         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 11, 2000

                STATE OF TENNESSEE v. MANOLITO JEMISON

                Direct Appeal from the Criminal Court for Davidson County
                           No. 99-A-482    Steve Dozier, Judge



                  No. M1999-00752-CCA-R3-CD - Filed November 22, 2000


The defendant was found guilty by a Davidson County jury of the lesser offense of voluntary
manslaughter on one count of first degree premeditated murder and the lesser offense of reckless
homicide on one count of felony murder. The counts were merged into one conviction for voluntary
manslaughter, and the defendant was sentenced as a Range I, standard offender to six years in
confinement. In this appeal as of right, the defendant challenges the sufficiency of the evidence to
support a conviction for voluntary manslaughter and the length of his sentence, arguing that the trial
court erroneously applied one enhancement factor and failed to apply two mitigating factors. Based
upon our review, we agree that an enhancement factor was improperly applied. However, since two
other enhancement factors were properly applied, and the evidence was sufficient to support the
conviction, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES, J., and CORNEL IA
A. CLARK, SP .J., joined.

Karl Dean, District Public Defender; Jeffrey A. DeVasher, Assistant Public Defender (on appeal);
Laura C. Dykes, Assistant Public Defender (at trial); and Gigi Braun, Assistant Public Defender (at
trial), for the appellant, Manolito Jemison.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Bernard F. McEvoy, Assistant District Attorney
General; and Derrick L. Scretchen, Assistant District Attorney General, for the appellee, State of
Tennessee.

                                             OPINION

       The defendant, Manolito Jemison, was indicted by a Davidson County Grand Jury for one
count of first degree premeditated murder and one count of aggravated assault. That indictment,
number 98-C-2236, was subsequently dismissed. A superseding indictment, number 99-A-482, was
issued charging the defendant with one count of first degree premeditated murder and one count of
felony murder, both counts stemming from the shooting death of the victim. The superseding
indictment also charged the defendant with one count of aggravated assault, stemming from an injury
to a witness at the scene of the crime. At the conclusion of the State’s proof in the trial on these
indictments, the trial court granted, without objection from the State, the defendant’s motion for
judgment of acquittal on the aggravated assault charge. Subsequently, the jury found the defendant
guilty of voluntary manslaughter and reckless homicide.

        At the sentencing hearing, the trial court merged the two convictions into one for voluntary
manslaughter, a Class C felony, and sentenced the defendant as a Range I, standard offender, to six
years in continuous confinement. The defendant appeals as of right from his conviction and sentence,
presenting the following two issues for our review:

               I. Whether the evidence was sufficient to support a conviction for
               voluntary manslaughter; and

               II. Whether the trial court erred in sentencing the defendant to the
               maximum sentence for the offense.

        Based on our review of the record, we conclude that evidence adduced at trial was sufficient
to support a finding by a rational trier of fact that the defendant was guilty beyond a reasonable doubt
of the offense of voluntary manslaughter. Although we agree that an enhancement factor was
improperly applied, the other factors justify the sentence imposed. The judgment of the trial court
is affirmed.

                                               FACTS

         The events leading up to the shooting death of the victim took place against a backdrop of
cocaine use and sales in Cumberland View Apartments, a housing complex in North Nashville
known as “Dodge City.” Although the defendant did not live in the complex, he had regularly
visited in the apartment of William Whitworth, the victim, over a period of some three months prior
to the shooting. The victim was unemployed and a regular cocaine user who lived in his two-
bedroom apartment in Dodge City with his four-year-old son. The defendant and two other
individuals, one a cocaine dealer known as “Little Johnny,” and the other an individual known as
“Black,” spent time in the victim’s apartment where the victim sometimes “cooked” for them, that
is, processed powder cocaine into rock form.

