1 Anderso n is serving add itional time for va rious drug c onvictions w hich are not the subject of this a ppeal.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE June 2000 Session
State of Tenne

ssee v. Joe C. A

nderson a/k/a

Uncle Joe Direct Appeal from the Criminal Court for Loudon County

No. 9612 E. Eugene Eblen, Judge

No. E1999-02485-CCA-R3-CD September 12, 2000 Raising issues of sufficiency of the evidence and improper sentencing , Joe C. Anderson appeals from his conviction of sec

ond degree mur

der in the Loud

on County

Criminal Court. Be

cause we discern no error requir

ing reversal, w

e affirm. Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID G. H AYES and N ORMA M C G EE O GLE , JJ., joined. Joseph R. Ford, Loudon, Tennessee, Kenneth F. Irvine , Jr., Knoxville, Tennessee (on appeal) Alfred Hathcock and Walter Johnson, Assistant District Pu blic Defenders

(at trial), for th

e appellant,

Joe C. Anderson.
Paul G. Summers, Attorne y General & Reporter, Mar

k A. Fulk s, Assistant Atto rney General, Charles E. Hawk, District Att

orney Gene

ral, Scott McCluen and Frank Harv ey, A ssi sta nt D ist ric t At tor neys General, for the appellee, State of Tennessee.
OPINION

Joe C. Anderson appeals from his conviction of the second degr

ee murder of Ke

vin Angel. Anderson was convicted at the conclusion of a j ury tri al in the Loudon County Criminal Court. He is presentl

y serving a tw enty-y

ear sentence in

the Department of

Correction for th

is crime. 1 In this direct ap peal, he challenges the sufficiency of the e vidence and the length of the sentence imposed. Upon review, we hold that the evidence sufficiently supports the defendant’ s conviction. Although we agree with the defendant that the trial cou rt fa iled to make appro

priate findings justifying the sentence imposed, we conclude that the trial court reac hed an app rop riate result on the fac

ts of this case. Ac

cordingly , we affirm the ju

dgment of the tri

al court.2 Appare ntly, the 26-year-o ld victim and the 59-ye ar-old defenda nt did not get along b ecause

they dated t he same
woman. -2-

In the light most favorable to the state, the victim came to the defendant’s home on the evening of September 7, 1997. The victim had been “a startin’ trouble” at the defendant’s shop in the preceding

days, 2 so the defendant

got his gun. Two of the defendant’s houseguests attempted to keep the victim fro m coming inside the defendant’s trailer home. The victim had a “four foot level” and said

to the defendant, “[C]’mon outhere ole man I’m gonna whop y ou this time.” The defendant claimed, “I just took all I could take.”

The victim and the defendant argued for ten to fifteen minutes inside the trailer, until the defendant told on

e of his housegue

sts to “call the law.”

The victim became

upset and said

that the authorities would take his truck because he had no driver’s lic ense. The defendant told the victim he was going to lose everything. The victim went outside and started beating the defendant’s sportscar with the level. The

defendant follow

ed the victim

outside and bega

n shooting. Three

shots struck the defendant’s sportscar, a truck, and the victim. According to the defendant, the second or third shot was the one which struck the victim. The shot entered thevictim’s back, pe rforated both lungs, lacera

ted the aortic ar

ch and trachea

, and exited his ches

t. The wound was fa

tal.
When Detective Jonathan Sartin of the L enoir City Police Department arrived at the scene, the victim was already loaded into an ambulance, and the defendant a nd his houseguests had be en restrained to preserve the crime scene. Detective Sartin described the defe ndant as “kind o f mad because of what had happened.” Howe v er, when specifically asked, Sartin denied that the defendant was tearful, crying, enraged, scr eaming, hollering, red-faced or breathing hard. On crossexamination, Detective Sartin acknowledged that the victim had a propensity to be violent and aggressive. In a prior encounter, the victim had injured Detective Sartin, spit in Sartin’s police dog’s face, and warped a screen inside Sartin’s patrol car through phy sical violence.
Doctor Sandra Elkins, who performed an autopsy of the victim, testified to the manner of death. She also

testified that t he victim’s blood-alcohol content was .15, and he was legally intoxicated.

