WPC,S ApNNfNg @f 2N WP_TV078055146SA)sportsceserxsIWPTVWPC2 xH0.dg|)n."pDNfd)-H.&Pp` ? JNH0LNuH JN6 n.*JWg#LNuH,HpNf !N GpL@NuH,H/R{WP}10{WP}01Times{WP}12Mll   M{WP}11   8{WP}22PWP 6.0 captionM{WP}16 \UN>(9 Z 6Times New Roman Regular %X6 0(($HU:,  AZ"Arial RegularNw@ EEEӀ"44n~<$H3|xHU:W,  AZ"Arial Regular 0(8(2$ !  X X `   0  !  $ X X `   1    ݀Thedefendanthadpriorconvictionsforgrandlarcenyandpetitlarceny.R 0D(#$  0  5'  !"  XXXX&oXX   Ad FILEDXX&o   August26,1998  CecilCrowson,Jr.)XXAppellateCourtClerk HU:?,cAZ"Arial Regular_ AQy !"#%C<< CʃLevel 1Level 2Level 3Level 4Level 5R 0D (3$ !  R 0D (3$ !  R 0D ($$   1  = D/ \''' dxd+ B  d+ B P PdA D3 &&&&'dxd  HH  2$HH  Geneva  <Px443!#4$*$$*$ KK  Geneva  Geneva .,6 Geneva   inion Geneva  inion Geneva 4R3.5.2'3.5.2, 1996 Corel Corporation Limited,R3.5.2Created with WordPerfect 3.5.2.(#Z xCorel WordPerfectxHH(FG(HH(d'hSW\A^PSetBPJobNStylZwp60versWDatSTR PtPtW<W4i/ (0a ~H  Xq ([+ 2  9W W W W  7W W W W\ W 6W҈ W$ W WҤ $WҬ pW W! W" W# WW% W& W' WҴ( LWҘ bW WW W{WP}10{WP}12{WP}11{WP}22WP 6.0 caption{WP}16{WP}01"Hl' '" x{WP}10 <<KK ..,,..,, xTimes۪HHlHЫ x Helvetica(d(٬A 7eSXXdXXd7A  x  Times Э   xl h s;'$' x{WP}10 <<KK  xTimes x{WP}22 x Helvetica $Y@Y@Y@FILED$ 0$' '0F$$2' '$August 26, 199802@22' '0F@N Cecil Crowson, Jr.$N\'  '$  Appellate Court Clerk     x x x0' '0 x"IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE0' '0*AT JACKSON*88FJULY 1998 SESSIONFTTbbp$  p~' '$STATE OF TENNESSEE,8)0  ~~~' '0)"NO. 02C019710CC004130  ' '0$Appellee,~)$  ' '$)"FAYETTE COUNTY0  ' '0VS.)0' '0)"!HON. JON KERRY' 'BLACKWOOD,$' '$MACARTHUR MONIE,M)"JUDGE0' '0)$Appellant.{)"(Second Degree Murder)  &5&46y' '5ܪ6y  ЫFOR THE APPELLANT:04B44' '0BPGARY F. ANTRICAN$P^' '$District Public Defender0^l^^' '0$lz' '$SHANA C. McCOYJOHNSON0zzz' '0Asst. District Public Defender0' '0118 E. MarketP.O. Box 700Somerville, TN 380680700 R ! !! p' 'RFOR THE APPELLEE:0!!4B44' '0$"!BP' '$JOHN KNOX WALKUP0#!P^PP' '0Attorney General and Reporter$!^l$%!lz' '$GEORGIA BLYTHE FELNER0&!zzz' '0Assistant Attorney General'!Cordell Hull Building, 2nd Floor(!425 Fifth Avenue North)!Nashville, TN 372430493*!$+!' '$ELIZABETH T. RICE0,!' '0District Attorney General-!302 Market Street.!Somerville, TN 38068/!0!1!"2!"0 00)!0 G44!)NNG 6y6y3"0\4#\j5$jxJ6%x xx%% HJܿ&ܿ$&' '$ x x x xOPINION FILED:  0'' '0()*AFFIRMED+,- .JOE G. RILEY, /"JUDGEV 0"0 " 00 H' 'V xͪ  Ы x x   xOPINION01@[@' '0 xͪЫ x x x$2[v' '$$The defendant, Macarthur Monie, appeals his conviction by a Fayettev6' 'County jury of second degree murder. The defendant was sentenced as aviolent offender to twentythree (23) years. On appeal, the defendant contendsthe evidence presented at trial was insufficient to support a verdict of guilty forsecond degree murder. Specifically, the defendant contends that as he had abloodalcohol content of 0.33% shortly after his arrest, he was unable to formthe requisite intent for a  knowing    killing.    The defendant also contends the trialcourts sentence is excessive. The judgment of the trial court is AFFIRMED.:vN$;Ni' '$ xͪЫ x x xFACTS0<ii)' '0 xͪЫ x x x0=D' '0$The defendant and his three (3) brothers resided together in a house inFayette County, Tennessee. The victim, Raymond Rivers, was a cousin of thebrothers and visited the defendant at the house almost daily. The defendantsbrother Andrew testified that on January 26, 1997, the victim arrived at theirresidence and left with the defendant. Since he had worked the previousevening, Andrew then went to sleep. Andrew testified that he was awakened atapproximately 1:15 p.m. by the victim shouting the defendant had a gun. Thevictim