         On June 22, 1998, the defendant decided not to report for work at his job as a groundskeeper
at a funeral home and instead to go to Dodge City to sell drugs. On this day, the defendant, Little
Johnny, and Black were all at the victim’s apartment when the victim’s younger brother, Maurice
Whitworth, arrived at approximately 7:00 p.m. with a car trunk full of groceries for his brother. This
largess was possible because Maurice Whitworth had acquired some $5,200 in cash on that day as
a result of what he described as his “work,” which was forging checks and then cashing them at large


                                                  -2-
grocery store chains. Little Johnny, Black, and the defendant helped carry the groceries up to the
victim’s apartment and then sat around in the victim’s living room for about forty-five minutes.

       Before Maurice Whitworth left his brother’s apartment at approximately 9:00, he and his
brother went into his brother’s bedroom to smoke cocaine. He testified that the bedroom was the
victim’s usual place to smoke drugs because, “He [the victim] was real particular about that cause
he always said, ‘Man, come on back here. Don’t do nothing up front,’ you know. Said, ‘Come on
back here where I can hear the door, just set [sic] back here in the back in the bedroom.’” Maurice
Whitworth came back to his brother’s apartment one more time around 11:00 p.m., this time to pick
up some powder cocaine for his personal use from a dealer in the building. He testified that when
he stopped at his brother’s apartment, only his brother and his four-year-old son were there. That
was the last time he saw his brother alive.

        The defendant testified at trial that on the evening of June 22, after he, Little Johnny, and
Black carried the load of groceries from Maurice Whitworth’s car to the victim’s apartment, they all
three sat around laughing and talking and then left. The defendant and Little Johnny stood around
outside in hopes of selling drugs. Eventually, the defendant decided to “call it a day.” He drove to
the home he shared with his girlfriend and their two children in another housing complex some five
miles away. The defendant testified he recalled at some point that, weeks earlier, the victim had
shown interest in acquiring a weapon. The defendant returned to the victim’s apartment around
11:00 p.m. with a shotgun in a gym bag. The shotgun was loaded with three shots.

        Confusing and often conflicting testimony obscures subsequent events.1 Nevertheless, it
appears from the record that the defendant was let into the apartment by the victim. At the time he
arrived, a neighbor, Lynn Frey, was in the victim’s bathroom. The defendant observed that the
victim appeared to be “high” on drugs when he came to the door. The testimony of Dr. Emily Ward,
a forensic pathologist, confirmed the presence of cocaine in the victim’s blood. According to the
defendant, he asked the victim if he wanted to buy the gun, and the victim asked first if it was
loaded. The defendant testified that the victim grabbed the gun by the barrel, and a struggle ensued.
The two of them were alone when this occurred. According to the defendant, the victim was able
to shove him face down onto a sofa and then hold him there by jumping on his back and pressing
his knees into the defendant’s back and neck. The shotgun was beneath the defendant’s body with
the barrel facing toward the front door. A glass table in front of the sofa was broken in the struggle,
and a television was knocked over. At some point, Lynn Frey emerged from the bedroom. The
victim was yelling for “girl” to call the police. According to Ms. Frey, the shotgun was between the
defendant and the victim, presumably touching the defendant’s back and the victim’s chest. She did
not see who pulled the trigger, causing the gun to discharge the first time. Ms. Frey was moving




         1
          W e are assisted substantially in our effort to unravel the sequence of events by the balanced and thorough brief
of defenda nt’s counsel o n appea l.

                                                           -3-
toward the front door when the shotgun discharged, the shot hitting the door. Some fragments
apparently hit Ms. Frey in the leg,2 but she was able to get out of the apartment and call 911.

         The defendant and the victim were again alone. According to the defendant, he freed himself
by knocking the victim down. The defendant pumped the shotgun, chambering a shell, because,
according to his testimony, he felt he might need to protect himself. Holding the gun, he started to
walk out the front door when the victim rushed him from behind and, in the ensuing struggle for the
gun, a second shot was fired, this time grazing the victim’s leg and causing him to fall to the floor.
While on his knees, the victim grabbed the gun barrel with both hands and attempted to pull the gun
from the defendant. The victim and the defendant continued to struggle for the gun until the victim,
still holding the gun with both hands, according to the defendant, lay on his back with his upper torso
out the front door and his lower torso inside the apartment. The defendant still held the stock end
of the gun. The defendant hypothesized that in pulling the gun back and forth between them, the gun
was somehow pumped again, and a third shot was fired. This shot entered the victim’s chest and
caused his death.

