         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 17, 2000

         STATE OF TENNESSEE v. CARLOS DEMETRIUS HARRIS

                     Appeal from the Criminal Court for Hamilton County
                           No. 220706    Stephen M. Bevil, Judge



                                  No. E2000-00718-CCA-R3-CD
                                        January 4, 2001

The Defendant, Carlos Demetrius Harris, appeals as of right from his reckless homicide conviction.
On appeal, he presents the following six issues: (1) whether the trial court erred by granting the
State’s motion to amend the indictment from voluntary manslaughter to reckless homicide; (2)
whether the trial court erred by allowing inadmissible items into evidence; (3) whether the trial court
erred by not allowing testimony by the Hamilton County Medical Examiner that an ordinary person
would be unaware that one blow to the head would cause death; (4) whether the trial court erred by
granting the State’s jury instruction request regarding causation and intent; (5) whether the evidence
was sufficient to support the conviction; and (6) whether the trial court erred by sentencing the
Defendant to a term of six years and by denying the Defendant alternative sentencing. We find no
reversible error; accordingly, we affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J. and
William B. Acree, Jr., Sp.J., joined.

Cynthia A. LeCroy-Schemel, for the appellant, Carlos Demetrius Harris.

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; Bill
Cox, District Attorney General; and Barry Steelman and Christopher Poole, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

        The proof at trial established that the Defendant loaned the victim, Charles Freeman, thirty
dollars on February 22, 1998. The Defendant had previously loaned money to Mr. Freeman, and Mr.
Freeman had always repaid the money in a timely fashion. However, on February 23, 1998, when
the Defendant asked Mr. Freeman about the money, Mr. Freeman gave the Defendant the
“runaround.”
       Mr. Freeman and the Defendant secured a ride to Mr. Freeman’s residence with two
acquaintances of the Defendant, Mary Mangram and Felicia Jones. Mr. Freeman lived with his
mother, Essie Freeman. Mr. Freeman got out of the car and went inside, leaving the other three
individuals in the car. When Mr. Freeman went inside, he talked to his mother. Essie Freeman told
her son that he could no longer live with her because he had a drug problem, but she agreed to let
him stay until the following Friday. After that, Mr. Freeman went back outside, and he asked the
Defendant to join him behind the car.

        Both Mary Mangram and Felicia Jones testified that they were not paying attention to the
Defendant and Mr. Freeman; instead, they were attempting to operate the cassette player. However,
both of them heard a loud noise, like a “lick” or a “pow,” as though something had been hit. Ms.
Mangram then heard a woman yell, “Stop that, stop that.” Ms. Jones testified that she heard a
woman yell, “Get back in that car, get out from here, get back in that car.” The Defendant got in the
car, and Ms. Mangram drove away. She testified that the Defendant did not say anything about what
happened. He just asked for a cigarette.

       Essie Freeman testified that she was looking out her front window after her son left her house
on February 23, 1998. She saw her son and another man talking, and she said that they appeared to
be “flustered.” At one point, the man hit Mr. Freeman in the head, and Mr. Freeman fell to the
ground. Ms. Freeman testified that she did not see her son raise his hand to the man or attempt to
touch him prior to the man striking her son.

       Paramedics responded to the scene, where they discovered that Mr. Freeman had a pulse but
was not breathing. On the way to the hospital, Mr. Freeman experienced cardiac arrest. He
ultimately died as a result of his injuries.

        Dr. Frank King, the Hamilton County Medical Examiner, testified that Mr. Freeman’s death
was caused by blunt force trauma to the head. He explained that the head injury consisted of
multiple fractures of the skull and injury to the brain. The location of the skull fractures and the
brain injury indicated that the injuries were caused by a sudden movement of the head going back
with the face going upward. Dr. King also testified that there were secondary injuries to the back
of the head caused by a second impact. Dr. King agreed with counsel that a possible explanation for
the injuries would be that Mr. Freeman was struck in the head, causing the first injuries, and then
his head hit the pavement, causing the secondary injuries. Dr. King admitted that the extent of injury
caused by a blow to the head in any particular individual is difficult to predict; what might cause
death in one person might not harm another person at all.

