         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 10, 2002

                   STATE OF TENNESSEE v. CLEMMIE RHYAN

                       Appeal from the Criminal Court for Shelby County
                          No. 99-08934    John P. Colton, Jr., Judge



                    No. W2001-03019-CCA-R3-CD - Filed January 27, 2003


A Shelby County Criminal Court jury convicted the defendant, Clemmie Rhyan, of second degree
murder, a Class A felony, and the trial court sentenced him as a Range I, violent offender to twenty-
two years in the Department of Correction (DOC). The defendant appeals, claiming (1) that the
evidence is insufficient to support his conviction; (2) that the trial court erred by refusing to instruct
the jury on self-defense; and (3) that his sentence is excessive. We affirm the judgment of the trial
court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE G.
RILEY, JJ., joined.

A C Wharton, Jr., District Public Defender; W. Mark Ward, Assistant District Public Defender (on
appeal); and Gwendolyn Rooks, Assistant District Public Defender (at trial), for the appellant,
Clemmie Rhyan.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Charles W. Bell, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

         This case relates to the defendant’s shooting and killing the victim, Kenneth Suiter. Sergeant
Larry Colburn of the Memphis Police Department testified that at 6:44 p.m. on December 3, 1998,
he was dispatched to the Metro Market Grocery Store at 1378 North Hollywood Street. He saw the
victim lying on his back in a grassy area that was just south of the store’s parking lot. The area was
littered with empty bottles and was separated from the parking lot by a concrete retaining wall that
was about thirty inches tall. The victim had been shot once in the chest and was dead. Sergeant
Colburn saw an empty pack of cigarettes on the ground next to the victim’s left hand, empty wine
and beer bottles next to the victim’s right arm, and an empty whisky bottle under the victim’s right
knee. Sergeant Colburn also saw a kitchen knife, partially covered by trash, on the ground near the
victim. He photographed the scene, took measurements, and collected the knife, bottles, and
cigarette pack. On cross-examination, he said that he did not know if fingerprints were recovered
from the items he collected or if someone moved the body before he arrived.

        Lawrence Yancy testified that in December 1998, he worked nights at a Target store. He said
that on December 3, he got out of bed about 4:30 p.m. and walked to the Metro Market in order to
get a beer before he went to work. He said that before he went into the store, he sat on the retaining
wall outside the store for a few minutes. He said that he saw the defendant and the victim walking
and talking together and that the men did not appear to be arguing. He said that he could tell the
defendant and the victim had been drinking because they were staggering. He said he went into the
store, bought a beer, and went outside and sat on the retaining wall. He said that the victim also was
sitting on the wall and that the defendant was standing in front of the victim. He said that he was
about an arm’s length from the defendant and the victim and that they were arguing. He said that
the argument escalated and that the victim cursed the defendant. He said the victim told the
defendant, “[You] can go on and pull out that rusty ass knife. I’ll take it from you.” He said the
defendant replied, “[You] ain’t going to take shit from me.” He said that the defendant shot the
victim with a handgun and that the victim fell backward into the grassy area. He said that he was
afraid and that he ran away. He said that as he was running, he heard the victim say, “[Please] don’t
shoot me again.”

        Mr. Yancy testified that he ran to his stepdaughter’s house and told her what had happened.
He said that after he returned home, he changed clothes, collected his thoughts, and went to the crime
scene to see if the victim was dead. He said the police were at the Metro Market and had covered
the victim’s body with a body bag. He said he did not tell the police what he had seen and went
home. He said that the next day, the police contacted him and he went to the police station. He said
he gave a statement and picked the defendant’s picture out of a photograph array.

        Mr. Yancy testified that he had not been drinking when he saw the defendant shoot the
victim. He acknowledged that the retaining wall was a popular place for people to gather and drink.
He said that although the victim was cursing at the defendant, he did not see anything in the victim’s
hands and the victim never got off the retaining wall or made any gestures toward the defendant
before the defendant shot the victim. He acknowledged having a prior conviction for misdemeanor
theft.

        On cross-examination, Mr. Yancy testified that when he first arrived at the Metro Market and
sat on the wall, someone named Big Daddy also was at the wall. He said that when the defendant
shot the victim, he and Big Daddy ran away. He acknowledged that in his statement to police, he
said that the defendant “just clicked due to being cursed.” He denied telling the police that the
defendant said to the victim, “You ain’t got nothing, you ain’t going to take shit from me, trick. You
ain’t got nothing but a rusty ass knife. I’ll take the knife from you and kick your ass with it.”
Instead, he said the victim made those statements to the defendant.



