        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned On Briefs January 18, 2012

              STATE OF TENNESSEE v. MICHAEL L. WEBSTER

                   Appeal from the Criminal Court for Davidson County
                       No. 2009-A-3172 Mark J. Fishburn, Judge



                 No. M2011-00521-CCA-R3-CD - Filed December 5, 2012


The Davidson County Grand Jury indicted Appellant, Michael L. Webster, for one count of
first degree premeditated murder. A jury found Appellant guilty of the lesser included
offense of second degree murder. The trial court sentenced Appellant to twenty-five years
at 100% as a Range I, standard offender. On appeal, Appellant argues that the evidence was
insufficient to support his conviction. The State argues that the trial court erred in
determining that Appellant was a Range I, standard offender and should have sentenced him
as a Range II, multiple offender based upon prior convictions out of Georgia. On appeal, we
determine that the evidence was sufficient to support his conviction because the jury rejected
his claim of self-defense and Appellant was unable to raise reasonable doubt. We also
determine that the trial court correctly determined that Appellant qualified as a Range I,
standard offender because his Georgia conviction for burglary was equivalent to a Tennessee
conviction for burglary and, therefore, Appellant did not have the requisite amount of the
correct classification of prior felonies for him to qualify as a Range II, multiple offender.
Therefore, we affirm the judgment of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and C AMILLE R. M CM ULLEN, JJ., joined.

Dawn Deaner, District Public Defender; Emma Rae Tennent, Assistant Public Defender, (on
appeal); Kristen Neff and Katie Weiss, Assistant Public Defenders, (at trial), Nashville,
Tennessee, for the appellant, Michael L. Webster.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Sarah Davis,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                    Factual Background

       On July 30, 2009, officers were called multiple times to a Nashville subsidized
housing development at University Court. The call in question was a shooting. When they
arrived, officers discovered the victim, Nickalus “Sleepy” Jones, lying on the ground near
a Jeep Cherokee. Paramedics were called, but the victim died as a result of the gunshot
wound. Officers arrested Appellant on August 2, 2009, and they recovered a weapon and
ammunition at the home where Appellant was found.

        In November 2009, Appellant was indicted by the Davidson County Grand Jury for
one count of first degree murder. The trial court held a jury trial September 13-15, 2010. At
trial, multiple witnesses testified that they saw the altercation between Appellant and the
victim. The testimony was that Appellant and the victim encountered each other near unit
145A. Appellant asked the victim where his gun was. The victim replied that he did not
have a gun and lifted up his shirt to prove it. Witnesses testified that they did not see a gun
when the victim lifted up his shirt. The victim begged for his life and told Appellant that he
had children. According to witnesses, Appellant shot the victim as the victim was facing
him, and when the victim ran away, Appellant chased him and continued to shoot at him.

        Officers searched the area near the victim’s body. They found a spent bullet in the
nearby Jeep Cherokee. They did not find any shell casings or a weapon near the location of
the victim’s body or on the victim’s person. The medical examiner, John Davis, performed
an autopsy on the victim’s body. He testified that the cause of death was the gunshot wound.
He recovered a bullet from the victim’s body. Agent Alex Broadhag with the Tennessee
Bureau of Investigation (“TBI”) ran a ballistics test on the gun found during Appellant’s
arrest. Agent Broadhag testified that he was “certain” that the bullet that caused the victim’s
death which was recovered during the autopsy was fired from the gun found during
Appellant’s arrest.

       Appellant testified on his own behalf at trial. He admitted that he was involved in a
verbal altercation with the victim. However, he disagreed with the other witnesses’ version
of events. He stated that when the victim lifted up his shirt, the victim had a gun. Therefore,
he presented a defense of self-defense.

       At the conclusion of the trial, the jury found Appellant guilty of the lesser included
offense of second degree murder. The trial court sentenced Appellant as a Range I, standard
offender to twenty-five years of incarceration with a 100% release eligibility.

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                                         ANALYSIS

                                Sufficiency of the Evidence

        Appellant’s sole issue on appeal is that the evidence was insufficient to support his
conviction because “[t]he evidence was insufficient to negate [his] contention that he acted
in justifiable self-defense.” The State disagrees.

