         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 14, 2002

          STATE OF TENNESSEE v. RICHARD RUSSELL BRANDT

                      Appeal from the Circuit Court for Bedford County
                               No.14866   Charles Lee, Judge



                   No. M2001-02129-CCA-R3-CD - Filed October 22, 2002


The Appellant, Richard Russell Brandt, was convicted by a Bedford County jury of voluntary
manslaughter and received a fifteen-year sentence, as a persistent offender. On appeal, Brandt raises
the following issues for our review: (1) whether the evidence was sufficient to support the jury’s
verdict, and (2) whether his sentence was proper. After review, we find that Brandt’s issues are
without merit. Accordingly, the judgment of the Bedford County Circuit Court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and NORMA MCGEE
OGLE , JJ., joined.

Merrilyn Feirman, Nashville, Tennessee, and Andrew Jackson Dearing, III, Assistant Public
Defender, Shelbyville, Tennessee, for the Appellant, Richard Russell Brandt.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; David H.
Findley, Assistant Attorney General; William Michael McCown, District Attorney General; and
Michael Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        Anthony Blake Wisdom and the Appellant met while patients at the Tony Rice Drug Center
in Bedford County. After both men left the center, they became acquainted with the victim, Boyd
Brown, and made arrangements to rent a room in his trailer. On January 15, 2001, the Appellant,
the victim, and Wisdom drove to the store to get beer. Upon returning to the trailer, all three men
drank and watched wrestling. In need of more beer, the Appellant and Wisdom walked to the store
and purchased a twelve pack. Wisdom, after returning to the trailer, was “feeling sweaty” and
decided to take a shower. As Wisdom stepped out of the shower, he heard the Appellant and the
victim arguing, and the victim say to the Appellant, “If you don’t like it, you can get the fuck out.”
He did not hear the Appellant respond and proceeded to the bedroom to get dressed. Wisdom then
walked into the living room and saw the Appellant walk up to the victim and pretend to punch him.
The victim “smirked” and said, “You won’t hit me.” At that point, the Appellant wrapped his arm
around the victim’s throat in a choke hold, and “[t]hey began to wrestle to the ground.” The victim
hit his head on the floor. Wisdom thought the two men were wrestling and told them to “quit
playing around.” The victim’s legs were kicking and, then, he went limp.

        The Appellant got up from the floor and said, “[H]e deserved to die.” Wisdom checked the
victim to see if he had a pulse. The Appellant grabbed money out of the victim’s pockets, turned the
victim over onto his back, and calmly asked Wisdom to help move the body into the bathroom.
Wisdom refused, and the Appellant dragged the body into the bathroom himself. The Appellant and
Wisdom packed their personal belongings, and the Appellant wiped down the trailer to remove any
fingerprints, removed a trash bag from the trailer, and covered up a blood stain with a towel. The
two men left the area; Wisdom was driving because the Appellant could not drive a stick-shift. The
next day, Wisdom left the Appellant inside a store and returned to Nashville. He contacted the
police on January 17, 2001. The Appellant was later arrested at the Salvation Army in Murfreesboro.
He gave a statement to the police, during which he changed his story several times.

         On February 22, 2001, the Appellant was indicted for second degree murder. Following a
jury trial, he was found guilty of the lesser offense of voluntary manslaughter and, based upon his
classification as a persistent offender, was sentenced to a fifteen-year term of imprisonment. This
timely appeal followed.

                                            ANALYSIS

                                  I. Sufficiency of the Evidence

       The Appellant argues that the evidence introduced at trial was insufficient to support his
conviction for voluntary manslaughter. Specifically, he contends that the evidence

       failed to show that Mr. Brandt either knowingly or intentionally caused Mr. Brown’s
       death. . . . There was nothing in Mr. Wisdom’s testimony that would have
       indicate[d] that Mr. Brandt intended to cause the death of Mr. Brown nor that Mr.
       Brandt was reasonably certain that his conduct would [cause] Mr. Brown’s death.

         A jury conviction removes the presumption of innocence with which a defendant is 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. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this
court to revisit questions of witness credibility on appeal, that function being within the province of
the trier of fact. State v. Holder, 15 S.W.3d 905, 911 (Tenn. 1999); State v. Burlison, 868 S.W.2d


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713, 719 (Tenn. Crim. App. 1993). Instead, the Appellant must establish that the evidence presented
at trial was so deficient that no reasonable trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Moreover, the State
is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may
be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). These rules are applicable
to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of
both direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). As in the case of direct evidence, the weight to be given circumstantial evidence and “the
inferences to be drawn from such evidence, and the extent to which the circumstances are consistent
with guilt and inconsistent with innocence, are questions primarily for the jury.” Marable v. State,
313 S.W.2d 451, 457 (Tenn. 1958) (citation omitted).

        Voluntary manslaughter is defined 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." Tenn. Code Ann. § 39-13-211(a) (1997). Intentional conduct refers to a person
who acts intentionally with respect to a result of the conduct when it is the person's conscious
objective or desire to cause the result. Tenn. Code Ann. § 39-11-106(a)(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(a)(20) (1997). Whether the
Appellant “intentionally” or “knowingly” killed his victim is a question of fact for the jury. Intent,
which can seldom be proven by direct evidence, may be deduced or inferred by the trier of fact from
the character of the Appellant’s conduct, the nature of the act, and from all the circumstances
surrounding the commission of the offense. See State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim.
App. 1993); see generally State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997).

