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State v. Rhyan1/27/2003
im make any gestures toward the defendant and that the defendant shot the victim while the victim remained seated on the retaining wall. Neither the state nor the defendant presented any evidence regarding the victim's attempting to rob the defendant. We conclude that the defendant was not entitled to a self-defense instruction.
III. EXCESSIVE SENTENCE
Finally, the defendant claims that his twenty-two-year sentence is excessive because the trial court misapplied enhancement factors and failed to consider applicable mitigating factors. The state claims that the trial court properly sentenced the defendant. We conclude the defendant's twenty-two-year sentence is proper.
At the sentencing hearing, the then forty-eight-year-old defendant testified that he could read a little and had worked part-time before he was arrested. He acknowledged that he had lived with his mother most of his life and had prior convictions. He said that at the time of the offense, he weighed one hundred sixty pounds and that the victim weighed over two hundred pounds. He said that the victim was a bully and that two to three hours before he shot the victim, he and the victim had gotten into a fight. He said that just before the shooting, the victim "came at me again" and that he shot the victim in self-defense. He said that other people witnessed his first fight with the victim but that none of them would testify. He said that at the time of the shooting, he did not see Lawrence Yancy at the Metro Market and that Mr. Yancy lied at trial. He said that he was sorry for what had happened and that he was taking medication in jail. He said that he, the victim, and the victim's brother had gone to school together and that he had dreams every night. On cross-examination, the defendant acknowledged that he had a serious drinking problem. He also acknowledged that he had a prior conviction for robbery but said he was framed for that crime.
Bertha Johnson, the defendant's sister, acknowledged that the defendant lived with his mother and that "the family kind of picked up and helped him along the way." She said that since the shooting, her brother had changed. She said the defendant was sad, remorseful, and had been on a suicide watch in jail. She said he was on medication for depression and was sorry for what had happened.
According to the presentence report, the defendant graduated from high school and received a certificate in furniture refinishing. The report shows that he has two adult children and has worked as a mechanic and a tree cutter since 1983. He stated that his physical and mental health were poor and that he took medication for depression, anxiety, and pain. In the report, the defendant said that he started drinking as a teenager and continued to drink until he was incarcerated in 1998. He said that he had not used drugs and that he had not participated in any alcohol or drug treatment programs. The report reveals that the defendant was convicted of armed robbery in 1981 and car theft in 1975. He also has prior convictions for disorderly conduct, possession of a weapon, and driving under the influence (DUI).
The defendant argued that the trial court should apply the following mitigating factors, as listed in Tenn. Code Ann. § 40-35-113:
(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; . . .
(11) 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 the criminal conduct[.]
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