          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                        APRIL SESSION, 1997


                                                            FILED
STATE OF TENNESSEE,        )                                  July 25, 1997
                           )    No. 02C01-9604-CC-00134
      Appellee             )                                Cecil Crowson, Jr.
                           )    DYER COUNTY                 Appellate C ourt Clerk
vs.                        )
                           )    Hon. J. STEVEN STAFFORD, Judge
JACK MAXIE WELCH,          )
                           )    (Second Degree Murder)
      Appellant            )



For the Appellant:              For the Appellee:

G. STEPHEN DAVIS                CHARLES W. BURSON
District Public Defender        Attorney General and Reporter
208 N. Mill Avenue
P. O. Box 742                   DEBORAH A. TULLIS
Dyersburg, TN 38025-0742        Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                C. PHILLIP BIVENS
                                District Attorney General
                                P. O. Box E
                                Dyersburg, TN 38024

                                CHARLES S. KELLY
                                Special Prosecutor
                                P. O. Box 507
                                Dyersburg, TN 38024



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                            OPINION



        The appellant, Jack Maxie Welch, was convicted at a jury trial of second

degree murder and was sentenced to twenty years imprisonment by the Dyer

County Circuit Court. In this appeal, as of right, he challenges (1) the sufficiency

of the convicting evidence and (2) the length of the sentence imposed.



        After reviewing the record, we find these issues to be without merit.

Accordingly, the judgment and sentence entered by the trial court are affirmed.




                                         I. Background



        The State’s proof at trial revealed that, on January 29, 1995, the body of

David Crawford was discovered in the passenger’s side seat of a vehicle in

Dyersburg. The vehicle was registered to the victim’s mother. The autopsy

performed on January 30 showed the cause of death to be internal bleeding

resulting from “tears of certain tissues inside the abdominal cavity . . . [caused

by] blunt trauma to the abdomen, and that death was not instantaneous.” The

deceased’s blood alcohol content at the time of death was .55 percent ethyl

alcohol.1



        The police investigation established that the victim was last seen in the

company of the appellant. The two were long-time friends and drinking

companions. Friends characterized the relationship of the appellant and the

victim as “drinking buddies . . . they drank together, they stayed together a lot,

they fought together.” Upon questioning by law enforcement agents, the



        1
         The m edical examiner testified that a person is at a risk of dying from alcohol
con sum ption w ith a bloo d alco hol leve l of .35 p ercent.

                                                  2
appellant admitted that he killed his friend, David Crawford. In his statement to

the police, he related that Crawford had come to his house on January 28, 1995,

and the two drank a liter of vodka. They then purchased more vodka and went

to Crawford’s residence where they continued to drink. Eventually, the two

returned to the appellant’s residence. On their return to the appellant’s

residence, they picked up C.C. Walker, who was staying with the appellant.

Shortly after the threesome’s arrival at the appellant’s residence, Walker left.

Around 9:30 p.m., an argument ensued after the appellant asked Crawford why

he lied to some girls about being a “Vietnam Vet.” The appellant explained the

events leading to the victim’s death as follows:

        David [Crawford] began to bad mouth vets, and Vietnam, and I told
        him his body wasn’t worth the uniform of a vet.2 David got real
        vocal and obnoxious. David jumped up from the love seat in my
        house and swung at me. We began to fight. At first, I blocked and
        slapped him in the face and the fight got worse. I remember him
        on the floor trying to get up and I kicked him in the sides. I kicked
        him several times in the heat of the moment. Then he quit fighting
        and struggling and laid on the floor, gurgling noises and blood. I
        couldn’t get him up. I was so drunk, I didn’t know if he had a pulse.
        . . . I didn’t plan on killing him or to harm him. I’m just an alcoholic
        who’s lost his temper with an obnoxious alcoholic.



