       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                  FILED
                           AT KNOXVILLE                          July 13, 1999

                                                               Cecil Crowson, Jr.
                         APRIL SESSION, 1999                   Appellate C ourt
                                                                   Clerk



STATE OF TENNESSEE,   )          C.C.A. NO. 03C01-9810-cr-00368
                      )
    Appellee,         )
                      )
                      )          HAMILTON COUNTY
VS.                   )
                      )          HON. DOUGLAS A. MEYER
STANLEY WARREN MILLS, )          JUDGE
                      )
    Appe llant.       )          (Direct Appeal - Second Degree
                      )          Murder)




FOR THE APPELLANT:               FOR THE APPELLEE:

TOM LAND IS                      PAUL G. SUMMERS
Suite 327                        Attorney General & Reporter
744 McCallie Avenue
Chattanooga, TN 374063           TODD R. KELLEY
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 BILL COX
                                 District Attorney General

                                 RODNEY STRONG
                                 Assistant District Attorney
                                 600 Market Street
                                 Chattanooga, TN 37403



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION


       On July 25, 1996, Juvenile Court of Hamilton County charged Appellant

with the first degree murder of Keith Hood. Appellant was nearly seventeen

years old at the time of the murder and was transferred to Criminal Court to be

tried as an adult. Appellant was indicted for first degree murder on December

11, 1996. In September of the following year, a jury found Appellant guilty of

second degree murder. He was sentenced to twenty years incarceration as a

Range I Standard O ffender.

       Appellant raises the following three issues on appeal: (1) whether the

evidence was sufficient to convict him of second degree murder, rather than

voluntary manslaughter; (2) whether the trial court erred in sustaining the

State’s objection to Appellant’s counsel’s reference to the victim as a “drug

kingpin”; a nd (3) wh ether the trial court ab used its d iscretion in fa iling to

sentence h im as an es pecially mitigated offen der. After a careful review of the

record the judgment of the trial court is affirmed.

                                         Facts

       On M ay 5, 19 96, Ap pellan t attend ed a p arty at th e YMC A in

Chattanooga. At approximately 2:00 a.m. most of the attendees, including the

Appellant, left the party and gathered at a neighborhood market. While at the

marke t, a couple of individua ls, including Appella nt’s brothe r, fired guns into

the air. Ap pellant ha d stolen a gun from his father. B efore lea ving the m arket,

Appellant obtained the gun from his brother and left with two of his friends. He

was seated in the back seat of the vehicle. As Appellant and his friends rode

away, another vehicle, driven by the victim (Mr. Hood), came upon them and



                                           -2-
swerved in front of their vehicle. Appellant claimed that Mr. Hood had

threatened him, and actually shot at him one week prior to this, so when he

saw H ood sw erve in fron t of them Appella nt claime d he fea red for his life.

While Mr. Hood was stopped at a traffic light, the vehicle in which Appellant

was a p assen ger app roache d Mr. Ho od’s veh icle in the left-tur n lane.

Appe llant’s vehicle stoppe d just befo re com ing para llel to Mr. Ho od’s veh icle.

Appellant asked to be let out of the car so that he could “handle some

business.” Appellant claimed he attempted to flee, but Hood’s maneuvering of

the vehicle “made him think it was useless.” There was no other testimony

concerning an attempt to flee. Appellant claimed that he heard the “pop” of

Hood’s elec tric locks and believe d that Hood was getting ou t of the car to hurt

him, so he shot at Hood from the passenger side of Hood’s car. The bullet

entered Hood’s heart and caused internal bleeding, which led to death after

only a few minutes. The investigation after the shooting revealed that Hood

had ne ver unloc ked his d oors an d no we apon w as foun d in his car .



                         I. Sufficiency of the Evidence

      When an appellant is challenging the sufficiency of the evidence the

question to address is “whether a rational trier of fact could find from the

evidence that the essential elements of the crimes for which the defendant

stands con victed were prove n beyond a reasonab le doubt.” Jackson v.

