         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 3, 2003

                STATE OF TENNESSEE v. JOHN WAYNE BRITT

                     Appeal from the Circuit Court for Henderson County
                             No. 01027-3    Roger A. Page, Judge



                   No. W2002-01923-CCA-R3-CD - Filed December 31, 2003


Indicted for the February 10, 2001 first degree premeditated murder of Anthony Sims, the defendant,
John Wayne Britt, was convicted by a Henderson County jury of second degree murder. Following
a sentencing hearing, the trial court sentenced the defendant to 25 years in the Department of
Correction. Now on appeal, the defendant claims that insufficient evidence supports his conviction
and that his sentence is excessive. We disagree and affirm the trial court’s judgment.

                Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

Lloyd R. Tatum, Henderson, Tennessee, for the Appellant, John Wayne Britt.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General; Garry G. Brown, District Attorney General; and Bill Martin, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

                In his first issue, the defendant challenges the sufficiency of the convicting evidence.
The defendant posits that the witnesses’ accounts of this tavern homicide were so diverse and that
the witnesses themselves were so intoxicated that no reasonable trier of fact could have relied upon
the state’s evidence to convict the defendant of second degree murder.

                The defendant’s three-day trial began on December 10, 2001. In the light most
favorable to the state, the trial evidence is summarized as follows. On the night of February 10,
2001, a large crowd was patronizing the Golden Spur Tavern in Lexington. The patrons included
the victim, the defendant, Aaron Lyles, James Lee Wood, and David Burton. The victim and Lyles
were cousins. Sometime during the evening’s festivities of playing pool, dancing, and drinking beer,
either Lyles or the victim left his barstool and went to the rest room. When he returned, he found
the defendant occupying his stool, and words were exchanged among Lyles, the victim, Wood, and
the defendant. According to Lyles, he had been the one occupying the stool, and when he returned
from the rest room and argued with the defendant then seated on the stool, the victim came to Lyles’s
aid and told the defendant that if the defendant wanted to start trouble, he would have to deal with
the victim. Perhaps 30 to 45 minutes later, the defendant went outside, and soon Lyles, Wood, and
Burton followed. The victim may or may not have gone outside at this time.

                In any event, in front of the tavern, the men began “mouthing.” Some witnesses
recounted that the defendant removed his jacket and held an open knife in his right hand. Lyles went
to his Jeep and obtained an automatic pistol, which he brandished in front of the defendant and
others. Wood tried to intervene; he took the pistol away from Lyles and put Lyles in the Jeep.
Burton took the gun away from Wood and gave it to the bartender. The defendant tried to get into
the Jeep and yelled threats at Lyles. At some point, the victim came outside and stood by the front
door drinking a beer.

                During the defendant’s siege of the Jeep, Lyles left the Jeep and ran away. Some
witnesses recalled that the unarmed victim began walking around a truck when the defendant
accosted him, asked him if he wanted “some, too,” and without provocation, began stabbing the
victim. One witness, who was seated in her vehicle in front of the tavern, testified that the victim
did not threaten the defendant and did nothing “other than just stand there and get stabbed.” Some
witnesses recounted that the episode was initiated by the victim throwing a beer bottle that hit or
nearly hit the defendant in the shoulder. One witness testified for the defense that after the victim
threw the bottle, he “tackled” the defendant, and they fought. In any event, after a scuffle between
the victim and the defendant in the parking lot, the victim was left lying prone and bleeding. He had
sustained three significant stab wounds to his chest and abdomen, the lethal wound having penetrated
bone before piercing the victim’s heart.

                 Witnesses testified that the defendant wore a knife sheath on his belt. When the
police arrived to find the mortally wounded victim in the parking lot, the defendant emerged from
the side of the tavern building. The officers frisked him and found no weapons. The defendant had
dirt or gravel stains and, apparently, bloodstains on his jeans. The defendant stated, “I think I broke
my finger,” and added, “I had to defend myself.” The defendant appeared to have no impairment
in talking or walking and did not seem to be intoxicated. The officers found a knife sheath behind
the tavern and found the automatic handgun in a box behind the bar. They found no knife on the
premises.

              Based upon the foregoing evidence, the jury convicted the defendant of second degree
murder, a Class A felony. Second degree murder is defined as the knowing killing of another.
Tenn. Code Ann. § 39-13-210(a) (2003).

                Familiar rules govern the appellate review of a challenge to the sufficiency of the
evidence to support a conviction. The reviewing court must determine whether, considering the
evidence in a light most favorable to the prosecution, any rational trier of fact could have found the


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essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
99 S. Ct. 2781 (1979); State v. Reid, 91 S.W.3d 247, 276-77 (Tenn. 2002). “A guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and resolves
all conflicts in favor of the prosecution’s theory.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
 Issues of 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 the appellate court does not
re-weigh or re-evaluate the evidence. Id. Nor may the appellate court substitute its inferences drawn
from circumstantial evidence for those drawn by the trier of fact. Reid, 91 S.W.3d at 277. A verdict
of guilt removes the presumption of innocence and replaces it with a presumption of guilt, and on
appeal the defendant has the burden of establishing why the evidence is insufficient to support the
verdict rendered by the jury. Id. Conversely, the state on appeal is entitled to the strongest
legitimate view of the trial evidence, as well as all reasonable and legitimate inferences which may
be drawn therefrom. Id.