        To begin our analysis, we note that when a defendant challenges the sufficiency of the
evidence, this Court is obliged to review that claim according to certain well-settled
principles. A verdict of guilty, rendered by a jury and “approved by the trial judge, accredits
the testimony of the” State’s witnesses and resolves all conflicts in the testimony in favor of
the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d
54, 75 (Tenn. 1992). Thus, although the accused is originally deemed with a presumption
of innocence, the verdict of guilty removes this presumption and replaces it with one of guilt.
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate
the insufficiency of the convicting evidence. Id.

        The relevant question the reviewing court must answer is whether any rational trier
of fact could have found the accused guilty of every element of the offense beyond a
reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
In making this decision, we are to accord the State “the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences that may be drawn therefrom.”
See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or
reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn by
the trier of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further,
questions concerning the credibility of the witnesses and the weight and value to be given
to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

       The guilt of a defendant, including any fact required to be proved, may be predicated
upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim.
App. 1999). Even though convictions may be established by different forms of evidence, the
standard of review for the sufficiency of that evidence is the same whether the conviction is
based upon direct or circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011). As such, all reasonable inferences from evidence are to be drawn in favor of

                                              -3-
the State. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); See Tuggle, 639 S.W.2d at
914.

       Appellant argues that the evidence showed that he acted in self-defense. Tennessee
defines self-defense as follows:


       (b)(1) Notwithstanding § 39-17-1322, 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 before 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.

       (2) Notwithstanding § 39-17-1322, 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 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) (Supp. 2007).

       When a defendant relies upon a theory of self-defense, the State bears the burden of
proving that the defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn.
2001). Further, it is well-settled that whether an individual acted in self-defense is a factual
determination to be made by the jury as the sole trier of fact. See State v. Goode, 956 S.W.2d
521, 527 (Tenn. Crim. App. 1997); State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App.
1993). “Encompassed within that determination is whether the defendant’s belief in
imminent danger was reasonable, whether the force used was reasonable, and whether the
defendant was without fault.” State v. Thomas Eugene Lester, No. 03C01-9702-CR-00069,
1998 WL 334394, at *2 (Tenn. Crim. App., at Knoxville, June 25, 1998), perm. app. denied,
(Tenn. Feb. 1, 1999) (citing State v. Renner, 912 S.W.2d 701, 704 (Tenn. 1995)). It is within
the prerogative of the jury to reject a claim of self-defense. See Goode, 956 S.W.2d at 527.

                                              -4-
Upon our review of a jury’s rejection of a claim of self-defense, “in order to prevail, the
[Appellant] must show that the evidence relative to justification, such as self-defense, raises,
as a matter of law, a reasonable doubt as to his conduct being criminal.” State v. Clifton, 880
S.W.2d 737, 743 (Tenn. Crim. App. 1994).

        The State presented four witnesses who testified that they saw Appellant’s altercation
with the victim. All four witnesses specifically testified that the victim did not have a gun.
In addition, law enforcement officers testified that they did not find a weapon on the victim’s
person or near his body. The sole witness who testified that the victim had a gun was
Appellant. As stated above, self-defense is a question of fact to be solved by the jury.
Goode, 956 S.W.2d at 527. In this case, the jury clearly rejected Appellant’s claim of
self-defense by finding him guilty of one count of second degree murder. Therefore, as
stated above, Appellant must show this Court that the evidence raises a reasonable doubt as
to his conduct being criminal. Based on the overwhelming evidence presented by various
witnesses that the victim did not have a gun and did not present a threat to Appellant, we
conclude that the evidence presented does not raise a reasonable doubt as to the criminality
of Appellant’s conduct.

       Therefore, this issue is without merit.

                                          Sentencing

        The State also presents a cross-claim on appeal. The State argues that the trial court
erred in determining that Appellant was a Range I, standard offender because Appellant had
three prior Georgia felony convictions that should have qualified Appellant for Range II,
multiple offender status. Appellant argues that the trial court properly determined that
Appellant qualified as a Range I, standard offender.


        “[S]entences imposed by the trial court within the appropriate statutory range are to be
reviewed under an abuse of discretion standard with a ‘presumption of reasonableness.’” State v.
Susan Renee Bise, No. E2011-00005-SC-R11-CD, 2012 WL 4380564, at *19 (Tenn. 2012). A
misapplication of enhancement or mitigating factors will not invalidate a sentence, “[s]o long as
there are other reasons consistent with the purposes and principles of sentencing and the
sentenced imposed is within the appropriate sentencing range. Id. at *17.