       Dr. King testified that Mr. Freeman tested positive for cocaine, which would tend to stimulate
a person’s nervous system. Dr. King agreed that cocaine could make a person agitated and
aggressive, but he asserted that the effect of cocaine on any particular person could not be
determined by a laboratory test. In addition, Dr. King testified that he observed Mr. Freeman’s
fingernails, and they did not show signs of foreign material such as skin, hair, or fiber.



                                                 -2-
        When Mary Mangram learned that Mr. Freeman had died, she went to the police and
informed them about the incident. The Defendant was arrested as a result, and he gave a statement
to the police which was recorded and played for the jury. In that statement, the Defendant admitted
striking Mr. Freeman one time on the head. However, he claimed that he did so in self-defense. He
said that Mr. Freeman “grabbed” him. He showed the police his neck and face, which had scratches
on them. The police made pictures of the Defendant’s neck and face, which were shown to the jury.

                               I. AMENDMENT OF INDICTMENT

        The Defendant first argues that the trial court erred by granting the State’s motion to amend
the indictment to reflect a charge of reckless homicide rather than voluntary manslaughter. The
Defendant asserts that he was “highly prejudiced” by the amendment because it occurred only a
couple of weeks prior to trial and completely changed the offense and the elements. However, the
Defendant did not present this issue in his motion for a new trial. Therefore, this issue has been
waived. See Tenn. R. App. P. 3(e); State v. Clinton, 754 S.W.2d 100, 103 (Tenn. Crim. App. 1988).

        Notwithstanding, we have considered this issue, and we find that it lacks merit. Rule 7(b)
of the Tennessee Rules of Criminal Procedure provides that an indictment may be amended in all
cases with the consent of the defendant, and if no additional or different offense is charged and if no
substantial rights of the defendant are prejudiced, the indictment may be amended without the
defendant’s consent before jeopardy attaches. While there is no evidence in this record regarding
whether the Defendant did or did not consent to the amendment of the indictment, we conclude that
the amendment was proper whether or not the Defendant consented because the amendment did not
charge an additional offense, and the substantial rights of the Defendant were not prejudiced.

         When a person is charged with an offense, that person is also charged with all lesser offenses
included within that offense. See Strader v. State, 362 S.W.2d 224, 227 (Tenn. 1962). A trial court
is under the mandatory duty to instruct the jury on the offense charged and any lesser included
offenses. Tenn. Code Ann. § 40-18-110(a). In this case, the Defendant was originally charged with
the offense of voluntary manslaughter, which is “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.” Id. § 39-13-211. The indictment was amended to reflect a charge of reckless
homicide, which is “a reckless killing of another.” Id. § 39-13-215. Pursuant to State v. Burns, 6
S.W.3d 453 (Tenn. 1999), an offense is a lesser included offense if

        (a) all of its statutory elements are included within the statutory elements of the
        offense charged; or
        (b) it fails to meet the definition in part (a) only in the respect that it contains a
        statutory element or elements establishing
        (1) a different mental state indicating a lesser kind of culpability . . . .
Id. at 466-67.




                                                 -3-
        Reckless homicide contains two elements: the killing of another and reckless conduct. See
Tenn. Code Ann. § 39-13-215. Obviously, the killing of another is included within the offense of
voluntary manslaughter. While the element of reckless conduct is not technically included within
the elements of voluntary manslaughter, which requires intentional or knowing conduct, the element
of reckless conduct does establish a different mental state indicating a lesser kind of culpability. See
Tenn. Code Ann. §§ 39-11-301(a)(2), 39-11-302. Therefore, reckless homicide is a lesser included
offense of voluntary manslaughter under part (b) of the Burns test.1 Because reckless homicide is
a lesser included offense of voluntary manslaughter, the Defendant was necessarily charged with
reckless homicide when he was charged with voluntary manslaughter. It follows that he would have
had to prepare a defense to reckless homicide as well as voluntary manslaughter. Thus, the
amendment to the indictment did not charge a new offense, and the Defendant’s rights were not
prejudiced. Accordingly, we find no error.

