         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 10, 2001

                 STATE OF TENNESSEE v. WYGENZO COBURN

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 99-07634    W. Fred Axley, Judge



                    No. W2000-01550-CCA-R3-CD - Filed August 29, 2001


The defendant was convicted of voluntary manslaughter, a Class C felony, and sentenced as a Range
I, standard offender to four years, six months in the county workhouse. In this appeal as of right, he
raises the following issues: (1) whether the evidence was sufficient to support his conviction; (2)
whether the trial court erred in failing to include “moral certainty” language in its reasonable doubt
instruction to the jury; and (3) whether the trial court erred in its application of enhancement factor
(10). Based upon a careful review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH, JJ., joined.

Marvin E. Ballin, Memphis, Tennessee, for the appellant, Wygenzo Coburn.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Charles W. Bell, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS
         The defendant, Wygenzo Coburn, was charged with one count of second degree murder for
the shooting death of John Wesley James, Jr. The proof at trial showed that the defendant shot the
victim in the head in the early morning hours of October 7, 1998, causing the victim to suffer severe
brain injury leading to a comatose state. The victim died in the hospital approximately two months
later as a result of this gunshot wound.

       Jerome Jones, an eyewitness to the shooting, testified that the victim was his cousin, and that
they had lived together in the two-bedroom Memphis apartment in which the victim was shot. At
about 1:15 a.m. on October 7, 1998, he and the victim were each in their own rooms when the
defendant’s mother, Joyce Turner, a neighbor, came to the apartment searching for cigarette papers
and a condom. Jones let her in. He said that she was quite loud, and that it was obvious that she had
been drinking. When the victim requested that she be quiet because his two children were trying to
sleep, Turner asked him if he had a condom. According to Jones, the victim told Turner that he did
not have any, and then added, “You out here selling your ass, you buy your own damn condoms.”
Turner responded by telling the victim to “kiss her ass.” Jones said that Turner kept repeating, over
and over, “Kiss my ass, kiss my ass.” An argument ensued, which led to the victim retrieving his
roofing hammer1 from the kitchen, chasing Turner out of the apartment, and locking the apartment
door. From outside the locked door, Turner continued “hollering” through the door for the victim
to “kiss her ass.” The victim struck the locked door once with his hammer, and then went back into
his bedroom and closed the door.

        After going back into his own bedroom, Jones could hear Turner knocking on the door of her
sister’s nearby apartment, “trying to get in.” About three or four minutes later, he heard her
knocking on the back door of his apartment. He opened the door, and she came back inside. As she
did so, Jones noticed the defendant standing outside on the sidewalk with a nine-millimeter pistol
in his hand. Jones said that he told the defendant that he was not going to let anyone hit his mother
with the hammer. At that time, the defendant appeared to be “cool.” Jones said that “everybody
knew everybody,” and that he, the victim, and Turner were “all friends.”

        In the meantime, however, Jones could hear Turner back inside the apartment telling the
victim to “kiss her ass, kiss her ass, kiss her ass again.” Turner then came running back out of the
apartment, followed by the victim, who once again had his roofing hammer. Jones said that as the
victim chased Turner out of the apartment, he slipped and fell in the mud in front of the defendant.
The defendant pointed his gun at the victim and told him not to hit his mother with the hammer. The
victim answered that he was not going to hit the defendant’s mother, and walked back inside the
apartment, carrying the hammer down at his side. Turner, Jones said, was “just standing there, just
talking crazy,” continuing to tell the victim to “kiss her ass,” and saying, “That mother fucker going
to hit me with that hammer.”

        Jones testified that the defendant followed the victim to the apartment door, standing on the
porch and pointing his gun where the victim was standing inside the kitchen, as he once again told
him not to hit his mother with the hammer. The victim told the defendant to tell his mother to quit
coming into his apartment telling him to “kiss her ass.” According to Jones’s testimony, at about
that point, Turner said, “If you don’t shoot him, I will, I will, I will, I will.” The victim then said to
the defendant, “Okay, man, I’m through with it. I’ll stay–I’m staying here.” Next, the defendant
backed up about two steps, and the gun went off. The bullet went through the wall beside the open
doorway, striking the victim in the head as he stood inside the kitchen.



         1
           At other po ints during his testimon y, Jones re ferred to th is tool as a “hatchet.” Photographs in the record
reveal a short-handled instrument containing a wedge-shaped hammer-type head at one end, with a hatchet, instead of
a claw, at the other end .