The defendant chose not to present evidence.
The jury found the defendant guilty of the charged offense of second degree murder. At a later senten

cing hearing, the trial court im posed an incarc

erative sentenc

e of twenty

years.
I The defendant’s first issue challenges the sufficiency of the convicting evidence. He claims that once the issue s of self-defen

se and “passion” we

re raised, the st

ate failed to

disprove the existence of these elements beyond a reasonable doubt. In essence, the defendant argues that he

is guilty of nothing because he acted in self-defense, and alternatively , that he is guilty of no greater crime than voluntary manslaughter.-3- When an accuse

d challe nges the suff iciency of the ev idence, an ap pellate cou rt's standardof review is whether, after considering the evidence in the light m ost favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); State v. Duncan , 698 S.W.2d 63 , 67 (Tenn. 1 985); Tenn . R. App. P . 13(e). Thi s rule appl ies to find ings of guilt based upon d

irect evidence

, circums tan tial evidence, or a combination of direct and circumstantial evidence. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990).

In determi ning the sufficiency of the evidence, this court should not reweig h o r reevaluate

the evidence. State v. Matthew s , 805 S.W. 2d 776, 779 (Tenn. Crim. App. 1990). Questions concerning the credibility

of the witnesses,

the weight and value of the evidence, as well as all factual issues raised by the eviden ce are resolved by the trier of fact. State v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the trier of fact

from the evidence. Liakas v. State , 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956); Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must afford the State of Tennessee the strongest legitimate view of the evidence contained

in the record as w

ell as all reasonabl

e and legitimate inferences which may be drawn f rom the evidence. Cabbage , 571 S.W.2d at 835.

The defendant was convicted of second degree murder, which is the “knowing killing of another.” See Tenn. Code Ann. § 39-13-201(a)(1) (1997).

In contrast, the crime of voluntary manslaughter “is the inten tiona l or knowing killing of another in a state

of passio n pro duced by ad equate provoca

tion sufficient to l

ead a reasonab

le person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211(a) (1997).

The law of self-defense provides
A person isjustified in threa tening or using

force agains

tanother person when and to the degree the person reasona bly believe

s the force is imme

diately nec

essary to protect against the other's use or attempted use of unlawful force. The person must have a reasonable

belief that thereis an imminent dang er of death or se

rious bodily inj ury. The danger creating the belief of imminent death or serious bodily injury

must be real, or honestly believe d to be real at the time, and must be founded upon reasonable grounds. Tenn. Code Ann. § 39-11-611(a) (1997).

A. Second Degree Murder or Voluntary Manslaughter-4- The facts of this case establish that the defendant kn

owingly killed the victim. When th e victim came t o the defendant’s house, the defendant retrieved his gun. He argued w ith the victim, and when the victim exited the defendant’s home and began beating on the defendant’s car with a level, the de

fendant fired mu

ltiple shots at the vi

ctim, one of which

struck the victim. Nonetheless,

the defendant claims that the state’s evidence raised the issue of “passion produced by adequate provocation suffici en t to lead a reasonable person to act in an irrational manner,” thereby establishing voluntary manslaughter. The evidence established that the defendant and the victim had a history of conflict, that the victim threatened to “whop” the defendant on the night of

the crime, that the defendant and the drunk victim argued immediately prior to the crime, and that the defendant was still mad over the situation when Detective Sartin arrived after the shooting. Ultimately, however, it for the jury to determine w hether this evidence established “passion prod uc ed by adequate provocation sufficient to lead a reasona ble person to act in an irrational manner.” The jury determined tha t this evidence did not rise to the level of passion required for voluntary manslaughter. Upon review, we conclude that a rational jury could reach this conclusion based upon the evi dence of recor

d. Obviously,

in weighing and evaluating the evidence, the jury determined that the defendant was not sufficiently provoked by the victim’s actions and threatsand/or that a reasonable person would not kill another over property damage and threats of violence. Such was within the jury’s province as the trier of fact. See State v. Johnson , 909 S.W.2d 46 1, 464 (Ten n. Crim App . 1995) (whe ther the def endant’s ac ts “consti tute a ‘know ing killin g’ (second degree murder) or a killing due to ‘ a dequate provoca tion’ (voluntary

manslaughter)

is a question for

the jury”); State v. Keels , 753 S.W.2d 140, 143 (Tenn. Crim. App. 1988) (issue of degree of homicide is for the jury to decide in view of all of the facts of the case).
B. Self-Defense