        A defendant may be sentenced as a Range II, multiple offender when the trial court
finds beyond a reasonable doubt that the defendant has received “[a] minimum of two (2)
but not more than four (4) prior felony convictions within the conviction class, a higher
class, or within the next two (2) lower felony classes.” T.C.A. § 40-35-106(a)(1).


                                               -5-
Appellant’s conviction offenses, second degree murder is a Class A offenses. T.C.A. §
39-13-210(c).

       At the sentencing hearing, the State submitted certified copies of judgments of
Appellant’s prior Georgia convictions. He was convicted of attempted robbery, robbery,
and burglary. The robbery and attempted robbery convictions would qualify as Tennessee
Class C and D felonies respectively for purposes of determining Appellant’s range. Thus,
the Georgia robbery convictions is eligible for range classification in this case. The
conviction at issue in the case at hand, i.e. its appropriate Tennessee classification, is the
Georgia burglary.

         At the sentencing hearing, the State argued that Appellant’s burglary conviction
was based upon a home invasion. In Georgia, the burglary statute in effect at the time of
Appellant’s conviction mirrored Tennessee’s statute for aggravated burglary. Therefore,
if the trial court based its determination on the title of the statute, Burglary, the prior
conviction would be the equivalent of a Class D felony. If the trial court based its
determination on the elements of the statute, then the prior conviction would be the
equivalent of a Class C felony, thereby qualifying Appellant as a Range II, multiple
offender. After hearing argument from counsel, the trial court stated that based upon the
plain language in the statute and caselaw, the court concluded that it must rely upon the
title of the statute. Therefore, the prior conviction for burglary out of Georgia would
constitute a Class D felony, and Appellant was sentenced as a Range I, standard offender.

        The State argues that the trial court erred in its determination and that the trial
court should have relied upon the elements of the offense. The statute in question states
the following:


       Prior convictions include convictions under the laws of any other state,
       government, or country which, if committed in this state, would have
       constituted an offense cognizable by the laws of this state. In the event that
       a felony from a jurisdiction other than Tennessee is not a named felony in
       this state, the elements of the offense shall be used by the Tennessee court
       to determine what classification the offense is given.


T.C.A. § 40-35-106(b)(5) (2006) (emphasis added).

      Generally, when construing a statute, every word within the statute is presumed to
“have meaning and purpose and should be given full effect.” State v. Odom, 928 S.W.2d

                                             -6-
18, 29-30 (Tenn. 1996) (quoting Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193,
196 (Tenn. 1968)). This Court’s primary duty in construing a statute is “to ascertain and
give effect to the legislative intent without unduly restricting or expanding a statute’s
coverage beyond its intended scope.” Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995);
see also State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997). Legislative intent should be
gleaned from the “natural and ordinary meaning of the language used, without a forced or
subtle construction that would limit or extend the meaning of the language.” Carter v.
State, 952 S.W.2d 417, 419 (Tenn. 1997).

        The statute says that the elements of an offense are to be used when the “felony
from a jurisdiction other than Tennessee is not a named felony in this state.” T.C.A. § 40-
35-106(b)(5) (emphasis added). Appellant’s conviction in question from Georgia is
“burglary.” As the trial court stated, Tennessee also has a felony entitled “burglary.” The
natural language of Tennessee Code Annotated section 40-35-106(b)(5) leads us to the
conclusion that the only time a court should look at the elements of a felony from another
jurisdiction when determining its appropriate Tennessee classification is when the felony
in question is not a named felony in Tennessee. Under this interpretation, in the case at
hand, the trial court’s decision is correct.

       This issue has been decided in this manner on at least one previous occasion.
When presented with a defendant who had previous convictions for sexual battery, a
named felony in Tennessee, and lewd assault, not a named felony in Tennessee, this Court
assigned the conviction of sexual battery the same class that sexual battery would have
been in Tennessee. State v. Delbert G. Mosher, No. 01C01-9807-CC-00320, 1999 WL
820871, at *4 (Tenn. Crim. App. Oct. 13, 1999). This Court did not compare the
elements of the crimes of sexual battery in Tennessee and the other state. However, with
regard to lewd assault, this Court did compare the elements to determine what the
equivalent felony would be in Tennessee. Id.

       Therefore, we find that the trial court did not err in concluding that Appellant’s
prior conviction for burglary in Georgia should be considered a burglary conviction in
Tennessee for purposes of determining range. Appellant’s prior convictions do not
qualify him for Range II, multiple offender status.

                                     CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.

                                           ___________________________________
                                           JERRY L. SMITH, JUDGE

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