                                        II. INADMISSIBLE EVIDENCE

        Next, the Defendant claims that the trial court erred by allowing inadmissible items into
evidence which resulted in denying the Defendant a fair trial. He asserts that each of these errors
standing alone requires reversal and that the cumulative effect of the errors require reversal.
Specifically, he complains (1) that the trial court allowed the jury to observe the Defendant being
brought from the holding cell; (2) that the trial court informed the jury that the Defendant was in
custody and was appointed a lawyer; (3) that the Defendant’s statement which was played for the
jury improperly made reference to the Defendant’s driver’s license being suspended; and (4) that a
State’s witness improperly made reference to “pulling” the Defendant’s record, thereby indicating
that the Defendant had a criminal record. We will first address the Defendant’s contentions
separately, and then consider any cumulative effect.

       Unfortunately, the record regarding the jury observing the Defendant being brought into the
courtroom from the holding cell is sparse. The only reference to that occurring was a comment made
by defense counsel approximately half-way through the jury voir dire, in which counsel stated,

         Judge, before we bring the jury back in I just want to put one thing on the record, that
         we had had the conversation up at the bench earlier in terms of my objection of the
         jury being in here at the time of the other items that were going on and to see Mr.
         Harris come from out of the holding cell area and being -- also in terms of being
         informed that he was in custody and I was an appointed attorney as well, just for the
         purposes of the record.



         1
           Although finding that reck less homicid e is a lesser included offense under part (b) of the Burns test, we note
that pursuant to statute, “[w]hen recklessness suffices to establish an element, that element is also established if a person
acts intentionally or knowingly.” Tenn. Code Ann. § 39-11-301(a)(2). Thus, a compelling argument could be made that
reckless homicide is a lesser included offense under part (a) of the Burns test because all of the elements are included
within the elements o f the greater offen se. See State v. Jumbo Kuri, No. M1999-00638-CCA-R3-CD, 2000 WL 680373,
at *5 (Tenn. Crim. App., Nashville, May 25, 2000).

                                                            -4-
The trial court overruled the objection, commenting that it did not believe those actions would have
any effect on the jury.

         In the recent case of State v. Marlon D. Beuregard, No. W1999-01496-CCA-R3-CD, 2000
WL 705978 (Tenn. Crim. App., Jackson, May 26, 2000), we considered a similar issue. In that case,
the defendant was brought into the courtroom from the holding cell by two sheriff’s deputies while
the prospective jurors were in the courtroom. Id. at *8. While acknowledging the cases which hold
that a defendant should not be forced to wear prison clothes or shackles during trial, we noted that
the defendant was neither shackled nor in prison clothes and was not restrained in any way; he was
merely escorted into the courtroom from a side door rather than permitted to use the door available
to the general public. Id. Finding no evidence of prejudice in the record, we determined that there
was no reason to set aside the trial court’s order overruling the defendant’s objection to the manner
in which he was brought into the courtroom. Id. at 9. We reach a similar result in this case as well.
There is no evidence that the Defendant was shackled or in prison clothes. There is no evidence that
the jury had a negative impression or reaction to seeing the Defendant come through a side door
rather than the door open to the public. Without evidence of prejudice, we see no reason to set aside
the trial court’s ruling.

        The Defendant also complains because the trial judge informed the jury that he was
incarcerated and that he had an appointed attorney. During jury voir dire, the trial judge began to
ask the prospective jurors typical questions concerning their knowledge of the parties and of the case.
During this process, the judge commented to the jury that Ms. Cynthia Lecroy-Schemel had been
appointed to represent the Defendant and that the Defendant was incarcerated because he could not
make bond. The trial judge then asked the jurors,

        Would any of you hold it against him because he could not make bond in this case
        and he’s not like somebody who can make bond and is out in the community? You
        shouldn’t hold that against him but I need to ask you those things to make sure that
        if there’s any thought at all you need to get that out of your mind at this time.
                Can you give Mr. Harris the same treatment as you could anyone who, for
        example, hired his own attorney and was able to make bond?

