        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 15, 2013

            STATE OF TENNESSEE v. CLIFTON WILLIAMS, JR.

                Appeal from the Circuit Court for Rutherford County
                         No. F-65511    David Bragg, Judge


                  No. M2012-00902-CCA-R3-CD - Filed July 30, 2013


A jury convicted the defendant, Clifton Williams, Jr., of voluntary manslaughter, a Class C
felony. The defendant also pled guilty to unlawful possession of a firearm by a felon, a Class
E felony. He was sentenced as a Range II offender to eight years’ confinement for the
manslaughter conviction and four years’ confinement for the felon in possession of a firearm
conviction, to be served consecutively. The defendant appeals, challenging the sufficiency
of the evidence supporting his conviction for manslaughter. The defendant also asserts that
the trial court erred in failing to include the definition of curtilage in the self-defense
instruction, in enhancing the defendant’s sentences, and in imposing consecutive sentences.
After a thorough review of the record, we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

P AUL G. S UMMERS, S R.J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Gerald Lynn Melton, District Public Defender; and John Driver and S. Ray White, Assistant
District Public Defenders, for the appellant, Clifton Williams, Jr.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel E. Willis, Senior Counsel;
William C. Whitesell, District Attorney General; and Jennings H. Jones and Jude P. Santana,
Assistant District Attorneys General, for the appellee, State of Tennessee.
                                         OPINION

                          I. Facts and Procedural Background

       The defendant’s convictions are the result of an encounter initiated by three men who
came to the defendant’s back door at night, banging on the door and demanding that the
defendant come out to tell them the whereabouts of a person named “Small Head,” whom
they believed to be inside but who was actually a previous resident of the apartment. The
defendant ultimately shot and killed one of the men, who was standing in the nearby parking
lot. The victim had a gun in his pocket.

       The defendant was indicted for first degree premeditated murder and unlawfully
possessing a handgun after having been convicted of a felony. During the jury trial, the
State’s first witness was Jose Zavala, one of the three men who had come to the defendant’s
door. Mr. Zavala testified that around 9:00 p.m. on February 22, 2010, he returned home to
find his back door open, window broken, and his television and two video game consoles
missing. He called two of his friends, James Coats and Daniel Cartwright, the victim, to help
him discover information about the break-in, and they came over to his home. He then
received information from another acquaintance which led him to go to the defendant’s
apartment. As “it was starting to get darkish,” the three walked over to the residence. He
was not aware of whether or not any of the threm had a weapon.

        For “about five minutes straight” Mr. Zavala knocked on the door and received no
response. At the end of that time, the defendant appeared on the other side of the pane of
glass in the door, and Mr. Zavala asked for Jerome or his brother, who went by the name
“Small Head.” The defendant stated he did not know them, and Mr. Zavala countered that
he had dropped them off at the residence the previous week. The defendant then said that
they no longer lived there, which Mr. Zavala found suspicious. The defendant refused to
come outside to talk to Mr. Zavala, who was joined by Mr. Coats on the porch. Mr. Zavala
testified that he told the defendant to come out and talk to them. He did not try to force his
way into the house or threaten to do so, did not threaten the defendant with harm, and did not
brandish a weapon at the defendant. He testified he did not observe anyone other than the
defendant point a weapon that night.

       While Mr. Zavala was speaking with the defendant, Brandon Buchanan, who lived
next door and was an acquaintance of Mr. Zavala’s, came out, and Mr. Zavala jumped off
the defendant’s porch and went to Mr. Buchanan’s. Mr. Buchanan informed him that Jerome
and his brother no longer lived there. Mr. Zavala and Mr. Buchanan spoke for about five
minutes, and in the meantime, Mr. Coats had moved off the porch, and he and the victim
were standing “boxed in between two cars.” Mr. Zavala testified that at that point, “the door

                                             -2-
flew open,” and the defendant came out and started shooting “straight ahead at” Mr. Coats
and the victim. Mr. Zavala fled after the third or fourth shot was fired. Mr. Zavala and Mr.
Coats reunited at Mr. Zavala’s house but were unable to contact the victim. Mr. Zavala’s
ex-girlfriend called the police looking for the victim, and Mr. Zavala and Mr. Coats went to
the station, where Mr. Zavala gave a statement and identified the defendant from a
photographic line-up as the shooter.

       Mr. Zavala’s written statement recited the theft/burglary and his attempt to retrieve
the stolen property. He stated that the three men knocked on the back door and that the
defendant would not open the door or come out, which Mr. Zavala characterized as “weird
and shady.” The neighbors came out, and Mr. Zavala went to talk to Mr. Buchanan, who told
him that “Small Head” didn’t live there anymore. The defendant then swung open the door
and charged down the stairs shooting.