                Upon our review of the evidence in the case, we readily discern that witnesses gave
diverse and sometimes conflicting accounts of the details of the events of the evening. We also
discern that most of the witnesses were in some state of intoxication at the time the events unfolded,
and several of them were impeached at trial based upon their having been previously convicted of
felonies or crimes involving dishonesty. See Tenn. R. Evid. 609. Also, some witnesses’s testimony
conflicted with their prior written statements. See id. 613. These factors, however, go to the weight
and credibility of the evidence. As mentioned above, this court defers to the jury to determine the
weight of the evidence and the credibility of witnesses. We note that at least one eyewitness, who
had not been drinking at the time of the homicide, testified affirmatively that the defendant attacked
and stabbed the unarmed victim without provocation. The medical pathologist who performed the
autopsy on the body of the victim testified that the lethal stab wound that entered the victim’s heart
was necessarily applied with enough force to penetrate bone. Thus, in our view, the evidence is
sufficient to support a finding that the defendant knowingly killed the victim.

               In his other issue, the defendant claims that the sentence was excessive. The 25-year
sentence was the maximum for a Class A offense in Range I, the sentencing range stipulated by the
parties.

               In determining whether the trial court has properly sentenced an individual, this court
engages in a de novo review of the record with a presumption that the trial court’s determinations
were correct. Tenn. Code Ann. § 40-35-401(d) (2003). In conducting our de novo review, we must
consider the evidence at sentencing, the presentence report, the sentencing principles, the arguments
of counsel, the statements of the defendant, the nature and characteristics of the offense, any
mitigating and enhancement factors, and the defendant’s amenability to rehabilitation. Id. §§
40-35-210(b) (2003), 40-35-103(5) (2003); State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). On
appeal, the appellant has the burden of showing that the sentence imposed is improper. Tenn. Code
Ann. § 40-35-401(d), Sentencing Comm'n Comments (2003); Ashby, 823 S.W.2d at 169.




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                 In conducting a de novo review of a sentence, this court must consider: (a) the
evidence, if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors;
(f) any statement that the defendant made regarding sentencing; and (g) the potential or lack of
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102 (2003), 40-35-103 (2003),
40-35-210 (2003); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

               To determine the length of the sentence, the trial court applied three statutory
enhancement factors: The defendant had a previous history of criminal convictions or criminal
behavior in addition to that necessary to establish the proper range, Tenn. Code Ann. § 40-35-114(2)
(2003); the victim was particularly vulnerable, id. § 40-35-114(5) (2003); and the defendant
employed a deadly weapon during the commission of the offense, id. § 40-35-114(10) (2003). The
court applied no mitigating factors.

               At the outset, we note that the trial court made extensive references to the sentencing
principles and guidelines and recorded thorough findings of fact. Accordingly, the sentence is
accompanied by the statutory presumption of correctness.

                We first consider the application of enhancement factor (2), the defendant’s criminal
history or behavior. The presentence report revealed the defendant’s record of prior convictions:
driving while under the influence of an intoxicant (2000), assault and battery (1993, 1990, and 1987),
disorderly conduct (1990), leaving the scene of an accident (1990 and 1983), and public intoxication
(1999 and 1993). The trial court relied upon the defendant’s criminal record to apply enhancement
factor (2), and the record supports the trial court’s use of and assignment of “considerable weight”
to this factor.

                Concerning factor (5), that the victim was particularly vulnerable because of age or
physical or mental disability, the trial court determined that the victim was particularly vulnerable
because of intoxication. The court reviewed the testimony of the pathologist, who testified about
the victim’s blood-alcohol level, which exceeded .20. The pathologist testified that the victim’s
ability to defend himself would have been effectively impaired. The court applied the factor because
the defendant was not intoxicated at the time of the assault and was able to take advantage of the
victim. The evidence supports the trial court’s conclusions; we will not disturb the application of
factor (5).

                 The trial court applied factor (10), that the defendant used a deadly weapon in the
commission of the homicide, and unquestionably that factor applies. The defendant’s use of a knife
to kill the victim essentially is not controverted in the evidence. Thus, factor (10) applies.

               The trial court declined the defendant’s request to apply mitigating factors (2), that
the defendant reacted to strong provocation, Tenn. Code Ann. § 40-35-113(2) (2003); (3), that
substantial grounds exist to excuse or justify the criminal conduct, id. § 40-35-113(3) (2003); and


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(11), that the defendant, although guilty of the crime, committed the offense under such unusual
circumstances that it is unlikely that a sustained intent to violate the law motivated the conduct, id.
§ 40-35-113(11) (2003). We find no fault with the court’s conclusions.

                Although the defendant and the victim may have engaged in a disagreement in the
tavern 30 to 45 minutes before the homicide, and although some evidence indicates that the victim
threw a bottle at the defendant, substantial evidence supports the view that the unarmed victim did
nothing of substance to provoke the defendant’s fatal attack. This evidence justifies the trial court’s
rejection of factor (2).

                Similarly, the record fails to evince a basis for concluding that no substantial grounds
exist tending to excuse the criminal conduct. In this regard, the defendant posited that his need to
defend himself should mollify his sentence; however, the record contains substantial evidence that
the defendant attacked an unarmed, defenseless victim who had done nothing “other than stand there
and get stabbed.” Thus, the trial court was justified in rejecting mitigating factor (3).

                  The court was also justified in rejecting the claim, via factor (11), that the crime was
committed under such unusual circumstances that it is unlikely that the defendant held a sustained
intent to violate the law. The trial judge relied upon the “lull . . . in [the] altercation” following
Lyles’s escape from the scene on foot as a basis for finding that “there had been a cooling off period
. . . , there was a long enough period of time here, I’m finding there was a sustained intent to violate
the law that motivated this conduct.” Thus, we find no error in rejecting mitigating factor (11).

                Based upon the record and our analysis of it, the trial court’s sentencing judgment is
justified.

                Accordingly, the conviction and sentence are affirmed.




                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




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