The Defendant did not object at the time, but later, during a recess, the Defendant made an objection
on the record in which he objected to the manner in which he was brought into the courtroom, and
he objected to the prospective jurors being told that he was incarcerated and that he had an appointed
attorney. The trial judge overruled the Defendant’s objections, finding that this information would
not affect the jury. On appeal, the Defendant asserts, “One could conclude as a juror that the
Defendant must be guilty since he was in custody and could not hire his own attorney.”

        “It is the duty of the trial judge to participate in the examination of prospective jurors.” State
v. Irick, 762 S.W.2d 121, 125 (Tenn. 1988); see also Tenn. R. Crim. P. 24(a). The trial judge is
given wide discretion in conducting the voir dire examination of potential jurors, and that discretion
will not be disturbed absent an abuse thereof. Irick, 762 S.W.2d at 125. “[A]ppellate courts must


                                                   -5-
indulge the presumption that the trial court has but one purpose in mind, ‘to assure a fair and
impartial trial before an unprejudiced and competent jury.’” State v. Prince, 713 S.W.2d 914, 917
(Tenn. Crim. App. 1986) (quoting Vines v. State, 231 S.W.2d 332, 334 (Tenn. 1950)). We believe
that by questioning the jurors on their ability to give the Defendant a fair trial when he was
incarcerated and when he had an appointed attorney, the trial judge was simply trying to assure the
Defendant a fair and impartial trial. Unlike cases in which a jury venire is informed of extraneous
information such as a defendant’s prior criminal activity, see e.g., State v. Scruggs, 589 S.W.2d 899,
900-01 (Tenn. 1979), the prospective jurors in this case were informed only of the Defendant’s
present condition in relation to the current charges. They all indicated that they could give the
Defendant a fair trial and that they would not hold against him the facts that he was incarcerated and
that he had an appointed attorney. Accordingly, we find no error.

        The Defendant next argues that the trial court should have redacted his statement, in which
the police detective made reference to the Defendant’s driver’s license being suspended, because the
reference indicated non-compliance with the law, which would prejudice the jury against him. The
trial court did order portions of the Defendant’s statement redacted, such as references to the
Defendant’s prior arrests, but the court declined to redact the following portion of the statement:

       [Detective]: How do you get around town? Do you drive? I mean I know your
       license [sic] suspended, I’m not trying to get you up on that.
       [Defendant]: No, no. I mostly ride.
       [Detective]: How did you get from your girlfriend’s out to . . . Duncan Avenue to
       meet up with Mr. Freeman?

In declining to redact this portion of the statement, the trial court noted that a driver’s license may
be suspended for reasons other than criminal convictions.

        The admissibility of evidence is a matter within the sound discretion of the trial court, and
this Court will not disturb the trial court’s ruling absent a clear showing of an abuse of that
discretion. See State v. Cauthern, 967 S.W.2d 726, 743 (Tenn. 1998); State v. Banks, 564 S.W.2d
947, 949 (Tenn. 1978). We cannot say that the trial court abused its discretion by refusing to redact
that portion of the Defendant’s statement. Although hearsay, the Defendant’s statement was
admissible as an admission of a party opponent. See Tenn. R. Evid. 803(1.2). While we question
the relevance of the detective’s statement regarding the Defendant’s driver’s license, the Defendant’s
version of the events in question — including how he came to be in Mr. Freeman’s company that
day — was undoubtedly relevant to his guilt or innocence. See Tenn. R. Evid. 401. Moreover, the
Defendant has shown no prejudice. An error does not require reversal unless it affirmatively appears
to have affected the result of the trial on the merits. See Tenn. R. Crim. P. 52(a). Based on our
review of the record, we conclude that any error in failing to redact the Defendant’s statement was
harmless.

       Next, the Defendant asserts that the trial court should have granted a mistrial because
Detective Tillery of the Chattanooga Police Department remarked that after learning the Defendant


                                                 -6-
was a possible suspect, he “proceeded on pulling up Mr. Harris’ record.” The Defendant
immediately objected and requested a mistrial because the trial court had previously ruled that the
Defendant’s prior criminal record was inadmissible. During a jury-out hearing, Det. Tillery was
permitted to clarify that he meant he pulled the Defendant’s driver’s license record in order to get
an address for the Defendant. The trial court accredited Det. Tillery’s testimony, determined that
the clarification placed the testimony in a different light, and denied a mistrial. When the jury was
brought back in, Det. Tillery clarified for the jury that he meant he pulled the Defendant’s driver’s
license history to find the Defendant’s address.

       The decision of whether the grant a mistrial is a matter within the discretion of the trial court,
and we will not disturb the trial court's action on appeal absent an abuse of that discretion. State v.
Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). Generally, a mistrial will only be
declared “if there is a manifest necessity requiring such action by the trial judge.” Arnold v. State,
563 S.W.2d 792, 794 (Tenn. Crim. App. 1977). “If it appears that some matter has occurred which
would prevent an impartial verdict from being reached, a mistrial may be declared.” Id.

        We find no “manifest necessity” for a mistrial here. While Det. Tillery’s initial comment,
standing alone, may have indicated to the jury that the Defendant had a prior criminal record, we
believe that any prejudice was remedied when Det. Tillery clarified that he meant he pulled the
Defendant’s driver’s license history. Because no evidence of the Defendant’s prior record was
before the jury, we cannot find that the statement prevented an impartial verdict from being reached.

         Finally, the Defendant asserts that the cumulative effect of these alleged errors mandates a
reversal of his conviction. We disagree. We are unable to find any prejudice to the Defendant due
to the errors alleged by the Defendant. A conviction will not reversed on appeal absent errors which
affirmatively appear to have affected the result of the trial on the merits. See Tenn. R. Crim. P.
52(a); Tenn. R. App. P. 36(b). Thus, any error in admitting this evidence was harmless.

                          III. TESTIMONY OF MEDICAL EXAMINER

        The Defendant asserts that the trial court erred by refusing to let him ask Dr. Frank King, the
Hamilton County Medical Examiner, whether an ordinary and reasonable person would be aware
that one blow to the head could cause death. Dr. King testified at trial that the victim died of blunt
force trauma to the head. He further testified that it is difficult to predict what injury might be
caused by a push or blow to the head; what might cause death in one person might not cause any
serious injury to another person. However, when defense counsel asked Dr. King whether an
ordinary person would be aware that a hit to the head might actually cause death, the trial court
sustained the State’s objection. The Defendant now asserts that Dr. King should have been permitted
to convey his opinion regarding whether an ordinary and reasonable lay person, as viewed from the
accused’s standpoint, would be aware that one blow to the head could cause death. We disagree.

        Tennessee Rule of Evidence 702 governs testimony of expert witnesses, and it provides, “If
scientific, technical, or other specialized knowledge will substantially assist the trier of fact to


                                                  -7-
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion or
otherwise.” Qualifications, admissibility, relevancy, and competency of expert testimony are matters
within the discretion of the trial court, and the trial court’s discretion will not be disturbed absent an
abuse of that discretion. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).

         The trial court determined that the question of whether an ordinary and reasonable person
would know that a single blow to the head could cause death called for speculation outside Dr.
King’s area of expertise. We agree. Dr. King was certified as an expert in forensic pathology. The
question asked by the Defendant did not relate to the field of forensic pathology. In fact, it did not
call for an expert scientific, technical, or specialized opinion at all. The issue of whether an ordinary
and reasonable person would be aware that a single blow to head could cause death was a matter
within the purview of the jury, which consisted of ordinary persons. Because the jury could decide
for itself what an ordinary and reasonable person would know about the consequences of a blow to
the head, the proposed testimony of Dr. King would not “substantially assist” the jury in
understanding the evidence. Accordingly, we find no error on the part of the trial court in sustaining
the State’s objection to this testimony.

