          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                         MAY SESSION, 1997            FILED
                                                      November 3, 1997

                                                 Cecil W. Crowson
STATE OF TENNESSEE,           )
                                               Appellate Court Clerk
                              )   No. 01C01-9607-CC-00292
      Appellee                )
                              )   OVERTON COUNTY
vs.                           )
                              )   Hon. LEON BURNS, JR., Judge
MICHAEL BUELL,                )
                              )   (Voluntary Manslaughter)
      Appellant               )



For the Appellant:                For the Appellee:

GREGORY D. SMITH                  CHARLES W. BURSON
Contract Appellate Defender       Attorney General and Reporter
One Public Square, Ste. 321
Clarksville, TN 37040             GEORGIA BLYTHE FELNER
                                  Assistant Attorney General
                                  Criminal Justice Division
ART JOHNSON                       450 James Robertson Parkway
Asst. Public Defender             Nashville, TN 37243-0493
215 Reagan Street
Cookeville, TN 38501

                                  WILLIAM EDWARD GIBSON
                                  District Attorney General

                                  BEN FANN
                                  Asst. District Attorney General
                                  145 South Jefferson Avenue
                                  Cookeville, TN 38501




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                      OPINION



       The appellant, Michael Buell, was convicted by a jury of voluntary

manslaughter. The trial court imposed a sentence of four years to be served in

the Department of Correction. On appeal, the appellant raises two issues for our

review. First, he contends that the trial court failed to instruct the jury on

accident, self-defense, and defense of a habitation. Second, the appellant

contends that the trial court erred in failing to grant an alternate sentence.



       After a review of the record, we affirm.




                                   I. Background



       At trial, the proof developed that the appellant, and the victim, Billy

Hensley, lived approximately one quarter mile from each other in the Hilham

community of Overton County. They had been friends for approximately two

years. Additionally, both had minor daughters who were friends and who visited

in each other’s home. On the morning of May 15, 1994, Hensley went to the

appellant's home to pick up his daughter and the appellant's two daughters in

order that they might attend church. After church, the appellant's children visited

at Hensley's home. Around 6:15 p.m., the appellant and his wife drove to

Hensley's residence to collect their two daughters. Upon their arrival, their

daughters, appearing upset, came running to their car. The appellant went into

Hensley’s house where he and the victim talked for about five minutes. After

returning to his car, he then drove home. Within fifteen to twenty minutes after

the appellant arrived home, the victim appeared. They spoke for approximately

three or four minutes and Hensley left. Approximately ten minutes later, Hensley

returned. Again, the appellant spoke with Hensley for about five minutes and,


                                           2
again, Hensley left.1 Hensley returned yet again, this time insisting that the

appellant accompany him to the Hensley residence to talk with Hensley’s

daughter. At the Hensley residence, Hensley questioned his daughter as to

whether their neighbor had attempted to “French kiss” her earlier that day. His

daughter refused to discuss the incident. According to the appellant, Hensley

became aggressive toward his eleven-year-old daughter, attempting to force her

to “French kiss” him.2 The daughter became upset and began to cry. In

response to this behavior, the appellant threatened that if Hensley did not stop,

he would report him to the Department of Human Services. Disgusted, the

appellant walked home, where he informed his wife and his two daughters that

his daughters were never to visit at Hensley's home.



         Twenty minutes later, around 8:30 p.m., Hensley again traveled to the

appellant's home. Not wanting to talk further with Hensley, who was intoxicated,

the appellant sent his wife outside to ask Hensley to leave. Hensley insisted

upon talking to the appellant before he left and began cursing the appellant's

wife. While his wife and Hensley continued arguing, the appellant appeared

from a side door of the house and fired one shot into the air from a .30 caliber

lever action rifle.3 Hensley entered his vehicle. The appellant then instructed his

wife to back away, and within twenty seconds of his first shot, again fired the

rifle. The second shot entered Hensley's vehicle through the windshield, striking

Hensley in the chest. This wound was fatal. When paramedics arrived at the

scene, they discovered Hensley seated in his vehicle, slumped over the steering

wheel. A pistol was located under his right hip and a bottle of beer between his



        1
          Although various testifying witnesses were present when the ongoing conversations
between the appellant and Hensley occurred, the proof is totally void of any evidence which
reflects the nature of the conversations or whether they were amicable or heated exchanges.