        On cross-examination, Mr. Zavala testified that he had not initially called the police
regarding the burglary because he did not think the police would recover his possessions.
He acknowledged he called Mr. Coats because he suspected Mr. Coats was involved in the
burglary of his home. He testified that he did not know that the victim had a weapon and that
Mr. Buchanan’s porch was about five or six feet from the defendant’s porch. Apparently
referring to the proximity of the victim and Mr. Coats to the defendant’s porch, Mr. Zavala
testified they were “real close” and agreed that the distance might have been ten feet. He
testified that the defendant did not pause but was shooting “as soon as the door flew open.”
He could not see Mr. Coats or the victim because a car was blocking his view. He testified
that he and Mr. Coats stayed at his house for about three hours after the shooting. He
acknowledged that he had called jails looking for the victim. Mr. Zavala testified he was
wearing a hoodie during the incident but took it off to go to the police station. On redirect
examination, Mr. Zavala testified that the defendant emerged from his home and began
walking down the steps shooting with his arms held straight ahead.

        The State next called James Coats, who had accompanied the victim and Mr. Zavala
to the defendant’s home. Mr. Coats’s testimony was substantially the same as Mr. Zavala’s
regarding the events that led to the men approaching the defendant’s home. Mr. Coats
testified he was not armed. Mr. Zavala knocked a “regular knock” on the door, and Mr.
Coats and the victim stood between two cars about ten feet or less from the door while Mr.
Zavala spoke to the defendant, asking for Small Head or Jerome. Mr. Coats joined Mr.
Zavala after six or seven minutes and told the defendant that “this ain’t got nothing to do
with you. I’m just trying to find my friend’s stuff or find out where Small Head and Jerome
are....” Mr. Zavala told Mr. Coats that he had heard the defendant fasten the dead bolt. Mr.
Coats denied threatening the defendant and testified that the defendant was smiling during
the entire conversation and did not appear frightened. When the neighbors came out, Mr.

                                             -3-
Coats went back and stood with the victim, and Mr. Zavala went to the neighbors’ porch to
talk with them. At that point, Mr. Coats heard the door open, and the defendant emerged,
told them, “This is my house,” and began to shoot. Mr. Coats testified that he did not wear
contact lenses and could not see well at a distance.

        Mr. Coats’s written statement, which was generally consistent with his testimony, was
introduced into evidence. Mr. Coats wrote that Mr. Zavala was very mad about the burglary
of his home. According to the written statement, the defendant would not come out, locked
the deadbolt and left briefly. The defendant continued to deny knowledge of the crime, in
Mr. Coats’s opinion, “sarcastically.” The neighbors came out, and Mr. Zavala left to talk to
them. Mr. Coats went to stand by the victim. The defendant burst out the door, and Mr.
Coats turned to face him, thinking the defendant would try to “swing on” him. The
defendant started firing, and Mr. Coats felt a bullet go by his face and ran.

        On cross-examination, Mr. Coats testified he and the victim had smoked marijuana
earlier that day. Mr. Coats testified he and the victim were in the parking lot, next to the
concrete walkway that led from the apartment’s back porch to the parking lot, when the
shooting happened. He testified they arrived at 11:00 p.m. and that Mr. Zavala knocked two
or three times before the defendant came to the door, and that the defendant could see Mr.
Zavala through the door.

        Daniel Parkhurst, an officer with Murfreesboro Police Department, testified that he
responded to a report of shots fired, which he received at 10:57 p.m. At first, he found no
evidence of shots fired, but a resident in the complex alerted him that the shots had come
from behind the residence. He found the victim lying on his back between two vehicles.
Officer Parkhurst interviewed potential witnesses. Mary Hathaway, her brother, and Mr.
Buchanan, who all lived in the apartment next to the defendant, told him they had heard a
shot but had not seen anything. Officer Parkhurst spoke with the residents of the defendant’s
apartment, including the defendant, who told him that he had been in the shower and heard
someone banging on the back door. The defendant told Officer Parkhurst that as he came
down the stairs, he heard a shot and then silence. Officer Parkhurst also interviewed Shirley
Davidson and Geraldine Carruth in the defendant’s apartment. Both women testified they
had been asleep when they were awoken by a gunshot. The woman who lived on the other
side of the defendant told Officer Parkhurst that she had heard six to eight gunshots but had
been too frightened to look outside. She had instead alerted 911. Officer Parkhurst secured
the scene.

       On cross-examination, Officer Parkhurst agreed that the victim’s feet were past the
front wheel of the vehicle next to which he was lying. He testified that the residents of the
neighborhood where the crime took place were not always cooperative and occasionally gave

                                             -4-
conflicting statements to police.

       Dr. Sandra Thomas of the Medical Examiner’s Office performed the victim’s autopsy.
She determined that the cause of death was a gunshot wound which entered below his left
eye. She testified the victim would have dropped “like a rock,” would have had no further
motor control, and would have been unable to put a weapon into his pocket. The victim’s
blood tested positive for marijuana.

