his mother alone, and had never intended to shoot him. He claimed that the shooting had been an accident. He admitted, however, that he had fled the area after the shooting, hiding out on “the streets and alleys and stuff,” before turning himself in to

the police on October 13.

The State presented the rebuttal testimony of Joyce Turner , who deniedthat she had gone to get her son from her sister’s apartment. She said that the defendant had been outside on the

sidewalk when the victim chased her out of Jones’s apartment, swinging the hatchet at her. The defendant had pulled her to the side, and the victim had run into the defendant. After falling into the defendant’s
arms, the victim had gone back into the apartment, where she could see him standing behind the door facing. She had been talking to the defendant when the g un fired. Turn er said that she had been afraid for her life bec ause the victim was swinging the hatchet at her. She thought that if the defendant had not pulled her out of the way, the victim would have h

it her, and believed that her son had been trying

to protect her wh

en he shot the victi

m. She admitted, how

ever, that in

her original statement to police she had never mentioned the victim’s having swung the hatchet at her.

The jury found

the defendant guilty of voluntary ma nslaughter, and the trial court sentenced him as a standar d, Range I offender to four yea

rs, six months in the cou

nty workhouse. Following the denial of his mo

tion for a new tria

l, the defendant f

iled a timely

appeal to this cour

t.

ANALYSIS

I. Sufficiency of the Evidence

The defendant first contends that the evi dence was insufficient to establish beyond a reasonable

doubt thathe co mmi tte d th e off ens e of v olu nta ry ma nsl augh ter . Sp eci fic all y, he argues that the State failed to establis

h that he committed a knowing killing of the victim. He asserts that the evidence shows only that he fired a weapon, “not that he knew that the result of

firing the weapon would be the killing of the [victim].”

When the sufficiency of

the convicting evidence

is challenged, the relevant question of the reviewing court is “whether, after viewing the evide nce in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable

doubt.” Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). See also State v. Evans , 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson
, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. App. P. 13( e) (“Findings

of guilt in criminal actions whether by the trial court or jury shall be set aside

if the evidence i

s insufficient to support the findings by the trier of fact of guilt bey ond a reasonable doub t.”). All questions-5-

involving the credibility of witnesses, the weight and value to be given the evide nce, and all factual issues are resolved by the trier of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987)

. “A guilty verdict by the jury , approved by the trial

ju dge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace
, 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of inno

cence with which a defendant is ini

tially cloak

ed and replace

s it with one of guil

t, so that on appeal,

a convicted defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

Voluntary

manslaughter is defined in Tennessee Code Annotated Secti on 39-13-211(a) as “the intentional or knowing killing of another in a state of passion produced

by adequat

e provocation sufficient to lead a reasona

ble person to act i

n an irrational manner.” “‘Intentional’ refers to a person who acts intentionally with respect to the nature of the conduct or to a result of the co

nduct when it is the person’s conscious objective or desire to engage in the condu ct or cause the result.” Tenn. Code Ann. § 39-11-106(18) (1997). “A per son acts knowingly with respect to a result of the per son’s conduct when the person is aware that the conduct is reasonably c ertain to caus e th e result[.]” Tenn. Code Ann. § 39-11-106(20) (1997).

Viewed in the ligh t most favorab le to the State, the evidence in this case showed the following: After witnessing the victim chase his mother from the apartment with a roofing hammer, the defendant pointed a loaded nine-millimeter handgun at the victim and threatened to shoot him. Carrying the hammer i n a nonthreatening position down at his side, the victim retreated to the kitchen of his apartment, with the defendant following to the porch and pointing his gun i n t he victim’s direction as he continued to threaten him. Th e defendant’s mo

ther urged the

defendant to shoot the victim even though the victim said that he was finished arguing with the d ef endant’s mother. The d efendant then fired his weapon through the wall of the apartment beside the open doo rway, striking the victim, who was standing behind the door frame, in the head and ultimate ly causing his death. From this evidence, a rational trier of fa ct could have concluded that the defendant shot the victim either intentionally, i.e.
, with the conscious desire to cause the result, or kno win gly, i.e. , with the awaren ess that his conduct wa

s reasonably

certain to cause

the result. By convicting him of voluntary manslaughter, the jury obviously concluded that the defendant was provoked by the

victim’s treatmen

t of his mother, but th

at his actions went

beyond those

necessary to defend his mother. The evidence at trial was more than sufficient to suppo rt the defenda nt’s conviction of volun

tary mansla

ughter. This issu

e, therefore, i

s without merit.

II. Reasonable Doubt Instruction

The defendant next contends that the trial court erre

d in its reasonable

doubt instruction to the jury. I n particular, he

argues that the

court’s failure

to issue the standard pattern jury instruction containing “moral certainty” language lowere d the standard of proof by

which the State had to prove him guilty of the offense, depriving him of his rights under t he Fifth, Sixt h, and Fourteen

th Amendments

to the United States Constitution. The State res ponds by citin g a number of this court’s recent opinions that hold that Ten ness ee Pattern Jury Instruction 2. 03(a), the reas onable-6-

doubtinstruction utilized b y the trial c

ourt in this case , is not uncon stitutionally deficient for its failure to include “moral certainty” languag e.

The defendant asked that the trial court instruct the jury on reasonable doubt by use of T.P.I.- Crim. 2.03, which contains language that the jur y mus t fi nd t he d efen dan t gui lty t o a m oral cert ain ty. The trial court refused the request, opting instead to use T.P.I.-Crim. 2.03(a), which provides as follows:

A reasonable doub t is a doubt based upon reasonand common sense after careful and impartial consideration of all the evidence

in this case.

It is not necessary that the defendant’s guilt be proved bey ond all possible d oubt, as ab solute cert ainty of gu ilt is not demanded by the law to convict of any criminal charge.

A reasonable doubt

is just that–a doubt that is reasonable after an examination of all the facts of this case.

If you find that the state has not proven every element of the offens e beyond a reasonable doubt, then y ou should find the defendant not guilty.

The defendant c

omplains that this

instruction fails to

adequately

define the meani

ng of reasonab

le doubt in the context of

a criminal trial, allowing thejury to convict a defendant on less proof than that required by the “moral certainty ” language of T.P.I.-Crim. 2.03.

We have previously rejected similar challenges to the use of T.P.I.-Crim. 2.03(a). See
, e.g. , Statev. Ronald D. Correl

l , No. 03C01 -9801-CC-

00318, 199

9 WL 812454, at * 8 (Tenn. Crim. App. Oct. 8, 1999), perm. to appeal denied (Tenn. April 24, 2 000) (holding tha

t T.P.I.-Crim. 2 .03(a) is consistent withprinciples of due process); State v. Tony Fason , No. 02C01-9711-CR-00431, 1999 WL 588150, at *4 (Tenn. Crim. A pp. Aug. 6, 1999), perm

. to appeal denied (Tenn. Feb. 7, 2000) (“‘Moral certainty ’ is not required lang uage in a jury

instruction.”); State v. Roscoe L. Graham , No. 02C01-9507-CR-00189, 1999 WL 225853, at *12 (Tenn. Crim. App. April 20, 1999) (holding that reasonable

doubtinstruction omitting language of moral certainty is adequate ) . In State v. Melvin Edward Henning , No. 02CO1-9703-CC-00126, 1997 WL 661455, at *9 (Tenn. Crim. App. Oct. 24, 1997) (footnote and citations omitted), we rejected a challenge that T.P.I. Crim. 2.03 (a) wa s constitutionally deficient because it did not contain “moral certainty ” language:

Tennesse e Pattern Instruction 2.0 3(a) tracks virtually identical lang uage of p att ern r easo nab le d oub t in str uct ion s ap pro ved by a majority of the federal circuits. Moreover, the questioned language “based upon reason and c

ommon sense” and “

absolute certainty is not-7- requ ired” has repeatedly been uph eld as passing constitutional muster.

We do not find that the i nst r uction taken separately renders the reasonable doub

t instr uc tion constitutionall

y deficien

t. Add iti ona lly, considering this language in

the context of the full charge, we findno reasonable likelihood that the jury understood the instruction to permit convictio n after any

thing but a

process of careful deliberation or upon less than proof beyond a reasonable doubt. This issue is without meri

t.