Virgin ia, 443 U.S. 307 (1979). “A jury conviction removes the presumption of

innocence with which a defendant is initially cloaked and replaces it with one

of guilt, so that on appeal a convicted defendant has the burden of

demon strating that the eviden ce is insufficient.” State v. Tug gle, 639 S.W.2d

913, 914 (Tenn. 1982). The Court of Criminal Appeals does not “reweigh the

                                          -3-
evidence adduced at a criminal trial. A guilty verdict, approved by the trial

judge , accre dits the testim ony of th e State ’s witne sses and re solves all

conflicts in testimony in favo r of the theory of the state .” State v. H atchett, 560

S.W .2d 627 , 630 (T enn. 19 78).

       Appe llant claims on app eal that the evidenc e could o nly supp ort a

conviction for voluntar y mans laughte r, rather tha n seco nd deg ree mu rder.

Second degree murder is a “knowing killing of another.” Tenn. Code Ann. §

39-13-210. “Kno wing” is “when the pe rson is aware that the cond uct is

reasonab ly certain to cause the result.” Id., § 39-11-106 (a)(20). Voluntary

Manslaughter is “the intentional or knowing killing of another in a state of

pass ion pro duce d by ad equa te prov ocatio n suffic ient to le ad a re ason able

person to ac t in an irrational mann er.” Id., § 39-13 -211.

       Here, the jury accredited the testimony of the State’s witnesses and

discredited the testimony of the Appellant and determined that there was

insufficient provocation to warrant a verdict finding Appellant guilty of volunta ry

manslaughter. This was the prerogative of the jury and we will not second-

gues s the d ecisio n of tha t pane l on the ques tion of p rovoc ation. T his issu e is

without m erit.



                   II. Reference to Victim as “Drug Kingpin”

       Appe llant next co ntends that susta ining the S tate’s obje ction to

Appellant’s counsel’s reference in his closing argument to the victim as a “drug

kingpin” had the effect of making the jury discount Hood’s actions and

foreclose d cons ideration o f the hom icide as vo luntary m anslau ghter.

Howe ver, we dis agree. T he State conten ded at trial th at “kingpin ,” while not a

legal term, is a term that carries a high prejudicial connotation and there was

                                           -4-
no evidence in the proof to support it. While evidence of the reputation of the

victim fo r peac e or viole nce in the co mm unity is “g enera lly adm issible a s is

proof of specific acts of violence directed toward the defendant by the person

he is acc used o f killing if the defe ndant c laims to h ave bee n motiva ted to self-

defense, by fea rs engend ered by such knowledge ,” Broz v. S tate, 472 S.W.2d

907, 910 (Tenn. Crim. App. 1971), evidence of the victim’s drug-related

activities are irre levant. See e.g., State v. Copenny, 888 S.W.2d 450 (Tenn.

Crim. App. 1993). Appellant was allowed to testify regarding the incident one

week before the killing , when the victim allege dly sho t at App ellant. E ven if

there had been evidence that the victim was a “drug kingpin,” such information

is not relevant and it is not a justification for a killing. Appellant was not

entitled to characterize the victim in a pejorative manner in order to create an

inference that the ho micide w as justifiable . This issu e is withou t merit.




                                    III. Sentencing

       Appellant next asserts that rather than being sentenced as a Range I

standard offender, he should have been sentenced as an especially mitigated

offender. Our review of the trial court’s sentencing is “de novo with a

presumption of correctness conditioned upon the affirmative showing in the

record that the trial court considered the sentencing principles and all relevant

facts and circum stances.” State v. Ashby, 823 S.W .2d 166 , 169 (T enn. 19 91).

Appellant has the burden of establishing that the sentence imposed by the trial

court is erroneous. In determining whether this burden has been met, we

must consider the evidence received at trial and the sentencing hearing, the

                                           -5-
presentence report, the principles of sentencing, arguments of counsel, the

nature and circumstances of the offense, existing mitigating and enhancing

factors, sta temen ts mad e by the o ffender, a nd pote ntial for reha bilitation.

Tenn. Code Ann. § 40-35-210. Appellant has not satisfied this burden. The

evidence, sentencing principles, and relevant facts and circumstances do not

show th at the sen tence im posed by the trial co urt was e rroneou s.

       For this offens e, whic h is a C lass A felony, th e pres ump tive sen tence is

twenty years. The sentence is then raised or lowered after balancing

mitigating and enhancement factors. Tenn. Code Ann. § 40-35-2 10(d), (e).

“The weight afforded mitigating or enhancement factors derives from

balancing relative degrees of culpability within the totality of the circumstances

. . .. In other words, the weight that is given to any existing factor is left to the

trial court’s discretion so long as . . . its findings are suppo rted by the record .”

State v. Mars hall, 870 S.W .2d, 532 , 541.

       The “trial court may find the defendant to be an especially mitigated

offender if he has no prior felony convictions and the court finds mitigating, but

no enh ancing factors.” T enn. C ode An n. § 40-35-109 (a). “The word ‘may’

when used in a stat ute or ru le usu ally indic ates th at the a ct to wh ich it refe rs is

discretionary rather than mandatory, and will be so construed unless the

context indicates a different mean ing.” State v. Braden, 867 S.W.2d 750, 762

(Tenn. C rim. App. 199 3). The que stion of whethe r the Appellant sh ould have

been sentenced as an especially mitigated offender “rests within the sound

discretion of the trial court.” Id. Here, the cou rt found three m itigating factors

listed in section 40-35-113 of the Tennessee Code: (1) Appellant acted under

strong p rovocatio n; (2) sub stantial gro unds e xisted tend ing to excu se or justify

his criminal conduct, though failing to establish a defense; and (3) because of

                                            -6-
his youth, A ppellant la cked su bstantial jud gmen t in comm itting the offen se.

Howe ver, the trial co urt also fou nd an e nhanc emen t factor und er § 40-3 5-114.

The enhancement factor that the trial court found was Appellant’s previous

history of criminal behavior. If the trial court’s finding of an enhancement

factor was correct, Appellant “did not qualify as an especially mitigated

offende r.” Tenn . Code Ann. S ec. 40-3 5-109(a )(2); Braden, 867 S.W.2d at

763.

       Appellant argues that while he did have juvenile arrests for criminal

trespass, evading arrest, criminal impersonation and disorderly conduct after

the com mission of the insta nt offense , they are still pe nding in J uvenile C ourt;

therefore, the trial court should not have considered them as enhancing

factors of this offense. We agree with this argument. Section 40-35-114

states that the defendant’s previous history of criminal convictions or criminal

behavior” may be considered enhancement factors. Tenn. Code Ann. § 40-

35-114(1). The trial court concluded that Appellant’s juvenile arrests for the

aforem entione d cond uct cons tituted “crim inal beha vior” unde r the statute .

       W e add resse d a sim ilar situa tion in State v. Buck meir, where this court

held that it was improper for a trial judge to consider pending criminal charges

as evidence of “previous criminal behavior” to enhance a sentence under

Section 40-35-114(1). We held that there was “no evidence in the record that

these charges against the defendant were anything more than charges, the

defendan t is presume d innocent un til convicted.” State v. Buck meir, 902

S.W.2d 418, 424 (Tenn. Crim. App. 1995). Such is the case here. The

charges pending in juvenile court are “nothing more than charges and the trial

court sho uld not us e eviden ce me rely show ing arres ts, without m ore, to

enhance a sentence .” State v. Mars hall, 870 S.W.2d 532, 541 (Tenn. Crim.

                                          -7-
App. 1994 ) (citing State v. Newsome, 798 S.W.2d 542, 543 (Tenn. Crim. App.

1990)); see also State v. Miller, 674 S.W.2d 279 (Tenn. 1984). Therefore, the

trial court should not have considered these charges as an enhancement

factor.

          However, this does not end the inquiry. It is clear that Appellant used a

firearm in the commission of the instant offense, a factor that the trial judge

inexplic ably faile d to co nside r. This is clear ly and a pprop riately a n app licable

enhance ment factor in this ca se. See, Te nn. Code Ann. Sec . 40-35-14(a);

State v. Butler, 900 S.W.2d 305 (Tenn. Crim. App. 1994). The presence of

this valid enhancement factor disqualifies Appellant from consideration as an

espec ially mitigated offende r and am ply supp orts his twe nty year se ntence .

This issu e is withou t merit.

          Having reviewed the issues presented we find no reversible error and

AFFIR M the jud gmen t of the trial cou rt.




                                    ____________________________________
                                    JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




                                            -8-
