        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE

                         FEBRUARY SESS ION, 1997
                                                      FILED
                                                        June 25, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TE NNE SSE E,             )   C.C.A. NO. 03C01-9603-CR-00113
                                   )
           Appellee,               )
                                   )   KNOX COUNTY
                                   )
V.                                 )
                                   )   HON. RAY L. JENKINS, JUDGE
FERNANDO REMIRUS HAYLES,           )
                                   )
           Appe llant.             )   (VOLUNTARY MANSLAUGHTER)




FOR THE APPELLANT:                 FOR THE APPELLEE:

KIMBERLY A. PARTON                 JOHN KNOX WALKUP
Attorney at Law                    Attorney General & Reporter
407 Union Avenue, Suite 209
Knoxville, TN 37902                WILLIAM D. BRIDGERS
                                   Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   RANDALL E. NICHOLS
                                   District Attorney General

                                   S. JO HELM
                                   Assistant District Attorney General
                                   400 Main
                                   P.O. Box 1468
                                   Knoxville, TN 37901-1468




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION

              The Defendant, Fernando Remirus Hayles, appeals as of right

according to Rule 3 of the Tennessee Rules of Appellate Procedure. Following

a jury trial, the Defendant was convicted of voluntary manslaughter in the

Criminal Court of Knox County. He was senten ced by the trial court to serve six

(6) years imprisonment as a Range I Standard Offender. The Defendant raises

two issues in his app eal: (1) the trial court erred in refusing to allow testimony

which would ten d to support the Defendant’s theory of self-defense on the issue

of the first aggressor; and (2) the sentence imposed by the trial court was

excessive due to the trial c ourt’s improper consideration of both aggravating and

mitigating factors. We affirm the Defendant’s conviction.



              W hile the Defendant does not challenge the sufficiency of the

evidence, a short recitation of the facts is necessary for our review. On April 16,

1994, the Defendant and the victim, James Lawrence Lewis, became involved

in a verba l argum ent afte r arriving in different vehicles in the area of G oins Drive

in Knoxville. The Defendant and the victim had been friends for several years.

It was not uncommon for the two to argue, but prior to this date the argume nts

had never resulted in violence.        On this particular evening, their argument

became heated. Witnesses testified the Defendant appeared “wide-eyed and

frightene d.” Subse quently, the Defen dant pu lled out a gun from unde rneath his

jacket and fired several times at the victim. Several persons were standing in the

imme diate area. Three bullets struck the victim, and, shortly thereafter, he died.

The Defenda nt ran away from the scene, bu t he later turned himself in to the



                                          -2-
police. Indicted for second degree murder, the jury found him guilty of the lesser

grade offens e of voluntary ma nslaughter.



                                         I.



             The Defendant argues that the trial court erred in denying admission

of testimony which would tend to support the Defendant’s theory of self-defense.

Whether or not the Defendant acted in self-defense is a ques tion for the ju ry to

determine. See Arterbu rn v. State , 216 Tenn. 240, 391 S.W.2d 648, 653 (Tenn.

1965); State v. Fugate , 776 S.W .2d 541, 545 (Tenn. Crim . App. 1988 ).

Defendant sought to prove through both cross-examination of State’s witnesses

and through direct examination of defen se witn esse s that h is shoo ting the victim

was only as a result of the victim’s acts of aggression.           Through various

witnesses the Defendant sought to introduce threats the victim made against the

Defen dant. After hearing various arguments of counsel, the trial court ruled these

statemen ts were inadm issible hearsay.



             Tennessee Rules of Evidence 803 sets forth the hearsay evidence

exceptions. The “state of mind” exception provides the following:

      Then existing Mental, Emo tional or Physical C ondition. --A
      statement of the declarant’s then existing state of mind, emotion,
      sensation, or physical condition (such as intent, plan, motive,
      design, men tal feelin g, pain , and b odily health), but not including a
      statement of mem ory or belief to prove the fact remembered or
      believed unless it relates to the execution, revocation, identification,
      or term s of de claran t’s will.