        Detective Ed Gorham of the Murfreesboro City Police Department investigated the
scene. The victim’s body, was discovered between two vehicles in the parking lot. Detective
Gorham testified that the porch of Mr. Buchanan’s apartment was about twenty feet from the
porch of the defendant’s apartment. He testified the victim was not directly in front of the
door, but off to the side. Detective Gorham interviewed the residents of Mr. Buchanan’s
apartment, who told him they had heard a shot but had not seen anything. Ms. Carruth told
Detective Gorham she was asleep on the couch, heard someone at the backdoor, then heard
a shot. Ms. Davidson told him that she was asleep upstairs when the defendant woke her to
tell her to call 911 because he had heard shots. The defendant told Detective Gorham that
he was getting into the shower, heard someone at the back door, then heard one shot.
Detective Gorham searched the scene for bullet casings and looked inside five or six nearby
trash cans for evidence.

       Detective Gorham found a gun in the victim’s front pocket. The gun contained a clip
with five bullets but had no bullet in the chamber. Detective Gorham testified it would have
taken only one or two seconds to ready the gun to fire. The victim had $213 in his pocket.
Detective Gorham testified that the victim was white and did not look Hispanic. Detective
Gorham testified that he later examined the door of the defendant’s apartment and described
it as weak, noting that it “rocked in the doorframe.” He found no footprints on the door or
other evidence it had been kicked.

        Later that night, Detective Gorham spoke to Mr. Zavala and Mr. Coats. Detective
Gorham then brought the defendant to the police station, where he signed a waiver of his
right to remain silent and gave a statement in keeping with what he had told police earlier
regarding hearing a shot. In the recorded interview, the defendant stated he had been about
to get in the shower when someone kicked the door and began shouting for “Small Head.”
He saw three men, two of whom were Hispanic and wearing hoodies. The defendant stated
he heard gunshots and told his girlfriend to call the police. When Detective Gorham
informed him that he had been picked from a line-up, the defendant asked for a lawyer.

      The defendant later requested to speak with Detective Gorham again, and he gave a
second statement. In his second recorded interview, the defendant stated he was in the

                                            -5-
kitchen when there was a knock at the door. Three men were asking for “Small Head,” who
had robbed them, and they demanded that the defendant open the door. The defendant stated
that two Hispanic males who were wearing hoodies had guns, but he did not even pay
attention to the third man who stayed in the parking lot. The defendant saw the man with the
blue hoodie step off the porch and saw a weapon in his hand. One of the men jiggled the
doorknob. The defendant stated that he believed the men were going to come into the house.
Mr. Buchanan came out and spoke with one of the men for a “brief second.” During this
time, the defendant, who had not intended to open the door, got the gun. He did not brandish
the weapon and thought the men might be assaulting his neighbor. The defendant stepped
out, asking why they were there, and the man wearing a black hoodie turned around with a
gun in his hand and said, “F--- it.” The defendant jumped off the porch to avoid being shot
and emptied the gun. The defendant gave his gun to another man who was not Mr.
Buchanan.

       The defendant gave a written statement confirming what he had told detectives in the
second interview. The defendant heard someone knock on or kick his back door and try to
open it. He saw three men, two of whom had guns in their hands. The men asked for “Small
Head.” The neighbors came out, and the defendant retrieved his weapon. The defendant
opened his door to ask why the men were there, and one of the men raised his gun. The
defendant “ducked sideways” and shot without looking. He then told his girlfriend to call
the police.

        On cross-examination, Detective Gorhamconfirmed that there were several children
sleeping in the defendant’s apartment. He testified the victim did not have a permit to carry
the semi-automatic weapon with him. No fingerprints were found on the victim’s weapon,
and it was in good working condition. The bullets in the victim’s weapon were hollow-point
bullets, designed to maximize damage to the target. The victim’s pockets also contained
papers commonly used for smoking marijuana. Detective Gorham testified that he measured
the distance from the defendant’s door to the victim’s belly button with a tape measure, and
it measured twenty-one feet. He testified that the porch was about four feet wide, and the
victim was lying on his back so that his feet would have been closest to the porch.

        Detective Gorham identified the defendant’s weapon and stated it had six empty
casings in it. He confirmed that Mr. Zavala and Mr. Coats did not come to the police station
until about three and a half hours after the shooting. Mr. Zavala was wearing a plaid jacket
and baseball cap, and Mr. Coats had a blue sweatshirt and hat.

       The State next presented the testimony of Detective Richard Presley of the
Murfreesboro Police Department. After Mr. Buchanan advised him to look in a trash can,
Detective Presley recovered the weapon from a trash can that had previously been searched.

                                             -6-
The gun was in plain sight on top of the trash and contained six spent cartridges.

       Don Carman, the supervisor of the forensic firearms identification unit for the
Metropolitan Nashville Police Department Crime Laboratory, testified that the weapon
recovered from the trash can fired the six spent cartridges and the bullet recovered from the
victim’s head. Mr. Carman testified that the victim’s weapon was functional and had been
fired previously.