        2
            At trial, Hensley's daughter denied that her father attempted to "French kiss" her.

        3
         The re cord indic ates that, a t the time the first sho t was fired , it was very da rk outs ide.
The only light in the yard was coming from two open light bulbs on the front porch. The appellant
was not vis ible to eithe r his w ife or H ens ley.

                                                    3
legs.4 In his statement to sheriff’s deputies, the appellant stated, “He just kept on

and on so I shot up in the air. That’s all I meant to do, just scare the man. He

wouldn’t leave. . . . When I cocked it again I took it - I just shot, going back, I

just shot straight up in the air and cocked it again and I just going to point it at

him and scare him.”



       The appellant was indicted on one count of premeditated first degree

murder. At trial, the appellant denied that he meant to point the rifle at Hensley.

On direct examination, he testified that, after firing the first shot in the air, the

victim had gotten back into his car. “. . . and he started to get back out. And

then when he done that, I levered the gun again and was going to bring it down

to the ground and about right in there somewhere, the gun went off. . . . I didn’t

mean to shoot him . . . ; it just accidentally went off . . . .” From the proof

introduced at trial, the jury found the appellant guilty of voluntary manslaughter.




                                        II. Jury Instructions



       The appellant contends that the trial court erred by refusing to instruct the

jury as to the defenses of self-defense, defense of habitation, and accident. At

trial, the appellant requested that the court charge the jury on these defenses.

The court denied the appellant's requests, finding that there was no proof offered

to raise self-defense, defense of habitation, or accident as legitimate defenses in

this case.



       Every defendant has the right to have every issue of fact raised by the

evidence and material to his or her defense submitted to the jury on proper

instructions. Tenn. Code Ann. § 39-11-203(c) (1991);Tenn. Code Ann. §39-11-


       4
           The a utopsy rep ort indicated the appe llant’s blood a lcohol level w as .18 pe rcent.

                                                     4
204(d) (1991); see also State v. Jones, 889 S.W.2d 225, 229 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1994). "[T]o determine whether a

statutory defense is fairly raised by the proof so as to require its submission to

the jury, a court must, in effect, consider the evidence in the light most favorable

to the defendant, including drawing all reasonable inferences flowing from that

evidence." State v. Shropshire, 874 S.W.2d 634, 639 (Tenn. Crim. App. 1993).



A. Self-Defense

        In order to establish a claim of self-defense, a defendant must show that

the danger of death or serious bodily harm was imminent and impending,

manifested by some words or overt acts at the time clearly indicative of a present

purpose to do injury. Tenn. Code Ann. §39-11-611 (1991). 5 See also State v.

Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). The evidence in the present

case does not raise an inference requiring an instruction on self-defense. There

is no proof that the victim ever committed an assault against the appellant or that

he intended to harm the appellant or any family member. The appellant testified

that he was not afraid of the victim, in fact, he and the victim were friends.

Although a pistol was found by the victim’s body, it was not unusual for the victim

to have a gun in his car, and there is no proof which even suggests that the

weapon was ever displayed or used in a threatening manner against the

appellant. Furthermore, the appellant explained that he fired the rifle in order to

scare the victim into leaving his property. Thus, there was no error in the trial

court's refusal to give such a charge. See, e.g., State v. Johnson, No. 03C01-



9510-CR-00331 (Tenn. Crim. App. at Knoxville, Sept. 18, 1996).



B. Defense of Home


        5
         Our current criminal code treats “self-defense” as justification for conduct that otherwise
would co nstitute an offens e. Thus , the actor’s condu ct is “justified” o r though t to be right. See
MODEL PENAL CODE § 3.01.


