          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                            JULY 1998 SESSION
                                                    FILED
                                                     August 26, 1998

                                                   Cecil Crowson, Jr.
STATE OF TENNESSEE,                  )              Appellate C ourt Clerk
                                     )    NO. 02C01-9710-CC-00413
      Appellee,                      )
                                     )    FAYETTE COUNTY
VS.                                  )
                                     )    HON. JON KERRY BLACKWOOD,
MACARTHUR MONIE,                     )    JUDGE
                                     )
      Appellant.                     )    (Second Degree Murder)



FOR THE APPELLANT:                        FOR THE APPELLEE:

GARY F. ANTRICAN                          JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

SHANA C. McCOY-JOHNSON                    GEORGIA BLYTHE FELNER
Asst. District Public Defender            Assistant Attorney General
118 E. Market                             Cordell Hull Building, 2nd Floor
P.O. Box 700                              425 Fifth Avenue North
Somerville, TN 38068-0700                 Nashville, TN 37243-0493

                                          ELIZABETH T. RICE
                                          District Attorney General
                                          302 Market Street
                                          Somerville, TN 38068




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, Macarthur Monie, appeals his conviction by a Fayette

County jury of second degree murder. The defendant was sentenced as a

violent offender to twenty-three (23) years. On appeal, the defendant contends

the evidence presented at trial was insufficient to support a verdict of guilty for

second degree murder. Specifically, the defendant contends that as he had a

blood-alcohol content of 0.33% shortly after his arrest, he was unable to form the

requisite intent for a “knowing” killing. The defendant also contends the trial

court’s sentence is excessive. The judgment of the trial court is AFFIRMED.



                                       FACTS



       The defendant and his three (3) brothers resided together in a house in

Fayette County, Tennessee. The victim, Raymond Rivers, was a cousin of the

brothers and visited the defendant at the house almost daily. The defendant’s

brother Andrew testified that on January 26, 1997, the victim arrived at their

residence and left with the defendant. Since he had worked the previous

evening, Andrew then went to sleep. Andrew testified that he was awakened at

approximately 1:15 p.m. by the victim shouting the defendant had a gun. The

victim repeated the statement several times. Andrew Monie then heard a gun

fire. Andrew went into the living room and discovered the victim lying on the floor

bleeding profusely from a shotgun wound to the face and neck. When Andrew

asked the defendant why he shot the victim, the defendant replied that the victim

had “pulled a knife” on him. Andrew Monie then phoned 9-1-1.



       The defendant’s brother, Wade Monie, testified that his shotgun was used

to kill the victim. He testified that he kept the shotgun in a case under his bed,

unloaded. Thus, the defendant retrieved the shotgun from under his brother’s

bed, uncased it, loaded it, returned to the living room, and killed the victim.


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       Police arrived at the scene and arrested the defendant. A shotgun that

smelled of freshly-fired gun powder was discovered in Wade Monie’s bedroom,

lying on top of his bed. The victim was lying on the living room floor with a screw

driver by his hand.



       The defendant was intoxicated at the time of his arrest. He was taken to

the hospital where a blood sample was taken to determine the alcohol content of

the defendant’s blood. The test revealed an alcohol level of 0.33%. The next

morning, approximately eighteen (18) hours after the defendant was arrested,

the defendant gave a statement to the police. The defendant stated that he and

the victim argued about a debt the victim owed him. The defendant stated that

the victim had a can of what the defendant believed to be “Mace,” and that the

victim threatened to spray him with it. The defendant also alleged the victim

threatened to cut him. A search of the house by the police did not reveal a can

of “Mace” or a knife. A screw driver was found by the victim’s hand. One of the

defendant’s brothers testified that the victim regularly used a screw driver to

open the victim’s door as the “lock was messed up.”



       The defense offered no proof at trial. The jury was charged as to second

degree murder and voluntary manslaughter. The defendant was convicted of

second degree murder.