                                     IV. JURY INSTRUCTIONS

        In his fourth issue, the Defendant contends that the trial court erred by granting, in part, the
State’s requests for special jury instructions on the issues of causation and intent. Regarding
causation, the trial court gave the following special instruction: “One who unlawfully inflicts a
dangerous wound upon another is held for the consequences flowing from such injury, whether the
sequence be direct or through the operation of intermediate agencies dependent upon and arising out
of the original cause.” The trial court also granted the State’s request for the following instruction
regarding reckless conduct: “The definition of ‘reckless’ conduct provides liability for conscious
risk creation where there is no desire that the risk occur or no awareness that it is practically certain
to occur.” The Defendant asserts that these instructions “empowered the jury to convict him for
behavior that was completely unintentional and unknowing” and that the trial court “in essence
turned reckless homicide into a strict liability crime.” We disagree.

        A defendant has a constitutional right to a complete and correct charge of the law. State v.
Teel, 793 S.W.2d 236, 249 (Tenn. 1990). In determining whether jury instructions are erroneous,
this Court must read the entire charge and invalidate it only if, when read as a whole, it fails to fairly
submit the legal issues or misleads the jury as to the applicable law. See State v. Vann, 976 S.W.2d
93, 101 (Tenn. 1998); State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994).

        Looking at the jury instructions as a whole, we conclude that the charge fairly submitted the
legal issues to the jury, and it did not mislead the jury. When the parties were discussing the
proposed jury instructions with the trial judge, the judge expressed concern about the jury becoming
confused as to whether the Defendant caused Charles Freeman’s death if the jury concluded that Mr.
Freeman’s death resulted from injuries received when his head struck the pavement rather than


                                                   -8-
injuries received when his head was struck by the Defendant. The trial judge then decided to give
an instruction which was approved by our supreme court in the case of State v. Vann. See Vann, 976
S.W.2d 93, 101. That instruction included the special request by the State and stated as follows:

       Cause of death. Before the defendant can be convicted of any degree of homicide the
       state must have proven beyond a reasonable doubt that the death of the deceased,
       Charles Freeman, was brought about as a result of the criminal agency of the
       defendant. That is, that the defendant -- death of the deceased was due to the
       unlawful act of the defendant. One who unlawfully inflicts a dangerous wound upon
       another is held for the consequences flowing from such injury whether the sequence
       be direct or through the operation of intermediate agencies dependent upon and
       arising out of the original cause.
               To convict the defendant it is not necessary that his act or failure to act be the
       sole cause, nor the most immediate cause of death, it is only necessary that the
       defendant unlawfully contributed to the death of the deceased.
               If you find the defendant’s acts, if any, did not unlawfully cause or contribute
       to the death of the deceased or if you have a reasonable doubt as to this proposition,
       then you must acquit him.

We conclude that this instruction properly informed the jury that it must find, beyond a reasonable
doubt, that the Defendant’s actions caused the victim’s death. See id.

        Likewise, the jury was properly informed of the definition of reckless conduct. The complete
jury instruction regarding reckless conduct read as follows:

       [A] person acts recklessly if that person is aware of and consciously disregards a
       substantial and unjustifiable risk either, one, that a particular result will occur, or two,
       that a particular circumstance exists. The risk must be of such a nature and degree
       that its disregard constitutes a gross deviation from the standard of care that an
       ordinary person would exercise under all the circumstances as viewed from the
       accused person’s standpoint.
               Reckless conduct makes a person liable for conscious risk creation where
       there is no desire that the risk occur or no awareness that it is practically certain to
       occur. The requirement of recklessness is also established if it shown that the person
       acted intentionally or knowingly.