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        Jones said that the victim had not made any threatening gestures towards either the defendant
or his mother after falling in the mud, that he had never attempted to hit Turner with the hammer,
and that his last words before the defendant fired the gun were that he was “through with it.” Jones
said that he had not been aware, at first, that the victim had been shot, and that he did not believe that
the defendant had realized it either. He later admitted, however, that he could not have known what
was in the defendant’s mind when he fired the shot. He said that the defendant had told him several
days after the shooting that he had not meant for the gun to fire. Jones testified that the defendant
and his mother had both been drinking earlier in the afternoon and evening before the shooting, but
that neither he nor the victim had had anything to drink.2

        Officer Jeffrey W. Jordan of the Memphis Police Department was the first police officer to
respond to the scene of the shooting. He testified that when he arrived at the scene he saw the
victim, with an apparent bullet wound to the side of his head, lying in a pool of blood just inside the
doorway of the apartment. Two small children, whose ages he estimated at between two and three,
were standing beside the victim.

        Dr. O’Brian Cleary Smith, the Shelby County Medical Examiner, who performed the autopsy
on the victim’s body, stated that the victim died as a result of a gunshot wound to his head which
resulted in severe brain injury, causing a comatose state. The severe brain injury and comatose state
led to the eventual development of bronchial pneumonia that ultimately caused his death.

        The twenty-five-year-old defendant testified that he was at his aunt’s apartment, next door
to the victim’s apartment, at about 1:00 a.m. on October 7, 1998, when his mother came in drunk.
After an argument about her being out so late, he told her to go home to his little sister, and she left.
He next saw her when she “came from next door banging on [his] aunt’s door real hard like
somebody was there.” When he opened the door, she told him that someone was trying to hit her
in the head with a hammer. He immediately grabbed his gun and accompanied her out of the
apartment. As he was trying to find out who was after her, Jones came out of his apartment. His
mother, he said, was “in one ear yapping,” while Jones was in the other ear saying that it was “bull
shit,” so that he was unable to understand what either one was saying. About two minutes later, the
door to Jones’s apartment came “flying open,” and the victim “came storming out the door with the
hatchet,” going “straight toward” the defendant’s mother.

        The defendant said that the victim slipped and fell into him, swinging at his arm with the
hatchet as he fell. As the defendant helped him up, the victim drew back again with his hatchet
aimed at the defendant’s mother. The defendant brought his gun out and stepped back, telling the
victim that if he hit his mother with the hatchet, he would shoot him. The victim said to his mother,
“Bitch, I’m going to kill you, whore, I’m going to fuck you up,” and backed into the dark house,
where the defendant could not see him. At about that time, the defendant said, his mother tapped
him on the shoulder, causing him to jump and the gun to go off. The defendant testified that he was


        2
          The parties stipulated that the victim was drug- and alcohol-free when he was admitted to the hospital for
treatment of his gunshot wound.

                                                        -3-
not at first aware that the victim had been shot. He said that after the gun went off he turned and
started to walk back toward his aunt’s house. As he was walking away, he heard the victim coming
toward the door. The victim dropped his hatchet, grabbed his head, and fell.

       The defendant testified that he had been afraid for his mother’s life. He said that he had only
intended to scare the victim into leaving his mother alone, and had never intended to shoot him. He
claimed that the shooting had been an accident. He admitted, however, that he had fled the area after
the shooting, hiding out on “the streets and alleys and stuff,” before turning himself in to the police
on October 13.

        The State presented the rebuttal testimony of Joyce Turner, who denied that she had gone to
get her son from her sister’s apartment. She said that the defendant had been outside on the sidewalk
when the victim chased her out of Jones’s apartment, swinging the hatchet at her. The defendant had
pulled her to the side, and the victim had run into the defendant. After falling into the defendant’s
arms, the victim had gone back into the apartment, where she could see him standing behind the door
facing. She had been talking to the defendant when the gun fired. Turner said that she had been
afraid for her life because the victim was swinging the hatchet at her. She thought that if the
defendant had not pulled her out of the way, the victim would have hit her, and believed that her son
had been trying to protect her when he shot the victim. She admitted, however, that in her original
statement to police she had never mentioned the victim’s having swung the hatchet at her.

       The jury found the defendant guilty of voluntary manslaughter, and the trial court sentenced
him as a standard, Range I offender to four years, six months in the county workhouse. Following
the denial of his motion for a new trial, the defendant filed a timely appeal to this court.

                                             ANALYSIS

                                   I. Sufficiency of the Evidence

        The defendant first contends that the evidence was insufficient to establish beyond a
reasonable doubt that he committed the offense of voluntary manslaughter. Specifically, he argues
that the State failed to establish that he committed a knowing killing of the victim. He asserts that
the evidence shows only that he fired a weapon, “not that he knew that the result of firing the weapon
would be the killing of the [victim].”

