         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON            FILED
                      JANUARY 1999 SESSION        January 29, 1999

                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               )    NO. 02C01-9803-CR-00065
      Appellee,                )
                               )    SHELBY COUNTY
VS.                            )
                               )    HON. BERNIE WEINMAN,
CHRISTOPHER J. EACHOLES,       )    JUDGE
                               )
      Appellant.               )    (Second Degree Murder)



FOR THE APPELLANT:                  FOR THE APPELLEE:

ROBERT C. BROOKS                    PAUL G. SUMMERS
707 Adams Avenue                    Attorney General and Reporter
P.O. Box 771558
Memphis, TN 38105                   CLINTON J. MORGAN
                                    Assistant Attorney General
                                    Cordell Hull Building, 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    C. ALANDA HORNE
                                    KEVIN R. RARDIN
                                    Asst. District Attorneys General
                                    201 Poplar Ave, Suite 301
                                    Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



       The defendant, Christopher J. Eacholes, appeals as of right his conviction

for second degree murder by a Shelby County jury. He received a sentence of

twenty-one years in the Department of Correction. On appeal he contests the

sufficiency of the evidence and whether the trial court erred in failing to apply

certain mitigating factors in sentencing. Finding no error below, the judgment of

the trial court is AFFIRMED.



                                      FACTS



       The defendant resided in Memphis with Sharon Nunnally and her sister,

Melissa Stewart. Shortly after the defendant moved in with the sisters, he and

Stewart began a romantic relationship. That relationship ended sometime

around the first part of September 1996. Stewart and the victim, Montsho

Jimerson, also had a previous relationship. Stewart resumed her relationship

with the victim in early October 1996.



       Stewart and the victim were watching television in Nunnally's residence on

the evening of October 17, 1996. The defendant returned to the residence and

entered through a side door. Stewart proceeded to the bedroom to speak with

the defendant. The defendant then walked into the living room, drew a small

pistol, and shot the victim four (4) times from the side as he watched television.

The victim subsequently died from these wounds.



       Stewart testified that the defendant had previously argued with the victim

about the victim’s presence in the residence. Apparently, the defendant was

unhappy that Stewart continued to have contact with her ex-boyfriend. At one

point the defendant told the victim if he continued to visit the residence, his

mother would "be wearing a black dress."


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       The defendant testified that he, in fact, did not approve of the victim's

presence at the residence. Defendant testified that the victim previously

threatened him and appeared to be reaching for a gun when he shot him. No

weapon was found on the victim.



                        SUFFICIENCY OF THE EVIDENCE



       The defendant contends the evidence adduced at trial is insufficient to

support his conviction for second degree murder.



       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). A jury verdict approved by the trial judge accredits the state's witnesses

and resolves all conflicts in favor of the state. State v. Bigbee, 885 S.W.2d 797,

803 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal,

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

legitimate or reasonable inferences which may be drawn therefrom. Id. This

Court will not disturb a verdict of guilt due to the sufficiency of the evidence

unless the defendant demonstrates that the facts contained in the record and the

inferences which may be drawn therefrom are insufficient, as a matter of law, for

a rational trier of fact to find the accused guilty beyond a reasonable doubt.

State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, 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 offense beyond a reasonable doubt. Tenn. R. App. P.

13(e); Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L. Ed.2d

560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).



       The state’s proof revealed that defendant knowingly shot and killed the

victim. Although the defendant contended the shooting was in self-defense, the



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jury rejected this and found him guilty of a “knowing killing of another.” Tenn.

Code Ann. § 39-13-210(a)(1). Self-defense is a jury question. State v. Ivy, 868

S.W.2d 724, 727 (Tenn. Crim. App. 1993). The jury was within its prerogative in

rejecting self-defense.



       This issue is without merit.



                                   SENTENCING



       The defendant’s second issue addresses the trial court’s failure to apply

any mitigating factors. This Court’s review of the sentence imposed by the trial

court is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-

401(d). This presumption is conditioned upon an affirmative showing in the

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

facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If

the trial court fails to comply with the statutory directives, there is no presumption

of correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96

(Tenn. 1997).



       The defendant received a twenty-one (21) year sentence. The

presumptive sentence for the Class A felony of second degree murder is the

midpoint within the range; namely, twenty (20) years. See Tenn. Code Ann. §

40-35-210(c). The trial court considered statutory enhancing factors and found

that the offense was committed with a firearm. See Tenn. Code Ann. § 40-35-

114(9). Based upon this factor, the trial court enhanced defendant’s sentence

one (1) year. The trial court noted the mitigating factors submitted by defendant:

(1) defendant acted under strong provocation, Tenn. Code Ann. § 40-35-113(2);

and (2) defendant was a first-time offender, had a high school education, had a

good work record, came from a good family, and was deeply remorseful, Tenn.

Code Ann. § 40-35-113(13). The trial court rejected these factors. The



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sentence of twenty-one (21) years, one year above the presumptive sentence,

was well within the discretion of the trial court. Thus, the sentence was proper.



      This issue is without merit.



                                 CONCLUSION



      Based upon the foregoing, the judgment of the trial court is AFFIRMED.




                                                _________________________
                                                JOE G. RILEY, JUDGE



CONCUR:



______________________________
DAVID G. HAYES, JUDGE




______________________________
JOHN EVERETT WILLIAMS, JUDGE




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