        The defendant called several witnesses to testify regarding the events. Geraldine
Carruth, a friend of the defendant’s girlfriend Shirley Davidson, testified that she was asleep
on the couch while Ms. Davidson, Ms. Davidson’s two oldest daughters, and Ms. Davidson’s
six-month-old grandchild were upstairs. Ms. Carruth heard pounding and kicking as though
someone were trying to break down the door. She heard men asking for “Small Head” and
threatening to “break down the f---ing door” and come into the house. The disturbance
continued for two to four minutes, and Ms. Carruth was afraid for her safety. Ms. Carruth
heard the door open and shut, covered her head with blankets, and heard gunshots. She saw
the defendant run through the living room, and she ran upstairs. Ms. Carruth testified that
the police came and asked if they knew who it was outside, but they did not give any
information. The next day, Ms. Carruth contacted the police, told them she would be leaving
for her home state that evening, and asked if they wanted a statement; they declined. On
cross-examination, she testified that at one point, she heard the defendant say, “What the f---;
is that a gun?”

       Mary Hathaway, the defendant’s neighbor, had been asleep upstairs in her home when
she heard loud arguing, banging, and people calling for “Small Head” to come out. She
heard the voices say, “We’re going to kick the door down if you don’t come out.” Ms.
Hathaway, her son, and her brother went outside, where three men wearing hoodies were on
the defendant’s porch. Ms. Hathaway did not see any guns and told the men that “Small
Head” had moved away.

        Ms. Hathaway’s son, Mr. Buchanan, then recognized Mr. Zavala, and two of the men
came to Ms. Hathaway’s porch. One of the men stood next to a car in front of the
defendant’s apartment. The defendant came out of his home, looked towards the group on
Ms. Hathaway’s porch, and said something. Then the defendant looked the other way. Ms.
Hathaway stated, “I don’t know what happened,” and the defendant started shooting. The
defendant’s gun went off two or three times and he continued shooting as he fell off the
porch. Ms. Hathaway testified that the defendant was standing on the second step leading
up to his porch. About a minute had elapsed since the defendant emerged. Ms. Hathaway
stated she at first told the police she didn’t see what had happened, but she subsequently gave
a statement when she discovered that the defendant was being tried for murder because “It

                                              -7-
wasn’t murder.” She reiterated that the victim and his friends were not knocking softly but
banging on the door, and that they threatened to kick the door down.

       On cross-examination, she stated she had given the police a different story because
she did not want to get involved. She testified that after the defendant looked toward the
victim “I don’t know what – if he seen someone or what, but he just started shooting.”

        Ms. Hathaway’s recorded interview told the events leading up to the shooting as she
had related them at trial. Ms. Hathaway first told police there were four men, but then told
the police she had only seen three but someone had told her there were four. Ms. Hathaway
stated that they almost had the situation under control prior to the shooting. Three or four
bullets went over the victim’s head. The defendant fell, and Ms. Hathaway speculated that
he thought the victim was going to come at him and kept shooting. Ms. Hathaway did not
see any of the men with weapons. Ms. Hathaway told the police that she had not told them
what she saw because she was scared that the men might come back to her house. She
acknowledged she had spoken to the newspaper.

        Ms. Hathaway’s written statement gave the same version of the events leading up to
the shooting. In her written statement, she said two of the three men came to her porch and
another was standing between two cars. The defendant came out, looked at the group on her
porch, looked at the other man, and started shooting and then fell on the ground. They did
not at first tell police what they saw but decided to speak up because they did not believe
what happened was murder.

       Brandon Buchanan, Ms. Hathaway’s son, testified that he heard banging on the
neighboring apartment’s door. He looked out the window and saw three men dressed in
black. Because they had guns, he thought they were the police. Ms. Hathaway came down
and told him the men were talking about “Small Head,” and Mr. Buchanan looked out the
window again and recognized Mr. Zavala. He went outside, and Mr. Zavala and another man
came to his porch while the third man continued to stand by a car. Mr. Buchanan tried to
clear up the misunderstanding regarding the residence of “Small Head,” and the two men
were listening to him, but the third man “was still standing right there like he was still going
to go in there like we was lying or something.” Mr. Buchanan testified that the defendant
came out and asked the men what they were doing and told them “Small Head” did not live
there. The victim, who was wearing all black, then “got to pulling like he was reaching for
something and that’s when the shots start going off.” Mr. Buchanan elaborated that he saw
the victim “pulling for” something but did not see a weapon come out of his pocket. Mr.
Buchanan testified he also heard the men threaten to come into the house.

       Mr. Buchanan’s statement to the police was introduced into evidence.              In his

                                              -8-
statement, he wrote that the defendant came out, stepped down, and told the men “Small
Head” was not there. The man by the defendant’s house said, “F--- that. Small Head in
ther[e],” and reached “for a weapon or s[omething].” The defendant started shooting and fell
back, and the other three men ran.

       On cross-examination, he testified that he was not afraid of Mr. Zavala and had
calmed Mr. Zavala down. Nobody other than the defendant fired a weapon. He testified that
the defendant was on the bottom step of the porch and had the weapon behind his back until
the victim made a motion. At that point, the defendant fell back and started shooting. The
men on the porch had guns when Mr. Buchanan first looked out but had put them away when
he came out of the house.