       When the sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the offense charged
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560 (1979). See also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson,
835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P. 13(e) (“Findings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt.”). All questions


                                                  -4-
involving the credibility of witnesses, the weight and value to be given the evidence, and all factual
issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

         Voluntary manslaughter is defined in Tennessee Code Annotated Section 39-13-211(a) as
“the intentional or knowing killing of another in a state of passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner.” “‘Intentional’ refers to a person
who acts intentionally with respect to the nature of the conduct or to a result of the conduct when it
is the person’s conscious objective or desire to engage in the conduct or cause the result.” Tenn.
Code Ann. § 39-11-106(18) (1997). “A person acts knowingly with respect to a result of the
person’s conduct when the person is aware that the conduct is reasonably certain to cause the
result[.]” Tenn. Code Ann. § 39-11-106(20) (1997).

        Viewed in the light most favorable to the State, the evidence in this case showed the
following: After witnessing the victim chase his mother from the apartment with a roofing hammer,
the defendant pointed a loaded nine-millimeter handgun at the victim and threatened to shoot him.
Carrying the hammer in a nonthreatening position down at his side, the victim retreated to the
kitchen of his apartment, with the defendant following to the porch and pointing his gun in the
victim’s direction as he continued to threaten him. The defendant’s mother urged the defendant to
shoot the victim even though the victim said that he was finished arguing with the defendant’s
mother. The defendant then fired his weapon through the wall of the apartment beside the open
doorway, striking the victim, who was standing behind the door frame, in the head and ultimately
causing his death. From this evidence, a rational trier of fact could have concluded that the
defendant shot the victim either intentionally, i.e., with the conscious desire to cause the result, or
knowingly, i.e., with the awareness that his conduct was reasonably certain to cause the result. By
convicting him of voluntary manslaughter, the jury obviously concluded that the defendant was
provoked by the victim’s treatment of his mother, but that his actions went beyond those necessary
to defend his mother. The evidence at trial was more than sufficient to support the defendant’s
conviction of voluntary manslaughter. This issue, therefore, is without merit.

                                 II. Reasonable Doubt Instruction

        The defendant next contends that the trial court erred in its reasonable doubt instruction to
the jury. In particular, he argues that the court’s failure to issue the standard pattern jury instruction
containing “moral certainty” language lowered the standard of proof by which the State had to prove
him guilty of the offense, depriving him of his rights under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution. The State responds by citing a number of this
court’s recent opinions that hold that Tennessee Pattern Jury Instruction 2.03(a), the reasonable


                                                   -5-
doubt instruction utilized by the trial court in this case, is not unconstitutionally deficient for its
failure to include “moral certainty” language.

        The defendant asked that the trial court instruct the jury on reasonable doubt by use of T.P.I.-
Crim. 2.03, which contains language that the jury must find the defendant guilty to a moral certainty.
The trial court refused the request, opting instead to use T.P.I.-Crim. 2.03(a), which provides as
follows:

                       A reasonable doubt is a doubt based upon reason and common
               sense after careful and impartial consideration of all the evidence in
               this case.

                        It is not necessary that the defendant’s guilt be proved beyond
                all possible doubt, as absolute certainty of guilt is not demanded by
                the law to convict of any criminal charge.

                       A reasonable doubt is just that–a doubt that is reasonable after
                an examination of all the facts of this case.

                       If you find that the state has not proven every element of the
                offense beyond a reasonable doubt, then you should find the
                defendant not guilty.

The defendant complains that this instruction fails to adequately define the meaning of reasonable
doubt in the context of a criminal trial, allowing the jury to convict a defendant on less proof than
that required by the “moral certainty” language of T.P.I.-Crim. 2.03.

         We have previously rejected similar challenges to the use of T.P.I.-Crim. 2.03(a). See, e.g.,
State v. Ronald D. Correll, No. 03C01-9801-CC-00318, 1999 WL 812454, at * 8 (Tenn. Crim. App.
Oct. 8, 1999), perm. to appeal denied (Tenn. April 24, 2000) (holding that T.P.I.-Crim. 2.03(a) is
consistent with principles of due process); State v. Tony Fason, No. 02C01-9711-CR-00431, 1999
WL 588150, at *4 (Tenn. Crim. App. Aug. 6, 1999), perm. to appeal denied (Tenn. Feb. 7, 2000)
(“‘Moral certainty’ is not required language in a jury instruction.”); State v. Roscoe L. Graham, No.
02C01-9507-CR-00189, 1999 WL 225853, at *12 (Tenn. Crim. App. April 20, 1999) (holding that
reasonable doubt instruction omitting language of moral certainty is adequate). In State v. Melvin
Edward Henning, No. 02CO1-9703-CC-00126, 1997 WL 661455, at *9 (Tenn. Crim. App. Oct. 24,
1997) (footnote and citations omitted), we rejected a challenge that T.P.I. Crim. 2.03 (a) was
constitutionally deficient because it did not contain “moral certainty” language:

                      Tennessee Pattern Instruction 2.03(a) tracks virtually identical
               language of pattern reasonable doubt instructions approved by a
               majority of the federal circuits. Moreover, the questioned language
               “based upon reason and common sense” and “absolute certainty is not


                                                  -6-
               required” has repeatedly been upheld as passing constitutional muster.