        The proof at trial, in the light most favorable to the State, established that the Appellant and
the victim were engaged in an argument, and the victim’s demeanor was described as irate. Both
had been drinking. The Appellant faked punching the victim and, after the victim responded, “You
won’t hit me,” the Appellant placed the victim in a choke hold, lasting from a minute and a half to
two minutes. The victim stopped moving, and the Appellant stated, “[H]e deserved to die.” The
Appellant removed money from the victim’s pockets and dragged him into the bathroom.
Thereafter, the Appellant attempted to remove any incriminating evidence from the trailer and stole
the victim’s truck. After the Appellant’s arrest, he was untruthful with police authorities. We find
the evidence sufficient to support the jury's verdict of voluntary manslaughter, i.e., that the Appellant
intentionally or knowingly killed Mr. Brown in a state of passion produced by adequate provocation
sufficient to lead a reasonable person to act in an irrational manner. This issue is without merit.

                                            II. Sentencing

       The Appellant argues that his fifteen-year sentence as imposed by the trial court was
excessive. When an accused challenges the length, range, or the 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


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determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (1997); State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). 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. When conducting a de novo review of a sentence,
this court must consider: (a) the evidence, if any, received at the trial and the sentencing hearing; (b)
the pre-sentence 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 Appellant made on his own behalf; and (g) the
potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103,
-210 (1997); Ashby, 823 S.W.2d at 168. Furthermore, we emphasize that facts relevant to sentencing
must be established by a preponderance of the evidence and not beyond a reasonable doubt. State
v. Winfield, 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v. Poole, 945 S.W.2d 93, 96 (Tenn.
1997)).

        If our review reflects that the trial court followed the statutory sentencing procedure, imposed
a lawful sentence after having given due consideration and proper weight to the factors and
principles set out under the sentencing law, and made findings of fact that 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). However, where the trial
court fails to comply with the statutory provisions of sentencing, appellate review is de novo without
a presumption of correctness. In the case before us, the record demonstrates that the trial court
properly considered relevant sentencing principles. Accordingly, we apply the presumption.

         As a Range III offender, the sentencing range for voluntary manslaughter, a class C felony,
is ten to fifteen years. Tenn. Code Ann. § 40-35-112(c)(3) (1997). In determining the Appellant’s
sentence, the trial court applied two enhancement factors: (1) The Appellant has a previous history
of criminal convictions or criminal behavior in addition to those necessary to establish the
appropriate range, and (8) The Appellant has a previous history of unwillingness to comply with the
conditions of a sentence involving release into the community. Tenn. Code Ann. § 40-35-114(1),
(8) (Supp. 2001).

        The Appellant does not contest the application of enhancement factors (1) and (8).
Regarding enhancement factor (1), the Appellant's criminal history includes twelve class E forgery
convictions, six class E theft convictions, a class A misdemeanor theft conviction, two convictions
for simple possession of marijuana, passing worthless checks, driving under the influence, being
declared a habitual motor vehicle offender, and numerous other misdemeanor convictions.
Regarding enhancement factor (8), the presentence report reflects that the Appellant “has a marked
history of failure to cooperate and/or adhere to the rules of any alternative sentence afforded to him.”

       With respect to mitigating proof, the Appellant contends that the trial court erred by not
applying the “catch-all” or non-enumerated mitigator (13), based upon his professed “change of life.”
See Tennessee Code Annotated § 40-35-113(13) (1997). At the sentencing hearing, the following
colloquy occurred:


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       Q. Since you have been in jail have you experienced a change in your attitude and
       your philosophy toward life?

       A. Yes, sir.

       Q. What have you learned?

       A. I have learned to totally trust upon the Lord. I have turned my whole life over to
       him. We have a daily Bible study, morning prayer. And I just tell everything to the
       Lord. He has made a remarkable change in my life.

The trial court declined to apply mitigator (13), finding that:

                The Court could consider the defendant’s stated change of attitude, change
       of life that he has professed here today as a mitigating factor under 40-35-113(13),
       which is the so-called catch-all provision. But even if the defendant is sincere, the
       Court in this case does not find that to be a mitigating factor.

The trial court was in the best position to determine the credibility of the Appellant, based upon the
demeanor and appearance of the Appellant when testifying. This court gives deference to the trial
court’s findings in that regard. Although we find the Appellant’s recent profession of faith is
commendable, his reward will follow at the appropriate time and from a court much greater than
ours. Therefore, we agree with the trial court that mitigating factor (13) should not have been
applied to the Appellant’s sentence.

         The presumptive sentence for a class C felony "shall be the minimum sentence in the range
if there are no enhancement or mitigating factors." Tenn. Code Ann. § 40-35-210(c) (2001). When
there are enhancement factors and no mitigating factors, there is no presumptive sentence and the
court may sentence above the minimum in the range. Tenn. Code. Ann. § 40-35-210(d). The weight
to be afforded an existing factor is left to the trial court's discretion so long as the court complies
with the purposes and principles of the 1989 Sentencing Act and its findings are adequately
supported by the record. State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). The weight
to be afforded mitigating and enhancement factors derives from balancing relative degrees of
culpability within the totality of the circumstances of the case involved. Id. at 476; see also State
v. Marshall, 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993). Of particular weight in this case are
the Appellant's prior convictions and his failure to comply with conditions of release. We conclude
that the record supports the trial court’s decision to enhance the Appellant's sentence beyond the
minimum of the range. Therefore, we find that a sentence of fifteen years for voluntary
manslaughter is justified.




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                                         CONCLUSION

       Based upon the foregoing, we find that the evidence was sufficient to support the Appellant’s
conviction for voluntary manslaughter. We further conclude that the trial court properly sentenced
the Appellant to fifteen years in the Department of Correction. Accordingly, the judgment of the
Bedford County Circuit Court is affirmed.



                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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