The defendant also claims that the state’s evidence fairly raised the issue ofselfdefense and that the state failed

to disprove that the shooting was in se lf-defense. Th

e defendant is correct that he has no burden of establishing the defense once

its existence is fairly raised; rather, the state carrie s the burden of proof to negate the defense. See State v. Belser , 945 S.W.2d 776, 782 (Tenn. Crim. App. 1996). The state must negate the d

efense to the cr

ime beyond a

reasonable doub

t. Tenn. Code Ann. § 39-11-201(a)(3) (1997); Belser , 945 S.W.2d at 783. Whether the state has met its burden is a question for the jury to determine. State v. Fred Ed mond Dean , N o. 03C01-9508-CC-00251, slip op. at 10 (Tenn. Cri m. App., Knoxville, Jan. 10, 1997), perm. app. denied(Tenn. 1997); State v. Clifton , 880 S.W.2d 737, 743 (Tenn. Crim. App. 1994).

These principles afford thedefendant no relief, however. The evidence demonstrates that the victim came to the defendant’s home armed with a level, threatened to “whop” the defendant,

argued with the defendant, and vandalized the defendant’s car. There is also evidence, howeve r, th at the victim left the defendant’s home after the argument and was in the process of vandalizing the defendant’s car when he was shot in the back. The defendant, furthermore, had asked a houseguest to call law enforcement to handle the situation. The jury’s task as f i nd er of fact required it to assign weight and value to all of the evidence. I

n so doing, the jur

y obviously

found-5-

that the state negated the defendant’s claim of self-defense. Viewing the evidence in the light most favorable to the state, we see no error. Rational jurors could find, based upon the evidence of record, that force was not immed iately necessary, that ther e was no imminent danger of death or serious bodily injury, and/or that the belief of imminent death or serious bodily injury was not real, or

not honestly believed, and not

founded upon rea

sonable grounds. See Keels , 753 S.W.2d at 143 (issue of self-defense is for the jury to decide in view of all of the fa cts of the case).
The evidence s ufficie ntly supports the defendant’s conviction of second degree murder.
II

The defendant’s re

maining challen

ge is to the propriety of

his twenty-year sentence

. He claims that the sentence is too lengthy given the presence of several mitigating factors and the state’s failure to advance any enhancement fa ctors at the sentencing hearing.
When there is a challenge to the length, range, or manner of ser vice of a sentence, it is the duty of this court to conduct a de novo review of the record wi th a pr esumption that the determinations made by the trial court are correct. Tenn. Cod e Ann. §40-35-401 (d) (1997). This presumption is “conditioned upo n the affirmative

showing in the re

cord that th

e trial cou rt considered

the sentencing

principles and al

l relevant facts

and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of sh owing that the se

ntence is imprope

r is upon the appellant.” I d . In the e vent the record fails to demonstrate the required consideration by the trial court, revi ew o f th e sen ten ce i s pu rel y de novo

. Id

. If appellate review reflects the trial court properly considered all r

elevant factor

s and its fin

ding s of fact are adequately supported by the record, this court must affirm the sentence , “even if we would have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In making its senten

cing determina

tion, the trial cour

t, at th e conc lusion of the sentencing hearing, determines the range of sentence and then determines the specific sentence and the propriety

of sentencing alternatives by considering (1) the evidence, if any , received at the trial andthe sentencing hearing, (2) the presentence report, (3) the principles of sentencing a nd 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 enhancement and mitigating factors, (6) any statements

the defendant wi

shes to make in the d

efendant’s beh

alf about sentenc

in g, and ( 7) the potential for rehabilitation or treatment. Tenn. Code Ann. §40-35-210(a), (b) (1997); Tenn. Code Ann. §40-35-103(