                       We do not find that the instruction taken separately renders
               the reasonable doubt instruction constitutionally deficient.
               Additionally, considering this language in the context of the full
               charge, we find no reasonable likelihood that the jury understood the
               instruction to permit conviction after anything but a process of careful
               deliberation or upon less than proof beyond a reasonable doubt. This
               issue is without merit.

       We conclude that the trial court’s use of T.P.I.-Crim. 2.03(a) in this case adequately conveyed
the meaning of reasonable doubt to the jury, and did not lower the standard of proof by which the
State had to prove the defendant guilty of the elements of the offense. This issue, therefore, is
without merit.

                                  III. Enhancement Factor (10)

        Finally, the defendant contends that the trial court erred in applying enhancement factor (10)
to enhance his sentence. Tenn. Code Ann. § 40-35-114(10). He argues that the trial court’s use of
this enhancement factor was improper because a high risk to human life was an essential element
of his crime of voluntary manslaughter. The State points out that enhancement factor (10) has been
found to be appropriate in cases of voluntary manslaughter when individuals other than the victim
were placed at risk by the defendant’s actions, and asserts that it was appropriately applied in this
case based on evidence that other individuals, including Jerome Jones and the defendant’s mother,
Joyce Turner, were present when the defendant brandished his loaded weapon and fired it into the
apartment.

         The defendant, as the party challenging the sentence imposed by the trial court, has the
burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). When a defendant
challenges the length and manner of service of a sentence, it is the duty of this court to conduct a de
novo review on the record with a presumption that “the determinations made by the court from which
the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned
upon the affirmative showing in the record that the trial court considered the sentencing principles
and all relevant facts and circumstances.” Ashby, 823 S.W.2d at 169. The weight to be afforded an
enhancement or a mitigating factor is left to the trial court’s discretion as long as the trial court
complies with the purposes and principles of the 1989 Sentencing Act, and its findings are
adequately supported by the record. Tenn. Code Ann. § 40-35-210 (1997), Sentencing Commission
Cmts.; State v. Moss, 727 S.W.2d 229, 236 (Tenn. 1986).

       In this case, the trial court found two enhancement factors applicable: (1) the defendant
possessed or employed a firearm, explosive device or other deadly weapon during the commission


                                                 -7-
of the offense; and (2) the defendant had no hesitation about committing a crime when the risk to
human life was high. Tenn Code Ann. § 40-35-114(9) and (10) (1997). The court found no
applicable mitigating factors. As a Range I, standard offender convicted of a Class C felony, the
defendant was subject to a sentence ranging from three to six years. See Tenn. Code Ann. § 40-35-
112(a)(3) (1997). Based on the presence of the enhancement factors, and the absence of any
mitigating factors, the trial court enhanced the defendant’s sentence from the minimum of three years
to four years, six months, and ordered that he serve his time in the county workhouse.

        The defendant challenges only the application of enhancement factor (10), arguing that it is
inherent in the offense of voluntary manslaughter. The applicability of a particular enhancement
factor must be determined on a case-by-case basis. State v. Lavender, 967 S.W.2d 803, 807 (Tenn.
1998). If the same facts that establish an element of the offense charged are also used to establish
the enhancement factor, then the enhancement factor may not be used to increase punishment. Id.
(citing State v. Jones, 883 S.W.2d 597, 601 (Tenn. 1994)). However, although enhancement factor
(10), “[t]he defendant had no hesitation about committing a crime when the risk to human life was
high,” Tenn. Code Ann. § 40-35-114(10) (1997), is inherent in every homicide case with respect to
the victim, the trial court may appropriately consider this factor when the evidence shows that the
defendant’s actions placed the lives of individuals other than the victim at risk. See State v. Kelley,
34 S.W.3d 471, 480 (Tenn. Crim. App.), perm. to appeal denied (Tenn. 2000); see also State v.
Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995); Jones, 883 S.W.2d at 601. The record in
this case reflects that the trial court applied enhancement factor (10) based on the presence of persons
other than the victim in the area when the defendant fired his gun through the wall of the apartment.
The evidence at trial showing that the victim’s two children, as well as Jones and Turner, were
present in the immediate vicinity and thus subject to risk by the defendant’s actions in firing his gun
into the apartment, supports the trial court’s application of this factor. This issue is without merit.

                                          CONCLUSION

       Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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