The first part of this instruction was taken directly from the statutory definition of “reckless,” and
the second part of the instruction was taken directly from the sentencing commission comments to
the statute. See Tenn. Code Ann. § 39-11-302(c). The instruction was a proper statement of the law,
and it did not serve to confuse or mislead the jury. On the contrary, we believe that the added
instruction, taken from the sentencing commission comments, helped distinguish reckless conduct
from intentional conduct or knowing conduct, which were also defined for the jury. At no time did
the instruction make the crime of reckless homicide a strict liability crime. Rather, the instruction


                                                   -9-
informed the jury that even if the Defendant did not intentionally or knowingly kill Charles Freeman,
he would be guilty of reckless homicide if he consciously created and consciously disregarded a
substantial and unjustifiable risk that Mr Freeman’s death would the be result of his conduct. The
jury was repeatedly informed that it must determine the Defendant’s guilt beyond a reasonable doubt.
Thus, we find no error.

                             V. SUFFICIENCY OF THE EVIDENCE

         The Defendant argues that the evidence was insufficient to support the verdict. Tennessee
Rule of Appellate Procedure 13(e) prescribes that “[f]indings 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.” Evidence is sufficient if, after reviewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979). In addition, because conviction by a trier of fact destroys the presumption of innocence
and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that
the evidence was insufficient. McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State
v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1976), and State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977)); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982); Holt v. State, 357 S.W.2d 57, 61 (Tenn. 1962).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914 (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978)). The court may not “re-weigh or re-evaluate the evidence” in the record below. Evans, 838
S.W.2d at 191 (citing Cabbage, 571 S.W.2d at 836). Likewise, should the reviewing court find
particular conflicts in the trial testimony, the court must resolve them in favor of the jury verdict or
trial court judgment. Tuggle, 639 S.W.2d at 914.

       To prove that the Defendant was guilty of the offense of reckless homicide, the State was
required to prove that the Defendant recklessly killed Charles Freeman. See Tenn. Code Ann. § 39-
13-215. As defined by statute,

        “[r]eckless” refers to a person who acts recklessly with respect to circumstances
        surrounding the conduct or the result of the conduct when the person is aware of but
        consciously disregards a substantial and unjustifiable risk that the circumstances exist
        or the result will occur. The risk must be of such a nature and degree that its
        disregard constitutes a gross deviation from the standard of care that an ordinary
        person would exercise under all the circumstances as viewed from the accused
        person’s standpoint.

Id. § 39-11-302(c). The Defendant admittedly hit Mr. Freeman once in the head, causing injuries
which resulted in Mr. Freeman’s death. Although he asserts that he did so in self-defense, the jury


                                                  -10-
was at liberty to reject his assertion, especially in light of Essie Freeman’s testimony that her son
never touched the Defendant prior to the Defendant hitting Charles Freeman on the head. We
acknowledge that the State's proof was not overwhelming. Looking at the evidence in the light most
favorable to the State, however, we believe that any rational juror could have concluded that the
Defendant was aware of but consciously disregarded the substantial and unjustifiable risk that his
conduct would cause Mr. Freeman’s death. Thus, we conclude that the evidence is sufficient to
support the conviction.

                                         VI. SENTENCING

         Finally, the Defendant challenges the sentence imposed by the trial court. The trial court
sentenced the Defendant to six years incarceration as a Range II, multiple offender. When an
accused challenges the length, range, or manner of service of a sentence, this Court has a duty to
conduct a de novo review of the sentence with a presumption that the determinations made by the
trial court 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.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

         When 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
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn.
Code Ann. §§ 40-35-102, -103, -210.

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        The presumptive sentence for a Class B, C, D, or E felony is the minimum sentence in the
range if there are no enhancement or mitigating factors. Tenn. Code Ann. § 40-35-210(c). In
determining the appropriate sentence, the trial court is to start at the presumptive sentence in the
range, increase the sentence within the range as appropriate for enhancement factors, and then
decrease the sentence within the range as appropriate for mitigating factors. Id. § 40-35-210(e).

        Because the Defendant was a Range II, multiple offender, the sentence range for this Class
D felony was four to eight years. See id. § 40-35-112(b)(4). The trial court sentenced the Defendant
to a mid-range sentence of six years, after finding the presence of two enhancement factors and two
mitigating factors. The court determined, however, that the enhancement factors outweighed the



                                                  -11-
mitigating factors. On appeal, the Defendant asserts that the trial court erred by applying one of the
enhancement factors and that the trial court should have considered other mitigating factors.