We conclude that the

trial court’s us e of T.P.I.-Crim. 2.03(a) in this case adequately c onveyed the meaning of reasonable doubt to the jury, and did not lower the standard of proof by which the Statehad to prove the defendant guilty of the elements of the offense . This issue, therefo re, is without merit.

III. Enhancement Factor (10)

Fin all y, the defendant contends that the trial court erred in applying e nhancement

factor (10) to enhance his sentence. Tenn. Code Ann. § 40-35-114(10). He argues that the trial court’s use of this enhancement fa

ctor was improper

because a high risk to human life was an essential element of his crime of voluntary manslaughter. The State points out that enhancement factor (10) has been found to be appropriate in cases of voluntary manslaughter whe n individuals other

than the victim

were placed at risk by

the defendant’s

actions, and asse

rts that it was appr

opriately a

pplied in this

case based on evidence that other individuals, including Jerome Jones and the defendant’s mother, Joyce Turner, were present when the defendant br

andished his loade

d weapon and fire

d it into the apartment.

The defendant, as the party chal l enging the sentence imposed by the trial court, has the burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991) . When a defenda nt challenges the length and ma nner of service

of a sentence, it

is the duty of this court to conduct a de

novo review on the re

cord with a presumption that “the determinations made by the court from which the appeal is taken are

correct.” Ten

n. Code Ann. § 40-35 -401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” Ashby
, 823 S.W.2d at 169. The weight to be afforded an enh ancement

or a mitigating

factor is left to th

e trial court’s di

scretion as long

as th e trial cour t

com plies with the purposes and principles of the 1989 Sentencing Act, and its fi ndings ar e adequately

supported by the record. Tenn. Code Ann. § 40-35-210 (1997), Sentencing Commission Cmts.; State v. Moss , 727 S.W.2d 229, 236 (Tenn. 1986).

In t his case, the trial court found two enhancement factors applicable: (1) the defendan t possessed or employed a firearm, explosive device or other deadly weapon during the commission-8-

of the offense; and (2) the defen dant had no hesitation a bout committing a c

rime when the risk

to human l ife was high. Tenn Code Ann. § 40-35-114(9) and (10) (1997). The court found no applicable

mitigating factors. As a Range I, standard offe n der convicted of a Class C felony, the defendant was subject to a sentence ranging from three to six

years. See Tenn. Code Ann. § 40-35- 112(a)(3) (1997). Based o n the prese

nce of the enhancement factors, and the absence of any mitigating factors, the tria l court enhance

d the defendant’ s sente nce fr om the minimum of three years to four years, six months, and ordered that he serve his time in the county workhouse.

The defendant challenges only the application of enhancement

factor (10), ar

guing that it is inherent in the offense of v olun tary manslaughter. The applicability of a particular enhancement factor must be determinedon a case-by-case basis. State v. Lavender , 967 S.W.2d 803, 807 (Tenn. 1998). If the same facts tha

t establish an elem

ent of the offens

e charged ar

e also used to esta

blish the enhancement factor, then the enhancement factor may not be used to increase punishment. Id. (citing State v. Jones , 883 S.W.2d 597, 601 (Tenn. 1994)). However, although enhancement factor (10), “[t]he defendant

had no hesitation about committing a crime when the risk to human life was high,” Tenn. Code Ann. § 40-35-114(10) ( 1997), is inheren t in every ho

micide case

with respect to the victim, the trial court may appropriately c onsider this factor

when the evidence shows that the defendant’s actions placed the lives of individuals other than the victim at risk. See Statev. Kelley
, 34 S.W.3d 471, 480 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 2 000); se e also State v. Bingham
, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995); Jones , 883 S.W.2d at 601. The record in this case reflects that the trial court applied enhancement factor (10) based on the presence of persons other than the victim in the area when the defendant fired

his gun through t

he wall of the apa

rtment. The evid ence at trial showing that the victim’s two children, as well as Jones and Turner, wer e present in the immediate

vicinity and thus subject to risk by the defendant’s actions in firing his gun into the apartment, su

pports the trial co

urt’s application

of this factor. Th

is issue is without merit.

CONCLUSION

Based on the foregoin

g and the recor

d as a whole, we affirm the jud

gment of the tria

l court.

___________________________________ ALAN E. GLENN, JUDGE