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        Dr. Cynthia Gardner, the Assistant Medical Examiner for Shelby County, testified that the
victim died from a gunshot wound to the chest. The bullet penetrated the victim’s heart, and he may
have lived for a few minutes after the shooting. She acknowledged that during that time, he may
have tried to get up. She said the victim had an abrasion on his forehead that may have been caused
by the victim falling. She said the abrasion also could have been caused by the victim being struck
in the head with a blunt object. At the time of his death, the victim had a blood alcohol content
(BAC) of .18 percent. She said the gun used to kill the victim was fired from more than two feet
away. On cross-examination, she said that in order for the six foot, two hundred seven pound victim
to have had a BAC of .18 percent, he had to have consumed eight to ten drinks.

        Tarlisha Carey, Lawrence Yancy’s stepdaughter, testified for the defense that she lived one
block from the Metro Market and that on December 3, 1998, Mr. Yancy came to her house and told
her that someone had been shot. She said that earlier that day, she and Mr. Yancy had been smoking
crack and drinking beer in her home. On cross-examination, she acknowledged telling a prosecutor
that she had been taking drugs on December 3 and did not remember what had happened that day.
She also acknowledged that she did not tell the prosecutor about Mr. Yancy drinking and smoking
crack with her on December 3. She said, though, that the prosecutor never asked her about it. She
said that at 11:30 p.m. on December 3, the police came to her house but that she was not home. She
acknowledged talking to the defendant’s attorney about the case and having a prior conviction for
misdemeanor theft. A jury convicted the defendant of second degree murder.

                           I. SUFFICIENCY OF THE EVIDENCE

        The defendant claims that the evidence is insufficient to support his conviction. He contends
that, at most, he is guilty of voluntary manslaughter because the evidence shows that he and the
victim were in a heated argument, that the victim was cursing him and had threatened to take
something from him, and that he “just clicked.” The state argues that the evidence is sufficient to
support the defendant’s second degree murder conviction. We agree with the state.

        Our standard of review when the defendant questions the sufficiency of the evidence 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 (1979). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

       A conviction for second degree murder requires proof that the defendant unlawfully and
knowingly killed another. See Tenn. Code Ann. §§ 39-13-201, -210(a)(1). 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. § 39-11-302(b).



                                                -3-
        Viewed in the light most favorable to the state, the evidence shows that the defendant
unlawfully and knowingly killed the victim. Mr. Yancy testified that the victim was sitting on the
retaining wall and cursing the defendant. The victim made a comment about the defendant’s having
a rusty knife and stated that he was going to take it away from him. However, Mr. Yancy, who was
sitting an arm’s-length from the victim, did not see the victim make any gestures toward the
defendant and did not see the victim get off the retaining wall. We believe that a rational jury could
have found that the defendant was angry with the victim as a result of their arguing and that he shot
the victim knowing that his conduct was reasonably certain to cause the victim’s death. We note that
the trial court instructed the jury as to voluntary manslaughter, but the jury believed that the
defendant knowingly killed the victim without adequate provocation. “Whether the acts constitute
a ‘knowing killing’ (second degree murder) or a killing due to ‘adequate provocation’ (voluntary
manslaughter) is a question for the jury.” State v. Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App.
1995). We conclude that the evidence is sufficient to support the conviction.

                              II. SELF-DEFENSE INSTRUCTION

        Next, the defendant claims that the trial court erred by refusing to instruct the jury on self-
defense. He claims that a self-defense instruction was warranted because the jury could have
inferred from the evidence that the victim possessed a knife and that the defendant was attempting
to prevent the victim from robbing him. The state argues that the trial court was not required to give
a self-defense instruction because the evidence shows that the defendant possessed the knife and that
he could not have reasonably believed that he was in imminent danger of death or serious bodily
injury. We conclude that the trial court did not err by refusing to instruct the jury on self-defense.

         In Tennessee, the law of self-defense is fundamental to a case when the evidence fairly raises
it as an issue. See Myers v. State, 185 Tenn. 264, 268, 206 S.W.2d 30, 32 (1947). To determine
whether self-defense is fairly raised by the proof and must be instructed 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. Bult, 989 S.W.2d 730, 733 (Tenn.
Crim. App. 1998), app. denied (Tenn. 1999) (quoting State v. Shropshire, 874 S.W.2d 634, 639
(Tenn. Crim. App. 1993)). A person is justified in using force against another person when he or
she reasonably believes (1) that death or serious bodily injury is imminent and (2) that the force used
is immediately necessary to protect against the other person’s use or attempted use of unlawful force.
Tenn. Code Ann. § 39-11-611(a).