        The Defendant does not challenge the application of enhancement factor (1), that the
Defendant has a history of criminal convictions or criminal behavior in addition to those necessary
to establish the appropriate range. See id. § 40-35-114(1). However, he asserts that statutory
enhancement factor number (11), that the felony resulted in death or bodily injury or involved the
threat of death or bodily injury to another person and the Defendant has previously been convicted
of a felony that resulted in death or bodily injury, should not have been applied because death or
bodily injury is an element of the offense. See id. § 40-35-114(11). We agree that death is an
element of reckless homicide, but the additional requirements of this enhancement factor, that the
Defendant has previously been convicted of a felony that resulted in death or bodily injury, are not
elements of reckless homicide. Therefore the enhancement factor itself is not an element of the
offense. The proof established that the Defendant had previously been convicted of two counts of
aggravated assault due to his actions of shooting two people. Thus, we conclude that this
enhancement factor was properly applied.

        The trial court applied as mitigating factors (1) that the Defendant expressed remorse for his
actions and (2) that the Defendant had made strides toward improving himself while being
incarcerated. See id. § 40-35-113(13). The Defendant asserts that the trial court should have applied
the following additional factors: (1) 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 his conduct; (2) the Defendant acted under strong provocation; (3) substantial grounds
exist tending to excuse or justify the Defendant’s criminal conduct though failing to establish a
defense; (4) the Defendant was motivated by a desire to provide necessities for his family; and (5)
the Defendant is of low intelligence. See id. § 40-35-113(2), (3), (7), (11), (13). Although the trial
court considered these factors, it determined that they were not applicable. We agree.

        We can find no evidence in the record regarding the Defendant’s intelligence, and while the
Defendant testified that he was arguing with Mr. Freeman about money, there was no proof that the
Defendant was motived by a desire to provide necessities for his family. Additionally, we find no
evidence of strong provocation. Granted, there was proof that the Defendant and Mr. Freeman were
arguing, and the Defendant in his statement asserted that he was acting in self-defense; however, the
State’s proof established that the Defendant struck Mr. Freeman without first being touched by Mr.
Freeman. Furthermore, the only evidence of justification was that the Defendant was acting in self-
defense, and that evidence was refuted by the State’s proof. In addition, the Defendant’s prior
record, which includes multiple assault convictions, tends to negate any assertion that the offense
was committed under such unusual circumstances that it was unlikely a sustained intent to violate
the law motivated the Defendant’s conduct. Accordingly, we find no error on the part of the trial
court in refusing to apply these mitigating factors. The mid-rage sentence was therefore appropriate
due to the presence of two enhancement factors which outweighed the two mitigating factors.




                                                 -12-
        The Defendant also contends that he should have been granted an alternative sentence rather
than having to serve his sentence in incarceration. His argument, however, is based on his assertion
that he is entitled to the presumption of alternative sentencing. A defendant who is an especially
mitigated or standard offender convicted of a Class C, D, or E felony is presumed to be a favorable
candidate for alternative sentencing options in absence of evidence to the contrary. Id. § 40-35-
102(6). While reckless homicide is a Class D felony, the Defendant is a Range II, multiple offender.
Thus, the presumption of alternative sentencing is inapplicable. Considering the principles of
sentencing established by the legislature, we agree with the trial court that a sentence of incarceration
was appropriate. Recognizing the limited capacity of prison facilities, the legislature has maintained
that convicted felons “possessing criminal histories evincing a clear disregard for the laws and
morals of society, and evincing failure of past efforts at rehabilitation shall be given first priority
regarding sentencing involving incarceration.” Id. § 40-35-102(5). The trial court was faced in this
case with a Defendant who has a long history of criminal conduct spanning ten years and who has
multiple convictions for violent conduct. See id. § 40-35-103(1)(A). Despite numerous convictions,
the Defendant has not been deterred from committing crimes. See id. § 40-35-103(1)(C). We thus
find no error in the sentence imposed by the trial court.

        The judgment of the trial court is affirmed.

                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE




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