Case law which predates the ado ption of the Tennessee Rules of Evidence

provides that statements by the victim which ten d to show the victim’s a nimos ity

toward the de fenda nt in a case wh ere self-de fense is an iss ue are adm issible if

                                         -3-
relevant to explain the conduct of the d ecea sed in establishing who was the first

aggres sor. See State v. Butler, 626 S.W .2d 6, 11 (Te nn. 1981).



             This Court re cently held that a victim’s state of mind w as releva nt to

the defendant’s claim of self-de fense and a dmis sible pursuant to the Tennessee

Rules of Evidence and Butler. State v. Ruane, 912 S.W.2d 766, 778-79 (Tenn.

Crim. App . 1995).



             Howeve r, in the case sub judice, the Defendant made no offer of

proof as to wha t the witnes ses wo uld testify reg arding th reats made by the victim.

In addition, in one of the s ituations where Defendant claims error by the trial

court, counsel stated in the record that she wa s not ask ing the witn ess to tes tify

as to the declarant’s state men t, but wa s only a sking the witn ess if a c ertain

question was asked the declara nt.        While the record is clear that defense

coun sel, at certain points, was anticipating the witnesses would testify as to

threats made by the victim, without any offer of proof, we are una ble to determine

whether or not the w itnesses could ac tually testify as to whether an y threats were

made by the victim toward th e Defe ndant.




                                          -4-
                Rule 103 Ten ness ee Ru les of E videnc e prov ides in part as follows:



         Rule 103. Rulings on Evidence - (a) Effect of erroneo us ruling. --
         Error may not be predicated upon a ruling which admits or excludes
         evidence unless a substantial right of the party is affected, and
                                                ***
         (2) Offer o f Proo f. -- In cas e the ru ling is one excluding evidence, the
         substance of the evidence and the s pecific eviden tiary ba sis
         supporting admission were made kn own to the co urt by offer or were
         appare nt from th e conte xt.


                This Court has h eld that there are two purposes of an offer of proof:

(1) the proo f informs th e trial court w hat the party intends to prove so that the

court may make an intelligent ruling and (2) an o ffer of proof creates a record so

that the appellate court can determine whether or not there was reversible error

in excluding the evide nce. Alley v. State, 882 S.W.2d 810, 815 (Tenn. Crim. App.

1994).



                In this particular case, we are unable to determine whether or not

revers ible error occurred absent an offer of proof by the Defendant at trial.

Accordingly, pursuant to Rule 103, Tennessee Rules of Evidence, this issue is

without m erit.



                                             II.



                The Defendant argues that the six (6) year sentence imposed by the

trial court wa s exces sive given conside ration of the facts as they relate to the

enhancing and mitigating factors of Tennessee Code Annotated sections 40-35-

113 and -114. When an accused challenges the length, range, or the manner of



                                             -5-
service of a sentence, this court has a duty to conduct a de novo review of the

sentence with a presumption that the determination s made by the trial court are

correct. Tenn. Code Ann. § 40-35-401(d). Th is presu mptio n of co rrectn ess is

conditioned upon the affirm ative sh owing that the trial court considered the

sentencing principles and a ll relevant facts and circumstances in the record.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Even if we would h ave

preferred a different result, if our review reflects that the trial court followed th e

statutory senten cing proc edure, im posed a lawful se ntence after having given

due consideration and prope r weigh t to the fa ctors a nd prin cipals set out under

the sentencing law , and suppo rted the findings of fact a dequately from th e

record, then we may no t modify the sente nce. State v. Fletcher, 805 S.W.2d 785,

789 (Ten n. Crim. App . 1991).



             In conducting a de novo review of the sentence, this court must

consider: (a) the e videnc e, if any, received at trial and the sentencing hearing;

(b) the pres entenc e report; (c ) the princip les of sen tencing a nd argu ments 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 de fenda nt ma de on his ow n beh alf; and (g) the p otentia l or lack of

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,

and -21 0; see State v. S mith, 735 S.W .2d 859 , 863 (T enn. C rim. App . 1987).