        Shortly thereafter, the appellant contacted C.C. Walker and informed him

that he had hurt Crawford. When Walker arrived, he observed Crawford's body

on the floor. Crawford's pants were down past his knees and his buttocks were

exposed. His shirt was missing and he was hog-tied.3 The appellant explained

that he had tied the victim up and pulled his pants down “to keep him from

hurting him [the appellant] and to keep him from running away.” He informed

Walker that "he was tired of. . .him talking about Vietnam so he kicked his ass."

He added that he wanted "Crawford out of his house." The two men then placed



        2
         The rec ord indicate s th at th e appellant w as honorably discharged from the Arm y in
November, 1969, after thirty-two months of active duty, including one year in Vietnam. The
appellant testified that he has been hospitalized and received treatment for his alcohol abuse and
other service related disabilities on numerous occasions.

        3
          "The rope was around his neck, wrapped around his feet and tied up -- I think it was
arou nd h is han ds."

                                                 3
Crawford's body in the passenger seat of his car. The appellant returned inside

the house, where he mopped Crawford's blood from the living room floor. After

completing this task, the appellant went to a friend's house, where he continued

to drink beer until early the next morning. Meanwhile, Walker drove Crawford's

car to the location where it was discovered the next day, approximately two and

one-half blocks from the victim's home.4




                                  II. Sufficiency of Evidence



       In his first issue, the appellant contends that the evidence is insufficient to

support a conviction for second degree murder. In support of this contention, he

argues that the State failed to prove malice beyond a reasonable doubt. The

appellant argues “at worst [the facts present] a case of voluntary manslaughter.”

The jury was charged on both offenses by the trial court.



       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 demonstrating that the evidence is

insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining

the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal,

the State is entitled to the strongest legitimate view of the evidence and all

reasonable or legitimate inferences which may be drawn therefrom. State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court's duty to affirm

the conviction if the evidence, viewed under these standards, was sufficient for

any rational trier of fact to have found the essential elements of the offenses

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct.


       4
           C.C. W alker pled guilty as an accessory after the fact to the homicide of David Crawford.

                                                  4
2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R.

App. P. 13(e).



       Initially, we note that, with the adoption of the 1989 Criminal Code,

effective November 1, 1989, “malice” is no longer an element of second degree

murder. Second degree murder is defined as “a knowing killing of another.”

Tenn. Code Ann. § 39-13-210(a)(1) (1991 Supp.). 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). "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.), perm. to appeal denied, (Tenn. 1995). The proof at trial established that

the appellant repeatedly kicked the victim as he laid virtually defenseless on the

floor. His intent was corroborated by his boast to friends that “I kicked his ass”

and “[I] kicked the crap out of him.” These facts are sufficient for a rational trier

of fact to conclude that the appellant was consciously aware of the nature of his

conduct and that the conduct, i.e. repeated kicks to the abdomen, was

reasonably certain to cause death. Accordingly, we find the evidence more than

sufficient to support his conviction for second degree murder. Having concluded

that the convicting evidence is sufficient to establish murder two, we find it

unnecessary to address the appellant’s contentions concerning voluntary

manslaughter. This issue is without merit.




                         III. Length of Sentence Imposed



       In his final issue, the appellant argues that the twenty year sentence

imposed by the trial court is excessive. Initially, we note that the appellant does


                                          5
not contest the propriety of the four enhancement and two mitigating factors

applied by the trial court.5 6 Rather, he only disputes the weight given to these

factors by the trial court in determining the length of the sentence.



        Review, by this court, of the length, range, or manner of service of a

sentence is de novo with a presumption that the determination made by the trial

court is correct. Tenn. Code Ann. § 40-35-301(d)(1990). This presumption only

applies, however, if the record demonstrates that the trial court properly

considered relevant sentencing principles. State v. Ashby, 823 S.W.2d 166,1 69

(Tenn. 1991). In the case before us, the trial court correctly applied sentencing

principles, thus, the presumption applies. Additionally, the appellant bears the

burden of demonstrating that the sentence imposed was improper. Sentencing

Commission Comments, Tenn. Code Ann. § 40-35-401(d) (1990).