         In this case, self-defense was not fairly raised by the evidence. Although a knife was
recovered from the crime scene, the evidence did not reveal to whom it belonged or if it was related
to the shooting. In any event, Mr. Yancy testified that before the shooting, he did not see anything
in the victim’s hands and heard the victim say to the defendant, “[You] can go on and pull out that
rusty ass knife.” Thus, if a knife was involved in this case, the evidence indicates that the defendant,
not the victim, possessed it. Even assuming arguendo that the victim had a knife, Mr. Yancy
testified that he did not see the victim make any gestures toward the defendant and that the defendant
shot the victim while the victim remained seated on the retaining wall. Neither the state nor the


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defendant presented any evidence regarding the victim’s attempting to rob the defendant. We
conclude that the defendant was not entitled to a self-defense instruction.

                                  III. EXCESSIVE SENTENCE

       Finally, the defendant claims that his twenty-two-year sentence is excessive because the trial
court misapplied enhancement factors and failed to consider applicable mitigating factors. The state
claims that the trial court properly sentenced the defendant. We conclude the defendant’s twenty-
two-year sentence is proper.

         At the sentencing hearing, the then forty-eight-year-old defendant testified that he could read
a little and had worked part-time before he was arrested. He acknowledged that he had lived with
his mother most of his life and had prior convictions. He said that at the time of the offense, he
weighed one hundred sixty pounds and that the victim weighed over two hundred pounds. He said
that the victim was a bully and that two to three hours before he shot the victim, he and the victim
had gotten into a fight. He said that just before the shooting, the victim “came at me again” and that
he shot the victim in self-defense. He said that other people witnessed his first fight with the victim
but that none of them would testify. He said that at the time of the shooting, he did not see Lawrence
Yancy at the Metro Market and that Mr. Yancy lied at trial. He said that he was sorry for what had
happened and that he was taking medication in jail. He said that he, the victim, and the victim’s
brother had gone to school together and that he had dreams every night. On cross-examination, the
defendant acknowledged that he had a serious drinking problem. He also acknowledged that he had
a prior conviction for robbery but said he was framed for that crime.

        Bertha Johnson, the defendant’s sister, acknowledged that the defendant lived with his
mother and that “the family kind of picked up and helped him along the way.” She said that since
the shooting, her brother had changed. She said the defendant was sad, remorseful, and had been
on a suicide watch in jail. She said he was on medication for depression and was sorry for what had
happened.

         According to the presentence report, the defendant graduated from high school and received
a certificate in furniture refinishing. The report shows that he has two adult children and has worked
as a mechanic and a tree cutter since 1983. He stated that his physical and mental health were poor
and that he took medication for depression, anxiety, and pain. In the report, the defendant said that
he started drinking as a teenager and continued to drink until he was incarcerated in 1998. He said
that he had not used drugs and that he had not participated in any alcohol or drug treatment
programs. The report reveals that the defendant was convicted of armed robbery in 1981 and car
theft in 1975. He also has prior convictions for disorderly conduct, possession of a weapon, and
driving under the influence (DUI).

         The defendant argued that the trial court should apply the following mitigating factors, as
listed in Tenn. Code Ann. § 40-35-113:



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                 (2) The defendant acted under strong provocation;

                 (3) Substantial grounds exist tending to excuse or justify the
                 defendant’s criminal conduct, though failing to establish a defense;
                 [and] . . .

                 (11) 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[.]

The state argued that no mitigating factors applied and that the trial court should apply enhancement
factor (1), that the defendant has a previous history of criminal convictions or behavior in addition
to those necessary to establish the range; factor (10), that he had no hesitation about committing a
crime when the risk to human life was high; and factor (16), that he committed the crime under
circumstances in which the potential for bodily injury to the victim was great. See Tenn. Code Ann.
§ 40-35-114(1), (10), (16) (Supp. 2001) (amended 2002).1

        The trial court ruled as follows:

                 In this particular case we have a death being involved where the
                 [victim] died in this case. And taking into consideration the victim
                 impact statement, which the court has considered and read by this
                 victim’s family, the presentence report, the prior record of defendant,
                 statements of counsel, the mitigating factors filed by defendant and
                 the enhancing factors filed by the state, the court finds that the
                 defendant should be sentenced and must be sentenced according to
                 the law mid-range and finds enhancing factors to allow the court to
                 sentence this defendant to 22 years, range I, Tennessee Department
                 of Corrections.