             For the offense of voluntary manslaughter, the legislature has

designated a Class C felony sentence of not less than three years nor more than

six years for a Rang e I standa rd offend er. See Tenn. Code Ann. § 40-35-

                                          -6-
112(a)(3). In applying the m aximum range of pun ishment of six yea rs, the trial

court in the case sub judice used the following enhancement factors: (1) the

Defendant has a previous history of unwillingness to comply with the conditions

of a sentence involving release; (2) the Defendant possessed or employed a

firearm during the commission of the crime; (3) the Defendant had no hesitation

about committing a crime when the risk to human life was high; (4) the crime was

committed under circumstances in which the poten tial for bo dily injury to a victim

was great; ( 5) the fe lony wa s com mitted while the Defendant was on release from

probation of a felony c onviction in the juven ile system . See Tenn. Code Ann. §

40-35-114.



             First,   the   De fenda nt’s    pre sente nce   re port   do cum ents   h is

unwillingness to comply with the conditions of his earlier p robatio n in the juvenile

system. The D efenda nt was to continue to atte nd high schoo l and to m eet a

variety of other conditions , including paying co urt costs and restitution and doing

comm unity service work. At the time of the report, the Defendant had dropped

out of school. Furthermore, the presentence report indicates that Defendant was

asked by the reporting officer why he had dropped out of school during his senior

year. The Defendant replied that “I got lazy and started running with the wrong

crowd.” Application of the first enhancement factor was therefore appropriate.



             During the commission of the crime, Defendant possessed and

employed a handgun, and therefore application of this particular enhancement

factor was also appropriate. As use of a firearm is not an element of voluntary

manslau ghter, this sentencing factor can be used to enhance the De fenda nt’s




                                            -7-
sentence. See State v. Raines, 882 S.W.2d 376 (Tenn . Crim. A pp. 199 4); State

v. Butler, 900 S.W .2d 305, 312 -13 (Tenn . Crim. App. 19 94).



             The record re flects that the trial court considered the enhancement

factors of a lack of hesitation to commit the crime when the risk to hum an life is

great and that the crime was committed under circumstances in which the

potential for bodily injury to a victim was great together. As the facts of this case

show, the crime was committed by the Defendant firing up to five shots from his

handgun at a time when several people were in the immediate area, therefore

application of both the se enh ancem ent factors is approp riate. State v. Ruane,

912 S.W.2d 766, 784 (Tenn. Crim. App. 19 95); State v. Sims, 909 S.W.2d 46, 50

(Tenn. C rim. App. 199 5).



             Howeve r, the trial court erred by applying the enhancement factor

that the crim e was com mitted while the Defendant was on probation from a prior

felony conviction. Defendant was on proba tion from a findin g of de linque ncy in

the Juvenile Court of Knox County. While the act committed by the Defendant

as a juvenile may have constituted a felony if committed by an adult, the

Defendant did not have a prior felony conviction, and therefore his release status

was no t from a p rior felony co nviction.



             The Defendant raised the following mitigation factors at the

sentencing hearing: (1) the Defendant acted under strong provocation; (2)

substantial grounds existed to excuse the Defendant’s criminal conduct, though

failing to establish a defense; (3) because of his youth, the Defendant lacked

substantial judgment in committing the offense; (4) the Defendant assisted the

                                             -8-
authorities in recovering pers ons or prope rty involved in the crime; (5) the

Defen dant, though guilty of the crime, committed the crime under such unusual

circumstances that it is un likely a s ustain ed inte nt to viola te the la w mo tivated his

condu ct. See Tenn. Code Ann. § 40-35-113. It is evident from our review of the

record that the trial court used due consideration and proper weight in denying

application of these mitigation factors. Even if some evidence of mitigation

existed, where th e mitigation factors are strongly outweighed by the

enhancement factors, as in this case, the ma ximum senten ce is warra nted. State

v. Ruane, 912 S.W .2d 766 , 785 (T enn. C rim. App . 1995).



              Even though the trial court erroneously applied one enhancement

factor, we find tha t the trial court p laced great weight on the remaining

enhancement factors, and the reco rd reflects th at the app ropriate enhancement

factors stro ngly outw eigh an y evidenc e of mitiga tion.



              We therefore affirm the trial court’s sentence of six (6) years.




                                            -9-
          Finding no reve rsible error, we affirm the ju dgme nt of the trial co urt.



                               ____________________________________
                               THOMAS T. WOODALL, JUDGE


CONCUR:


___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JERRY L. SMITH, Judge




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