                                                   5
         The appellant contends that the trial court erred in failing to instruct the

jury on the defense of habitation. The 1989 CRIMINAL CODE, which was in effect

at the time of this offense, contains no provision which, per se, recognizes the

“defense of a habitation.”6 Our current law, however, provides that

          “Any person using force intended or likely to cause death or
         serious bodily injury within their own residence is presumed to have
         held a reasonable fear of imminent peril or death or serious bodily
         injury to self, family or a member of the household when that force
         is used against another person, not a member of the family or
         household, who unlawfully and forcibly enters or has unlawfully and
         forcibly entered the residence, and the person using the force knew
         or had reason to believe that an unlawful and forcible entry
         occurred.” Tenn. Code Ann. § 39-11-611(b) (emphasis added).

Clearly, this provision which simply extends the defense of self-defense into the

residence with the accompanying presumption is inapplicable because (1) no

evidence of an intent to harm was established and (2) the alleged conduct

occurred outside the appellant’s residence.7 This issue is without merit.



C. Accident

          At trial, the appellant maintained that his act of shooting Hensley was an

accident. He contends that the shooting was unintentional and that he was only

attempting to shoot into the ground to scare Hensley. He argues that “[a]

legitimate issue of ‘accident’ was raised and an instruction should have been

given for the jury to consider accidental killing versus voluntary manslaughter.”




 As previously stated, the 1989 CRIMINAL CODE codified all defenses available to

prosecution. See Supra note 6. Unless a defense to prosecution is so labeled,

         6
          In 19 89, o ur leg islatu re ad opte d a ne w crim inal co de, w hich , for th e firs t time , cod ified a ll
defens es availab le to prose cution. State v. Latham, 910 S.W.2d 892, 895 (Tenn. Crim. App.
1995). While it created statutory defenses, the new code expressly abolished all common law
defens es. Ten n. Code Ann. § 39 -11-203 (e)(2)(19 91); see also Latham, 910 S.W .2d at 896 .
Becau se of its om ission in the crimina l code, the "defens e of hab itation," per se, is no longer
recognized as a criminal defense in Tennessee. Tenn. Code Ann. § 39-11-203.


         7
          W e note tha t our crim inal code recogn izes the de fense o f protection of prope rty. See
Tenn. Code Ann. § 38-2-102, § 39-11-614(a-c). When read in pari m ateria , these two statutes
evinc e a cle ar leg islative inten t that d ead ly forc e is no t perm itted in the d efen se of prop erty.

                                                          6
a defense by prescribed statutory language is not a defense. Tenn. Code Ann. §

39-11-203(a). Our criminal code does not recognize the defense of “accident.”



       This issue of “accident” is more properly addressed within our criminal

code’s requirement of mental culpability necessary to establish criminal liability.

Accidental is defined as “occurring unexpectedly, unintentionally or by chance.”

The AMERICAN   HERITAGE DICTIONAR Y   (3d ed. 1992) . When an accused argues

that he is not criminally liable for an offense because it was an accident, he is, in

effect, asserting that he lacked the culpable mental state required for conviction.

Tenn. Code Ann. § 39-11-301(b) (1991). No person may be convicted of an

offense unless the culpable mental state is proven beyond a reasonable doubt.

Tenn. Code Ann. § 39-11-201(a)(2)(1991). Thus, the appellant was free to

argue to the jury that the shooting was an accident, i.e. not intentional, and that,

because the homicide charged required proof that the killing be committed

knowingly or intentionally, he was not guilty. This court, in State v. Phipps, 883

S.W.2d 138, 142 (Tenn. Crim. App. 1994), held:

       When the trial judge gives instructions that correctly, fully, and fairly
       set forth the applicable law, it is not error to refuse to give a special
       requested instruction. We must review the entire charge and only
       invalidate it if, when read as a whole, it fails to fairly submit the
       legal issues or misleads the jury as to the applicable law.