        The defendant left the apartment, dropped the shotgun in a grassy area adjacent to the
apartment building, and drove to the apartment he shared with his girlfriend. The following day, he
turned himself in to the police and gave a statement to the police in which he maintained that the
shooting was an accident.

        Bronzetta Frey, the sister of Lynn Frey, testified for the prosecution. She said that she was
in the parking lot of the building where the victim lived when all three shots were fired. She had just
returned to the complex in the company of her young nephew, Lynn Frey’s son. Her nephew got out
of the vehicle first and immediately started up the stairs to the victim’s apartment, looking for his
mother. After she heard the first shot, she yelled for her nephew to come to her, and they got behind
the vehicle they had arrived in. She testified that she then saw the defendant back out of the door
of the victim’s apartment, holding a shotgun. The victim, according to Ms. Frey, was facing the
defendant and holding onto the barrel end of the shotgun when the second shot was fired. After this
shot, the victim crumpled and twisted, still holding the gun, until he was lying on his back with the
defendant standing over his head. She described the scene as one where “the barrel of the gun was
going round and round Mr. Whitworth’s chest and head.” The third shot was fired and the victim
went limp. According to the autopsy, the victim sustained a superficial wound to his left thigh and
died as the result of a single gunshot wound to the chest. Cocaine was detected in his blood.




        2
          Based on this event, the defendant was charged with aggravated assault by use of a deadly weapon, naming
Ms. Frey a s the victim. Th e charge wa s dismissed b y the trial court at the conclusion of the State’s pro of.

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                                                        ANALYSIS

                                     Issue I. Sufficiency of the Evidence

         The defendant contends that the evidence was insufficient to convict him of voluntary
manslaughter because the proof failed to establish that he acted knowingly or intentionally or that
he was provoked. He contends that he should have been convicted of the lesser offense of reckless
homicide and that the killing was accidental.

        Our standard of review when the sufficiency of the evidence is questioned on appeal is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). 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. See State v. Cazes, 875 S.W.2d 253, 259 (Tenn.
1994). In conducting our evaluation of the convicting evidence, we are precluded from reweighing
or reconsidering the evidence. See State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996).

        The defendant was charged with first degree premeditated murder and found guilty of
voluntary manslaughter.3 Voluntary manslaughter is defined as “the intentional or knowing killing
of another in a state of passion produced by adequate provocation sufficient to lead a reasonable
person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211(a) (1997). A person “acts
intentionally with respect to the nature of the conduct or to a result of the conduct when it is the
person’s conscious objective or desire to engage in the conduct or cause the result[.]” Id. § 39-11-
106(a)(18). “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[.]” Id. § 39-11-106(a)(20).

         The evidence showed that the defendant left Dodge City in the evening of June 22, 1998,
after a day of selling cocaine. He drove to the apartment he shared with his girlfriend and their two
children to retrieve a shotgun that was kept on a shelf in his closet. He then returned to the victim’s
apartment with the loaded shotgun. The evidence showed that a struggle between the defendant and
the victim ensued. Furniture was broken in the struggle that, at one point, led to the defendant’s
being pinned down by the victim. The defendant, at 240 pounds and half the age of the victim, was

         3
           As noted above, the defendant was also charged in count two with felony murder, based on the underlying
felony of robbery. The jury found the defendant guilty of reckless homicide as included in count two. The two verdicts,
one for voluntary manslaughter as included in count one and one for reckless homicide as included in count two, were
merged into one conviction for voluntary manslaughter. At the hearing on the defendant’s motion for a new trial, the
defendant argued that the verdicts were inconsistent. The law in this state is that “consistency between verdicts on
separate counts of an indictment is not necessary.” Wiggins v . State, 498 S.W.2d 92, 93 (Tenn. 1973). This court has
stated that “[i]nconsistent verdicts are permitted as long as there is su fficient evidenc e to permit a rational fact finde r to
find a defenda nt’s guilt beyond a reasonable doubt on the charges on which the defendant was convicted.” State v. Tony
Scott Walker, No. 02C01-9704-CC-00147, 1997 WL 746433, at *3 (Tenn. Crim. App. Dec. 3, 1 997 at Ja ckson). Our
determination, therefore, is whether the evidence was sufficient to support the defendant’s conviction for voluntary
manslaugh ter.