       Appellate review of sentencing is de novo on the record with a presumption that the trial
court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing
Commission Comments to this section note, the burden is now on the defendant to show that the
sentence is improper. This means that if the trial court followed the statutory sentencing procedure,
made findings of fact that are adequately supported in the record, and gave due consideration and
proper weight to the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, we may not disturb the sentence even if a different result were preferred. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991).


        1
          The legislature’s 200 2 am endment to Tenn. Code Ann. § 40-35-114 added as the new enhancement factor (1)
that the “offense was an act of terrorism” b ut changed the existing enhan cement facto rs only in inc reasing their
designating number by one. Thus, former enhancement facto r (1) is now enhancement factor (2), factor (10) is now
factor (11), and factor (16) is now factor (17).

                                                        -6-
        However, “the presumption of correctness which accompanies the trial court’s action 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). In this respect, for the purpose of meaningful appellate review,

                the trial court must place on the record its reasons for arriving at the
                final sentencing decision, identify the mitigating and enhancement
                factors found, state the specific facts supporting each enhancement
                factor found, and articulate how the mitigating and enhancement
                factors have been evaluated and balanced in determining the sentence.
                T.C.A. § 40-35-210(f) (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).

         The sentence to be imposed by the trial court is presumptively the midpoint in the range for
a Class A felony unless there are enhancement factors present. Tenn. Code Ann. § 40-35-210(c).
Procedurally, the trial court is to increase the sentence within the range based upon the existence of
enhancement factors and, then, reduce the sentence as appropriate for any mitigating factors. Tenn.
Code Ann. § 40-35-210(d)-(e). The weight to be afforded an existing factor is left to the trial court’s
discretion so long as it complies with the purposes and principles of the 1989 Sentencing Act and
its findings are adequately supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing
Commission Cmts.; State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986); see Ashby, 823 S.W.2d at
169. In this case, the trial court failed to state at the sentencing hearing which enhancement and
mitigating factors it found applicable. At the motion for new trial hearing, the trial court stated that
it had applied enhancement factor (1) because the defendant had been convicted of armed robbery
and had been “in trouble over a period of time.” As to factors (10) and (16), the trial court did not
state at either hearing any specific facts that supported their application. In addition, the trial court
did not indicate the weight given to the three factors. We believe this does not satisfy the
requirements of § 40-35-210(f). Therefore, we review the defendant’s sentence de novo without a
presumption of correctness.

        In conducting our de novo review, we must consider (1) the evidence, if any, received at the
trial and sentencing hearing, (2) the presentence report, (3) the principles of sentencing and
arguments as to sentencing alternatives, (4) the nature and characteristics of the criminal conduct,
(5) any mitigating or statutory enhancement factors, (6) any statement that the defendant made on
his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102,
-103, -210; see Ashby, 823 S.W.2d at 168; Moss, 727 S.W.2d at 236-37.

        The defendant claims that the trial court erroneously applied enhancement factors (10), that
he had no hesitation about committing a crime when the risk to human life was high, and (16), that
the circumstances of the offense presented great potential for bodily injury to the victim, to his
sentence because those factors are inherent in second degree murder. In addition, he contends that
the provocation in this case was sufficient to warrant applying mitigating factors (2), (3), and (11).


                                                  -7-
The state agrees that the trial court misapplied enhancement factors (10) and (16). However, it
contends that the defendant’s twenty-two-year sentence is justified because in addition to
enhancement factor (1), that the defendant has a previous history of criminal convictions, factor (9),
that the defendant employed a firearm during the commission of the offense, also applies.

         As a Range I offender convicted of a Class A felony, the defendant’s presumptive sentence
is twenty-years. See Tenn. Code Ann. §§ 40-35-112(a)(1), -210(c). The defendant does not contest
the trial court’s application of enhancement factor (1). Moreover, we agree with the state that factor
(9) is applicable because there is no question that the defendant committed the crime with a firearm.
In light of these two enhancement factors, we believe that a twenty-two-year sentence is proper. In
addition, we believe that if the defendant is entitled to any mitigation based upon his being provoked
or the circumstances of the crime, it would not reduce the defendant’s sentence in this case. We
affirm the defendant’s twenty-two-year sentence.

       Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.




                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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