repeated the statement several times. Andrew Monie then heard a gunfire. Andrew went into the living room and discovered the victim lying on thefloor bleeding profusely from a shotgun wound to the face and neck. When6 RG H6Andrew asked the defendant why he shot the victim, the defendant replied thatthe victim had  pulled a knife on him. Andrew Monie then phoned 911. IJ$The defendants brother, Wade Monie, testified that his shotgun wasused to kill the victim. He testified that he kept the shotgun in a case under hisbed, unloaded. Thus, the defendant retrieved the shotgun from under hisbrothers bed, uncased it, loaded it, returned to the living room, and killed thevictim.OP$Police arrived at the scene and arrested the defendant. A shotgun thatsmelled of freshlyfired gun powder was discovered in Wade Monies bedroom,lying on top of his bed. The victim was lying on the living room floor with ascrew driver by his hand.TU7$The defendant was intoxicated at the time of his arrest. He was taken tothe hospital where a blood sample was taken to determine the alcohol contentof the defendants blood. The test revealed an alcohol level of 0.33%. The nextmorning, approximately eighteen (18) hours after the defendant was arrested,the defendant gave a statement to the police. The defendant stated that he andthe victim argued about a debt the victim owed him. The defendant stated thatthe victim had a can of what the defendant believed to be  Mace, and that thevictim threatened to spray him with it. The defendant also alleged the victimthreatened to cut him. A search of the house by the police did not reveal a can6 R^7 H6of  Mace or a knife. A screw driver was found by the victims hand. One of thedefendants brothers testified that the victim regularly used a screw driver toopen the victims door as the  lock was messed    up.    a7b$The defense offered no proof at trial. The jury was charged as to seconddegree murder and voluntary manslaughter. The defendant was convicted ofsecond degree murder.e$f ' '$j xͪЫ x x xSUFFICIENCY OF THE EVIDENCE0g  - ' '0 xͪЫ x x x0h - H -' '0 x x x Helvetica x x x Helvetica x$The defendant contends the evidence presented at trial is insufficient tosupport a verdict of guilty for second degree murder. He contends the evidenceonly supports voluntary manslaughter. The defendants argument is that hisextreme intoxication at the time of the offense, as supported by the bloodalcohol test, prevented him from being able to  knowingly kill the victim.m H n $Where sufficiency of the evidence is challenged, the relevant question foran appellate court is whether, after viewing the evidence in the light mostfavorable to the prosecution, any rational trier of fact could have found theessential elements of the crime or crimes beyond a reasonable doubt. Tenn. R.App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61L.Ed.2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). Theweight and credibility of the witnesses' testimony are matters entrusted6 Ru H6exclusively to the jury as the triers of fact. State v. Brewer, 932 S.W.2d 1, 19(Tenn. Crim. App. 1996); State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). w x $The defendant was convicted of the  knowing killing of another. Tenn.Code Ann.  3913210(a)(1).  Knowing is defined by statute as:6z  >l' '6 xͪlH  Ы x x   x0{ > L >' '0 x x x Helvetica x x x Helvetica xKnowing refers to a person who acts knowingly withrespect to the conduct or to circumstancessurrounding the conduct when the person is aware ofthe nature of the conduct or that the circumstancesexist. A person acts knowingly with respect to aresult of the persons conduct when the person isaware that the conduct is reasonably certain to causethe result.6 L l' '6 xͪlH  Ы x x  lH x0  ' '0Tenn. Code Ann.  3911106(a)(20).  $The defendant argues that his voluntary intoxication prevented him from knowingly killing the victim. Although voluntary intoxication is not itself adefense to second degree murder, it is relevant to negate a culpable mentalstate. Tenn. Code Ann.  3911503(a). In this case the trial court properlycharged the jury as to the relevance of voluntary intoxication. Whether adefendant is too intoxicated to form the requisite mental state is a question forthe jury. State v. Brooks, 909 S.W.2d 854, 859 (Tenn. Crim. App. 1995). Thejury obviously concluded that the defendant was not so intoxicated as to beunable to form the required mental state of  knowing. The actions of thedefendant in securing the shotgun from under the bed, removing it from its case,6 I H6loading it, returning to the living room and shooting the victim at close rangejustify the jurys finding. a a |$This issue is without merit. | $ ' '$ xͪЫ x x xSENTENCING0  ' '0 xͪЫ x x x0  ' '0$The defendant contends the trial court imposed an excessive sentenceby erroneously failing to give weight to two (2) mitigating factors. The defendantdoes not contest the trial courts finding of the applicability of two (2)enhancement    factors      ,       to       wit:    the defendant had a previous history of criminalconvictions or criminal behavior in addition to those necessary to establish the' 'appropriate range, xH{WP}11  1    x   "Hl'  '" x{WP}10  <<KK  xTimes x0a{WP}12HHll$  1   The defendant had prior convictions for grand larceny and petit larceny.$ $֭ and the defendant employed a firearm during theoD' 'commission of the offense. Tenn. Code Ann.  4035114(1), (9). $' '$$This Courts review of the sentence imposed by the trial court is de novo' 'with a presumption of correctness. Tenn. Code Ann.  4035401(d). Thispresumption is conditioned upon an affirmative showing in the record that thetrial judge considered the sentencing principles and all relevant facts andcircumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trialcourt fails to comply with the statutory directives, there is no presumption of' 'correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96Nf; f; H' 'N(Tenn. 1997).$For a Class A felony the presumptive sentence is the midpoint of therange if there are no enhancing or mitigating factors. Tenn. Code Ann.     4035  210(c).    The range of punishment for the Class A felony of second degreemurder is fifteen (15) to twentyfive (25) years. The midpoint sentence would betwenty (20) years; however, there are two (2) enhancement factors that areapplicable.ii$The defendant contends the trial court erred by rejecting the mitigatingfactors of voluntary intoxication and prior mental illness. Voluntary intoxicationis specifically excluded from consideration as a mitigating factor. Tenn. CodeAnn.  4035113(8). Mental illness can be a mitigating factor under Tenn.Code Ann.  4035113(8); however, there is no evidence that the defendantwas suffering from any mental disease or defect at the time of the killing. Thetrial court properly disregarded these mitigating factors, and we decline todisturb the sentence it imposed.\\w$The judgment of the trial court is AFFIRMED.w $ ' '$ xͪ  Ы x x   x$$$$$$$NR R H' 'N_________________________$$$$$$$JOE G. RILEY, JUDGE++9CONCUR:9GGUUc$cq' '$ x x x x0 qqp' '0_____________________________$ ' '$ x x x xCURWOOD WITT, JUDGE0 ' '0  _____________________________ROBERT W. WEDEMEYER,$' '$SPECIAL JUDGE