                       SUFFICIENCY OF THE EVIDENCE



       The defendant contends the evidence presented at trial is insufficient to

support a verdict of guilty for second degree murder. He contends the evidence

only supports voluntary manslaughter. The defendant’s argument is that his

extreme intoxication at the time of the offense, as supported by the blood alcohol

test, prevented him from being able to “knowingly” kill the victim.




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       Where sufficiency of the evidence is challenged, the relevant question for

an appellate court 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 or crimes beyond a reasonable doubt. Tenn. R.

App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The

weight and credibility of the witnesses' testimony are matters entrusted

exclusively to the jury as the triers of fact. State v. Brewer, 932 S.W.2d 1, 19

(Tenn. Crim. App. 1996); State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).



       The defendant was convicted of the “knowing killing of another.” Tenn.

Code Ann. § 39-13-210(a)(1). “Knowing” is defined by statute as:


              ‘Knowing’ refers to a person who acts knowingly with
              respect to the conduct or to circumstances
              surrounding the conduct when the person is aware of
              the nature of the conduct or that the circumstances
              exist. 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.


Tenn. Code Ann. § 39-11-106(a)(20).



       The defendant argues that his voluntary intoxication prevented him from

“knowingly” killing the victim. Although voluntary intoxication is not itself a

defense to second degree murder, it is relevant to negate a culpable mental

state. Tenn. Code Ann. § 39-11-503(a). In this case the trial court properly

charged the jury as to the relevance of voluntary intoxication. Whether a

defendant is too intoxicated to form the requisite mental state is a question for

the jury. State v. Brooks, 909 S.W.2d 854, 859 (Tenn. Crim. App. 1995). The

jury obviously concluded that the defendant was not so intoxicated as to be

unable to form the required mental state of “knowing.” The actions of the

defendant in securing the shotgun from under the bed, removing it from its case,

loading it, returning to the living room and shooting the victim at close range

                                          4
justify the jury’s finding.



       This issue is without merit.



                                      SENTENCING



       The defendant contends the trial court imposed an excessive sentence by

erroneously failing to give weight to two (2) mitigating factors. The defendant

does not contest the trial court’s finding of the applicability of two (2)

enhancement factors, to wit: the defendant had a previous history of criminal

convictions or criminal behavior in addition to those necessary to establish the

appropriate range,1 and the defendant employed a firearm during the

commission of the offense. Tenn. Code Ann. § 40-35-114(1), (9).



       This Court’s review of the sentence imposed by the trial court is de novo

with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the

trial judge considered the sentencing principles and all relevant facts and

circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial

court fails to comply with the statutory directives, there is no presumption of

correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96

(Tenn. 1997).



       For a Class A felony the presumptive sentence is the midpoint of the

range if there are no enhancing or mitigating factors. Tenn. Code Ann. § 40-35-

210(c). The range of punishment for the Class A felony of second degree

murder is fifteen (15) to twenty-five (25) years. The midpoint sentence would be

twenty (20) years; however, there are two (2) enhancement factors that are

applicable.


       1
           The defendant had prior convictions for grand larceny and petit larceny.

                                              5
       The defendant contends the trial court erred by rejecting the mitigating

factors of voluntary intoxication and prior mental illness. Voluntary intoxication is

specifically excluded from consideration as a mitigating factor. Tenn. Code Ann.

§ 40-35-113(8). Mental illness can be a mitigating factor under Tenn. Code Ann.

§ 40-35-113(8); however, there is no evidence that the defendant was suffering

from any mental disease or defect at the time of the killing. The trial court

properly disregarded these mitigating factors, and we decline to disturb the

sentence it imposed.



       The judgment of the trial court is AFFIRMED.




                                                  _________________________
                                                  JOE G. RILEY, JUDGE


CONCUR:




_____________________________
CURWOOD WITT, JUDGE




_____________________________
ROBERT W. WEDEMEYER,
SPECIAL JUDGE




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