       The defendant testified regarding the events of that night. The defendant testified that
he had been living in the apartment for approximately one month with his girlfriend and with
four children, one of whom was his grandson. That night, a little before eleven, the
defendant was the only one awake, and he was in the kitchen when he heard banging on the
back door. The back door had an uncovered porch with concrete steps leading up to it and
a walkway to the parking lot, where there was a “No Trespassing” sign. The defendant
looked out and saw two men with hoodies. One of them had a gun in his hand, and the other
was trying to hide a gun. A third man was standing by the cars in the parking lot. The men
demanded for the defendant to open the door and for “Small Head” to come out; Mr. Coats
brandished his weapon and threatened to kick the door in. The defendant told the men that
there were children in the house. The defendant then heard the neighbors’ door open, and
Mr. Zavala, who was in a blue hoodie, left the porch. The defendant retrieved the gun and
went outside. Mr. Coats, who was wearing a black hoodie, was at the bottom of the steps on
the sidewalk.

        At this point, Mr. Coats advanced toward the defendant, who came out of the home.
Mr. Coats and the defendant met at the steps. The defendant put his hand out, and Mr. Coats
grabbed his arm. The defendant ended up at ground level, and Mr. Coats pulled a gun from
his left pocket. The defendant took out his gun and fired it. The defendant fell and fired
more shots into the air. He testified that he felt his life was being threatened when he shot
his gun. The defendant then ran through the living room and out the front door, and he threw
away the gun. The defendant had a cell phone in his home but did not know where it was.


        The defendant initially lied to the police because he didn’t know what to do. He stuck
with his first story during the first police interview because he was scared. During the second
interview, the defendant told the truth except that he made up a story about asking someone
else to throw away the gun.

                                              -9-
        On cross-examination, the defendant initially testified that he was on the porch or
steps when the shooting started, but he subsequently clarified he was on the ground when the
shooting started. The defendant stated he lied during his first interview because he was
scared and did not know how to tell the police what had happened. The defendant stated
that he had not previously told the police that Mr. Coats grabbed his arm because he “didn’t
think to say he grabbed my arm at that moment” and “didn’t know how to explain it.” The
defendant testified he had seen the victim with a weapon, but the victim had not drawn or
pointed his weapon and was not posing a threat when he was shot. He did not call the police
because he did not know where the phone was and did not want to leave through the back
door, which was partially broken and could not be secured.

       In rebuttal, the State called Detective Gorham, who testified that Ms. Carruth left him
a message the day after the shooting and that he returned her call after ten o’clock at night,
when she was out of the state. Detective Gorham testified he asked her for a written
statement when she returned to the state but had not heard from her, despite other attempts
to contact her.

        After reviewing the trial court’s instructions, the defense asked for the definition of
curtilage to be included with the self-defense instruction. The trial court denied the
defendant’s request to include the definition of curtilage in the self-defense instructions
based on the fact that the trial court found that the defendant’s door was closed, and the
altercation had ceased when the defendant left his home. Instead, the trial court charged the
jury regarding the defendant’s claim of self-defense, including that the defendant had no duty
to retreat “if the defendant had a reasonable belief that there was an imminent danger of
death or serious bodily injury, the danger creating the belief of imminent death or serious
bodily injury was real or honestly believed to be real at the time, and the belief of danger was
founded upon reasonable grounds.” The trial court did not instruct the jury regarding the
presumption of a reasonable belief of imminent death or serious bodily injury against one
who unlawfully and forcibly enters a dwelling or residence.

       The jury convicted the defendant of voluntary manslaughter. On appeal, the defendant
challenges the sufficiency of the evidence, essentially asserting that the State did not prove
beyond a reasonable doubt that the defendant did not act in self-defense. The defendant also
challenges the failure to instruct on the definition of curtilage, the length of the sentences,
and the trial court’s order that the sentences be served consecutively.




                                              -10-
                                        II. Law and Analysis

                                   A. Sufficiency of the Evidence

        An appellate court must set aside a finding of guilt if the evidence at trial was
insufficient to support that finding beyond a reasonable doubt. Tenn. R. App. P. 3(e). In
determining whether the evidence supporting a conviction is insufficient, the appellate court
does not ask itself whether it believes that the evidence established guilt beyond a reasonable
doubt, but determines 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 (1979). On appeal, the
State is entitled to the strongest legitimate view of the evidence and to all reasonable and
legitimate inferences that may be drawn from it. State v. Hall, 8 S.W.3d 593, 599 (Tenn.
1999). A guilty verdict rendered by the jury and approved by the trial court accredits the
testimony of the State’s witnesses and resolves all conflicts of evidence in favor of the
prosecution’s theory. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “Questions about
the credibility of witnesses, the weight and value of the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact, and this Court does not re-weigh or
re-evaluate the evidence.” State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003). This Court
also may not substitute its inferences drawn from circumstantial evidence for those drawn
by the trier of fact. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The defendant bears
the burden of proving that the evidence was not sufficient to sustain the conviction. Hall,
8 S.W.3d at 599.

        The defendant was convicted of voluntary manslaughter, which is “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.” T.C.A. § 39-13-211(a) (2010).
 A person acts intentionally “when it is the person’s conscious objective or desire to engage
in the conduct or cause the result” and knowingly with respect to the result of the conduct
“when the person is aware that the conduct is reasonably certain to cause the result.” T.C.A.
§ 39-11-302(a), (b). The question of whether the provocation was adequate falls to the
province of the jury. State v. Johnson, 909 S.W.2d 461, 464 (Tenn. Crim. App. 1995).

       The defendant does not dispute the evidence supporting the elements of the crime, but
alleges that the proof at trial showed he was acting in self-defense. If a defendant’s conduct
was statutorily justified, he may raise the justification as a defense to prosecution. T. C. A.
§ 39-11-601. Under the self-defense statute,

              a person who is not engaged in unlawful activity and is in a
              place where the person has a right to be has no duty to retreat

                                              -11-
                 before threatening or using force intended or likely to cause
                 death or serious bodily injury, if:
                 (A) The person has a reasonable belief that there is an imminent
                 danger of death or serious bodily injury;
                 (B) The danger creating the belief of imminent death or serious
                 bodily injury is real, or honestly believed to be real at the time;
                 and
                 (C) The belief of danger is founded upon reasonable grounds.




T.C.A. § 39-11-611(b)(2).1 The State has the burden of proving beyond a reasonable doubt
that the defendant did not act in self-defense. T.C.A. § 39-11-201(a)(3); State v. Sims, 45
S.W.3d 1, 10 (Tenn. 2001). Whether a defendant acted in self-defense is a factual question
for the jury to determine. State v. Clifton, 880 S.W.2d 737, 743 (Tenn. Crim. App. 1994).
In evaluating whether the defendant acted in self-defense, the jury must determine whether
the defendant’s belief in imminent danger was reasonable, whether the force employed by
the defendant was reasonable, and whether the defendant was without fault. State v. Renner,
912 S.W.2d 701, 704 (Tenn. 1995).

        The defendant presented evidence supporting his claim that he acted in self-defense.
The defendant testified that three armed men were banging on his door late at night and
brandishing weapons. He testified that Mr. Coats grabbed his arm, that Mr. Coats pulled out
a gun, and that this was what prompted him to fire his weapon at Mr. Coats. Mr. Buchanan
testified that the victim made a motion as though he were pulling out a weapon. The victim
was found with a weapon in his pocket.

       However, taking the evidence in the light most favorable to the State, as we must,
there was also ample evidence supporting the State’s theory that the defendant did not act in


        1
           Subsection (a) of this statute formerly read: “A person is justified in threatening or using force
against another person when, and to the degree, the person reasonably believes the force is immediately
necessary to protect against the other’s use or attempted use of unlawful force. The person must have a
reasonable belief that there is an imminent danger of death or serious bodily injury. The danger creating the
belief of imminent death or serious bodily injury must be real, or honestly believed to be real at the time, and
must be founded upon reasonable grounds. There is no duty to retreat before a person threatens or uses
force.” T.C.A. § 39-11-611(a) (2006). This statute was amended in 2007, and former subsection (a) was
replaced with a list of definitions. Consequently, unlike the sections delineating other justifications, see
T.C.A. §§ 39-11-612, -614(a), section 611 does not explicitly state that a person is justified in employing
force in self-defense. We note that the Sentencing Commission’s Comments have also not been renumbered
to reflect the current subsections of the statute.

                                                     -12-
self-defense. Mr. Zavala testified that he did not threaten to force his way into the house and
did not have or brandish a gun. He testified that while he was speaking to Mr. Buchanan, the
door flew open and the defendant immediately began to fire at Mr. Coats and the victim. Mr.
Coats testified that he did not have a weapon or threaten the defendant and that the defendant
emerged, told them it was his house, and began to shoot. Both men testified that they were
not aware the victim had a weapon and that the victim never displayed a weapon. Ms.
Hathaway told police that she saw no weapons and that the situation was almost under
control when the defendant emerged, looked toward her porch, looked at the victim, and
started shooting. The defendant initially hid his role in the shooting from police, and he
threw the weapon, which had been emptied in the altercation, in the trash can.

        The evidence consisted of conflicting testimony regarding the series of events leading
to the shooting and the placement of the persons involved. Determining the credibility of
witnesses belongs to the province of the jury. We conclude that a reasonable trier of fact
could have found that the defendant intentionally or knowingly killed the victim in a state of
passion produced by adequate provocation to lead a reasonable person to act in an irrational
manner. We also conclude that the evidence was sufficient to allow a jury to conclude
beyond a reasonable doubt that the defendant was not acting in self-defense.

