        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                           JULY SESSION, 1998         October 28, 1998

                                                   Cecil W. Crowson
STATE OF TENNESSEE,     )                        Appellate Court Clerk
                                  C.C.A. NO. 01C01-9710-CC-00455
                        )
    Appellee,           )
                        )
                        )         BEDFORD COUNTY
VS.                     )
                        )         HON. CHARLES LEE
KATHERINE IRENE WARREN, )         JUDGE
                        )
    Appe llant.         )         (Direct Appeal - Sentencing)




FOR THE APPELLANT:                FOR THE APPELLEE:

JULIE A. MAR TIN                  JOHN KNOX WALKUP
P. O. Box 426                     Attorney General and Reporter
Knoxville, TN 37901-0426
                                  LISA A. NAYLOR
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243-0493

                                  MIKE MCCOWN
                                  District Attorney General

                                  MICHAEL D. RANDLES
                                  Assistant District Attorney
                                  218 North Main Street
                                  Shelbyville, TN 37160



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION


      On January 31, 1997, a Bedford County jury convicted Appellant, Kathe rine

Irene Warren, of second degree murder in the killing of her husband. Following

a sentencing hearing , the trial court sentence d Appellant to 2 0 years

incarceration as a Ra nge I stan dard offender. Appellant appeals from her

conviction and sentence, raising two issues:

       1) whether the evidence presented at trial was sufficient to support the
jury’s verdict, and
       2) wheth er the trial co urt correc tly sentenc ed App ellant.


      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                       FACTS




      The evidence pre sented at trial revealed that on March 19, 1996, officers

responded to a “shots-fired” call on Cypress Street. Three officers approached

the house, encountering Appellant as she came out the back door. The officers

apprehended Appellant who told them that she had shot her husba nd with a rifle.

The officers found the victim, Charles Warren, lying in the floor of the den

unconscious, but alive. Officers located a bullet hole in a recliner near the victim,

and eventually recovered a .22 slug from the back of the c hair. A .22 ca liber rifle

was recovered from the washroom, which had a spent casing and 10 live rounds

in it. Testimony revealed that the victim died as he was being carried to the

ambu lance.




                                         -2-
       In a statement made shortly after her arrest, Ap pellant rela ted the ev ents

of the evening as follows:

               Charles was sitting in his recliner when I came
       home from A A. He had b een d rinking . He go t a pho ne ca ll
       then he proceeded to tell me about Valerie Elaine Jordan
       that he had been going with her 2 ½ years. I aske d him
       for the money to move out on. He refused. We argued
       about 1 ½ hours then I went to bed after I took 200
       milligrams of doxe pin and 2 milligrams of Klonopin. I hea rd
       him talking on the phon e, and I got ba ck up . I heard him
       call her name and I snapped. I asked him where the gun
       was. He pointed to the laundry room, and said it was n’t
       loaded. I pulled back the gu n to hit him w ith it, and it went
       off. I then dialed 911.


       Evidence was presented that the rifle recovered at the scene was the

weapon from which the slug recovered in the chair had come. Tests further

indicated that the muzzle of the firearm was between 2 feet and 3 ½ feet from the

victim when it w as fired. Blo od tests o f the defendant revealed the presence of

doxep in and nordo xepin in her blood. Additional tests revealed that the victim had

a blood alcohol level of .15.



       Appe llant’s daughter, Tammy Womack, testified that her mother and the

victim had separated in May of 1994 because the victim had a girl-friend, but that

the pair resumed living together in August, 1995. After Appellant again moved

back in with her h usban d, she re lated to he r daugh ter that she knew th at the

victim still had a girlfriend. She further testified that during a visit to her moth er in

jail, her mother stated that “[s]he was sorry, she knew what she did was wrong,

and she was ready to take her punishment.” Ms. Womack also stated that her

mother had told her that the victim was having an affair with a woman named

Tamiko Coope, a nd that he ha d purchas ed a car for her. Appellant told Ms.




                                           -3-
Wom ack that she had attempted to k ill herself several times because she was

distressed ab out her husb and’s infidelity.



          Edna Mabee, Appellant’s sister, testified that on March 18, 1996,

Appe llant, while discussing her marital problems, stated, “if I kill my husband, so

be it.”



          The medical examiner testified that Charles Warren died as a result of

bleeding from a bullet passing through his heart and right lung.



          Appellant testified at trial, stating that she was married to the victim for

almost ten years. She said that on May 10, 1994 she began to suspect that her

husband was having an extra-marital affair upon discovering pornographic

movies and a dildo in his possession. She moved out of their house, having

demanded and received $5,000 from the victim. After she moved out, the victim

confessed that he had been having an affair with a nineteen year-old woman,

Tamika Coope. The victim told Appellant that he had paid for Ms. Coop e to have

two abortions, but that he had wished for Ms. Coope to have the children and for

Appellant to help him raise them. The victim also related that he had purchased

a car for Ms. Coope. Appellant later learned of an affair with a woman named

Sue Wo od. App ellant confronted Ms. Wood, who did not know that Charles

Warren was married. After Appellant confronted Ms. Wood, the victim admitted

to having an affair with Ms. Wood.



          Appellant testified that she mo ved back in with her husband in October

1995, that they were trying to work through their marital difficulties. She stated

                                           -4-
that her husband asked her for one year in which to get his life together.

Appellant said that the night of the shooting, she returned home from an AA

meeting to find her husband drinking. This upset her and the two bega n to have

words. At som e poin t in the argument, the victim showed Appellant pictures of

hims elf at a New Year’s E ve par ty with M s. Vale rie Jord an. T he victim told

Appellant that he and Ms. Jordan had been having an affair for 2 ½ years. The

victim also disclosed that he had not had sex with Appellant in several months,

because he had AIDS and was protecting her. Appellant went to bed after taking

her medication.



      Two hours later, Appellant awoke to overhear her husband say the name

“Valerie” while on the phone. She also overheard him making plans for Ms.

Jordan to bring her ch ild and come to his house on Sunday to meet his parents.

Appellant steppe d into the room and said, “No you are not,” or something to that

effect. Appellant then asked he r husband where the gun was. He pointed toward

the laundry room. Appellant testified at trial that the victim told her the gun was

unloaded and that she inte nded only to use the weap on to g et the vic tim’s

attention. Appe llant got the gun and pointed it at her husband. Mr. Warren got

off the phone and began to stand up from where he was sitting in the rec liner.

Appellant testified that s he attem pted to poke the victim with the gun and the gun

went off. The victim turned, took a coup le of steps, and fell. Appellant called 911.



      Further testimony wa s presented at trial to indicate that Appe llant suffers

from clinical depression and auditory hallucinations. Both Ms. Coope and Ms.

Jordan testified, verifying the sexual nature of their relationships with the

deceased.

                                         -5-
                      I. SUFFICIENCY OF THE EVIDENCE




       Appella nt challeng es the su fficiency of the evidenc e prese nted at trial to

support the jury verdict of murder in the second degree. Specifically Appellant

alleges that the S tate failed to present evidence sufficient to establish that

Appellant knowingly committed this crime. When an appellant challenges the

sufficiency of the evide nce, this C ourt is oblige d to review that challenge

according to certain well-settled principles . A verdict of guilty by the jury,

approved by the trial judg e, accred its 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, 25 9 (Ten n. 1994 ); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).

Although an accused is originally cloaked with a presumption of innocence , a jury

verdict removes this presumption and replaces it with one of guilt. State v.

Tuggle, 639 S.W .2d 913, 914 (Tenn. 198 2). Hence, on appeal, the bu rden of

proof rests with Appellant to demonstrate the insufficiency of the convicting

evidence. Id. On ap peal, “the [S ]tate is entitled to the strongest legitimate view

of the evid ence as we ll as all rea sona ble and legitimate inferences that may be

drawn therefrom .” Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978)). Where the sufficiency of the evidence is contested on appeal, the

relevant question for the reviewing court is whether any rat ional trie r of fact c ould

have found the accused guilty of every element of the offense beyond a

reaso nable doubt. Harris, 839 S.W.2d 54, 75; Jack son v. V irginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 27 89, 61 L.Ed .2d 560 (197 9). In conducting our evaluation

of the convicting evidence, this Court is precluded from reweighing or

reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.

                                          -6-
App. 1996); State v. Mathews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 19 90).

Moreover, this Court may not substitute its own inferences “for those drawn by

the trier of fact from circu mstan tial evidenc e.”Id. at 779. Finally, the Tennessee

Rules of Appellate Procedure, Rule 13(e) provides, “findings of guilt in criminal

actions wheth er by th e trial co urt or jur y shall b e set a side if th e evidence is

insufficient to support the findings by the trier of fact beyond a reaso nable d oubt.”

See also State v. Mathews, 805 S.W.2d at 780.



      In the matter sub judice, Appellant contests the evidence presente d to

prove the knowing element of second degree murder. Tennessee Code

Annotated 39-11-106 defines “knowing” as:



      “Knowing” refers to a pers on who acts kno wingly with
      respect to the conduct or to circumstances surrounding
      the conduct when the pe rson is aware of the nature of the
      conduct or that the circum stance s exist. A pe rson ac ts
      know ingly with respect to a result of the person’s conduct
      when the pe rson is aware that the cond uct is re ason ably
      certain to c ause th e result.


      Proof of a mens rea elem ent is a lmos t always circum stantia l. The only

means the jury has to determine a perpetrator’s state of mind is to examine the

offend er’s actions for clues of w hat was in the m ind as the acts w ere performed.

The State presen ted proof that Ap pellant had, on s everal occasions, made

statem ents about wishing her husband dead. The State further presented proof

that after an argument, upon hearing her husba nd invite his lover to the marital

home, Appellant took a gun and shot her husband at point blank range. Without

more, such proof certainly indicates that Appellant knew the consequences of her

actions. The State also presented proof that two weeks after the shooting



                                          -7-
Appellant told her daughter that “[s]he was sorry, she knew what she did was

wrong, and she was ready to take her punishment.” Appellant argues that since

proof was p resen ted to th e jury tha t the victim told Appellant the gun was em pty

that her actions were not knowing and the shooting was accidental. The weight

and credibility of the witnesses’ testimony are matters entrusted to the jury as the

exclusive triers of fact. State v. She ffield, 676 S.W .2d 542 (Tenn . 1984); Byrge

v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978). By its verdict, the jury refused

to credit Appellant’s self-serving testimony that she thought the gun was not

loaded . This issu e is withou t merit.



                                   II. SENTENCING




       Appellant also claims tha t the trial court erred in se ntencing her to 20 years

incarceration, failing to consider several applicable mitigation factors. When a

defendant complains of his or her sentence, we must conduct a de novo review

with a presum ption of correctne ss. Tenn. C ode Ann . § 40-35-401 (d). The burden

of showing that the sentence is improper is upon the appealing party. Tenn.

Code    Ann.    §   40-35-401(d)    Se ntenc ing   Co mm ission    Com men ts.    Th is

presumption, however, is conditioned upon an affirmative showing in the record

that the trial court considered the sentencing principles and all the releva nt facts

and circu mstan ces. State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).



       The Sentencing Reform Act of 1989 established specific procedures which

must be follo wed in sentencing. These procedures, codified at Tennessee Code

Annotated § 40-35-210, mandated the court’s consideration of the following:




                                          -8-
      (1) The e vidence , if any, received at the trial and the
      sentencing hearing ; (2) [t]he pres entenc e report; (3) [t]he
      principles of senten cing and argum ents as to sentencing
      alternatives; (4) [t]he nature and characteristics of the
      criminal condu ct involved; (5 ) [e]vidence and information
      offered by the parties on the enhancement and mitigating
      factors in §§ 40-35-1 13 and 40-35-114; and (6) [a]ny
      statement the defendant wishes to ma ke in h is own beha lf
      about sentencing.


Tenn. Code Ann. § 40-35-210.



      This section further provides that the midpoint within the range is the

presum ptive sentence for a Class A felony. The court must begin with the

midpoint in the range and enhance that sentence to appropriately reflect any

statutory enhance ment factors th at the court finds to be presen t. After enhancing

the sentence, the court must reduce the sentence appropriate to the weight of

any mitigating factors that the court finds. See State v. Chance, 952 S.W.2d 848

(Tenn. Crim . App. 1997 ).1 The w eight to be given ea ch factor is left to the




      1

      In State v. Chance, this Court, in reviewing Tennessee Code Annotated § 40-35-210© held:

                 [A]pplying Appellant’s plain language reading of the statute, a class
      A felon who commits an offense where the trial court finds only
      enhancement factors or both e nh an ce m ent an d m itigatin g fac tors a pplica ble
      may very well receive a shorter sentence than a felon committing a class A
      offense involving no en hance men t or mitigatin g factors . See Tenn. Code
      Ann. 40-35-201(c ),(d), and (e ). This wo uld produ ce an a bsurd re sult. W e
      p re su m e that the legislature did not inten d suc h an a bsu rdity in enac ting th is
      statute. See McC lella n v. Bd. O f Rege nts of Sta te, 921 S.W.2d 684, 489
      (Tenn. 1996); Epstein v. State , 211 Tenn. 633, 366 S .W.2d 91 4, 918(1963).
      Acc ordin gly, “su ch a r esu lt will be a voide d if the term s of th e sta tute a dm it
      of it by a reasonable construction.” Eps tein, 366 S.W.2d at 918.
                 W ith consideration of the public’s growing concern over violent
      crime s, defen dants c omm itting class A felonies s hould no t be entitled to a
      presump tive sentence at the minim um o f the sen tencing ra nge. See Tenn.
      Code Ann. 40-35-210(c)(retaining the presumptive sentence for class
      B,C,D, and E, felonies at the minimum but increasing the presum ptive
      sente nce for cla ss A felon ies to the m idpoin t of the rang e.) M oreo ver, it is
      diffic ult to conceive that the legislature would have intended a longer
      sentence for a class A felony with an enhancement factor than for a class
      A felo ny with an enhancement factor. Thus, we conclude that the
      presump tive sentence for all class A fe lonies is the midpoint of the
      applicab le range.

                                                       -9-
discretion of the trial judg e. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim.

App. 1992 ).



       The Sentencing Reform Act also provides that the trial court shall place on

the record either orally or in writing what enhancement or mitigating factors it

found, if any. T hese finding s are c rucial fo r review of the tria l court’s decis ion

upon appe al.



       In the matter sub judice, the trial court faithfully followed the guidelines

proscribed by the Senten cing R eform Act, the refore we m ust trea t his

determination with a p resum ption of correctness. Both sides concur that the

enhancement factor regarding use of a firearm in the perpetration of the offense

clearly applie s in this case. Appellant claims that the trial court erred in refusing

to apply the following mitigating factors: Tennessee Code Annotated §§ 40-35-

113(8) that Appellant suffered from a mental condition that significantly reduced

her culpability for the offense, (11) that Appellant, although guilty, committed the

offense under such un usual circ umsta nces tha t it is unlikely a su stained in tent to

violate the law motivated her conduct, and (13) Appellant’s lack of prior criminal

history and her history of mental instability. After a review of the record, we find

no proof to overcome the presumption of the trial court’s correctness.



       W hile there was testimony that Appellant suffered some mental and

emotional problems, there was no proof introduced showing that these problems

somehow compelled Appellant’s actions, or reduced her ability to apprec iate what

she was doing in shooting her husband. Thus mitigating factor (8 ) was p roper ly

rejected by the trial judge. Further, Appellant had discussed killing her husband

                                          -10-
in the past and had expressed her desire that he die. Under the circumstances

the trial court properly rejected the idea contained in mitigating factor (11) that

Appe llant’s actions were not the product of a sustained intent to violate the law.



       Finally, although the absence o f a prior criminal record is not an

enumerated mitigating factor, it ma y be con sidered as one . State v. Hicks, 868

S.W.2d 729 (Tenn. Crim. App . 1993). How ever, the we ight to b e ass igned to this

factor remain s in the disc retion of the trial judge. Id. In the present case the trial

court conc luded that Ap pellan t’s “rathe r unsta ble so cial history” precluded

application of the lack of a crimin al reco rd in m itigation of App ellant’s sentence.

Although we are unaware of any case or statute that precludes use of this factor

in the face of an unstable social history, given the Appellant’s record of

alcoholism, nine marriages, and psychiatric treatments, as well as the

seriousness of the crime, the trial judge could properly assign little weight to the

lack of a criminal record.



       Accordingly, the judgment of the trial court is affirmed.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE




CONCUR:




                                          -11-
___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
DAVID G. HAYES, JUDGE




                             -12-