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able to get the upper hand and finally stood over the victim as he lay half in and half out of his
doorway. We conclude that the evidence justified the jury’s determination that the defendant
intentionally responded to the provocation of the victim, which included shoving the defendant face
down onto the sofa, by firing a shotgun directly into the victim’s chest at close range. The evidence
was, therefore, sufficient to convict the defendant of voluntary manslaughter, and the State
sufficiently overcame the defendant’s contention that the killing was accidental.

                              Issue II. Excessive Length of Sentence

        At the conclusion of the sentencing hearing, the trial court sentenced the defendant to six
years imprisonment upon his conviction for voluntary manslaughter. As a Range I, standard
offender, the defendant thus received the maximum sentence allowable by law. The defendant
argues that the sentence imposed was excessive because the trial court improperly applied statutory
enhancement factor (16): “The crime was committed under circumstances under which the potential
for bodily injury to a victim was great[.]” Tenn. Code Ann. § 40-35-114(16). The defendant further
asserts that the trial court erred in failing to apply two additional statutory mitigating factors: “The
defendant acted under strong provocation[,]” id. § 40-35-113(2), and the defendant expressed
remorse, id. § 40-35-113(13).

        When there is a challenge to the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review with a presumption that the determinations made by
the trial court are correct. See id. § 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.” State v. Ashby, 823, S.W.2d 166, 169 (Tenn. 1991). The
Sentencing Commission Comments to Section 40-35-401 provide that the burden is on the defendant
to show the impropriety of the sentence. Concluding that the trial court properly considered
sentencing principles and relevant facts and circumstances, our review is de novo.

        Our review requires an analysis of the following: (1) evidence, if any, received at the trial and
sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of
counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any
mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7)
the defendant’s potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103,
-210; see also State v. Smith, 735 S.W.2d 859, 862 (Tenn. Crim. App. 1987).

        The offense of voluntary manslaughter, a Class C felony, requires a sentence of three to six
years for a Range I, standard offender. The trial court is required to begin with the presumptive
minimum sentence, enhance within the range as appropriate for the enhancement factors, and then
reduce the sentence within the range as appropriate for the mitigating factors. See Tenn. Code Ann.
§ 40-35-210(c), -(e). The weight to be afforded any appropriate factor rests within the sound
discretion of the trial court. See State v. Boggs, 932 S.W.2d 467, 475-76 ( Tenn. Crim. App. 1996).

                                     A. Enhancement Factors


                                                  -6-
        The trial court applied three statutory enhancement factors to the defendant:

                (1)   The defendant has a previous history of criminal
                      convictions or criminal behavior in addition to those
                      necessary to establish the appropriate range; . . .

                (9)   The defendant possessed or employed a firearm, explosive
                      device or other deadly weapon during the commission of
                      the offense; . . .

                (16) The crime was committed under circumstances under
                     which the potential for bodily injury to a victim was
                     great[.]

Tenn. Code Ann. § 40-35-114(1), -(9), -(16). The defendant does not dispute the application of
enhancement factors (1) and (9), both of which are supported by the record. The defendant disputes
only the application of factor (16), that the “crime was committed under circumstances under which
the potential for bodily injury to a victim was great.” During the sentencing hearing, the trial court
stated that factor (16) applied because of the potential for serious bodily injury to Lynn Frey. The
defendant argues that the injury to Ms. Frey occurred as a result of the first shot’s being fired and not
as a result of the third and fatal shot; therefore, she was not present when the “crime was committed”
because she had left the apartment and was removed from any danger. The State argues, on the other
hand, that although Ms. Frey was not present when the fatal shot was fired, that is not the
requirement of the enhancement factor. According to the State’s argument, factor (16) provides that
the crime must be committed under circumstances under which the potential for bodily injury is
great. The circumstances of this offense, according to the State, do not just involve the fatal shot;
they began when the defendant arrived at the victim’s apartment with a loaded shotgun.