                                          B. Jury charge

       The defendant next contends that it was error for the trial court to refuse to include
the definition of “curtilage” in the jury charge. The trial court has a duty to give a complete
charge of law pertaining to issues raised by the evidence and material to the defense. State
v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001). This is true even if the defense did not request the
charge. State v. Meyer, No. E2009-02294-CCA-R3-CD, 2010 WL 4618352, at *11 (Tenn.
Crim. App. Nov. 16, 2010); see Sims, 45 S.W.3d at 9; see also State v. Allen, 69 S.W.3d 181,
188 (Tenn. 2002) (“The evidence, not the theories of the parties, controls whether an
instruction is required.”). In determining whether an defense has been raised by the
evidence, the court must look at the evidence in the light most favorable to the defense and
decide whether there is evidence that reasonable minds could accept establishing the defense.
Sims, 45 S.W.3d at 9. An erroneous jury instruction is subject to a harmless error analysis.
State v. Garrison, 40 S.W.3d 426, 434 (Tenn. 2000) (holding that “harmless error analysis
is appropriate when evaluating omissions of an essential element of an offense from the jury
charge”).

        Tennessee Code Annotated provides that a person is justified in using force intended
or likely to cause death or serious bodily injury if: “(A) The person has a reasonable belief
that there is an imminent danger of death or serious bodily injury; (B) The danger creating
the belief of imminent death or serious bodily injury is real, or honestly believed to be real

                                             -13-
at the time; and (C) The belief of danger is founded upon reasonable grounds.” T.C.A. §
39-11-611(b)(2), -601. While a person acting in self-defense outside the home must meet
the requirements listed in subsections (A) through (C), a person acting within the home under
certain circumstances is entitled to a presumption that the fear of imminent death or serious
bodily injury was reasonable:

              Any person using force intended or likely to cause death or
              serious bodily injury within a residence, business, dwelling or
              vehicle is presumed to have held a reasonable belief of
              imminent death or serious bodily injury to self, family, a
              member of the household or a person visiting as an invited
              guest, when that force is used against another person, who
              unlawfully and forcibly enters or has unlawfully and forcibly
              entered the residence, business, dwelling or vehicle, and the
              person using defensive force knew or had reason to believe that
              an unlawful and forcible entry occurred.

T.C.A. § 39-11-611(c).

        In the self-defense statute, a dwelling is “a building or conveyance of any kind,
including any attached porch, whether the building or conveyance is temporary or permanent,
mobile or immobile, that has a roof over it, including a tent, and is designed for or capable
of use by people.” T.C.A. § 39-11-611(a)(5). A residence is “a dwelling in which a person
resides, either temporarily or permanently, or is visiting as an invited guest, or any dwelling,
building or other appurtenance within the curtilage of the residence.” T.C.A. §
39-11-611(a)(7). The section on self-defense defines curtilage as “the area surrounding a
dwelling that is necessary, convenient and habitually used for family purposes and for those
activities associated with the sanctity of a person’s home.” T.C.A. § 39-11-611(a)(3).
Black’s Law Dictionary defines “appurtenance” as “[s]omething that belongs or is attached
to something else” and provides by way of example that a garden is an appurtenance to the
home. Black’s Law Dictionary (9th ed. 2009).

       While the trial court gave a complete jury instruction on self-defense, it did not
instruct the jury either on the presumption of reasonableness in the home or the definition of
curtilage, as requested by the defense. We note that the record does not show that the
defendant requested the instructions on the presumption of reasonableness applicable to the
home; however, the trial court’s duty to instruct did not depend on such a request. Meyer,
2010 WL 4618352 at *10-11; see Sims, 45 S.W.3d at 9.

       In State v. Bottenfield, 692 S.W.2d 447 (Tenn. Crim. App. 1985), the defendant shot

                                              -14-
a man in the curtilage of her home, when he was within twenty feet of the entrance.
Immediately prior to the shooting, the victim had been inside the house and had assaulted the
defendant and her disabled stepfather and had broken her mother’s leg, and the victim was
threatening to again assault the defendant and enter the home. The trial court did not charge
the jury with the law regarding defense of the home, and the appellate court reversed. In
doing so, the appellate court held that “[o]ne’s own home or dwelling includes the curtilage
thereof.” Bottenfield, 692 S.W.2d at 452. Likewise, in State v. Edwards, the appellate court
reversed the trial court for failure to include the instructions on the presumption of
reasonableness inside the home. State v. Edwards, No. 01-C-019007CR00171, 1991 WL
165819, at *4 (Tenn. Crim. App. Aug. 30, 1991). Edwards reaffirmed that a dwelling
includes the curtilage, where “the victim entered the residence, made threats, grabbed a
machete, and raised the weapon against the defendant at or near the front door of the
defendant’s residence,” and was found lying dead on the front porch. Id. at *3.

        However, in State v. Meyer, this Court declined to reverse the trial court for a failure
to charge the presumption of reasonableness when the victim was shot in the curtilage.
Meyer, 2010 WL 4618352, at *11. The Court distinguished Bottenfield and Edwards on the
ground that in both Bottenfield and Edwards, the victim had previously entered the home.
Id. More critically, we note that both Bottenfield and Edwards were decided applying the
law prior to the statutory codification of the definitions of “dwelling,” “residence,” and
“curtilage.” See T.C.A. § 39-2-235 (Supp. 1988). As the Court notes in Meyer, “[t]he
curtilage itself is not defined as a part of the residence for purposes of the self-defense
instruction.” Meyer, 2010 WL 4618352, at *11. Under the statute, a dwelling does not
include the curtilage of the home, while a residence includes only any appurtenance within
the curtilage.

        In State v. Gayden, this Court affirmed the defendant’s conviction for second degree
murder when the victim had unlawfully entered the home but had subsequently left and was
in the yard. State v. Gayden, No. W2011-00378-CCA-R3-CD, 2012 WL 5233638, at *13
(Tenn. Crim. App. Oct. 23, 2012). In Gayden, the unarmed victim had entered his ex-wife’s
home without permission after learning that the defendant was inside. The defendant and
victim had a confrontation during which the defendant held a gun, and the victim forced his
ex-wife outside and assaulted his ex-wife. The victim began to leave but confronted the
defendant instead. The defendant pushed the victim and shot him. Id. at *1-3. This Court
concluded that the trial court did not err in refusing to instruct the jury on the presumption
of reasonableness, because “although the victim entered the home unlawfully, the victim left
the home and the imminent threat ended.” Id. at *13.

      We conclude that the reasoning in Gayden applies to the facts of this case. While the
defendant’s uncovered porch may be an appurtenance within the curtilage of the home and

                                              -15-
therefore part of his residence as defined by statute, and while (in the light most favorable
to the defendant) Mr. Zavala and Mr. Coats may have unlawfully and forcibly entered it by
disregarding the “No Trespassing” sign and brandishing weapons, we need not decide
whether the facts of the entry fit the statutory requirements because, as the trial court
concluded, the situation had been defused and Mr. Zavala and Mr. Coats had left the property
when the defendant emerged and fired his weapon. The testimony of the defendant and (to
some extent) his neighbor that a weapon was drawn by one of the former intruders certainly
fairly raised the question of self-defense, but the trial court properly gave this instruction to
the jury. The defendant’s own testimony was that he was on the ground, in the curtilage,
when he began to shoot, and therefore the defendant was not entitled to the presumption of
reasonable belief of imminent death or serious bodily injury that applies when a person uses
force “within a residence.” T.C.A. § 39-11-611(c). The defendant had the opportunity to
show that he held such a belief and was justified in firing his gun under Tennessee Code
Annotated section 39-11-611(b)(2). The trial court did not err in refusing to give the
instruction regarding the presumption.

                                        C. Sentencing Issues

       The defendant contends that the trial court erred in sentencing him above the statutory
minimum and in imposing consecutive sentences. Recently, in State v. Bise, the Tennessee
Supreme Court replaced the de novo standard of review and presumption of correctness
previously applied to sentencing with an abuse of discretion standard under which the
decision of the trial court is granted a presumption of reasonableness. State v. Bise, 380
S.W.3d 682, 707 (Tenn. 2012). This standard of review applies to sentences imposed within
the appropriate statutory range. Id. at 708. The Court in Bise concluded that “sentences
should be upheld so long as the statutory purposes and principles, along with any applicable
enhancement and mitigating factors, have been properly addressed.” Id. at 706.

      Under Tennessee Code Annotated section 40-35-115, the trial court may impose
consecutive sentences if the trial court finds by a preponderance of the evidence that the
defendant committed the offense while on probation. T.C.A. § 40-35-115(b)(6). We review
the imposition of consecutive sentences for an abuse of discretion. State v. Hayes, 337
S.W.3d 235, 266 (Tenn. Crim. App. 2010).

        The defendant does not challenge the trial court’s application of enhancement factors.
He contends that the sentences are improper under Tennessee Code Annotated sections 40-
35-102 and -103 because they reflect an “unjustified disparity in sentencing” because the
shooting only came about as a direct result of the three men banging on the defendant’s door
late at night and demanding “Small Head.”



                                              -16-
        The record shows that at the sentencing hearing, the trial court stated that it had
considered the factors listed in Tennessee Code Annotated section 40-35-210(b). The trial
court applied as an enhancement factor to the manslaughter conviction the fact that the
defendant employed a firearm. See T.C.A. § 40-35-114(9). The trial court enhanced both
sentences based on the fact that the defendant was on probation at the time. See T.C.A. §
40-35-114(13)(c). The trial court found that no mitigating factors applied. The sentences
were ordered to be served consecutively based on the fact that the defendant was on
probation when the crimes were committed. See T.C.A. § 40-35-115(b)(6). The trial court
noted it was sentencing the defendant above the minimum based on the enhancement factors
and because the sentence was necessary to protect society because the credible testimony at
trial had shown that the disruptive situation had been defused when the defendant came out
of his home and began firing the gun.

       The trial court imposed sentences within the correct range, and the trial court
explained how the sentences were consistent with the purposes and principles of sentencing.
The sentences were imposed after the trial court weighed statutorily mandated factors,
including the enhancement factors which the trial court determined applied to the defendant’s
case. Consecutive sentencing was based on finding one of the factors in Tennessee Code
Annotated section 40-35-115(b). The trial court did not abuse its discretion.

                                         III. Conclusion

       Based on the foregoing, we affirm the judgments of the trial court.




                                                   _________________________________
                                                   PAUL G. SUMMERS, Senior Judge




                                            -17-