        The appellant was convicted, as a range I offender, of second degree

murder, a class A felony. see Tenn. Code Ann. § 39-13-210. Thus, the

applicable sentencing range is "not less than fifteen (15) nor more than twenty-

        5
          At the conclusion of the sentencing hearing, the trial court found the following
enhanc em ent factors supp orted by the proof:
        (1) The defendant has a previous history of criminal convictions or criminal
        behavior in addition to those necessary to establish the appropriate range;

        (5) The defendant treated or allowed a victim to be treated with exceptional
        cruelty during the commission of the offense;

        (8) The defendant has a previous history of unwillingness to comply with the
        conditions of a sentence involving release in the comm unity; and

        (11) The felony resulted in death or bodily injury. . .and the defendant has
        prev iously been con victed of a fe lony that resu lted in de ath or bod ily injury.

Tenn. Code Ann. § 40-35-114 (1994 Supp.). Regarding mitigating factors, the trial court applied
the following:
         (11) The defendant, although guilty of the crime, comm itted the offense under
         such unusual circumstances that it is unlikely that a sustained intent to violate the
         law motivated his conduct; and

        (13) Any other factor consistent with the purposes of this chapter. (The
        app ellant's m ilitary service in Vietnam and his drug a nd a lcohol add iction.)

Ten n. Code A nn. § 40-35-11 3 (1990).

         6
          W e note that the trial court's a pplication of e nhancem ent facto r (5), that th e victim was
treated with exceptional cruelty, is consistent with our supreme court's recent decision in State v.
Po ole, 945 S.W .2d 93 (Ten n. 1997).

                                                     6
five (25) years." Tenn. Code Ann. § 40-35-112(a)(1) (1990). In determining the

appropriate sentence for a felony conviction, Tenn. Code Ann. § 40-35-210(c)

(1990) instructs the sentencing court that the presumptive sentence for a Class A

felony shall be the minimum in the range.7 Thus, the presumptive sentence, in

the instant case, is fifteen years. "Should there be enhancement and mitigating

factors, the court must. . . enhance the sentence within the range as appropriate

for the enhancement factors, and then reduce the sentence within the range as

appropriate for the mitigating factors." Tenn. Code Ann. § 40-35-210(e).



        Again, the trial court found and applied four enhancement factors and two

mitigating factors. The weight afforded to these factors is left to the trial court's

discretion so long as the court complies with the purposes and principles of the

1989 Sentencing Act and its findings are adequately supported by the record.

State v. Hayes, 899 S.W.2d 175, 185 (Tenn. Crim. App. 1995) (citing Sentencing

Commission Comments, Tenn. Code Ann. § 40-35-210; State v. Moss, 727

S.W.2d 229, 237 (Tenn. 1986); see Ashby, 823 S.W.2d at 169.). This court will

not disturb the trial court's determination if the record evidences that the court

correctly applied the principles of sentencing. Again, the presumption of

correctness applies. The trial court's imposition of the mid-range sentence of

twenty years is clearly justified. This issue is without merit.



        After a review of the record before us, we conclude that the evidence

sufficiently supports the appellant's conviction for second degree murder.

Moreover, as the trial court correctly applied and considered relevant sentencing

principles, we conclude that the sentence imposed by the trial court is justified.

The judgment of the trial court is affirmed.




        7
           Effective July 1, 1995, Tenn. Code Ann. § 40-35-210 changed the presumptive sentence
for all class A felonies to the m idpoint of the app licable s ente ncing ran ge. See State v. Chance,
No. 02C 01-9605 -CC -00178 (T enn. Crim . App. at Jacks on, Jan. 31, 1997).

                                                  7
                          ____________________________________
                          DAVID G. HAYES, Judge


CONCUR:



________________________________
JOSEPH M. TIPTON, Judge



________________________________
WILLIAM M. BARKER, Judge




                               8