         First, we note that a statutory enhancement factor may not be used to enhance a sentence if
it is an essential element of the offense as charged. However, enhancement factor (16) deals with
potential for injury in circumstances where persons other than the victim of the convicted offense
are in the area and are subject to possible injury. See State v. Sims, 909 S.W.2d 46, 50 (Tenn. Crim.
App. 1995) (holding that factor (16) “may be applied in situations where individuals other than the
victim are in the area and are subject to injury”).

        With regard to the application of enhancement factor (16), the defendant’s argument is
persuasive. First, we note there is no proof that the defendant did not, as he claimed, bring the
shotgun to the apartment to sell to the victim. Additionally, as to how the victim and the defendant
became entangled as they were when first seen by Lynn Frey, we also have only the defendant’s
version. She testified that the defendant was on the sofa where the victim had pinned him, the
shotgun being between the two of them although the defendant said that it was pinned beneath him.
Thus, it was not obvious to her who was the aggressor or who had control of the weapon. This was
the position of the parties when the shotgun discharged, wounding Frey. We cannot say that an


                                                  -7-
offense was being committed by the defendant at that time. In fact, the State theorizes in its brief
that the jury did not believe that the defendant came to the apartment to kill the victim but was
adequately provoked into doing so. Additionally, although the proof showed that the defendant
pumped the shotgun after the first and second shots, each time causing a round to be chambered,
there is no proof that a shell was not already in the chamber when he arrived at the apartment. Thus,
there is no proof that the defendant chambered the round which wounded Lynn Frey. Although the
State argues that the firing of the first shot was “part of the circumstances of the offense,” we do not
find this reasoning persuasive. For instance, if the altercation had ended after the first shot which
wounded Ms. Frey, it is difficult to predict what criminal charges would have resulted or against
whom. Also, we note that it was the third shot which resulted in the death of the victim, not the first,
which wounded Ms. Frey, or even the second. Accordingly, we conclude that factor (16) could not
be applied to the wounding of Ms. Frey. Although the trial court did not consider whether there
could have been danger to other victims, so as to apply factor (16), we will consider whether this
factor could be applied because of the children in the area.

        There was proof that the victim’s four-year-old child was sleeping in a nearby bedroom in
the victim’s apartment at the time of the altercation. There was also proof that Lynn Frey’s young
son was on the stairs headed for the victim’s apartment just before the shotgun was fired the first
time; that Bronzetta Frey yelled for her nephew to run to her so they both might take cover; and that
another young boy was just outside the victim’s door at the beginning of the encounter. We apply
the same reasoning and conclude that these two children cannot be considered as factor (16)
“victims” because at the time of the first shot, the only one which might have threatened them, the
proof does not show that the defendant was committing a crime. Additionally, we note that the area
was a housing complex where individuals tended to congregate at all hours. However, there was no
showing that others were endangered. Accordingly, factor (16) cannot be applied.

                                              B. Mitigating Factors

          The trial court applied only one statutory mitigating factor requested by the defendant: “The
defendant, although guilty of the crime, committed the offense under such unusual circumstances
that it is unlikely that a sustained intent to violate the law motivated the criminal conduct[.]” Tenn.
Code Ann. § 40-35-113(11). The trial court found an “unusual scenario” on the particular evening
of the offense and concluded that it was unlikely that a sustained intent to violate the law motivated
the defendant’s conduct. Nevertheless, the trial court found that mitigating factor (11), although
present, should not be given much weight.