5) (1997); State v. Holland , 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).
In the present case, the trial court summarily announced that the sentence would be twenty y ears without ac knowledgin g the sentenc ing princip les and maki ng appropria te findings based upon the facts and circumstances of the case. Accordingly , our review of the trial court’s sentencing det

ermination is de novo unaccompanied b y the presum

ption of correct

ness.-6-

A. Enhancement Factors

Our review of the sta

tutory enha

ncement factor

s reveals two that apply on the

facts of this case. “The d

efendant has a p

revious history

of criminal convic

tions or criminal be

havior in addition to those necessar y to establish the a ppropriate range.” Tenn. Code Ann. § 40-35-114(1) (1997). In his brief, the defendant concedes the applicability of this factor. We afford it substantial weight, particularly in light of three prior convictions for assault and over 30 a lcohol-re lated offenses. Second, the defendant employed a firearm duringthe commission of the offense. See Tenn. Code Ann. § 40-35- 114(9) (1997). Use of a firearm is not an element of second degree murder. See generally

Tenn. Code Ann. § 39-13-210 (1997). Thus, the defendant’ssentence is properly enhanced with this factor. See, e.g. , State v. Raines , 882 S.W.2d 376, 385 (Tenn. Crim

. App. 1994). We afford it moderate weight.

The state advances two additional enhancement factors, which we reject. First, the state argues that

the defendant committed the crime without hesitation despite the high risk to human li f e. See Tenn. Code Ann. § 40-35-114(10) (1997). This factor is ordinarily inapplicable to the crime of second degree murder. See, e.g. , State v. Butler , 900 S.W.2d 305, 314 (Tenn. 1994). It may be applied, however, where the risk is to the life of someone other than the homicide victim. See, e.g. , State v. Johnson , 909 S.W.2d 461, 464 n.1 (Tenn. Crim. App. 1995). In the present case, there is evidence that others were present; however, the record is devoid of evidence that they were in a zone of danger. The defendant’s houseguests appear to have bee n inside the defendant’s trailer during the shooting, whichtook place outside. See State v. Samuel D. Braden , No. 01C01-9610-CC

00457, slip op. at 10-11 (Tenn. Crim. App., Nashville, Feb. 18, 1998) (factor (10) did not appl y where defendant’s children were inside house when defendant shot victim in carport area). Thus, we reject this enhancement factor.

The state also advances the enhancement of the defendant’s sentence for commission of the offen se while the defendant was on bail for another felony. See Tenn. Code Ann. § 40-35- 114(13)(A) (1997) (enhancement appropriate if defendant committed offense

while on bail

“if the def endantis ultim ately convicted of such prior felony ”). In its brief, the state recites that the defendant was arrested on December 14, 1997 and May 29, 1998 for f elony drug

offenses. However, this offense occurred on September 7, 1997, before those a rrests took place. Thus, it would be impossible

for the defendant to have been on bail for the drug offenses at the time he murdered the vic tim . Th is e nha ncem ent fact or d oes not app ly.
B. Mitigating Factors

The defendant a

dvocates the app

lication of seven

mitigating fac

tors: 1. The defendant acted under strong provocation; 2. Substantial grounds exist tendi ng to excuse or ju

stify the def

endant’s criminal conduct, though failing to establish a defense;-7-

3. The defendant, because of youth or o ld age, lacked su

bstantial judgme

nt in committing the offense; 4. The defendant, alt h ough guilty of the crime, committed the offense under such unusual circumsta

nces that it

is unlikely that a sustained intent to violate the law motivated t

he criminal condu

ct; 5. The defendant ha

s significant he

alth problems; 6. The defendant expressed remorse about the victim’s death; 7. The defendant served in the military and received an honora ble discharge. Tenn. Code Ann. § 40-35-113(2), (3), (6), (11), (13) (1997).

We are unconvince

d that the defenda

nt’s sentence sho

uld be mitig ated b ecause he acted under strong provocation. SeeTenn. Co de Ann. § 40-35-113(2) (1997). The defendant’s response to the situation was uncalled for andexcessive. There

is no indication tha

t the victim did anything so inflammatory that the defe ndant was strongly pr

ovoked into his

course of action. We decline to apply this mitigating factor.