In the present case, the court fully and accurately instructed the jury on the

elements of first degree murder and on the lesser offenses of second degree

murder, voluntary manslaughter, reckless homicide, and criminally negligent

homicide. These instructions were sufficient to embrace the appellant’s

argument that the homicide was an accident. If the jury had determined that the

appellant's conduct resulted from an accident, then the elements of the crimes

with which the appellant was charged would not have been met, and the jury

would have returned a verdict of "not guilty." See State v. Jordan, No. 01C01-

9311-CC-00419 (Tenn. Crim. App. at Nashville, June 13, 1995), perm. to appeal

denied, concurring in results only, (Tenn. Feb. 5, 1996). This issue is without

                                           7
merit.




                         III. Denial of Alternative Sentence



         The appellant also avers that the trial court erred by refusing to consider

an alternative sentencing option. When a defendant challenges the manner of

his sentence, this court must conduct a de novo review with the presumption that

the determination made by the trial court is correct. Tenn. Code Ann. § 40-35-

401(d)(1990). This presumption only applies, however, if the record shows that

the trial court properly considered relevant sentencing principles. State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). Moreover, the burden is upon the defendant

to show that the sentence imposed is improper. Sentencing Commission

Comments, Tenn. Code Ann. § 40-35-401.



         In the present case, the trial court denied alternative sentencing based

upon the seriousness of the offense. See Tenn. Code Ann. § 40-35-103 (1990);

Tenn. Code Ann. § 40-35-102(6) (1994 Supp.). See also State v. Bonestel, 871

S.W.2d 163, 167 (Tenn. Crim. App. 1993). In so ruling, the trial court remarked:

         Again, when we go to the extent of taking a weapon, firing at
         someone, using it in such a way as to cause likelihood of
         somebody being killed and say, well, it went off. . . . So people who
         are going to do that must pay the consequences it seems to me,
         and because of the seriousness of this offense, the life that has
         been taken and the nature of it, that I think it would be a proper
         sentence to impose Department of Corrections time to be served
         on a four year sentence.



A trial court's denial of an alternative sentence based upon the "seriousness of

the offense" will be upheld if there is evidence in the record that indicates that

the circumstances of the offense, as committed, were especially violent,

horrifying, shocking, reprehensible, offensive, or otherwise of an excessive or

exaggerated degree, and the nature of the offense outweighs all factors favoring

                                           8
a sentence other than confinement. State v. Bingham, 910 S.W.2d 448, 454

(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995) (citations omitted).

The record in this case demonstrates a basis for concluding that the nature of

the offense as committed is especially reprehensible and offensive. The trial

court considered both the nature and circumstances surrounding this offense

and the length of the sentence, four years, in denying an alternative sentence.

Consideration of leniency in both the verdict and the length of the sentence are

proper considerations for finding confinement necessary under Tenn. Code Ann.

§ 40-35-103(1)(B). See State v. Bush, No. 01C01-9605-CC-00220 (Tenn. Crim.

App. at Nashville, June 26, 1997); State v. Black, No. 03C01-9404-CR-00139

(Tenn. Crim. App. at Knoxville, Apr. 6, 1995); State v. Perry, No. 89-133-III

(Tenn. Crim. App. at Nashville, Aug. 29, 1990) (Dwyer, J., concurring and

dissenting).



       The presumption of suitability for alternative sentencing has been

overcome by proof to the contrary. Moreover, the appellant has failed to

demonstrate that the trial court's ruling denying an alternative sentence was

improper. Again, the trial court's ruling that confinement is necessary to avoid

depreciating the seriousness of the offense is supported by the record.

Accordingly, the trial court's denial of an alternative sentence is affirmed.



       Based upon the foregoing reasons, the judgment of the trial court is

affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




                                          9
CONCUR:




______________________________
PAUL G. SUMMERS, Judge



______________________________
JERRY L. SMITH, Judge




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