        The trial court declined to apply a second mitigating factor requested by the defendant: “The
defendant acted under strong provocation[.]” Id. § 40-35-113(2). The defendant argues that the jury
verdict of voluntary manslaughter establishes that he acted “under strong provocation” and in self-
defense.4 We disagree. Voluntary manslaughter requires only “adequate provocation” not “strong
provocation.” As to the existence of strong provocation in this case, the trial court stated that “even


       4
           Self-defense was not argued or requested at trial as a defense to the fatal shooting of the victim.

                                                           -8-
though we have a manslaughter conviction, which involves an altercation . . . I’m not of the opinion
that it rises, in this factual situation, and merits the Court finding that there was strong provocation.”
The trial court also noted that the defendant’s theory remained that the shooting was accidental,
therefore provocation was, and continues to be in the present appeal, denied by the defendant. In
spite of this tactical contradiction, we address the appropriateness of applying factor (2) in
mitigation.

         We note first that “[a] jury’s verdict reflecting that consideration of a potential mitigating
factor led to a conviction for a lesser included offense may render that mitigating factor inappropriate
for further consideration in sentencing.” State v. David Keith Daugherty, No. 03C01-9203-CR-
00082, 1993 WL 330454, at *5 (Tenn. Crim. App. Aug. 27, 1993 at Knoxville). Although there is
no prohibition against a trial court’s giving a defendant “double credit,” mitigating factor (2) need
not be automatically applied in voluntary manslaughter cases. See State v. Paul Galbreath, No.
01C01-9406-CC-00204, 1995 WL 518878, at *5 (Tenn. Crim. App. Sept. 1, 1995 at Nashville)
(citing State v. McKinzie Monroe Black, No. 01C01-9401-CC-00006 (Tenn. Crim. App. July 14,
1995 at Nashville)). Here, the defendant returned to the victim’s apartment with a loaded shotgun.
The victim, high on cocaine, pinned the defendant on a sofa and struggled for control of the shotgun.
While the jury may have found such provocation adequate to reduce the defendant’s culpability, the
nature and circumstances of this crime do not demonstrate the kind of “strong provocation” that
would support application of this mitigating factor. We conclude that the trial court appropriately
declined to apply mitigating factor (2).

        Finally, the defendant argues on appeal for the application of remorse as a mitigating factor
under the “catch-all” mitigating factor (13), which permits the application of “[a]ny other factor
consistent with the purposes of this chapter.” Tenn. Code Ann. § 40-35-113(13). The defendant did
not ask the trial court to consider remorse at the sentencing hearing, and the only testimony
concerning remorse was given when the defendant testified that he was not going to keep on selling
drugs and was “very sorry” for what he had done. The defendant claimed to be “working on his
anger problem” but on cross-examination admitted that this did not involve any sort of structured
program. Nothing in the evidence indicates any compelling reasons to support the application of this
mitigating factor. Further, an appellate court is simply not able to access the genuineness of the
defendant’s remorse, not having viewed his testimony in this regard, and the trial court’s not being
addressed on this issue.

        We conclude that the trial court properly applied two enhancement factors, giving great
weight to both. We do not disagree with the trial court’s application of one mitigating factor, the
lack of any sustained intent to violate the law as motivating the crime, but agree that this factor
should be given little weight. Judges need not place any specific numerical value on enhancement
or mitigating factors but are free to weigh them as they feel appropriate. Here the trial court
determined that a criminal history, coupled with the use of a deadly weapon in circumstances where
other individuals were highly likely to be injured completely outweighed the only, marginal
mitigating factor. Even though we have concluded that enhancement factor (16) could not be
applied, two other enhancement factors, both of which were given great weight by the trial court, still


                                                   -9-
apply. Accordingly, the sentence imposed was appropriate. State v. Lavender, 967 S.W.2d 803, 809
(Tenn. 1998).

                                        CONCLUSION

        The evidence is sufficient to support a conviction of voluntary manslaughter and punishment
of six years in confinement. We therefore affirm the trial court.




                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




                                               -10-