Likewise, we see no substantial grounds tending to excuse or justify the defendant’s criminal conduct. See Tenn. Code Ann. § 40-35-113(3) (1997). We acknowledge that the victim andthe defendant did not get along and argued just prior to the offense, that the victim threatened to “whop” the defendant, and that the victim was in the process of vandalizing the defendant’s sportscar wh en he was shot. However, absolutely nothing of record even r emotely justifies the defendant’s excessive response to the situation. The def endant did not wait for law enforcement officers to arrive to handle the situation. Thevictim was engaged in acts of property damage and was not threatening

human life or hea

lth when the defe

ndant shot him.
We likewise reject the defendant’s contention that his sentence shou

ld be mitigated because he lacked substantial judgment due to advanced age. See Tenn. Code Ann. § 40-35-113(6) (1997). There is nothing of record to esta

blish that the defe

ndant, who was 59 a

t the time of th e offense, had any age-related la ck of substantial judgment at the time of the offense. Similarly, we decline

to mitigate the defendant’s sentence based upon commission of the offense unde

r such unusual cir

cumstances that it

is unlikely tha

t he had a sustaine

d intent to violate the law. See Tenn. Code Ann . § 40-35-113( 11) (1997). The defendant has three prior convictions for assault. Mitig ation would be inap

propriate here, as it appears the

defendant has a history of ph

ysical viole

nce against oth

ers.
The defendant arg

ues for mitigatio

n based upon his sig

nificant health p

roblems. According to the presentence re port, the defend

ant has a history of two heart attacks and one stroke. Code section 40-35-113(8) allows for mitigation where a defendant’s mental or physical condition significantly

reduces thedefendant’s culpability for the offense; however, the defendant argues that mitiga tion for ill health should be applied to him under section 40-35-113(13), the so- calle d “catchall” factor. Compare Tenn. Code Ann. § 40-35-113(8) (1997) with Tenn. Code Ann. § 40-35--8-

113(13) (1997). The record does not support mitigation under subsection (8); there is no evidence of record that

the defendant’s physical infirmities played a ny role in his offense. Furthermore, the defendant has failed to car

ry his burden of establishing why this factor should otherwise be applied as a function of section 40-35-113(13). See State v. Anthony Raymond Be

ll , No. 03C01-9503-CR00070, slip op. at7 (Tenn. Crim. App., Knoxville, Mar. 11, 1996) (mitigation for ill health rejected under factors (8) and (13)).

The defendant also argues for mitigation based upon his showing of remorse. See Tenn. Code Ann. § 40-35-113(13) (1997). The defendan t o ffered a letter, the substance of which read, “I am sorry that

Kevin Angel is dead. My sister, Louis Price, and I he lped raise Kevin. I knew him since he was a boy. The events of September 7, 1997 are on

my mind twenty-four hours a day .” This court has recognized that genuine, sincere remorse is a proper basis upon which to mitigate a defendant’s sentence. State v. Williamson , 919 S.W.2d 69, 83 (Tenn. Crim. App. 1995). However, “the mere speaking of remorseful words or a genuflection in the direction of remorse will not earn an accused a sentence reduction.” Id . In the present case, we find that the defendant’s cursory letter carries the burden of establishing this mitigating factor only marginally , if at all. Accordingly, we afford it very

slight weight.
Fin all y, the defendant seeks mitigation based upon his prior military service, which culminatedin an honorable discharge. The record does, indeed, reflect that the defendant served honorably in the Navy for over four years. Thi

s is a proper basis

for mitigation. See, e.g. , State v. Vincent Gerrard Overton , No. 02C01-9510-C C-0 0303, slip op. at 5 (Tenn. Crim. App., Jackson, June 2, 1997), perm. app. denied (Tenn. 1998). We a

fford this factor

moderate weig

ht.
C. Sentencing Determination

Thus, the defendant ha

s two enhancemen

t factors and two m

itigating fac

to rs. In making a sentencing de

termination for a

Class A felony

, the se ntencing co urt must start at the midpoint of the applicable range. Statev. Chance , 952 S.W.2d 848 (Tenn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210(c) - (e) (1997) (amended 1998).

In the present

case, given the

greater weig

ht of the enhance

ment factors in

contrast to the lesser weight of the

mitigating fac

tors, the trial cou

rt’s mid-range

sentence of twe

nty years was generous to the defendant. Accordingly, w e affirm the length of the defendant’s sentence.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE