         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs February 14, 2006

                  STATE OF TENNESSEE v. JAMES A. STOKES

                Direct Appeal from the Criminal Court for Davidson County
                         No. 2003-A-505 Monte Watkins, Judge



                      No. M2005-00535-CCA-R3-CD - Filed July 7, 2006


Defendant was indicted for the first degree premeditated murder of Danquel R. Batey. Following
a jury trial, Defendant was found guilty of the lesser included offense of voluntary manslaughter, a
Class C felony. The trial court sentenced Defendant as a Range II, multiple offender, to ten years
confinement. In his appeal, Defendant challenges the sufficiency of the convicting evidence and the
length of his sentence. After a thorough review, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which and DAVID H. WELLES and
JOHN EVERETT WILLIAMS, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, James A. Stokes.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; Katrin Miller, Assistant District Attorney
General; and Christopher Buford, Assistant District Attorney General, for the appellee, the State of
Tennessee.

                                             OPINION

I. Background

        Ricky Kennedy Bonner and Xavier Walters were employed on June 30, 2002, as security
guards for Mr. V’s Club, an after hours night club in Nashville. Both men were stationed outside
the club near the front entrance, while other security guards monitored the inside of the club. Mr.
Bonner testified that there was an altercation inside the club at some point, and people began exiting
the club. One of the internal security guards escorted a man out of the club, and two of Mr. Bonner’s
officers took him into custody. A gun was later retrieved from the flowerbed near the front entrance
where the man was apprehended. Mr. Bonner said that the restrained person was not Defendant.
        Mr. Bonner said that he heard a gunshot from an area near one of the club’s parking lots
between 3:30 a.m. and 4:00 a.m. Mr. Bonner spotted the victim, Daquel R. Batey, lying in the street
about forty-five or fifty feet away from the club, bleeding from a gunshot wound. The victim was
alive but unable to communicate coherently. Mr. Bonner called for police back-up and medical
assistance.

       Mr. Bonner and Mr. Waters testified that there were no altercations outside the club prior to
the shooting. Neither Mr. Waters nor Mr. Bonner remembered seeing the victim at the club.

        Mr. Waters said that he did not notice any altercation in the location where the victim was
shot. The victim was not armed, and Mr. Waters did not see any weapons in the immediate vicinity.
Mr. Waters saw one person running up the street after the victim was shot, but could not discern
whether the individual was male or female. On cross-examination, Mr. Waters said that he could
not recollect seeing Defendant at the club prior to the shooting.

        Officer George Bouton with the Metro Nashville Police Department, retrieved a spent 9 mm
shell casing near the victim’s body and a Glock 9 mm handgun from the flowerbed near the club’s
front door.

        Kimberly Riley testified that she had just arrived at the club when she heard a gunshot and
crouched down on the ground. Ms. Riley saw a man coming toward her. The man put a gun in his
pants and walked off. Ms. Riley said that no one was chasing the man. Ms. Riley was unable to
identify Defendant as the person with the gun.

        Lakeisa Scott testified that she knew both the victim and Defendant. Ms. Scott said that she
was one of the first patrons to arrive at the club on June 30, 2002, and she parked her Yukon Denali
vehicle in front of the club. After she parked, the victim approached her vehicle and asked Ms. Scott
if she was going to go inside the club. Ms. Scott told the victim that she was going to sit in her
vehicle, and the victim entered the club alone. Approximately thirty minutes later, the victim came
outside and began walking up and down on the sidewalk in front of the club. Ms. Scott said that
“there was a lot of commotion going on.”

        Ms. Scott said that her friend Calvin, whose nickname was “Smooth,” came out of the club
with a head injury. Ms. Scott called Calvin over to her vehicle and asked him what was going on.
Ms. Scott said that Defendant, who appeared to be upset, ran up and told Calvin that he was going
to the car to get a gun. Defendant ran down the sidewalk behind her vehicle. Ms. Scott did not see
Defendant again that morning. Ms. Scott said that she heard a gunshot about ten minutes later. Ms.
Scott said that she did not see the victim involved in any altercation before he was shot.

       Dr. Thomas Deering, the assistant medical examiner for Davidson County, testified that the
victim’s cause of death was a gunshot wound to his back. The bullet fractured the victim’s lumbar
vertebra, hit the inferior vena cava, and perforated a portion of the intestines. The victim underwent
surgery to repair his internal injuries but died from a loss of blood. Dr. Deering said that although


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the victim’s wounds had been cleaned in preparation for surgery, the lack of soot on the victim’s
shirt indicated that the shooter was at least two feet away from the victim. The victim’s blood
ethanol and drug screens were negative.

       Detective Danny Satterfield with the Metro Nashville Police Department identified
Defendant as a potential suspect after interviewing various witnesses. He and Detective Roy
Dunaway interviewed Defendant in Memphis on July 9, 2002. Detective Satterfield read Defendant
his Miranda rights, and Defendant executed a written waiver of those rights. Defendant’s tape
recorded statement was played to the jury.

        In his statement, Defendant said that he arrived at Mr. V’s Club with his friends, “Gleek” and
“Smooth.” Defendant said that Smooth’s given name was either Chris or Calvin. Defendant said
he was walking through the crowd when a man bumped into him. The man told Defendant his name
was “Little Don,” and he identified himself as a member of the Memphis Cryps gang. The man hit
Defendant in the eye with a bottle. Defendant said that he may have hit “Little Don” back before the
security guards escorted him and “Smooth” out of the club. “Little Don” and his girlfriend were
standing in front of a Yukon truck when Defendant exited the club. “Gleek” retrieved his gun from
his cousin’s car which was parked next to the club and handed it to Defendant. Defendant said six
or seven people who were with “Little Don” attacked him as Defendant walked toward “Gleek’s”
car which was parked at the corner where the victim was shot. Defendant said that he was scared
and shot once into the crowd. Defendant and his friends jumped into “Gleek’s” car and drove off.
Defendant said he was wearing a multi-colored shirt and blue shorts the night of the incident.

        Detective Satterfield said that Defendant’s description of what he was wearing matched the
description provided by other witnesses. Detective Satterfield interviewed “Gleek” but did not
retrieve the murder weapon.

II. Sufficiency of the Evidence

         Defendant argues that there was insufficient evidence to identify him as the shooter who
killed the victim. He contends that the only witness who could place him at the scene, Ms. Scott,
testified that she saw Defendant about ten minutes before the shooting. Although she testified that
she heard Defendant say he was going to retrieve a gun, no one saw Defendant with a weapon either
before or after the shooting.

        When a defendant challenges the sufficiency of the convicting evidence, we must review the
evidence in a light most favorable to the prosecution in determining whether a rational trier of fact
could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S.307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Once a jury finds a
defendant guilty, his or her presumption of innocence is removed and replaced with a presumption
of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of
overcoming this presumption, and the State is entitled to the strongest legitimate view of the
evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State


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v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts
and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this
court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). 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).

        Defendant was convicted of voluntary manslaughter which 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.” T.C.A. § 39-13-211(a). "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." T.C.A. § 39-11-302(b). Moreover, a determination of
whether there existed "adequate provocation" is left to the jury. See State v. Johnson, 909 S.W.2d
461, 464 (Tenn. Crim. App. 1995).

         In his statement to the police, Defendant said that “Gleek” drove Defendant and his friends
to Mr. V’s Club and parked at the street corner where the victim was later found. Defendant said
that the incident began with a confrontation between him and “Little Don” and that the altercation
led to an exchange of blows inside the club. While none of the witnesses identified Defendant as
the shooter, Defendant said in his statement that “Gleek” retrieved a gun from his cousin’s car and
gave the gun to Defendant. Defendant walked to the street corner where “Gleek’s” car was parked,
and six or seven people “jumped him.” Defendant said he fired his weapon into a crowd of people
at the location where the victim was subsequently found, bleeding from a gunshot wound.

        In Tennessee, it is well-established that a conviction cannot be founded solely upon a
defendant's confession. State v. Smith, 24 S.W.3d 274, 281 (Tenn.2000) (citing Ashby v. State, 124
Tenn. 684, 697-98, 139 S.W. 872, 875 (Tenn.1911)). Some corroborating evidence is required
which, independently of the confession, tends to establish the corpus delicti of the offense charged.
Id. However, where there is a confession, the corroborative evidence “need not be as convincing as
the evidence necessary to establish a corpus delicti in the absence of any confession.” Ricketts v.
State, 241 S.W.2d 604, 606 (Tenn.1951). The corroborating evidence is sufficient to sustain a
conviction if “it tends to connect the defendant with the commission of the offense, although the
evidence is slight, and entitled, when standing by itself, to but little consideration.” Id.; see also
Smith, 24 S.W.3d at 281.

        Mr. Bonner corroborated Defendant’s statement that there was an altercation inside the club
prior to the shooting. Ms. Scott testified that “[t]here was a lot of commotion going on,” and that
her friend, Calvin, came of the club with an injury to his head. Ms. Scott’s testimony corroborated
Defendant’s statement that he was at the club with a man named Calvin or “Smooth,” and Ms.
Scott’s testimony placed Defendant at the scene immediately prior to the shooting. Ms. Scott
overheard Defendant tell Calvin that he was going to retrieve a gun. Such evidence tends to connect



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Defendant with the commission of the offense and is sufficient to corroborate Defendant’s statement
to the police.

       Based on the foregoing, we conclude that a rational trier of fact could conclude beyond a
reasonable doubt that Defendant knowingly killed the victim in a state of passion produced by
adequate provocation. Defendant is not entitled to relief on this issue.

III. Sentencing Issues

        Defendant challenges the length of his sentence, contending that the trial court failed to
consider as a mitigating factor that Defendant acted with strong provocation. When a defendant
challenges the length or the manner of service of his or her sentence, this Court must conduct a de
novo review with a presumption that the determinations made by the trial court are correct. T.C.A.
§ 40-35-401(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). This presumption, however, is
contingent upon an affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn.
1999). If the record fails to show such consideration, the review of the sentence is purely de novo.
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

        In making its sentencing determinations the trial court must consider: (1) the evidence
presented at the sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and
arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct;
(5) any appropriate enhancement and mitigating factors; (6) the defendant’s potential or lack of
potential for rehabilitation or treatment; and (7) any statements made by Defendant in his own
behalf. T.C.A. §§ 40-35-103 and -210; State v. Williams, 920 S.W.2d 247, 258 (Tenn. Crim. App.
1995). If the trial court has imposed a lawful sentence by following the statutory sentencing
procedure, given due consideration and proper weight to the factors and sentencing principles, and
made findings of fact adequately supported by the record, as in the case sub judice, this Court may
not modify the sentence even if it would have preferred a different result. State v. Fletcher, 805
S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing that his
sentence is improper. T.C.A. § 40-35-401(d) Sentencing Commission Comments; State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).

        Defendant does not challenge his classification as a Range II, multiple offender. As a Range
II, multiple offender, Defendant is subject to a sentence of between six and ten years for his
voluntary manslaughter conviction, a Class C felony. T.C.A. §§ 40-35-112(b)(3). In calculating the
sentence for a Class C felony conviction, the presumptive sentence is the minimum sentence in the
range if there are no enhancement or mitigating factors. Id. § 40-35-210(c). If there are
enhancement but no mitigating factors, the trial court may set the sentence above the minimum in
that range, but still within the range. Id. § 40-35-201(d). Should there be enhancement and
mitigating factors, the trial court must start at the minimum sentence in the range, enhance the
sentence within the range as appropriate for the enhancement factors, then reduce the sentence within
the range as appropriate for the mitigating factors. Id. § 40-35-201(e).


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         At the sentencing hearing, Priscilla Taylor, Defendant’s mother testified that Defendant had
successfully participated in a drug rehabilitation program between the time of the offense and his
arrest in 2003. Ms. Taylor produced a letter from The Hands of God Recovery Ministries stating that
the organization was prepared to accept Defendant into its rehabilitation program should he be
placed on probation. No other evidence was presented at the sentencing hearing.

        As a preliminary matter, we note that although a presentence report was prepared and
considered by the trial court in determining the appropriate sentence in this case, the presentence
report was not made a part of the record on appeal. It is well-settled that it is the duty of the
defendant to provide a record that conveys a fair, accurate, and complete account of what transpired
with regard to the issue that forms the basis of the appeal. Tenn. R. App. P. 24(b); see State v.
Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). “When the record on appeal consists of less than all of
the actions occurring in the trial court that were relevant to an issue raised by an appealing party, we
presume that the trial court’s factual findings are supported by the full record and are, therefore,
correct.” State v. Allen Gary Lord, alias Gary Allen Lord, No. 03C01-9312-CR-00391, 1995 WL
491015, *9 (Tenn. Crim. App., at Knoxville, Aug. 17, 1995) (emphasis in original) (citing State v.
Richardson, 875 S.W.2d 671, 677 (Tenn. Crim. App. 1993)), perm. to appeal denied (Tenn. Dec.
28, 1995).

       The State’s notice of enhanced punishment includes three prior convictions: unlawful
possession of less than 0.5 grams of cocaine, a Class C felony, in 1994; unlawful possession of a
weapon after conviction of a felony drug offense, a Class E felony in 1997; and reckless
endangerment with a deadly weapon, a Class E felony, in 1997. The transcript of the sentencing
hearing reflects that Defendant acknowledged these prior convictions, and argued only that his
weapons conviction and his reckless endangerment conviction should be considered collectively
under the range enhancement provision dealing with offenses committed within twenty-four hours
of each other as part of a single course of action. See T.C.A. § 40-35-106(b)(4). However, this
argument by Defendant is waived because of the failure to include the presentence report in the
record on appeal. See Tenn. R. App. P. 24(b).

         The sentencing hearing was held prior to the filing of State v. Gomez, 163 S.W.3d 632 (Tenn.
2005). Erroneously relying on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), see
Gomez, 163 S.W.3d at 661, the trial court limited its considerations to the number and nature of
Defendant’s prior criminal history as an enhancement factor. See T.C.A. § 40-35-114(2). The trial
court also considered the nature and circumstances of the offense and the general principles of
sentencing. See id. § 40-35-210(b)(4). The trial court considered, but rejected, Defendant’s
contention that the fact that he acted with “adequate provocation” should be considered as a
mitigating factor in determining the length of his sentence. The trial court specifically considered
the fact that Defendant used a gun to shoot the victim even though he had been previously convicted
of a weapons possession offense. See id. § 40-35-114(10). Accordingly, the trial court sentenced
Defendant to ten years, or the maximum sentence for a Range II, multiple offender, convicted of a
Class C felony.



                                                  -6-
        Defendant argues that because the jury found that he acted with provocation when he shot
the victim, the trial court erred in not considering this factor in mitigation of the length of his
sentence. See T.C.A. § 40-35-113(2) (the defendant acted under strong provocation). A conviction
of voluntary manslaughter only requires a finding of adequate provocation, while statutory mitigating
factor (2) requires a finding of strong provocation. See id. §§ 39-13-211(a); 40-35-113(2). There
is no prohibition, however, against a trial court’s giving a defendant “double credit,” and a trial court
should consider whether this factor is applicable under the circumstances of the case. State v.
Michael R. Blakely, Jr., No. M2001-01114-CCA-R3-CD, 2003 WL 213780, *14 (Tenn. Crim. App.,
at Nashville, Jan. 31, 2003), no perm. to appeal filed.

       After considering the testimony at trial and the pre-sentence report, the trial court declined
to consider this factor in mitigation of the length of Defendant’s sentence. We conclude that the
evidence does not preponderate against the trial court’s finding that mitigating factor (2) is not
applicable. Defendant is not entitled to relief on this issue.

        The trial court enhanced Defendant’s sentence based on its finding that Defendant has a
previous history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range. Defendant does not dispute that he has three prior felony
convictions, one conviction more than those necessary to classify him as a Range II, multiple
offender. See T.C.A. § 40-35-106(a)(1). The State argues that the trial court’s reliance on Blakely
was misplaced, and, in addition to Defendant’s prior convictions, the length of his sentence may also
be enhanced because Defendant did not contest the fact that he used a gun to commit the offense.
See id. § 40-35-114(10).

        In Gomez, our Supreme Court concluded that Tennessee’s sentencing structure does not
violate the Sixth Amendment and does not conflict with the Blakely holding. Gomez, 163 S.W.3d
at 661. “The Reform Act [of Tennessee] authorizes a discretionary, non-mandatory sentencing
procedure and requires trial judges to consider the principles of sentencing and to engage in a
qualitative analysis of enhancement and mitigating factors . . . all of which serve to guide trial judges
in exercising their discretion to select an appropriate sentence within the range set by the
Legislature.” Id. Nonetheless, even without a finding that other enhancement factors are applicable,
upon the finding of one enhancement factor, “the statute affords to the judge discretion to choose an
appropriate sentence anywhere within the statutory range.” Id. at 659.

        Based on the foregoing, we conclude that the trial court did not err in sentencing Defendant
to ten years for his voluntary manslaughter conviction.

                                           CONCLUSION

        After a thorough review, we affirm the judgment of the trial court.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE


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